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EXHIBIT 10.8
FACILITIES USE AGREEMENT
This FACILITIES USE AGREEMENT (the "Agreement") is executed as of
October 16, 1996 ("Effective Date") by and between PROCEUTICS, INC., a Delaware
corporation ("Proceutics"), and VAXCEL, INC., a Delaware corporation ("Vaxcel").
WITNESSETH:
WHEREAS, Vaxcel is occupying a portion of Proceutics' vivarium and
laboratory space under the terms and conditions set forth in a Facilities Use
Agreement dated as of January 1, 1996 (the "Original Agreement");
WHEREAS, Vaxcel desires to continue to utilize a portion of Proceutics'
vivarium and laboratory facilities and Proceutics desires to continue to permit
Vaxcel to utilize such premises on the terms and conditions hereinafter set
forth; and
WHEREAS, the parties wish to formally evidence their understandings and
arrangements with respect to the facilities to be provided by Proceutics.
NOW THEREFORE, the parties hereto, in consideration of their mutual
covenants and intending to be legally bound, hereby agree as follows:
1. Vivarium Facility
1.1 Proceutics agrees to reserve and make available to Vaxcel
approximately two-thirds of its vivarium facility located at 000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxx to include two of three 300 square foot animal rooms,
together with the necessary support areas for animal manipulation, cage washing,
storage of related supplies, etc. The third 300 square foot animal room will be
designated by the parties for animal manipulation. Proceutics agrees to provide
Vaxcel reasonable access to the facility and Vaxcel agrees to comply with
Proceutics' standard operating procedures regarding access to the facility.
1.2 In consideration of the facility made available for use by Vaxcel,
Vaxcel agrees to pay Proceutics a monthly fee payable upon the first day of each
month. The 1996 monthly fee for use of this vivarium facility shall be $2,000.00
and shall increase to $3,250.00 per month effective January 1, 1997 based on the
assumptions and formula attached as Exhibit A. Unless this Agreement is
terminated sooner in accordance with Section 4, the 1997 monthly fee shall
automatically increase or decrease as of January 1 for each succeeding year
based on the percent change up or
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down in the Producer Price Index (PPI) as reported by the U.S. Department of
Labor over the immediately preceding twelve months ("the PPI Change Percent").
The initial base year for this price adjustment shall be 1997. The monthly fee
shall be adjusted as follows: The monthly fee multiplied by the PPI Change
Percent equals the amount of change in the monthly fee ("the Adjustment
Amount"). Where the PPI has increased, the Adjustment Amount shall be added to
the monthly fee; where the PPI has decreased, the Adjustment Amount shall be
subtracted from the monthly fee.
1.3 The parties agree that Vaxcel may occupy less vivarium space in the
facility if Vaxcel's planned volume of animal experiments decreases. The minimum
space to be occupied by Vaxcel shall be one-third of the vivarium facility,
together with the necessary support areas for animal manipulation, cage washing,
storage of related supplies, etc. The monthly fee for occupying the minimum
space shall be $2,000.00 in 1997 as outlined on Exhibit A and such monthly fee
shall be subject to PPI Change Percent per Section 1.2. Vaxcel must give
Proceutics three (3) months written notice of its intention to occupy less
vivarium space.
1.4 Prior to the implementation of any significant changes to the
overall vivarium facility, Proceutics will review such proposed changes with
Vaxcel. Proceutics will give reasonable consideration to Vaxcel's comments
regarding Proceutics' proposed changes and agrees not to implement any changes
which would harm the integrity of Vaxcel's vivarium facility.
1.5 Vaxcel will be responsible for all direct costs associated with the
conduct of experiments and the purchase and housing of animals for Vaxcel's use.
The parties agree to determine the most appropriate method of ordering and
billing of animals and related supplies. Any direct costs incurred by Proceutics
related to Vaxcel experiments will be billed by Proceutics to Vaxcel.
2. Laboratory Facility
2.1 Proceutics agrees to reserve and make available to Vaxcel the 570
square foot laboratory facility (Room #135) and the office adjacent to the
laboratory (Room #134) located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx.
Proceutics agrees to provide Vaxcel reasonable access to the facility and Vaxcel
agrees to comply with Proceutics' standard operating procedures regarding access
to the facility.
2.2 In consideration of the facility made available for use by Vaxcel,
Vaxcel agrees to pay Proceutics a monthly fee payable upon the first day of each
month. The 1996 monthly fee for this laboratory facility shall be $1,425.00.
Unless this Agreement is terminated sooner in accordance with Section 4, the
1996 monthly fee shall automatically increase or decrease as of January 1 for
each succeeding year based
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on the percent change up or down in the Producer Price Index (PPI) as reported
by the U.S. Department of Labor over the immediately preceding twelve months
("the PPI Change Percent"). The monthly fee shall be adjusted as follows: The
monthly fee multiplied by the PPI Change Percent equals the amount of change in
the monthly fee ("the Adjustment Amount"). Where the PPI has increased, the
Adjustment Amount shall be added to the monthly fee; where the PPI has
decreased, the Adjustment Amount shall be subtracted from the monthly fee.
2.3 Vaxcel will be responsible for all direct costs associated with the
conduct of experiments in the laboratory. The parties agree to determine the
most appropriate method of ordering and billing laboratory supplies. Any direct
costs incurred by Proceutics related to Vaxcel experiments will be billed by
Proceutics to Vaxcel.
3. Services by Proceutics
3.1 In consideration of the monthly fees, Proceutics will provide
general management and maintenance of the facility consistent with prevailing
applicable guidelines and regulations.
