EXHIBIT 10.42
SUPPLY AGREEMENT
BETWEEN
AGILENT TECHNOLOGIES, INC.
AND
ROSETTA INPHARMATICS, INC.
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
Exhibit A - Array Products; Part Numbers; Pricing Schedule
Exhibit B - Array Lead Times in Calendar Days
Exhibit C - Array Product Geometric Specifications for [***]
Exhibit D - % Forecast/Order Flexibility & Baseline Forecast
Exhibit E - Agilent's Bioscience Products QA/QC Strategy
Exhibit F - Agilent BSP Quality Plan - Rosetta Inpharmatics
Exhibit G - [***]
Exhibit H - [***]
ii
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT is entered into between AGILENT TECHNOLOGIES, INC., a
Delaware corporation ("AGILENT"), and ROSETTA INPHARMATICS, INC., a Delaware
corporation ("ROSETTA"), effective as of May 25, 2000 (the "EFFECTIVE DATE").
WHEREAS, Rosetta and Agilent have entered into that certain Gene Expression
Collaboration Agreement dated as of October 1, 1999 (the "COLLABORATION
AGREEMENT"); and
WHEREAS, Rosetta wishes to purchase from Agilent, and Agilent wishes to supply
to Rosetta, Arrays (as hereinafter defined) pursuant to the terms and conditions
contained herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. SCOPE OF AGREEMENT
1.1 TERM OF AGREEMENT. This Agreement will commence as of the Effective
Date.
1.2 SUPPLY. Subject to Section 12, this Agreement shall have an initial
term of three (3) years, and shall be extended automatically for successive
additional one-year terms unless either party provides written notice of its
intent not to renew, no less than ninety (90) days prior to the expiration of
the initial term or any extension term.
2. DEFINITIONS
The following capitalized terms will have these meanings throughout this
Agreement.
2.1 "AFFILIATE" of a party to this Agreement means any present or future
Entity that Controls, is Controlled by, or is under the Control of the same
Entity or Entities as the party, but only for so long as such Control continues.
2.2 "AGILENT OGT LICENSE" means the License Agreement dated December 6,
1999 between Agilent and Oxford Gene Technology [***]
2.3 "ARRAY" means an array of nucleic acids attached to a solid support.
2.4 "ARRAY PRODUCTS" means the Arrays listed and described in EXHIBIT A
to this Agreement.
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
2.5 "CONTROL (S)(LED)" of an Entity means, the possession, directly or
indirectly, of more than fifty percent (50%) of the issued share capital or
other issued stock or securities of, or the voting power in, the Entity.
2.6 "COST OF GOODS" means manufacturing production cost as provided in
Agilent's Accounting and Financial Manual, a copy of which has been provided to
Rosetta pursuant to the Collaboration Agreement.
2.7 "DELIVERY DATE" means the date specified in an Order as the "Delivery
Date," which date shall in no event occur prior to lapse of the applicable Lead
Time related to the type of Arrays subject to such Order.
2.8 "DOCUMENTATION" means, as the context may require, any documentation
that Agilent makes available with the Array Products and any documentation that
Rosetta makes available with the [***]. To the extent any such documentation
is proprietary or confidential it must be marked as such prior to delivery.
2.9 "ENTITY" means any natural or legal person, partnership, joint
venture, association or governmental authority.
2.10 "FORECAST" means the written monthly estimate of Rosetta's Array
Product needs for the [***] period following delivery of such Forecast pursuant
to Section 3.3 hereof.
2.11 "KANBAN PART" means any Agilent part number identified on EXHIBIT B
(as may be amended at any time and from time to time during the term hereof)
with (i) a specific geometry and (ii) a specific oligonucleotide set design as
specified in an oligo set design file delivered to Agilent by Rosetta.
2.12 "LEAD TIME" means the period of time as specified on EXHIBIT B between
receipt by Agilent of an Order for a particular type of Array and shipment to
Rosetta of such Array.
2.13 "MARKS" means the trademarks, service marks, trademark and service
▇▇▇▇ applications, trade dress, trade names, logos, insignia, symbols, designs
or other marks identifying a party or its products.
2.14 "ORDER" means a written or electronic notification issued to
Agilent by Rosetta for delivery of Array Products containing (i) part
numbers and oligo set identification numbers, (ii) the identified oligo set
design file (unless already in Agilent's possession), (iii) volume of each
item, (iv) the Delivery Date and (v) price per Array Product.
2.15 "PRODUCTS" means one or more Array Products as the context
requires.
2.16 "ROSETTA OGT LICENSE" means the License Agreement between Rosetta and
Oxford Gene Technology dated March 16, 2000 providing Rosetta certain rights
under the patents described therein.
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
2.17 "SPECIFICATIONS" means the technical and functional requirements for
the Array Products as specified or referenced in EXHIBIT A, EXHIBIT C and
EXHIBIT F, as each thereof may be amended at any time and from time to time.
Specifications may also include other technical and/or functional requirements
of any such Array Products as the parties may agree in writing constitute
"Specifications."
2.18 "SUBSIDIARY" of a party means an Entity directly or indirectly
Controlled by a party.
2.19 "TECHNICAL INFORMATION" means Agilent's manufacturing information and
technology reasonably required to allow Rosetta to use the Array Products,
including supplier names, and component and/or reagent names and catalog
numbers.
3. ORDER AND DELIVERY OF AGILENT ARRAY PRODUCTS
3.1 ORDERS. Each delivery of Array Products shall be initiated by an
Order. To the extent of any inconsistency between the terms of an Order and the
terms of this Agreement, the terms specified in this Agreement will control
and take precedence, and to the extent of any inconsistency between the terms
of an Order or the terms of this Agreement and the Collaboration Agreement,
the terms specified in the Collaboration Agreement will control and take
precedence.
