EXHIBIT 2.1
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement") is entered into as of January 26,
2004 (the "Effective Date") by and between Applera Corporation through its
Applied Biosystems Group with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ (collectively, "AB") and Xtrana, Inc., with offices at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ("Xtrana") (each of AB and Xtrana a
"Party" and, collectively, "Parties").
WHEREAS, AB desires to purchase and subject to the conditions of this Agreement,
Xtrana is willing to assign to AB on the Closing Date upon the terms set forth
in this Agreement, all of Xtrana's right, title and interest in and to the
Intellectual Property (defined below); and
WHEREAS, pursuant to this Agreement AB is not acquiring all or any portion of
Xtrana's business or business operations (such as its facilities, personnel,
inventory or other tangible assets, or financial assets such as cash,
securities, or accounts receivable), and AB does not intend in any respect to be
a successor to Xtrana's business or operations, and is therefore not expressly
or impliedly assuming any of Xtrana's Liabilities (as defined herein); and
WHEREAS, as part of such transaction Xtrana will also use its commercially
reasonable efforts to render certain consulting services to AB.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows.
1. CERTAIN DEFINITIONS.
Terms, when used herein with initial capital letters shall have the
meanings set forth below or as otherwise defined in this Agreement.
"Effective Date" shall have the meaning set forth in the preamble
hereto.
"knowledge" "best knowledge," or "to the knowledge of" shall mean with
respect to Xtrana, information which any director of Xtrana or which
any of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Xtrana's Chief Executive Officer, ▇▇▇▇
▇▇▇▇▇▇, Xtrana's Chief Scientific Officer or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Xtrana's
Corporate Controller (i) has any actual knowledge of or (ii) should
have knowledge of after a reasonable inquiry (and if there was no such
inquiry, then knowledge as if due inquiry were made).
"Closing Date" and "Closing" shall have the meaning set forth in
Section 2(d) below.
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"Consulting Agreement" and "Consulting Services" shall have the
meanings set forth in Section 2(c) below.
"Fundamental Representations" shall mean the representations,
warranties and covenants set forth in Section 7 and Section 8(f);
except that part (iii) of Section 8(f) as it relates to claims arising
after the Closing that AB's use of the Intellectual Property infringes
any third party's intellectual property rights shall not be deemed
Fundamental Representation.
"Intellectual Property" shall mean all (U.S. and foreign) Xtrana
patents, patent applications and all divisions, continuations,
continuations-in-part, reissues, reexaminations, and extensions and all
foreign equivalents of any of the foregoing, inventions, trade secrets,
know-how, manufacturing processes and procedures, design history,
quality assurance methods and manual, software (including, without
limitation, source code and object code), data and databases and other
intellectual property, all as it exists on the Effective Date and the
Closing Date, relating to methods or devices for nucleic acid capture,
binding, hybridization, amplification, extraction, detection or gene
expression. Without limiting the foregoing, "Intellectual Property"
shall include the following: (a) U.S. patent Nos. 6,291,166; 5,955,351;
6,153,425; 5,989,813; 6,605,451; 6,063,568, 6,258,543, 6,649,378; and
foreign equivalents thereof; and (b) pending or allowed patent
applications relating to or claiming priority from the foregoing (the
foregoing patents and patent applications set forth in parts (a) and
(b), collectively referred to as the "Patents"). The term "Intellectual
Property" shall exclude Xtrana's trademarks, tradenames and logos and
all goodwill associated therewith.
"Legal Requirement" shall mean any (i) federal, state, local,
municipal, foreign, international, multinational or other constitution,
law, ordinance, principle of common law, code, regulation, statute or
treaty, and (ii) the terms and conditions of any permit or other
authorization of any governmental or similar authority under which a
party operates or to which a party is subject.
"Liability" shall mean any liability or obligation of any kind,
character, or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, disputed or undisputed, liquidated or
unliquidated, secured or unsecured, joint or several, due or to become
due, vested or unvested, executory, determined, determinable or
otherwise, and whether or not the same is required to be accrued on the
financial statements of any person or entity.
"material" or "material adverse effect" shall mean any information,
condition or effect that (i) impairs the value or use of the
Intellectual Property, or (ii) has or could reasonably be expected to
have an adverse impact with a dollar value or cost of fifty thousand
dollars ($50,000) or more.
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"Order" shall mean any order, injunction, judgment, decree, ruling,
assessment or arbitration award of any governmental or
quasi-governmental agency or authority of any nature (federal, state,
local, or foreign).
"Patent Assignment" shall have the meaning set forth in Section 2(e)
below.
"Proceeding" shall mean any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal,
administrative, judicial or investigative, whether formal or informal,
whether public or private) commenced, brought, conducted or heard by or
before, or otherwise involving, any governmental or quasi-governmental
agency or authority of any nature (federal, state, local, or foreign)
or arbitrator.
"Proxy Statement" shall have the meaning set forth in Section 13(c)
below.
"Retained Liabilities" shall have the meaning set forth in Section 2(g)
below.
"Stockholder Approval" shall have the meaning set forth in Section 7(a)
below.
"Tax" shall mean any income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental, windfall profit, customs, vehicle, airplane, boat,
vessel or other title or registration, capital stock, franchise,
employees' income withholding, foreign or domestic withholding, social
security, unemployment, disability, real property, personal property,
sales, use, transfer, value added, alternative, add-on minimum and
other tax, fee, assessment, levy, tariff, charge or duty of any kind
whatsoever and any interest, penalty, addition or additional amount
thereon imposed, assessed or collected by or under the authority of any
governmental or quasi-governmental agency or authority of any nature
(federal, state, local, or foreign) or payable under any tax-sharing
agreement or any other contract or agreement.
Transaction Documents shall have the meaning set forth in Section 7(a).
2. ASSIGNMENT OF RIGHTS; CLOSING
(a) ASSIGNMENT OF RIGHTS TO AB. Effective upon the Closing, Xtrana
hereby assigns all of right, title and interest in and to the
Intellectual Property to AB, together with all accrued causes
of action for infringement thereof and the right to ▇▇▇ and
recover for past and future infringement of the Intellectual
Property. For the avoidance of doubt, following such
assignment, Xtrana shall retain no rights under any of the
Intellectual Property.
