Exhibit 10.22
Product Development and Supply Agreement
N-Mer, Inc.
and
Affymetrix, Inc.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
AGREEMENT
This agreement ("Agreement"), dated as of October 24, 2001, between
Affymetrix, Inc. ("Affymetrix") a Delaware corporation having its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
N-Mer, Inc. ("N-Mer") a Delaware corporation having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, Affymetrix has research, development, and manufacturing
capabilities and facilities, and has developed certain rights relevant to DNA
probe array based technology.
WHEREAS, N-Mer has certain intellectual property rights, research and
development capabilities, and facilities to conduct research and development
activities for the N-Mer Field.
WHEREAS, Affymetrix and N-Mer desire to enter into an agreement whereby
Affymetrix will supply N-Mer with DNA probe arrays for use in the N-Mer Field.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement, Affymetrix and N-Mer agree as follows:
1 DEFINITIONS
1.1 "Affiliate" shall mean any corporation, company, partnership, joint
venture and/or firm which 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 clarity, an Affiliate shall retain rights pursuant to this
Agreement only for so long as such Affiliate remains an Affiliate of the
designated entity 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 of
at least eighty percent (80%) of the stock having the right to vote for
directors of such corporation or, in the case of partnerships, at least eighty
percent (80%) of the ownership interest in such partnership. In any case,
"control" shall require the right to direct day-to-day management and direction
of the entity. Notwithstanding the foregoing, if local law requires a minimum
percentage of local ownership, control will be established by direct or indirect
beneficial ownership of one hundred percent (100%) of the maximum ownership
percentage that may, under such local law, be owned by foreign interests. 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.
1.2 "Affymetrix Field" means Probe Array-based products for use in all
applications excluding uses wherein [***] on the array [***] provided that
within such Probe Array or set of Probe Arrays used to assay [***] and intended
to be used together, the collection of probes shall satisfy all of the following
criteria:
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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(1) All Non-Control Probes are designed based on a
specific reference sequence for the benefit of analyzing this
reference sequence or a related variant wherein the Informative
Probe Portion of each probe sequence is [***] of the Informative
Probe Length. At Hyseq's reasonable request, Hyseq may audit the
Affymetrix design process to ensure that only reference sequences
are used;
(2) Control probes on any array represent less than [***]%
of all probes on that array and all other probes are Non-Control
Probes; and
(3) Collectively the sequence of the Informative Probe
Portions of the probes of any [***] Informative Probe Lengths
comprise no more than [***]% of the set of all possible probes of
the [***] of the [***].
For example, without limiting the foregoing, the Parties agree that "Affymetrix
Field" includes products [***] and similar products and products derived
therefrom and the [***] products identified in Exhibit B attached hereto.
It is the intent of the Parties that the "Affymetrix Field" and "N-Mer Field"
are mutually exclusive.
1.3 "Affymetrix Work Plan Technology" shall mean the patents, patent
applications, trade secrets and other Information owned or controlled by
Affymetrix that is reasonably necessary or useful to perform the Parties'
obligations under the Work Plan.
1.4 "Affymetrix License Agreement" shall mean the License Agreement,
dated as of the date hereof, between Affymetrix and Callida Genomics, Inc.
1.5 "Bacterial Clinical Diagnostics" shall mean the use of Probe Arrays
in the determination of the species or drug resistance profile of a bacterial or
fungal organism where the results of the assay are reported to a caregiver or
his/her patient for use in a therapeutic decision for that patient.
1.6 "Confidential Information" means any and all non-public and
proprietary Information that is specifically designated as such and that is
disclosed by either Party to the other in any form in connection with this
Agreement and that, if orally disclosed, shall be reduced in writing and
delivered to the receiving Party within thirty (30) days of such disclosure.
1.7 "Control Probe" means a probe within the Probe Array that does not
provide information about the [***] in the sample and is solely to determine if
the array is [***], the sample is [***] the array, or the sample is [***].
1.8 "Custom Probe Arrays" shall refer to Probe Arrays the manufacture of
which requires the creation of one or more custom mask designs for particular
probe sequences identified by N-Mer pursuant to Sections 3.1 or 3.2,
specifically for and only for use in the N-Mer Field.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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1.9 "Effective Date" shall mean the Closing Date (as such term is
defined in the Preferred Stock Purchase Agreement, dated as of the date hereof,
among Affymetrix, N-Mer, Callida Genomics, Inc. and Hyseq, Inc.).
1.10 "Information" means any data, results, inventories, information,
know-how, processes, machines, trade secrets, techniques, methods, development,
material, or compositions of matter or other information of any type or kind.
1.11 "Informative Probe Portion" of a probe means that portion of a
probe sequence that is [***] within the Probe Array; the Informative Probe
Portion being characterized by an Informative Probe Length that is the number of
[***] in the sequence of that Probe. A [***] with a [***] counts as [***], e.g.
a [***] is [***] and counts as [***], a [***] counts as [***]. A [***] that
pairs with [***] counts as a [***] equal to the number of [***].
1.12 "N-Mer Field" means Probe Array-based products for use in all
applications, excluding the following: (a) uses wherein [***] probes in the
array is [***], and (b) Bacterial Clinical Diagnostics; provided that within
such Probe Array or set of Probe Arrays used to assay a target nucleic acid, the
collection of probes shall satisfy all of the following criteria:
(1) Each Non-Control Probe is designed without use of a
reference sequence [***], so that the collection of Non-Control
probes is designed to be able to analyze multiple unrelated
sequences, i.e. the algorithm that is used to design the probes
is independent of the sequence to be analyzed and does not
directly rely on any sequence or collection of sequences of [***]
to derive the probes. [***]; and
(2) Control probes represent less than [***]% of all
probes on any single array and all other probes are Non-Control
Probes.