3.2 The monthly fees paid by Vaxcel shall include all utilities, taxes,
depreciation, maintenance, basic phone service, veterinarian's services, and
reasonable usage of copy machines, warehouse, conference rooms, and other common
areas.
Out-of-pocket expenditures, such as long distance charges,
Fedx's, and supplies, shall be paid directly by Vaxcel. All services associated
with the conduct of experiments shall be conducted by Vaxcel personnel and all
expendable supplies will be provided by Vaxcel. Proceutics will not be expected
to provide any laboratory testing support (personnel or equipment).
3.2 Nothing herein shall be construed to require Proceutics to provide
any services under the Agreement which cannot reasonably be provided by
Proceutics' staff or which adversely affects the conduct of Proceutics'
business.
4. Term and Termination
4.1 The Agreement shall commence on the Effective Date and shall
continue in force unless terminated sooner by either party.
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4.2 The Agreement may be terminated by either party upon twelve (12)
months written notice. The Agreement shall automatically be terminated in the
event of bankruptcy or insolvency of either party.
5. Miscellaneous
5.1 For purposes of the Agreement and all services to be provided
hereunder, Proceutics shall not be considered a partner, co-venturer, agent,
employee or representative of Vaxcel, but shall remain in all respects an
independent contractor. Neither party shall have any right or authority to make
or undertake any promise, warranty, or representation, to execute any contract,
or otherwise to assume any obligation or responsibility in the name of or on
behalf of the other party, except to the extent specifically authorized herein
or in writing by the other party.
5.2 Proceutics shall have no liability for claims, liabilities, losses,
damages or expenses except such as are determined by final and nonappealable
judgment of a court of competent jurisdiction to result primarily from
Proceutics' gross negligence or bad faith in providing a service hereunder. In
such event, Vaxcel's remedy shall be limited to a refund of the amounts paid to
Proceutics for such service.
5.3 Vaxcel will indemnify and hold harmless Proceutics, its affiliates
and the representative directors, officers, agents and employees of Proceutics
and its affiliates from and against any claims, actions, proceedings, demands,
liabilities, damages, judgments, assessments, losses and costs arising out of or
in connection with the services rendered by Proceutics under the Agreement.
Vaxcel will not, however, be responsible for any claims, liabilities, losses,
damages or expenses that are determined by final and nonappealable judgment of a
court of competent jurisdiction to result primarily from Proceutics' gross
negligence or bad faith.
5.4 Nothing herein shall be construed to relieve the directors or
officers of Vaxcel from the performance of their respective duties or limit the
exercise of their powers in accordance with the Certificate of Incorporation or
By-Laws of Vaxcel, any applicable provisions of the Business Corporation Law of
the State of Delaware, or otherwise. The activities of Vaxcel shall at all times
be subject to the control and direction of its Board of Directors and Officers.
5.5 Any notice authorized or required to be given hereunder shall be
sufficiently and satisfactorily given if the same is in writing or confirmed in
writing and is delivered or mailed, first class, postage prepaid, addressed to
either party at its address specified from time to time.
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5.6 The Agreement shall be governed by the laws of the State of
Delaware. No amendment or modification of the Agreement shall be effective
unless in writing and signed by the parties hereto. The Agreement shall not be
assignable by Vaxcel without the written consent of Proceutics. Subject to the
foregoing, the Agreement shall be binding upon the successors and assigns of
each party.
5.7 The spirit of the Agreement is that both parties will make every
effort to reside in harmony in the facilities including, but not limited to, the
following: (a) bulk purchasing of supplies; (b) Vaxcel giving fair consideration
to Proceutics for subcontract work; (c) reasonable sharing of equipment; and (d)
routine communication regarding each company's strategic plans.
5.8 The Agreement sets forth and constitutes the entire agreement
between the parties with respect to the subject matters and supersedes any and
all prior agreements, understandings, promises, and representations made by
either party to the other concerning the subject matter hereof and the terms
applicable hereto. The Agreement may not be released, discharged, amended, or
modified in any manner except by an instrument in writing signed by duly
authorized representatives of Vaxcel and Proceutics.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed by an officer thereunto duly authorized as of the date first above
written.
PROCEUTICS, INC.
By: /s/ [signature illegible]
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VAXCEL, INC.
By: /s/ [signature illegible]
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EXHIBIT A
ASSUMPTIONS AND FORMULA FOR
VAXCEL'S MONTHLY VIVARIUM COST
ASSUMING VAXCEL OCCUPIES TWO-THIRDS
OF THE VIVARIUM SPACE
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ELEMENT OF EXPENSE MONTHLY COST ASSUMPTIONS
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Rent $1,500.00 $600 sq. ft. X $30 / sq. ft. facility
plus necessary support areas
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Depreciation $1,100.00 Two-thirds of yearly depreciation of
approximately $20,000
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Veterinarian $ 650.00 75% of veterinarian's effort
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Monthly Total $3,250.00
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ASSUMPTIONS AND FORMULA FOR
VAXCEL'S MONTHLY VIVARIUM COST
ASSUMING VAXCEL OCCUPIES ONE-THIRD
OF THE VIVARIUM SPACE
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ELEMENT OF EXPENSE MONTHLY COST ASSUMPTIONS
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Rent $ 750.00 $300 sq. ft. X $30 / sq. ft. facility
plus necessary support areas
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Depreciation $ 600.00 One-third of yearly depreciation of
approximately $20,000
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Veterinarian $ 650.00 75% of veterinarian's effort
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Monthly Total $2,000.00
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