(b) TRANSFER OF KNOW-HOW; PROSECUTION FILES. Within ten (10)
business days of the Closing, Xtrana shall transfer to AB all
of Xtrana's trade secrets and know-how, manufacturing
processes and procedures, design history,
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quality assurance methods and manuals, and any other
Intellectual Property of Xtrana that is a Patent or other
registered item of Intellectual Property to the extent that
the foregoing exist in a tangible form. Together with the
foregoing, Xtrana shall also transfer to AB all files relating
to the prosecution of Intellectual Property (including,
without limitation, all patent applications and office
actions), all invention disclosure statements and all
laboratory notebooks of Xtrana's current and former employees
relating to such Intellectual Property. Xtrana shall accompany
the foregoing items with a written statement of its chief
executive officer certifying that Xtrana has delivered all of
the Intellectual Property existing in a tangible form, and all
prosecution files relating thereto as required pursuant to
this Section 2(b).
(c) CONSULTING SERVICES. Without limiting Xtrana's transfer of all
Intellectual Property upon the Closing Date, Xtrana shall
execute the Consulting Agreement referred to below pursuant to
which Xtrana shall render, from and after the Closing Date, up
to one hundred (100) hours (in the aggregate) of consulting
and transition services relating to the Intellectual Property
(collectively, "Consulting Services"). The standard of
performance for Xtrana with respect to the rendering of such
Consulting Services shall be one of reasonable efforts. Prior
to rendering such Consulting Services, the scientists assigned
by Xtrana to render such Consulting Services shall execute
AB's form of consulting agreement, attached hereto as Exhibit
II (the "Consulting Agreement"). Such Consulting Services
shall be rendered as may be requested by AB from the Closing
Date until ninety (90) days thereafter. The payment provided
under Section 2(e) includes consideration for such Consulting
Services and no further payment shall be due.
(d) CLOSING. Subject to the satisfaction of the terms and
conditions herein set forth, and in reliance upon the
respective representations and warranties of the parties set
forth herein and in any document delivered pursuant hereto,
the closing of the assignment of the Intellectual Property by
Xtrana to AB pursuant to Section 2(a) (the "Closing") will be
held at the offices of AB at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ at such time, date and place as may be agreed
to by AB and Xtrana, but with such Closing to occur no later
than two business days following approval of such transfer by
the stockholders of Xtrana (the date on which the Closing
occurs being referred to as the "Closing Date").
(e) CLOSING DELIVERIES AND PAYMENTS. On the Closing Date, Xtrana
will execute and deliver to AB the Patent assignments in the
form of Exhibit III hereto (the "Patent Assignment").
(f) PAYMENTS. AB will make an aggregate payment in the amount of
four million dollars ($4,000,000) as follows: (i) one payment
of three million
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five hundred thousand dollars ($3,500,000) will be due at
Closing (reflecting the application of the deposit of $100,000
previously paid by AB); and (ii) a second payment of four
hundred thousand dollars ($400,000) will be due three (3)
months thereafter, contingent upon Xtrana's providing the
consulting services as described in Section 2(c) above. For
the avoidance of doubt, such payment shall be in consideration
of Xtrana's assignment to AB of all right, title and interest
in and to the Intellectual Property and the performance of the
Consulting Services and any other Xtrana obligations
hereunder.
(g) RETENTION OF LIABILITIES. Notwithstanding anything contained
herein to the contrary, AB is not assuming and shall not have
any responsibility for any Liabilities of or relating to
Xtrana, its predecessors or its or their subsidiaries or
affiliates or the Intellectual Property or any claim against
any of the foregoing of any kind, whether known or unknown,
contingent absolute or otherwise (collectively, the "Retained
Liabilities"). The Retained Liabilities shall remain the sole
responsibility of and shall be retained, paid, performed, and
discharged solely by Xtrana or its relevant affiliate. The
Retained Liabilities include, without limitation:
(i) any Liability arising out of or relating to products
or services of Xtrana, its predecessors or affiliates
to the extent manufactured or sold prior to the
Closing, including, without limitation, any Liability
resulting from claims that such products or services
infringe or misappropriate any third party's
intellectual property rights;
(ii) any Liability arising out of or relating to Liability
resulting from claims that Xtrana, its predecessors
or affiliates have misappropriated (or by their
conduct prior to the Closing infringed) any third
party's intellectual property rights;
(iii) any Liability for Taxes, including (A) any Taxes
arising as a result of Xtrana's operation of its
business or ownership and license of the Intellectual
Property prior to the Closing, (B) any Taxes that
will arise as a result of the transfer of the
Intellectual Property pursuant to this Agreement
(other than Taxes on the net income of AB), and (C)
any deferred Taxes (by Xtrana) of any nature;
(iv) any Liability under any contract, license or other
agreement entered into by Xtrana, its predecessors or
affiliates including, without limitation, any
Liability arising out of or relating to Xtrana's
credit facilities or any security interest related
thereto;
(v) any environmental, health and/or safety Liabilities
arising out of or relating to the operation of
Xtrana's (or its predecessors' or
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affiliates') business or leasing, ownership or
operation of real property;
(vi) any Liability under any Xtrana (or its predecessors,
subsidiaries or affiliates') employee benefit plans
or relating to Xtrana's (or its predecessors',
subsidiaries' or affiliates') payroll, vacation, sick
leave, workers' compensation, unemployment benefits,
pension benefits, employee stock option or
profit-sharing plans, health care plans or benefits
or any other employee plans or benefits of any kind
for Xtrana's (or its predecessors' or affiliates')
employees or former employees or both;
(vii) any Liability under any employment, severance,
retention or termination agreement between Xtrana and
any employee of Xtrana or any of its predecessors or
affiliates;
(viii) any Liability arising out of or relating to any
employee grievance against Xtrana whether or not the
affected employees are hired by AB;
(ix) any Liability of Xtrana to any of its shareholders or
affiliates of Xtrana;
(x) any Liability to indemnify, reimburse or advance
amounts to any officer, director, employee or agent
of Xtrana;
(xi) any Liability to distribute to any of Xtrana's
shareholders or otherwise apply all or any part of
the consideration received hereunder;
(xii) any Liability arising out of any Proceeding pending
against Xtrana as of the Closing;
(xiii) any Liability arising out of any Proceeding commenced
after the Closing and arising out of or relating to
any occurrence or event happening prior to the
Closing;
(xiv) any Liability arising out of or resulting from
Xtrana's compliance or noncompliance with any Legal
Requirement or Order; and
(xv) any Liability of Xtrana based upon Xtrana's acts or
omissions occurring after the Closing.