It is the intent of the Parties that the "Affymetrix Field" and "N-Mer Field"
are mutually exclusive.
1.13 "N-Mer's Area Of Interest" shall mean the use of Probe Arrays and
related reagents, protocols, instrumentation and software supplied hereunder,
solely for use in and licensed for use only in the N-MER Field: a) as a research
tool for internal research and development of applications of, or assays
associated with, Probe Arrays supplied by Affymetrix HEREUNDER, b) pursuant to
the Product Solicitation Agreement, for the distribution or sale of Probe Arrays
supplied pursuant to this Agreement to end users for internal research purposes
or to generate databases for commercial license in accordance with Section 3.6,
or c) in the event that the Product Solicitation Agreement terminates, for the
distribution or sale of Probe Arrays supplied pursuant to this Agreement to end
users for internal research purposes or to generate databases for commercial
license in accordance with Section 3.6.
1.14 "Non-Control Probe" means a probe within the Probe Array that
provides information about the sequence of the target nucleic acid in the
sample.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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1.15 "Lot" shall refer to a specified minimum purchase quantity of Probe
Arrays for the particular wafer format of Probe Array specified by N-Mer, and
which will be identified by Affymetrix within [***] of submission of a design of
a Custom Probe Array by N-Mer; provided, however, that a Lot shall not be more
than (i) [***] Probe Arrays in a [***] Probe Array/wafer format for research and
development and (ii) [***] Probe Arrays in a [***] Probe Array/wafer format or
an equivalent proportional number of Probe Arrays in a different Probe
Array/wafer format for commercial purposes. The Project Coordination Committee
shall have a right at the commencement of a design for a Custom Probe Array,
[***] (provided that the Lot size for a particular Custom Probe Array already
purchased by N-Mer and accepted by Affymetrix pursuant to Section 3.3 below may
only be changed on [***] written notice to N-Mer), to request Affymetrix to vary
the size of a Lot upwards or downwards. Affymetrix will use [***] efforts to
accommodate such request provided such variance does not [***] the quality of
the Probe Arrays produced from such Lot and such variance does not [***]
Affymetrix manufacturing processes or cost structure.
1.16 "New Process Custom Probe Array" shall mean all Custom Probe Arrays
that are not Standard Custom Probe Arrays.
1.17 "Party" shall mean Affymetrix or N-Mer. "Parties" shall mean
Affymetrix and N-Mer.
1.18 "Probe Array" means a single Solid Support having affixed thereto
oligonucleotide, including nucleic acid, probes [***]; provided that [***] are
excluded.
1.19 "Product Solicitation Agreement" shall mean the agreement of that
name between Affymetrix and N-Mer of even date herewith.
1.20 "Project Coordination Committee" or "PCC" shall have the meaning
assigned to it in Section 6.1.
1.21 "Solid Support" means a nonporous planar surface of a solid
material; specifically excluded from the definition of solid support is [***].
1.22 "Standard Custom Probe Array" shall mean a Custom Probe Array where
the probe sequence at any given position is [***] and where such Custom Probe
Array is fabricated using the same equipment and process as Affymetrix then
standard probe arrays sold to [***] or more Third Parties.
1.23 "System(s)" shall mean fluidics station(s), work station(s), probe
array reader(s), and associated software, such software licensed to N-Mer, and
such fluidics station(s) and probe array reader(s) sold to N-Mer, only for use
with Probe Arrays sold hereunder.
1.24 "Term" shall mean the period beginning on the Effective Date and
ending upon dissolution of N-Mer. For purposes of this agreement, if Affymetrix
exercises the Option (as
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AMENDED.
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such term is defined in the Option Agreement, dated as of the date hereof, among
Affymetrix, N-Mer and Callida Genomics, Inc.) such exercise shall be deemed to
be a dissolution of N-Mer.
1.25 "Third Party" shall mean any person or entity other than
Affymetrix, N-Mer, or Affiliates of either.
1.26 "Work Plan" shall mean the plan set forth in Exhibit A, and as may
be amended from time to time in writing by agreement of the Project Coordination
Committee.
2 PRODUCT DEVELOPMENT PLAN
2.1 Performance of Work Plan. Affymetrix and N-Mer shall collaborate
together to develop technology and products as set forth in the Work Plan. N-Mer
shall bear all costs and expenses for the Parties' work required by the Work
Plan. The Parties shall use [***] efforts to perform their respective
obligations in compliance with the Work Plan, including, without limitation, the
schedules set forth therein. Affymetrix shall supply such services at [***]. The
Parties shall exchange Confidential Information as reasonably required to
perform the Work Plan, provided that a Party may disclose Confidential
Information of the other Party (i) solely to employees who need to know such
Confidential Information in order to perform their obligations under the Work
Plan and (ii) to consultants and/or advisors provided that such consultants and
advisors have signed confidentiality agreements at least as strict as the
confidentiality provisions in this Agreement and provided further that such
disclosure shall occur only with the prior written consent of the Party whose
Confidential Information is proposed to be disclosed, which consent shall not be
unreasonably denied, conditioned or delayed. Changes to the Work Plan shall be
subject to the mutual agreement of the Project Coordination Committee, [***].
2.2 License to Perform Work Plan. Affymetrix hereby grants N-Mer a
royalty-free, fully paid-up, worldwide, non-exclusive license, without the right
to grant sublicenses, under the Affymetrix Work Plan Technology, solely to
perform N-Mer's obligations under the Work Plan. For purposes of clarity, no
right of distribution or sale is provided under this Section 2.2.
