10.4.3
FACILITY AGREEMENT
This Facility Agreement is made and entered into as of the 18th day of
June, 1998, by and between MEDICIS CONSUMER PRODUCTS COMPANY, L.L.C., a Delaware
limited company (the "LLC"), and IMX PHARMACEUTICALS, INC., a Utah corporation
("IMX"). Capitalized terms used herein without definitions shall have the
meaning set forth in the Joint Venture Agreement (as defined below).
WHEREAS, pursuant to a Joint Venture Agreement dated June 12, 1998 and its
exhibits, schedules, attachments and all other related agreements contemplated
therein (collectively, "Joint Venture Agreement") by and between IMX and MEDICIS
PARTNERS INCORPORATED, a Delaware corporation ("MEDICIS"), IMX and MEDICIS have
agreed to form a joint venture to develop and market pharmaceutical products and
have formed LLC as the joint venture entity;
WHEREAS, IMX currently leases approximately 4,100 square feet of office
space at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 under a lease which
currently terminates on March 31, 2001 (the "Office Lease") and also leases
approximately 1,500 square feet of warehouse space located at 0000 X.X. 0xx
Xxxxxx, Xxx X, Xxxx Xxxxx, Xxxxxxx 00000 which terminates on April 30, 1999 (the
"Warehouse Lease") (the Warehouse Lease and/or the Office Lease, shall be
collectively the "Leases").
WHEREAS, pursuant to the terms of the LLC Agreement, IMX has agreed to
permit the LLC to occupy and use the office and warehouse facilities and to
sublease to the LLC the Office Lease and Warehouse Lease subject to and upon the
terms as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, it is agreed as follows:
1. Sublease.
(a) IMX hereby subleases to LLC all of the space utilized under the
Leases except the space currently used as offices of the Significant Employees
or for the support of the Significant Employees (the space used by LLC is the
"Occupied Space"), which shall continue to be leased and used by IMX.
(b) Also included in this Sublease are: (i) all of the common areas
which will be used jointly by LLC and IMX; (ii) the use of the telephone system
and telephones and computer hardware; and (iii) copy machines, fax machines,
furniture and other facilities and services necessary to conduct the business of
LLC as contemplated under the Joint Venture Agreement and other Major
Agreements. IMX hereby represents and warrants it has obtained all necessary
approval for the sublease granted hereunder.
2. Rent. The rent payable to IMX shall initially be in the amount of Five
Thousand Seventy-Three Dollars and Thirteen Cents ($5,073.13) per annum payable
in equal monthly installments on the first day of each calendar month during the
Term.
3. Term. This Sublease shall commence on the date of execution by the
parties and unless earlier terminated pursuant to this Section 3, shall remain
in effect until termination of the Office Lease ("Initial Term"). The term of
this Sublease shall be extended on any renewal of the Leases (as set forth in
Section 4(b)) or, if applicable, on the agreement for any New Leases (as set
forth in Section 4(a) or 4(c)) ("Extended Term"). However, in the event that the
LLC fails to pay any rent within 30 days after the due date and does not cure
such failure within 30 days after receipt of written notice of IMX of such
failure, IMX shall have the right to terminate this Sublease immediately upon
written notice of termination to the LLC. LLC shall be entitled to immediately
terminate by written notice this Sublease upon any failure by IMX to pay rent to
the Landlord when due which is not cured within 30 days after the date of notice
by either LLC or the Landlord of such failure to pay rent. In the event of
termination due to a breach, by either party, of the Joint Venture Agreement,
the non-breaching party shall also be entitled to terminate this Sublease. Upon
any termination of this Sublease by LLC under this Section 3, all obligation to
pay rent shall cease as of the date of such termination.
4. Renewal of Leases; New Leases.
(a) Additional Space. If during the Initial Term, IMX seeks office
or warehouse space in addition to the Leases to rent for its own purposes, IMX
shall inform LLC in writing. LLC shall be entitled in its discretion to sublease
from IMX a percentage of the additional space being leased by IMX upon the same
terms and conditions as are contained herein, except the rent to be paid by LLC
to IMX under the sublease shall be a percentage of the total rent to be paid by
IMX to the landlord which is proportionately equal to the percentage used by LLC
of the total additional space rented by IMX. The term of such sublease shall be
as the parties agree in writing.
(b) Lease Renewal. During the Initial Term IMX shall not terminate
either the Office Lease or Warehouse Lease, prior to the natural expiration of
the Leases by their terms, without the prior written consent of LLC. IMX may
renew the Office Lease and/or Warehouse Lease upon their expiration, provided
however, that LLC shall be entitled, but not required, to continue to sublease
the same Occupied Space under this Sublease for such period as LLC in its sole
discretion shall determine. In the event the rent charged IMX by the Landlord(s)
increases under the Lease renewal then the rent to be paid by the LLC shall
increase proportionately on a pro rata basis to equal the percentage of space
being used by LLC. If IMX determines that it shall not renew either the Office
Lease and/or Warehouse Lease, IMX shall so notify LLC in writing prior to the
expiration of the term of such Lease. LLC shall then have the option to rent the
Occupied Space directly from the landlord.
