EXHIBIT 10.35
CORPORATE SERVICES AGREEMENT
Corporate Services Agreement (this "Agreement"), dated as of July 1, 1996,
by and between Titan Pharmaceuticals, Inc., a Delaware corporation ("Titan"),
and Ingenex, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company proposes to offer for sale to the public up to
approximately 37% of its common stock, $.001 par value per share (the "Common
Stock;" the Common Stock, together with all other voting capital stock of the
Company, shall be collectively referred to herein as the "Voting Capital
Stock"), pursuant to an initial public offering (the "Public Offering");
WHEREAS, immediately subsequent to the Public Offering, Titan will
continue to own approximately 51% of the issued and outstanding Voting
Capital Stock; and
WHEREAS, prior to the execution hereof, Titan provided certain managerial,
administrative and financial services to the Company, including, among other
things, financial and treasury functions, tax services, administration of
employee benefit plans and human resources (as more fully described in
Section 1(a) hereof, the "Services"); and
WHEREAS, to facilitate Titan's and the Company's separate ongoing
businesses and to reduce unnecessary additional overhead and personnel costs,
Titan and the Company desire to enter into this Agreement to set forth the
terms upon which Titan will continue to provide the Services to the Company.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Services.
(a) The Company hereby engages Titan to provide, and Titan agrees to
provide, to the Company in conformity with the service requirements and
standards of Titan, as of the date hereof, the following services, which
shall be provided throughout the term of the Agreement, without specific
request, unless otherwise indicated:
(i) Financial/Accounting. Titan shall process bi-weekly and special
payroll checks and shall prepare and file related bi-weekly, monthly,
quarterly and annual payroll tax returns for the Company. The Company
shall use Titan's accounts payable system for processing vendor
invoices and check requests and Titan shall process payments of
accounts payable based upon the due dates the Company provides in
Titan's accounts payable system. Titan shall review tax computations
and prepare for the Company tax filings for excise tax, property tax
and sales tax, income tax, franchise tax and business licenses. Titan
also will maintain a general ledger of the Company and prepare
periodic expense statements, financial statements and other necessary
documents required in connection with the Company's filings with the
Securities and Exchange Commission. The Company hereby authorizes and
appoints Titan as its attorney-in-fact solely for the purpose of
filing any necessary returns or filings required to be filed by the
Company pursuant to this Agreement. The Company shall, no later than
two (2) days prior to the due date for any tax payment, excluding
payroll taxes, fund the amount of the tax liability previously
communicated in writing to the Company by Titan. The Company shall use
Titan's software to process routing, billing and records, and Titan
shall provide related support as needed.
(ii) Healthcare Claims Processing. Titan shall coordinate healthcare
claims processing and premium billing and shall process periodic
monthly enrollments for the Company. The Company shall, no later than
the tenth (10th) day of each month, fund the amount of all healthcare
insurance premiums as previously communicated in writing to the
Company by Titan by the fifth day of each month. Titan shall assist
the Company in its open enrollment process. Titan shall process
documentation with respect to any Company benefit plan. Titan shall
prepare necessary filings for governmental agencies related to the
Company benefit plans.
(iii) Human Resources. Titan shall provide all human resource
services, including administration of employee benefit programs.
(b) The foregoing list of services shall not be deemed exhaustive and may
be changed upon the mutual agreement of the Company and Titan.
2. Fees.
(a) In consideration of Titan providing the Services to the Company, the
Company shall pay to Titan, or to any of its subsidiaries as Titan shall
designate, the fees set forth in Section 2(b) hereof. Such fees will
hereinafter collectively be referred to as the "Management Fee."
(b)
SERVICE MONTHLY FEE
---------------------------- --------------
Financial/Accounting ....... $ 6,500.00
Healthcare Claims Processing 2,000.00
Human Resources ............ 1,500.00
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$10,000.00
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3. Indemnification.
(a) The Company agrees to indemnify Titan and/or its subsidiaries
(collectively, the "Titan Group") and the employees of Titan who provide
services hereunder (the "Titan Providers," individually, a "Titan Indemnitee"
and collectively, the "Titan Indemnitees"), if a Titan indemnitee is made, or
threatened to be made, a party to any action, claim or proceeding, whether
civil or criminal, including any action by or in the right of the Company, by
reason of the provision of services by Titan and/or the Titan Providers to
the Company pursuant to the terms of this Agreement (other than any action by
the Company against Titan by reason of a breach of this
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Agreement by Titan) against judgments, fines, amounts paid in settlement and
reasonable expenses, including reasonable attorneys' fees (collectively,
"Losses"); provided, however, that the foregoing indemnity shall not apply to
any Losses to the extent such Losses resulted primarily from the willful
misconduct, gross negligence or bad faith of a Titan Indemnitee.
(b) Titan shall be liable for, and agrees to indemnify the Company
against, any claim, damage or loss incurred by the Company resulting from or
arising out of any act or omission by Titan or a Titan Provider in connection
with the performance or non-performance of any of Titan's duties under this
Agreement to the extent that such act or omission resulted from the willful
misconduct, gross negligence or bad faith of Titan or a Titan Provider.
