Confidential Treatment Requested
Under 17 C.F.R. Sections
200.80(b)(4), 200.83 and 230.406
*** Indicates omitted material that
is the subject of a confidential
treatment request filed separately
with the Commission.
This EARLY ACCESS PROGRAM AGREEMENT (this "Agreement") is entered into as of
this 31st day of December, 1998 (the "Effective Date") by and between CELERA
GENOMICS CORPORATION, a Delaware corporation ("Celera", as defined hereinbelow),
having its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and AMGEN INC. ("Amgen", as defined hereinbelow), a Delaware
corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WHEREAS, it is Celera's intent to undertake the sequencing of the
DROSOPHILA and human genomes;
WHEREAS, Celera has expended and will continue to expend significant
resources and efforts to develop the Celera Database and Analysis Products and
the Subscriber Information System, as hereinafter defined;
WHEREAS, the Celera Database and Analysis Products and the Subscriber
Information System represent highly valuable and confidential assets;
WHEREAS, Amgen desires to obtain access to the Celera Database and
Analysis Products and the Subscriber Information System as a part of Celera's
Early Access Program, as hereinafter defined;
WHEREAS, the objective in providing early access to the Celera Database
and Analysis Products and the Subscriber Information System is to provide Amgen
with the ability to analyze and discover information of potential interest to
Amgen;
WHEREAS, it is recognized by Amgen that the comprehensive nature of the
content and analysis capabilities of the Celera Database and Analysis Products
and the Subscriber Information System is contingent upon the generation,
assimilation and annotation of DNA Sequence Information, as hereinafter defined,
and associated product development and as such will develop over time;
NOW, THEREFORE, the parties agree as follows:
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1.0 DEFINITIONS
For purposes of this Agreement, each capitalized term used shall have the
meaning assigned to it in this Agreement.
1.1 "Amgen" shall mean Amgen Inc. and Amgen Affiliates.
1.2 "Amgen Affiliate" shall mean any corporation, firm, partnership or
other legal entity which, directly or indirectly, controls, is controlled by, or
is under common control with Amgen Inc. For purposes of this definition, control
shall mean the direct or indirect ownership of more than eighty percent (80%) of
(i) the stock shares entitled to vote for the election of directors or (ii)
ownership interest of any such corporation, firm, partnership or other legal
entity.
1.3 "Amgen Information System" shall have the meaning set forth in Section
3.2.2.
1.4 "Amgen Know-How" shall mean all proprietary data, information, inventions,
know-how, technology, trade secrets and the like including, but not limited to,
each and every nucleotide sequence (e.g., each and every Secreted Protein Gene
and Related Gene(s) thereof, and genes encoding cell surface proteins, cell
membrane and/or intracellular proteins) whether as genomic DNA, cDNA, synthetic
DNA, RNA or the like, including sense and antisense strands thereof, ribozyme
containing any of the foregoing, vector containing any of the foregoing, gene
therapy delivery system or control system containing any of the foregoing, host
cell containing any of the foregoing, amino acid sequences encoded by any of the
foregoing (e.g., peptides and proteins, including each and every protein encoded
by a Secreted Protein Gene and Related Gene thereof and cell surface, cell
membrane and/or intracellular proteins), antibody (e.g., antibodies which bind
to any of the foregoing), formulations of any of the foregoing (e.g., gene
therapy and protein pharmaceutical formulations), and process and use of any of
the foregoing, whether patentable or not, which are identified, discovered,
developed or invented during or after the Term of the Amgen Subscription in
whole or part by Amgen using Celera resources including the Celera Database and
Analysis Products and the Subscriber Information System, in accordance with the
terms in Section 2.0.
1.5 "Amgen Server" shall mean a dedicated computer server designed for
effective utilization of the Amgen Subscription, which is the dedicated server
for the Subscriber Information System, as defined in Exhibit A.
1.6 "Amgen Subscription" shall mean the use of the Subscriber Information
System and the Celera Database and Analysis Products for human and DROSOPHILA
genomes governed by the terms of the Agreement.
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1.7 "Amgen Subscription Log" shall mean the automated electronic record of
Amgen's access and usage of the Celera Database and Analysis Products.
1.8 "Analysis Tools" shall mean all algorithms and software listed in Exhibit B,
and all algorithms and software similar in function to those described in
Exhibit B, and which are released as a product during the Term of the Amgen
Subscription, and which are owned by or licensed to Celera with the right to
sublicense.
1.9 "Annotation Information" shall mean information, derived from both
internal and external sources by Celera, that is associated with DNA Sequence
Information and External DNA Sequence Information, including but not limited
to, [***].
1.10 "Celera" shall mean Celera Genomics Corporation and Celera Affiliates.
1.11 "Celera Affiliate" shall mean any corporation, firm, partnership or other
legal entity which, directly or indirectly, is controlled by Celera Genomics
Corporation. For purposes of this definition, control shall mean the direct or
indirect ownership of more than fifty percent (50%) of (i) the stock shares
entitled to vote for the election of directors or (ii) ownership interest of any
such corporation, firm, partnership or other legal entity.
1.12 "Celera Database and Analysis Products" shall mean the DNA Sequence
Information, External DNA Sequence Information, Annotation Information, Analysis
Tools, or other resource(s) which are necessary or useful for analyzing or
discovering information and which may be offered each as separate, distinct
products, or may be combined as integrated products.
1.13 "Celera Discovery System" shall mean the informatics infrastructure and
database internal to Celera which is the source of the contents for all Celera
Database and Analysis Products.
1.14 "Celera Know-How" shall mean, other than Amgen Know-How, all proprietary
data, information, inventions, know-how, technology, trade secrets and the like,
including, but not limited to, each and every nucleotide sequence (e.g., each
and every Secreted Protein Gene and Related Gene(s) thereof, and genes encoding
cell surface proteins, cell membrane and/or intracellular proteins) whether as
genomic DNA, cDNA, synthetic DNA, RNA or the like, including sense and antisense
strands thereof, ribozyme containing any of the foregoing, vector containing any
of the foregoing, gene therapy delivery system or control system containing any
of the foregoing, host cell containing any of the foregoing, amino acid
sequences encoded by any of the foregoing (e.g., peptides and proteins,
including each and every protein encoded by a Secreted Protein Gene and Related
Gene thereof and cell surface, cell membrane and/or intracellular
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proteins), antibody (e.g., antibodies which bind to any of the foregoing),
formulations of any of the foregoing (e.g., gene therapy and protein
pharmaceutical formulations), and process and use of any of the foregoing and
Polymorphism Information, whether patentable or not, which are identified,
discovered, developed, or invented in whole or part by Celera, independent of
Amgen, using Celera resources including Celera Database and Analysis Products.
1.15 "Celera Patent Rights" shall mean each and every of the following
intellectual property rights which are owned by Celera on or after the Effective
Date, for which an Amgen employee or agent is not an inventor of any of the
claimed subject matter and for which Celera possesses the right to grant
exclusive licenses or sublicenses, in whole or part: (i) any and all patent
applications, which claim Celera Know-How, filed or having legal force in any
country within the world; (ii) those claims of any and all patents that have
issued or in the future issue from the foregoing patent applications in Section
1.15(i), including utility, model and design patents and certificates of
invention; and (iii) those claims of all divisionals, continuations,
continuations-in-part, reissues, renewals, extensions or additions to any such
patent applications in Section 1.15(i) and patents in Section 1.15(ii).
