Exhibit 10.15
AMENDED AND RESTATED SERVICE AGREEMENT
DATED
APRIL 7, 1999
BETWEEN
INTERMUNE PHARMACEUTICALS, INC.
AND
CONNETICS CORPORATION
AMENDED AND RESTATED SERVICE AGREEMENT
THIS AMENDED AND RESTATED SERVICE AGREEMENT ("Agreement") is dated as
of April 7, 1999 between Connetics Corporation, a Delaware corporation
("Connetics"), and InterMune Pharmaceuticals, Inc., a California corporation
("InterMune"). InterMune and Connetics are also referred to as a "Party" or
"Parties" to this Agreement.
A. InterMune requires information services, payroll, facilities,
human resources, accounting, employee benefits administration and R&D related
services; and
B. Connetics is willing to continue to provide to InterMune such
services and InterMune desires to obtain such services and assistance from
Connetics, in each case on the terms and conditions set forth herein.
C. InterMune and Connetics have previously entered into a Service
Agreement dated as of October 12, 1998 (the "Service Agreement") and desire to
amend the Service Agreement.
NOW, THEREFORE, the Parties, intending to be legally bound, hereby agree
as follows:
1. SERVICES PROVIDED.
(a) Connetics hereby agrees to provide or make available the
support and related services that are listed and briefly described in
ATTACHMENT A hereto (the "Services"), to InterMune in accordance with the
terms of this Agreement. In order to provide for the furnishing of additional
services not listed on ATTACHMENT A at the time of execution of this
Agreement, ATTACHMENT A may be amended from time to time with the consent of
each of Connetics and InterMune. All Services shall be performed in a manner,
to the extent and at a time substantially consistent with the manner in which
Connetics performs administrative or other services for its own benefit.
Without limiting the foregoing, Connetics agrees to consult with
representatives of InterMune prior to taking any action material to the
provision of Services pursuant to this Agreement that would constitute a
material departure from past practice.
(b) In addition, Connetics will provide such reasonable
assistance to InterMune as InterMune shall request to efficiently and
expeditiously develop the ability to operate InterMune and to perform the
Services provided for hereunder itself.
(c) Notwithstanding anything to the contrary in this Agreement,
InterMune may, at any time, upon ninety (90) days' prior written notice to
Connetics, elect to discontinue receiving one or more of the Services provided
hereunder. Ninety (90) days following receipt of such notice, Connetics shall
cease to provide such Services to InterMune, and InterMune's right to receive
such Services under this Agreement shall terminate.
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2. TERM. The term of this Agreement shall continue for the period
beginning as of April 1, 1999 and continuing through the close of business on
March 31, 2004, unless earlier terminated by the Parties. This Agreement may be
renewed by mutual agreement of the Parties.
3. TERMINATION.
(a) Connetics may terminate this Agreement if InterMune
shall fail to satisfy its payment obligations under this Agreement within
thirty (30) days after receipt of written notice from Connetics specifying
the amount previously invoiced and remaining due and unpaid and stating its
intent to terminate this Agreement if such amount is not paid within thirty
(30) days of receipt of such notice.
(b) InterMune may terminate this Agreement at any time upon
ninety (90) days prior written notice to Connetics.
(c) Connetics may terminate this Agreement at any time upon
not less than six (6) months prior written notice.
(d) The Parties will provide each other mutual assistance to
ensure a smooth transition of each Service upon termination. Notwithstanding
the foregoing, neither Party may terminate this Agreement before October 31,
1999.
4. COMPENSATION. InterMune shall pay Connetics for bundled
services, overhead and project-related headcount costs. The formula for
compensation is written on ATTACHMENT B. The Parties commit to meet and
review ATTACHMENT B at least once every three months for the purpose of
re-evaluating the allocation of bundled services and itemized costs.
5. INVOICING AND PAYMENT. Connetics shall invoice InterMune
monthly for costs pursuant to Section 4 and payment shall be due within ten
(10) days of when invoice is delivered.
6. RIGHT TO AUDIT. For the purposes of verifying the proper
performance of services by Connetics and its agents hereunder, InterMune
shall be entitled, on reasonable notice and during normal business hours to
inspect and copy the records of Connetics and its agents providing services
hereunder as may be reasonably necessary for such purpose. All such records
shall be retained by Connetics and made available to InterMune for three
years following the date to which such records relate and shall remain the
property of Connetics. Notwithstanding the foregoing, InterMune shall not
have access to personnel records of Connetics relating to individual
performance or revaluation records or medical histories.
