Exhibit 10.2
SUPPLY AGREEMENT
Eos Biotechnology, Inc.
Affymetrix, Inc.
CONTENTS
1. INTRODUCTION...............................................................................................1
2. DEFINITIONS................................................................................................1
3. PROBE ARRAY SUPPLY.........................................................................................5
4. AFFYMETRIX PROPRIETARY RIGHTS..............................................................................8
5. COMPENSATION...............................................................................................8
6. INTELLECTUAL PROPERTY.....................................................................................13
7. CONFIDENTIALITY...........................................................................................14
8. WARRANTY..................................................................................................15
9. INDEMNITY.................................................................................................15
10. TERM, TERMINATION AND EFFECT OF TERMINATION..............................................................16
11. MISCELLANEOUS.............................................................................................17
EXHIBIT A: INITIAL FORECAST......................................................................................22
EXHIBIT B: CURRENT CUSTOM PROBE ARRAY PRICING....................................................................22
EXHIBIT C: EXPRESSION PROBE ARRAY USE RIGHTS FOR SERVICE AND DATABASE RECIPIENTS.................................23
EXHIBIT D: LETTER FROM ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., M.D., TO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, DATED 06/23/00............................24
EXHIBIT E: EXPRESSION ARRAY RIGHTS FOR NOT-FOR-PROFIT SAMPLE PROVIDERS...........................................25
EXHIBIT F: REQUEST FOR CREDIT FORM FOR PROBE ARRAYS AND CUSTOM PROBE ARRAYS......................................26
AGREEMENT
This agreement ("Agreement") is effective as of March 30, 2001 ("Effective
Date") between Affymetrix, Inc. ("Affymetrix") a Delaware corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and Eos Biotechnology, Inc. ("Eos") a Delaware corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ and supercedes the Chip
Supply Agreement between the parties effective May
1, 1998.
1 INTRODUCTION
1.1 Affymetrix has research, development, and manufacturing capabilities
and facilities, and has developed certain rights relevant to DNA probe
array based technology.
1.2 Eos has research and development capabilities, and facilities to
conduct research and development activities for the generation of
databases useful in life sciences research and has developed certain
rights relative to such databases and probe array based technology.
1.3 Affymetrix and Eos desire to enter into an agreement whereby Affymetrix
will provide certain licenses to Eos and supply Eos with DNA probe
arrays for use in Expression Research, development of Database products
and Services.
1.4 In consideration of the mutual covenants and promises contained in this
Agreement, Affymetrix and Eos agree as follows:
2 DEFINITIONS
2.1 "Affiliate" shall mean any corporation, company, partnership, joint
venture, firm or other business entity that is controlled by or
controls a Party or is under common control with a Party, but only for
so long as such Affiliate remains an Affiliate of a Party and only if
such Affiliate is bound by the terms of this Agreement. For purposes of
this Section, "control" shall mean, in the case of corporations (or
equivalents of corporations), direct or indirect ownership or control
of at least 80% of the voting stock or other ownership interest of such
entity or, in the case of partnerships, at least 80% of the ownership
interest in such partnership. Each Party shall be liable to the other
Party for breach of this Agreement by any of such Party's Affiliates,
and any such breach shall be deemed a breach by such party.
2.2 "Bona Fide Collaboration(s)" shall mean a scientific collaboration
between Eos or any of its Affiliates and a third party under a written
contract and research plan in a specified area, in which a) such third
party receives the biological materials and/or proprietary information
of Eos and/or its Affiliates, or in which Eos and/or its Affiliates
obtains the biological materials [***] of the third party, and b) Eos
[***] or the third party obtains or Eos and the third party share
between them co-exclusive therapeutic and diagnostic proprietary rights
and marketing rights to products resulting from the collaboration
("For-Profit Collaborators"); provided, however, if the Collaborator
is a non-commercial, academic
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entity, then Eos shall obtain [***], and c) the collaboration is
within Eos' normal (as of the Effective Date) business model (for
purposes of this Agreement, "Eos' normal business model" shall
include, for example, pharmaceutical research and development); and
d) in which Eos and its Collaborator provide significant scientific
input to the collaboration in addition to data obtained from the
Probe Arrays where "significant scientific input" includes, for
example, [***], and e) in which, at the time the gene expression
information is generated, such gene expression information is
generated [***]. By way of example, Bona Fide Collaborations shall
not include business relationships based, in significant part, on a
contract in which Eos provides contract services for a third party
involving use of the Probe Arrays on a fee-for-service or similar
basis. Bona Fide Collaborations shall not provide for the access of
the Probe Arrays to a company that engages in a bona fide business
in the sale of probe array based assays or services.
2.3 "Chip Improvement Inventions" shall mean all inventions that are
conceived or first reduced to practice by an employee or contractor of
a Party or its Affiliates resulting from use of Probe Arrays supplied
hereunder, and specifically those relating to probe array manufacturing
techniques, probe array layouts, probe array packaging techniques,
probe array assay techniques (but only insofar as such assay techniques
relate to processes after nucleic acid extraction and are directly
related to arrays of nucleic acid probes), and probe array software
analysis techniques relating to the extraction of data from probe
arrays and storing such data in a computer file, but not including
software analysis techniques for later processing of such data. Chip
Improvement Inventions shall not include any other inventions that are
conceived of or reduced to practice by an employee or contractor of a
Party or its Affiliates including, for example, expression data or
discoveries resulting therefrom (except for the specific inventions
described herein above), targets identified through the use of the
Probe Arrays, or correlations between genetic sequences and function.
2.4 "Confidential Information" shall mean all information and materials,
patentable or otherwise, of a Party disclosed by or on behalf of such
Party to the other Party and which derive value to a Party from not
being generally known, including, but not limited to DNA sequences,
vectors, cells, substances, formulations, techniques, methodology,
equipment, data, reports, know-how, trade secrets, preclinical and
clinical trials and the results thereof, sources of supply, patent
positioning, and business plans, including any negative developments.
Without limiting the foregoing, Eos acknowledges and agrees that Chip
Improvement Inventions are the Confidential Information of Affymetrix.