3.2 ORDER ACKNOWLEDGMENT. An Order will be deemed to have been placed
and shall be automatically binding upon and enforceable against Agilent as of
the date of receipt of the Order by Agilent, but only to the extent that the
Order is within the scheduled percentage flexibility of the Forecast related
to that particular month as determined in accordance with EXHIBIT D and as
modified by the provisions of Section 3.3(b), if applicable. Agilent shall
reply to the Order within three (3) days of receipt thereof, providing an
acknowledgement confirming (i) part numbers and oligo set identification
numbers, (ii) the oligo set design file, (iii) volume of each item, (iv)
Delivery Dates and (v) prices per Array Product and total invoice amount for
the Order. For Orders exceeding Forecasts by more than the scheduled
percentage for any particular month, Agilent will have five days in which to
confirm the Order with respect to the excess. If an Order exceeds the
Forecast for any particular month by more than the scheduled percentage set
forth on EXHIBIT D, Agilent shall fabricate and deliver on or prior to the
Delivery Date that portion of the Order that does not exceed the Forecast by
more than such scheduled percentage, and as an accommodation to Rosetta, use
reasonable commercial efforts to fabricate and deliver on or prior to the
Delivery Date and thereafter the remainder of such Order. An Order may not be
amended except by a written amendment executed according to Section 15.10
below. Agilent will notify Rosetta within three (3) days if it determines
that it will not be able to meet any of the terms of a Order, including, but
not limited to, Delivery Dates. In addition, Agilent will notify Rosetta
promptly of any supply constraints (e.g., materials, vendor contracts,
facilities, capacity, or failure of the [***] of which it becomes aware or
significant commercial relationships with third-party purchasers of Array
Products that in any case may affect its ability to fabricate and deliver the
Array Products in
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
accordance with the terms of any Order. Subject to Section 3.3(b), no such
notification by Agilent or acknowledgement of such notification by Rosetta
shall relieve Agilent of any liability for a breach of this Agreement or an
Order.
3.3 PURCHASE AND DELIVERY COMMITMENTS.
(a) Rosetta shall, not later than the 10th day of each month, deliver
to Agilent a [***] rolling Forecast of its projected Orders for each month
during such period. Subject to Section 3.4, the quantities and product mix
listed in any Forecast shall be binding purchase obligations of Rosetta and,
provided the quantities contained in such Forecast are within the range of
Rosetta's scheduled flexibility determined in accordance with Table 1 and Table
2 (or Table 2A if a Financing Event (as defined in Section 3.3(d)) shall have
occurred) of EXHIBIT D for such month determined by reference to the most
recently delivered Forecast, Agilent shall be obligated to fabricate and deliver
such quantities and product mix. The foregoing obligations of Rosetta and
Agilent are subject to the baseline forecast amounts made pursuant hereto and
set forth on EXHIBIT D (as may be adjusted in the case of a Financing Event).
(b) During the period beginning [***] (the [***] PRODUCTION
PERIOD"), the baseline capacity forecast of Table 2A of EXHIBIT D (as may be
adjusted pursuant to Section 3.3(d)) from which Rosetta's scheduled
flexibility is determined shall be adjusted to the extent the actual number
of [***] and to the extent that the average [***] For any time during the
[***] Production Period where the number of [***] the baseline forecast amount
shall be adjusted by multiplying the baseline number applicable (as may be
adjusted pursuant to Section 3.3(d)) in the case of a Financing Event) to
that time period as provided in EXHIBIT D by a fraction, the numerator of
which is the total number of [***] and the denominator of which is the total
number of [***] For any time during the [***] Production Period where the
"average" percent uptime of the [***] the baseline from which Rosetta's
scheduled flexibility is determined shall be adjusted by multiplying the
baseline number (as may be adjusted pursuant to Section 3.3(d)) otherwise
applicable to that time period [***] by a fraction the numerator of which is
the actual percent uptime during the affected time period and the denominator
of which is [***] Agilent shall promptly notify Rosetta of any periods where
the baseline capacity forecast is affected by a shortfall in [***] or in
scheduled uptime and provide Rosetta reasonable access to its production
records to verify such circumstances. During [***], if the actual number of
[***] or the average [***] uptime provided in the [***] the parties agree to
discuss in good faith necessary adjustments, if any, to the baseline capacity
forecast of Table 2 of EXHIBIT D.
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
(c) The quantities of Array Products set forth in Table 2 of
EXHIBIT D for [***] constitute Rosetta's initial Forecast to be provided
hereunder, and Rosetta hereby agrees to purchase, and Agilent hereby agrees
to deliver, the quantities of Array Products indicated in Table 2 for each
month for the period beginning [***], PROVIDED, HOWEVER, in the case of a
Financing Event, the quantities of Array Products set forth in Table 2A of
Exhibit D for [***] shall constitute Rosetta's Forecast from and after such
Financing Event, and Rosetta hereby agrees to purchase, and Agilent hereby
agrees to deliver, subject to Section 3.3(d) the quantities of Array Products
indicated in Table 2A beginning the first full calendar month commencing [***]
days after consummation of the Financing Event to and including [***].
Rosetta hereby agrees to place the initial Order with respect to the [***]
quantities of Array Products set forth in Table 2 of EXHIBIT D not later than
[***].
(d) If between [***], Rosetta successfully closes (i) an
underwritten initial public offering ("IPO") of its common stock pursuant to
a registration statement under the Securities Act of 1933, as amended, (ii)
the private issuance and sale of equity securities of the Company in a single
transaction or a series of related transactions (a "Private Placement") or
(iii) any combination of an IPO and Private Placement (either or both, a
"Financing Event") in any case yielding gross proceeds to Rosetta of (A) at
least [***] then the parties' obligations with respect to the purchase and
delivery of Array products shall be [***] indicated in Table 2A, (B) less
than [***], then the parties' obligations with respect to the purchase and
delivery of Array products shall be [***] indicated in Table 2A, (C) less
than [***] then the parties' obligations with respect to the purchase and
delivery of Array Products shall be [***] indicated in Table 2A, (D) less
than [***] then the parties' obligations with respect to the purchase and
delivery of Array Products shall be [***] indicated in Table 2A, and (E) less
than [***] then the parties' obligations with respect to the purchase and
delivery of Array Products shall be [***] indicated in Table 2A. In the event
that Rosetta does not prior to [***] close any Financing Event or gross
proceeds from any Financing Event or less than [***], neither Rosetta nor
Agilent [***].