For the avoidance of doubt any claims arising after Closing that AB's
use of the Intellectual Property infringes any third party's
intellectual property rights shall not be deemed a Retained Liability
under Section 2(g)(xiii) and Section 2(g)(xiv)
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to the extent such claim does not arise or result from (a) a Retained
Liability set forth in Section 2(g)(i) or Section 2(g)(ii); or (b)
Xtrana's breach of a Fundamental Representation.
3. EXISTING LICENSES. Prior to the Closing Date Xtrana shall, at its cost,
exercise its contractual rights to terminate, or (if AB so elects by
providing written notice to Xtrana) assign to AB, the existing licenses
granted to third parties under the Intellectual Property. Such existing
licenses are: (1) the Purchase and License Agreement between Xtrana's
predecessor Biopool International, Inc. and Lifecodes, Inc., as amended
March 2001; and (2) the Co-Development and
License Agreement entered into December 10, 2001 between Xtrana and
CUNO Inc. Notwithstanding the foregoing, it is understood that the
foregoing CUNO-Xtrana Co-Development and License Agreement has no
provision for termination upon the payment of a fixed dollar amount. As
such, if Xtrana is unable to obtain such termination without expending
money or an undue amount of effort, and provided AB does not waive this
condition, AB shall not be obligated to consummate the transactions
contemplated hereby. If requested by AB, Xtrana shall, without further
payment, provide reasonable assistance (including obtaining all
necessary third party consents) in assigning to AB any agreements with
third parties pursuant to which Xtrana has obtained a license under
such third parties' intellectual property rights.
4. PROSECUTION. AB shall have the sole right and obligation (which
obligation it may exercise in its sole discretion), at its sole cost
and expense, for obtaining, prosecuting, and maintaining, throughout
the world, patents (or registrations for any other Intellectual
Property) claiming the Intellectual Property.
5. ENFORCEMENT OF PATENTS OR OTHER REGISTERED INTELLECTUAL PROPERTY. AB
shall have the sole right and discretion, at its own expense, to
institute, control and prosecute suits, or other appropriate actions,
for infringement or misappropriation of the Intellectual Property. All
recovery or proceeds of litigation, enforcement or settlement of such
infringement or misappropriation of AB's rights under the Intellectual
Property shall belong to AB.
6. FURTHER ASSURANCES. Xtrana will, and to the extent that it can
reasonably do so, Xtrana shall cause its current officers, directors,
employees and representatives to, provide all reasonable assistance (at
no additional cost) in transferring the Intellectual Property
(including, without limitation, any trade secrets, know-how or
invention disclosures) to AB. Without limiting the foregoing Xtrana
will disclose to AB all material facts known by its current officers,
directors and employees regarding the Intellectual Property and any and
all material encumbrances, liens or disputes (including, without
limitation, any infringement or misappropriation claims) regarding the
Intellectual Property. Xtrana will and to the extent that it can
reasonably do so, Xtrana shall cause its current officers, directors,
employees and representatives to testify in all proceedings, sign all
instruments (including, without limitation, assignment instruments and
powers of
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attorney) and other documents and provide such reasonable assistance as
is reasonably necessary to secure, maintain and enforce AB's rights
with respect to the Intellectual Property.
7. MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES. Each
Party hereby represents, warrants, and covenants to the other Party as
of the Effective Date and as of the Closing as follows.
(a) Each Party (i) is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and
authority to conduct its business as it is now being
conducted, to own and use the properties and assets that it
purports to use and own, and to enter into this Agreement and
to perform its obligations hereunder, and (ii) has taken all
necessary action on its part required to authorize the
execution and delivery of this Agreement and the other
agreements and instruments contemplated hereby to be executed
by such Party (as relevant to each Party, the "Transaction
Documents") and the performance of its obligations hereunder
and thereunder, except that in the case of Xtrana, Xtrana's
performance under this Agreement and the other Transaction
Documents (including without limitation the assignment of the
Intellectual Property) is subject to approval of this
Agreement by the vote of holders of a majority of its issued
and outstanding common stock (the "Stockholder Approval").
(b) The Agreement has been, and as of the Closing the other
Transaction Documents will have been, duly executed and
delivered on behalf of each Party and, in the case of Xtrana
only subject to the Shareholder Approval, constitutes (or in
the case of the other Transaction Documents, upon execution
and delivery will constitute) a legal, valid, binding
obligation of such Party and is (or in the case of the other
Transaction Documents, upon execution and delivery will be)
enforceable against it in accordance with its terms subject to
the effects of bankruptcy, insolvency, or other laws of
general application affecting the enforcement of creditor
rights and judicial principles affecting the availability of
specific performance and general principles of equity, whether
enforceability is considered a proceeding at law or equity.
(c) The execution and delivery of this Agreement and the other
Transaction Documents by each Party and the performance of
each Party's obligations hereunder and thereunder, do not and
will not: (i) conflict with or violate, or require any consent
or approval under, any Legal Requirement or Order or
governmental authorization or permit applicable to such Party
(but specifically excluding any conflict, violation or failure
to obtain consent or approval under any Legal Requirement or
Order or governmental authorization or permit that relates to
products of AB manufactured or sold after the Closing), (ii)
do not conflict with or violate any provision of
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articles of incorporation, bylaws or limited partnership
agreement or other organizational documents or corporate
resolutions of such Party, as applicable, (ii) conflict with,
violate, or breach or constitute a default under (with or
without the passage of time or delivery of notice), or require
(whether or not express) any consent or approval under, or
give any party the right to accelerate any right or remedy
under, any license or other contract or agreement to which
such Party is a party or by which such Party or its assets
(and in the case of Xtrana, including, without limitation, the
Intellectual Property) is bound, (iii) result in the creation
of any lien or encumbrance on the Intellectual Property.