2.5 "Database" shall mean a collection of Datapoints directly derived from
a Probe Array and made available for license broadly in whole or in
part for use to derive additional information. If Eos utilizes a larger
database to create directly a more limited database for
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license to a third party, it is understood that the Datapoints made
available to the third party are from the original, larger Database
unless the smaller Database is made broadly available to other third
parties. In the event that data are provided on a service basis and
later released for commercial distribution as a database, such
collection of data shall be considered a "Service" at the time
delivered to a single customer and a "Database" when later distributed
more broadly.
2.6 "Datapoint" shall mean array data up to and including the expression
levels of a Gene represented on a Probe Array and comprises all probe
pairs on the array that represent the Gene.
2.7 "Demonstration Database" shall refer to a database of gene expression
data that contains [***] Datapoints and is used for promotional or
marketing purposes without charge.
2.8 "Eos' Area Of Interest" shall mean the use of Probe Arrays as a
research tool to generate gene expression data for Expression Research,
generating Databases for external license and/or providing fee-based
Services to third parties.
2.9 "Expression Research" shall mean Eos' internal research, Eos' research
as part of a Bona Fide Collaboration, or Eos' research in connection
with a Not-for-Profit Sample Provider.
2.10 "Fabrication Verification Criteria" shall refer to Affymetrix' then
current quality control criteria for Probe Arrays that are widely
distributed to third parties, which quality control criteria as
presently constituted have been delivered to Eos and which will be
provided to Eos from time to time when a material change is made.
2.11 "GATC Compliant" shall refer to software and/or databases meeting the
standards set forth in accordance with the Genetic Analysis Technology
Consortium ("GATC") standards group. In the event that the GATC
standards are no longer maintained, the Parties will negotiate in good
faith to provide substitute specifications for interoperability of
their respective software and databases.
2.12 "Gene" shall refer to a nucleic acid sequence encoding a distinct RNA.
A Gene may be represented by a partial nucleic acid sequence
representing an expressed sequence tag (EST). Multiple ESTs from the
same Gene are considered a single Gene. Polymorphic variants of a
nucleic acid sequence are considered a single Gene, provided that such
polymorphic variants must have at least 99% homology with the
underlying Gene. If a nucleic acid sequence encodes multiple distinct
RNAs due to alternative splicing [***].
2.13 "Lot" shall refer to the standard minimum quantities in which Probe
Arrays are made available to third parties, as set forth in Affymetrix'
price list and specifications.
2.14 "Net Sales" shall mean the aggregate United States Dollar equivalent of
[***].
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2.15 "Not-for-Profit Sample Providers" shall mean not-for-profit
institutions or principal investigators at not-for-profit institutions
i) that own biological samples that are not transferable to Eos by law
or institutional policy, and ii) to which Eos may provide Expression
Probe Arrays solely for the purpose of scanning such samples at such
institution's site and providing the resulting data exclusively to Eos
for use solely as permitted in this Agreement, and iii) that agree to
the terms set forth in Exhibit F hereto and iv) whose name and address
have been provided in writing to Affymetrix, or v) that have been
approved in advance by Affymetrix in writing which approval shall not
unreasonably be withheld.
2.16 "Party" shall mean Affymetrix or Eos. "Parties" shall mean Affymetrix
and Eos.
2.17 "Physical Defects" shall mean defects resulting from the manufacture or
handling of Probe Arrays by Affymetrix prior to shipment, such that
such defects are the cause of impaired hybridization of a significant
number of probe pairs leading to aberrant probe set data for a
significant number of Genes. Such determination must be made pursuant
to Affymetrix' then current GeneChip expression assay protocols.
2.18 "Probe Array" shall mean a solid support having an array of
polynucleotides with known
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location and sequence fabricated by Affymetrix pursuant to this
Agreement for use in expression analysis.
2.19 "Probe Selection Methods" shall refer to any methods developed by Eos
for the selection of probes for Custom Probe Array designs.
2.20 "Proprietary Probe Arrays" shall refer to Probe Arrays which contain
substantial proprietary genetic information of a third party for which
incremental fees are due by Affymetrix to such third party associated
with the use of such proprietary genetic information.
2.21 "Services" shall mean the collection and provision for consideration of
information derived from a Probe Array to a single third party.
2.22 "System(s)" shall mean fluidics station(s), work station(s), probe
array reader(s), and associated software, such software licensed to
Eos, and such fluidics station(s) and probe array reader(s) sold to
Eos.
2.23 "Term" shall mean the period beginning on the Effective Date and ending
[***] years from the Effective Date, unless extended by mutual written
agreement of the parties or unless i) Eos elects to participate in the
Affymetrix GOLD EasyAccess Program in which case the Term shall end
[***] years from the Effective Date, or ii) the Agreement is extended
pursuant to Section 10.4. "Initial Term" shall refer to the initial
[***] portion of the Term. "Extended Term" shall refer to the potential
extension of the Term by [***] years pursuant to Section 10.4. For any
extension of the Term, the applicable maximum number of Datapoints in a
Demonstration Database shall be negotiated by the Parties in good
faith.
3 PROBE ARRAY SUPPLY
3.1 Beginning on the Effective Date, Affymetrix will deliver such
quantities of the appropriate Probe Arrays as specified in a properly
rendered purchase order and forecast made by Eos in
its sole discretion pursuant to Section 3.4, or, for the first [***]
of the Term, according to a purchase order and forecast previously
supplied by Eos and attached as Exhibit A. Affymetrix will replace
Probe Arrays that have Physical Defects.
3.2 Affymetrix shall not be obligated to provide more than [***] probe
arrays in any one month during the term hereof, but will use
commercially reasonable efforts to do so if requested by Eos.
3.3 Beginning on the Effective Date and on the first business day of each
month during the Term of this Agreement, Eos will provide a reasonable,
good faith forecast of Probe Arrays to be supplied by Affymetrix to Eos
and its Affiliates during the following [***] period or the period
until the end of the Term if less than [***] (such forecasts to be
supplied by number of Probe Arrays and part number). The forecast will
be provided according to a mechanism and on forms to be agreed upon in
good faith by the Parties. The first and second month of such forecast
(part number and individual quantity) shall constitute a firm order.
The subsequent months of such forecast will be for capacity planning
purposes only, and shall not constitute a firm commitment. Delivery
times for all products ordered hereunder will be quoted at the time
Affymetrix receives a firm order for such products. If the number of
ordered Probe Arrays forecast for a month increases by more than
[***]from the
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immediately preceding firm average monthly forecast for the trailing
three month period, then the number of such Probe Arrays above the
[***] increase shall be supplied in a reasonable time, but shall not be
subject to penalty or breach on account of late supply thereof.
