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EXHIBIT 10.3
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is made as of the 6th day of
March, 1998 between Allergan, Inc., a Delaware corporation ("Allergan"), and
Allergan Specialty Therapeutics, Inc., a Delaware corporation ("ASTI").
BACKGROUND
ASTI desires that Allergan provide certain services to ASTI, and
Allergan desires to provide such services, on the terms and conditions set forth
herein.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. Upon request by ASTI, Allergan will supply ASTI with any
number of the following services: accounting, legal, stockholder relations, cash
management and similar management and administrative services, as mutually
agreed. Such services will be provided at reasonable times and upon reasonable
notice, as mutually agreed.
2. COMPENSATION. ASTI shall pay Allergan's "Costs" in providing such
services, monthly in arrears, within 30 days of the date of Allergan's invoice.
Allergan's "Costs", for purposes of this Agreement, shall include reimbursement
for (i) Allergan's direct and indirect expenses relating to the services
provided hereunder and (ii) the cost of assets purchased for use solely on
behalf of ASTI, the purchase of which is approved by ASTI. In order to fully and
fairly allocate all allocable overhead to services performed by Allergan
hereunder, an amount equal to 10% of the total Costs determined in accordance
with the above provisions (exclusive of the costs charged to Allergan or ASTI by
third parties) will also be added to the amount charged to ASTI.
3. TERM AND TERMINATION. The initial term of this Agreement shall
commence on the date hereof and shall terminate on December 31, 1998.
Thereafter, this Agreement shall automatically be renewed for successive terms
of one year each unless written notice of termination is given by the
terminating party to the other party at least 30 days in advance of the
expiration of any term; provided, however, that in no event shall the renewal
term extend past the date that is 180 days after the exercise or expiration of
the option granted to Allergan pursuant to ASTI's Restated Certificate of
Incorporation to purchase all but not less than all of the shares of Class A
Common Stock of ASTI. ASTI may, in its discretion, terminate this Agreement at
any time upon 60 days written notice to Allergan. Either party may, in its
discretion, terminate this Agreement by written notice to the other party in the
event that the other party (a) breaches any material obligations hereunder or
under the Technology License Agreement, the Research and Development Agreement
or the License Option Agreement, each dated as of the date hereof and between
Allergan and ASTI, or any license granted to Allergan under the License Option
Agreement, which breach continues for a period of 60 days after written notice
thereof, or (b) enters into any proceeding, whether voluntary or involuntary, in
bankruptcy, reorganization
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or arrangement for the appointment of a receiver or trustee to take possession
of such party's assets or any other proceeding under any law for the relief of
creditors, or makes an assignment for the benefit of its creditors.
4. INDEMNIFICATION OF ALLERGAN. ASTI hereby agrees to indemnify, protect
and hold Allergan harmless from any and all liabilities, costs or expenses
incurred by Allergan as a result of services rendered by it under this
Agreement, including, without limitation, lawsuits of and claims by third
parties, except for liabilities, costs or expenses resulting from Allergan's
gross negligence or willful misconduct. Allergan shall give ASTI prompt notice,
in writing, in the manner set forth in Section 6.7 below, of any claim or demand
made against Allergan for which Allergan may be entitled to indemnification
under this Section 4.
5. FORCE MAJEURE. Allergan shall not be liable for failure or delay in
performance of any of its obligations hereunder if such failure or delay is due
to causes beyond its reasonable control including, without limitation, acts of
God, fires, earthquakes, strikes, acts of war, or intervention of any
governmental authority, but any such delay or failure shall be remedied by
Allergan as soon as possible after the removal of the cause of such failure or
delay.
6. MISCELLANEOUS.
6.1 WAIVER, REMEDIES AND AMENDMENT. Any waiver by either party
hereto of a breach of any provisions of this Agreement shall not be implied and
shall not be valid unless such waiver is recited in writing and signed by such
party. Failure of any party to require, in one or more instances, performance by
the other party in strict accordance with the terms and conditions of this
Agreement shall not be deemed a waiver or relinquishment of the future
performance of any such terms or conditions or of any other terms and conditions
of this Agreement. A waiver by either party of any term or condition of this
Agreement shall not be deemed or construed to be a waiver of such term or
condition for any other term. All rights, remedies, undertakings, obligations
and agreements contained in this Agreement shall be cumulative and none of them
shall be a limitation of any other remedy, right, undertaking, obligation or
agreement of either party. This Agreement may not be amended except in a writing
signed by both parties.
