exv10w35



 


Exhibit 10.35


IGEN International, Inc. 


16020 Industrial Drive, Gaithersburg, Maryland 20877 USA Telephone: (301) 869-9800, Fax (301) 208-3798



February 10, 2004 




Wellstat Therapeutics
Corporation
Wellstat Biologics Corporation
Hyperion Catalysis
International Corporation
Proteinix, Inc.
Integrated Chemical Synthesizers, Inc.




Re: Services Agreement 



The purpose of this letter agreement
(“Agreement”) is to identify the services that have been provided by IGEN
International, Inc., a Delaware corporation (“IGEN”)located at 16020
Industrial Drive, Gaithersburg, MD 20877 to each of Wellstat Therapeutics Corporation,
Wellstat Biologics Corporation, Hyperion Catalysis International Corporation, Proteinix,
Inc. and Integrated Chemical Synthesis, Inc. (collectively the
“Recipients”). This Agreement will also memorialize the terms and
conditions under which those services have been provided by IGEN to the Recipients. 



     1.    
          Services. 



     (a)    
          IGEN has been providing and, unless modified or terminated under this Agreement,
          will continue to provide to each of the Recipients the following services (the
          “Services”) under the terms and conditions set forth herein:
          certain accounting and finance, administrative, human resources, information
          services, and miscellaneous other functions, as well as facility related
          services. Each of these services is more completely described on Appendix A. 



     (b)    
          The scope of the Services may be modified at any time or from time to time by
          written agreement of the parties. 



     2.    
          Compensation. 



The fees to be charged by IGEN and
paid by the Recipients for the Services are to be calculated and paid in the manner set
forth in Appendix A, attached hereto. 



     3.    
          Term and Termination. 



     (a)    
          Term. This Agreement will remain in effect until terminated in accordance
          with this Agreement. 



     (b)    
          Termination for Convenience. This Agreement is terminable at will by IGEN
          upon six (6) months prior written notice to any or all of the Recipients or such
          other time period 








 







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al.
February 10, 2004
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as may be agreed upon between IGEN
and the Recipient(s) to which notice is being sent. This Agreement is terminable at will
by any or all of the Recipients upon six (6) months prior written notice to IGEN or such
other time period as may be agreed upon between IGEN and the Recipient(s) providing such
notice. 



     (c)    
          Consequences of Termination. Except as otherwise provided, all rights and
          liabilities arising out this Agreement shall cease on the date of termination. 



     (d)    
          Assignment to BioVeris. Notwithstanding anything to the contrary
          contained herein, IGEN hereby assigns all of its rights under and in respect of
          this Agreement to BioVeris Corporation (“BioVeris”), and
          BioVeris hereby assumes all of IGEN’s Liabilities (as defined in the
          Release and Agreement (as defined below)) under and in respect of this
          Agreement, in each case immediately prior to the Effective Time as that
          term is defined in the Agreement and Plan of Merger dated as of July 24, 2003 by
          and among Roche Holding Ltd, 66 Acquisition Corporation 11, IGEN, and IGEN
          Integrated Healthcare, LLC. 



     (e)    
          Confirmation of Release and Agreement. The parties confirm that this
          Agreement memorializes their agreements as to the Services, as required under
          Section 1.03 of the Release and Agreement dated as of July 24, 2003 among IGEN,
          IGEN Integrated Healthcare, LLC, and each of the Recipients (“Release
          and Agreement”). The parties further acknowledge and agree that this
          Agreement (and all their respective rights, obligations and liabilities
          hereunder) falls within the definition of “Released Matters” as set
          forth in the Release and Agreement. 



     4.    
          Confidentiality. 



     (a)    
          IGEN acknowledges that it will receive and hold confidential or proprietary
          information (“Confidential Information”) relating to the business
          operations and activities of the Recipients. The Confidential Information may be
          disclosed orally or in writing, unless otherwise indicated, shall be deemed to
          be confidential and proprietary. Confidential Information however does not
          include information that IGEN can demonstrate by clear and convincing
          documentary evidence is now or subsequently becomes generally available in the
          public domain (through no breach of this provision by it) or was received from a
          third party without breach of any obligation of confidentiality to the
          Recipient(s) to which such information relates. 