3.4 Probe Arrays will be packed in Affymetrix' standard shipping packages
and shipped to the address specified by Eos. Deliveries will be
F.O.B. Affymetrix' facility or the facility of its sales
representative. Affymetrix will ship via a carrier selected by Eos
or, if none is specified by Eos, Affymetrix will select the carrier.
Title and risk of loss or damage for deliveries will pass to Eos
upon Affymetrix' actual delivery of the Probe Arrays to the carrier
for shipment to Eos. Eos will pay all shipping costs, duties, and
sales taxes. Eos will advise Affymetrix if insurance is desired on
any shipments of Probe Arrays, and will reimburse Affymetrix for all
such insurance charges.
3.5 As a participant in the SILVER or GOLD programs Eos is entitled to
purchase standard custom Probe Array design services from Affymetrix at
substantially reduced prices per design as follows (depending upon
which program is in effect, SILVER or GOLD, the reader of this
Agreement should look only at the appropriate parts of any sections
containing items preceded by "SILVER: or GOLD:"):
SILVER: [***] per custom design.
GOLD: [***] per custom design.
This pricing currently permits specifications for arrays of up to [***]
probes per Probe Array, up to [***] bases, and up to [***] synthesis
steps ("Custom Probe Array(s)"). Custom Probe Arrays are currently
available in the following formats and lot sizes:
---------------------------------------------------------
FORMAT ARRAYS/WAFER MINIMUM ORDER
---------------------------------------------------------
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
All Custom Probe Arrays must be ordered and purchased in whole lot
increments which may change periodically upon reasonable notice from
Affymetrix. Pricing for Custom Probe Arrays is pursuant to Exhibit B
attached hereto. Additional specifications are available in the
Affymetrix Custom Probe Array Design Guide available from Affymetrix.
Custom Probe Array designs not within the above parameters or those set
forth in the Custom Probe Array Design Guide will be considered upon
request, however, the delivery times indicated below shall not apply to
such Custom Probe Array designs. When ordering Custom Probe Arrays, Eos
will identify probe sequences for each Custom Probe Array as set forth
in the Custom Probe Array Design Guide published as of the Effective
Date, which may be updated periodically by Affymetrix with reasonable
notice to Eos, or as agreed upon between the parties. If the
information received by Affymetrix is incomplete, Affymetrix will
advise Eos of any additional needed information. Upon confirmed receipt
of complete probe sequences and related information for each Custom
Probe Array design:
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SILVER: Affymetrix will use reasonable efforts to design, lay out,
produce masks and manufacture Custom Probe Arrays for the Target
Sequences according to the schedule quoted to Eos at the time they
order such Custom Probe Array Design but in any event Affymetrix shall
complete such work within not more than [***] business days; or
GOLD: Affymetrix will use commercially reasonable efforts to design,
lay out, produce masks, and manufacture quarterly at least one Lot
each of up to two Custom Probe Array designs within the following
times from Affymetrix' confirmed receipt of complete probe sequence
information from Eos: (i) within [***] business days for up to [***]
custom designs in a single calendar quarter; and (ii) for more than
[***] custom designs in a single calendar quarter, according to the
schedule quoted to Eos at the time they order such Custom Probe
Array designs. In the event Eos orders more than one custom design,
Affymetrix reserves the right to provide the initial Lots of Custom
Probe Arrays for each such design at separate times, at Affymetrix'
sole discretion, subject to the maximum time periods described in
the previous sentence; in such case, the manufacturing priority of
the concurrently ordered initial Lots may be determined by Eos on a
prioritized list at the time orders for the designs are placed or,
if no such list is submitted, at Affymetrix' discretion. In no event
shall Affymetrix be obligated to supply more than [***] Custom Probe
Array designs per year. Delivery times for all additional Lots of
Custom Probe Arrays ordered pursuant to this Agreement will be
quoted at the time Affymetrix receives a firm order for such
products. The term "Target Sequences" refers to a set of Gene
sequences for which Eos will have Affymetrix make Custom Probe
Arrays pursuant to this Agreement. Eos shall be fully responsible
for the Target Sequences, and, except to the extent arising from
Affymetrix' commercialization of a particular Custom Probe Array
design, [***].
3.6 Eos may not: 1) transfer the Probe Arrays provided by Affymetrix
pursuant to this Agreement to third parties other than (i) Affiliates,
(ii) [***] under the terms set forth in the letter attached hereto as
Exhibit D, or (iii) to other Not-for-Profit Sample Providers; or 2)
transfer data generated therewith to any third party other than i)
Affiliates, ii) Bona Fide Collaborators or iii) subscribers to a
Database who agree to limit further distribution of the data to other
third parties consistent with the terms contained in Exhibit C; or 3)
provide services to any third party, other than to Affiliates, using
the Probe Arrays provided by Affymetrix pursuant to the Agreement
except as to those Probe Arrays where i) the service recipient agrees
to limit further distribution of the data to other third parties
consistent with the terms contained in Exhibit C, and ii) the fee for
Probe Arrays used in Services is paid pursuant to Section 5.3; or 4)
allow any third party to use the Probe Arrays supplied by Affymetrix to
Eos under this Agreement except pursuant to subsection 1) above; or 5)
reverse engineer the Probe Arrays or Systems; or 6) reuse the Probe
Arrays; or 7) use the Probe Arrays in diagnostic or other settings
requiring FDA or other regulatory agency approval unless Eos obtains
such approval and such Probe Arrays are to be used in a clinical trial
(and such Probe Arrays are not for microbial or pathogenic organisms).
Eos will allow Affymetrix reasonable, periodic (but not more often than
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quarterly) access to the Systems during regular business hours and with
advance written notice to ensure compliance with the prohibition
against reuse.
3.7 All Databases transferred to a third party by Eos pursuant to this
Agreement must be GATC Compliant and shall be subject to the terms
contained in Exhibit C. Eos will bear its internal costs of GATC
compliance.
3.8 Eos may not sell, market or license the Databases through a distributor
or agent unless such distributor or agent is approved in advance in
writing by Affymetrix.
3.9 Eos may, in its sole discretion, elect to engage Affymetrix as a
co-promoter of the Databases generated hereunder. If Eos makes such an
election, and if Affymetrix agrees to such co-promotion, the parties
will negotiate a commercially reasonable co-promotion agreement.