3.4 ORDER CHANGES; CANCELLATIONS. Rosetta may postpone, decrease,
increase or cancel any Order with scheduled Delivery Dates subsequent to [***],
by written notice to Agilent to the extent such changes or cancellations are
not within the Lead Times specified in EXHIBIT B. In the event that Rosetta
shall change specific part numbers and/or volumes outside the Lead Time related
to any Array Product, Agilent shall accommodate such change, and in the event
Rosetta shall change specific part numbers and/or volumes within the Lead Time
related to any Array Product, Agilent shall exercise its reasonable commercial
efforts to accommodate such change, PROVIDED, HOWEVER, in the event of any
such change in either case Rosetta shall be obligated to pay not less than the
dollar commitment set forth in the Order which Rosetta desires to change. In
addition, in the event any change to the specific part numbers and/or volumes
related to an Order results in under utilization of Agilent's capacity
previously allocated to Rosetta, Agilent
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
will promptly notify Rosetta thereof and thereafter will accept for fabrication
and delivery additional Orders by Rosetta in amounts to fill such under
utilized capacity.
In the event of a failure to accept delivery of conforming Array
Products constituting at least [***] of any Forecast (as modified by the
scheduled flexibility set forth on EXHIBIT D and Section 3.3(d), Rosetta
shall pay a cancellation fee equal to the [***] for the Array Products
subject to such cancellation or for which Rosetta did not accept delivery.
The cancellation fees provided in this Section 3.4 are intended as liquidated
damages which are intended to fully compensate Agilent for costs incurred
related to the event giving rise to such damages, including [***] for items
partially manufactured, and losses suffered by Agilent due to interruptions
to manufacturing schedules and dedication of resources, including opportunity
costs and lost sales. The parties agree that such losses are difficult to
quantify but nevertheless real and that the cancellation fees are a fair
approximation of actual losses and are not a forfeiture or penalty. No
cancellation fees shall be due and payable in the event Rosetta shall
determine to cancel an Order pursuant to Section 5.2 hereof. Agilent may
request a commitment beyond standard Lead Times in order to smooth production
volumes.
3.5 FAILURE TO SUPPLY GUARANTEED AMOUNTS. Subject to Section 3.3(b),
Section 3.3(d), Section 11 and Exhibit D hereof, if Agilent fails to deliver
(i) at least [***] of the Array Products related to any particular Order placed
between the Effective Date and [***] and (ii) at least [***] of the Array
Products related to any particular Order placed between [***], in each case
within [***] after the Delivery Date set forth in the Order related to such
Array Products, Agilent shall use reasonable commercial efforts to deliver the
delayed portion of such Order as soon as practicable and shall sell such
portion of such Order in accordance with the next following paragraph.
In the event such failure occurs:
(i) prior to [***], Agilent shall sell such Array Products at (A)
[***] of the original unit price specified therefor if such
Array Products are delivered within [***] after the Delivery
Date therefor, (B) [***] of the original unit price specified
therefor if such Array Products are delivered between [***]
after the Delivery Date therefor and (C) [***] of the original
unit price specified therefor if such Array Products are
delivered later than [***] after the Delivery Date therefor;
(ii) after [***], Agilent shall sell such Array Products at (A)
[***] of the original unit price specified therefor if such
Array Products are delivered within [***] after the Delivery
Date therefor, (B) [***] of the original unit price specified
therefor if such Array Products are delivered between [***]
after the Delivery Date therefor and (C) [***] of the original
unit price specified therefor if such Array Products are
delivered later than [***] after the Delivery Date therefor;
or
(iii) after [***], Agilent shall sell such Array Products at (A)
[***] of the original unit price specified therefor if such
Array Products are delivered within [***] after the Delivery
Date therefor and (B) [***] of the original unit price
specified therefor if
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
such Array Products are delivered later than [***] after
the Delivery Date therefor.
3.6 KANBAN PARTS. Agilent agrees to maintain during the term hereof the
Kanban Parts identified on Exhibit B hereto, as amended from time to time, at
the levels (calculated by reference to days of supply) set forth therein. In the
event that for whatever reason EXHIBIT B is amended to remove any Array Product
from the list of Kanban Parts, [***].
3.7 SHIPMENT REQUIREMENTS. Whenever reasonably possible, Orders shall be
shipped complete. In the event an Order cannot be shipped complete, Agilent
will ship the available Array Products unless directed by Rosetta to reschedule
shipment. By directing Agilent to reschedule shipping to a later date, Rosetta
waives any rights it has to a reduced price under Paragraph 3.5 provided
Agilent ships the delayed portion of such order on or before the rescheduled
shipping date.
3.8 PACKING LIST. Each delivery of Array Products to Rosetta will be
accompanied by a packing list that contains at least:
(a) The Order number and (where available) the Agilent part number
and the [***]
(b) Information indicating the date of manufacture for each Array
Product;
(c) The quantity of Array Products; and
(d) The date of shipment.
3.9 PACKAGING. Agilent shall preserve, package, handle, and pack all Array
Products so as to protect them from loss or damage in conformance with good
commercial practice, the Specifications, government regulations, and other
applicable standards.
3.10 RESPONSIBILITY FOR DAMAGE. Agilent will be liable for any loss or
damage due to its failure to properly preserve, package, handle, or pack the
products.
3.11 PERFORMANCE REVIEW.
(a) Metrics. In order to facilitate management and performance of the
purchase and delivery of Array Products hereunder, Agilent and Rosetta will
monitor and review the performance metrics indicated below monthly and jointly
develop process improvements as necessary.
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METRICS DATA SOURCE FREQUENCY CALCULATION TYPE TARGET
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On-time delivery Rosetta purchasing Weekly Percent of units received on [***]
system scheduled date
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Quality conformance In-house Tracking Monthly Measure: % Conforming units, [***]
System % Conforming shipments
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Forecast accuracy In-house Tracking Monthly Percent of forecast ordered [***]
System
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(b) Calculation.
