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EXHIBIT 10.71
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is made and entered into as
of June 15, 1999 (the "Effective Date") by and among Catalytica Advanced
Technologies, Inc., a Delaware corporation, of Mountain View, California
("CAT"), CombiChem, Inc., a Delaware corporation, of San Diego, California
("CombiChem"), and Aperion, L.L.C., a Delaware limited liability company, of
Mountain View, California ("LLC").
WHEREAS, CAT and CombiChem have organized LLC pursuant to the Limited
Liability Company Operating Agreement of LLC dated the date hereof (the
"Operating Agreement") for the purposes described in the Operating Agreement,
WHEREAS, CAT and CombiChem currently own all membership interests in
LLC; and
WHEREAS, LLC desires that CAT and CombiChem provide certain services to
LLC and CAT and CombiChem desire to provide such services to LLC, on the terms
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Parties agree as follows:
Section 1. Definitions
A. "Claim" "CAT and CombiChem Indemnitees" and "LLC
Indemnitees" shall have the respective meanings set
forth in Section 8 hereof.
B. "Service Costs" shall mean all direct or indirect
costs, fees and out-of-pocket or other expenses
incurred, paid or accrued by CAT, or CombiChem, in
respect of the services provided to LLC by or on
behalf of CAT or CombiChem as the case may be,
pursuant to Section 2 hereof, and determined in
accordance with United States generally accepted
accounting principles and Section 3 hereof.
C. "Service Period" shall mean the period from the
Effective Date until December 31, 2000; thereafter,
the Service Period shall be extended for additional
terms of one (1) year unless either Member gives
notice to the other Member of its desire to terminate
this Agreement at least ninety (90) days prior to the
termination of any such subsequent term.
D. "License Agreements" shall mean (1) the License
Agreement between CAT and LLC dated the date hereof
and (2) the License Agreement between CombiChem and
LLC dated the date hereof.
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E. "Party" shall mean either CAT, CombiChem or LLC,
depending on the context in which the term appears,
and when used in the plural form shall mean CAT and
CombiChem and LLC.
F. Any capitalized terms used in this Agreement without
definition will have the meanings given to them in
the Operating Agreement or the License Agreements, as
the case may be.
Section 2. Services To Be Provided
A. Services. LLC hereby engages CAT and CombiChem to
provide, or arrange to provide, to LLC during the
Service Period certain general, administrative and
technical services requested from time to time by
LLC, including, without limitation, the services
described generally below. CAT and CombiChem agree to
use their commercially reasonable efforts to provide,
upon the request of, and in the sole discretion of,
LLC specific services within the following general
categories, at reasonable times and in the manner
requested by LLC.
[1] Research and development services and technical
service support, including without limitation:
- Technological assistance (access to specialized
expertise and facilities in various technical
disciplines, development programs and projects
agreed upon by the Parties, including budgets
therefor, environmental affairs, facilities
planning and management);
- Computer assisted catalytic activity discovery
and improvement
- Catalyst synthesis and characterization
- Internal analytical services (to include but not
to be limited to engineering technical support)
- Management information services (support of a
corporate network, hardware acquisition, hardware
and software policies, software support)
[2] Administrative services, including without
limitation:
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- Risk management (centralized insurance
purchasing, claims handling, support for product,
worker safety and environmental programs
(although LLC has principal responsibility for
compliance))
- Tax planning and filing (general tax
consultation, state, local and federal returns
and audits, acquisition tax analysis)
- Accounting services (corporate records,
Securities and Exchange Commission ("SEC")
filing, annual and quarterly financial reports,
preparation of monthly financial statements,
internal audit support services)
- Legal services (general counsel, litigation
management, SEC filings, contract negotiation and
preparation, legal/regulatory compliance,
acquisition negotiation and preparation of
documentation, patent and trademark protection)
- Human resources (administration of group and
disability benefits, administration of stock,
pension and retirement plans, advice on employee
relations, executive recruiting, training,
compensation, termination and other similar
matters, access to pool of specialists and other
key personnel)
- Corporate record keeping services (minutes of
meetings of LLC's Board of Managers and Members,
supervision of transfer agents and registrars,
maintenance of stock records, xxxxxxx xxxxxxx
records/compliance)
[3] Financial services
- Banking services administration, including
without limitation banking accounts
administration, loan administration, covenant
compliance administration, maintenance of cash
collections and disbursement systems, arranging
letters of credit, foreign exchange, and cash
transfers;
- Financial management and information, including
without limitation cash management, pension fund
management, leasing, customer financing,
information on financial markets and products,
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information on foreign currency, risk assessment
and hedge strategies;
- Arrangement of credit support, including without
limitation insurance performance and bid bonds,
letters of credit, and corporate guarantees where
deemed appropriate by CAT or CombiChem;
- Investment banking services, including without
limitation advice and support for equity and debt
financing, analysis, negotiations, advice and
support for mergers and acquisitions, investor
relations and management of relationships with
equity financial analysts;
- Banking and credit services, including without
limitation cash management, access to external
debt sources, compliance with external financial
covenants and internal financial policies, long
range financial planning;
[4] Leasing and maintenance of facilities.