2.3 License Under Affymetrix Work Plan Technology. Affymetrix hereby
grants to N-Mer a royalty-free, fully paid-up, worldwide, non-exclusive license,
without the right to grant sublicenses, under the Affymetrix Work Plan
Technology, solely as required in connection with the use (for development of
products to be sold under the Product Solicitation Agreement), manufacture, and
importation of [***] to be used solely in conjunction with Custom Probe Arrays
made by Affymetrix pursuant to this Agreement. Affymetrix hereby grants to N-Mer
a non-exclusive license (without the right to sublicense), under the Licensed
Patents (as such term is defined in the Affymetrix License Agreement), solely in
the N-Mer Field, and under the Patents-in-Interference (as such term is defined
in the Affymetrix License Agreement), in all fields, excluding Bacterial
Clinical Diagnostics, in each case on the same terms and subject to the same
conditions as the licenses to such Licensed Patents and Patents-in-Interference
granted by Affymetrix under the Affymetrix License Agreement, except that this
license shall be used solely in conjunction with Custom Probe Arrays made by
Affymetrix pursuant to this Agreement.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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2.4 Supply of Material and Services. Affymetrix shall supply N-Mer with
Custom Probe Arrays, chip design services, Systems and other reagents and
services as provided in the Work Plan that are necessary for N-Mer to perform
its obligations under the Work Plan. Such supply shall be pursuant to the terms
set forth in Section 3 below.
3 PROBE ARRAY SUPPLY
3.1 Standard Custom Probe Array Design. During the Term, N-Mer may
provide to Affymetrix probe sequences for Standard Custom Probe Arrays. Upon
Affymetrix' receipt of such probe sequences and such [***] related information,
Affymetrix shall use [***] efforts to design, lay out, and procure masks for
such Standard Custom Probe Arrays according to the schedule quoted to N-Mer at
the time N-Mer orders such Standard Custom Probe Arrays pursuant to Section 3.3;
provided, however, that such schedule will identify a time for completion that
is [***]. Affymetrix shall ▇▇▇▇ N-Mer for process development, design and layout
services for Standard Custom Probe Arrays at [***]. Affymetrix will make or
procure masks and ▇▇▇▇ N-Mer at a price equal to [***].
3.2 New Process Custom Probe Array Design. Affymetrix shall use [***]
efforts to develop processes to manufacture New Process Custom Probe Arrays
pursuant to the Work Plan. After Affymetrix determines [***] the feasibility of
the manufacture of New Process Custom Probe Arrays pursuant to the Work Plan,
N-Mer may identify probe sequences for New Process Custom Probe Arrays. Upon
Affymetrix' receipt of such probe sequences and such [***] related information,
Affymetrix shall use [***] efforts to design, lay out, and procure masks for New
Process Custom Probe Arrays according to the schedule quoted to N-Mer at the
time N-Mer orders such New Process Custom Probe Arrays pursuant to Section 3.3;
provided, however, that such schedule shall provide for time periods [***].
Affymetrix shall ▇▇▇▇ N-Mer for design and layout services for New Process
Custom Probe Arrays at [***]. Affymetrix will make or procure masks and ▇▇▇▇
N-Mer at a price equal to [***].
3.3 Custom Probe Array Supply.
3.3.1 General. N-Mer shall procure its requirements of Custom Probe
Arrays exclusively from Affymetrix; provided, however, that if
Affymetrix is unable to supply Custom Probe Arrays under the
terms and conditions of this Agreement, N-Mer shall have the
right to [***]; and, provided further, [***]. Affymetrix shall
use [***] efforts to deliver such quantities of the Custom Probe
Arrays specified in a forecast made pursuant to Section 3.4 and
in compliance with specifications [***] pursuant to the Work
Plan. N-Mer shall have the right to purchase Custom Probe Arrays
in any format size commercially available that is sold by
Affymetrix to [***] or more Third Parties at the time of such
purchase by N-Mer.
3.3.2 Standard Custom Probe Arrays. N-Mer shall have the right to order
its requirements of Standard Custom Probe Arrays from Affymetrix,
provided that in such orders N-Mer will identify probe sequences
for each Standard Custom Probe
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
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Array [***]. If the information received by Affymetrix does not
include such [***] information, Affymetrix will advise N-Mer of
any and all additional needed information. Affymetrix shall
deliver such Standard Custom Probe Arrays according to the
schedule quoted to N-Mer at the time N-Mer orders such Standard
Custom Probe Arrays; provided, however, that such schedule will
identify a time for completion that is [***]. Affymetrix shall
supply such Standard Custom Probe Arrays using standard quality
control procedures [***].
3.3.3 New Process Custom Probe Arrays. After Affymetrix determines
[***] the feasibility of the manufacture of New Process Custom
Probe Arrays pursuant to the Work Plan, N-Mer shall have the
right to order its requirements of New Process Custom Probe
Arrays from Affymetrix, provided that in such orders N-Mer will
identify probe sequences for each New Process Custom Probe Array
[***]. If the information received by Affymetrix does not include
such [***] information, Affymetrix will advise N-Mer of any and
all additional needed information. Affymetrix shall deliver such
New Process Custom Probe Arrays according to the schedule quoted
to N-Mer at the time N-Mer orders such Standard Custom Probe
Arrays; provided, however, that such schedule shall provide for
delivery periods [***]. Affymetrix shall evaluate and manufacture
New Process Custom Probe Arrays using quality control procedures
that are [***]. To the extent the Project Coordination Committee
agrees on additional quality control procedures applicable to New
Process Custom Probe Arrays, Affymetrix shall use [***] efforts
to comply with all such procedures.
