EXHIBIT 10.21
SOMANTA INCORPORATED
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SERVICE PROVISION AGREEMENT
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THIS SERVICE PROVISION AGREEMENT (this "Agreement") is by and between
Somanta Incorporated, a Delaware Corporation ("Somanta") and Xxxx Xxxxx located
at 2 Monsell court, 00-00 Xxxxxxx Xxxx, Xxxxxx, X0 0XX. UK ("Provider").
WHEREAS Somanta conducts research and development in the field of
cancer therapy and prevention (the "Field"); and
Provider is duly qualified to provide the services as described in
Exhibit A, attached hereto (the "Services") to Somanta, and Somanta desires to
engage Provider to provide such Services to Somanta in accordance with the terms
and conditions herein contained.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Services: The Services to be provided by Provider to Somanta hereunder
shall be as described in Exhibits A and A1 hereto. Exhibits A and A1
are incorporated herein by this reference as though fully set forth
herein.
2. Confidentiality: Provider agrees to maintain confidential information
of Somanta in accordance with the following terms:
a. "Confidential Information" shall mean all information,
confidential, proprietary or otherwise, provided by Somanta to
Provider including, without limitation, any and all technical
information, data, business plans, financial information,
information about personnel and research and development plans
or strategies. Confidential Information shall not include such
information as Provider can establish by written documentation
to have been generally known or to have been acquired from
public sources or to have been in the public domain at the
time of disclosure of information, in each case through no
fault of Provider.
b. Nondisclosure of Confidential Information and Term of
Agreement: Provider agrees to hold in strict confidence and,
directly or indirectly, not to cause, permit or enable the
disclosure, publication, transfer, misappropriation or
revelation to any person or entity of the Confidential
Information, without the express prior written consent of
Somanta. Provider will impose upon employees or subcontractors
the same obligations as contained herein. Provider also agrees
not to use the Confidential Information for any purpose at any
time, other than for the sole purpose of performing the
Services. Provider further agrees that any disclosure of the
Confidential Information will only be such as is reasonably
necessary to the performance of the Service and will only be
to employees or subcontractors of Provider who are bound by
written agreements with Provider to maintain the Confidential
Information in confidence. Upon any termination or expiration
of this Agreement or upon the earlier request of Somanta,
Provider shall destroy or return immediately to Somanta, at
Somanta expense, all Confidential Information as defined in
Section ss.2a above and any and all documents or materials
related to the Service, including all copies in any media.
Somanta shall arrange for the collection of all materials in
all media within 30 days of termination or expiration of this
Agreement or upon the earlier request of Somanta. Provider's
obligations under this Section 2 will survive any expiration
or termination of this Agreement.
In the event that a court or governmental agency legally compels Provider to
disclose Confidential Information, such as that associated with a valid
discovery request, Provider shall inform Somanta of the compelled disclosure
promptly, so that Somanta may seek a protective order or other remedy or waive
compliance with this Agreement, or both. Nevertheless, Provider shall limit any
compelled disclosure of Confidential Information to that legally required.
c. In the event of any breach or threatened breach by Provider of
the provisions of Sections 2 or 3 of this Agreement, then in
addition to all other rights and remedies that may be
available at law or in equity, Somanta shall be entitled to
specific performance of such provisions, enforced by any court
having equity jurisdiction, all without the need to post a
bond or other security, it being acknowledged that any such
breach or threatened breach will cause irreparable injury to
Somanta.
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3. Property of Somanta:
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a. Definition: For the purposes of this Agreement, "Property of
Somanta" shall mean "Confidential Information" and all
documents, materials, information, inventions (whether
patentable or not), data and know-how and any and all
intellectual property rights related thereto or arising
therefrom, in each case in any and all media, made, conceived
or developed by Provider alone or with others in the course of
performing the Services, except for materials related to the
Field which Provider can establish by written documentation
were the sole property of Provider or a third party prior to
the date of this Agreement or to have been generally known or
to have been acquired from public sources or to have been in
the public domain.
b. Assignment of Ownership: Provider hereby irrevocably transfers
and assigns any and all of its rights, title, and interest in
and to "Property of Somanta" as defined in Section ss.3a
above, and hereby agrees to execute any assignment or other
document that may be necessary to evidence such assignment.