1.16 "Confidential Information" shall have the meaning as set forth in Section
7.0.
1.17 "Default" shall mean a Performance Default and/or Representation Default.
1.18 "Defaulting Party" shall have the meaning set forth in Section 9.2.1.
1.19 "DNA Sequence Information" shall mean the [***] human and DROSOPHILA
nucleotide sequences from nucleotide templates sequenced through Celera's
internal sequencing programs and released to the Celera Discovery System.
1.20 "Early Access Program" shall mean a program through which customers gain
access to the Celera Database and Analysis Products for no less than the amount
of the Subscription Fee specified in Section 5.1 and have the ability to provide
input for consideration in the development of the Subscriber Information System
and the Celera Database and Analysis Products.
1.21 "Early Access Program Forum" shall have the meaning set forth in Section
4.0.
1.22 "External DNA Sequence Information" shall mean the [***] human and
DROSOPHILA nucleotide sequences and associated annotation that are obtained
by Celera from external sources.
1.23 "First Extension Subscription Fee" shall have the meaning set forth in
Section 5.1.
▇-▇
▇.▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇" shall have the meaning set forth in Section
2.3.1(b).
1.25 "Indemnitee" shall have the meaning set forth in Section 11.3
1.26 "Indemnitor" shall have the meaning set forth in Section 11.3.
1.27 "Initial Term" shall have the meaning set forth in Section 2.3.1(a).
1.28 "Non-Defaulting Party" shall have the meaning set forth in Section 9.2.1.
1.29 "Notice of Default" shall have the meaning set forth in Section 9.2.1.
1.30 "Performance Default" shall have the meaning set forth in Section 9.2.1.
1.31 "Phase I" shall mean the period prior to completion of sequencing and
assembling the human genome as set forth in Section 3.1.1.
1.32 "Phase II" shall mean the period following completion of sequencing and
assembling the human genome as set forth in Section 3.1.2.
1.33 "Polymorphism Information" shall mean the variations between haplotypes
that occur in a nucleotide sequence and are contained in the Celera Discovery
System, other than those publicly known variations between haplotypes.
1.34 "Representation Default" shall have the meaning set forth in Section 9.2.1.
1.35 "Secreted Protein Gene" shall mean each and every nucleotide sequence
(e.g., genomic DNA, cDNA, synthetic DNA, RNA or the like, including sense and
antisense strands thereof), encoding each protein that is [***].
1.36 "Subscriber Information System" or "System" shall mean the computer
hardware configuration and requirements, the database structure and any other
aspect of the system required for the utilization of the Celera Database and
Analysis Products as further described in Exhibit A attached hereto.
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1.37 "Subscription Fee" shall have the meaning set forth in Section 5.1.
1.38 "Term of the Amgen Subscription" shall mean the period from the Effective
Date through the fifth anniversary thereof, and any extensions thereof pursuant
to Sections 2.3.1 and 3.6. In the event the Term of the Amgen Subscription shall
have been extended for a period of time under Section 3.6, the dates of any
notice or payment due with respect to the Amgen Subscription will be extended
for the same period of time as the period of time by which the Amgen
Subscription shall have been extended.
1.39 "Third Party" shall mean any individual, partnership, joint venture,
corporation, trust, estate, unincorporated organization, government or any
department or agency thereof, or any other entity other than Amgen or Celera.
1.40 "Third Party Contractor" shall mean a Third Party contracted by Celera to
conduct portions of the Amgen Subscription.
2.0 AMGEN SUBSCRIPTION: LICENSE
2.1 LICENSE GRANT: For good and valuable consideration, the receipt of which is
hereby acknowledged, subject to the terms and conditions contained in this
Agreement, Celera hereby grants to Amgen for the Term of the Amgen Subscription,
a non-exclusive, non-transferable license, with no right to sublicense, to the
Amgen Subscription for Amgen's internal research and development programs for
the purpose of developing Amgen Know-How for the research, development and
commercialization of products.
2.1.1 The Amgen Subscription does not include any rights to any
Polymorphism Information that may be contained in the Celera Database and
Analysis Products. However, in the event Amgen analyzes DNA Sequence
Information which contains a site on which Polymorphism Information resides,
Amgen may conduct research and development on such DNA Sequence Information
in accordance with Section 2.1, [***]. Such Polymorphism Information may be
made available to Amgen and other customers in the future and shall be
negotiated under a separate agreement, [***].
2.2 AUTHORIZED USE: Amgen shall have the right to use the Celera Database and
Analysis Products and the Subscriber Information System for the purposes
expressly permitted under this Agreement, including the licenses granted under
Section 2.1. Except as set forth in the preceding sentence or as otherwise
agreed upon by Celera in writing,
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Amgen shall not reproduce, adapt, prepare derivative works based upon, or
distribute computer readable copies (by any means whatsoever whether now known
or hereafter invented) of the Celera Database and Analysis Products or of the
Subscriber Information System, including any portion of the Celera Database and
Analysis Products or from any field of any database included therein, for any
purpose other than for the purposes described herein. Amgen agrees that it shall
restrict access to the Celera Database and Analysis Products and the Subscriber
Information System only to Amgen and Amgen employees, consultants and
contractors, solely to the extent required to accomplish the purpose of this
Agreement subject to the provisions of Section 7.0.
2.3 AMGEN SUBSCRIPTION:
2.3.1 TERM.
(a) Unless terminated earlier as provided herein, the Amgen
Subscription shall extend and remain in full force from the Effective Date
through the fifth anniversary thereof ("Initial Term"), unless extended in
accordance with Section 2.3.1 (b) or 2.3.1 (c).
(b) Amgen shall provide Celera with notice within ninety
(90) days prior to the expiration of the Initial Term of Amgen's intent to
extend the Initial Term and the parties have mutually agreed in writing to
extend the Initial Term (which agreement shall not be unreasonably withheld),
the Term of the Amgen Subscription shall be extended for an additional [***]
period following the Initial Term under the terms and conditions set forth
herein ("First Extension Term").
(c) If the parties so agree in writing at least ninety (90)
days prior to the [***] of the Effective Date, the Term of the Amgen
Subscription shall then be extended for [***], under the terms and conditions
set forth herein.
2.3.2 EFFECTS OF TERMINATION. Upon any termination or expiration of the
Amgen Subscription:
(a) Termination or expiration shall not affect (i) Amgen's
rights to continue using DNA Sequence Information or External DNA Sequence
Information which is then being used in experiments conducted by Amgen prior to
such termination in accordance with the terms of Section 2.0; (ii) Amgen's
rights under Section 8.0, including its right, title and interest in and to the
Amgen Know-How; or (iii) its obligations under Sections 8.1. and 2.1.1.