8. ADDITIONAL XTRANA REPRESENTATIONS, WARRANTIES AND COVENANTS. Xtrana
represents and warrants as of the Effective Date and as of the Closing,
and covenants, that:
(a) COMPLIANCE WITH LAWS AND CONTRACTS; LEGAL PROCEEDINGS. Xtrana
has not taken any action in violation of any provision of its
certificate of incorporation or bylaws or other applicable
charter documents. Xtrana is not, and has not received notice
from any person or entity alleging that it is, in material
violation or breach of, or in material default under any
provision of, any Legal Requirement or Order, and Xtrana has
not received notice that it is under investigation by any
governmental or other authority with respect to any alleged
violation or breach of any Legal Requirement or Order. Xtrana
is not subject to any Order that directly or indirectly
relates to the Intellectual Property. Xtrana is not in breach
or default under (including any circumstances that would
result in a breach or default with notice or lapse of time or
both) of any contract or agreement to which it is a party or
by which it or its assets are bound, and Xtrana has not
received any notice alleging any such breach or default. There
is no Proceeding pending against or relating to Xtrana or its
assets (including without limitation the Intellectual
Property) and to the knowledge of Xtrana no such Proceeding is
threatened and no facts or circumstances exist or have
occurred that are reasonably likely to give rise to or serve
as a basis for the commencement of any Proceeding (other that
litigation arising in the ordinary course of Xtrana's business
that does not directly or indirectly relate to the
Intellectual Property and which in any case does not involve
claims in excess of fifty thousand dollars ($50,000)). Xtrana
has not violated the Worker Adjustment and Retraining
Notification Act or any similar state or local Legal
Requirement, and Xtrana does not intend to, and shall not,
take any action or omit to take any action in connection with
this Agreement, the other Transaction Documents and the
transactions contemplated hereby and thereby that would cause
it to be subject to such Act or such other Legal Requirements.
(b) NO UNDISCLOSED LIABILITIES. Xtrana has no Liabilities except
for Liabilities reflected or reserved against in the balance
sheet contained in the financial statements included in
[identify most recent periodic SEC filing] and
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current liabilities incurred in the ordinary course of
business of Xtrana since the date of such balance sheet.
(c) TAXES. Xtrana has filed or caused to be filed on a timely
basis all tax returns, reports, statements, and the like with
respect to Taxes that are or were required to be filed
pursuant to applicable Legal Requirements. All such returns
and other documents filed by Xtrana were and are true, correct
and complete in all material respects. Xtrana has paid, or
made provision for the payment of, all Taxes that have or may
have become due for all periods covered by such returns and
other documents or otherwise, or pursuant to any assessment
received by Xtrana. No claim has ever been made or is expected
to be made by any governmental authority in a jurisdiction
where Xtrana does not file tax returns that it is or may be
subject to taxation by that jurisdiction. There are no liens
or encumbrances on any of Xtrana's assets that arose in
connection with any failure (or alleged failure) to pay any
Tax, and Xtrana has no knowledge of any basis for assertion of
any claims attributable to Taxes which, if adversely
determined, would result in any such lien or encumbrance.
Xtrana is not currently under audit with respect to any Tax
returns, statements, or other documents filed by it and has
not been advised that any of such documents will be audited,
and Xtrana has not been advised of any deficiency in
assessment or proposed judgment to its Taxes. Xtrana has no
knowledge of any Liability of any Tax to be imposed upon its
properties or assets. All Taxes that Xtrana is or was required
by Legal Requirements to withhold, deduct or collect have been
duly withheld, deducted and collected and, to the extent
required, have been paid to the proper governmental authority
or other entity. Xtrana is not a party to any tax sharing
agreement, tax allocation agreement, tax indemnity obligation
or similar written or unwritten agreement, arrangement,
understanding or practice with respect to Taxes that will
require any payment by Xtrana.
(d) EMPLOYEES AND EMPLOYMENT BENEFITS. Xtrana does not have a duty
to bargain with any labor organization with respect to any
employees and there is not pending any demand for recognition
or any other request or demand from a labor organization for
representative status with respect to any employee of Xtrana.
Xtrana is in compliance with all employment, employee benefit,
compensation, change in control, and similar plans,
agreements, policies, practices, commitments, contracts, and
understandings (whether qualified or non-qualified, currently
effective or terminated, written or unwritten), any trust,
escrow, or other agreement related thereto, and all Legal
Requirements applicable thereto, and has not been notified of
any allegation to the contrary. Neither the Xtrana nor any
"ERISA affiliate" (as defined below) of Xtrana maintains,
contributes to or has any liability (contingent or otherwise)
with respect to a plan (including a "multiemployer plan", as
defined below) subject to Title IV of ERISA or Section 412 of
the Code (as defined below). All employee
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benefit plans and arrangements (regardless of whether such
plans or arrangements are covered by ERISA) maintained by or
contributed to by Xtrana or any ERISA Affiliate of Xtrana are
in material compliance with all Legal Requirements, including
any reporting requirements. The Company does not have any
liability (contingent or otherwise) with respect to retirees,
including retiree death benefits. Neither Xtrana nor any other
person or entity, including any fiduciary, has engaged in any
transaction prohibited by Section 4975 of the Code or Section
406 of ERISA which would subject Xtrana, or any entity that
Xtrana has an obligation to indemnify, to any tax or penalty
imposed under Section 4975 of the Code or Section 502 of
ERISA. The transaction contemplated by this Agreement and the
other Transaction Documents will not involve any transactions
prohibited by Section 406 of ERISA or Section 4975 of the
Code. For purposes of this provision, (i) "ERISA" means the
Employee Retirement Income Security Act of 1974, as amended
from time to time; (ii) "ERISA affiliate" means any entity
required to be aggregated with Xtrana under Sections 414(b),
(c), (m) or (o) of the Code; and (iii) "multiemployer plan"
means a plan which is a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA
(e) ENVIRONMENTAL MATTERS. Xtrana (i) has never violated, and is
presently in compliance with, all Legal Requirements relating
to environmental and health and safety matters applicable to
its business and properties, (ii) has not generated,
manufactured, refined, transported, treated, stored, handled,
disposed of, transferred, produced or processed any pollutant,
toxic substance, hazardous waste, hazardous substance,
hazardous material, oil or petroleum product or other material
regulated under any of such Legal Requirements (referred to in
this provision as "hazardous materials") or any solid waste,
and has no knowledge of the release or threat of release of
any hazardous materials from its products, properties or
facilities, (iii) has not (A) entered into or been subject to
any Order with respect to any environmental or health and
safety matter relating to its business or any of its
properties or facilities, (B) received notice under the
citizen suit provision of any of such Legal Requirements in
connection with its business or any of its properties or
facilities, (C) received any request for information, notice,
demand letter, administrative inquiry or formal or informal
complaint or claim with respect to any environmental or health
and safety matter relating to its business or any of its
properties or facilities or (D) been subject to or to its
knowledge threatened with any governmental or citizen
enforcement action with respect to any environmental or health
and safety matter relating to its business or any of its
properties or facilities. To the knowledge of the Xtrana, no
lien or encumbrance has been imposed on any of the properties
or facilities of Xtrana by any governmental authority in
connection with the presence of any hazardous materials.
