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EXHIBIT 10.15
SERVICES AND FACILITIES USE AGREEMENT
This SERVICES AND FACILITIES USE AGREEMENT (the "Agreement") is
executed as of October 10, 1996 ("Effective Date") by and between CYTRX,
CORPORATION, a Delaware corporation ("CytRx"), and VAXCEL, INC., a Delaware
corporation ("Vaxcel").
WITNESSETH:
WHEREAS, Vaxcel has obtained from CytRx and CytRx has provided to
Vaxcel certain administrative / technical services and office space under the
terms and conditions set forth in a Services and Facilities Agreement dated as
of June 1, 1993 (the "Original Agreement");
WHEREAS, Vaxcel desires to continue to occupy a portion of CytRx's
Norcross Georgia facility and CytRx desires to permit Vaxcel to utilize such
premises on the terms and conditions hereinafter set forth;
WHEREAS, Vaxcel wishes to continue to utilize CytRx and CytRx desires
to continue to provide to Vaxcel certain administrative and technical services
on the terms and conditions hereinafter set forth; and
WHEREAS, the parties wish to formally evidence their understandings and
arrangements with respect to the administrative / technical services and
facilities to be provided to Vaxcel by CytRx.
NOW THEREFORE, the parties hereto, in consideration of their mutual
covenants and intending to be legally bound, hereby agree as follows:
1. Services
1.1 CytRx agrees to provide (either directly or through subsidiaries of
CytRx) for the term specified herein the management, administrative, and other
services as may be reasonably requested by Vaxcel including, without limitation,
consultation in regard to general management, financial management, development
and implementation of marketing strategy, technical and production management
assistance, human resources management, insurance programs administration, audit
administration, tax research and planning, preparation of income tax returns,
and other administrative functions and advice in connection with the operations
of the business of Vaxcel. CytRx shall designate the appropriate persons to
perform the services under this Agreement and the portion of time such employees
shall spend providing such services.
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1.2 CytRx agrees to make available to Vaxcel the services of its
technical and scientific personnel for specific projects to be designated from
time to time by mutual agreement of CytRx and Vaxcel.
1.3 In consideration of the services to be rendered by CytRx under this
Section 1, Vaxcel shall pay CytRx: (i) a pro rata share of the salaries of the
management and administrative employees of CytRx who provide services to Vaxcel
hereunder plus an additional 45% of such amount to cover fringe benefits,
overhead, and other direct and indirect costs and expenses related to such
employees; and (ii) a pro rata share of the salaries of the technical,
laboratory, and research employees of CytRx who provide services to Vaxcel
hereunder plus 100% of such amount to cover fringe benefits, overhead (including
laboratory equipment associated with such personnel), and other direct and
indirect costs and expenses related to such employees. Vaxcel recognizes that
CytRx has heretofore provided, or has made arrangements for, certain services
and benefits for Vaxcel and that CytRx may continue to provide, or make
arrangements with third parties for, certain of such services and benefits. The
foregoing may involve, among other things, various types of insurance programs
and various legal, accounting, and other matters requiring outside professional
services. To the extent that CytRx continues to incur obligations for Vaxcel at
Vaxcel's request in connection with such services and benefits, Vaxcel shall pay
to CytRx the actual and identifiable costs of such services and benefits, or, in
those cases where actual costs cannot be identified, Vaxcel's proportionate
share of such benefits and services, and the sums necessary to discharge, repay,
or to otherwise compensate CytRx for any obligations incurred by CytRx in
connection therewith. CytRx shall submit to Vaxcel a monthly statement of all
such sums due in accordance with the provisions of this Section 1.3 and each
such statement shall be paid by Vaxcel within 15 days after the delivery of such
statement to Vaxcel. At the request of CytRx, Vaxcel shall from time to time
certify to Vaxcel such facts from CytRx's records as may be relevant to the
determination of the monthly services charge.
1.4 At the beginning of each calendar quarter, the parties shall review
and agree upon the level of services to be provided by CytRx to Vaxcel. If the
actual level of services is different than the anticipated level of services, an
adjustment will be made under Section 1.3 to take into account such change in
services. Nothing herein shall be construed to require CytRx to provide any
services under this Agreement which cannot reasonably be provided by CytRx's
staff or which adversely affects the conduct of CytRx's business.
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2. Administrative Facility Use
2.1 CytRx agrees to reserve and make available to Vaxcel certain
administrative space located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx. CytRx
agrees to provide Vaxcel reasonable access to the facility and Vaxcel agrees to
comply with CytRx's standard operating procedures regarding access to the
facility.