4. Termination:
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a. The terms of this Agreement shall commence as of 03-Nov-2005,
and continues until 31-Dec-2006 unless terminated pursuant to
subsection (b) below or unless the term hereof is extended by
the mutual written agreement of the parties hereto.
b. Notwithstanding anything to the contrary contained herein,
either party may terminate this Agreement with or without
cause at any time by giving the other party thirty (30) days'
prior written notice thereof. Upon any expiration or
termination of this Agreement, Provider shall only be entitled
to receive the amounts due and owing hereunder for periods
prior to such expiration of termination, which shall be paid
by Somanta within 5 business days upon submission of an
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invoice by Provider. Provider's obligations under Sections 2
and 3 hereof shall survive any termination or expiration of
this Agreement.
5. Compensation and Expenses: Provider's compensation and payment for the
Service provided hereunder shall be as set forth in Exhibit A hereto.
Provider shall invoice Somanta on provision to Somanta of Service
"deliverable" as defined in Exhibit A. Somanta will pay Provider no
later than fifteen (15) business days of date of Provider's invoice.
Somanta shall reimburse Provider for all reasonable expenses and
disbursements actually incurred which are customary and necessary for
the provision of the Service. Provider shall provide evidence
reasonably satisfactory to Somanta of all such expenses and
disbursements for which reimbursement is requested.
6. Independent Contractor: In the performance of this Agreement, it is
mutually understood and agreed that Provider is at all times acting and
performing as an independent contractor with, and not as an employee,
joint venture, partner, agent, principal, officer or lessee of Somanta,
and nothing in this Agreement shall be construed to create an
employer-employee, agent-principal, joint venture or partnership
relationship between Provider and Somanta. Provider shall have no
authority to act on behalf of or to enter into any contract, or incur
any liability for or make any representations on behalf of Somanta.
Provider shall have no claim under this Agreement or otherwise against Somanta
for Worker's Compensation, Unemployment Compensation, sick leave, group
insurance arrangements or any other employee benefits. Provider is solely
responsible for providing, at Provider's expense, all taxes, withholdings and
other similar statutory obligations or employee payroll taxes for Provider and
Provider's employees, subcontractors and Providers, and Provider will defend,
indemnify and hold Somanta harmless from any and all claims made by any entity
on account of an alleged failure by Provider to satisfy any such tax or
withholding obligations. Somanta shall not withhold on behalf of Provider
hereunder, any sums for income tax, unemployment insurance, social security or
any other withholding pursuant to any law or requirement of any government
agency. Provider shall comply at Provider's expense with all applicable
provisions of worker's compensation laws, unemployment compensation laws, social
security laws and all other applicable central or local laws, regulations and
codes relating to terms and conditions of employment required to be fulfilled by
employers or independent contractors.
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7. Insurance and Indemnification: Provider is solely responsible for
providing, at Provider's expense, worker's compensation insurance for
Provider and Provider's employees and subcontractors. Provider agrees
to hold harmless and indemnify Somanta for any and all claims arising
out of any injury, disability or death of Provider or any of Provider's
employees and subcontractors. Provider shall indemnify, defend and hold
Somanta, Somanta's officers, directors and shareholders, free and
harmless from all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, attorney's fees and costs, that Somanta
may incur as a result of a breach by Provider of any representation,
warranty or obligation by Provider's employees and subcontractors set
forth under this section.
Somanta agrees to hold harmless and indemnify Provider for any and all
claims arising out of any injury, disability or death of Somanta or any
of Somanta's employees and subcontractors. Somanta shall indemnify,
defend and hold Provider, Provider's officers, directors and
shareholders, free and harmless from all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties, attorney's fees and costs,
that Provider may incur as a result of a breach by Somanta of any
representation, warranty or obligation by Somanta's employees and
subcontractors set forth under this section.