On-time delivery: Orders received on or up to two days prior to
Delivery Date.
Quality conformance: Percent of units received without
non-conformances. Percent of shipments received with accurate packing
list, invoice, and quantity.
Forecast accuracy: Percent of Forecast for a month where orders were
placed for delivery in the month, based on the forecast provided three
months prior.
(c) Review.
Performance to target should be reviewed on a regular basis, with a
consistent set of representatives and following a standard agenda. The
information below provides a basis for these meetings.
Agenda
- Review of action items from last meeting
- Metric performance and corrective actions necessary
- Future plans - Rosetta
- Potential constraints - Agilent
- Any revisions required - Both parties
- Date, location and time for next performance review meeting
Attendees and Frequency
Reviews for the first [***] of the term will be held monthly, at
alternating sites, on the first Tuesday of the first full week of the
month. The attendee list will be as follows:
AGILENT ROSETTA
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MANUFACTURING OPERATIONS MANAGER VP, OPERATIONS
PRODUCTION MANAGER(S) LOGISTICS MANAGER
MATERIALS MANAGER PLANNER/BUYER
QUALITY MANAGER SUPPLIER QUALITY ENGINEER
After the initial [***] the review will either be re-established at
monthly intervals or in the case of superior performance, the interval
for review meetings will be quarterly.
4. PRICES AND PAYMENT TERMS
4.1 PRICES. The prices to be paid for purchase of the Array Products
during the term of this Agreement are stated in EXHIBIT A ("AGILENT ARRAY
PRICING SCHEDULE") and will be referenced in each Order, and Order
acknowledgement provided in accordance with Section 3.2 hereof. Prices shall
be as set forth in EXHIBIT A during the initial term of this Agreement,
except for price increases made in accordance with the provisions of Section
9.2. In addition to price increases imposed in accordance with Section 9.2,
prices may increase in any renewal term, PROVIDED, HOWEVER, such increases
not attributable to additional royalties shall not exceed [***]. In no event
will the prices set forth on the Agilent Array Pricing Schedule at any time
during the term (or any renewal term) hereof be [***] Agilent will invoice
Rosetta, in duplicate, accompanied (if applicable) by a ▇▇▇▇ of lading or
airway ▇▇▇▇, for all Array Products purchased hereunder promptly upon
delivery of such Array Products pursuant to Section 5 below.
4.2 [***]. The prices paid for Array Products purchased hereunder will
at all times during the term be [***].
4.3 PAYMENT. The prices stated in the Agilent Array Pricing Schedule and
referenced in each Order do not include sales, use, excise or any other similar
taxes imposed by international, federal, state or local governments or shipping
charges but are inclusive of handling and all other charges unless otherwise
specifically provided in the Agilent Array Pricing Schedule or Order. Taxes and
shipping charges will be itemized separately in each invoice. Unless otherwise
provided in the Order, terms of payment will be net [***] from Rosetta's receipt
of the Array Product or invoice, whichever occurs later, subject to Rosetta's
acceptance of the Product and the resolution of any good faith disputes relating
to the invoiced amount. No payment of an invoice will be deemed to constitute
acceptance of the Array Product by Rosetta. If Rosetta disputes any invoice,
Rosetta will, within [***] of receipt of such invoice, notify Agilent that it
disputes the accuracy or appropriateness of such invoice and provide the basis
for such dispute.
5. DELIVERY; ACCEPTANCE
5.1 SHIPPING AND DELIVERY.
(a) Agilent will arrange for transportation of the Array Products to
the destination designated and in the manner described in the Order. Unless
otherwise specified in the Order, all freight expenses for delivery of the Array
Products will be prepaid by Agilent and added to Agilent's invoice to Rosetta
for payment by Rosetta.
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(b) Unless otherwise specified in the Order, the F.O.B. point will be
Rosetta's location as designated in the Order. Agilent will bear all risk of
loss or damages to any Array Product, and title to the Array Products will not
transfer to Rosetta until delivery of the Array Product to Rosetta's designated
location.
5.2 CERTIFICATES OF ANALYSIS/COMPLIANCE. Agilent will furnish to Rosetta
with each shipment of the Array Product, certificates of analysis or compliance,
as required by the Specifications, the Agilent Bioscience Products QA/QC
Strategy and the Agilent BSP Quality Plan-Rosetta Inpharmatics in each case as
set forth on EXHIBIT E and EXHIBIT F, respectively, certifying that such Array
Product meets the Specifications or similar document if required by law or
requested by Rosetta and all other documentation required by the Specifications
and such Exhibits.
6. QUALITY CONTROL; LEGAL; REGULATORY REQUIREMENTS
6.1 QUALITY TESTING AND INSPECTION.
(a) Agilent will cooperate with Rosetta in developing, and thereafter
Agilent will use, the Agilent BSP Quality Plan-Rosetta Inpharmatics defined in
EXHIBIT F of this Agreement for determining the quality of, and consistency of
manufacturing processes related to, Array Products shipped pursuant to this
Agreement as provided in the Specifications. No Array Products will be released
that do not meet the Specifications. Rosetta may, at its discretion, inspect and
test the Array Products delivered under this Agreement, using Rosetta's standard
testing procedures as well as any procedures set forth in the Specifications.
If, as a result of such Rosetta test procedures, Rosetta determines that any
Array Product fails to conform to the Specifications, Rosetta may reject such
Product. Rosetta will give notice of its rejection of any Array Product within
[***] of receipt of such Array Product, such notice providing specific and
detailed data demonstrating the failure of the Array Product rejected to conform
to the Specifications.
(b) If, within [***] of delivery, any Array Product is found by
Rosetta to be defective in material or workmanship, Rosetta will have the
option to return the Array Product to Agilent for replacement or refund. Such
replacements shall be at Agilent's expense.
6.2 COMPLIANCE WITH LAW AND REGULATIONS. Agilent will (i) comply with all
international, national, state and local laws, ordinances, rules and regulations
applicable to the conduct of its business, its performance of its obligations
hereunder and the fabrication, sale and delivery of the Array Products and (ii)
maintain during the term of this Agreement, a manufacturing facility, personnel,
quality control and quality assurance programs and a documentation control and
change system that comply with good manufacturing practices.