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(f) INTELLECTUAL PROPERTY. (i) Xtrana has obtained a full
assignment of all right, title and interest in and to (and is
the owner of) the Intellectual Property (including, without
limitation, the Patents) to be assigned pursuant to this
Agreement to AB; (ii) the Intellectual Property (or Xtrana's
use of the same) is not the subject of and has not been the
subject of any litigation or dispute with any third party with
respect to infringement, misappropriation or validity,
inventorship or priority of invention; (iii) to the best of
its knowledge, the Intellectual Property (and Xtrana's use or
acquisition of the same) does not infringe or misappropriate
any third party rights and all Intellectual Property claimed
by any of the Patents is valid and enforceable; (iv) it has
received no notice of such litigation, disputes or any cease
and desist letter or offers to license the intellectual
property rights of any third party which such rights are
allegedly necessary to practice the Intellectual Property; (v)
except as set forth in Section 3, it has not granted any
license under the Intellectual Property to any third party;
and (vi) there are no liens, encumberances or security
interests on the Intellectual Property.
(g) USE OF PROCEEDS. Xtrana is not entering into this Agreement or
the other Transaction Documents as part of a scheme or plan to
avoid payment of any Liabilities, and acknowledges that AB is
relying on this representation by Xtrana and Xtrana's covenant
in Section 13(g) below in entering into this Agreement and the
other Transaction Documents and agreeing to consummate the
transactions contemplated hereby and thereby.
(h) NO BROKERS. Other than Westridge Associates, LLC, whose fees
in the amount of [$250,000] shall be entirely borne by Xtrana
and paid by Xtrana immediately upon the Closing, no broker,
finder, or similar agent, if any, employed by or on behalf of
Xtrana in connection with this Agreement and the other
Transaction Documents and the transactions contemplated hereby
and thereby will be entitled to the payment of any brokerage
commission, finder's fee, or expenses or any similar
compensation or payment in connection with this Agreement and
the other Transaction Documents and the transactions
contemplated hereby and thereby.
(i) VOTING AGREEMENT. The parties executing the Voting Agreement
with AB concurrently with the execution and delivery of this
Agreement hold shares of capital stock of Xtrana representing,
in the aggregate, 15.1% of the issued and outstanding voting
capital stock and voting power of Xtrana on the date hereof.
9. CONFIDENTIALITY. Except as shall be set forth in the Proxy Statement or
as provided below in this Section, from the Effective Date Xtrana shall
not disclose to any third party (and shall contractually obligate its
officers, directors, employees and representatives in the same manner)
(i) any of the Intellectual Property that is not
12
fully disclosed in any of the Patents, or otherwise in the public
domain; (ii) AB's interest in (and the subject matter of the
negotiations between the Parties with respect to) the Intellectual
Property, or (iii) the existence of, or the terms and conditions of,
this Agreement or the other Transaction Documents, or the status of the
transactions contemplated hereby and thereby. The foregoing
nondisclosure obligation (A) shall not apply to any disclosures
required pursuant to a court order or other applicable law; provided
that Xtrana shall provide AB with prompt written notice any such
requirement and a reasonable opportunity to seek a protective order or
other injunctive relief to limit the extent of such disclosure and (B)
shall not prohibit Xtrana from making disclosures of the terms and
conditions of this Agreement as are necessary to comply with regulatory
requirements of the United States Securities and Exchange Commission,
provided that it gives AB advance notice of, and consults with AB
regarding, any disclosures pursuant to this sentence to the extent
practicable under the circumstances.
10. INDEMNIFICATION.
(a) OF AB BY XTRANA. From and after the Closing, Xtrana shall
indemnify, defend and hold harmless AB and its affiliates,
subsidiaries and permitted assigns, and
successors-in-interest, and their respective officers,
directors, employees, agents, and representatives (as
applicable) (the "AB Indemnitees") from and against (A) any
and all liabilities, losses, costs, damages or expenses
(including court costs and reasonable attorneys' fees)
whatsoever ("Losses") incurred by the AB Indemnitees to the
extent arising from or relating to Xtrana's breach of its
covenants, representations, warranties, or other obligations
hereunder or any third party claims that any of the Patents
infringe an issued United States patent, or any of the
Intellectual Property, solely in the form assigned to AB,
otherwise infringes or misappropriates any intellectual
property rights of a third party, and (B) any and all Retained
Liabilities and any and all Losses incurred by AB arising
therefrom or relating thereto. Notwithstanding the foregoing,
in satisfaction of its indemnification obligation hereunder
for infringement or misappropriation claims relates to the
Intellectual Property assigned to AB, Xtrana, at its sole
option, may obtain for AB licenses (at Xtrana's expense)
reasonably satisfactory to AB from such third parties as
necessary to enable AB to enjoy full use and enjoyment of any
such Intellectual Property that is the subject of such
infringement or misappropriation claim.
(b) OF XTRANA BY AB. From and after the Closing Date, AB shall
indemnify, defend and hold harmless Xtrana and its affiliates,
subsidiaries and permitted assigns, successors-in-interest and
their respective officers, directors and employees (as
applicable) (the "Xtrana Indemnitees") from and against any
and all Losses incurred by the Xtrana Indemnitees to the
extent arising from AB's breach of its covenants,
representations, warranties, or other obligations herein or
13
any claim that intellectual property of AB, other than the
Intellectual Property assigned to AB, infringes or
misappropriates any intellectual property rights of a third
party.