3.3.4 Quantities; Manufacturing Capacity. In no event will Affymetrix
be obligated to provide more than [***] ([***] Probe Array/wafer
format equivalent) Standard Custom Probe Arrays in any [***]
period for research and development purposes, nor more than [***]
([***] Probe Array/wafer format equivalent) Standard Custom Probe
Arrays in any [***] period for distribution to Third Parties
unless mutually agreed to in writing. In no event will Affymetrix
be obligated to provide more than the number of New Process
Custom Probe Arrays that can be produced from the use of [***]
percent ([***]%) of the capacity of [***] dedicated manufacturing
line selected by Affymetrix in any [***] period for research and
development purposes and [***] percent ([***]%) of the capacity
of [***] dedicated manufacturing lines in any [***] period for
commercialization purposes. Notwithstanding the foregoing,
Affymetrix shall use [***] efforts to supply additional Custom
Probe Arrays to N-Mer provided that such incremental supply can
be accommodated within Affymetrix's then existing manufacturing
capacity and, provided further, that if Affymetrix can not
reasonably satisfy such incremental demand for Custom Probe
Arrays within its then existing manufacturing capacity taking
into account [***], then Affymetrix shall use [***] efforts to
expand capacity to supply such additional demand, provided that,
to the extent capital equipment cumulatively costing more than
[***] dollars ($[***]) is required by Affymetrix to provide for
supply of New Process Custom Probe
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Arrays, then: (i) Affymetrix shall so notify N-Mer in writing of
such requirements, including, without limitation, an itemized
list of each piece of such equipment, its intended use,
anticipated cost, and projected delivery date; (ii) upon N-Mer's
written request, Affymetrix shall procure such capital equipment
(the "N-Mer Equipment") under the terms and conditions identified
under item (i); and (iii) Affymetrix shall [***] Term (as
hereinafter defined) and N-Mer shall [***] for such N-Mer
Equipment [***] procuring such N-Mer Equipment. Unless otherwise
agreed by the Parties, the "[***] Term" for such N-Mer Equipment
shall be the later of (i) [***] from the procurement by
Affymetrix of such N-Mer Equipment or (ii) the last day of any
[***] period after the [***] period referred to in the preceding
clause during which such N-Mer Equipment is not utilized to
manufacture Custom Probe Arrays under this Agreement. All right,
title and interest in, to and under such N-Mer Equipment shall be
owned by [***]. Notwithstanding anything in this Agreement to the
contrary, N-Mer shall have no right to (i) [***] the N-Mer
Equipment for the manufacture of Probe Arrays, (ii) [***] the
N-Mer Equipment from [***] or (iii) enter the premises of
Affymetrix. Affymetrix shall [***] such N-Mer Equipment in a
[***]. During the [***] Term, Affymetrix shall use N-Mer
Equipment [***] to supply N-Mer with Custom Probe Arrays pursuant
to this Agreement; provided, however, that to the extent the
N-Mer Equipment has excess capacity, [***] such N-Mer Equipment
and consistent with generally accepted accounting principles.
3.4 Forecasts. Beginning on the Effective Date and on the [***] during
the Term of this Agreement, N-Mer will provide a [***] forecast of Custom Probe
Arrays to be supplied by Affymetrix during the following [***] period. The
forecast will be provided according to a mechanism and on forms [***]. The [***]
of each such forecast shall constitute a firm order for the Custom Probe Arrays
set forth in [***]; provided, however, that Custom Probe Arrays shall only be
purchased by N-Mer in whole Lot increments and in quantities subject to Section
3.3.4. The [***] of such forecast will be for capacity planning purposes only,
and shall not constitute a firm order by N-Mer nor a commitment by Affymetrix.
Delivery times for all Custom Probe Arrays ordered hereunder will be quoted at
the time Affymetrix receives a firm order for such products and in compliance
with Section 3.3.
3.5 Shipping; Title and Risk of Loss. Affymetrix shall pack Custom Probe
Arrays supplied under this Agreement in Affymetrix' standard shipping packages
and ship to the address specified by N-Mer. Unless otherwise mutually agreed to
in writing deliveries will be [***]. Affymetrix will ship via [***]. Title and
risk of loss or damage for deliveries will pass to N-Mer upon [***]. [***] will
pay all shipping costs, duties, and sales taxes. [***].
3.6 Permitted Uses. All Custom Probe Arrays purchased pursuant to this
Agreement may only be used within N-Mer's Area of Interest. N-Mer may not, and
will not allow any Third Party to: 1) transfer the Custom Probe Arrays provided
by Affymetrix pursuant to this Agreement to Third Parties other than (i) in the
course of distribution to end users pursuant to [***] or (ii) in the event of
termination of the Product Solicitation Agreement; or 2) transfer to
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any Third Party [***] with Custom Probe Arrays supplied to N-Mer for [***]
purposes under this Agreement; or 3) provide [***] to any Third Party using the
Custom Probe Arrays provided by Affymetrix pursuant to this Agreement; or 4)
allow any Third Party to [***] the Custom Probe Arrays supplied by Affymetrix to
N-Mer under this Agreement except pursuant to distribution in the event that (i)
[***] or (ii) in the event of termination of the Product Solicitation Agreement;
or 5) [***], or otherwise use outside of N-Mer's Area of Interest, the Probe
Arrays delivered hereunder; or 6) [***] the Custom Probe Arrays delivered
hereunder, except that [***] is permitted for work performed under the Work Plan
or for otherwise permitted internal research and development work performed by
N-Mer; or 7) use or, [***], of the Custom Probe Arrays delivered hereunder
outside of the N-Mer Field. N-Mer and its Affiliates will allow Affymetrix [***]
access during regular business hours and with advance written notice to ensure
compliance with these prohibitions. The Custom Probe Arrays transferred pursuant
to this Agreement are not licensed for use in violation of the above
restrictions. In the event that N-Mer wishes to provide for end users to be
permitted to [***] using the Probe Arrays supplied hereunder, Affymetrix will
permit N-Mer to do so provided N-Mer shall [***].