3.10 Eos agrees to use Affymetrix' GeneChip logo on all advertising
(including web advertising) and trade show displays related to
Databases and/or Services, unless such use is terminated pursuant to
the last sentence of this Section 3.10. All advertising and trade show
displays based on Affymetrix products and written public statements
regarding Affymetrix and Affymetrix products will be approved in
advance in writing by Affymetrix. Eos acknowledges the ownership and
renown of all trademarks, logos and tradenames ("Marks") used by
Affymetrix prior to this agreement. Eos will maintain a high quality
standard in connection with products and services promoted in
connection with Affymetrix' Marks. Eos hereby authorizes Affymetrix to
use Eos' name and trademarks for the purpose of promoting Affymetrix'
products and services, but Affymetrix may not do so without Eos' prior
written consent. If, in each party's sole discretion, the other party's
use of the first party's Marks does not meet the first party's usage
policy, the first party may, at its option, terminate the other party's
use of the first party's Marks.
4 AFFYMETRIX PROPRIETARY RIGHTS
4.1 GOLD: Until the end of the Term, [***]. This paragraph shall not confer
on Eos or any third party any rights under the patent rights of
Affymetrix.
5 COMPENSATION
5.1 In exchange for preferential access and pricing of Custom Array design
services, database and other licenses, technology access, services and
other support available to Eos under the SILVER program, Eos shall pay
Affymetrix a fee of $[***] per year ("Silver Access Fee") due on the
Effective Date and on the anniversary of the Effective Date for each
contract year throughout the Term (and any Extended Term). Eos shall
have the option
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during [***] to upgrade to the GOLD EasyAccess program and apply the
Silver Access Fee paid to Affymetrix to the GOLD Access Fee for the
remainder of the current contract year. GOLD: If Eos chooses to upgrade
its package to GOLD, Eos shall pay Affymetrix a fee of $[***] ("Gold
Access Fee") per year beginning on the date Eos elects in writing to
begin the GOLD program ("GOLD Start Date") on the following payment
schedule: $[***] due on GOLD Start Date and $[***] at the end of every
[***] month period thereafter throughout the remainder of the Term or
Extended Term after the GOLD Start Date (and any Extended Term). If Eos
chooses to upgrade its package to GOLD within [***] months of the
Effective Date, the remaining pro-rata portion of the Silver Access Fee
paid under the SILVER package shall be applied to the first Gold Access
Fee payment due after the GOLD Start Date.
5.2 For each standard expression Probe Array and Custom Expression Probe
Array (excluding those Probe Arrays for use in Services) delivered to
Eos or its Affiliates that meet the Fabrication Verification Criteria,
Eos will pay: SILVER:
(i) Arrays for Database generation: Eos will pay [***] of
Affymetrix' current published regional list prices, which may
be updated periodically, for (i) standard Probe Arrays that
Affymetrix makes generally available to the public (excluding
Test Arrays and those Probe Arrays for use in Services),
provided that Eos will be responsible for the full amount of
any royalties due to third parties for "branded" probe arrays
that are based on such third party's proprietary genetic
sequences and (ii) Custom Probe Arrays, excluding those
Custom Probe Arrays for use in Services. The list prices for
Custom Probe Arrays shall be pursuant to Exhibit B. In no
event shall the foregoing pricing reduce the price of any
expression probe array to less than $[***] per array
("Database Array Price").
(ii) Arrays for Expression Research: Eos will pay [***] of
Affymetrix' current published regional list prices, which may
be updated periodically, for (i) standard Probe Arrays that
Affymetrix makes generally available to the public (excluding
Test Arrays and those Probe Arrays for use in Services),
provided that Eos will be responsible for the full amount of
any royalties due to third parties for "branded" probe arrays
that are based on such third party's proprietary genetic
sequences; and (ii) Custom Probe Arrays, excluding those
Custom Probe Arrays for use in Services. The list prices for
Custom Probe Arrays shall be pursuant to Exhibit B. In no
event shall the foregoing pricing reduce the price of any
expression probe array to less than $[***] per array.
The above notwithstanding, during each contract year, after
Eos purchases a total of [***] Probe Arrays and Custom Probe
Arrays, excluding Test arrays and Probe arrays priced below
$[***] per array, for use in Database generation and
Expression Research, the price for arrays used in Expression
Research for the remainder of such
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contract year shall be:
(a) $[***] for Probe Arrays that Affymetrix makes
generally available to the public
(b) the greater of [***] of list price or $[***] for
Custom Probe Arrays
("Expression Research Array Price").
All Eos purchase orders shall state the use of Probe Arrays
ordered: Database, Expression Research, or Services.
(iii) Eos shall purchase all Probe Arrays and Custom Probe
Arrays at the Database Array Price, Eos may submit to
Affymetrix on a quarterly basis a completed, signed Request
For Credit Form, attached hereto as Exhibit F, resulting from
Probe Arrays and Custom Probe Arrays used during the previous
quarter for Expression Research that were purchased at the
Database Array Price. Such credit shall be calculated as
follows:
[***]
Such credit shall be (i) requested within [***] days after the
last day of each calendar quarter for the previous quarter's
purchases, (ii) applicable only toward future purchases of
Probe Arrays or Custom Probe Arrays and (iii) applied to no
greater than [***] of the total array cost on any single
order.
GOLD: a fixed fee of the greater of: [***] of Affymetrix' then-current
regional list price as published in its catalog, which may be updated
from time to time; or, $[***] (current list prices for Custom Probe
Arrays are stated in Exhibit B attached hereto, excluding those Custom
Probe Arrays for use in Services), provided that Eos will be
responsible for the full amount of any royalties due to third parties
for "branded" probe arrays that are based on such third party's
proprietary genetic sequences.
5.3 For each Probe Array to be used in Services delivered to Eos or its
Affiliates that meets the Fabrication Verification Criteria, Eos shall
pay [***] of Affymetrix' then current local (relative to the country in
which the data from such Service is to be utilized) list price as
published in its catalog or, if applicable, the price then available to
that particular third party recipient of such Services (if lower). As
to third parties who benefit from such lower prices, such third party
shall place a purchase order directly with Affymetrix for probe arrays
to be shipped directly to Eos and used in Services and will be invoiced
directly by Affymetrix. Eos may not provide services to any third
party, other than to Affiliates, using the Custom Probe Arrays provided
by Affymetrix hereunder except as to those Custom Probe Arrays where i)
the service recipient [***], ii) the
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[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
service recipient agrees to limit further distribution of the data to
other third parties consistent with Affymetrix' normal Expression Probe
Array use rights attached hereto as Exhibit C, and iii) the fee for
Custom Probe Arrays used in Services is paid as set forth herein.
