EXHIBIT 10.20
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 Pharma Consultancy
Limited, a UK-registered company with registered office at Epic House, 128
Fulwell Road, Teddington, Middlesex TW11 0RQ, 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.
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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
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bond or other security, it being acknowledged that any such
breach or threatened breach will cause irreparable injury to
Somanta.
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 the third day
of November 2005 and continues until the thirty-first day of
December 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
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by Somanta within five business days upon submission of an
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 not
later than ten (10) 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 as set forth hereto in Exhibit A1.
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
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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.
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, and Provider
agrees to hold harmless and indemnify Somanta for any and all claims
arising our 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 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 Provider'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.
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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.
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: 19200 Von Karman Avenue, Irvine, CA 92612; Attn:
General Counsel.
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PROVIDER: Pharma Consultancy Limited, 102 Ramillies Road,
London W4 1JA, United Kingdom; Attn: Luiz Porto MD.
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
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.
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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 Pharma Consultancy Limited
"SOMANTA" "PROVIDER"
/s/ AGAMEMNON EPENETOS /s/ LUIZ PORTO, MD
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By: Agamemnon Epenetos, By: Luiz Porto, MD
CEO, Somanta Incorporated Director, PCL-UK
Date: November 3, 2005 Date: November 3, 2005
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EXHIBIT A
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"Services"
Those services related to clinical and regulatory research and development
within 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 the Service under this Agreement;
(ii) Provider shall devote three days of full weekly business time in
aggregate to the provision of services, subject to absences for
customary vacations and for temporary illness. Provider may provide
services for more than three business days in any given week subject to
prior mutual agreement but in any case, will charge Somanta 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: Provider shall be paid a gross daily sum of [ONE THOUSAND POUNDS
STERLING ((pound)1,000)], payable on a monthly basis according to
invoice by Provider to Somanta, invoiced on the 20th day of the
invoiced current month and payable within ten business days of date of
invoice. All gross sums to be paid hereunder are exclusive of any value
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added tax that may be applicable to the Service or this Agreement. The
"Cost" as per this clause is subject to upward adjustment, from time to
time, by the Board of Somanta in its sole discretion. The provision of
ongoing Service by the Provider under this agreement is subject to the
prompt payment of invoices.
Upon Somanta's closing of a PIPE transaction of at least $10,000,000,
Provider shall invoice Somanta for a lump sum payment equal to three
business days per week or part thereof from the twenty-fourth day of
August 2005 to the day of signature of this agreement multiplied by a
gross daily sum of [FIVE HUNDRED POUNDS STERLING ((pound)500)] which
payment will be made within ten business days and according to other
conditions set forth in (iv) of Exhibit A1.
(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 pounds sterling
multiplied by 52 (fifty two) weeks.
(v) Stock Options. The Board may grant to Provider options (the "Options")
to purchase shares of Somanta's Common Stock ("Common Stock"), pursuant
to Somanta's then in effect equity incentive plan.
(vi) Payment Method: Subject to Invoice, electronically transmitted, as
follows:
By bank transfer or inter-bank paying order to:
Account Name:
IBAN:
SWIFT CODE:
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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 PCL, are
subject to the following conditions agreed implicitly between Provider and
Client:
(i) Definitions
o "Client" is defined as Somanta meaning the person(s) within Somanta,
company(ies) with whom Somanta may have dealings, government(s) with
whom Somanta may have dealings, or institution(s) with whom Somanta may
have dealings and 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 PCL including its officers, employees and
sub-contractors.
o Service is defined as solely advisory, for the contracted functions.
This can be not exclusively written advice, developmental plan advice,
advice on report, advisory opinion, advice on dossier, biologic license
application (BLA), new drug application (NDA) or advice in the form of
any written or oral material prepared by or on behalf of PCL, its
officers, employees and sub-contractors.
o Business day means any day from Monday to Friday and does not include
Saturday or Sunday.
o Calendar day means any day within the yearly calendar without
exclusions.
(ii) General Conditions
1. Somanta implicitly accepts these Conditions for the Provision of
Service to Clients prior to commissioning or accepting the Service.
2. PCL will endeavor to provide the service requested by Somanta according
to the specifications given in writing or verbally on commissioning the
Service.
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3. PCL does not guarantee that the Service commissioned will be undertaken
as initially planned. When changes occur in the provision of Service,
Somanta will be forewarned of the change(s) and agreement will be
implicitly assumed unless the Client gives written notice to PCL before
delivery of the Service.
4. PCL takes no responsibility for the integrity, veracity or content of
reports, data, documents, background information, references,
acceptance for publication or acceptance for submission provided by any
entity for whom the Service is intended by Somanta. Somanta 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 Somanta.
5. PCL will endeavor to forewarn Somanta of any deficiencies in the
materials provided by Somanta and related to the Service. However, PCL
does not guarantee the identification and forewarning of all or any
deficiency in the materials provided by Somanta.
6. PCL provides the Service in the understanding that Somanta will conduct
a thorough review of all contents of the Service.
7. PCL conducts internal checks of the contents of Service. However,
Somanta 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 PCL is advisory only, and the Service is provided
for the sole use of Somanta. Somanta must not use the name of PCL, its
officers' names or the names of its employees and sub-contractors in
seeking recognition, or approval, or publication or dissemination of
the contents of the Service, finance, share offers or any other
activity that may imply directly or indirectly PCL endorsement or
support without the prior consent of PCL.