3.7 System Supply. N-Mer has the right to issue, upon execution of this
Agreement and from time to time thereafter, as approved by the Project
Coordination Committee, purchase orders for the System(s) and reagents that are
[***] required for N-Mer to perform its research and development activities as
permitted under this Agreement and the Product Solicitation Agreement. Such
System(s) and reagents shall be supplied at [***]. N-Mer shall be permitted to
use such Systems, including software and reagents, purchased at [***] in the
N-Mer Area of Interest. The supply of all other Systems and reagents for
commercial purposes shall be at [***]. N-Mer shall also be permitted to use such
Systems purchased hereunder at [***] in a manner consistent with the permitted
uses of such Systems when sold by Affymetrix to Third Parties customers.
4 PROPRIETARY RIGHTS
4.1 No [***] Supply. Until the end of the Term, N-Mer will not buy
arrays of diverse nucleic acids on solid supports from a Third Party when such
Third Party arrays [***] of Affymetrix or its Affiliates; provided, however,
that in order to enforce this provision Affymetrix must provide N-Mer a)
reasonable and prompt written notice of such [***] upon Affymetrix becoming
aware of such [***], and b) reasonable evidence of such [***]. This paragraph
shall not confer on N-Mer or any Third Party any rights under the patent rights
of Affymetrix.
4.2 License Limitation. Except as otherwise stated herein, including,
without limitation, Sections 2.2, 2.3, 3.6 and 3.7, N-Mer acknowledges and
understands that no license is conveyed or implied for use of the Systems
herein.
4.3 Covenant Not to Assert Inventions. N-Mer covenants not to assert the
patent rights in any [***] to the Probe Arrays supplied hereunder against
Affymetrix [***], for use outside of the N-Mer Field.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9
5 COMPENSATION
5.1 For each Custom Probe Array delivered to N-Mer or its Affiliates for
researching and developing products in the N-MER Field, N-Mer will pay
Affymetrix its then current Cost plus [***] for such Probe Arrays. For each
Probe Array delivered to N-Mer or its Affiliates for distribution to end users,
N-Mer shall pay Affymetrix according to the following formula:
(AFFYMETRIX' COST)
--------------------------------------
PER UNIT PROBE ARRAY PRICE = (1 - (AFFYMETRIX' [***] RATE FROM SIMILARLY
SITUATED COMMERCIAL VOLUME PURCHASERS
IN THE [***]))
where Affymetrix' "Cost" is calculated under general accepted accounting
principles as applied by Affymetrix to its then current publicly reported
financial statements and including any [***]. For purposes of clarity, for
capital equipment paid for by N-Mer at the time such capital equipment is
purchased, pursuant to Section 3.3, the [***] of such capital equipment shall be
excluded from the calculation of Affymetrix Cost and the payment of [***] shall
be included in the calculation of [***]. For the purposes of calculating the
[***] rate described in the above formula, Affymetrix will look to sales in its
prior fiscal quarter to those customers that purchased an equivalent number of
arrays (normalizing for differences in the number of arrays per wafer purchased
by such other customers) as being purchased by N-Mer in the current fiscal
quarter provided further that in calculating [***] sales to Third Parties
Affymetrix shall exclude: 1) Probe Arrays provided under this Agreement, 2)
products provided to [***], and 3) products provided to Third Parties under
collaborative arrangements where Affymetrix has [***] of such collaborator or
otherwise receives [***] as part of such collaboration. Notwithstanding the
foregoing, in no event shall Affymetrix charge N-Mer more than the following
amounts for Standard Custom Probe Arrays: $[***] per Standard Custom Probe Array
in a [***] Probe Array/wafer format; $[***] per Standard Custom Probe Array in a
[***] Probe Array/wafer format; $[***] per Standard Custom Probe Array in a
[***] Probe Array/wafer format and $[***] per Standard Custom Probe Array in a
[***] Probe Array/wafer format.
5.2 Notwithstanding the foregoing or any provision to the contrary in
this Agreement, N-Mer will be responsible for any and all [***] for Probe Arrays
supplied to N-Mer hereunder, and the Probe Array fees described in Section 5.1
of this Agreement shall be exclusive of any such [***].
5.3 All amounts referred to in this Section 5 will be invoiced by
Affymetrix when due. All Custom Probe Arrays supplied under this Agreement will
be deemed accepted unless they are returned to Affymetrix within [***] of
delivery to N-Mer, 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, including, without limitation, [***]. All payments will be made
to Affymetrix [***] from the date of invoicing by Affymetrix. Late payments
shall earn interest at the rate equal to the lesser of [***] percent ([***]%)
per month or the maximum rate allowable under
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
10
law. All payments in this Agreement will be made in the form of a check or wire
transfer to Affymetrix in United States Dollars.
