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EXHIBIT 10(xxiv)
AGREEMENT
This Agreement (this "Agreement") is made and entered into
this 8th day of October 1996 by and between DNX Corporation, a Delaware
corporation ("DNX"), and Nextran, a Delaware general partnership ("Nextran").
RECITALS
DNX, through its affiliate DNX Biotherapeutics, Inc., an Ohio
corporation ("DNX Biotherapeutics"), and Xxxxxx Healthcare Corporation, a
Delaware corporation ("BHC"), through its affiliate Baxter Transplant Holdings,
Inc. ("Baxter"), formed Nextran pursuant to that certain Joint Venture
Agreement, dated as of August 29, 1994.
Pursuant to that certain Purchase Agreement, dated as of
September 22, 1995, BHC, through its affiliate Transplant Acquisition, Inc., a
Delaware corporation, acquired DNX Biotherapeutics' interest in Nextran (the
"1995 Transaction").
In connection with the formation of Nextran, DNX and Nextran
executed that certain Services Agreement (DNX) and that certain Services
Agreement (Nextran), each effective as of August 29, 1994 (collectively the
"Services Agreements"). The Services Agreements were not amended or modified
in connection with the 1995 Transaction and each of the Services Agreements
continue in full force and effect.
DNX and Nextran desire to amend and restate the Services
Agreements as a single unified agreement.
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AGREEMENT
In consideration of the following mutual covenants and
agreements, and subject to the terms and conditions set forth herein, the
Services Agreements are hereby amended and restated in their entirety as
follows:
ARTICLE I
SERVICES TO BE PROVIDED BY NEXTRAN
1.1 License. (a) Nextran hereby grants to DNX a license
to use, during the Term (as defined below), on an exclusive basis, the portions
of Nextran's facility (the "Facility") in which DNX currently operates its
animal colony located at 000X Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx,
together with such furnishings and fixtures therein (the "Licensed Premises"),
as the same is more particularly described on Exhibit 1.1 hereto. Further,
Nextran hereby grants to DNX a license to use, during the Term, on a
non-exclusive basis, (a) the portions of the Facility necessary to permit DNX,
and its agents, employees, contractors and invitees, access to the Licensed
Premises on a twenty-four (24) hours per day, seven (7) days per week basis,
and (b) the restroom facilities and loading, shipping, and receiving areas,
kitchen facilities and common corridors serving the Facility (the portions of
the Facility described in clauses (a) and (b) being collectively referred to
herein as the "Related Areas"). Each such license shall be irrevocable during
the Term.
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(b) Nextran shall make available to DNX all electric, water,
gas, lighting, heating, ventilation and air conditioning, and shipping and
receiving services which Nextran has provided to DNX in the Licensed Premises
prior to the effective date hereof, all without interference or interruption,
except such interference or interruption which is not caused by Nextran.
1.2 Lease. The grant of each license pursuant to this
Agreement shall be subject to the conditions, limitations and restrictions
applicable to the Licensed Premises and the Related Areas, as the case may be,
by virtue of the terms and conditions of the lease between DNX Corporation and
College Road Associates, dated as of October 10, 1988, as amended (the
"Lease"). Except for such of Nextran's obligations which DNX has agreed to
perform pursuant to this Agreement, Nextran agrees to perform all of its
obligations under the Lease in a timely manner and to maintain the Lease in
full force and effect.
1.3 License Fees. DNX shall pay to Nextran, on the first
day of each and every month during the Term, the license fee set forth on
Exhibit 1.2 hereto. Further, as set forth on Exhibit 1.2 hereto, DNX shall
reimburse Nextran for the cost of utilities consumed by DNX in the Licensed
Premises and for a proportionate share of the real estate taxes and operating
expenses charged to Nextran pursuant to the Lease, as set forth on Exhibit 1.2.
1.4 Maintenance, Repair and Insurance. DNX shall
maintain the Licensed Premises in good operating condition, normal wear and
tear excepted. Nextran shall maintain the
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insurance which Nextran is required to maintain in respect of the Licensed
Premises by virtue of the Lease. In the event of any casualty damage to the
Property, the restoration of the Licensed Premises shall be governed by the
Lease, subject to the indemnification provisions contained herein. In the
event of any casualty damage which cannot, with reasonable effort, be restored
or repaired within ninety (90) days after such casualty event, each party
hereto shall have the right to terminate this Agreement by written notice to
the other. DNX will maintain liability insurance and casualty insurance on its
property located in the Licensed Premises to the same extent that Nextran is
required to maintain such coverage in the Lease.