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6.3 FACILITY INSPECTION. Rosetta will have reasonable access at
reasonable times during normal business hours, subject to the parties' mutual
agreement, to Agilent's facilities for the purpose of inspecting Agilent's
testing and manufacturing processes to determine compliance with the Quality
Testing and Quality Assurance Strategy, or to review any documents relating
to the Array Products provided under this Agreement. Access for such purposes
will not be unreasonably withheld.
6.4 RECORDS RETENTION. All records relating to the manufacture of Array
Products and the fulfillment of each Order shall be retained by Agilent for a
period of at least five (5) years from the date of fabrication. Prior to the
destruction of any such records, written notice will be provided to Rosetta
and Rosetta will have the right to request and retain them.
6.5 CHANGES TO FACILITY OR MATERIALS. Agilent will notify Rosetta in
writing at least [***] prior to making any change in materials, fabrication
process or manufacturing facility that may affect the form, fit or function of
Array Products. Rosetta may require reasonable testing by Agilent to confirm
that such changes do not cause any Array Product to fail to meet the
Specifications.
6.6 PRODUCT RECALL. Agilent shall immediately notify Rosetta if any Array
Product is the subject of a recall, market withdrawal or correction and the
parties shall cooperate in the handling and disposition of any such recall,
market withdrawal or correction.
7. [***]
7.1 PURCHASE AND SUPPLY OF [***]. As soon as practicable after the
Effective Date, Agilent shall purchase and Rosetta shall deliver [***],
manufactured and built according to the [***]. Upon delivery by Rosetta of
each such [***], Agilent shall pay to Rosetta [***].
7.2 USE AND OWNERSHIP OF [***]. The [***] will at all times after the
purchase thereof be the property of Agilent, PROVIDED, HOWEVER, no [***] may
be transferred to any third party without Rosetta's prior written consent. At
the end of the useful life of each [***].
7.3 ROSETTA SUPPORT. Rosetta will provide [***] to approximately [***]
Prior to the [***] Rosetta and Agilent each hereby agree to perform the
obligations set forth on EXHIBIT H and, in the event either party needs
assistance in connection therewith, the other party will exercise
commercially reasonable efforts to assist such party in order to timely
maintain the [***] Responsibility for any delay in the [***] will be borne by
both parties, subject to Section 3.3(b), and each party will be responsible
for and pay any and all costs, fees and expenses incurred by it in connection
with the performance of its obligations set forth on
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SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT H. After [***] Agilent shall be responsible for and pay all costs
associated with [***], and Rosetta will use reasonable efforts to provide
support to Agilent in [***] After [***] if support is provided by Rosetta
on-site at Agilent's facilities, Agilent will reimburse Rosetta for
reasonable expenses and personnel time spent in providing such support.
8. WARRANTIES; INTELLECTUAL PROPERTY LICENSES
8.1 WARRANTIES.
(a) Agilent hereby warrants that all Array Products purchased by
Rosetta under this Agreement (i) will meet the Specifications, (ii) will for a
period of 90 days from the date of delivery be free from defects in workmanship,
materials and design, (iii) will be free from all liens and security interests,
(iv) have been developed, designed, labeled, packaged, manufactured, tested,
stored, supplied and sold in accordance with the terms of this Agreement and (v)
will have the benefit of the terms associated with the commercial warranty terms
provided to other customers upon finalization of such terms after the Effective
Date.
(b) Rosetta hereby warrants that all [***] manufactured by Rosetta
and delivered to Agilent under this Agreement (i) will meet the [***]
Specifications, (ii) will for a period of 90 days from the date released to
production be free from defects in workmanship, materials and design and
(iii) will be free from all liens and security interests.
8.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AGILENT
AND ROSETTA MAKE NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING
THE ARRAY PRODUCTS [***] AS THE CASE MAY BE, OR REGARDING THEIR
MERCHANTABILITY OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE.
8.3 DOCUMENTATION LICENSE. Agilent hereby grants Rosetta, and Rosetta
hereby grants to Agilent, a non-exclusive, non-transferable, fully paid up
license to use Documentation internally. Either party may reproduce such
Documentation only for archival purposes and must ▇▇▇▇ all such reproductions
(other than documents which Agilent acknowledges are public) with the other's
proprietary rights notices and confidential notices in such form as shall be
provided one to the other.
8.4 LIMITATIONS ON USE/SUPPLEMENTAL LICENSE. Rosetta hereby acknowledges
that the license granted to Agilent under the Agilent OGT License does not
permit Rosetta [***] In connection with such [***]Rosetta hereby represents
to Agilent that the right to [***] is licensed to Rosetta pursuant to the
Rosetta OGT License Agreement and, unless and until Rosetta notifies Agilent
otherwise, the Arrays purchased and to be purchased hereunder are being
ordered under Rosetta's "have made" rights pursuant to the Rosetta OGT
License. [***]
-12-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
[***] The Array Products provided Rosetta hereunder are not to be [***]
9. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF THIRD PARTIES
9.1 INDEMNIFICATION. Agilent's indemnification obligations and Rosetta's
notification obligations are as set out in Article 11 of the Collaboration
Agreement, which Article is incorporated herein by reference.
9.2 REMEDIES FOR INFRINGING PRODUCTS. Without prejudice to Section 9.1
above, if the fabrication, sale, delivery or use of any of the Array Products
provided or to be provided to Rosetta hereunder is enjoined (the "INFRINGING
PRODUCT"), Agilent will, at its sole expense and option:
(a) procure for Rosetta the right to continue using the Infringing
Product;
(b) replace the Infringing Product with a noninfringing product of
equivalent function and performance; or
(c) modify the Infringing Product to be noninfringing, without
detracting from function or performance.