4. Responsibility for Providing Compensation and Fringe Benefits to
Service Providers. Titan shall bear all of the costs and expenses of the
personal compensation, fringe benefits and perquisites, including, without
limitation, pension, life insurance, health insurance, hospitalization and
other forms of insurance, of the Titan Providers, and such persons shall not
be entitled to any compensation or benefit from the Company for services
performed for the Company in any capacity pursuant to this Agreement.
5. Status as Independent Contractor. It is expressly understood between
the parties hereto that all of the Titan Providers shall be independent
contractors with respect to services provided by the Titan Providers to the
Company hereunder, unless and to the extent that such Titan Providers are
employed separately by the Company. It is also expressly agreed that, unless
and to the extent that such Titan Providers are employed separately by the
Company, Titan shall be solely responsible for the withholding and payment of
any and all taxes and other sums required to be withheld or paid by an
employer pursuant to any and all state, federal or other laws with respect to
all Titan Providers rendering services hereunder.
6. Work Product; Confidentiality. Titan agrees, on behalf of itself and
its employees, representatives and agents, including, without limitation, the
Titan Providers, that all memoranda, notes, records or other documents made
or compiled by Titan and its employees, representatives and agents
(including, without limitation, the Titan Providers) in the fulfillment of
Titan's obligations under this Agreement or otherwise, or made available to
any of them concerning any Company Information (as defined below) shall be
the Company's property and shall be delivered to the Company upon the
termination of this Agreement or at any other time upon the Company's
request. None of Titan or its employees, representatives and agents
(including, without limitation, the Titan Providers) shall, directly or
indirectly, knowingly use, for themselves or others, or divulge to others,
other than in the ordinary course and in furtherance of the Services to be
provided hereunder, any secret or confidential information, non-public
information, knowledge, or data of the Company or its collaborators
(collectively, the "Company Information") obtained by any of them as a result
of Titan's performance of this Agreement, unless authorized by the Company.
The provisions of this Section do not extend to any portion of such Company
Information which becomes generally available to the public other than as a
result of a disclosure by the recipient or its representatives, subsidiaries
or affiliates, and will not be deemed to restrict the recipient from
complying with any order, request or decree of any court, government or other
regulatory body to produce any such information, but upon receiving notice
that any such order, request or decree is being sought, the
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recipient will promptly give the Company notice thereof and agree to
cooperate with the Company's efforts, if any, to contest the issuance of such
order, request or decree. The provisions of this Section shall survive the
termination or expiration of this Agreement.
7. Term. This Agreement will commence on the date hereof (the
"Commencement Date") and continue for one year from the Commencement Date.
This Agreement shall be extended automatically for additional one year terms
unless terminated by either party hereto upon 60 days prior written notice
given as provided herein to the other party hereto. Notwithstanding the
foregoing, the Company shall have the right to terminate any of the Services
provided by Titan and receive a corresponding pro rata reduction in the
Management Fee and/or the fees payable pursuant to Section 2 hereof upon
thirty (30) days prior written notice to Titan.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally or sent by
facsimile transmission, overnight courier, or certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally or sent by facsimile transmission (provided that a
confirmation copy is sent by overnight courier), or, if sent by overnight
courier, one (1) day after deposit with an overnight courier, or, if mailed,
three (3) days after the date of deposit in the United States mails, as
follows:
To Titan: Titan Pharmaceuticals, Inc. 000 Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxx 000 Xxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 Attention:
President Telecopy No.: (000) 000-0000
To the Company: Ingenex Inc. 0000 X'Xxxxx Xxxxx, Xxxxx X
Xxxxx Xxxx, Xxxxxxxxxx 00000 Attention:
President Telecopy No.: (000) 000-0000
Any party may, by notice given in accordance with this Section to the other
party, designate another address or person for receipt of notices hereunder.
9. Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all previous negotiations, oral agreements, commitments and writings with
respect to such subject matter.
10. Amendments. This Agreement may not be modified or amended except by an
agreement in writing signed by both parties.
11. Governing Law. This Agreement and the rights and remedies of the
parties hereto shall be governed by and construed in accordance with the laws
of the State of Delaware applicable
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to agreements made and to be wholly performed within such State, without
regard to the conflicts of laws principles of such State. Any legal action,
suit or proceeding arising out of or relating to this Agreement may be
instituted in any state or federal court located within the County of New
Castle, State of Delaware, and each party hereto agrees not to assert, by way
of motion, as a defense, or otherwise, in any such action, suit or
proceeding, any claim that it is not subject personally to the jurisdiction
of such court, that the venue of the action, suit or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in or
by such court.
12. Assignment. Neither Titan nor the Company may assign any of its
rights, benefits or duties under this Agreement without the prior written
consent of the other, which consent will not be unreasonably withheld or
delayed. This Agreement is binding on and will inure to the benefit of the
parties and their respective permitted successors and assigns.
13. No Third-Party Beneficiaries. This Agreement is solely for the benefit
of the parties hereto (and the Titan Indemnitees), and should not be deemed
to confer upon third parties any remedy, claim, liability, reimbursement,
claim of action or other right in excess of those existing without reference
to this Agreement.
14. Captions. Captions and section headings are used for convenience of
reference only and are not part of this Agreement and may not be used in
construing it.
15. Enforceability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction will not invalidate or render
unenforceable such provision or remedies otherwise available to any party
hereto.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
TITAN PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
INGENEX, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief
Executive Officer
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