7. INDEPENDENT CONTRACTOR STATUS. Connetics and its agents shall
be independent contractors with respect to services they provide to InterMune
hereunder. Connetics
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and its agents shall not hold themselves out to third parties as having the
power to contractually bind InterMune with respect to any matter, and shall
be responsible for their own employees, and such employees shall not be
deemed to have an employment relationship with InterMune. Notwithstanding the
above, InterMune hereby appoints Xxxxx Wee, or her replacement mutually
acceptable to InterMune and Connetics, as agent for InterMune with respect to
issuing accounts payable checks, filing tax returns, authorizing payroll, and
authorizing the investment of InterMune's proceeds in accounts or instruments
maintained by Silicon Valley Bank, and authorizing the disbursement of funds
related thereto.
8. BOOKS AND RECORDS. Connetics' books and records with respect
to the Services ("Books and Records") shall be kept at Connetics' offices
located at 0000 Xxxx Xxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000. The Books
and Records shall be made available for InterMune or its representatives'
inspection and copying at all times during regular office hours. Connetics
shall not be required to maintain the Books and Records for more than three
years after termination of this Agreement.
9. TRANSFER OF RECORDS. Connetics shall deliver to InterMune,
within a reasonably prompt time, all of InterMune's corporate records and
files held by Connetics upon termination of this Agreement.
10. COMPLIANCE WITH LAWS. Each of InterMune and Connetics shall
comply with any and all applicable statutes, rules, regulations, orders or
restrictions of any domestic or foreign government, or instrumentality or
agency thereof, in respect of the conduct of their activities in the
fulfillment of their obligations under this Agreement.
11. CONFIDENTIALITY, RECORDS.
(a) PROPRIETARY INFORMATION. All information furnished or
disclosed by one party (a "Disclosing Party") to the other party (a
"Receiving Party") in connection with the negotiation or performance of this
Agreement, including but not limited to trade secrets, cost and pricing
information, computer program, technique, design, drawing, prototype, formula
or test data, relating to any research project, work in process, future
development, engineering, manufacturing, marketing, servicing, financing or
personnel matter shall be deemed "Proprietary Information"; PROVIDED,
HOWEVER, that the term "Proprietary Information" shall not be deemed to
include information which the Receiving Party can demonstrate by competent
written proof: (i) is now, or hereafter becomes, through no act or failure to
act on the part of the Receiving Party, generally known or available; (ii) is
known by the Receiving Party at the time of receiving such information, as
evidenced by its records; (iii) is hereafter furnished to the Receiving Party
by a third party, as a matter of right and without restriction on disclosure;
or (iv) is the subject of a written permission to disclose by the Disclosing
Party.
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(b) USE AND HANDLING OF PROPRIETARY INFORMATION. The
Receiving Party shall maintain all Proprietary Information in trust and
confidence and shall use at least the same degree of care regarding this
information as it uses with respect to its own Proprietary information to
prevent it unauthorized disclosure, use or publication. The Receiving Party
may use such Proprietary Information only to the extent required to
accomplish the intent of this Agreement. The Receiving Party shall not use
the Proprietary Information for any purpose or in any manner which would
constitute a violation of any laws or regulations.
(c) OWNERSHIP OF PROPRIETARY INFORMATION. All Proprietary
Information (including all copies thereof) of a Party shall at all times
remain the property of such Disclosing Party. No rights or licenses to
trademarks, inventions, copyrights or patents are implied or granted under
this Agreement.
(d) PERMITTED DISCLOSURE. A Party may disclose Proprietary
Information to its professional advisors, and may disclose such information
if such disclosure is in response to a valid order of a court or other
governmental body of the United States for any political subdivision thereof,
provided, however, that the Receiving Party shall first have given notice to
the Disclosing Party and shall have made a reasonable effort to obtain a
protective order requiring that the Proprietary Information so disclosed be
used only for the purposes for which the order was issued; or is otherwise
required by law.
(e) INJUNCTIVE RELIEF. Each party acknowledges and agrees
that in the event of any breach of this Agreement by a Receiving Party,
including, without limitation, the actual or threatened disclosure of
Proprietary Information without the prior express written consent of the
Disclosing Party, the Disclosing Party will suffer an irreparable injury,
such that no remedy at law will afford it adequate protection against, or
appropriate compensation for, such injury. Accordingly, in the event of any
breach or threatened breach by a Receiving Party of any provisions of this
Section 11, the Disclosing Party shall, in additional to all other remedies
available to it be entitled to specific performance of the Receiving Party's
obligations under this Agreement.