6.2 ASSIGNMENT. Neither party may assign its rights and
obligations hereunder without the prior written consent of the other party,
which consent may not be unreasonably withheld; provided, however, that Allergan
may assign such rights and obligations hereunder to an Affiliate of Allergan or
any person or entity with which Allergan is merged or consolidated or which
acquires all or substantially all of the assets of Allergan.
6.3 DISPUTE RESOLUTION. In the event of any dispute, the parties
shall refer such dispute to the CEO of ASTI and the CEO of Allergan for
attempted resolution by good faith negotiations within sixty (60) days after
such referral is made. During such period of good faith negotiations, any
applicable time periods under this Agreement shall be tolled. In the event such
executives are unable to resolve such dispute within such sixty (60) day period,
the parties shall submit their dispute to binding arbitration before a retired
California Superior Court Judge at J.A.M.S./Endispute located in Orange,
California, such arbitration to be conducted pursuant to
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the J.A.M.S./Endispute procedure rules for commercial disputes then in effect.
The award of the arbitrator shall include an award of reasonable attorneys' fees
and costs to the prevailing party.
6.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute this Agreement.
6.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of California as applied to
residents of that state entering into contracts wholly to be performed in that
state.
6.6 HEADINGS. The section headings contained in this Agreement
are included for convenience only and form no part of the Agreement between the
parties.
6.7 NOTICES. Notices required under this Agreement shall be in
writing and sent by registered or certified mail, postage prepaid, or by
facsimile and confirmed by registered or certified mail and addressed as
follows:
If to Allergan: Allergan, Inc.
2525 Dupont Drive
Irvine, CA 92612
Facsimile: (714) 246-4774
Attention: Corporate Vice President,
General Counsel
If to ASTI: Allergan Specialty Therapeutics, Inc.
2525 Dupont Drive
Irvine, CA 92612
Facsimile: (714) 246-4774
Attention: President and
Chief Executive Officer
All notices shall be deemed to be effective five days after the date of mailing
or upon receipt if sent by facsimile (but only if followed by certified or
registered confirmation). Either party may change the address at which notice is
to be received by written notice pursuant to this Section 6.7.
6.8 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, it shall be
modified, if possible, to the minimum extent necessary to make it valid and
enforceable or, if such modification is not possible, it shall be stricken and
the remaining provisions shall remain in full force and effect.
6.9 RELATIONSHIP OF THE PARTIES. For purposes of this Agreement,
ASTI and Allergan shall be deemed to be independent contractors, and anything in
this Agreement to the contrary notwithstanding, nothing herein shall be deemed
to constitute ASTI and Allergan as partners, joint venturers, co-owners, an
association or any entity separate and apart from each party itself, nor shall
this Agreement constitute any party hereto an employee or agent, legal or
otherwise, of the other party for any purposes whatsoever. Neither party hereto
is authorized to
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make any statements or representations on behalf of the other party or in any
way obligate the other party, except as expressly authorized in writing by the
other party. Anything in this Agreement to the contrary notwithstanding, no
party hereto shall assume nor shall be liable for any liabilities or obligations
of the other party, whether past, present or future.
6.10 SURVIVAL. The provisions of Sections 4, 6.3, 6.5, 6.6, 6.7,
6.8, 6.9 and this Section 6.10 shall survive the termination for any reason of
this Agreement. Any payments due under this Agreement with respect to any period
prior to its termination shall be made notwithstanding the termination of this
Agreement. Neither party shall be liable to the other due to the termination of
this Agreement as provided herein, whether in loss of good will, anticipated
profits or otherwise.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
ALLERGAN, INC.
By: /s/ LESTER J. KAPLAN
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Title: Corporate Vice President,
Science & Technology
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ALLERGAN SPECIALTY THERAPEUTICS, INC.
By: /s/ LESTER J. KAPLAN
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Title: Chief Executive Officer
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