TRANSITION SERVICES AND FACILITIES AGREEMENT
This TRANSITION SERVICES AND FACILITIES AGREEMENT (this "Agreement"),
dated as of December 1, 1997, is between EPITOPE, INC., an Oregon corporation
("Epitope"), and AGRITOPE, INC., a Delaware corporation ("Agritope").
Agritope desires to engage Epitope to provide certain services and
facilities for Agritope, and Epitope desires to provide such services and
facilities for Agritope, on the terms and conditions set forth herein.
Capitalized terms not otherwise defined shall have the meanings given
in Section 6.
Epitope and Agritope agree as follows:
1. Services. Agritope hereby engages Epitope to provide Services to
Agritope at such times as Agritope may reasonably request. In performing
Services, Epitope shall use the same degree of care that it uses in connection
with its own business. Nothing in this Agreement shall require Epitope to
provide Services at a time or in a manner that would interfere with the normal
conduct of Epitope's business.
2. Facilities. Epitope hereby agrees to provide Facilities to Agritope
until such time as Agritope relocates its office and research and development
operation to other leased Facilities.
3. Subcontractors. With Agritope's consent, which shall not be
unreasonably withheld, Epitope may engage third parties to provide Services
under this Agreement to Agritope. Epitope may do so without Agritope's consent
for Services usually provided to Epitope by third parties.
4. Payments for Services and Facilities.
4.1 Services Payments. Agritope shall reimburse Epitope for all
Services Costs. After the end of each month or such other period as the parties
may agree, Epitope shall submit an invoice to Agritope for Services Costs
incurred during the period. Any delay in delivering the invoice shall not
relieve Agritope of its reimbursement obligations. Agritope shall pay the amount
of each invoice within 10 days after receiving it. Amounts not paid when due
shall, at Epitope's option, accrue late charges at the rate of 1.5 percent per
month.
4.2 Calculation of Services Costs. "Services Costs" are all
direct and indirect costs incurred by Epitope in providing Services, whether
paid or accrued. Services Costs shall be determined using Epitope's internal
cost accounting system. Epitope shall allocate costs of personnel who provide
services to both Epitope and Agritope, and indirect costs such as general and
administrative costs, on a reasonable basis consistent with Epitope's internal
cost accounting system. Upon reasonable notice to Epitope, Agritope personnel
shall have the right to review Epitope records to verify the determination of
Services Costs.
4.3 Facilities Payment. Agritope shall pay Epitope a monthly fee
of $15,945 for use of the Facilities on the first day of each month.
5. Term and Termination.
5.1 Initial Term and Renewals. The initial term of this Agreement
shall expire on December 31, 1997, but this Agreement shall continue in effect
for successive one-month terms thereafter unless either party gives the other
written notice of termination at least 15 days before expiration of any term.
5.2 Termination. Either party may terminate this Agreement
effective immediately upon written notice to the other party if such other party
fails to perform any of its material obligations under this Agreement and such
failure continues for a period of 60 days, or 10 days in the case of a failure
to make payment, after written notice thereof from the non-breaching party.
6. Definitions. Capitalized terms not otherwise defined in this
Agreement shall have the respective meanings set forth below:
6.1 "Affiliate" of a Person means a Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with such Person.
6.2 "Agritope Personnel" means Agritope, its successors and
assigns, and the directors, officers, employees, and agents thereof.
2
6.3 "Facilities" means the portion of Epitope's office space and
research and development facilities in Beaverton, Oregon, consisting of
approximately 6,300 square feet of office, manufacturing and laboratory space
currently used by Agritope and the related fixtures and furniture.
6.4 "Force Majeure" means any act of nature, accident, explosion,
fire, storm, earthquake, flood, drought, peril of the sea, riot, embargo, war,
foreign, federal, state or municipal order of general application, seizure,
requisition, allocation, failure or delay of transportation, shortage of
supplies, equipment, fuel or labor, or other circumstance or event beyond the
reasonable control of affected party.
6.5. "Services" means the services listed in Schedule A, as
amended from time to time, and any other services requested by Agritope that
Epitope agrees to provide.
6.6. "Services Costs" has the meaning given in Section 4.2.
7. General.
7.1 Amendments. Any modification of this Agreement or waiver of
terms must be in writing and signed by the party to be bound.
7.2 Assignment. Except as provided below or in Section 3, neither
may assign its rights or delegate its obligations under this Agreement without
the written consent of the other party. Epitope may assign its rights and
delegate its obligations to an Affiliate or a successor to Epitope's business if
the Affiliate or successor assumes all of Epitope's obligations under this
Agreement.
7.3 Attorney Fees. In any litigation concerning this Agreement,
the prevailing party shall be entitled to recover all reasonable expenses of
litigation, including reasonable attorney fees at trial and on any appeal or
petition for review.
7.4 Execution in Counterparts. This Agreement may be executed in
counterparts which together shall constitute one instrument.
7.5 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties with respect to its subject
matter and supersedes any prior agreement or understanding.
3
7.6 Force Majeure. Neither party shall be liable for any failure
or delay in performing its obligations, other than payment obligations, caused
by Force Majeure. The other party may, however, terminate this Agreement as
permitted in Section 5.2 if such failure or delay continues for more than 60
days.
7.7 Governing Law. This Agreement shall be governed by and
construed in accordance with Oregon law.
7.8 Headings. Headings in this Agreement are for convenience only
and shall not affect its meaning.
7.9 No Agency. Nothing in this Agreement creates any partnership,
employment or agency relationship between the parties. Neither party shall have
the right to act on behalf of or bind the other, and neither shall take any
action that could lead a third party to believe it has the right to do so.
7.10 Notices. Notices under this Agreement shall be in writing,
shall refer specifically to this Agreement, and shall be personally delivered,
sent by electronic facsimile transmission promptly confirmed by mail, or sent by
registered or certified mail, return receipt requested, postage prepaid, in each
case to the respective address or facsimile number specified below (or such
other address or number as may be specified by notice to the other party):
Epitope, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: President
Fax: (000) 000-0000
Agritope, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: President
Fax: (000) 000-0000
Any notice or communication given in conformity with this Section 7.10 shall be
deemed to be effective when received by the addressee, if delivered by hand or
electronic facsimile transmission, or three days after mailing, if mailed.
7.11 Severability. If any provision of this Agreement is held
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (a) the affected provision shall remain in full force and
effect in all other jurisdictions, (b) all other provisions shall remain in full
4
force and effect, and (c) the parties will use their best efforts to find and
employ other means to achieve the same or substantially the same result as that
contemplated by the provision held invalid or unenforceable.
The parties have executed this Agreement as of the date first stated
above.
EPITOPE, INC.
By /s/ Xxxx X. Xxxxxx
President and Chief
Executive Officer
AGRITOPE, INC.
By /s/ Xxxxxx X. Xxxxx
Chairman, President and Chief
Executive Officer
5
SCHEDULE A
----------
0.Xxxxxxxxxx information services consisting of software support and
hardware maintenance at the rate of $1,690 per month.
2. Telephone services based on third-party xxxxxxxx.
3. Equipment maintenance, other than computer hardware, on call at the rate
of $25 per hour.
4. Front desk receptionist services at no charge (Agritope will provide its
own telephone receptionist services).
