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EXHIBIT 10.9
SERVICES AGREEMENT
This Services Agreement ("SERVICES AGREEMENT") is made and entered into
as of April 28, 2000 ("Effective Date") by and between AXYS PHARMACEUTICALS,
INC., a California corporation ("API") and AXYS ADVANCED TECHNOLOGIES, INC., a
California corporation ("AATI"), with reference to the following facts:
R E C I T A L S
A. API is the tenant under that certain "Standard Industrial Lease
Multi-Tenant" dated as of October 15, 1992, as amended (the "LEASE"), respecting
certain "premises" (as more particularly described in the Lease) commonly known
as 000 Xxxxxx Xxxxx Xxxxxxxxx, Units 1, 3, 4, 5, 6, 10, 11, 12, 13 and 00, Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (collectively, the "MASTER PREMISES").
B. API sublet to AATI and AATI agreed to sublet from API a portion of
the Master (the "SUBLEASED PREMISES"), under that certain Sublease Agreement
dated January 1, 2000 as amended from time to time (the "SUBLEASE").
C. In that the Subleased Premises contains certain facilities and
services no longer controlled by API and API currently provides certain services
to the Subleased Premises not readily available to AATI, API and AATI desire to
establish certain rights and obligations between them pursuant to which they
will provide one another certain services and access to certain facilities in
accordance with the terms and conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, API and AATI hereby agree, covenant and warrant as follows:
1. API PROVIDED SERVICES. API agrees to provide AATI with those services
more specifically set forth on EXHIBIT A hereto at the rates and subject to the
conditions set forth therein throughout the duration of this Services Agreement
unless such service is terminated by AATI as provided for herein.
2. AATI PROVIDED SERVICES. AATI agrees to provide API with those
services more specifically set forth on EXHIBIT B hereto at the rates and
subject to the conditions set forth therein throughout the duration of this
Agreement unless terminated by API as provided for herein.
3. ADDITIONAL SERVICES. Should either API or AATI require or be provided
any additional or joint service(s) not described in this Service Agreement, API
and AATI agree to negotiate in good faith an equitable basis for sharing the
cost and, to the extent necessary, the responsibility of providing such
service(s) as soon as practicable.
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4. INSUFFICIENT SERVICES. If at any time after the effective date of
this Services Agreement, API or AATI reasonably determines that its need for
services exceeds that which is currently available, then, upon written notice by
the party making such determination, API and AATI shall commence and undertake
good faith negotiations to equitably adjust the use and distribution of such
services, taking into account the business needs of each of API and AATI.
5. TERMINATION OF SERVICES. Upon ninety (90) days prior written notice,
the party receiving the benefit of any provided service may terminate the
requested service and have no further obligation to receive or pay for the
service provided, except for services rendered prior to the termination of the
service(s).
6. COMMON AREAS. The Master Premises and the Subleased Premises shall
contain certain "Common Areas" as described more fully in the Sublease. The
Common Areas shall include the lunch room and access thereto, access to the
waste storage room, access to the analytical laboratory, access to the glassware
washing facilities, access to the shipping dock and the library and access
thereto. Use of the Common Areas shall be made by each party in accordance with
such safety and security requirements as may be set forth in the rules and
regulations as promulgated by the parties from time to time. Both API and AATI
hereby agree to be bound by and to ensure the respect of employees, agents,
representatives, contractors and invitees are familiar and abide by such rules
and regulations in their use of the Common Areas.
7. HAZARDOUS MATERIALS.
(a) HAZARDOUS MATERIALS. Both API and AATI shall abide by the terms
and conditions of the Master Lease and the Sublease relating to Hazardous
Materials (as defined therein) in their use and occupancy of the Subleased
Premises.
(b) ALLOCATION OF CONTAMINATION LIABILITY. During the term of this
Services Agreement, if any leakage, spillage or other Hazardous Materials
contamination occurs in, on or under the Subleased Premises, and either API or
AATI can be readily and to a reasonable certainty identified by the type and
kind of materials causing such contamination or by other reliable evidence, then
the responsible party shall indemnify and hold harmless the nonresponsible party
for any and all costs to remediate the contamination. If the responsible party
for the contamination to the Premises is not readily and to a reasonable
certainty identifiable (i.e., due to use of similar contaminating materials by
both parties), then each party shall bear fifty percent (50%) of the total costs
to remediate the contamination and the parties shall jointly cooperate in the
remediation of such contamination. Upon the termination of this Services
Agreement, AATI shall indemnify and hold API harmless for any accidental
contamination, during the term of the Sublease, which occurs following the
termination of this Services Agreement. Notwithstanding anything to the contrary
contained herein, API shall not be responsible and shall have no obligation to
indemnify, defend, or hold AATI harmless, for any contamination resulting from
AATI's negligence or willful misconduct in the storage or handling of any
Hazardous Materials.