If in procuring the right to continue using the Infringing Product under
Section 9.2(a), Agilent is required to make additional royalty payments, such
payments may be reflected in increased pricing of Array Products sold to
Rosetta. Notwithstanding Agilent's right to increase pricing as set forth
herein, if the total of such increases due to additional royalty payments
shall [***], Rosetta will have the right to (i) accept the increase, (ii)
renegotiate the price of the Infringing Product subject to the dispute
resolution provisions of the Collaboration Agreement or (iii) should any
dispute resolution fail to resolve the issue, terminate the Agreement if,
[***]. In the event that Agilent is determined to owe royalties
retrospectively, such retrospectively owed royalties will not be passed on to
Rosetta.
9.3 LIMITATION ON REMEDIES. [***] the parties hereto acknowledge and
agree that Rosetta shall have no further remedy against Agilent in respect of
the sale and delivery to Rosetta of an Infringing Product if Agilent's
reasonable commercial efforts, fail to provide any of the remedies provided
in Section 9.2.
-13-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
9.4 INDEMNITY CLAIMS ARISING FROM ROSETTA ACTIONS. Except as otherwise
provided herein, Rosetta agrees to indemnify and hold Aglient harmless from
and against any losses, liabilities, damages and expenses (including
reasonable attorny's fees and costs) suffered or incurred, and claims made,
in connection with third party claims, demands, actions or other proceedings
for personal injuries or any product recall to the extent caused by or
arising out of (a) Rosetta's provision of services using Array Products, (b)
Rosetta's use of Array Products or (c) any other act or omission of Rosetta
in connection with the use of supply or provision of services in connection
with Array Products, except to the extent such losses, liabilities, damages
and expenses (including reasonable attorney's fees and costs) resulted from
negligence, recklessness or intentional misconduct of Agilent or its
officers, agents or employees.
9.5 LIMITATION ON INDEMNITY. Agilent will be relieved of its
indemnification obligations to Rosetta under this Article 9 to the extent
that a thrid party claim results from Rosetta's breach of this Agreement and
to the extent that a third party claim is made in connection with something
other than an Array Product [***], including, without limitation and by way
of example, claims arising from [***].
10. COUNTRY OF MANUFACTURE AND DUTY DRAWBACK RIGHTS
10.1 COUNTRY OF ORIGIN CERTIFICATION. Upon Rosetta's request, Agilent
will provide Rosetta with an appropriate certification stating the country of
origin for any products provided to Rosetta hereunder, sufficient to satisfy
the requirements of the customs authorities of the country of receipt and any
applicable export licensing regulations.
10.2 COUNTRY OF ORIGIN MARKING. Agilent will ▇▇▇▇ each Array Product
with the country of origin. Agilent will, in marking such products, comply
with the requirements of the customs authorities of the country of receipt.
11. FORCE MAJEURE
11.1 NO LIABILITY. Neither party will be liable for any failure to
fulfill any term or condition of this Agreement, other than the payment of
amounts owed hereunder, nor will such failure constitute a breach of or
default under this Agreement, if fulfillment has been delayed, hindered or
prevented by an event of force majeure, including any war, riot, strike,
lock-out or other industrial dispute, acts of the elements, acts or
compliance with any order of any government or agency thereof (including the
enactment of any new laws, rules or regulations), sabotage or industrial
accident.
11.2 NOTICE OF FORCE MAJEURE. Promptly following the date any event of
force majeure occurs, the party so affected will advise the other party in
writing of the date and nature of the event and the period of time such event
is expected to continue. During the existence of such event, the duties and
obligations of the parties under this Agreement will be suspended and the
parties will
-14-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
take all reasonable action to ensure resumption of normal performance under this
Agreement as soon as possible.
11.3 TERMINATION RIGHT. If, as a result of any such force majeure event,
a party is unable fully to perform its obligations hereunder for a period of
ninety (90) days the other party will have the right to terminate this
Agreement upon written notice, effective the date of such notice, and, in the
case of a force majeure event preventing performance by Agilent, Rosetta may
also exercise its rights under Section 3.6 hereof.
12. TERMINATION
12.1 TERMINATION EVENTS. This Agreement may be terminated as follows:
(a) The parties may terminate at any time by mutual consent.
(b) Either party may terminate this Agreement in the event of a
material breach by the other party provided that the defaulting party fails
to cure such breach within thirty (30) days after receipt of notice of such
breach, or in the case of a breach that is not capable of cure within thirty
(30) days if the defaulting party fails to begin cure within thirty (30) days
after receipt of notice of such breach or to continue to pursue such
diligently thereafter.
(c) Either party may terminate in the event of (i) the making by
either party of any general assignment for the benefit of creditors, (ii) the
filing by or against either party of a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against such party, the same is dismissed within ninety (90)
days, (iii) the appointment of a trustee or receiver to take possession of
substantially all of either party's assets, where possession is not restored
to such party within ninety (90) days or (iv) the attachment, execution or
other judicial seizure of substantially all of either party's assets, where
such seizure is not discharged within ninety (90) days.
(d) Rosetta or its successor or assignee may terminate this
Agreement in the event any successor to all or substantially all of the
business and assets of Rosetta by merger, consolidation, reorganization or
otherwise elects not to cross-license to Agilent the intellectual property
rights described in Section 15.4(d).
12.2 EFFECT OF TERMINATION OR EXPIRATION. Neither party will be
relieved of any obligations incurred under this Agreement prior to the date of
such termination or expiration by the termination or expiration thereof, and the
provision of Sections 3.5, 4.1, 4.3, 5, 6, 7.2, 8, 9, 10, 13, 14, 15.1, and 15.3
will survive any such termination or expiration.
13. CONFIDENTIAL INFORMATION
13.1 CONFIDENTIAL INFORMATION. During the Term, a party (the "RECIPIENT")
may receive or have access to certain information of the other party (the
"DISCLOSER") that is marked as "Confidential Information," including, though not
limited to, information or data concerning the
-15-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
Discloser's products or product plans, business operations, strategies,
customers and related business information. The Recipient will protect the
confidentiality of Confidential Information with the same degree of care as
the Recipient uses for its own similar information, but no less than a
reasonable degree of care. Confidential Information may not be disclosed to
any third party and may only be used by those employees of the Recipient who
have a need to know such information for the purposes related to this Agreement.