(b) Amgen shall cease use of the Subscriber Information System
and the Celera Database and Analysis Products under its license under Section
2.0, provided
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however, that in the event of termination of the Amgen Subscription by reason of
Default by Celera, Amgen shall have the right through any period for which it
has paid the Subscription Fee to continue use of the Subscriber Information
System and the Celera Database and Analysis Products in accordance with the
license under Section 2.0.
(c) Amgen shall have the right to remove the Amgen Information
System from the Amgen Server.
(d) In the event of termination of the Amgen Subscription by
reason of Default by Amgen, Amgen shall, within thirty (30) days following
written notice by Celera, pay to Celera a termination fee equal to the
Subscription Fee plus the total fees for all prior and current extensions beyond
the Initial Term under Sections 2.3.1(a), (b) and (c) less the total of all
subscription fees for the Initial Term and all such prior and current extensions
received by Celera as of the date of such notice.
2.4 ACCESS TO AMGEN SUBSCRIPTION LOG: Celera shall have the right to access and
examine the Amgen Subscription Log (i) to review a performance monitor of the
Amgen Server and (ii) upon Celera's reasonable suspicion of Amgen's unauthorized
use under the Amgen Subscription, provided Amgen shall be present.
3.0 AMGEN SUBSCRIPTION: DELIVERY MECHANISM, PLATFORM,
INSTALLATION, TRAINING AND CUSTOMER SUPPORT
3.1 PHASED DELIVERY: During the Term of the Amgen Subscription, Celera
anticipates utilizing a phased delivery mechanism as described herein for the
delivery of the Amgen Subscription, provided that with the consent of Amgen
(which shall not be unreasonably withheld), Celera reserves the right to modify
the delivery mechanism during Phase I; and further provided that modification of
the delivery mechanism shall not otherwise alter Celera's obligations under this
Agreement.
3.1.1 PHASE I -- PRIOR TO HUMAN GENOME COMPLETION. The System
configuration during Phase I of the sequencing of the human genome will
require the [***]. The Amgen Server will receive data updates directly from
the Celera Discovery System for the Celera Database and Analysis Products of
the Amgen Subscription, in accordance with the terms of Section 3.3. The
Analysis Tools provided as a part of the Amgen Subscription, and specified in
Exhibit B, will reside on the Amgen Server. During Phase I, data queries and
query results will be [***] Amgen (at Amgen's facilities in Thousand Oaks,
California) via an on-line, secured, network line, or via another secure
mechanism selected by mutual agreement. During Phase I, human and DROSOPHILA
genome information that will be replicated from the Celera Discovery System
to the Amgen
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Server as part of the Amgen Subscription will consist of DNA Sequence
Information. Such DNA Sequence Information shall be transferred with the
associated quality values.
3.1.2 PHASE II -- POST-HUMAN GENOME COMPLETION. Upon completion of
the sequencing of the human genome, Amgen may, at its discretion and expense,
modify the manner in which it accesses data from Celera as follows: the
System configuration during Phase II [***]. DNA Sequence Information,
Annotation Information and External DNA Sequence Information updates from the
Celera Discovery System to the Amgen Server at Amgen's designated site will
be conducted via an online, secure, network line, or via another secure
mechanism selected by mutual agreement.
3.2 SYSTEM PROVISIONS:
3.2.1 SYSTEM CONFIGURATION. The System consists of a predefined
hardware infrastructure designed to meet the requirements necessary to
facilitate the use of the Amgen Subscription. See Exhibit A for the hardware
infrastructure configurations required to provide access to the Amgen
Subscription. At its own expense, Celera shall be responsible for any
maintenance of the System; provided however, that if a malfunction of the System
shall be caused by Amgen, at Amgen's expense and with Amgen's prior approval
Celera shall be responsible for any maintenance, upgrades, improvements or
replacements of the System.
3.2.2 AMGEN SYSTEM REQUIREMENTS. Any additional hardware, software and
communications infrastructure, including information system resources and Amgen
algorithms and analysis tools, not set forth in Exhibit A ("Amgen Information
System") will be the financial responsibility of Amgen. In addition, any
upgrades, improvements or replacements of the Amgen Information System will also
be the financial responsibility of Amgen. Celera shall, at Amgen's expense,
perform such upgrades, improvements or replacements on the Amgen Server that are
requested by Amgen.
3.3 UPDATE FREQUENCY: All new information generated during and pertaining to
the Amgen Subscription will be transferred to the Amgen Server on a regular
basis beginning upon generation of such information by Celera. Updates will
be regularly scheduled events that require all applications to be terminated
and the Amgen Server to be shut down for such updates to occur. During Phase
I Celera shall use commercially reasonable efforts to transfer all generated
DNA Sequence Information from the Celera Discovery System to the Amgen Server
promptly upon its being generated, but in no event less frequently than [***]
after being generated. During Phase II, Celera shall use commercially
reasonable efforts to transfer all generated DNA Sequence Information,
Annotation Information and External DNA Information from the Celera Discovery
System to the Amgen Server on a frequency of at least [***]. During Phase I
and Phase II, Celera shall make all DNA Sequence Information available to
Amgen not
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later than when Celera first makes such DNA Sequence Information, Annotation
Information and External DNA Information available to a Third Party or available
to Celera's internal gene discovery server. In the event Celera releases new
Analysis Tools such Analysis Tools shall be made available to Amgen [***].
3.4 INSTALLATION: Not later than sixty (60) days after the Effective Date,
Celera agrees to provide Amgen with access to the Subscriber Information System
for the purpose of installing the Amgen Information System at a date and time
mutually acceptable on a basis consistent with terms of this Agreement. The
integration of the Amgen Information System into the Subscriber Information
System and costs associated with such integration shall be the responsibility of
Amgen.
3.5 TRAINING: Celera will provide Amgen with all necessary documentation and
information for utilization of the Celera Database and Analysis Products and the
Subscriber Information System provided under the Amgen Subscription. From
time-to-time during the Term of the Amgen Subscription, Amgen may request Celera
to train Amgen employees regarding the use of the Amgen Subscription. The
specific topics of the training relating to use of the Amgen Subscription will
be as requested by Amgen. The training will occur within fifteen (15) business
days of a request by Amgen or as otherwise mutually agreed at a time mutually
acceptable to the parties, provided, however, no training will be conducted
prior to installation, pursuant to Section 3.4. The training will take place at
Celera's facility in Rockville, MD or other location designated by Celera. Each
party shall bear all out-of-pocket expenses of its own employees in connection
with any training activities.
3.5.1 INITIAL TERM. Amgen may designate [***] employees in groups of
not less [***] employees to receive such training, provided however, that
Amgen will not designate more [***] employees for training during the [***]
years of the Amgen Subscription. Celera shall provide Amgen with [***]
consecutive business days of training services per employee, if requested by
Amgen.
3.5.2 DURING FIRST EXTENSION TERM. In the event Amgen elects under
Section 2.3.1(b) to extend the Amgen Subscription through the period of the
First Extension Term, Amgen may designate up to a total [***] to receive such
training in [***]. Celera shall provide Amgen with up to [***] business days
of training services per employee, if requested by Amgen.
3.5.3 AFTER FIRST EXTENSION TERM. In the event Amgen elects under
Section 2.3.1(c) to further extend the Term of the Subscription beyond the
period of the First Extension Term, Amgen may designate up to a total [***]
to receive such training in a single training session. Celera shall provide
Amgen with up to
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[***] business days of training services per employee, if requested by Amgen.