8. TERMINATION OF SERVICE AGREEMENT. This Services Agreement shall
terminate upon the earlier of: (i) the valid subletting or assignment of the
Subleased Premises to a
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nonaffiliate of AATI; (ii) the selling of a controlling interest of AATI or of
its parent, Discovery Partners International, Inc., to a non-affiliate; (iii)
the mutual written consent of the parties; or (iv) that date upon which API
vacates the Master Premises. Upon the termination of the Service Agreement,
neither API nor AATI shall have any further obligation to receive or pay for the
service(s) set forth herein, except to the extent that the service(s) was
rendered prior to the termination of the this Services Agreement. For purposes
of this Services Agreement, an "affiliate" shall be any entity in which either
party owns at least a fifty percent (50%) of the issued and outstanding capital
stock, partnership interests or membership interest of the entity.
9. FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lock-outs, inclement weather, labor disputes, inability to obtain labor,
materials, fuels or reasonable substitutes therefor, governmental restrictions,
regulations, controls, action or inaction, civil commotion, fire or other acts
of God, and other causes beyond the reasonable control of the party obligated to
perform (except for that party's financial inability) shall excuse the
performance, for a period equal to the period of any said prevention, delay or
stoppage, of any obligation hereunder.
10. AMENDMENTS. No variations, modifications or changes herein or hereof
shall be binding upon any party hereto unless set forth in a document duly
executed by all parties hereto.
11. COUNTERPARTS. This Services Agreement may be executed in multiple
counterparts, all of which shall be deemed originals and with the same effect as
if all parties hereto had signed the same document. All of such counterparts
shall be construed together and shall constitute one instrument, but in making
proof, it shall be only necessary to produce one such counterpart.
12. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions hereof
shall inure to the benefit and be binding upon the respective parties hereto,
and the respective successors and assigns.
13. GOVERNING LAW. This Services Agreement shall be construed in
accordance with the internal laws of the State of California, with reference to
the conflicts of laws principles thereof.
14. NOTICES. All notices or other communications required or permitted
to be given pursuant to the provisions of this Services Agreement shall be in
writing and shall be considered as properly given if delivered personally or
sent by first class international airmail, postage prepaid, or by overnight
express mail or by overnight commercial courier service, charges prepaid.
Notices so sent shall be effective upon receipt at the addresses set forth
below. For purposes of notice the addresses of the parties shall be:
API 000 Xxxxxxx Xxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President and General Counsel
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AATI 0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
For purposes of any payments due under this Services Agreement, payment shall be
made to API or AATI, as applicable, at the address set forth above, or such
other address as such party shall from time to time specify by written notice to
the other party.
IN WITNESS WHEREOF, the parties have caused this Services Agreement to
be duly executed and delivered as of the date first written above.
AXYS PHARMACEUTICALS, INC.,
a Delaware corporation
By /s/ Xxxxxxx Xxxxxx
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Its /s/ Senior Vice President
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AXYS ADVANCED TECHNOLOGIES, INC.,
a Delaware corporation
By /s/ Xxxxxxx Xxxxxx
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Its /s/ Secretary
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EXHIBIT A
SCHEDULE OF API PROVIDED SERVICES & FEES
Service To Be Provided Fee
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Telephone services. $_______________
Facilities management services. $_______________
Computer networking systems and information $_______________
technology services.
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EXHIBIT B
SCHEDULE OF AATI PROVIDED SERVICES & FEES
SERVICES TO BE PROVIDED FEE
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Glass Washing Service which shall be provided on a $_____________
daily basis at reasonable times; provided that API
shall be responsible for marking and inventorying its
glassware provided to AATI for washing, and AATI shall
have no responsibility or liability for any glassware
which is not clearly marked as API's glassware.
Shipping and Receiving Services. $_____________
Hazardous Materials Storage including the provision of $_____________
API with a location to store API's segregated and
marked waste within such facilities; provided that all
such waste shall be placed in storage containers
clearly indicating such waste as API's waste.
Hazardous Materials removal and disposal which shall $_____________
include the removal and disposal of any API Hazardous
Materials stored in the Subleased Premises pursuant to
a contract between AATI and a contractor providing
disposal services.
Analytical Laboratory Services including, but not $_____________
limited to, the analysis of chemical compounds provided
by API to AATI's analytical laboratory facilities
located in the Subleased Premises, upon reasonable
advance notice.