2.2 Vaxcel is currently occupying approximately 800 square feet of
administrative space in the Norcross Georgia facility. Upon the mutual approval
of both parties, Vaxcel may occupy additional or less administrative space in
the facility. Vaxcel shall reimburse CytRx for such usage at the annualized rate
of $15.00 per square foot.
2.3 The fee paid by Vaxcel to CytRx for administrative space shall
include basic office furniture, utilities, taxes, depreciation, general
management and maintenance, basic phone service, and reasonable usage of copy
machines, office supplies, postage, conference rooms, and other common areas.
Out-of-pocket expenditures, such as long distance charges, Fedx's,
equipment, and large office supplies, shall be paid directly by Vaxcel. CytRx
shall submit to Vaxcel a monthly statement of all such sums due in accordance
with the provisions of this Section 2.3 and each such statement shall be paid by
Vaxcel within 15 days after the delivery of such statement to Vaxcel.
3. Term and Termination
3.1 The Agreement shall commence on the Effective Date and shall
continue in force unless terminated sooner by either party.
3.2 Upon default by either party in the performance of any of the
provisions hereof, the party not in default shall give the defaulting party
written notice specifying such default and the defaulting party shall have 30
days after receipt of such notice to remedy or correct the condition of default
specified therein. If at the end of such 30-day period, the defaulting party has
not remedied or corrected the default, the other party may immediately terminate
this Agreement upon written notice to the defaulting party.
3.2 The Agreement may be terminated by either party upon eight (8)
months written notice. The Agreement shall automatically be terminated in the
event of bankruptcy or insolvency of either party.
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4. Miscellaneous
4.1 For purposes of the Agreement and all services to be provided
hereunder, CytRx shall not be considered a partner, co-venturer, agent, employee
or representative of Vaxcel, but shall remain in all respects an independent
contractor. Neither party shall have any right or authority to make or undertake
any promise, warranty, or representation, to execute any contract, or otherwise
to assume any obligation or responsibility in the name of or on behalf of the
other party, except to the extent specifically authorized herein or in writing
by the other party.
4.2 CytRx shall have no liability for claims, liabilities, losses,
damages or expenses except such as are determined by final and nonappealable
judgment of a court of competent jurisdiction to result primarily from CytRx's
gross negligence or bad faith in providing a service hereunder. In such event,
Vaxcel's remedy shall be limited to a refund of the amounts paid to CytRx for
such service.
4.3 Vaxcel will indemnify and hold harmless CytRx, its affiliates and
the representative directors, officers, agents and employees of CytRx and its
affiliates from and against any claims, actions, proceedings, demands,
liabilities, damages, judgments, assessments, losses and costs arising out of or
in connection with the services rendered by CytRx under the Agreement. Vaxcel
will not, however, be responsible for any claims, liabilities, losses, damages
or expenses that are determined by final and nonappealable judgment of a court
of competent jurisdiction to result primarily from CytRx's gross negligence or
bad faith.
4.4 Nothing herein shall be construed to relieve the directors or
officers of Vaxcel from the performance of their respective duties or limit the
exercise of their powers in accordance with the Certificate of Incorporation or
By-Laws of Vaxcel, any applicable provisions of the Business Corporation Law of
the State of Delaware, or otherwise. The activities of Vaxcel shall at all times
be subject to the control and direction of its Board of Directors and Officers.
4.5 Any notice authorized or required to be given hereunder shall be
sufficiently and satisfactorily given if the same is in writing or confirmed in
writing and is delivered or mailed, first class, postage prepaid, addressed to
either party at its address specified from time to time.
4.6 The Agreement shall be governed by the laws of the State of
Delaware. No amendment or modification of the Agreement shall be effective
unless in writing and signed by the parties hereto. The Agreement shall not be
assignable by Vaxcel without the written consent of CytRx. Subject to the
foregoing, the Agreement shall be binding upon the successors and assigns of
each party.
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4.7 The spirit of the Agreement is that both parties will make every
effort to reside in harmony in the facilities including, but not limited to, the
following: (a) bulk purchasing of office supplies; (b) reasonable sharing of
equipment; and (c) routine communication regarding each company's strategic
plans.
4.8 The Agreement sets forth and constitutes the entire agreement
between the parties with respect to the subject matters and supersedes any and
all prior agreements, understandings, promises, and representations made by
either party to the other concerning the subject matter hereof and the terms
applicable hereto. The Agreement may not be released, discharged, amended, or
modified in any manner except by an instrument in writing signed by duly
authorized representatives of Vaxcel and CytRx.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed by an officer thereunto duly authorized as of the date first above
written.
CYTRX, CORPORATION.
By: /s/ Xxxx X. Xxxxxxx
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VAXCEL, INC.
By: /s/ Xxxx X. Xxxxxx
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