3.5.4 ADDITIONAL TRAINING. Additional days of training and/or
participants may be negotiated separately.
3.6 CUSTOMER SUPPORT: Celera shall provide customer support services in
connection with the Amgen Subscription as shall be reasonably requested by
Amgen. Celera shall provide for telephone support between the hours of 8:00
A.M. to 6:00 P.M. Eastern Time, Monday through Friday, excluding Celera's
standard holidays. As part of the customer support services provided under
this Agreement, [***]. In the event of a malfunction of the Amgen Server,
Celera agrees to use commercially reasonable efforts to correct the
malfunction within twenty-four (24) hours after having notice thereof. Amgen
shall cooperate and participate in the correction of such malfunction. If
Celera shall be unable to correct the malfunction within such twenty-four
(24) hour period, Celera shall promptly contact Amgen and the parties will
use good faith efforts to discuss reasonable alternatives until the
malfunction shall be corrected. [***].
3.7 RESEARCHER CONTRACTS: Each employee or Third Party (e.g., consultant,
collaborator or Third Party Contractor of Celera) conducting work related to the
Amgen Subscription and having access to Amgen Confidential Information shall
sign a non-disclosure agreement pursuant to which such person will agree to
comply with all of Celera's obligations set forth herein, specifically including
abiding by the obligations of confidentiality and non-use set forth in Section
7.0.
3.8 REPORTS: For each year of the Term of the Amgen Subscription, Celera shall
provide Amgen, within ten (10) business days prior to the anniversary of the
Effective Date, with an annual written report detailing Celera's activities with
respect to the past year concerning Celera's performance of certain milestones
set forth in Exhibit C during the Term of the Amgen Subscription while any such
milestones remain outstanding.
4.0 EARLY ACCESS PROGRAM FORUM
Amgen will have the right and opportunity to participate in the Early Access
Program Forum ("Forum"). This Forum will meet at least quarterly and will be
attended by representatives from each of the customers of the Early Access
Program and members of Celera's staff. The purpose of the Forum will be to
exchange ideas on future Celera product enhancements and to communicate Celera's
vision for the expected course of product development. Each customer shall bear
all out-of-pocket expenses of its own
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representatives to attend the Early Access Program Forum. All disclosures made
by Celera at any such Forum meetings shall be subject to the confidentiality
provisions of Section 7.0.
5.0 SCHEDULE OF PAYMENTS
5.1 SUBSCRIPTION FEES: The subscription fee for the Amgen Subscription for
the Initial Term shall be a total of [***] payable in accordance with the
terms of Sections 5.2 and 5.4 below (the "Subscription Fee"). The
subscription fee for the First Extension Term shall be the then-current fee
for similar rights to use the Celera Database and Analysis Products [***] and
such fee shall be payable in accordance with the terms of Sections 5.3.1 and
5.4 below (the "First Extension Subscription Fee"). Subscription fees for any
subsequent extensions of the Amgen Subscription shall be in the amount and be
payable in accordance with Section 5.3.2 below.
5.2 INITIAL TERM: [***]. Amgen shall pay Celera a payment [***] within thirty
(30) days of the Effective Date. Amgen will make payments [***] anniversaries
of the Effective Date. On or before the [***] anniversary of the Effective
Date, Amgen shall pay Celera a [***] payment in the amount of [***]. In the
event the final payment set forth in Section 5.4 below shall have been
accelerated in accordance with such Section 5.4 prior to the due date of the
[***] payment, such [***] payment shall be [***].
5.3 EXTENSION OF THE AMGEN SUBSCRIPTION:
5.3.1 Payments for the annual subscription shall be made annually in
advance. In the event the Amgen Subscription shall be extended pursuant to
Section 2.3.1(b), Amgen will make a payment [***] of the First Extension
Subscription Fee on or before each of [***] of the Effective Date.
5.3.2 In the event the Amgen Subscription shall be further extended
pursuant to Section 2.3.1(c), for [***] the Amgen Subscription shall be so
extended, Amgen will make [***] to use the Celera Database and Analysis
Products, in advance, of the commencement of [***], the Amgen Subscription
shall be extended.
5.4 FINAL PAYMENT: Within thirty (30) days after receipt of the annual report
for the final year of the Term of the Amgen Subscription in accordance with
Section 3.8, Amgen
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shall make a [***]. In the event the annual report requirement under Section
3.8 shall be no longer required any such amounts deferred as a final payment
will be accelerated and due upon delivery of the last such required annual
report.
5.5 EFFECT OF MILESTONES ON PAYMENT TIMING: Payment of all fees hereunder will
be non-refundable and payment of each annual subscription fee will be
conditioned upon Celera's completion of certain milestones for the previous year
set forth in Exhibit C attached hereto (such milestones will be considered
complete upon the mutual agreement of the parties, and such agreement not to be
unreasonably withheld). Payments deferred as a result of Celera's milestone
performance will be cumulative and will be due and payable when the specific
milestone shall have been achieved.
5.6 MODE OF PAYMENT: All payments under this Agreement will be made in U.S.
dollars by deposit to the credit and account of Celera or its designated nominee
in any commercial bank designated by Celera or in an alternative mutually
agreed-upon manner.
5.7 FAILURE BY AMGEN TO MAKE TIMELY PAYMENT: In the event Celera shall not
received payment by the prescribed due date, Celera shall notify Amgen in
writing of such non-payment. In the event that a payment shall not have been
made within thirty (30) days of receipt of such notice from Celera, Celera shall
have the right to terminate access to the Amgen Server and the data and
information contained therein in addition to any other remedies which may be
available to Celera at law or equity until Amgen makes such payment. In the
event that such payment shall not have been made within sixty (60) days of
receipt of such notice, Amgen shall be considered to be in Default. Celera shall
have the right to immediately terminate the Amgen Subscription upon such
Default. Notwithstanding anything to the contrary in this Section 5.7, Amgen
shall not be considered to be in Default if such payment shall be withheld in
accordance with Section 9.2.2.