8. No Conflict with Existing Agreements: Somanta hereby acknowledges that
it does not desire to acquire from Provider any secret or confidential
information which Provider may have acquired from others. Provider
represents and warrants that Provider is free to divulge to Somanta,
without any obligation to, or violation of any right of others, any and
all information, practice or techniques which Provider will describe,
demonstrate, divulge or in any manner make known to Somanta during
Provider's performance of the Service.
9. Dispute Resolution: In the event that any controversy or dispute arises
between the parties hereto with respect to this Agreement, the parties
shall use their best efforts and due diligence to reach an agreement
for the resolution of such controversy or dispute.
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10. Miscellaneous:
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a. Waiver and Modification: This Agreement sets forth the entire
understanding of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous
agreements and understandings between them concerning such
subject matter. No waiver or modification of any provision
hereof may be made unless by a written instrument duly
executed by each party. Any waiver or breach of any term or
condition shall not be deemed to be a waiver of any preceding
or succeeding breach of the same or any other terms or
condition. The failure of any party to insist upon strict
performance of any term of condition hereunder shall not
constitute a waiver or such party's right to demand strict
compliance therewith in the future.
b. Assignment: Provider may not assign this Agreement, or any
rights, duties or obligations contained herein, to any other
person, firm, corporation or other business entity without the
prior written consent of Somanta and any such assignment or
purported assignment shall be null and void and of no force or
effect. Somanta may assign this Agreement to a third party in
connection with a merger or sale of all or substantially all
of Somanta's assets with or to such third party.
c. Notices: All notices and other communications required or
permitted under this Agreement shall be in writing, served
personally on, delivered by recognised overnight courier or
mailed by certified or registered mail to the party to be
charged with receipt thereof at the address specified below or
by electronic transmission by the parties' accredited
providers.
SOMANTA: 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000
PROVIDER: Xxxx Xxxxx, 2 Monsell Court, 00-0 Xxxxxxx Xxxx,
Xxxxxx X0 0XX, XX
d. Severability: All sections, clauses thereof and covenants
contained in this Agreement are severable, and in the event
any of them shall be held to be invalid by any court, this
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Agreement shall be interpreted as if such invalid Sections,
clauses or covenants were not contained herein.
e. Applicable Law: This Agreement is made and shall be governed
by and construed in accordance with the laws of England,
without regard to principles of conflicts of law.
f. 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
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date herein above set forth.
ACCEPTED AND AGREED TO FOR:
Somanta Incorporated
"SOMANTA" "PROVIDER"
/s/ AGAMEMNON XXXXXXXX /s/ XXXX XXXXX
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By: Agamemnon Xxxxxxxx, By: Xxxx Xxxxx
CEO
Date: November 4, 2005 Date: November 6, 2005
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EXHIBIT A
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"Services"
Those Services related to the pre-clinical and manufacturing activities by
Somanta, provided, however, that Provider shall not be required to perform
Services in a manner that would create an employment relationship with Somanta.
The provision of Services is subject to all clauses listed in under the
sub-heading Exhibit A1 "General Conditions for the Provision of Service to
Somanta by Provider".
In case of conflict between any of the terms of this Service Agreement in total
or in part with Exhibit A1, the latter will take precedence.
"Deliverables"
(i) Provider will devote utmost knowledge and best skill to the performance
of functions under this Agreement;
(ii) Provider undertakes to be available to provide the service for three
full business days per week in aggregate to the provision of services,
subject to absences for customary vacations and for temporary illness.
Provider may provide service for fewer or more than three business days
in any given week in providing notice to Somanta but in any case, will
charge Somanta for services on a daily basis. Notwithstanding these
provisions, Provider or its employees or subcontractors may trade in
stock, bonds, securities, commodities or real estate investments for
their own benefit.
(iii) Cost (Other than expenses): Provider shall be paid a gross daily sum of
[ONE THOUSAND DOLLAR ($1,000)], payable on a monthly basis according to
invoice by Provider to Somanta, and payable within fifteen (15)
business days of invoice receipt. All gross daily sums to be paid
hereunder are exclusive of any value added tax that may be applicable
to the Services or this Agreement. The "Cost" as per this clause is
subject to upward adjustment, from time to time, by the Board in its
sole discretion. The provision of ongoing services by the Provider
under this agreement is subject to the prompt payment of all invoices.