The parties acknowledge that all Technical Information and Forecasts are
deemed Confidential Information to be protected for a term of fifteen years
from the date of disclosure.
13.2 EXCLUSIONS. The foregoing confidentiality obligations will not
apply to any information that is (a) already known by the Recipient prior to
disclosure and not subject to any obligations of confidence (b) independently
developed by the Recipient prior to or independent of the disclosure, (c)
publicly available through no fault of the Recipient, (d) rightfully received
from a third party with no duty of confidentiality, and (e) disclosed by the
Recipient with the Discloser's prior written approval.
14. LIMITATION OF LIABILITY
UNLESS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR
ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF THE OTHER ARISING OUT OF ANY
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE
PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH
DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation does not apply
to the indemnification obligations of each party in respect of third-part
claims set forth in Section 9 above.
15. MISCELLANEOUS
15.1 NOTICES. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient at the
address specified below. Notices are validly given upon the earlier of
confirmed receipt by the receiving party or five days after dispatch by
courier or certified mail, postage prepaid, properly addressed to the
receiving party. Notices may also be delivered by telefax and will be validly
given upon oral or written confirmation of receipt. Either party may change
its address for purposes of notice by giving notice to the other party in
accordance with these provisions.
Rosetta: Rosetta Inpharmatics, Inc.
▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: President
With a copy to: Venture Law Group
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-▇▇-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Agilent: Agilent Technologies, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Manager,
Bioscience Products
With a copy to: Agilent Technologies, Inc.
Agilent Legal Department
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
15.2 EXHIBITS. Each EXHIBIT attached to this Agreement is deemed a part
of this Agreement and incorporated herein wherever reference to it is made
and may be amended from time to time only in accordance with Section 15.10.
15.3 INDEPENDENT CONTRACTORS. The relationship of the parties
established under this Agreement is that of independent contractors and
neither party is a partner, employee, agent or joint venturer of or with the
other.
15.4 ASSIGNMENT OR CHANGE OF CONTROL.
(a) Neither this Agreement nor any right, license, privilege or
obligation provided herein may be assigned, transferred or shared by either
party without the other party's prior written consent. Notwithstanding the
foregoing, either party may assign this Agreement or any rights under this
Agreement in part or in whole, to any affiliate of that party or any person
or entity into which the assigning party has merged or which has otherwise
succeeded to all or substantially all of the business and assets to which
this Agreement pertains, by merger, consolidation, reorganization or
otherwise, provided the acquiring party complies with the provisions of this
Section 15.4.
(b) The assigning party must ensure that such person or entity has
assumed in writing or by operation of law the assigning party's obligations
under this Agreement.
(c) Each party agrees to give the other party prior notice of any
agreement to merge or transfer its business to a third party as of the date
of such agreement and to make any such agreement subject to the conditions
set forth in this Section.
(d) To the extent any party seeking to assume the obligations and
receive the benefits of Rosetta hereunder owns directly or beneficially any
intellectual property rights which cover manufacture, sale or use of Array
Products, as an additional condition precedent to any assignment such party
shall provide Agilent a royalty-free fully paid up license to such technology.
-17-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
(e) This Agreement will be binding on the successors and permitted
assigns of the parties and the name of the party appearing herein will be
deemed to include the names of such party's successors or permitted assigns
to the extent necessary to carry out the intent of this Agreement.
(f) Notwithstanding the foregoing Sections 15.4(a)-(e), this
Agreement may not be assigned by a party to a third party unless such party's
rights and obligations under the Collaboration Agreement are also assigned to
such third party.
15.5 NO WAIVER. The waiver of any term, condition, or provision of this
Agreement must be in writing and signed by an authorized representative of
the waiving party. Any such waiver will not be construed as a waiver of any
other term, condition, or provision except as provided in writing, nor as a
waiver of any subsequent breach of the same term, condition, or provision nor
shall the exercise by either party of any right, power or remedy preclude
other or further exercise thereof, or the exercise of any other right, power
or remedy.
15.6 REFERENCE TO DAYS. All references in this Agreement to "days" will,
unless otherwise specified herein, mean calendar days.
15.7 HEADINGS. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend the meaning of
any provision of this Agreement, and will not be relevant in interpreting any
provision of this Agreement.
15.8 NO PUBLICATION. Neither party may publicize or disclose to any
third party, without the written consent of the other party, the terms of
this Agreement. Without limiting the generality of the foregoing sentence, no
press releases relating to this Agreement may be made without the mutual
written consent of the parties.
15.9 SEVERABILITY. If any provision in this Agreement is held invalid or
unenforceable by a body of competent jurisdiction, such provision will be
construed, limited or, if necessary, severed to the extent necessary to
eliminate such invalidity or unenforceability. The parties agree to negotiate
in good faith a valid, enforceable substitute provision that most nearly
effects the parties' original intent in entering into this Agreement or to
provide an equitable adjustment in the event no such provision can be added.
The other provisions of this Agreement will remain in full force and effect.
15.10 ENTIRE AGREEMENT. This Agreement together with the Collaboration
Agreement comprise the entire understanding between the parties with respect
to its subject matters and supersedes any previous communications,
representations, or agreements, whether oral or written. For purposes of
construction, this Agreement will be deemed to have been drafted by both
parties and no draft (or any differences between drafts and this Agreement)
shall be utilized in any manner, including as evidence by the parties intent
or the interpretation of this Agreement. No modification of this Agreement
(including any Exhibit) or any Order will be binding on either party unless
in writing and signed by an authorized representative of each party.
-18-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
15.11 DISPUTE RESOLUTION. Disputes between the parties shall be subject
to the dispute resolution provisions of the Collaboration Agreement.
15.12 GOVERNING LAW. This Agreement and all questions, claims, disputes,
remedies or procedural matters shall be interpreted in accordance with and
governed exclusively by the laws of the State of California, U.S.A., without
regard to the principles of conflicts of law.