1.5 Security Deposit. (a) DNX has delivered to Nextran
the sum of $22,000.00 which is held by Nextran as security for DNX's
performance of its obligations hereunder (the "Security Deposit"). Provided
that DNX shall not be in default under this Agreement, the Security Deposit
shall be returned to DNX, with interest at the rate of eight percent (8%) per
annum, within thirty (30) days after the expiration or termination of this
Agreement.
(b) Nextran and DNX acknowledge that the landlord under the
Lease (the "Landlord") holds a security deposit with respect to the Lease and
that DNX is entitled to such security deposit. Promptly after the date of this
Agreement, Nextran shall provide to the Landlord such substitute security as
the Landlord shall require under the Lease so that the Landlord shall pay to
DNX the entire amount of DNX's security deposit.
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ARTICLE II
SERVICES TO BE PROVIDED BY DNX
2.1 General. Subject to the limitations set forth on
Exhibit 2.1 hereto, Nextran agrees to purchase from DNX and DNX agrees to sell
and provide to Nextran the services (the "Services") at the pricing and in the
quantities described on Exhibit 2.1 hereto. DNX shall provide the Services at
the Facility. Nextran agrees to provide to DNX the operational information
required for DNX to provide the Services.
2.2 Performance Standards. DNX shall provide the
Services to Nextran at substantially the same quality levels and in the same
order of priority as DNX provides services similar to the Services to third
parties.
ARTICLE III
TERM
3.1 Term. This Agreement shall become effective on the
later of January 1, 1997 or when DNX completes construction of its offices and
lab at 000X Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx and shall expire on August
31, 1999 at 11:59 p.m.; provided, however, that should the Lease be terminated
by the Landlord pursuant to the terms of the Lease, that the term of this
Agreement will expire upon such termination of the Lease (the "Term").
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ARTICLE IV
CONFIDENTIALITY
4.1 Confidential Treatment. Each of DNX and Nextran
agrees that it will keep confidential and not disclose any information provided
to the other in connection with the services being rendered hereunder to any
other person without the consent of the party from whom the information was
obtained, unless the information is known or becomes known to the public other
than through the breach of this Agreement or such disclosure is required by
law. Upon expiration or termination of this Agreement, each of DNX and Nextran
agrees to return all information to the other person, including all copies
thereof, unless the returning party is otherwise required to retain such
information by law.
ARTICLE V
INDEMNIFICATION
5.1 Nextran. Nextran shall indemnify and hold harmless
DNX, and its controlling persons, directors, officers, employees and agents
(collectively, for purposes of this Article V only, "DNX") from and against any
and all losses, expenses, claims, actions, lawsuits and judgments thereon
(including reasonable attorneys fees), which may be brought against DNX as a
result of the acts or omissions of Nextran or its stockholders, employees,
directors, officers or agents or Nextran's or any such person's activities in
carrying out the terms of this Agreement; provided, however, that DNX shall not
be indemnified for any loss, liability or damage resulting from DNX's failure
to comply
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with the terms of this Agreement or any acts of gross negligence or willful
misconduct by DNX.
5.2 DNX. DNX shall indemnify and hold harmless Nextran,
and its controlling persons, directors, officers, employees and agents
(collectively, for purposes of this Article V only, "Nextran") from and against
any and all losses, expenses, claims, actions, lawsuits and judgments thereon
(including reasonable attorneys' fees), which may be brought against Nextran as
a result of the acts or omissions of DNX or its stockholders, employees,
directors, officers or agents or DNX's or any such person's activities in
carrying out the terms of this Agreement; provided, however, that Nextran shall
not be indemnified for any loss, liability or damage resulting from Nextran's
failure to comply with the terms of this Agreement or any acts of gross
negligence or willful misconduct by Nextran.
ARTICLE VI
TERMINATION AND REMEDIES
6.1 Termination. (a) Both DNX and Nextran shall have
the right to terminate this Agreement upon the breach of any provision of this
Agreement by the other party. Notice of breach and termination shall be given
in writing by the nonbreaching party to the breaching party. The termination
pursuant to this Section 6.1(a) shall be effective 30 days after delivery of
written notice unless the breaching party shall have cured the breach to the
reasonable satisfaction of the nonbreaching party prior to such termination
date.