6 PROJECT COORDINATION
6.1 The Parties will form a committee (the "Project Coordination
Committee" or "PCC") to aid in coordinating the performance of this Agreement,
including, without limitation, the Work Plan. The PCC will have general
responsibility for ensuring the performance of this Agreement pursuant to the
terms of this Agreement. The PCC shall be composed of two (2) representatives of
each of Affymetrix and N-Mer as each shall respectively appoint and be
reasonably acceptable to the other Party. Each Party by its representative(s)
shall cast one vote on the PCC. A quorum shall consist of at least one PCC
representative from each Party. The PCC shall act only with the [***]. A Party's
representatives shall serve at the discretion of such Party and may be
substituted for or replaced at any time by such Party. The PCC shall have its
first meeting within [***] after the Effective Date. Thereafter, the PCC shall
meet at least [***] during the Term, except at such times as the Parties
mutually believe there are no significant agenda items. The site of such
meetings shall alternate between the offices of Affymetrix and N-Mer, (or any
other site mutually agreed upon by the Parties) or be arranged by video
conference. The proceedings of all meetings of the PCC shall be prepared
alternately by the Parties, unless otherwise agreed, and sent to both Parties.
In the event that the PCC is unable to reach a decision by [***] with respect to
any matter and such inability continues for a period of [***] after the date on
which the matter is first submitted to the PCC, each Party shall refer the
matter to the Chief Executive Officers of Affymetrix and N-Mer for resolution.
Each Party shall set forth in writing a proposed solution to the impasse. If an
acceptable resolution is not achieved, either Party may choose to arbitrate the
issue(s) in accordance with Section 11.5.1. The Parties shall use reasonable
efforts to [***].
7 CONFIDENTIALITY
7.1 For a period of [***] from following the expiration of this
Agreement, each Party shall maintain the Confidential Information of the other
Party in strict 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. Without limiting the foregoing, the Parties will use [***]
precautions to prevent and restrain the unauthorized disclosure of any
Confidential Information of the other Party. The provisions of this paragraph
shall not apply to Confidential Information which:
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
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
11
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 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 Confidential Information.
7.2 N-Mer may publish the results of use of the Probe Arrays after [***]
advance notice to the Project Coordination Committee as set forth in this
Section 7.2; provided, however, that in no event shall N-Mer publish Affymetrix'
Confidential Information without the prior written approval of Affymetrix.
Subject to the limitations of the foregoing and Section 3 above N-Mer may
publish the results of its research at its sole discretion. In the event that
N-Mer chooses to publish such results, if Affymetrix scientists have contributed
to such work, authorship will be according to scientific input and Affymetrix
will cooperate in such publications. If it is decided that publications will be
made pursuant to this Section, Affymetrix and N-Mer will provide the Project
Coordination Committee draft versions of all publications reporting results of
the use of the Probe Arrays, and will provide at least [***] for technical
review thereof, and will allow for removal of Confidential Information.
8 REPRESENTATIONS AND WARRANTIES
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 represents and warrants that the Probe Arrays delivered
hereunder do not incorporate the trade secret or copyright rights of a Third
Party. EXCEPT FOR THE FOREGOING SENTENCE, AFFYMETRIX DISCLAIMS ALL
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. With respect to Third Party tort claims
that arise from the use, handling or storage of the products supplied to N-Mer
pursuant to this Agreement, Affymetrix shall [***] under any theory of strict
liability, negligence, whether active or passive, or products liability and
shall [***] for any indirect,
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
12
consequential, incidental, or special damages, and Affymetrix' [***] for such
claims shall [***]. N-Mer understands that the risks of loss herein are
reflected in the price of the Probe Arrays and that the terms would have been
different if there had been a different allocation of risk.
9 INDEMNITY
9.1 Indemnity by Affymetrix. Affymetrix shall indemnify, defend and hold
N-Mer and its Affiliates, successors-in-interest, assigns, agents, employees,
officers and directors (the "N-Mer Indemnitees") harmless from and against any
and all liability, damage, loss, cost or expense (including reasonable
attorneys' fees) arising out of Third Party claims or suits related to: (i)
Affymetrix' performance of, or failure to perform, its obligations under this
Agreement; (ii) breach by Affymetrix of its representations and warranties under
this Agreement; or (iii) any suit or proceeding brought against N-Mer or its
Affiliates to the extent based on a claim that the Probe Arrays delivered
hereunder directly infringe an issued patent in [***]; provided, however, that
Affymetrix' obligations pursuant to this Section 9.1 will not apply to the
extent such claims or suits result from the gross negligence or willful
misconduct of any of the N-Mer Indemnitees. Affymetrix will settle or defend any
suit or proceeding brought against N-Mer to the extent based on a claim that the
Probe Arrays delivered hereunder indirectly (i.e. through contributory
infringement or inducement) infringe an issued patent in [***] if a) [***] the
claims of such patent in a device claim, or [***] the claims of such patent in a
method claim, 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 N-Mer not specified by
Affymetrix, or N-Mer' combination of the Probe Arrays with other devices not
specified by Affymetrix ("Non-Covered Claims"). Notwithstanding the foregoing,
Affymetrix will have no obligation to defend or indemnify the N-Mer Indemnitees
with respect to Third Party claims arising out of breach by N-Mer of its
representations and warranties set forth in this Agreement.
9.2 Indemnity by N-Mer. N-Mer shall indemnify, defend and hold
Affymetrix and its Affiliates, successors-in-interest, assigns, agents,
employees, officers and directors (the "Affymetrix Indemnitees") harmless from
and against any and all liability, damage, loss, cost or expense (including
reasonable attorneys' fees) arising out of Third Party claims or suits related
to: (i) N-Mer's performance of, or failure to perform, its obligations under
this Agreement; (ii) breach by N-Mer of its representations and warranties under
this Agreement; (iii) any suit or proceeding based on an issued patent in [***]
brought against Affymetrix for Non-Covered Claims; provided, however, that
N-Mer's obligations pursuant to this Section 9.2 will not apply to the extent
such claims or suits result from the gross negligence or willful misconduct of
any of the Affymetrix Indemnitees. Notwithstanding the foregoing, N-Mer will
have no obligation to defend or indemnify the Affymetrix Indemnitees with
respect to Third Party claims arising out of breach by Affymetrix of its
representations and warranties set forth in this Agreement.