(c) NOTICE; LIMITATIONS. In order for an AB Indemnitee or Xtrana
Indemnitee, as applicable, to be entitled to any
indemnification provided for under this Agreement, such AB
Indemnitee or Xtrana Indemnitee, as applicable, must notify
the indemnifying Party in writing, and in reasonable detail,
of the claim as promptly as reasonably possible after receipt
by such AB Indemnitee or Xtrana Indemnitee, as applicable, of
notice of such claim; provided, however, that failure to give
such notification on a timely basis shall not affect the
indemnification provided hereunder except to the extent the
indemnifying party shall have been actually materially
prejudiced as a result of such failure. Thereafter, the AB
Indemnitee or Xtrana Indemnitee, as applicable, shall,
promptly after the indemnified party's receipt thereof,
deliver to the indemnifying party copies of all notices and
documents (including court papers) received by the AB
Indemnitee or Xtrana Indemnitee, as applicable, relating to
the claim. No party shall be entitled to bring any claim for
indemnity hereunder until, and only to the extent that its
aggregate Losses exceed $50,000. Except with respect to
Retained Liabilities or Fundamental Representations, no Party
shall be entitled to bring a claim for indemnity hereunder
unless notice of such claim has been given under this Section
10 within the date that is eighteen (18) months from the
Closing Date. Neither party shall be liable for Losses
incurred by the other party under this Agreement, whether
claimed by way of indemnification under Section 10 or
otherwise, for any amount in excess of $1,000,000 (the
"Liability Cap"), provided that the Liability Cap shall not
apply to any claims by AB in respect of Retained Liabilities
or Fundamental Representations and any payments to AB in
respect of such claims by AB shall not be considered in
determining whether the Liability Cap has been met. For the
avoidance of doubt, Xtrana's indemnification obligations
pursuant to Section 10 of this Agreement with respect to the
Retained Liabilities and the Fundamental Representations shall
survive Closing and shall not terminate or expire.
(d) DEFENSE OF CLAIM. If one or more AB Indemnitees or Xtrana
Indemnitees, as applicable, makes a claim for indemnification
pursuant to Section 10 (a) or (b) above in respect of any
Proceeding initiated against an indemnified party by a third
party (a "Third Party Claim"), the indemnifying party shall be
entitled to assume the defense thereof and, if it so chooses
and acknowledges in writing its obligation to indemnify the AB
Indemnitees or Xtrana Indemnitees, as applicable, therefor, to
assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the AB
Indemnitees or Xtrana Indemnitees, as applicable, and to
settle such suit, action, claim or proceeding in its
discretion with a full release of the AB Indemnitees or Xtrana
Indemnitees, as applicable,
14
and no admission of liability; provided, that the written
consent of the AB Indemnitees or Xtrana Indemnitee, as
applicable (which shall not be unreasonably withheld) shall be
required for any settlement if as a result thereof the rights
of the AB Indemnitees or Xtrana Indemnitees, as applicable,
may be adversely affected or the AB Indemnitees or Xtrana
Indemnitees, as applicable, would become subject to injunctive
or other equitable relief or any remedy other than the payment
of money by the indemnifying Party . Should the indemnifying
party so elect to assume the defense of a Third Party Claim,
the indemnifying party shall not be liable to the AB
Indemnitees or Xtrana Indemnitees, as applicable, for legal
expenses subsequently incurred by the AB Indemnitees or Xtrana
Indemnitees, as applicable, in connection with the defense
thereof unless (i) the indemnifying party has failed to
vigorously defend, contest or otherwise protest in a timely
manner against Third Party Claims, or (ii) an actual or
potential conflict of interest exists such that separate
representation of the AB Indemnitees or Xtrana Indemnitees, as
applicable, is appropriate or necessary. If the indemnifying
party assumes such defense, the AB Indemnitees or Xtrana
Indemnitees, as applicable, shall have the right to
participate in the defense thereof and to employ counsel, at
their own expense, separate from the counsel employed by the
indemnifying party. The indemnifying party shall be liable for
the reasonable fees and expenses of counsel employed by the AB
Indemnitees or Xtrana Indemnitees, as applicable, for any
period during which the indemnifying party has not assumed the
defense thereof and for any period in which a conflict of
interest exists such that separate representation of one or
more of the Indemnitees is appropriate or necessary. If the
indemnifying party chooses to defend any Third Party Claim,
all the parties hereto shall cooperate in the defense or
prosecution of such Third Party Claim at the expense of the
indemnifying party.
11. CONDITIONS TO CLOSING APPLICABLE TO AB. The obligation of AB to
conclude the transaction at the Closing is subject to the fulfillment
to AB's reasonable satisfaction or waiver of each of the following
conditions as of the date of such Closing:
(a) REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties (including, without limitation the
representations and warranties set forth in Sections 7 and 8
hereto) made by Xtrana herein shall be true and correct when
made, and shall be true and correct as of the Closing as if
made at the Closing; and AB shall have received a certificate
signed on behalf of Xtrana by its Chief Executive Officer and
its Chief Financial Officer, in form and substance reasonably
acceptable to AB and its counsel, confirming the matters set
forth in this paragraph;
(b) Xtrana shall have performed all of the convenants (including,
without limitation, the covenants set forth in Sections 8 and
13 hereto) required to
15
be performed and satisfied on or prior to Closing; and AB
shall have received a certificate signed on behalf of Xtrana
by its Chief Executive Officer and its Chief Financial
Officer, in form and substance reasonably acceptable to AB and
its counsel, confirming the matters set forth in this
paragraph;
(c) STOCKHOLDER APPROVAL. The Stockholder Approval shall have been
validly obtained at a duly convened meeting of Xtrana's
stockholders, and AB shall have received from Xtrana
documentation reasonably requested by AB evidencing such
approval;
(d) SECRETARY'S CERTIFICATE. Xtrana shall have delivered to AB a
certificate of the Secretary of Xtrana, in form and substance
reasonably acceptable to AB and its counsel, certifying: (i)
Xtrana's articles of incorporation and bylaws and good
standing (including a good standing certificate certified by
the relevant secretary of state within 5 days of Closing),
(ii) board resolutions approving this Agreement, the other
Transaction Documents, and the transactions contemplated
hereby and thereby, (iii) the shareholder vote approving this
Agreement, the other Transaction Documents, and the
transactions contemplated hereby and thereby, along with the
number of dissenting shares, if any, and (iv) the incumbency
of the officers executing this Agreement and the other
Transaction Documents and the certificates referenced in
paragraphs (a) and (b) above.
(e) GOVERNMENTAL APPROVAL. Any applicable United States government
regulatory period shall have expired and Xtrana and AB shall
have received all requisite regulatory approvals necessary for
the transactions contemplated by this Agreement;
(f) OTHER TRANSACTION DOCUMENTS. At the Closing, Xtrana shall have
executed and delivered to AB the Patent Assignment and the
Consulting Agreement;
(g) EXISTING LICENSES. The agreements referred to in Section 3
above shall have been terminated as contemplated by such
Section;
(h) LITIGATION. There shall be no Proceedings pending or
threatened (i) with respect to or in any way relating to the
Intellectual Property; (ii) involving any challenge to, or
seeking damages or other relief in connection with, this
Agreement or the other Transaction Documents or the transfer
of the Intellectual Property to AB contemplated hereby or the
consummation of the other transactions contemplated hereby and
thereby; or (iii) that would otherwise have the effect of
preventing, delaying, making illegal, imposing limitations or
conditions on or otherwise interfering with any of the
transactions contemplated by this Agreement and the other
Transaction Documents.