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(b) This Agreement shall automatically terminate upon the
effectiveness of the termination of the Lease by the Landlord pursuant to the
terms of the Lease. Notwithstanding the foregoing, within three business day's
following the receipt by Nextran of notice from the Landlord of termination of
the Lease, Nextran shall furnish written notice to DNX, both by telecopy
(transmission confirmed) and by overnight courier, of such termination of the
Lease.
ARTICLE VII
ARBITRATION
7.1 Arbitration. (a) All disputes between or among
Nextran and DNX arising out of or in connection with the execution,
interpretation and performance of this Agreement (including the validity, scope
and enforceability of this arbitration provision) shall be solely and finally
settled by arbitration. The arbitration proceedings shall be held in Chicago,
Illinois, and shall be conducted in accordance with the Center for Public
Resources (the "CPR") Rules for Non-Administered Arbitration of Business
Disputes. The arbitration shall be governed by the provisions of the federal
Arbitration Act unless otherwise provided herein, and shall be conducted by a
sole arbitrator appointed by the CPR (the "Arbitrator"). In case of conflict
between the CPR Rules and this Agreement, the provisions of this Agreement
shall govern. All arbitrations commenced with respect to this Agreement shall
be consolidated for hearing before a sole Arbitrator as prescribed herein.
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(b) If a party hereto determines to submit a dispute for
arbitration pursuant to this Section 7.1, such party (the "Petitioner") shall
furnish the other party (the "Respondent") with a dated, written statement (the
"Arbitration Notice") indicating (i) such party's intent to commence
arbitration proceedings, (ii) the nature, with reasonable detail, of the
dispute and (iii) the remedy such party will seek. A copy of the Arbitration
Notice shall be concurrently provided to the CPR, along with a copy of this
Agreement and a request to appoint an Arbitrator.
(c) At any time within forty (40) days after the date of the
Arbitration Notice, the Petitioner and Respondent can make discovery requests
of the other in any form permitted under the United States Federal Rules of
Civil Procedure. The recipient of a discovery request shall have ten (10) days
after the receipt of such request to object to any or all portions of such
request, and shall respond to any portions of such request not so objected to
within twenty (20) days of the receipt of such request. All objections shall
be in writing and shall indicate the reasons for such objections. The
objecting party shall insure that all objections and responses are received by
other parties within the above time periods. Any party seeking to compel
discovery following receipt of an objection shall file with the other parties
and the Arbitrator a motion to compel, including a copy of the initial request
and the objection. The Arbitrator shall allow five days for responses to the
motion to come before ruling. Claims of privilege and other objections shall
be
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determined as they would be in United States federal court in a case applying
Illinois law.
(d) Hearings must commence no later than the 83rd day
following the date of the Arbitration Notice and such hearings shall be
conducted for no more than five days, unless otherwise agreed by the parties or
ordered by the Arbitrator.
(e) Each of the Petitioner and Respondent shall submit a
brief, outlining such party's claim for relief or defense to any claim, to the
other and to the Arbitrator on or before the 10th day following the last day of
the hearing. Reply briefs must be exchanged and submitted to the Arbitrator on
or before the 20th day following the last day of the hearing. The Arbitrator
shall render the decision that, in its judgment, is most consistent with the
terms of this Agreement and applicable law.
(f) The foregoing time periods and procedural steps may be
modified or extended by agreement of the parties or by the Arbitrator in its
discretion to the extent it deems necessary to prevent fundamental unfairness;
provided that at all times the Arbitrator shall be mindful of the parties'
desire for the most expeditious possible resolution of their disputes; and
provided, further, that a final decision of the Arbitrator shall be rendered
within 120 days of the Arbitration Notice.
(g) To the extent permissible under applicable law, the
parties hereto agree that the award of the Arbitrator shall be final and shall
be subject only to the judicial review permitted by the federal Arbitration
Act. Judgment on the
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arbitration award may be entered and enforced in any court having jurisdiction
over the parties or their assets. It is the intent of the parties that the
arbitration provisions hereof be enforced to the fullest extent permitted by
applicable law. In no event shall any demand for arbitration be made after the
date that institution of legal or equitable proceedings based upon the claim,
dispute or other matter would be barred by the applicable statute of
limitations or otherwise barred by this Agreement.