[5] Marketing and sales services
- Identification of and sales visits to potential
customers for the products of LLC.
- Preparation of marketing information and purchase
orders, and communications with customers
regarding the same.
- Technical support for customers who purchase
services and/or products of LLC including
installation and ongoing troubleshooting.
B. Standard of Care. In providing services hereunder,
CAT and CombiChem shall use, and LLC hereby agrees
to accept in all respects, the same standard of
skill and care and the same deadline priorities that
CAT or CombiChem, as the case may be, use in the
course of undertaking similar services for
themselves. Provided, for services which are
experimental or developmental in nature, CAT and
CombiChem shall carry out the services using
professionally qualified personnel in accordance
with generally accepted professional standards;
however, LLC recognizes and
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accepts that, for such development work, there can
be no guarantee of success or that the services will
be completed in a certain time.
C. No Limitation. Not withstanding anything to the
contrary in this Agreement, nothing in this
Agreement shall limit the rights of LLC at any time
during the Service Period to
[1] obtain any of the services listed in Section
2(A) of this Agreement from any third party
instead of CAT or CombiChem;
[2] develop the capacity to perform any of the
services listed in Section 2(A) of this
Agreement itself; including but not limited to
by hiring its own employees, should LLC choose
to do so; or
[3] reduce the quantity or frequency of any of the
services provided by CAT or CombiChem, whether
or not LLC obtains replacement for the reduced
services from a third party or itself.
LLC will have the right to terminate or reduce the provision
of any category of the services at any time upon at least
ninety (90) days advance notice in writing to the provider of
such services. LLC's sole obligation and liability with
respect to such terminated or reduced services will be to pay
all amounts due for such services up to the effective date of
termination or reduction.
D. Division of Services Between CAT and CombiChem. The
division of services during the Service Period shall
be determined by the Board of Managers of LLC.
E. Personnel. CAT and CombiChem agree that the
commitment to provide services under this Agreement
includes the commitment that a sufficient number of
qualified employees will be released from their
duties at CAT or CombiChem, as the case may be, and
will be assigned to work on LLC's activities for
whatever period of time is necessary to insure that
the services requested by LLC will be performed in a
timely and efficient manner. All employees of CAT
and CombiChem assigned to work on LLC's activities
will receive their salaries and fringe benefits
from, and will be covered by the benefit plans of,
their own employer and not LLC. Each of the assigned
employees who are budgeted to spend more than 50%
(computed as a percentage of their aggregate time
performing services for their respective employer)
of their time performing services for LLC shall
commit to expend time and effort on behalf of LLC in
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preference to any other assigned activities by their
employer, and their performance appraisals shall be
based predominantly on their achievements while
performing services for LLC.
F. Independent Contractor. Each of CAT and CombiChem
will be acting as an independent contractor in their
activities under this Agreement, and not in any other
capacity. Except to the extent provided in the
Operating Agreement, neither CAT or CombiChem nor any
person performing Services on behalf of CAT or
CombiChem authorized to bind LLC to any obligations.
G. Protection of Information. CAT and CombiChem, as the
case may be, will establish and maintain safeguards
against the destruction, loss or alteration of LLC's
data in the possession of CAT or CombiChem which are
no less rigorous than those maintained by CAT or
CombiChem, as the case may be, for safeguarding its
own information of a similar nature. CAT and
CombiChem, as the case may be, will establish and
maintain safeguards against the disclosure to third
parties of LLC's data which are no less rigorous than
those maintained by CAT or CombiChem to insure the
confidentiality of its own information of a similar
nature.