5.4 Notwithstanding the foregoing or any provision to the contrary in this
Agreement, Eos will be responsible for the full amount of any and all
royalties due to third parties for proprietary Probe Arrays supplied to
Eos hereunder, and the Probe Array fees and Database royalties
described in this Agreement shall be exclusive of any such royalty.
5.5 At the time and in the manner hereinafter provided, Eos shall pay to
Affymetrix a royalty of [***] of Net Sales for each transfer, sale,
use, license, lease or other disposition of a Database to a third
party; provided, however, that with respect to each such license, the
minimum royalty payable for each successive [***]-month period
commencing with the inception of such license shall be calculated
according to the following schedule:
-----------------------------------------------------------------------
For Sale of Databases Comprised of *
-----------------------------------------------------------------------
--------------------------------- ------- ------------------------------ ----------------------------------
More Than But No More Than Minimum Annual Royalty
--------------------------------- ------- ------------------------------ ----------------------------------
[***]Datapoints The then applicable maximum $[***]
number of Datapoints for a
Demonstration Database but
not fewer than [***]
--------------------------------- ------- ------------------------------ ----------------------------------
The then applicable maximum [***] Datapoints $[***]
number of Datapoints for a
Demonstration Database but not
fewer than [***]
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints [***] Datapoints $[***]
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints [***] Datapoints $[***]
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints [***] Datapoints $[***]
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints [***] Datapoints $[***]
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints [***] Datapoints $[***]
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints [***] Datapoints $[***]
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
--------------------------------- ------- ------------------------------ ----------------------------------
[***] Datapoints For Databases comprised of
more than [***], the Parties
shall negotiate in good faith
a minimum annual royalty.
--------------------------------- ------- ------------------------------ ----------------------------------
*For purposes of calculating the minimum annual royalty, the size of
the Database will be measured by the number of Datapoints. [***].
5.6 Except as to Database royalty payments, all amounts referred to in this
Section 5 will be invoiced by Affymetrix when due. Royalty payments
will be due as specified in Section 5.7. All Probe Arrays will be
deemed accepted unless they are returned to Affymetrix within [***] of
delivery to Eos, with written explanation of the basis on which such
Probe Arrays have been returned on Affymetrix' standard "Return
Materials Authorization" according to the procedures provided for in
such Return Materials Authorization. All payments will be made to
Affymetrix within thirty (30) days from the date of invoicing by
Affymetrix. Late payments shall bear interest at the rate of 1.5% per
month. All payments in this Agreement will be made in the form of a
check or wire transfer to Affymetrix in U.S. Dollars.
5.7 Eos shall deliver to Affymetrix, within [***] days after the end of
each calendar quarter, a written report showing its computation of
payments due under Section 5 of this Agreement, including any Net
Sales of licenses of Databases by Eos or its Affiliates during such
calendar quarter. All Net Sales shall be segmented in each such
report according to licenses by Eos and each Affiliate on a country
by country basis, including the names and terms extended to the
licensee and the rates of exchange used to convert such royalties to
U.S. Dollars from the currency in which the licenses were made. For
the purposes of this Agreement, the rates of exchange to be used for
converting royalties to U.S. Dollars shall be the average of those
published for the purchase of U.S. Dollars in the Wall Street
Journal during the calendar quarter for which payment is due.
Simultaneously with the delivery of each such report, Eos shall
tender payment in U.S. Dollars of all royalties shown to be due
therein. Where royalties are due for licenses of Databases in a
country where, by reason of currency regulations it is impossible or
illegal for Eos or its Affiliates to transfer royalty payments to
Affymetrix, such royalties shall be deposited in whatever currency
is allowable in a bank in that country that is reasonably acceptable
to Affymetrix. Any and all income or similar taxes imposed or levied
on account of the receipt of royalties payable under this Agreement
which are required to be withheld by Eos shall be paid by Eos on
behalf of Affymetrix and shall be paid to the proper taxing
authority. Proof of payment shall be secured and sent to Affymetrix
as evidence of such payment in such form as required by the tax
authorities having jurisdiction over Eos or its Affiliates. Such
taxes shall be deducted from the royalty that would otherwise be
remitted by Eos or its Affiliates.
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[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
5.8 Systems and other software, if any, may be acquired/licensed by Eos and
its Affiliates at Affymetrix' regional list prices and under otherwise
standard terms.
5.9 Eos may purchase LIMS and EDMT software as follows:
SILVER [***] of Affymetrix' then current regional list prices as
published in its catalog; or
GOLD: [***] of Affymetrix' then current regional list prices as
published in its catalog.
5.10 GOLD: Affymetrix will provide early access to new product releases to
Eos in a manner consistent with its Easy Access "Gold" customers.
5.11 Following Eos' request, Affymetrix agrees to supply to Eos during the
Term Custom Probe Arrays to be used by Eos in generating Databases or
providing Services.
5.12 Eos may only provide services hereunder to its customers located in the
United States and Europe.
6 INTELLECTUAL PROPERTY
6.1 Subject to Section 6.2 below, any invention made during the course of
and as part of this Agreement shall be owned according to inventorship
of the relevant applications, provided that [***].
6.2 [***]. It is specifically understood that limited and recoverable
disclosures of Confidential Information shall not constitute failure to
maintain information as a trade secret pursuant to this Section 6.2.
6.3 EOS agrees to negotiate in good faith with Affymetrix for at least a
non-exclusive license with commercially reasonable terms and conditions
solely in the probe array field of use under all Eos owned inventions
that are directed to particular genetic sequences or their uses that
were discovered through use of the Probe Arrays. Such license will be
negotiated to include commercially reasonable royalty payments, and
need only be provided if legally licensable at the time the invention
is made. Eos need not disclose such inventions to Affymetrix until such
time as corresponding patents are published disclosing such
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
inventions.