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(i) NO MATERIAL ADVERSE CHANGE. There shall be no material adverse
change in the Intellectual Property.
(j) ADDITIONAL DOCUMENTATION. AB shall have received from Xtrana
such additional documentation as AB may reasonably request
evidencing all corporate and other proceedings to be taken by
Xtrana in connection with this Agreement and the other
Transaction Documents prior to Closing and evidencing the
satisfactions of the other conditions specified in this
Section 11, and such documentation shall be reasonably
acceptable to AB and its counsel.
12. CONDITIONS TO CLOSING APPLICABLE TO XTRANA. The obligation of Xtrana to
conclude the transaction at the Closing is subject to the fulfillment
to Xtrana's reasonable satisfaction or waiver of each of the following
conditions as of the date of such Closing:
(a) REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by AB herein shall be true and correct in
all material respects when made, and shall be true and correct
in all material respects as of the Closing as if made at the
Closing.
(b) STOCKHOLDER APPROVAL. The assignment of the Intellectual
Property by Xtrana to AB shall have been validly approved by
the holders of a majority of the stock of Xtrana at a duly
convened meeting of its stockholders.
(c) LITIGATION. There shall be no litigation filed or threatened
which would seek to challenge the transfer of the Intellectual
Property to AB, or the validity or effect of this Agreement.
13. ADDITIONAL COVENANTS. Upon execution of this Agreement, and prior to
(and to the extent intended below, including parts (h) and (i) and as
specified in parts (b), also upon and following the Closing) the
Closing, Xtrana covenants and agrees that:
(a) Xtrana shall not (directly or indirectly through agents or
representatives) accept, solicit or otherwise entertain offers
from third parties or enter into negotiations of other
discussions with such third parties directed at conveyance of
any rights under the Intellectual Property and Xtrana shall
not grant or attempt to grant to any third party any license,
assignment or other right under the Intellectual Property.
(b) Xtrana shall operate its business only in the ordinary course,
and shall not take any action which might reasonably be
expected to have a material adverse effect on the Intellectual
Property, and without limitation of the
17
foregoing shall pay and perform (both prior to and after
Closing) all of its debts, obligations, and other Liabilities
as they become due and payable.
(c) Xtrana shall use its best efforts to validly convene a meeting
of its stockholders as promptly as practicable following the
execution of this Agreement for the purpose of seeking the
Stockholder Approval; and in connection therewith (i) Xtrana
shall, through its Board of Directors, use its commercially
reasonable efforts to obtain the Stockholder Approval and
shall recommend such approval to its stockholders; and (ii)
Xtrana provide AB promptly with all drafts of the proxy
statement to be used in connection with such meeting (the
"Proxy Statement") and Xtrana shall use commercially
reasonable efforts to file the final draft of such Proxy
Statement with the Securities and Exchange Commission no later
than five (5) business days after the Effective Date;
(d) Xtrana shall preserve the Intellectual Property, free of any
security interests, liens or encumbrances and shall extinguish
all outstanding security interests, liens or encumbrances with
respect to the Intellectual Property and shall provide AB with
documentations substantiating the same;
(e) Xtrana shall give AB prompt written notice after gaining
knowledge of the occurrence or failure to occur of any event
or facts the occurrence (or failure to occur) of which (i)
render any of Xtrana's representations and warranties made
herein as of the Effective Date inaccurate when made, (ii)
could reasonably be expected to cause any of Xtrana's
representations or warranties herein to be untrue or
inaccurate if made as of the Closing; (iii) could result in
Xtrana's failure to comply with or satisfy the covenants made
by it; or (iv) could reasonably be expected to materially
adversely affect the Intellectual Property or AB's full use
and enjoyment thereof after the Closing;
(f) Xtrana shall use commercially reasonable efforts to take all
such actions necessary or advisable to satisfy the conditions
specified herein and consummate the transactions contemplated
by this Agreement and the other Transaction Documents; and
Xtrana shall not take any action or omit to take any action
that would cause any of Xtrana's representations and
warranties contained herein to be untrue as of the Closing.
(g) The Parties agree to waive compliance with the provisions of
any and all "bulk sales" and similar laws applicable to this
Agreement, the other Transaction Documents, and the
transactions contemplated hereby and thereby.
18
(h) Xtrana shall promptly pay and fully discharge any income,
excise, employment, sales or use taxes of Xtrana arising as a
result of the sale, transfer, conveyance or assignment of the
Intellectual Property.
(i) Xtrana shall continue to exist as a corporate entity in good
standing for a period of at least eighteen months following
the Closing. Xtrana agrees that the money paid to it pursuant
to Section 2(f) shall not be distributed to its stockholders
after Closing without (A) first satisfying or adequately
providing for all of its outstanding Liabilities as determined
by the board of directors of Xtrana in the exercise of its
reasonable business judgment, which determination is evidenced
in a formal resolution, and (B) retaining an adequate reserve
for Xtrana's payment of its then-existing and reasonably
anticipated Liabilities (and without limitation of the
foregoing, such reserve will include a retention of no less
than one million dollars ($1,000,000) specifically for the
purpose of potential claims under Section 10 of this Agreement
for no less than eighteen (18) months from the Closing Date),
as determined by its board of directors in the exercise of its
reasonable business judgment as evidenced by a formal
resolution, it being the understanding of AB that Xtrana is
not entering into this Agreement and the other Transaction
Documents as part of a scheme or plan to avoid payment of any
Liabilities. The foregoing requirement to maintain a reserve
of no less than a one million dollars ($1,000,000) shall not
prohibit Xtrana from distributing to its stockholders such
reserve from the money paid to it pursuant to Section 2(f)
after the date which is eighteen (18) months from the Closing
Date if neither AB nor any other AB Indemnitee has any pending
claim under Section 10 of this Assignment Agreement and the
board of directors of Xtrana has determined in the exercise of
its reasonable business judgment, which determination is
evidenced in a formal resolution, that no other Liabilities
exist under this Assignment Agreement. In the event that
Xtrana intends to effect any distribution, then no less than
thirty days prior to any such distribution Xtrana shall
deliver to AB a certificate of its Secretary notifying AB of
such distribution and certifying any of the aforementioned
board resolutions that are required as a condition to such
distribution.