H. Changes in Business Practices. This Agreement will
not limit or restrict the right of either CAT or
CombiChem, as the case may be, to change its business
procedures, systems, processes or locations. CAT or
CombiChem, as the case may be, will provide LLC with
at least ninety (90) days advance written notice of
any change in the ordinary course of its business
that will affect the provision of Services to LLC. If
any changes described in the preceding sentence are
of such nature that LLC would reasonably be expected
to require more than ninety (90) days to respond to
the change, CAT or CombiChem, as the case may be,
will provide LLC with a greater period of advance
written notice that is reasonable under the
circumstances.
I. Access to Records. Each of the Members shall have the
right to request an audit of such records (to the
extent relevant to the issue at hand), at its own
expense and not more than once in or with respect of
any calendar year, to determine the correctness of
any amount of Capital Contribution to LLC made under
this Agreement. If a Member desires to audit such
records, it shall utilize an independent, certified
public accountant of its choice to examine such
records reasonably acceptable to such other Member.
Such accountant shall be instructed to provide the
Member desiring the audit a
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report on the findings of the agreed upon procedures
which verifies any previous report made or payment
submitted by the audited Member during such period.
The expense of such audit shall be borne by the
auditing Member; provided, however, that if an error
in favor of the auditing Member of more than five
percent (5%) is discovered, then such expense shall
be paid by the audited Member.
In the event such examination reveals that additional
Capital Contributions were owed to LLC, the
additional Capital Contribution (and, if applicable,
reimbursement of the expenses incurred with respect
to such audit to be paid to the other Member) shall
be paid by the audited Member within thirty (30) days
of the date the audited Member receives a written
report prepared by the independent certified public
accountants specifying the basis for its
determination. In the event that such examination
reveals that the audited Member overpaid the auditing
Member an amount payable hereunder, then the auditing
Member shall pay audited Member within thirty (30)
days of written notification of such examination
determination an amount equal to such overpayment.
The Members hereby agree that all information subject
to review under this section is confidential
information and that the independent certified public
accountant shall only disclose to the auditing Member
the amount payable hereunder as determined from such
examination and that the independent certified public
accountant shall retain all such information in
confidence. Upon the expiration of three (3) years
following the end of any calendar year, the audit
right hereunder shall expire with respect to such
calendar year and the calculation of amounts payable
with respect to such calendar year shall be binding
and conclusive upon both Members and each Member
shall be released from any liability or
accountability with respect to payments for such
year.
Section 3. Service Costs as Capital Contributions under the
Operating Agreement
A. Crediting of Service Costs. Services performed by
either CAT or CombiChem, as the case may be, shall be
treated as Capital Contributions of that Member under
the Operating Agreement; the amount of such Capital
Contribution credited to each such Member shall be
one hundred percent (100%) of all Service Costs for
CombiChem and/or CAT, as the case may be.
B. Calculation of Service Costs. The method for
calculating the Service Costs of CombiChem and/or CAT
shall be mutually agreed upon by the
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Members prior to approval of each Annual Budget by
the Board of Managers.
Section 4. Ownership Of Technology
Subject to the provisions of the Operating Agreement and
License Agreements, all Technology conceived and developed by
CAT and/or CombiChem in the course of rendering services to
LLC hereunder that is not CombiChem Technology or CAT
Technology shall be owned by LLC. LLC hereby grants to CAT and
CombiChem a royalty-free, worldwide, non-exclusive license to
use the LLC Technology solely outside the Field. This license
right shall include a right on the part of CombiChem and/or
CAT to grant sublicenses.
Section 5. Representations And Warranties
A. Representations and Warranties of CAT. CAT represents
and warrants to LLC as follows:
[1] CAT is a corporation duly organized, validly
existing and in good standing under the laws
of the state of Delaware with all requisite
corporate powers and authority necessary for
executing, delivering and performing its
obligations under this Agreement;
[2] the execution, delivery and performance of
this Agreement has been duly authorized by
all necessary corporate action on the part
of CAT;
[3] this Agreement has been duly executed and
delivered by CAT and is a legal, valid and
binding obligation of CAT and, enforceable
against CAT in accordance with its terms
except (i) as limited by applicable
bankruptcy, insolvency, reorganization,
moratorium and other laws of general
application affecting enforcement of
creditors' rights generally and (ii) as
limited by laws relating to the availability
of specific performance, injunctive relief
or other equitable remedies; and
[4] the execution, delivery and performance of
this Agreement does not and will not
conflict with or contravene any provision of
the charter documents or by laws of CAT or
any material agreement, document,
instrument, indenture or other obligation of
CAT.
