Exhibit 10.4
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement"), is made as of this 31st
day of December, 1994, by and between OncorPharm, Inc., a Delaware corporation
("OncorPharm"), and Oncor, Inc., a Maryland corporation ("Oncor").
In connection with the conduct of its business, Oncor desires to
engage the services of OncorPharm, and OncorPharm is willing to provide such
services to Oncor.
In consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Oncor and the OncorPharm agree as follows:
1. Oncor hereby retains and employs OncorPharm to provide services
as set forth in Section 2 below, for the period and on the terms set forth in
this Agreement. OncorPharm hereby accepts such employment and agrees during such
period to render the services and to assume the obligations set forth herein.
OncorPharm shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent Oncor in any way or otherwise be deemed an
agent of Oncor. The services of OncorPharm to Oncor hereunder are not to be
deemed exclusive and OncorPharm shall be free to render similar services to
others.
2. OncorPharm shall furnish to Oncor technical, research, and
consulting services, as requested by Oncor and agreed to by OncorPharm, from
time to time.
3. OncorPharm shall be entitled to reimbursement from Oncor for its
services rendered hereunder on a cost basis, for expenses incurred, including,
but not limited to, salaries and wages of employees of OncorPharm (which may
include officers and directors of OncorPharm) and other normal operating
expenses. OncorPharm shall submit invoices to Oncor for such reimbursement of
the cost of the services. Oncor shall have the option of paying such invoiced
amounts in cash to OncorPharm or of offsetting such amounts against the balance
of principal due from OncorPharm to Oncor pursuant to the terms of that certain
Convertible Revolving Line of Credit Note, by and between OncorPharm and Oncor,
of even date herewith.
4. In the event Oncor requests that OncorPharm provide services
other than those services set forth in Section 2, Oncor and OncorPharm shall
negotiate in good faith and enter into a separate agreement setting forth the
terms and conditions for the provision of such services and the appropriate
compensation for such services, if any.
5. OncorPharm understands that Oncor possesses Proprietary
Information which is important to its business which may be disclosed to
OncorPharm in connection with the
services to be provided to Oncor hereunder. For purposes of this Agreement,
"Proprietary Information" is information that was developed, created, or
discovered by Oncor, or which became known by, or was conveyed to Oncor, which
has commercial value in Oncor's business. "Proprietary Information" includes,
but is not limited to, information about design, construction, operations and
maintenance, circuits, mask works, layouts, algorithms, trade secrets, computer
programs, technology, ideas, know-how, processes, formulas, compositions,
techniques, inventions (whether patentable or not), business and product
development plans, customers and other information concerning Oncor's actual or
anticipated business, research or development, or which is received in
confidence by or for Oncor from any other person. Proprietary Information does
not include information which OncorPharm demonstrates to Oncor's satisfaction,
by written evidence, (i) is in the public domain by reason of prior publication
not directly or indirectly resulting from any act or omission of OncorPharm, or
(ii) was already known to OncorPharm at the time of Oncor's disclosure to
OncorPharm and which OncorPharm was free to use and disclose without restriction
and without breach of any obligation to any person or entity.
6. OncorPharm understands that this Agreement creates a relationship
of confidence and trust between OncorPharm and Oncor with regard to Proprietary
Information. At all times, both during the term of this Agreement and after its
termination, OncorPharm will keep in confidence and trust and will not use or
disclose any Proprietary Information without the prior written consent of an
officer of Oncor, except as may be necessary in the ordinary course of
performing the services to be provided under this Agreement. OncorPharm
acknowledges that any disclosure or unauthorized use of Proprietary Information
will constitute a material breach of this Agreement and cause substantial harm
to Oncor for which damages would not be a fully adequate remedy, and, therefore,
in the event of any such breach, in addition to other available remedies, Oncor
shall have the right to obtain injunctive relief.
7. All Proprietary Information and all patents, patent rights,
copyrights, mask work rights, trade secret rights, moral rights and other rights
in connection therewith shall be the sole property of Oncor. OncorPharm hereby
assigns to Oncor any rights OncorPharm may have or acquire in such Proprietary
Information.