     (b)    
          Except as specifically authorized by this Agreement, IGEN will, for the term of
          this Agreement and after its expiration or termination for any reason, keep
          confidential, not disclose to others and use only for the purposes provided for
          or permitted under this Agreement, all of the Confidential Information, except
          as required by applicable law, rule regulation or legal process, or as otherwise
          expressly provided for or permitted by this Agreement. 



     (c)    
          IGEN will provide the Confidential Information only to those of its employees
          (a) who need to know such Confidential Information for the purpose of performing
          the Services and then only to the extent needed to perform such Services, (b)
          who are informed of the confidential and proprietary nature of such Confidential
          Information and (c) who 








 







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February 10, 2004
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have usual and customary
confidentiality agreements with the receiving party that will cover the information
disclosed. IGEN shall be liable for any violation by its respective employees of this
confidentiality provision. Subject to paragraph 3(d) and (e), above, the confidentiality
obligations shall survive termination of this letter agreement. 




5. Dispute Resolution. 



Any dispute or controversy between
the parties arising from, relating to or in connection with this Agreement, including
claims based on contract, tort, common law equity, statute, regulation, order or otherwise
(“Dispute”) shall be submitted to, and determined by, a final and binding
arbitration. Any such arbitration shall be conducted by the American Arbitration
Association (“AAA”) in accordance with its then-current Commercial Rules
(“AAA Rules”). The arbitration shall be conducted at the offices of the
AAA in the city of Washington, District of Columbia. The parties agree to share equally
the cost of any arbitration. 



     6.    
          Miscellaneous. 



     (a)    
          Force Majeure. No party shall be liable to another for any failure or delay in
          performance of any obligations under this Agreement if such failure or delay is
          due to the actions or inactions of any third parties or any other circumstances
          beyond the reasonable control of such party including, but not limited to, strikes,
          fuel or power shortages, fire, floods, earthquakes, postal stoppages,
          intervention of any governmental authority or change in laws, act of wars, acts
          of terrorism, or acts of God, but any such failure or delay shall be remedied by
          such party as soon as reasonably practicable after removal of the cause of such
          failure of delay. 



     (b)    
          Governing Law. This Agreement is to be governed by and construed in
          accordance with the laws of the State of Maryland, without regard to its
          conflicts of law principles. 



     (c)    
          Relationship of the Parties. Nothing in this Agreement is to be construed
          to create a partnership, joint venture, or any other co-ownership enterprise.
          Except where expressly provided otherwise, no party will assume nor will be
          liable for any liabilities or obligations of any other party, whether past,
          present or future. 



     (d)    
          Assignment. Except as otherwise provided herein, this Agreement may not
          be assigned by any party without the prior written consent of all parties. 



     (e)    
          Entire Agreement; Amendment. This Agreement, taken together with the
          Release and Agreement, set forth the entire understanding between the parties
          relating to the subject matter contained herein. This Agreement may not be
          modified, amended or discharged except by a written agreement signed by the
          parties hereto. 



     (f)    
          No Modification to Release and Agreement.  This Agreement shall not be
          deemed to modify or amend the provisions of the Release and Agreement. In the
          event of a conflict between this Agreement and the Release and Agreement, the
          Release and Agreement shall govern. 








 







Wellstat Therapeutics, et
al.
February 10, 2004
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     (g)    
          Severability. If any provision of this Agreement is held by a court of
          competent jurisdiction to be invalid or unenforceable, it will be modified, if
          possible, to the minimum extent necessary to make it valid and enforceable or,
          if such modification is not possible, it will be stricken and the remaining
          provisions will remain in full force and effect; provided, however, that if a
          provision is stricken, no such action shall adversely affect the right of any
          party to terminate this Agreement upon thirty (30) days’ prior written
          notice to the other parties. 