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B. Representations and Warranties of CombiChem .
CombiChem represents and warrants to LLC as follows:
[1] CombiChem is a corporation duly organized,
validly existing and in good standing under
the laws of the state of Delaware with all
requisite corporate powers and authority
necessary for executing, delivering and
performing its obligations under this
Agreement;
[2] the execution, delivery and performance of
this Agreement has been duly authorized by
all necessary corporate action on the part
of CombiChem
[3] this Agreement has been duly executed and
delivered by CombiChem and is a legal, valid
and binding obligation of CombiChem,
enforceable against CombiChem in accordance
with its terms except (i) as limited by
applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of
general application affecting enforcement of
creditors' rights generally and (ii) as
limited by laws relating to the availability
of specific performance, injunctive relief
or other equitable remedies; and
[4] the execution, delivery and performance of
this Agreement does not and will not
conflict with or contravene any provision of
the charter documents or by laws of
CombiChem or any material agreement,
document, instrument, indenture or other
obligation of CombiChem.
C. Representations and Warranties of LLC. LLC represents
and warrants to each of CAT and CombiChem as follows:
[1] LLC is a limited liability company duly
organized, validly existing and in good
standing under the laws of the state of
Delaware with all requisite corporate powers
and authority necessary for executing,
delivering and performing its obligations
under this Agreement;
[2] the execution, delivery and performance of
this Agreement has been duly authorized by
all necessary action on the part of LLC;
[3] this Agreement has been duly executed and
delivered by LLC and is a legal, valid and
binding obligation of LLC enforceable
against
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LLC in accordance with its terms except (i)
as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and
other laws of general application affecting
enforcement of creditors' rights generally
and (ii) as limited by laws relating to the
availability of specific performance,
injunctive relief or other equitable
remedies; and
[4] the execution, delivery and performance of
this Agreement does not and will not
conflict with or contravene any provision of
the Operating Agreement or any agreement,
document, instrument, indenture or other
obligation of LLC.
Section 6. Term and Termination
This Agreement shall terminate upon the earliest to occur of
any of the following: (i) the end of the Service Period, or
(ii) the liquidation of LLC as provided in the Operating
Agreement. In addition, this Agreement shall terminate as to
either CAT or CombiChem, but shall continue in effect as to
the other, upon the transfer to a third party of one hundred
percent (100%) of the Member's Interest of CAT or CombiChem,
as the case may be.
Section 7. Subcontractors
CAT or CombiChem may engage their respective Affiliates or any
third party to perform all or any portion of CAT's or
CombiChem's duties hereunder; provided, however, that their
Affiliates or any such third party shall be bound by the terms
of this Agreement and, provided further, that no such consent
shall be required for the engagement by CAT or CombiChem of
their Affiliates or any third party to perform such duties if
CAT or CombiChem, customarily engages such Affiliate or third
party to perform similar duties for CAT or CombiChem, as the
case may be.
Section 8. Indemnification
A. LLC shall: (i) indemnify CAT, its successors and
assigns, and its directors, officers, employees,
agents and counsel thereof (the "CAT Indemnitee(s)"),
and (ii) pay on demand and protect, defend, save and
hold each CAT Indemnitee harmless from and against,
on an after-tax basis, any and all liabilities,
damages, losses, settlements, claims, actions, suits,
penalties, fines, costs or expenses (including,
without limitation, reasonable attorney's fees) (any
of the foregoing, a "Claim") incurred by or asserted
against any CAT Indemnitee of whatever kind or
nature,
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including, without limitation any claim or liability
based upon negligence, warranty, strict liability,
violation of government regulation or infringement of
patent or other proprietary rights, arising from or
occurring as a result of services provided by CAT to
LLC under this Agreement, including, without
limitation, a breach thereof by LLC, or the
performance by CAT of its respective obligations
hereunder, except claims based upon the gross
negligence or willful misconduct of CAT.
B. LLC shall: (i) indemnify CombiChem, its successors
and assigns, and its directors, officers, employees,
agents and counsel thereof (the "CombiChem
Indemnitee(s)"), and (ii) pay on demand and protect,
defend, save and hold each CombiChem Indemnitee
harmless from and against, on an after-tax basis, all
Claims incurred by or asserted against any CombiChem
Indemnitee of whatever kind or nature, including,
without limitation any claim or liability based upon
negligence, warranty, strict liability, violation of
government regulation or infringement of patent or
other proprietary rights, arising from or occurring
as a result of services provided by CombiChem to LLC
under this Agreement, including, without limitation,
a breach thereof by LLC, or the performance by
CombiChem of its respective obligations hereunder,
except claims based upon the gross negligence or
willful misconduct of CombiChem.