[***]
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7.0 CONFIDENTIALITY AND PUBLICATION
7.1 CONFIDENTIALITY: The parties acknowledge that during the course of this
Agreement they may each receive from the other information which is proprietary
and/or confidential and of commercial value to the disclosing party. For
purposes of this Agreement, "Confidential Information" shall mean business
information and technical information relating to the Amgen Subscription, Amgen
Know-How, Amgen Information System, Celera Database and Analysis Products,
Subscriber Information System, and Celera Know-How, belonging to the disclosing
party, including, where appropriate and without limitation, any associated
information, business, financial and scientific data, Annotation Information,
DNA Sequence Information, invention disclosures, patent disclosures, patent
applications, structures, models, techniques, processes, compositions,
compounds, biological samples, and the like, and bioinformatics methods,
hardware configurations and software in various stages of development or any
software product (source code, object code or otherwise), including its
audiovisual components (menus, screens, structure and organization) and any
human or machine readable form of the program, and any writing or medium in
which the program or information therein is stored, written or described,
including, without limitation, diagrams, flow charts, designs, drawings,
specifications, models, data, bug reports, and the like. Except to the extent
expressly authorized by this Agreement, the parties agree that the receiving
party shall keep confidential and shall not publish or otherwise disclose, and
shall not use for any purpose (except those expressly permitted under this
Agreement), any Confidential Information furnished to it by the other party
pursuant to this Agreement, regardless of the medium on which it is provided,
including know-how, except to the extent that it can be established by the
receiving party by competent proof that such information:
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure by the other party;
(b) was generally known to the public or otherwise part of the public
domain at the time of its disclosure to the receiving party;
(c) became generally available to the public or otherwise part of the
public domain after its disclosure other than through no fault of the receiving
party;
(d) was subsequently lawfully disclosed to the receiving party by a
Third Party who did not require the receiving party to hold it in confidence or
limit its use, provided it was not obtained by such Third Party under an
obligation of confidentiality directly or indirectly from the disclosing party;
or
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(e) was independently discovered or developed by the receiving party
without the use of the other party's Confidential Information, as can be
documented by written records created at the time of such independent discovery
or development.
Other than Confidential Information transferred via the Amgen Server, all
Confidential Information, which if disclosed in a writing or embodied in a
tangible item or product, will be marked "confidential" or, if disclosed orally,
shall within a reasonable period, but in no event more than forty-five (45)
days, following such disclosure be reduced to writing, marked "confidential" and
delivered by the disclosing party to the receiving party. All such Celera
Confidential Information shall be delivered by Celera to the General Counsel of
Amgen.
7.2 PERMITTED DISCLOSURE:
7.2.1 Notwithstanding the obligations of Section 7.1, Amgen may
disclose Celera's Confidential Information to the extent such disclosure shall
be reasonably necessary in (i) prosecuting patent applications and maintaining
patents, subject to Section 8.0 below or (ii) filing and prosecuting or
defending litigation or (iii) using Celera Technology in the development of
products for human therapeutic and prophylactic applications (e.g. during
development, regulatory, manufacturing and commercialization activities).
7.2.2 Notwithstanding the obligations of Section 7.1, each party may
disclose the other's Confidential Information in (i) establishing rights or
enforcing obligations under this Agreement; or (ii) complying with applicable
law, provided however, that in each case described herein if a party shall be
required to make any disclosure of the other party's Confidential Information
under this Section 7.2.2, it will give reasonable advance notice to the other
party of such disclosure requirement; it will provide a copy of the proposed
disclosure; and, at the request of the disclosing party, will use its reasonable
best efforts in assisting the disclosing party to secure confidential treatment
of such Confidential Information required to be disclosed, including to
cooperate with the other to obtain a protective order of the other party's
Confidential Information.
7.2.3 Amgen Know-How shall be the Confidential Information of Amgen.
Amgen may disclose, publish, or release Amgen Know-How without restriction,
provided however, that Amgen will not incorporate Celera Confidential
Information in such disclosure, publication or release.
7.3 PUBLICATION:
7.3.1 Amgen may publish scientific results of its work within the scope
of the licenses granted under this Agreement, provided however, that:
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(a) any such publication by Amgen that would disclose
Confidential Information of Celera not disclosable under Section 7.2, shall
require the prior written consent of Celera, provided that Amgen shall have
submitted to Celera thirty (30) days prior to submission for publication, a copy
of such planned disclosure for Celera's comment and review. Celera may, at its
discretion, remove the Confidential Information or approve such disclosure of
Confidential Information prior to approving the publication. Amgen agrees that
Celera may keep a copy of such disclosure for its records. Amgen further agrees
that upon receiving notification by the publisher of the intent to release the
publication, Amgen will advise Celera of such publication, the planned
publication date, and furnish a final copy of the publication as it will appear
in the disclosure. Following publication Celera shall be free to enter any and
all sequence information and related information contained in the publication
into any of Celera's databases, whether or not such sequence information was
identified or made known to Amgen through the Amgen Subscription or Amgen's
authorized use of the Amgen Subscription; and
(b) any such publications will include recognition of the
contributions of Celera according to standard practice for assigning scientific
credit, either through authorship or acknowledgment as may be appropriate.
7.3.2 Celera shall disclose, publish or release DNA Sequence
Information and Annotation Information only in accordance with the procedures
set forth in Schedule 1.0.
7.4 THIRD PARTY DISCLOSURE: Amgen may disclose, copy or distribute Celera
Confidential Information to its employees, contractors, directors and
consultants, in the context of the disclosure of Amgen's own scientific results
or the conduct of its work within the scope of the licenses granted herein,
provided however, that any such disclosure by Amgen that would disclose Celera
Confidential Information shall require that Amgen shall have obtained from such
parties a written agreement regarding obligations of confidentiality and
appropriate use restrictions comparable to and consistent with those set forth
herein, and provided that such party shall not further disclose Celera
Confidential Information other than to other Amgen employees, contractors,
directors, and consultants who have a need-to-know and who are under like
obligations of confidentiality.
7.5 RESTRICTED USE: Except as expressly set forth in this Agreement, this
Section 7.0 shall not be construed to allow Amgen, or any other person or entity
to use, publish, disclose or re-distribute the Celera Database and Analysis
Products and/or the Subscriber Information System or any portion of its
contents, including, but not limited to, any DNA Sequence Information or
portions of Annotation Information, or any Celera software or hardware
configurations, at any time without the express written consent of Celera.
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8.0 INTELLECTUAL PROPERTY
8.1 RIGHTS UNDER THE AMGEN SUBSCRIPTION:
8.1.1 CELERA RIGHTS. With the exception of the rights expressly granted
to Amgen under this Agreement, Celera retains all rights to the Subscriber
Information System and the Celera Database and Analysis Products. Celera shall
own all right, title and interest in and to Celera Know-How. To avoid doubt,
with the exception of the rights expressly granted under this Agreement, Amgen,
its employees, agents and consultants shall have no rights, claims or interests
whatsoever (including but not limited to any intellectual property rights) with
respect to Celera Know-How or products incorporating Celera Know-How.
8.1.2 AMGEN RIGHTS.
(a) Amgen shall own all right title and interest in and to
Amgen Know How. To avoid doubt, Celera, its employees, agents and consultants
shall have no rights, claims or interests whatsoever (including but not limited
to any intellectual property rights) with respect to Amgen Know-How or products
incorporating Amgen Know-How. Other than with respect to Amgen Know-How the
making, having made, using, selling, offering to sell, or importing of which
would infringe one or more valid claims of an issued patent included within
Celera Patent Rights, Amgen shall have the unrestricted, royalty-free right to
make, have made, use, sell, offer to sell or import Amgen Know-How.
(b) Amgen shall assume responsibility for the application,
prosecution and maintenance, and the defense and enforcement of patent
applications and patents claiming any such Amgen Know-How, including all
costs associated therewith. Amgen shall retain all right, title and interest
in and to such patent applications and patents, with no obligation to Celera;
provided however, that [***].
