EXHIBIT 10.4
SERVICES AGREEMENT
------------------
This Services Agreement (the "Agreement") is made as of the __
day of August, 1997 between ALZA Corporation, a Delaware corporation ("ALZA"),
and Crescendo Pharmaceuticals Corporation, a Delaware corporation ("Crescendo").
BACKGROUND
----------
Crescendo desires that ALZA provide certain services to Crescendo, and
ALZA desires to provide such services, on the terms and conditions set forth
herein.
Now, therefore, the parties agree as follows:
1. Services.
--------
Upon request by Crescendo, ALZA will supply Crescendo with any
number of the following services: accounting, legal, stockholder relations and
similar management and administrative services, as mutually agreed. Such
services will be provided at reasonable times and upon reasonable notice, as
mutually agreed.
2. Compensation.
------------
Crescendo shall pay ALZA's "Costs" in providing such services,
monthly in arrears, within 30 days of the date of ALZA's invoice. ALZA's
"Costs", for purposes of this Agreement, shall include reimbursement for (i)
ALZA's direct and indirect expenses relating to the services provided hereunder
as defined in Schedule A hereto and (ii) the cost of assets purchased for use
solely on behalf of Crescendo, the purchase of which is approved by Crescendo.
3. Term and Termination.
--------------------
The initial term of this Agreement shall commence on the date
hereof and shall terminate on December 31, 1997. Thereafter, this Agreement
shall automatically be renewed for successive terms of one year each unless
written notice of termination is given by the terminating party to the other
party at least 30 days in advance of the expiration of any term; provided,
however, that in no event shall the renewal term extend past the date that is
180 days after the exercise or expiration of the option granted to ALZA pursuant
to Crescendo's Restated Certificate of Incorporation to purchase all but not
less than all of the shares of Class A Common Stock of Crescendo. Crescendo may,
in its discretion, terminate this Agreement at any time upon 60 days written
notice to ALZA. Either party may, in its discretion, terminate this Agreement by
written notice to the other party in the event that the other party (a) breaches
any material obligations
hereunder or under the Technology License Agreement, the Development Agreement
or the License Option Agreement, each dated as of the date hereof and between
ALZA and Crescendo, or any license granted to ALZA under the License Option
Agreement, which breach continues for a period of 60 days after written notice
thereof, or (b) enters into any proceeding, whether voluntary or involuntary, in
bankruptcy, reorganization or arrangement for the appointment of a receiver or
trustee to take possession of such party's assets or any other proceeding under
any law for the relief of creditors, or makes an assignment for the benefit of
its creditors.
4. Indemnification of ALZA.
-----------------------
Crescendo hereby agrees to indemnify, protect and hold ALZA
harmless from any and all liabilities, costs or expenses incurred by ALZA as a
result of services rendered by it under this Agreement, including, without
limitation, lawsuits of and claims by third parties, except for liabilities,
costs or expenses resulting from ALZA's gross negligence or willful misconduct.
ALZA shall give Crescendo prompt notice, in writing, in the manner set forth in
Section 6.7 below, of any claim or demand made against ALZA for which ALZA may
be entitled to indemnification under this Section 4.
5. Force Majeure.
-------------
ALZA shall not be liable for failure or delay in performance
of any of its obligations hereunder if such failure or delay is due to causes
beyond its reasonable control including, without limitation, acts of God, fires,
earthquakes, strikes, acts of war, or intervention of any governmental
authority, but any such delay or failure shall be remedied by ALZA as soon as
possible after the removal of the cause of such failure or delay.
6. Miscellaneous.
-------------
6.1 Waiver, Remedies and Amendment. Any waiver by either party
------------------------------
hereto of a breach of any provisions of this Agreement shall not be implied and
shall not be valid unless such waiver is recited in writing and signed by such
party. Failure of any party to require, in one or more instances, performance by
the other party in strict accordance with the terms and conditions of this
Agreement shall not be deemed a waiver or relinquishment of the future
performance of any such terms or conditions or of any other terms and conditions
of this Agreement. A waiver by either party of any term or condition of this
Agreement shall not be deemed or construed to be a waiver of such term or
condition for any other term. All rights, remedies, undertakings, obligations
and agreements contained in this Agreement shall be cumulative and none of them
shall be a limitation of any other remedy, right, undertaking, obligation or
agreement of either party. This Agreement may not be amended except in a writing
signed by both parties.
2
6.2 Assignment. Neither party may assign its rights and
----------
obligations hereunder without the prior written consent of the other party,
which consent may not be unreasonably withheld; provided, however, that ALZA may
assign such rights and obligations hereunder to an Affiliate of ALZA or any
person or entity with which ALZA is merged or consolidated or which acquires all
or substantially all of the assets of ALZA.