C. CAT or CombiChem as the case may be, shall promptly
notify LLC of any Claim, upon becoming aware thereof,
and permit LLC at LLC's cost to defend such claim or
suit and shall cooperate in the defense thereof.
Neither CAT or CombiChem, as the case may be, nor LLC
shall enter into, or permit, any settlement of any
such suit without the express written consent of the
other Party. CAT and CAT may, at their option and
expense, have their own counsel participate in any
proceeding which is under the direction of LLC and
will cooperate with LLC and its insurer in the
disposition of any such matter.
Section 9. General
A. Waiver. No failure on the part of CAT, CombiChem, or
LLC to exercise and no delay in exercising any right,
power, remedy or privilege under this Agreement, or
provided by statute or at law or in equity or
otherwise, including, without limitations the right
or power to terminate this Agreement, shall impair,
prejudice or constitute a waiver of any such right,
power, remedy or privilege or be construed as a
waiver of any breach of this Agreement or as an
acquiescence therein, nor shall any single or
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partial exercise of any such right, power, remedy or
privilege preclude any other or further exercise
thereof or the exercise of any other right, power,
remedy or privilege.
B. Force Majeure. Each Party shall be excused for any
failure or delay in performing any of its obligations
under this Agreement pursuant to Section 3 hereof, if
such failure or delay is caused by any act of God or
the public enemy, any accident, explosion, fire,
storm, earthquake, flood, drought, peril of the sea,
riot, embargo, war or foreign, federal, state or
municipal order, seizure, requisition or allocation,
any failure or delay of transportation, shortage of
or inability to obtain supplies, equipment, fuel or
labor or any other circumstance or event beyond the
reasonable control of the Party relying upon such
circumstance or event.
C. Notices. All notices and other communications
required or permitted hereunder shall be in writing
and shall be deemed effectively given and received
(a) upon personal delivery; (b) upon receipt if
mailed by registered or certified mail, return
receipt requested, postage prepaid, addressed to the
recipients at their addresses as listed below (or at
such other address for a recipient as a party shall
specify by notice in accordance with this Section);
or (c) upon confirmed delivery by express commercial
courier service (receipt verified) to the recipients
at their addresses as listed below (or at such other
address for a recipient as a party shall specify by
notice in accordance with this Section):
If to LLC, addressed to: Aperion LLC
000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Board of Managers
With a copy to: Catalytica Advanced Technologies, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: President
And to: CombiChem, Inc. 0000 Xxxxxx Xxxxx
Xx Xxx Xxxxx, XX 00000 Attn:
President
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And to: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxx X Xxxxxx, Xxxxx 0000 Xxx
Xxxxx, XX 00000-0000 Attn: Xxxx X.
Xxxxxxx, Esq.
If to CombiChem, addressed to: CombiChem, Inc.
0000 Xxxxxx Xxxxx Xx
Xxx Xxxxx, XX 00000
Attn: President
With a copy to: Catalytica Advanced
Technologies. 000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: President
And to: Xxxxxxx Phleger & Xxxxxxxx LLP
000 Xxxx X Xxxxxx, Xxxxx 0000 Xxx
Xxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
If to CAT, addressed to: Catalytica Advanced Technologies.
000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: President
With a copy to: CombiChem, Inc.
0000 Xxxxxx Xxxxx Xx
Xxx Xxxxx, XX 00000
Attn: President
And to: Xxxxxxx Phleger & Xxxxxxxx LLP
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
Any copy of a notice shall be sent at the same time as the original
notice.
D. Further Assurances. Each of CAT and CombiChem agrees to
duly execute and deliver, or cause to be duly executed
and delivered, such further instruments and do and cause
to be done such further acts and things, including,
without limitation, the filing of such additional
assignments,
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agreements, documents and instruments, that may be
necessary or as the other Party hereto may at any time
and from time to time reasonably request in connection
with this Agreement or to carry out more effectually the
provisions and purposes of, or to better assure and
confirm unto such other Party its rights and remedies
under, this Agreement.