(h) The Arbitrator may not award punitive damages, and the
parties hereby irrevocably waive any right to punitive damages.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Force Majeure. Neither party shall be liable for any
delay in or failure of performance hereunder due to any contingency beyond its
control, including, without limiting the generality of the foregoing, an act of
God, war, mobilization, riot, strike, fire, flood, disease, power failure,
embargo or shortage of supplies; provided, however, that any party's obligation
to pay any amounts hereunder shall be suspended to the extent of the other
party's delay in or failure of performance hereunder.
8.2 No Warranty. (a) DNX makes no representations or
warranties, express or implied, regarding the marketability, use or fitness for
any particular purpose of the materials or services provided to Nextran by DNX.
DNX shall not be liable
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under this Agreement for special, consequential or incidental damages.
(b) Nextran makes no representations or warranties, express
or implied, regarding the marketability, use or fitness for any particular
purpose of the materials or services provided to DNX by Nextran. Nextran shall
not be liable under this Agreement for special, consequential or incidental
damages.
8.3 Independent Contractor. DNX is an independent
contractor, not an employee or agent of Nextran. Nothing in this Agreement
shall render DNX or any of its agents or employees, agents or employees of
Nextran, nor authorize or empower it or its agents or employees to speak for,
represent or obligate Nextran in any way. Nextran recognizes that DNX retains
all the rights and privileges of an employer, including but not limited to the
right to hire, direct, discipline, compensate and terminate employees assigned
to perform the Services. DNX shall have the exclusive rights to designate
which of its employees render any Service hereunder. DNX assumes any and all
liabilities with respect to compensation of its employees. Each of DNX and
Nextran, for itself and its respective affiliates, agree, for the Term of this
Agreement and for a period of one (1) year thereafter not to solicit for
employment the employees of the other.
8.4 Amendments and Waivers. This Agreement may be
amended only by a written instrument signed by the parties hereto. No failure
to exercise and no delay in exercising, on the part of any party, any right,
remedy, power or privilege
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hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law. The failure of any party to insist upon
a strict performance of any of the terms or provisions of this Agreement, or to
exercise any option, right or remedy herein contained, shall not be construed
as a waiver or as a relinquishment for the future of such term, provision,
option, right or remedy, but the same shall continue and remain in full force
and effect. No waiver by any party of any term or provision of this Agreement
shall be deemed to have been made unless expressed in writing and signed by
such party.
8.5 Captions and Section Headings. Section titles or
captions contained in this Agreement are inserted as a matter of convenience
and for reference purposes only, and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision hereof.
8.6 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
8.7 Notices. All notices, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, three (3) days after being
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mailed by certified or registered mail, postage prepaid, when actually
delivered if sent by overnight courier services or telecopied (transmission
confirmed), or otherwise actually delivered.
If to Nextran: Nextran
000X Xxxxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxxxxxx Center
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Controller
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Xxxxxx Healthcare Corporation
0000 Xxxxx Xxxxxxxx Xxxx
XxXxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Associate General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to DNX: DNX Corporation
000 Xxxxx 00
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address and numbers as may have been furnished by such person
in writing to the other parties.
8.8 Successors and Assigns. All rights, covenants and
agreements of the parties contained in this Agreement shall, except as
otherwise provided herein, be binding upon and inure to the benefit of their
respective successors and assigns.
8.9 Severability and Governing Law. Should any Section
or any part of a Section within this Agreement be
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rendered void, invalid or unenforceable by any court of law for any reason,
such invalidity or unenforceability shall not void or render invalid or
unenforceable any other Section or part of a Section in this Agreement. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Illinois.
8.10 Further Assurances. Each party hereto agrees to do
all acts and to make, execute and deliver such written instruments as shall
from time to time be reasonably required to carry out the terms and provisions
of this Agreement.
8.11 No Benefit to Others. The representations,
warranties, covenants and agreements contained in this Agreement are for the
sole benefit of the parties hereto and their successors and assigns, and they
shall not be construed as conferring any rights on any other person, except the
rights of Silicon Valley Bank (the "Bank") as secured creditor of DNX, holding
a duly perfected first priority lien in certain equipment located at the
Facility and in all of DNX's right, title and interest in this Agreement and
the Bank's rights pursuant to the Service Equipment Subordination Agreement,
dated as of August 29, 1994.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
DNX Corporation
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Nextran
By: Baxter Transplant Holdings
Inc., General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
By: Transplant Acquisition, Inc.,
General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
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