9.3 Conditions to Indemnification. As a condition to a Party's right to
receive indemnification under this Section 9, it shall: (i) promptly notify
("Claim Notice") the other Party as soon as it becomes aware of a claim or suit
for which indemnification may be sought pursuant hereto (provided that the
failure to give a Claim Notice promptly shall not prejudice the rights of an
indemnified Party except to the extent that the failure to give such prompt
notice
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
13
materially adversely affects the ability of the indemnifying Party to defend the
claim or suit); (ii) cooperate with the indemnifying Party in the defense of
such claim or suit, at the expense of the indemnifying Party; and (iii) if the
indemnifying Party confirms in writing to the indemnified Party its intention to
defend such claim or suit within ten (10) days of receipt of the Claim Notice,
permit the indemnifying Party to control the defense of such claim or suit,
including without limitation the right to select defense counsel; provided that
if the indemnifying Party fails to (x) provide such confirmation in writing
within the ten (10) day period; or (y) diligently and reasonably defend such
suit or claim at any time, its right to defend the claim or suit shall terminate
immediately in the case of (x) and otherwise upon twenty (20) days' written
notice to the indemnifying Party and the indemnified Party may assume the
defense of such claim or suit at the sole expense of the indemnifying Party and
may settle or compromise such claim or suit without the consent of the
indemnifying Party. In no event, however, may the indemnifying Party compromise
or settle any claim or suit in a manner which admits fault or negligence on the
part of any indemnified Party or that otherwise materially affects such
indemnified Party's rights under this Agreement or requires any payment by an
indemnified Party without the prior written consent of such indemnified Party.
Subject as expressly provided above, the indemnifying Party will have no
liability under this Section 10 with respect to claims or suits settled or
compromised without its prior written consent. Affymetrix' liability under
Section 9.1(iii) shall be limited to an amount equal to the [***]. N-Mer's
liability under Section 9.2(iii) shall be limited to an amount equal to the
[***]. 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 N-Mer,
Affymetrix [***], 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 AND TERMINATION
10.1 This Agreement shall extend until the end of the Term unless
terminated earlier by a Party 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.
10.2 Upon termination of this Agreement, the following provisions will
survive: Sections 1, 7, 8, 9 and 11 (in their entirety) and Sections 3.6, 4.2,
4.3 and 10.2.
11 MISCELLANEOUS
11.1 N-MER UNDERSTANDS THAT THE PROBE ARRAYS DELIVERED HEREUNDER ARE NOT
FDA APPROVED. N-MER AGREES NOT TO USE THE PROBE ARRAYS DELIVERED HEREUNDER IN
ANY CLINICAL OR OTHER SETTING REQUIRING FDA REVIEW OR APPROVAL. N-MER WILL
INDEMNIFY Affymetrix FOR ANY CLAIMS MADE BY [***] ARISING FROM THE USE OF THE
PROBE ARRAYS. THE PROBE ARRAYS AND SYSTEMS ARE NOT LICENSED EXCEPT AS
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
14
SPECIFICALLY RECITED HEREIN UNDER ANY INTELLECTUAL PROPERTY RIGHTS OF
AFFYEMTRIX.
11.2 Neither Party nor any of its Affiliates shall issue any press
release or otherwise publicly disseminate any information 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.
11.3 Neither this Agreement nor the rights, interests or obligations of
either Party may be assigned by such Party without the prior written consent of
the other Party, which shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, Affymetrix may assign any rights or
obligations of this Agreement to a Party who acquires all or substantially all
of the assets of the business of Affymetrix to which this Agreement relates by
merger or sale of assets or otherwise. For purposes of clarity, any [***] of
N-Mer (other than a change in voting control of Callida Genomics, Inc.) shall be
deemed to be a transfer of rights and obligations hereunder. Any attempted or
purported assignment in violation of the foregoing shall be void. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of each Party hereto.
11.4 This Agreement shall be construed according to the laws of
California without regard to conflict of law provisions.
11.5
11.5.1 In the event of any controversy or claim relating to, arising out
of or in any way connected to any provision of this Agreement
("Dispute"), the Parties shall seek to settle their differences
amicably between themselves. Any unresolved Dispute shall be
finally resolved by final and binding arbitration. Whenever a
Party shall decide to institute arbitration proceedings, it shall
give written notice to that effect to the other Party. The Party
giving such notice shall refrain from instituting the arbitration
proceedings for a period of ten (10) business days following such
notice to allow the Parties to attempt to resolve the Dispute
between themselves. If the Parties are still unable to resolve
the dispute, the Party giving notice may institute the
arbitration proceeding. The procedure for the arbitration will be
as follows: 1. A single arbitrator will be chosen in accordance
with the arbitration selection rules of JAMS. The selection
process will take a maximum of 14 calendar days. 2. The
arbitration will take place under JAMS rules to the extent the
rules are not superceded by the agreements of the party to
arbitrate or any agreed limitation on damages. 3. The letter of
allegation and a response shall be filed with the arbitrator
within one week of the selection and agreement of the arbitrator
to participate. 4. The Parties agree that [***] in connection
with any arbitration that may take place pursuant to this Section
11.5.1 and, therefore, the Parties and the arbitrator shall use
their [***] efforts to conclude the arbitration, including the
issuance of any award resulting therefrom, within a maximum of
[***] from the time of the filing of the complaint or letter of
allegation with the
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
15
arbitrator. 5. The arbitration shall take place in the San
Francisco Bay Area. 6. Costs and reasonable attorneys' fees shall
be awarded by the arbitrator to the prevailing Party. 7. The
Parties acknowledge that an appropriate remedy for a Major Supply
Breach of Section 3.3 shall include, without limitation, [***] of
Custom Probe Arrays plus actual damages. Judgment on the award of
the arbitrator may be entered in the Superior Court of Santa
▇▇▇▇▇ County in the State of California. All Parties admit to the
jurisdiction of the Superior Court of Santa ▇▇▇▇▇ County in the
State of California for purposes of enforcement of the award of
the arbitrator and compelling arbitration in accordance with this
Section 11.5.1. Except to the extent entry of judgment and any
subsequent enforcement may require disclosure, all matters
relating to the arbitration, including the award, shall be held
in confidence by the Parties. Nothing in this Section 11.5.1
shall be construed to preclude a Party from seeking injunctive
relief in a court of law for a breach of Section 7 where absent
such relief such Party would suffer irreparable harm. A "Major
Supply Breach" shall mean that Affymetrix has failed to supply
N-Mer with at least [***] of the properly ordered Custom Probe
Arrays in compliance with Section 3.3 and at least [***].