9. The contents of this Service Provision Agreement are confidential and
must not be divulged, disseminated or disclosed by any means to any
third party without the written consent of PCL.
10. The safe return of materials provided by Somanta is the responsibility
of Somanta. PCL will make all materials available to Somanta upon
completion of the Service.
11. The relationship between Somanta and PCL is one of service provision
only, and does not constitute employment.
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(iii) Communication Media Conditions
12. PCL operates a "paperless office" policy.
13. Somanta is advised that PCL may make records of any or all its
communications with Somanta by electronic means including contact logs.
14. PCL communications with Somanta shall be exclusively electronic, via
secure business internet service provider (ISP). PCL operates with
strict firewall and anti-virus programs to check its electronic output.
15. Somanta is requested to ensure it employs appropriate in-house safety
programs and secure business ISP. It is particularly advisable that
Somanta do not use personal communications media (p.ex. Hotmail, Yahoo)
for communication with PCL. The use of unsafe media by Somanta will
imply Somanta' responsibility, own risk and liability for damage to
PCL, and/or damage to third parties and/or other Clients of PCL.
16. It is advisable that, whenever possible, materials are supplied
electronically for ease of document tracking, destruction or return.
Unless otherwise requested, PCL will delete or destroy all documents
within 3 months after completion of Service.
17. PCL cannot accept the supply of any documentation via telefax
transmission or normal post. Somanta is kindly requested to use
exclusively electronically safe media with appropriate firewall
protection and anti-virus programs. Exceptionally, upon request, PCL
may use special delivery services such as PCL's business account with
Federal Express at Client's own risk and cost.
18. In the event that Somanta may use non-electronic correspondence with
PCL all postal communication must be directed to PCL's address for
correspondence as follows: Pharma Consultancy Limited, 102 Ramillies
Road, London W4 1JA, United Kingdom.
(iv) Financial Transactions Conditions
19. All financial communications and documentation between PCL and Somanta
are electronic.
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20. Unless otherwise specified in separate contractual agreement, PCL will
normally submit monthly invoices to Somanta on the 20th (twentieth) day
of the current month being invoiced.
21. During the continuance of the Service Somanta shall pay PCL the agreed
Fees and expenses according to this Service Provision Agreement, which
Fees accrue as Working Days and are paid monthly.
22. It is Somanta's responsibility to ensure that payment of invoices takes
place within ten business days of date of invoice.
23. Late payment by Somanta will result in a 10% automatic surcharge for
every five business days or portion thereof after ten business days of
date of invoice.
24. Payment date is hereby defined as the date when the amount invoiced is
fully credited free of further charges or impediments into PCL's bank
account.
25. Payment of PCL invoices by Somanta's cheque must be drawn at a UK bank
without drawing or interbank charges. Should foreign cheques or direct
bank transfers incur in inter-bank drawing charges the said charges
will be invoiced back to Somanta.
26. PCL presents all invoices to Somanta electronically via its own secure
ISP and by no other means. Therefore, PCL invoices do not contain
physical signatures. Somanta is advised to consider PCL invoices only
if delivered via PCL's own ISP. Exceptionally, PCL personnel may
deliver invoices by hand, for expedience if personnel are on site, but
electronic records are always kept.
27. All PCL 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.
28. Certain exemptions exist for the application of VAT, such as invoices
to Clients based outside the United Kingdom (UK) or outside the
European Union (EU).
29. 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 PCL 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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30. PCL does not accept cash as means of payment for its Services. Somanta
is requested to issue only interbank transfers into the nominated PCL's
bank account or exceptionally crossed-cheques payable in the name of
PCL.
31. All payments must be made in the name of Pharma Consultancy Limited.
Interbank transfers must always be made into PCL international bank
account number (IBAN) as follows:
Account name:
IBAN:
SWIFT CODE:
32. Somanta' cheques will be presented to PCL bankers only once. Should
there be any impediment in clearing a Somanta cheque, the cheque will
be returned or destroyed, and Somanta must issue a new cheque. In such
cases, the date of payment remains the date when payment is actually
credited and the above mentioned surcharges on late payments will be
accrued on Somanta's debit until the date when the payment is at PCL's
disposal in its bank account.
33. Somanta will reimburse any expenses reasonably incurred by PCL, its
officers, employees and sub-contractors when such expenses are incurred
during the provision of the Services.
34. All expenses will be accompanied by appropriate evidence of expense
whenever possible, reasonable and applicable within the array of
Services provided and related expenses.
35. Somanta shall also reimburse PCL 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 airport; airfares in scheduled
business class for destinations outside the EU or within more than 4
hours' flight time from Heathrow airport; hotel accommodation (4-star
rating or higher according to www.expedia.co.uk); adequate subsistence
costs during business travel on behalf of Somanta; telephone costs for
calls using PCL's fixed or mobile lines; any other reasonable expense
incurred during provision of Services.
36. PCL shall provide only electronic copies of evidence of expense
(receipts), usually in .jpg 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 based on current British Telecom or Vodafone price list, with
discrimination according to country-destination of calls, except for
Clients who provide their own call-charge cards for their business
calls.
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