12. DISPUTE RESOLUTION. In the event of any controversy or claim
arising out of, relating to or in connection with any provision of this
Agreement, or the rights or obligations of the Parties to this Agreement, the
Parties shall try to settle their differences amicably between themselves by
referring the disputed matter to the President of InterMune and the Chief
Executive Officer of Connetics for discussion and resolution. Either Party
may initiate such informal dispute resolution by sending written notice of
the dispute to the other Party, and within ten (10) days after such notice
such representatives of the Parties shall meet for attempted resolution by
good faith negotiations. If such personnel are unable to resolve such
dispute within thirty (30) days of initiating such negotiations, either
Party may seek to have such dispute resolved by binding arbitration under
this Section 12. The arbitration shall be held in Palo Alto, California
according to the Commercial Arbitration Rules of the American Arbitration
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Association (the "Rules"). The arbitration will be conducted by a panel of
three (3) arbitrators who are knowledgeable in the subject matter that is at
issue in the dispute, are not affiliated directly or indirectly with either
Party, and are selected by mutual agreement of the Parties. Failing such
agreement, the arbitrators shall be selected appointed as provided in the
Rules. During the arbitration, the Parties shall have such discovery rights
as the arbitrators may allow, consistent with the discovery permitted by the
Federal Code of Civil Procedure. In conducting the arbitration, the
arbitrators shall apply the rules of evidence applicable in California, and
shall be able to decree any and all relief of an equitable nature, including
but not limited to such relief as a temporary restraining order, a
preliminary injunction, a permanent injunction, or replevin of property, as
well as specific performance. The arbitrators shall also be able to award
direct and indirect damages, but shall not award any other form of damage
(E.G., punitive or exemplary damages). The reasonable fees and expenses, of
the arbitrators, along with the reasonable legal fees and expenses of the
prevailing Party (including all expert witness fees and expenses), the fees
and expenses of a court reporter, and any expenses for a hearing room, shall
be paid as follows: If the arbitrators rule in favor of one Party on all
disputed issues in the arbitration, the losing Party shall pay 100% of such
fees and expenses; if the arbitrators rule in favor of one Party on some
issues and the other Party on other issues, the arbitrators shall issue with
the rulings a written determination as to how such fees and expenses shall be
allocated between the Parties. The arbitrators shall allocate fees and
expenses in a way that bears a reasonable relationship to the outcome of the
arbitration, with the Party prevailing on more issues, or on issues of
greater value or gravity, recovering a relatively larger share of its legal
fees and expenses. The decision of the arbitrators shall be final and may be
entered, sued on or enforced by the Party in whose favor it runs in any court
of competent jurisdiction at the option of such Party. Whether a claim,
dispute or other matter in question would be barred by the applicable statute
of limitations, which statute of limitations also shall apply to any claim or
disputes subject to arbitration under this Section, shall be determined by
binding arbitration pursuant to this Section.
13. NONASSIGNMENT; PARTIES IN INTEREST. Neither Party may assign
its rights or its duties under this Agreement without the prior written
consent of the other Party; PROVIDED, HOWEVER, that Connetics may delegate
its duties hereunder to any of its agents or affiliates. This Agreement shall
inure to the benefit of and be binding upon Connetics, InterMune and their
successors and assigns.
14. SURVIVAL. The provisions of Sections 4, 5, 6, 8 and 11 shall
survive the any termination of this Agreement.
15. GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of California, without giving effect to conflicts of
law principles.
16. FORCE MAJEURE. In the event that a party's performance under
this Agreement, other than InterMune's obligations to make payments, shall be
interrupted or delayed by the
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occurrence of any event beyond the reasonable control of such party, then
such a party shall be excused from performance during the period of time when
the interruption occurred.
17. NOTICES. All notices, requests, and other communications to any
party hereunder shall be in writing (including telecopy or similar writing)
and shall be given:
IF TO CONNETICS:
Connetics Corporation
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
IF TO INTERMUNE:
InterMune Pharmaceuticals, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: President
Fax: (000) 000-0000
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effective (a) if
personally delivered, at the time delivered by hand, (b) if delivered by
facsimile transmission, upon confirmation of transmission, (c) if by courier,
on the business day such courier guarantees delivery, and (d) if delivered by
U.S. Mail, seven business days after deposit in the U.S. Mail, postage
prepaid.