E. Successors and Assigns. The terms and provisions of this
Agreement shall inure to the benefit of, and be binding
upon, CAT and CombiChem, and their respective successors
and assigns; provided, however, that neither CAT nor
CombiChem may assign or otherwise transfer any of its
rights and interests, nor delegate any of its respective
obligations, hereunder, including, without limitation,
pursuant to a merger or consolidation, without the prior
written consent of the other Party hereto; provided
further, however, that (i) CAT or CombiChem may assign
its rights and interests, and delegate its obligations,
hereunder, effective upon written notice thereof, to any
Affiliate, and (ii) both CAT and CombiChem may assign its
rights and interests, and delegate its obligations,
hereunder, effective upon written notice thereof, to any
third party which acquires all or substantially all of
the assets of CAT or CombiChem as the case may be, or
which is the surviving third party in a merger or
consolidation with CAT or CombiChem as the case may be,
if such third party assumes all of the obligations of CAT
or CombiChem, as the case may be hereunder. Subject to
the foregoing, any reference to CAT or CombiChem
hereunder shall be deemed to include the successors
thereto and assigns thereof.
F. Amendments. No amendment, modification, waiver,
termination or discharge of any provision of this
Agreement, nor consent to any departure by CAT or
CombiChem therefrom, shall in any event be effective
unless the same shall be in writing specifically
identifying this Agreement and the provision intended to
be amended, modified, waived, terminated or discharged
and signed by CAT and CombiChem, and each such amendment,
modification, waiver, termination or discharge shall be
effective only in the specific instance and for the
specific purpose for which given. No provision of this
Agreement shall be varied, contradicted or explained by
any oral agreement, course of dealing or performance or
any other matter not set forth in an agreement in writing
and signed by CAT and CombiChem.
G. Governing Law. This Agreement shall in all respects,
including all matters of construction, validity and
performance, be governed by, and construed and enforced
in accordance with, the laws of the state of
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California applicable to contracts entered into in that
state solely between citizens of that state and to be
performed wholly within that state.
H. Severability. If any provision hereof should be held
invalid, illegal or unenforceable in any respect in any
jurisdiction, then, to the fullest extent permitted by
law, (a) all other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions
of the Parties hereto as nearly as may be possible and
(b) such validity, illegality or unenforceability shall
not affect the validity, legality or enforceability of
such provision in any other jurisdiction. To the extent
permitted by applicable law, CAT and CombiChem hereby
waive any provision of law that would render any
provision hereof prohibited or unenforceable in any
respect.
I. Counterparts. This Agreement may be executed in any
number of counterparts, each of which counterparts, when
so executed and delivered, shall be deemed to be an
original, and all of which counterparts, taken together,
shall constitute one and the same instrument.
J. Entire Agreement. This Agreement, the Operating
Agreement, the CAT License and the CombiChem License
constitute, on and as of the Effective Date, the entire
agreement of CAT and CombiChem with respect to the
subject matter hereof and thereof, and all prior or
contemporaneous understandings or agreements, whether
written or oral, between CAT, CombiChem and LLC with
respect to such subject matter is hereby superseded in
their entireties.
K. Dispute Resolution. Any claim, dispute, or controversy
arising out of or relating to the interpretation,
application, or enforcement of this Agreement, or any
breach of this Agreement will be settled using the
Dispute Resolution mechanism described in the Operating
Agreement.
L. Headings. The headings of the several section are
inserted for convenience of reference only and are not
intended to be a part of, or to affect the meaning or
interpretation of this Agreement.
M. Effective Date. This Agreement will not be binding upon
the Parties until the Initial Contribution Date.
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IN WITNESS THEREOF, the Parties by their duly authorized representatives have
caused this Agreement to be duly executed and delivered as of the Effective
Date.
APERION LLC, a Delaware limited COMBICHEM, INC., a Delaware
liability company corporation
By CATALYTICA ADVANCED
TECHNOLOGIES, INC., a Delaware By: /s/ Xxxxxxx Xxxxx, Xx.
corporation, Name: Xxxxxxx Xxxxx, Xx.
Member Title: President & CEO
By: /s/ Illegible
Name: Illegible
Title: CFO
And by COMBICHEM, INC., a CATALYTICA ADVANCED
Delaware corporation, TECHNOLOGIES, INC.,
Member a Delaware corporation
By: /s/ Xxxxxxx Xxxxx, Xx. By: /s/ Illegible
Name: Xxxxxxx Xxxxx, Xx. Name: Illegible
Title: President & CEO Title: CFO
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