6.4 Eos will reasonably provide recognition of Affymetrix by way of display
of its trademarks in its database products generated pursuant to this
Agreement. Affymetrix grants Eos a non-exclusive right to use its
trademarks subject to written approval of Affymetrix on such products.
Eos will allow Affymetrix reasonable review of the use of such
trademarks.
6.5 [***].
7 CONFIDENTIALITY
7.1 During the term of this Agreement and for five (5) years thereafter
each Party shall maintain the Confidential Information of the other
Party in confidence (including the terms of this Agreement), and shall
not disclose, divulge, or otherwise communicate such Confidential
Information of the other, or use it for any purpose, except as
permitted or contemplated by this Agreement, and in order to carry out
the terms and objectives of this Agreement. The Parties will use
reasonable precautions to prevent and restrain the unauthorized
disclosure of such Confidential Information of the other Party and will
protect such other party's confidential information with procedures at
least as rigorous as those the receiving party applies to its own
confidential information. The provisions of this paragraph shall not
apply to Confidential Information that :
7.1.1 was known or used by the receiving Party or its Affiliates without any
restriction on disclosure, prior to its date of disclosure to the
receiving Party, as evidenced by the prior written records of the
receiving Party or its Affiliates; or
7.1.2 either before or after the date of the disclosure to the receiving
Party is lawfully disclosed without restriction on disclosure to the
receiving Party or its Affiliates by an independent, unaffiliated third
party rightfully in possession of the Confidential Information,
provided that if such Confidential Information is provided to the
receiving Party by a third party rightfully in possession of the
Confidential Information, but with restrictions on disclosure, the
receiving Party may use such Confidential Information in accordance
with such restrictions of the third party;
7.1.3 either before or after the date of the disclosure to the receiving
Party such Confidential Information becomes published or generally
known to the public through no fault or omission of the receiving Party
or its Affiliates;
7.1.4 is required to be disclosed by the receiving Party or its Affiliates to
comply with applicable laws, to comply with a court order, or to comply
with governmental regulations, provided that the receiving Party
provides prior written notice of such disclosure to the other Party and
takes reasonable and lawful actions to avoid and/or minimize the degree
of such disclosure;
7.1.5 is independently developed by the receiving Party or its Affiliates
without reference to the
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[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
Confidential Information.
7.1.6 Eos may not publish the results of use of the Probe Arrays without
providing reasonable advance notice to Affymetrix. In no event shall
Eos publish Affymetrix' Confidential Information (including without
limitation Chip Improvement Inventions) without prior written approval
of Affymetrix.
8 WARRANTY
8.1 Both Parties to this Agreement represent and warrant that they have the
full right and authority to enter into and perform this Agreement.
8.2 Affymetrix warrants that the Probe Arrays delivered hereunder do not
incorporate the trade secret or copyright rights of a third party.
Affymetrix DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES RELATING TO INTELLECTUAL PROPERTY, MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE. Affymetrix shall have no liability
under any theory of strict liability, negligence, whether active or
passive, or products liability. Affymetrix' entire liability shall
in no event exceed the compensation hereunder. Affymetrix shall have
no liability for any indirect, consequential, incidental, or special
damages. Eos understands that the risks of loss herein are reflected
in the price of the Probe Arrays and database fees and that the
terms would have been different if there had been a different
allocation of risk.
9 INDEMNITY
9.1 Affymetrix will settle or defend any suit or proceeding brought against
Eos and its Affiliates to the extent based on a claim that the [***]
infringe [***]in [***]. Affymetrix will settle or defend any suit or
proceeding brought against Eos to the extent based on a claim that the
Probe Arrays delivered hereunder [***] infringe [***] in [***] if a)
[***], and b) [***]. Affymetrix shall have no liability under this
paragraph to the extent that the alleged infringement arises out of any
addition or modification to the Probe Arrays or their use by Eos not
specified by Affymetrix, or Eos' combination of the Probe Arrays with
other devices not specified by Affymetrix ("Non-Covered Claims)."
9.2 Eos will settle or defend any suit or proceeding based on [***] in
[***] brought against Affymetrix for Non-Covered Claims.
9.3 The indemnifying Party shall pay all damages and costs finally awarded
against the
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[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
indemnified Party for such infringement. For the indemnification
obligations of this Section 9 to apply the indemnified Party must
provide the indemnifying Party with reasonable notice of any
claim or suit being made or brought, and give the indemnifying Party
the full authority, information, and assistance necessary to settle or
defend such suit or proceeding. The indemnifying Party shall not be
bound in any manner by any settlement made without its prior written
consent. Each party's liability hereunder shall be limited to [***] .
In the event that the Probe Arrays are held to infringe and their use
is enjoined as a result of infringement for which it has indemnified
Eos, Affymetrix may obtain for Eos the right to continue using such
Probe Arrays, modify them to become non-infringing, or grant Eos a
credit for the cost of unused Probe Arrays and the appropriate pro rata
amount of the paid SILVER or GOLD access fee, and accept the return of
unused Probe Arrays. This paragraph states the entire liability for
infringement of intellectual property rights and is in lieu of all
other warranties, express or implied except as stated in Section 8.
10 TERM, TERMINATION AND EFFECT OF TERMINATION
10.1 This Agreement shall extend until the end of the Term unless terminated
earlier by a Party pursuant to the provisions of this Section 10.
10.2 Either Party may terminate this Agreement for cause by written notice
if the other Party (or its Affiliate) materially breaches any
material provision of this Agreement and fails to substantially cure
such breach within thirty (30) days of written notice describing the
breach and the intent of the notifying Party to terminate the
Agreement in the event such breach is not substantially cured.
10.3 Eos may terminate the Database or Services portions of this Agreement
in the event that Eos determines in its sole discretion that Eos no
longer wishes to engage in the Database or Services Business. Such
termination may be effected by Eos providing sixty (60) days prior
written notice to Affymetrix. If Eos elects to terminate under this
Section 10.3, Eos' obligation to pay royalties for a Database (other
than the obligation to pay a minimum annual royalty pursuant to Section
5.5 above, which shall not survive) shall survive termination of this
Agreement and persist as long as any third party retains an active
subscription to such Database.