6.3 Arbitration.
-----------
(a) All disputes which may arise under, out of or in
connection with this Agreement shall be settled by arbitration conducted in the
city of San Francisco, State of California, in accordance with the then existing
rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The parties hereby agree that service of any notices in the course of
such arbitration at their respective addresses as provided for in Section 6.7 of
this Agreement shall be valid and sufficient.
(b) In any arbitration pursuant to this Section 6.3, the
award shall be rendered by a majority of the members of a board of arbitration
consisting of three members who shall be appointed by the parties jointly, or if
the parties cannot agree as to three arbitrators within 30 days after the
commencement of the arbitration proceeding, then one arbitrator shall be
appointed by ALZA and one arbitrator shall be appointed by Crescendo within 60
days after the commencement of the arbitration proceeding. The third arbitrator
shall be appointed by mutual agreement of such two arbitrators. In the event of
failure of the two arbitrators to agree within 75 days after commencement of the
arbitration proceeding upon the appointment of the third arbitrator, the third
arbitrator shall be appointed by the American Arbitration Association in
accordance with its then existing rules. Notwithstanding the foregoing, in the
event that any party shall fail to appoint an arbitrator it is required to
appoint within the specified time period, such arbitrator and the third
arbitrator shall be appointed by the American Arbitration Association in
accordance with its then existing rules. For purposes of this Section 6.3, the
"commencement of the arbitration proceeding" shall be deemed to be the date upon
which a written demand for arbitration is received by the American Arbitration
Association from one of the parties.
6.4 Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute this Agreement.
6.5 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the state of California as applied to
residents of that state entering into contracts wholly to be performed in that
state.
3
6.6 Headings. The section headings contained in this Agreement
--------
are included for convenience only and form no part of the Agreement between the
parties.
6.7 Notices. Notices required under this Agreement shall be in
-------
writing and sent by registered or certified mail, postage prepaid, or by
facsimile and confirmed by registered or certified mail and addressed as
follows:
If to ALZA: ALZA Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: ______________
Attention: Senior Vice President and General
Counsel
If to Crescendo: Crescendo Pharmaceuticals Corporation
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: ______________
Attention: President and Chief Executive
Officer
All notices shall be deemed to be effective five days after
the date of mailing or upon receipt if sent by facsimile (but only if followed
by certified or registered confirmation). Either party may change the address at
which notice is to be received by written notice pursuant to this Section 6.7.
6.8 Severability. If any provision of this Agreement is held
------------
by a court of competent jurisdiction to be invalid or unenforceable, it shall be
modified, if possible, to the minimum extent necessary to make it valid and
enforceable or, if such modification is not possible, it shall be stricken and
the remaining provisions shall remain in full force and effect.
6.9 Relationship of the Parties. For purposes of this
---------------------------
Agreement, Crescendo and ALZA shall be deemed to be independent contractors, and
anything in this Agreement to the contrary notwithstanding, nothing herein shall
be deemed to constitute Crescendo and ALZA as partners, joint venturers, co-
owners, an association or any entity separate and apart from each party itself,
nor shall this Agreement constitute any party hereto an employee or agent, legal
or otherwise, of the other party for any purposes whatsoever. Neither party
hereto is authorized to make any statements or representations on behalf of the
other party or in any way obligate the other party, except as expressly
authorized in writing by the other party. Anything in this Agreement to the
contrary notwithstanding, no party hereto shall assume nor shall be liable for
any liabilities or obligations of the other party, whether past, present or
future.
4
6.10 Survival. The provisions of Sections 1, 4, 6.3, 6.5, 6.7,
--------
6.8, 6.9 and this Section 6.10 shall survive the termination for any reason of
this Agreement. Any payments due under this Agreement with respect to any period
prior to its termination shall be made notwithstanding the termination of this
Agreement. Neither party shall be liable to the other due to the termination of
this Agreement as provided herein, whether in loss of good will, anticipated
profits or otherwise.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first set forth above.
ALZA CORPORATION
By: ________________________________
Title: ________________________________
CRESCENDO PHARMACEUTICALS
CORPORATION
By: ________________________________
Title: ________________________________
5
SCHEDULE A
MANAGEMENT AND ADMINISTRATIVE SERVICES EXPENSES
DIRECT EXPENSES
---------------
Direct Salaries*
Temporary Help
Telephone and Communications
Board of Directors and Corporate Consulting
Travel and Entertainment
Annual Audit and Independent Accounting
Equipment Expense
Data Processing Services and Expense
Corporate Legal Expense
Supplies
Miscellaneous General Administrative Expenses
INDIRECT EXPENSES**
-------------------
Management and Administrative Salaries
Equipment Depreciation, Rent, Maintenance and Services
Corporate Consulting and Temporary Help
Legal Expense
Facilities Expense
Corporate Data Processing Services and Expenses
Interest Expense
Miscellaneous General and Administrative Overhead
*Salaries include benefits.
**Indirect Expenses are billed at a rate of 50% of Direct Salaries.
2