8.2 TRADE SECRET PROTECTION: If Celera chooses to protect any element of the
Subscriber Information System as a trade secret, Amgen shall be given written
notice. The written notice must clearly indicate to Amgen (i) what elements of
the technology are
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protected by trade secret and (ii) by mutual agreement (which will not be
unreasonably withheld), what explicit reasonable methods or means Amgen shall be
expected to carry out in an effort to maintain such trade secret protection.
Amgen must inform all employees, directors and consultants who may have access
to such proprietary technology of both the status of the information as a trade
secret and Amgen's obligation to maintain such status. It shall be however,
Celera's obligation to periodically examine and review the status of the trade
secret protection such that it may be properly maintained. Notwithstanding the
above, designation of any aspect of the Subscriber Information System as a trade
secret shall not alter any right granted hereunder to use such aspect.
8.3 COPYRIGHT PROTECTION: If Celera pursues copyright protection, Celera shall
notify Amgen in writing. Celera shall indicate such product or document
protection by marking it with (C). Celera grants Amgen a fully paid-up,
irrevocable, non-exclusive, worldwide license to any such copyright protection.
9.0 TERMINATION
9.1 TERMINATION OF AMGEN SUBSCRIPTION: The Amgen Subscription may be terminated
by mutual written agreement of Amgen and Celera, effective as of the time
specified in such written agreement.
9.2 DEFAULT:
9.2.1 NOTICE OF DEFAULT. In the event any material representation or
warranty made hereunder by either party ("Representation Default") shall have
been untrue or upon any material breach or material default of a material
obligation of this Agreement by the other party ("Performance Default"); the
party not in Default ("non-Defaulting Party") must first give the other party
("Defaulting Party") written notice thereof ("Notice of Default"), which notice
must state the nature of the untruthfulness, material breach or material default
in reasonable detail and request the Defaulting Party cure such Default within
one hundred twenty (120) days. If the Defaulting Party shall dispute the
existence, extent or nature of any Default set forth in a Notice of Default, the
parties shall use reasonable best efforts to resolve the dispute.
9.2.2 DEFAULT BY CELERA. At its option, Amgen may terminate the Amgen
Subscription in the event of (i) a Representation Default by Celera or (ii) a
Performance Default by Celera shall not been cured within one hundred twenty
(120) days after receipt of a Notice of Default; or, if such Performance Default
cannot be cured within such one hundred (120) day period, and Celera shall have
failed to commence substantial remedial actions within such one hundred twenty
(120) day period and to diligently pursue the same. If Amgen terminates the
Amgen Subscription under this Section 9.2.2, Amgen
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shall have no further obligation to pay future Subscription Fees including the
deferred Subscription Fees under Section 5.5.
9.2.3 DEFAULT BY AMGEN. At its option, Celera may terminate the Amgen
Subscription in the event of (i) a Representation Default by Amgen, or (ii)
except as set forth in Section 5.7, in the event a Performance Default by Amgen
arising from a material breach or material default of Sections 2.0, 7.0, 8.2 or
12.2 with respect to the Amgen Subscription that shall not have been cured
within one hundred twenty (120) days of receipt of a Notice of Default; or, if
such Performance Default cannot be cured within such one hundred (120) day
period, and Amgen shall have failed to commence substantial remedial actions
within such one hundred twenty (120) day period and to diligently pursue the
same.
9.3 BANKRUPTCY:
9.3.1 A party may terminate the Amgen Subscription if, during the term
of the Amgen Subscription, the other party shall file in any court or agency
pursuant to any statute or regulation of any state or country, a petition in
bankruptcy or insolvency or for reorganization or for an arrangement or for the
appointment of a receiver or trustee of the party or of its assets, or if the
other party proposes a written agreement of composition or extension of its
debts, or if the other party shall be served with an involuntary petition in
bankruptcy or seeking reorganization, liquidation, dissolution, winding-up
arrangement, composition or readjustment of its debts or any other relief under
any bankruptcy, insolvency, reorganization or other similar act or law of any
jurisdiction now or hereafter in effect, or there shall have been issued a
warrant of attachment, execution, distraint or similar process against it, filed
in any insolvency proceeding, and such petition shall not be dismissed within
ninety (90) days after the filing thereof, or if the other party shall propose
or be a party to any dissolution or liquidation, or if the other party shall
make an assignment for the benefit of creditors.
9.3.2 All rights and licenses granted under or pursuant to this
Agreement by Amgen or Celera are, and shall otherwise be deemed to be, for
purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to
"intellectual property" as defined under Section 101 of the U.S. Bankruptcy
Code. The parties agree that each party which is a licensee of such rights under
this Agreement shall retain and may fully exercise all of its rights and
elections under the U.S. Bankruptcy Code. The parties further agree that, in the
event of the commencement of a bankruptcy proceeding by or against either party
under the U.S. Bankruptcy Code, the party hereto which is not a party to such
proceeding shall be entitled to a complete duplicate of (or complete access to,
as appropriate) any such intellectual property and all embodiments of such
intellectual property, and same, if not already in their possession, shall be
promptly delivered to them (i) upon any such commencement of a bankruptcy
proceeding upon their written request therefor, unless the party subject to such
proceeding (or a trustee on behalf of the subject party) elects to
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continue to perform all of their obligations under this Agreement or (ii) if not
delivered under (i) above, upon the rejection of this Agreement by or on behalf
of the party subject to such proceeding upon written request therefor by the
non-subject party.
9.4 CHANGE IN CONTROL OF CELERA: In the event Celera sells all or substantially
all of its assets, shall be merged or otherwise consolidated with any other
person or entity, or any person, group or entity which is in the business of
developing, manufacturing and marketing pharmaceutical products and which
acquires, directly or indirectly, in any transaction or series of transactions,
fifty percent (50%) or more of the shares of capital stock entitled to vote for
the election of directors, then Celera shall give Amgen written notice of such
event not later than ten (10) days following such event. Amgen shall then have
the right to terminate the Amgen Subscription and the obligation to pay any
unaccrued Subscription Fee, by providing Celera with written notice not more
than one hundred twenty (120) days following such event.
9.5 CONSEQUENCES OF TERMINATION: Upon termination of the Amgen Subscription
under Section 5.7 or this Section 9.0, the following rights and obligations
shall apply:
9.5.1 The rights and obligations set forth in Section 2.3.2 shall
survive in full force and effect.
9.5.2 The following provisions, shall survive the date of termination
of the Amgen Subscription for a period of ten (10) years: 7.0 (Confidentiality
and Publication) excluding the terms and conditions of Schedule 1.0; 9.0
(Termination); 10.0 (Representations, Warranties, and Covenants); 11.0
(Indemnity) and 12.0 (General Provisions).
9.5.3 The parties shall retain their respective ownership rights set
forth in Section 8.1.
9.6 ACCRUED RIGHTS: Termination, relinquishment or expiration of the Amgen
Subscription or of this Agreement for any reason shall be without prejudice to
any rights which shall have accrued to the benefit of either party prior to such
termination, relinquishment or expiration.
9.7 REMEDIES: The rights and remedies provided in this Section 9.0 shall not be
exclusive and shall be in addition to any other rights and remedies available at
law or in equity.