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Upon Somanta's closing of a PIPE transaction of more than $10,000,000,
Provider shall invoice Somanta for a lump sum payment equal the [number
of days worked since 24th August 2005] x [Gross daily rate of $1000] x
50%. This payment will be made to Provider within ten (10) business
days.
(iv) Bonus: The Board of Somanta, in its sole discretion, may award the
Provider an incentive bonus of up to thirty percent (30%) of the total
yearly cost described in (iii) above (the "Bonus"), where "total yearly
cost" means 3 (three) days weekly at one thousand US dollars multiplied
by 52 (fifty two), on the achievement by Provider of certain milestones
(the "Milestones"), as mutually agreed to by Provider and Somanta from
time to time.
(v) Stock Options: The Board may grant to Provider options (the "Options")
to purchase shares Somanta's Common Stock ("Common Stock"), pursuant to
Somanta's then in effect equity incentive plan.
(vi) Payment Method:
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Subject to Invoice, electronically transmitted, as follows:
Account Name:
Bank Address:
IBAN:
BIC:
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EXHIBIT A1
General Conditions for the Provision of Service to Somanta by Provider
All services provided to Clients by or on behalf of Provider, its
officers, employees and sub-contractors, hereinafter referred to in aggregate as
Provider, are subject to the following conditions agreed implicitly between
Provider and Client:
(i) Definitions
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o "Client" is defined as Somanta, meaning the person(s) within Somanta,
company(ies), government(s), or institution(s) with whom Somanta may
have dealings, for whom the Service is provided and/or to whom
documents are addressed and/or in name of whom invoices are issued
and/or on whose behalf the service is provided, including Somanta's
officers, employees and sub-contractors.
o The Service Provider is Xxxx Xxxxx (including its officers, employees
and sub-contractors).
o Service is defined as solely advisory, for the contracted functions.
This can be amongst others, written advice, developmental plan advice,
advice on report, advisory opinion, advice on dossier, biologic license
application (BLA) or new drug application (NDA).
(ii) General Conditions
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1. The Client implicitly accepts these Conditions for the Provision of
Service to Clients prior to commissioning or accepting the Service.
2. Provider will endeavor to provide the service requested by the Client
according to the specifications given in writing or verbally on
commissioning the Service.
3. Provider does not guarantee that the Service commissioned will be
undertaken as initially planned. When changes occur in the provision of
Service, the Client will be forewarned of the change(s) and agreement
will be implicitly assumed unless the Client gives written notice to
Provider before completion of the Service.
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4. Provider takes no responsibility for the integrity, veracity or content
of reports, data, documents, background information, references,
acceptance for publication or acceptance for submission by any entity
for whom the Service is intended by the Client. The Client is strongly
advised to check all contents of the Service provided and to be
satisfied that all materials and contents, written or implied, are
correct and adequate for the use intended by the Client.
5. Provider will endeavor to forewarn the Client of any deficiencies in
the materials provided by the Client and related to the Service.
However, Provider does not guarantee the identification and forewarning
of all or any deficiency in the materials provided by the Client.
6. Provider provides the Service in the understanding that the Client will
conduct a thorough review of all contents of the Service.
7. Provider conducts internal checks of the contents of Service. However,
the Client is strongly advised to conduct cross-checks and quality
checks on the contents of the Service, including independent quality
checks where appropriate.
8. Service provision by Provider is advisory only, and the Service is
provided for the sole use of the Client. The Client must not use the
name of Provider, officers' names or the names of its employees and
sub-contractors in seeking recognition, approval, publication or
dissemination of the contents of the Service, except where such use of
name of Provider, its officers' names or the names of its employees and
sub-contractors are specifically allowed by separate service contract.
9. The contents of Service provision by Provider is confidential and must
not be divulged, disseminated or disclosed by any means to any third
party without the written consent of Provider.
10. The safe return of materials provided by the Client is the
responsibility of the Client. Provider will make all materials
available to the Client upon completion of the Service.
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11. The relationship between the Client and Provider is one of service
provision only, and does not constitute employment.
(iii) Communication Media Conditions
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12. Provider operates a "paperless office" policy.