18. INTEGRATION. This Agreement supersedes all prior negotiations,
commitments and rights pertaining to the subject matter of this Agreement.
19. AMENDMENTS. This Agreement may not be modified or amended
except by a written agreement signed by the Parties.
20. INDEMNIFICATION. Connetics hereby agrees to indemnify and hold
InterMune harmless from and against any and all claims, liabilities, damages,
costs and expense, of whatever kind or nature (each a "Loss"), incurred or
suffered by InterMune as a result of performance by Connetics or its agents
constituting negligence or willful misconduct of any of its obligations under
this Agreement. InterMune agrees to indemnify and hold Connetics harmless
from and against any loss incurred or suffered by Connetics arising out of
claims or lawsuits by third parties relating to the services provided by
Connetics hereunder, except to the
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extent that any such Loss results from Connetics' or its agents' gross
negligence or willful misconduct.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument. This Agreement shall become
effective when each party to this Agreement has received a counterpart of this
Agreement signed by the other parties.
[INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
CONNETICS CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
INTERMUNE PHARMACEUTICALS, INC.
By /s/ W. Xxxxx Xxxxxxxx, M.D.
----------------------------------------
W. Xxxxx Xxxxxxxx, M.D.
President
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ATTACHMENT A
Description of Services to be Provided
HUMAN RESOURCES
Compensation Base Salary Components:
job descriptions
titles
codes
salary structure
job analysis
Benefits Benefit Plans:
medical
dental
vision
STD
LTD
Section 125
life
AD&D
Plan Administration and Employee Coverage
Cost of Benefits/Billing
HR Operations Employee Record Keeping and Services:
workers' compensation
recruiting
performance review process
employee verification
employment records and files
payroll system interface
policies & procedures as currently
exist/legal guidelines
FINANCE/ACCOUNTING
Benefits 401(k) Plan (ADMINISTERED BY FIDELITY):
administration
record keeping
analysis
Incentive Stock Option Plan:
administration
record keeping
analysis
reporting
Insurance/Risk Mgmt. General Liability (TO BE ADMINISTERED AND
BILLED BY SEDGWICK)
Key Management
Accounting Policy & Procedures (AS CURRENTLY
EXIST)
ATTACHMENT A
Accounting Centers Accounting:
general ledger
accounts receivable
employee receivables
accounts payable
employee expense reimbursement
fixed assets
BSA support
payroll
schedules & support for annual financial
audit
documentation to CPA necessary to prepare tax
filings
Operations Planning Budgeting Support
Sales Forecasting
Monthly Reporting
Financial Modeling
Inventory/Distribution Coordination
Cash Management (SUB BY XXXXXXXXXX SECURITIES)
INFORMATION SYSTEMS System Maintenance
General Consulting
Y2K Support
Website Maintenance
FACILITIES Supplies
Facility Maintenance
Security
Receiving
Purchasing
Telecom services
Mail services
Equipment Maintenance
GENERAL ADMINISTRATION Consultation
REGULATORY Consultation
LEGAL Consultation
PROCESS DEVELOPMENT Consultation
QA/QC Consultation
ANIMAL SERVICES Consultation
ATTACHMENT B
A) Monthly FTE Cost $8,500
B) Monthly Per Person Overhead Charge $5,100
C) FTE Allocation For Bundled Services
Finance/Accounting 1.00
QA/QC 0.50
Regulatory 0.10
Legal 0.10
General Administration 0.10
Process Development 0.10
Information Systems 0.05
Human Resources 0.20
Facilities 0.05
Animal Services 0.05
---------
2.25
D) InterMune Employees
Xxxxx Xxxxxxxx 1.00
Xxxxx Xxxxx 0.20
Xxx Xxxxxx 1.00
Xxxx Xxxxx 1.00
Xxx Xxx 1.00
Xxxxxx Xxxxx 1.00
New Hires/Consultants 0.00
---------
5.20
E) Full-time Equivalent of Contracted MONTHLY COMPENSATION
Headcount
Xxxxx Xxxxxxxxxxxx $ XXX
Xxxxxx Xxxxxx $ XXX
Xxxx Xxxxxxxx $ XXX
Xxxx Xxxxxx $ XXX
MONTHLY INVOICE FORMULA
BUNDLED SERVICES C-A
+ OVERHEAD (C + D + E)-B
+ CONTRACTED HEADCOUNT E [% of Monthly Compensation]
=============================
Monthly Invoice Amount