10.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 REPRESENTATIONS AND WARRANTIES:
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10.1.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and
warrants to the other party on the Effective Date and throughout the term
specified in Section 9.5.2, that:
(a) it is duly organized and validly existing and in good
standing under the laws of the State of Delaware and it has the corporate power
and authority and the legal right to enter into this Agreement and to perform
its obligations hereunder;
(b) the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby have been duly authorized by
all necessary corporate action of such party and the person executing this
Agreement on behalf of each party has been duly authorized to do so by all
requisite corporate actions.;
(c) the execution and delivery of this Agreement and the
performance by such party of any of its obligations under this Agreement do not
and will not (i) conflict with, or constitute a breach or violation of, any
other contractual obligation to which it is a party, any judgment of any court
or governmental body applicable to such party or its properties or, to such
party's knowledge, any statute, decree, order, rule or regulation of any court
or governmental agency or body applicable to such party or its properties, and
(ii) with respect to the execution and delivery of this Agreement, require any
consent or approval of any governmental authority or other person;
(d) it shall comply with all applicable laws, regulations and
guidelines in connection with that party's performance of its obligations and
rights pursuant to this Agreement;
(e) it is aware of no action, suit or inquiry or investigation
contemplated or instituted by any governmental agency which questions or
threatens the validity of this Agreement; and
(f) this Agreement is legally binding upon its execution and
enforceable in accordance with its terms.
10.1.2 CELERA REPRESENTATIONS AND WARRANTIES. Celera further represents
and warrants to Amgen on the Effective Date and throughout the term specified in
Section 9.5.2, that:
(a) Celera has all rights necessary to grant the rights and
licenses contemplated herein or will have such rights by the installation date
referenced in Section 3.4; and
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(b) Celera has exercised commercially reasonable efforts in
ensuring that the Exhibits are complete in all material respects as of the
Effective Date and, in the event that any other items have not been included in
the Exhibits as of the Effective Date, then Celera shall promptly provide those
items and complete the respective Exhibits.
10.2 COVENANTS: Celera covenants to Amgen that Celera shall use commercially
reasonable efforts to perform its obligations hereunder to accomplish the goals
and objective to conduct the Amgen Subscription, including, without limitation,
timely completion of the milestones in Exhibit C using no less than commonly
accepted professional standards of workmanship.
10.3 DISCLAIMERS:
(a) NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION
MADE OR WARRANTY GIVEN BY CELERA THAT THE USE OF ANY INFORMATION, DATA
OR OTHER MATERIALS PROVIDED HEREUNDER (OTHER THAN THE RIGHT TO USE THE
CELERA DATABASE AND ANALYSIS PRODUCTS AND THE SUBSCRIBER INFORMATION
SYSTEM AS AUTHORIZED HEREIN,) WILL NOT INFRINGE ANY PATENT, COPYRIGHT,
TRADEMARK, OR OTHER RIGHTS OF ANY THIRD PARTY. THE INFORMATION, DATA OR
OTHER MATERIALS PROVIDED HEREUNDER, OTHER THAN THE RIGHT TO USE THE
CELERA DATABASE AND ANALYSIS PRODUCTS AND THE SUBSCRIBER INFORMATION
SYSTEM AS AUTHORIZED HEREIN, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF
ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SUBJECT TO THE STANDARD OF CARE REQUIRED OF CELERA AS DESCRIBED IN
SECTION 10.2, CELERA MAKES NO WARRANTY THAT THE CELERA DATABASE AND
ANALYSIS PRODUCTS AND THE SUBSCRIBER INFORMATION SYSTEM DO NOT CONTAIN
ERRORS.
(b) NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES OF ANY NATURE ARISING FROM SUCH PARTY'S ACTIVITIES UNDER THIS
AGREEMENT.
11.0 INDEMNITY
11.1 AMGEN INDEMNITY: Amgen shall indemnify, defend and hold Celera (including
its officers, directors, employees and agents) harmless from and against all
personal or property losses, liabilities, damages and expenses (including
attorney's fees and costs)
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arising (i) out of the untruth or inaccuracy in any material respect of any
representation or warranty or out of the breach or nonfulfillment of any
material covenant or agreement of Amgen contained herein or contemplated hereby,
or (ii) other than with respect to the breach or non-fulfillment of any material
covenant or agreement of Amgen out of the gross negligence or intentional
misconduct of Amgen in connection with the performance of Amgen of its
obligations under this Agreement, or (iii) out of Amgen's use of Amgen Know-How
including Amgen's use of the Celera Database and Analysis Products, except to
the extent that such claim arises from Celera's gross negligence or willful
misconduct. Amgen acknowledges and agrees that with respect to the nature of the
Celera Database and Analysis Products, there may be no adequate remedy at law
for any breach of Amgen's obligations under the confidentiality provisions of
this Agreement, that any such breach may result in irreparable harm to Celera,
and therefore, that upon any such breach, Celera shall be entitled to seek
appropriate equitable relief in addition to whatever remedies it might have at
law, including injunctive relief, specific performance or such other relief as
Celera may request to enjoin or otherwise restrain any act prohibited hereby, as
well as the recovery of all costs and expenses, including attorneys' fees
incurred.
11.2 CELERA INDEMNITY: Celera shall indemnify, defend and hold Amgen (including
its officers, directors, employees and agents) harmless from and against all
personal or property losses, liabilities, damages and expenses (including
attorneys' fees and costs) arising (i) out of the untruth or inaccuracy in any
material respect of any representation or warranty or out of the breach or
nonfulfillment of any material covenant or agreement of Celera contained herein
or contemplated hereby or (ii) other than with respect to the breach or
nonfulfillment of any material covenant or agreement of Celera out of the gross
negligence or intentional misconduct of Celera in connection with the
performance of its obligations under this Agreement. Celera acknowledges and
agrees that with respect to the nature of the Celera Database and Analysis
Products, there may be no adequate remedy at law for any breach of Celera's
obligations under the confidentiality provisions of this Agreement, that any
such breach may result in irreparable harm to Amgen, and therefore, that upon
any such breach, Amgen shall be entitled to seek appropriate equitable relief in
addition to whatever remedies it might have at law, including injunctive relief,
specific performance or such other relief as Amgen may request to enjoin or
otherwise restrain any act prohibited hereby, as well as the recovery of all
costs and expenses, including attorneys' fees incurred.