8. OncorPharm will promptly disclose in writing to Oncor all
"Inventions", which includes all improvements, inventions, designs, formulas,
works of authorship, mask works, computer programs, ideas, processes,
techniques, know-how and data, whether or not patentable, made or conceived or
reduced to practice or developed by OncorPharm, either alone or jointly with
others, during the term of this Agreement in connection with the services
provided hereunder or which relate to any Proprietary Information. OncorPharm
will also disclose to Oncor all things that would be Inventions if made during
the term of this Agreement, conceived, reduced to practice, or developed by
OncorPharm within six (6) months of the termination of this Agreement which
relate to any Proprietary Information or the subject matter of the services
provided hereunder; provided that OncorPharm shall not be required to disclose
items conceived and developed in the course of employment for a third party
where OncorPharm
is contractually precluded from disclosure. OncorPharm will not disclose
Inventions to any person outside Oncor unless requested to do so by an officer
of Oncor.
9. OncorPharm agrees that all Inventions which OncorPharm makes,
conceives, reduces to practice or develops (in whole or in part, either alone or
jointly with others) during the term of this Agreement in connection with the
services to be provided hereunder or which relate to any Proprietary Information
shall be the sole property of Oncor. OncorPharm agrees to assign and hereby
assigns to Oncor all rights to any such Inventions. Oncor and shall be the sole
owner of all patents, copyrights, moral rights and other intellectual property
or other rights in connection therewith.
10. OncorPharm agrees to perform, during and after the term of this
Agreement, all acts deemed necessary or desirable by Oncor to permit and assist
it in obtaining, maintaining, defending and enforcing patents, copyrights, mask
work rights, trade secret rights, moral rights, or other rights on such
Inventions and improvements in any and all countries. Such acts may include, but
are not limited to, execution of documents and assistance or cooperation in
legal proceedings. OncorPharm hereby irrevocably designates and appoints Oncor
and its duly authorized officers and agents, as OncorPharm's agents and
attorneys-in-fact to act for and on behalf and instead of OncorPharm, to execute
and file any documents and to do all other lawfully permitted acts to further
the above purposes with the same legal force and effect as if executed by
OncorPharm.
11. This Agreement may be terminated by either Oncor or OncorPharm
at any time, for any reason, with or without cause, by giving not less than
thirty (30) days written notice to the other party; termination to be effective
upon the expiration of the notice period.
12. OncorPharm is an independent contractor and is solely
responsible for all taxes, withholdings, and other similar statutory
obligations, including, but not limited to, Workers' Compensation Insurance; and
OncorPharm agrees to defend, indemnify and hold Oncor harmless from any and all
claims made by any entity on account of an alleged failure by OncorPharm to
satisfy any such tax or withholding obligations.
13. OncorPharm has no authority to act on behalf of or to enter into
any contract, incur any liability or make any representation on behalf of Oncor.
14. OncorPharm's performance under this Agreement shall be conducted
with due diligence and in full compliance with the highest professional
standards of practice in the industry.
15. OncorPharm agrees that any dispute as to the meaning, effect or
validity of this Agreement shall be resolved in accordance with the laws of the
State of Maryland without regard to the conflict of laws provisions thereof.
OncorPharm further agrees that if one or more provisions of this Agreement are
held to be unenforceable under applicable Maryland law, such provision(s) shall
be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
16. This Agreement shall be binding upon Oncor and OncorPharm, and
shall inure to the benefit of, the parties hereto and their respective heirs,
successors, assigns, and personal representatives; provided, however, that this
Agreement shall not be assignable by OncorPharm.
17. All notices required or given herewith shall be addressed to
Oncor or OncorPharm at the designated addresses shown below by registered mail,
special delivery, or by certified courier service:
a. To Oncor:
Oncor, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
b. To OncorPharm:
OncorPharm, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
c: With a copy in each case to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
18. This Agreement contains the entire understanding of the parties
regarding its subject matter and can only be modified by a subsequent written
agreement executed by both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto duly executed this Services
Agreement on the day and year first above written.
ONCORPHARM, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Vice President, Treasurer
and Secretary
ONCOR, INC., a Maryland corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
CEO and Chairman of the Board of Directors