13. Clients are advised that Provider may make records of any or all its
communications with Clients by electronic means including contact logs.
14. Provider communications with Clients is exclusively electronic, via
secure business internet service provider (ISP).
15. Clients are requested to ensure they employ appropriate in-house safety
programs and secure business ISP. It is particularly advisable that
Clients do not use personal communications media (I.E. Hotmail, Yahoo)
for communication with Provider. The use of unsafe media by Clients
will imply Clients' responsibility, own risk and liability for damage
to Provider, and damage to third parties or other Clients.
16. It is advisable that, whenever possible, materials are supplied
electronically for ease of document tracking, destruction or return.
Unless otherwise requested, Provider will delete or destroy all
documents within 3 months from completion of Service.
17. Provider cannot accept the supply of any documentation via telefax
transmission or normal post. Clients are kindly requested to use
exclusively electronically safe media with appropriate firewall
protection and anti-virus programs. Exceptionally, upon request,
Provider may use special delivery services such as Federal Express at
Client's own risk and cost.
18. In the event that a Client may use non-electronic correspondence with
Provider all postal communication must be directed to Provider's
address for correspondence as in Section 10c).
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(iv) Financial Transactions Conditions
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19. All financial communications and documentation between Provider and
Clients are electronic.
20. Unless otherwise specified in separate contractual agreement, Provider
will normally submit monthly invoices to Client on the 20th day of the
month.
21. During the continuance of the Service the Client shall pay Provider the
agreed Fees and expenses with Fees accruing as Working Days and are
paid monthly.
22. It is the Client's responsibility to ensure that payment of invoices
takes place within fifteen (15) calendar days of presentation of
invoice.
23. Late payment by Somanta will result in a 5% automatic surcharge if the
invoice is not paid within 30 days of presentation of the invoice.
24. Payment date is the date when the amount invoiced is fully credited
free of further charges or impediments into Provider's bank account.
25. Provider presents all invoices to Clients electronically. Therefore,
Provider invoices do not contain physical signatures. Clients are
advised to consider Provider invoices only if delivered via Provider's
own ISP. Exceptionally, Provider personnel may deliver invoices by
hand, for expedience if personnel are on site, but electronic records
are always kept.
26. All Provider Services are subject to Value Added Tax (VAT) at variable
rates set by the UK government. VAT is charged on the total of the
invoiced amount.
27. Certain exemptions exist for the application of VAT, such as invoices
to Clients based outside the UK or outside the European Union (EU).
28. Clients based within in the EU, except the UK, must provide their EU
VAT registration number to be exempted from UK VAT. Clients are advised
that Provider does not guarantee the maintenance of the current VAT
exemptions within the EU and that different Member States may apply
different limits to VAT exemption when a Client purchases Services from
another Member State.
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29. Provider does not accept cash as means of payment for its Services.
Clients are requested to issue only or interbank transfers into
Provider's bank account.
30. All payments must be made in the name of Provider. Interbank transfers
must always be made into the account specified in Exhibit A.
31. Clients will reimburse any expenses reasonably incurred by Provider,
its officers, employees and sub-contractors when such expenses are
incurred during the provision of the Services.
32. All expenses will be accompanied by appropriate evidence of expense
whenever possible, reasonable and applicable within the array of
Services provided and related expenses.
33. Clients shall also reimburse Provider for the following general
expenses anticipated as frequent in the fulfillment of Services:
airfares in scheduled economy class for destinations inside the EU or
within fewer than 4 hours' flight time from Heathrow; airfares in
scheduled business class for destinations outside the EU or within more
than 4 hours' flight time from Heathrow; hotel accommodation (4-star
rating or higher according to xxx.xxxxxxx.xx.xx); adequate subsistence
costs during business travel on behalf of the Client; telephone costs
for calls using Provider's fixed or mobile lines; any other reasonable
expense incurred during provision of Services.
34. Provider shall provide only electronic copies of evidence of expense
(receipts), usually in pdf format or similar media, or occasionally
photocopies for expense items that have a receipt, except for telephone
call costs which will be presented as total time in hours with total
cost except for Clients who provide their own call-charge cards for
their business calls.
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