14. TERMINATION. This Agreement may be terminated at any time prior to the
Closing:
(a) by AB, in a writing, should one or more of the conditions set
forth in Section 11 (Conditions to Closing Applicable to AB)
fail to be satisfied on or prior to the Closing within the
time frame set forth in Section 14(c) below, provided that
such failure to satisfying such conditions is not the result
of a breach by AB of its obligations hereunder; or
(b) by Xtrana, in a writing, should one or more of the conditions
set forth in Section 12 (Conditions to Closing Applicable to
Xtrana) fail to be satisfied on or prior to the Closing within
the time frame set forth in Section 14(c)
19
below, provided that such failure to satisfy such conditions
is not the result of a breach by Xtrana of its obligations
hereunder; or
(c) by AB or Xtrana, in a writing, if the Closing does not occur
on or prior to (i) the date that is two (2) months after
Xtrana files a definitive Proxy Statement with the Securities
and Exchange Commission, if the Securities and Exchange
Commission does not review Xtrana's Proxy Statement, and (ii)
September 15, 2004 if the Securities and Exchange Commission
does review Xtrana's Proxy Statement, but a Party may not seek
termination under this Section 14(c) if the failure to
consummate a Closing by the dates set forth in parts (i) and
(ii) above is a result of a breach of a duty or obligation
hereunder of the Party seeking such termination.
(d) Automatically without further action on the part of either
Party if Xtrana holds a meeting for purposes of obtaining the
Stockholder Approval, and such Stockholder Approval is not
obtained at that meeting.
In the event of such termination, no party shall have any obligation or
liability to any other in respect to this Agreement, except for any
liabilities that may arise from the conduct of the parties prior to
such termination, including without limitation any breach of contract
or misrepresentation occurring prior to such termination.
15. EFFECTS OF CLOSING. Unless expressly provided herein to the contrary,
all rights, obligations, representation and warranties of the Parties
shall survive any investigation made by the Parties and shall survive
Closing of this Agreement.
16. SEVERABILITY. If any provision hereof should be held invalid, illegal
or unenforceable in any respect, then, to the fullest extent permitted
by applicable law: (a) all other provisions hereof shall remain in full
force and effect and shall be liberally construed in order to carry out
the intent of the Parties as nearly as may be possible, and (b) the
Parties agree to use their commercially reasonable efforts to negotiate
a provision, in replacement of the provision held invalid, illegal or
unenforceable, that is consistent with applicable law and accomplishes,
as nearly as possible, the original intention of the Parties with
respect thereto. To the fullest extent permitted by applicable law,
each Party hereby waives any provision of law that would render any
provision hereof prohibited or unenforceable in any respect.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving
effect to rules of conflict of laws. The Parties hereby agree to
designate San Francisco, California as the appropriate venue for any
litigation relating to this Agreement.
20
18. NOTICES. All notices or other communications that are required or
permitted hereunder shall be in writing and delivered personally, sent
by facsimile (and promptly confirmed by personal delivery, registered
or certified mail or overnight courier), sent by nationally-recognized
overnight courier or sent by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to AB: Applied Biosystems
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Intellectual Property,
Legal Department
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Xtrana: Xtrana, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Chief Executive Officer
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Markiles, LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the Party to whom notice is to be given may
have furnished to the other Party in writing in accordance herewith.
Any such communication shall be deemed to have been given (i) when
delivered, if personally delivered or sent by telecopier on a business
day, (ii) on the business day after dispatch, if sent by
nationally-recognized overnight courier, and (iii) on the third
business day following the date of mailing, if sent by mail. It is
understood and agreed that this Section is not intended to govern the
day-to-day business communications necessary between the Parties in
performing their duties, in due course, under the terms of this
Agreement.
19. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement sets forth and
constitutes the entire agreement and understanding between the Parties
with respect to the subject matter hereof and all prior agreements,
understanding, promises and representations, whether written or oral,
with respect thereto are superseded hereby. Each Party confirms that it
is not relying on any representations or warranties of the other Party
except for the representations or warranties specifically set forth in
this Agreement. No amendment, modification, release or discharge hereof
shall be binding upon the Parties unless in writing and duly executed
by authorized representatives of both Parties.
21
20. CONSTRUCTION. Except where the context otherwise requires, wherever
used, the singular shall include the plural, the plural the singular,
the use of any gender shall be applicable to all genders and the word
"or" is used in the inclusive sense. The captions and headings of this
Agreement are for convenience of reference only and in no way define,
describe, extend or limit the scope or intent of this Agreement or the
intent of any provision contained in this Agreement. Both Parties been
represented by counsel and have participated equally in the formation
of this Agreement; the language of this Agreement shall not be
presumptively construed against either Party.
21. RELATIONSHIP OF THE PARTIES. It is expressly agreed that the Parties
are independent contractors and that the relationship between the two
Parties shall not constitute a partnership, joint venture or agency.
22. EQUITABLE RELIEF. Notwithstanding anything herein to the contrary,
nothing in this Agreement shall preclude either Party from seeking
interim or provisional relief, in the form of a temporary restraining
order, preliminary injunction or other interim equitable relief as
necessary to protect the interests of such Party.
23. WAIVER. The waiver by either Party hereto of any right hereunder or the
failure to perform or a breach by the other Party shall not be deemed a
waiver of any other right hereunder or of any other breach or failure
by said other Party whether of a similar nature or otherwise.
24. COUNTERPARTS. This Agreement may be executed (including via facsimile
or other electronic means of transmitting signed copies) in mutliple
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
25. NO BENEFIT TO THIRD PARTIES. Except for the rights in Section 10, which
are for the express benefit of the indemnitees identified therein, the
representations, warranties, covenants, rights and obligations set
forth in this Agreement are for the sole benefit of the Parties and
their successors and permitted assigns, and they shall not be construed
as conferring any rights on any other third parties.
26. SUCCESSORS AND ASSIGNS. This Agreement and the other Transaction
Documents will apply to, be binding in all respects upon, and inure to
the benefit of the successors and assigns of the parties.
22
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
APPLERA CORPORATION, THROUGH ITS
APPLIED BIOSYSTEMS GROUP XTRANA, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ BY: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- ---------------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: Senior Vice President TITLE: Chief Executive Officer
23