     (h)    
          Headings. The headings set forth at the beginning of the various sections
          are for reference and convenience and will not affect the meanings of the
          provisions of this Agreement. 



     (i)    
          No Waiver. Any waiver by any party hereto of a breach of any provisions
          of this Agreement will not be implied and will not be valid unless such waiver
          is made in a writing signed by such party. All rights, remedies, undertakings,
          obligations and agreements in this Agreement are cumulative and none of them
          will be a limitation of any other remedy, right, undertaking, obligation or
          agreement of any other party. 



     (j)    
          Counterparts. This Agreement may be signed in any number of counterparts,
          no one of which needs to be executed by all parties, and this Agreement will be
          binding upon all parties with the same force and effect as if all parties had
          signed the same document, and each such signed counterpart shall constitute an
          original. 



     (k)    
          Novation. (i) In accordance with Section 1.03(c) of the Release and
          Agreement, effective from and after the Release Time (as defined in the Release
          and Agreement) and without any further action by any person or entity: 



               	(1) 	       

                    this Agreement is automatically amended and restated to remove IGEN as a party
                    hereto and to replace, in lieu thereof, BioVeris as a party, and 


                    



               	(2) 	       

                    this Agreement shall cease to create or confer any rights or obligations on or
                    as to IGEN, it being expressly understood and agreed that effective from and
                    after the Release Time, all such rights and obligations shall be those of
                    BioVeris Corporation. 


                    



               	(ii) 	       

                    Without limiting the foregoing or the Release and Agreement, the parties
                    acknowledge and agree that effective from and after the Release Time, BioVeris
                    Corporation shall be solely responsible for the obligations and liabilities of
                    IGEN that accrue, arise or relate in anyway to matters before the Release Time. 


                    



               	(iii) 	       
                   From and after the Release Time‚ this section (k) shall be construed as‚ and is intended to be, a novation  of this
                   Agreement in accordance with the requirements of Section 1.03(c) of the Release and Agreement.
                     


                    








 





Wellstat Therapeutics, et
al.
February 10, 2004
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     (l)    
          Third Party Beneficiaries. This Agreement is not intended to confer upon any
          person other than the parties hereto any remedies under or by reason of this
          Agreement. 




[Signature Page to
Follow] 








 








Wellstat Therapeutics, et
al.
February 10, 2004
Page 6 



Please acknowledge your acceptance
and agreement to the terms of this Agreement by signing and returning the enclosed copy of
this letter. 



By: /s/Richard J. Massey 

Name:
Richard J. Massey Ph.D. 




Title: President &
Chief Operating Officer 




Acknowledged and Accepted 



		
	Wellstat Therapeutics Corporation	Wellstat Biologics Corporation
	By: /s/Samuel J. Wohlstadter	By: /s/Samuel J. Wohlstadter
	Name: Samuel J. Wohlstadter	Name: Samuel J. Wohlstadter
	Title: Chairman and Chief Executive Officer

	Title: Chairman and Chief Executive Officer


	Hyperion Catalysis International  Corporation	Proteinix, Inc.
	By: /s/Samuel J. Wohlstadter	By: /s/Samuel J. Wohlstadter
	Name: Samuel J. Wohlstadter	Name: Samuel J. Wohlstadter
	Title: Chairman and Chief Executive Officer

	Title: Chairman and Chief Executive Officer


	Integrated Chemical Synthesizers, Inc.	BioVeris Corporation
	By: /s/Samuel J. Wohlstadter	By: /s/Richard J. Massey
	Name: Samuel J. Wohlstadter	Name: Richard J. Massey
	Title: Chairman and Chief Executive Officer

	Title: President and Chief Operating Officer












 





Appendix A




Shared Services
Schedule 



     Summary.    
          IGEN has shared services arrangements with companies in which certain officers
          of IGEN are also shareholders. For the purpose of shared services (only), these
          companies are considered affiliated companies and include: 




Wellstat Therapeutics
Corporation 




Wellstat Biologics
Corporation 




Proteinix, Inc. 