APPROVED AND AGREED TO:
AGILENT TECHNOLOGIES, INC. ROSETTA INPHARMATICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
General Manager President
-19-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT A
ARRAY PRODUCTS; PART NUMBERS; PRICING SCHEDULE
-------------------------------------------------------------------------------------------------------------
Part Number Description Timeframe Volume Price per array
-------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***]
---------------------------------------------- ------------------------------------------------------
-20-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT B
ARRAY LEAD TIMES IN CALENDAR DAYS
Table 1: Lead Times:
---------------------------------------------------------------------------------------------------
MANUFACTURING
PART TYPE TECHNOLOGY USED INITIAL ORDER SUBSEQUENT ORDERS
---------------------------------------------------------------------------------------------------
Custom [***] [***] [***]
---------------------------------------------------------------------------------------------------
[***] [***] [***]
---------------------------------------------------------------------------------------------------
Kanban [***] [***] [***]
---------------------------------------------------------------------------------------------------
[***] [***] [***]
---------------------------------------------------------------------------------------------------
Lead Times associated with Array Products never before ordered by Rosetta
shall be as mutually agreed in good faith between the parties.
Table 2: List of Custom Parts:
----------------------------
PART NUMBER
----------------------------
[***]
----------------------------
----------------------------
Table 3: List of Kanban Parts: (None identified as of the Effective Date)
-----------------------------------------------------------------------------------------------------------
PART NUMBER [***] MINIMUM DAYS OF SUPPLY ROSETTA PURCHASE
AT AGILENT TIMEFRAME
-----------------------------------------------------------------------------------------------------------
[***] [***]
-----------------------------------------------------------------------------------------------------------
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*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT C
ARRAY PRODUCT GEOMETRIC SPECIFICATIONS FOR [***]
These specifications are intended solely for constraints on chip production QC
with regard to this Supply Agreement. The actual scanned and printed area on a
[***]
-22-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT D
% FORECAST/ORDER FLEXIBILITY & BASELINE FORECAST
TABLE 1. % FORECAST/ORDER FLEXIBILITY
MONTHS FROM DATE OF FORECAST
For
Forecast
Provided
During
+1 +2 +3 +4 +5 +6 +7 +8 +9 +10 +11 +12
------------------------------------------------------------------------------------
2H'00 +% [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
-% [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
1H'01 +% [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
-% [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
2H'01 +% [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
-% [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
2H'00 means July 1, 2000 through December 31, 2000 1H'01 means January 1, 2001
through June 30, 2001 2H'01 means July 1, 2001 through the end of the term
TABLE 2. ROSETTA BASELINE FORECAST
2000
JUL AUG SEPT OCT NOV DEC
--------------------------------------------------------
[***] [***] [***] [***] [***] [***]
2001
JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC
-------------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
2002
JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC
-------------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
TABLE 2A. ROSETTA BASELINE FORECAST IN THE EVENT OF A FINANCING EVENT
2000
JUL AUG SEPT OCT NOV DEC
--------------------------------------------------------
[***] [***] [***] [***] [***] [***]
2001
JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC
-------------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
2002
JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC
-------------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
Order flexibility for Rosetta will be derived by applying the appropriate upside
or downside percentage in Table 1. against the baseline forecast volume in Table
2 or Table 2A, as the case may be. The result is the maximum or minimum order
volume over the following [***] from the given monthly forecast. The intent of
the flexibility matrix is to allow month to month variability and longer term
capacity increases or decreases to Rosetta. The process is intended to prevent
compounding of forecasts up or down over time.
Table 2. Rosetta baseline forecast will contain a minimum [***] forward
projection of the current demand and capacity estimates for Rosetta and Agilent,
respectively. Changes to Table 2. may be made by mutual agreement between
Rosetta and Agilent on a semi-annual basis at a performance review meeting. The
only changes reviewed on a semi-annual basis are those in months [***] following
the date of the review meeting.
-23-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
Table 2A. Upon consummation of a Financing Event, Table 2A will represent
Rosetta's baseline forecast, which forecast is subject to adjustments made in
accordance with Section 3.3(d). Additional changes to Table 2A may be made by
mutual agreement between Rosetta and Agilent on a semi-annual basis at a
performance review meeting. The only changes reviewed on a semi-annual basis are
those in months [***] following the date of the review meeting.
-24-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT E
AGILENT'S BIOSCIENCE PRODUCTS QA/QC STRATEGY
1) Bioscience Products (BSP) Quality System
[***]
2) Document Control and Process Control
[***]
3) Quality Control and Sampling Frequency
[***]
4) Resource Planning and Equipment Qualification
[***]
5) Material Review Board
[***]
6) Qualification of Agilent/BSP Array Manufacturing Process
[***]
Outline of Agilent's Bioscience Products Quality System
1. Income Materials
[***]
2. In process Controls
[***]
3. Equipment and Preventative Maintenance
[***]
4. Inspection and Testing
[***]
5. Storage, packaging, labeling of work in progress
[***]
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
-25-
EXHIBIT E, CONT.
6. Storage, packaging, labeling and shipment of finished goods
[***]
7. Personnel
[***]
8. Documentation
[***]
9. Quality Assurance
[***]
10. Customer Relations
[***]
[***]
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT E, CONT.
BIOSCIENCE PRODUCTS QUALITY SYSTEM - PROCEDURE LIST
-------------------------------------------------------------------------------
Site wide Procedures Document ID
[***] [***]
-------------------------------------------------------------------------------
Manufacturing
[***]
-------------------------------------------------------------------------------
Quality Assurance/Regulatory/Customer Support
[***]
-33-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT F
AGILENT BSP QUALITY PLAN - ROSETTA INPHARMATICS
(TO BE MUTUALLY AGREED AND THEN ADDED TO THIS AGREEMENT)
-1-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT G
[***] Summary Acceptance Criteria [***]
---------------------------------------------------------------------------------------------------------
METRIC QUANTITY UNIT
---------------------------------------------------------------------------------------------------------
[***] [***] [***] [***]
Assumptions:
[***]
-2-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
EXHIBIT H
[***]
[***]
-3-
*MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND
SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.