10.4 GOLD: Eos may extend the Term by [***] years by providing written
notice to Affymetrix no later than [***] before the end of the Initial
Term. If so extended for [***] years, Affymetrix will negotiate in good
faith for an additional extension of the Term of the Agreement under
similar terms for an additional [***] years (for a potential Term of up
to [***] years), provided that Eos must provide at least [***] written
notice before the end of the initial Extended Term of its desire to
negotiate in good faith for such extension.
10.5 Upon termination of this Agreement due to expiration of the Term, Eos
may continue to use the Probe Arrays previously purchased by Eos within
their specified shelf life and subject to the warranty and return
provisions provided in this Agreement.
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[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
10.6 Eos understands that no license is conveyed or implied for use of the
Systems herein for probe arrays other than those manufactured or
licensed by Affymetrix.
10.7 Upon termination of this Agreement, the following provisions will
survive: 2, 3.6, 3.8, 3.9, 5.2*, 5.3*, 5.4, 5.5**, 5.6, 5.7, 6, 8, 9,
10.5, 10.6, 10.7, and 11.1 to 11.17. (*To the extent obligations are
accrued prior to the termination date.) (**Eos' obligation to pay
royalties for a Database shall survive termination of this Agreement
and persist as long as any third party retains an active subscription
to such Database.)
11 MISCELLANEOUS
11.1 Eos shall keep, and shall cause its Affiliates to keep, for a period of
at least three (3) years from the date all fees and royalties payable
hereunder are due full, accurate, and true books of accounts and other
records containing all information and data which may be reasonably
necessary to ascertain and verify i) the fees and royalties payable
hereunder and, ii) if relevant pursuant to Section 5.2(ii) above, the
quantities of Probe Arrays and Custom Probe Arrays used for Database
generation and Expression Research and iii) the quantities of Probe
Arrays and Custom Probe Arrays used for Database generation and
Services. During the Term and any Extended Term of this Agreement and
for a period of [***] following the time at which the relevant fee or
payment is due, Affymetrix shall have the right from time to time (not
to exceed once during a calendar year) to inspect in confidence, or
have an agent, accountant, or representative inspect in confidence such
books, records, and supporting data.
In the event an audit reveals a discrepancy greater than [***] in the
relevant period, Eos will pay any audit fees.
11.2 EOS UNDERSTANDS THAT THE PROBE ARRAYS DELIVERED HEREUNDER ARE NOT FDA
APPROVED. EOS AGREES NOT TO USE THE PROBE ARRAYS DELIVERED HEREUNDER IN
ANY CLINICAL OR OTHER SETTING REQUIRING FDA REVIEW OR APPROVAL EXCEPT
THAT EOS MAY USE THE PROBE ARRAYS IN CLINICAL TRIALS WHEN IT OBTAINS
ALL REQUIRED FDA OR OTHER REGULATORY APPROVALS REQUIRED FOR USE IN SUCH
TRIALS. EOS WILL INDEMNIFY AFFYMETRIX FOR ANY CLAIMS MADE BY A PATIENT
ARISING FROM THE USE OF THE PROBE ARRAYS. THE PROBE ARRAYS AND SYSTEMS
ARE NOT LICENSED UNDER ANY INTELLECTUAL PROPERTY RIGHTS OF AFFYMETRIX
EXCEPT AS SPECIFICALLY RECITED HEREIN.
11.3 Neither Party nor any of its Affiliates shall originate any news
relating to this Agreement without the prior written approval of the
other Party, which approval shall not be unreasonably withheld, or
except as otherwise required by law.
11.4 The parties seek mutually profitable arrangements and to such end will
endeavor to mutually support each other in public statements.
11.5 Affymetrix may assign any rights or obligations of this Agreement to a
third party that acquires all or substantially all of the relevant
assets of Affymetrix by merger or sale of assets or otherwise. Eos may
assign the rights or obligations of this Agreement relating
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[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
solely to purchase of Probe Arrays from Affymetrix for Expression
Research only to a third party that acquires all or substantially all
of the Eos' assets by merger or sale of assets or otherwise except
where the assignee is a company or an Affiliate of a company that is at
the time of assignment a party or an Affiliate of a party to litigation
with Affymetrix or its Affiliate, in which case Affymetrix may withhold
consent for any reason or no reason in Affymetrix' absolute sole
discretion. Eos may assign or transfer any Database distribution or
Services rights or any Database distribution or Services obligations of
this Agreement by merger or sale of assets or otherwise to a third
party or its Affiliates only with the prior written consent of
Affymetrix which must be obtained and will not be unreasonably
withheld, except where the assignee is a company or an Affiliate of a
company that has significant commercial sale or commercial
manufacturing of [***] or engages in significant research and
development activities toward commercial sale or commercial
manufacturing of [***] (including, without limitation, [***], or their
Affiliates, assigns or successors in interest) or is at the time of
assignment a party or an Affiliate of a party to litigation with
Affymetrix or its Affiliate, in which case Affymetrix may withhold
consent for any reason or no reason in Affymetrix' absolute sole
discretion.
11.6 In the event that Eos merges with, acquires or is acquired by any third
party such that demand for products hereunder more than [***] over the
previous calendar quarter, then the parties shall negotiate revised
pricing and terms that reflect such increased demand, and Affymetrix'
costs, if any, in providing products and support hereunder. If Eos
elects to participate in the Affymetrix GOLD EasyAccess Program and Eos
merges with or is acquired by a third party that also pays to
Affymetrix GOLD Database Fees, the parties agree that the aggregate
amount of GOLD Database Fees paid to Affymetrix by the combined entity
shall be as follows:
----------------------------------------------------------------
Quarter after merger or Percent of Eos' GOLD Database Fees
acquisition is completed paid to Affymetrix by the combined
entity
----------------------------------------------------------------
[***] [***]
----------------------------------------------------------------
[***] [***]
----------------------------------------------------------------
[***] [***]
----------------------------------------------------------------
[***] [***]
----------------------------------------------------------------
11.7 This Agreement shall be construed according to the laws of
California
without regard to conflict of law provisions.
11.8 In the event of any controversy or claim relating to, arising out of or
in any way connected
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
to any provision of this Agreement, the Parties shall seek to settle
their differences amicably between themselves.
11.9 The waiver by either Party of a breach or a default of any provision of
this Agreement by the other Party shall not be construed as a waiver of
any succeeding breach of the same or any other provision, nor shall any
delay or omission on the part of either Party to exercise or avail
itself of any right power or privilege that it has or may have
hereunder operate as a waiver of any right, power or privilege by such
Party.