Hyperion Catalysis International
Corporation 




Integrated Chemical
Synthesizer, Inc. 



The shared services include certain
accounting and finance, administrative, human resources, information services, and
miscellaneous other functions, as well as facility related costs and services. 



Fees for Services. The shared
service fees are based on cost sharing (direct charges and allocation of the fully loaded
personnel or facilities costs). Amounts allocated to affiliated companies are based upon
costs incurred by IGEN and are determined through allocation methods that include time
spent and square footage utilized. 



Service Areas. Services are
provided for each of the following functional areas. Activities may be added or deleted as
needed. 




1. Finance and Accounting
2.
Administration
3. Human Resources
4. Information Services 



The services to be provided within
each of these Services Areas are described in the relevant section. 








 





Appendix A
Fee for
IGEN Shared Services 
Schedule (continued) 




Finance and Accounting 




I. General Ledger 




o Processing General
Journal Entries
o Analysis of General Ledger
o Updating Schedules of General Ledger
Accounts
o Preparing and Analyzing Financial Statements

II. Corporate Tax 




o Personal Property Tax
Returns
o Sales and Use Tax Returns
o Corporate Income Tax Returns 




III. Banking &
Treasury 




o Cash Balance Report
o Cash
Forecasting Report
o Cash Transfers/Wires 
o Bank Relationships, Letters of Credit, Investments, Leases (if requested)






IV. External Audit 




o Assistance with
External Audit of Financial Statements
o Assistance with Workers Compensation or
Government Audits 




V. Payroll/401(k) 




o Processing Semi-monthly
Payroll
o Employee Benefit Tracking, Reporting and Remittance(including 401(k)
and Flex Benefit Plans)
o Employee Payroll Communications
o End of Year Tax
Processing 




Administration 




I. Risk Management 



o Periodic review of insurance
policies with broker (upon request) 
o Work with affiliated company management on insurance
claim submissions 
o Provide summary report on insurance coverage 




II. Safety and Security 




o Coordination, development and implementation of safety and security policies with
affiliated company management. 











 






Appendix A
Fee for
IGEN Shared Services
Schedule (continued) 




Human Resources 




I. New Hire Recruitment
and Processing 



o Personnel Requisition
o Advertising
o Resume Tracking

o Recruitment Agreements
o Offer Letters
o In-Processing of New Employee 

o Relocation Arrangements 
o Immigration Processing 
o Temporary Employees




II. Employee Maintenance
and Action


o Employee Status Changes
o Benefits Interface
o Verification of
Employment
o Prepare and Update Organization Chart 
o Process Leaves of Absence, Short-term Disability, Family & Medical Leave, Salary Actions & Promotions,
         Termination
o Assist with Performance
Appraisals 




III. Employee Reporting 




o Prepare Affirmative
Action Reports
o Form5500 Filings/Discrimination Test — 401(k)
o Form 5500
Filings/Discrimination Test — Flexible Benefits
o Provide Harassment Prevention
Training 








 





Appendix A
Fee for
IGEN Shared Services
Schedule (continued) 




Information Services 




I. General Network
Management 


o
Management of technical, budgetary, personnel, contractor, and other services related to
the installation, operation, maintenance, and administration of computer network systems
(including LAN, WAN, workstation and telephone systems). 



o
Local Area Network (LAN) Administration — Provide technical and other related
services required for operation of computer network system. 


o
Wide Area Network (WAN) Administration — Provide general technical support and
administration of technical and other issues related to connectivity between corporate
locations. 




II. Help Desk Support 


o
Provide support to respond to requests for service regarding company workstations and
laptops, including assistance regarding hardware, software, connectivity, integration,
virus protection, and other issues, as needed.




III. Telephone Support 


o
Oversee maintenance and upgrade (if requested) of telephone systems, including the
administration of telephone switches, CSU/DSUs, wiring, telephone sets, voicemail system
and others, as needed.