11.6 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.
11.7 This Agreement and the documents referred to herein, together with
the Letter Agreement, dated as of the date hereof, among Affymetrix, N-Mer,
Callida Genomics, Inc. and Hyseq, Inc., 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.
11.8 The headings in this Agreement are for convenience only and shall
not be considered in construing this Agreement.
11.9 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.
11.10 None of the provisions of this Agreement shall be for the benefit
of or enforceable by any Third Party.
11.11 Any notice required under this Agreement shall be made by
overnight mail or courier to the addresses below.
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
16
If to N-Mer:
N-Mer, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Affymetrix:
Affymetrix, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
11.12 "Force Majeure" shall mean an Act of God, flood, fire, explosion,
earthquake, strike, lockout, 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, after all
commercially reasonable efforts have been made, to procure 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 are 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 Party affected by Force Majeure
shall give notice to the other Party promptly in writing and whereupon shall be
excused from those obligations hereunder, to the extent of such prevention,
restriction or interference, provided that the affected Party shall use its
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.
11.13 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.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
17
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: Executive Vice President and General Counsel
--------------------------------------------
Date: October 24, 2001
---------------------------------------------
N-Mer, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Title: Chairman and Interim Chief Executive Officer
--------------------------------------------
Date: October 24, 2001
---------------------------------------------
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
18
EXHIBIT A
COLLABORATIVE WORK PLAN
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
A-1
INITIAL WORK PLAN FOR N-MER COMPANY
SUMMARY
This is an initial work plan for the development of [***] sequencing array
products. Our goal is to meet the technical milestone by using [***] technical
capabilities in array fabrication (for example, [***] to quickly develop and
market (by [***] or earlier) an advanced product based on universal arrays of
probes.
The primary focus will be [***]. The arrays will have [***] probe features, with
an intention that initial products will be based on [***]. Each feature will
have [***] probes, with [***] in length. Most of the probes will have [***].
Generic probe formula is [***]. Initially, total length of probes including
[***] will be between [***]. We plan to start with [***] comprising a [***] sets
of probes that can be tested and evaluated with the [***]. Optimal probe [***]
will be determined and then [***] of the selected design will then be produced
for further testing. In addition, a [***].
[***] primary sequencing applications will be:
[***]
We will also investigate [***]. Furthermore, we will also analyze the [***]. The
general goal is to develop a [***]. One type of design can be [***]. We will
also investigate [***] applications.
In the product development phase, we will follow [***] product development
process that includes [***]. Each product will be in the form of a [***].
Necessary software for data evaluation and product/application [***] will be
[***].
This work plan below outlines our [***]. [***], we will focus on the product(s)
that [***].
PRODUCT DEVELOPMENT PLAN
[***]
1. PRODUCT CONCEPT
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
A-2
Specifications:
- [***]
Applications:
- [***]
Other applications:
- Various studies of [***]
- Detection of [***]
- [***]
2. SUMMARY OF TOTAL ARRAY NEEDS FOR PRODUCT DEVELOPMENT
[***]
3. FEASIBILITY STUDY [***]
[***]
- [***]: Start with [***] and then [***] based on the results from the
feasibility study.
- [***]: Affymetrix will produce the [***] according to the above designs.
[***].
- Purchasing and setting up Affimetrix [***].
- Affymetrix will supply [***] within [***] of agreement on design, [***]
within [***] of agreement on design and [***] within [***], assuming
agreement on design in [***] (note that development of new process arrays
involves some uncertainty and the indicated time is an estimate).
[***]
- Sample [***] using Affy's protocol: [***].
- Determining [***].
- Optimizing [***].
- Affymetrix and N-Mer to work together to [***].
Software development:
- [***] software [***] to process data and [***].
Business:
- [***].
4. DEVELOPMENT [***]
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
A-3
- Meeting technical milestone: "Technical Milestone" shall mean using a
[***].
[***]
- Testing [***].
- Further optimizing [***].
- Further optimizing [***].
- Further optimizing [***].
- Estimated [***].
Software:
- Increasing [***].
- Developing a database for [***].
Prototyping:
- Developing [***].
- Developing [***].
- Testing [***].
Business:
- Developing [***].
- Develop [***].
Alpha Testing:
- [***]
- Testing the [***]. Tests will include [***].
- Estimated [***].
5. BETA TESTING [***]
- Identifying [***].
- Providing [***]
- Estimated [***].
6. PRODUCTION [***]
7. MARKETING AND SALES [***]
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
A-4
EXHIBIT B
EXISTING AFFYMETRIX PRODUCTS
- [***]
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
B-1