(c) New Leases. If IMX and LLC allow the Leases to terminate and IMX
leases new office and/or warehouse facilities ("New Leases"), the LLC shall be
entitled, but not required, to sublease space in such new facilities on the same
terms and conditions as are
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contained in this Sublease provided however that the rent payable by LLC for
such sublease shall be a percentage of the total rent to be paid by IMX to the
landlord which is proportionately equal to the percentage used by LLC of total
new space rented by IMX. The term of such sublease shall be as the parties agree
in writing.
5. Arbitration. The parties shall promptly submit to arbitration pursuant
to Section 19 of the Joint Venture Agreement any dispute which may arise in
connection with this Sublease (or the transactions or relationships contemplated
thereon) that is not promptly resolved by them.
6. Choice of Forum and Governing Law. The parties agree that: (i) subject
to Section 5, any claims or litigation involving any noncompliance with or
breach of this Sublease, or regarding the interpretation, validity and/or
enforceability of this Sublease, shall be filed and conducted exclusively in the
state or federal courts in Maricopa County, Arizona; (ii) the parties consent to
such jurisdiction, agree that venue will be proper in such courts and waive any
objections based upon forum non conveniens; and (iii) this Sublease shall be
deemed to be made in and in all respects shall be interpreted, construed and
governed by and in accordance with the laws of the State of Delaware, without
regard for any conflict of law principles. The choice of forum set forth in this
Section 6 shall not be deemed to preclude the enforcement of any action under
this Sublease in any other jurisdiction.
7. Severability. In the event any portion of this Sublease shall be held
illegal, void or ineffective, the remaining portions hereof shall, remain in
full force and effect. If any of the terms or provisions of this Sublease are in
conflict with any applicable statute or rule of law, then such terms or
provisions shall be deemed inoperative to the extent that they may conflict
therewith and shall be deemed to be modified to conform with such statute or
rule of law. In the event that the terms and conditions of this Sublease are
materially altered, the parties will renegotiate the terms and conditions of
this Sublease to resolve any inequities in an attempt to carry out to the extent
legally permissible the severed or altered portion.
8. Assignment; Binding Agreement.
(a) This Sublease and all or any part of LLC's rights and
obligations hereunder may be assigned by LLC at any time to any Affiliate of
LLC. LLC shall cause such Affiliate(s) to perform any of LLC's obligations
hereunder which are assigned to such Affiliate(s).
(b) Neither this Sublease nor any of IMX's rights or obligations
hereunder may be assigned by IMX without LLC's prior written consent.
(c) This Sublease shall be binding upon and shall inure to the
benefit of the parties hereto and to their respective successors and permitted
assigns. This Sublease is not intended, nor shall be construed, to give any
person other than the parties hereto and their respective successors, assigns
and legal representatives, any legal or equitable right, remedy or claim
hereunder.
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9. Remedies. Nothing contained herein is intended to or shall be construed
to limit the remedies which either party may have against the other in the event
of a breach of or default under this Sublease, it being intended that any
remedies shall be cumulative and not exclusive.
10. Non-Waiver of Rights. The failure to enforce at any time any of the
provisions of this Sublease or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Sublease, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Sublease.
11. Entire Agreement and Modification. This Sublease, the Joint Venture
Agreement and the other Major Agreements and the documents delivered pursuant
thereto, constitutes the entire agreement between the parties. No changes of,
modifications of, or additions to this Sublease shall be valid unless the same
shall be in writing and signed by all parties hereto.
12. Counterparts. This Sublease may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
13. Cooperation. Each party agrees to cooperate and to take such further
action and to execute and deliver such additional instruments and documents as
the other party may, from time to time, reasonable request in order to
effectuate and accomplish the purpose of this Sublease.
14. Headings; Interpretation. The section headings contained in this
Sublease are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Sublease. Both parties have participated
substantially in the negotiation and drafting of this Sublease and each party
hereby disclaims any defense or assertion in any litigation or arbitration that
any ambiguity herein should be construed against the draftsman.
15. Payment of Fees and Expenses. Each party hereto shall pay all fees and
expenses of such party's respective counsel, accountants and other experts and
all other expenses incurred by such party incident to the negotiation,
preparation and execution of this Sublease and the consummation of the
transaction contemplated hereby, including any finder's or brokerage fees.
16. Notices. All written notices or other written communications required
under this Sublease shall be deemed properly given when provided to the parties
entitled thereto by personal delivery (including delivery by commercial services
such as messengers and airfreight forwarders) or by mail sent registered or
certified mail, postage prepaid at the following addresses (or to such other
address of a party designated in writing by such party to the others):
If to LLC: Medicis Consumer Products Company, L.L.C.
c/o Medicis Partners Incorporated
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
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with a copy to: Xxxxx Xxxx LLP
0000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
If to IMX: IMX Pharmaceutical Corporation
0000 Xxxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
with a copy to: Nason, Yeager, Gerson, White & Xxxxx, P.A.
1645 Palm Beach Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
All written notices shall be deemed delivered and properly received upon the
earlier of two (2) days after mailing the confirmation notice or upon actual
receipt of the notice provided by personal delivery or electronic means.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed the day and year first above written.
MEDICIS CONSUMER PRODUCTS
COMPANY, L.L.C.
By: /s/ Xxxx Xxxxxxxx
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Medicis Partners Incorporated, General Manager
By: Xxxx X. Xxxxxxxx, Xx.
Chief Financial Officer
IMX PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx Xxxxxxx, President
----------------------------------------------
Xxxxxxx Xxxxxxx, President
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