11.10 This Agreement and the documents referred to herein are the full
understanding of the Parties with respect to the subject matter hereof
and supersede all prior understandings and writings relating to the
subject matter herein. No waiver alteration or modification of any of
the provisions herein shall be binding unless in writing and signed by
the Parties.
11.11 The headings in this Agreement are for convenience only and shall not
be considered in construing this Agreement.
11.12 In the event that any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable because it is invalid or in
conflict with any law of any relevant jurisdiction, the validity of the
remaining provisions shall not be affected, and the rights and
obligations of the Parties shall be construed and enforced as if the
Agreement did not contain the particular provision(s) held to be
unenforceable.
11.13 This Agreement shall be binding on and inure to the benefit of the
Parties and their successors and permitted assigns.
11.14 None of the provisions of this Agreement shall be for the benefit of or
enforceable by any third party.
11.15 Any notice required under this Agreement shall be made by overnight
mail or courier to the addresses below.
If to Eos:
Eos Biotechnology, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
If to Affymetrix:
Affymetrix, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
11.16 "Force Majeure" shall mean an Act of God, flood, fire, explosion,
earthquake, strike, lockout,
-19-
casualty or accident, war, civil commotion, act of public enemies,
blockage or embargo, or any injunction, law, order proclamation,
regulation, ordinance, demand or requirement of any government or any
subdivision, authority representative thereof, or the inability to
procure or use materials, labor, equipment, transportation or energy
sufficient to meet manufacturing needs without the necessity of
allocation, or any other cause whatsoever, whether similar or
dissimilar to those enumerated above, which is beyond the reasonable
control of such Party, which the party affected has used its reasonable
best efforts to avoid, and which prevent, restrict or interfere with
the performance by a Party of its obligations hereunder. The failure of
either Party to timely perform any obligation under this Agreement as a
direct result of a Force Majeure shall not be deemed a material breach
of this Agreement, provided the duration is not more than three months.
The Party affected by Force Majeure shall give notice to the other
Party promptly in writing and shall use commercially reasonable efforts
to overcome, avoid or remove such cause(s) of non-performance and shall
continue performance whenever such cause(s) is removed with all
possible speed. Nothing herein shall be deemed to require any Party to
settle on terms unsatisfactory to such Party with regard to any strike,
lockout or other labor difficulty, any investigation or proceeding by
any public authority or any litigation by any third party.
11.17 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their properly and duly authorized officers or representatives as set forth
below.
Affymetrix, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: President
-------------------------------------
Date: 8/17/01
--------------------------------------
Eos Biotechnology, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
Title: President and CEO
-------------------------------------
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Date: 8/17/01
--------------------------------------
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Exhibit A
Initial Forecast
-22-
Exhibit B
Current Custom Probe Array Pricing
[***]
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
Exhibit C
Expression Probe Array Use Rights for Service Recipients and
Database Subscribers
[***]
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
Exhibit D
Please See Attached Letter
from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., M.D., to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, dated June 23, 2000.
[***]
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SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
Exhibit E
Expression Array Rights for Not for Profit Sample Providers
"Chip Improvement Inventions" shall mean all inventions conceived or reduced
to practice using Expression Probe Arrays that relate to (a) manufacturing,
layout and packaging of probe arrays; (b) assay techniques that may be used
in connection with probe array-type products (including techniques related to
nucleic acid extraction, amplification, labeling, dilution and other
processes); and (c) software analysis techniques relating to the extraction
of data from probe arrays and storing such data in a computer file or other
storage media. Chip Improvement Inventions shall not include expression data
or discoveries derived therefrom, targets identified through the use of the
Expression Probe Arrays or correlations between genetic sequences and
function.
"Expression Probe Array(s)" shall mean expression probe arrays for which
target sequences have been selected by AFX and/or by Eos.
1. Restricted Use Rights-Not-for-Profit Sample Provider may only use the
Expression Probe Arrays provided by EOS to identify the presence and/or
levels of expressed nucleic acid sequences in the course of Not-for-Profit
Sample Provider's collaboration with EOS. In addition, except to the extent
permitted by applicable law and solely for the purpose(s) contemplated by
such law, Not-for-Profit Sample Provider agrees not to (a) transfer an
Expression Probe Array to any third party; (b) provide services to or on
behalf of any third party that relate to an Expression Probe Array; (c)
distribute, transfer, license or otherwise make available to a third party
any data or database that is obtained from the use of an Expression Probe
Array; (d) use an Expression Probe Array or data therefrom in a clinical
diagnostic setting where data from an identifiable individual's sample is
given to such individual or their caregiver; (e) reverse engineer, adapt or
modify an Expression Probe Array; or (f) use or allow anyone to use an
Expression Probe Array more than once. Not-for-Profit Sample Provider agrees
that this agreement benefits and is enforceable by AFX. In the event of any
ambiguity in applying this Section 1, the burden shall be on Not-for-Profit
Sample Provider to reasonably demonstrate compliance with the terms herein.
2. Intellectual Property-Except to the extent prohibited by applicable law,
in which case Not-for-Profit Sample Provider shall grant to AFX the license
to Chip Improvement Inventions permitted by law, Not-for-Profit Sample
Provider hereby assigns to AFX all Chip Improvement Inventions and agrees to
promptly report all Chip Improvement Inventions to AFX.
-26-
Exhibit F
Request For Credit Form for Probe Arrays and Custom Probe Arrays
QUARTER BEGIN DATE:__________________
A. ARRAY PART# ____________ _____________ _____________
B. # ARRAYS USED FOR EXPRESSION RESEARCH ____________ _____________ _____________
C. PRICE PAID ____________ _____________ _____________
D. EXPRESSION RESEARCH ARRAY PRICE ____________ _____________ _____________
E. NET PRICE DIFFERENCE ____________ _____________ _____________
F. CREDIT (E X B) ____________ _____________ _____________
G. TOTAL CREDIT ____________ _____________ _____________
THIS CREDIT SHALL BE APPLICABLE ONLY TOWARD FUTURE PURCHASES OF PROBE ARRAYS
OR CUSTOM PROBE ARRAYS AND SHALL NOT BE APPLIED TO GREATER THAN 50% OF THE
TOTAL ARRAY COST ON ANY SINGLE ORDER.
___________________
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___________________
DATE
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