11.3 PROCEDURE: A party (the "Indemnitee") that intends to claim indemnification
under this Section 11.0 shall promptly notify the other party (the "Indemnitor")
of any loss, liability, damage, expense, claim, demand, action or other
proceeding in respect of which the Indemnitee intends to claim such
indemnification, and the Indemnitor shall have the right to participate in, and,
to the extent the Indemnitor so desires, jointly with any other Indemnitor
similarly noticed, to assume the defense thereof with counsel selected by the
Indemnitor and reasonably satisfactory to the Indemnitee; provided,
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however, that an Indemnitee shall have the right to retain its own counsel, with
the fees and expenses to be paid by the Indemnitee, if representation of such
Indemnitee by the counsel retained by the Indemnitor would be inappropriate due
to actual or potential differing interests between such Indemnitee and any other
party represented by such counsel in such proceedings. The indemnity agreement
in this Section 11.0 shall not apply to amounts paid in settlement of any loss,
liability, damage, expense, claim, demand, action or other proceeding if such
settlement shall be effected without the consent of the Indemnitor, which
consent shall not be withheld unreasonably. The failure to deliver notice to the
Indemnitor within a reasonable time after the commencement of any such action,
if prejudicial to its ability to defend such action, shall relieve such
Indemnitor of any liability to the Indemnitee under this Section 11.0, but the
omission so to deliver notice to the Indemnitor will not relieve it of any
liability that it may have to the Indemnitee otherwise than under this Section
11.0. The Indemnitor may not settle the action or otherwise consent to an
adverse judgment in action or other proceeding that materially diminishes the
rights or interests of the Indemnitee without the express written consent of the
Indemnitee. The Indemnitee under this Section 11.0, and its employees and
agents, shall cooperate fully with the Indemnitor and its legal representatives
in the investigation of any action, claim or liability covered by this
indemnification.
11.4 INSURANCE: Each party will maintain, through self-insurance or commercially
placed insurance, adequate coverage for the indemnification obligations set
forth herein.
12.0 GENERAL PROVISIONS
12.1 NO PARTNERSHIP: Nothing in this Agreement is intended or shall be deemed to
constitute a partnership, agency, distributorship, employer-employee or joint
venture relationship between the parties. No party shall incur any debts or make
any commitments for the other, except to the extent, if at all, specifically
provided herein.
12.2 ASSIGNMENTS: Neither party shall assign any of its rights or obligations
hereunder except: (i) as incident to the merger, consolidation, reorganization
or acquisition of stock or assets or a similar transaction affecting all or
substantially all of the assets or voting control of the assigning party; (ii)
to any directly or indirectly wholly-owned subsidiary if the assigning party
remains liable and responsible for the performance and observance of all of the
subsidiary's duties and obligations hereunder; or (iii) with the consent of the
other party, such consent not to be unreasonably withheld. This Agreement shall
be binding, upon the successors and permitted assigns of the parties, and the
name of a party appearing herein shall be deemed to include the names of such
party's successors and permitted assigns to the extent necessary to carry out
the intent of this Agreement. Any assignment not in accordance with the above
shall be void.
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12.3 FURTHER ACTIONS: Each party agrees to execute, acknowledge and deliver such
further instruments, and to do all such other acts, as may be necessary or
appropriate in order to carry out the purposes and intent of this Agreement.
12.4 NO TRADEMARK RIGHTS: Except as otherwise provided herein or agreed to in
advance in writing, no right, express or implied, is granted by this Agreement
to use in any manner the names "Celera" or "Amgen", or any other trade name or
trademark of Celera or Amgen or the names of any employees thereof, for any
purpose.
12.5 PUBLIC ANNOUNCEMENTS: Except as may otherwise be required by law or
regulation, neither party shall make any public announcement, directly or
indirectly, concerning the existence or terms of this Agreement or the subject
matter hereof without first submitting a copy of the proposed announcement to
the other party for review and obtaining the approval of the other party. The
other party shall have seven (7) business days or such other time as mutually
agreed upon to consent to the publication of such announcement, such consent not
to be unreasonably withheld. If either party shall be required by law or
regulation to make a public announcement concerning the existence or terms of
this Agreement, such party shall give reasonable prior advance notice of the
proposed text of such announcement to the other party for its prior review and
comment.
12.6 ENTIRE AGREEMENT OF THE PARTIES; AMENDMENTS: This Agreement, its Exhibits,
Schedule and the Option and License Agreement executed on the same date herewith
constitutes and contains the entire understanding and agreement of the parties
and cancels and supersedes any and all prior negotiations, correspondence,
representations, understandings and agreements, whether verbal or written,
between the parties respecting the subject matter hereof. No waiver,
modification or amendment of any provision of this Agreement shall be valid or
effective unless made in writing and signed by a duly authorized representative
of each of the parties. The failure or delay of either party in enforcing any of
its rights under this Agreement shall not be deemed a continuing waiver or a
modification by such party of such right.
12.7 SEVERABILITY: In the event any one or more of the provisions of this
Agreement should for any reason be held by any court or authority having
jurisdiction over this Agreement or either of the parties to be invalid, illegal
or unenforceable, such provision or provisions shall be validly reformed to as
nearly as possible approximate the intent of the parties and, if unreformable,
shall be divisible and deleted in such jurisdiction; elsewhere, this Agreement
shall not be affected so long as the parties are still able to realize the
principal benefits bargained for in this Agreement.
12.8 CAPTIONS: The captions to this Agreement are for convenience only, and are
to be of no force or effect in construing or interpreting any of the provisions
of this Agreement.
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12.9 GOVERNING LAW: This Agreement shall be governed by and interpreted in
accordance with the substantive laws of the State of Delaware, without reference
to the conflicts of law principles thereof. The parties hereby acknowledge their
diversity (Celera having its principal place of business in Maryland and Amgen
having its principal place of business in California) and, if Celera brings suit
under this Agreement such suit shall be brought in Federal District Court in Los
Angeles, California, or the California state courts of general jurisdiction in
Los Angeles, California (and the parties will submit to the jurisdiction
thereof) and, if Amgen brings suit under this Agreement such suit shall be
brought in the Federal District Court in Baltimore, Maryland, or the Maryland
state courts of general jurisdiction in Baltimore, Maryland (and the parties
will submit to the jurisdiction thereof).
12.10 NOTICES AND DELIVERIES: Any notice, requests, delivery, approval or
consent required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been sufficiently given if delivered in
person, transmitted by commercial overnight courier, or transmitted by telex,
telegram or telecopy (receipt verified) to the party to whom it is directed at
its address shown below or such other address as such party shall have last
given by notice to the other party. All notices shall be effective upon receipt.
If to Celera, addressed to:
CELERA GENOMICS CORPORATION
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Dr. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President,
Chief Business Officer
cc: Legal Department
If to Amgen addressed to:
AMGEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President, Research
cc: Secretary and General Counsel
12.11 COUNTERPARTS: This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12.12 FORCE MAJEURE: If the performance of any part of this Agreement by either
party, or of any obligation under this Agreement, shall be prevented,
restricted, interfered with
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or delayed by reason of any cause beyond the reasonable control of the party
liable to perform, unless conclusive evidence to the contrary shall be provided,
the party so affected shall, upon giving written notice to the other party, be
excused from such performance to the extent of such prevention, restriction,
interference or delay, provided that the affected party shall use its
commercially reasonable efforts to avoid or remove such causes of
non-performance and shall continue performance with the utmost dispatch whenever
such causes are removed. When such circumstances arise, the parties shall
discuss what, if any, modification of the terms of this Agreement may be
required in order to arrive at an equitable solution.
12.13 EXHIBITS: All Exhibits referenced in and attached hereto are incorporated
herein by reference. Other than with respect to the terms and conditions of
Schedule 1.0, in case of any discrepancies between terms incorporated from the
Exhibits and the terms of the Sections herein, the terms of the Sections shall
prevail. Any amendment to an Exhibit shall be approved in writing by a duly
authorized representative of each party; amendments to the Exhibit will not
affect any of the rights granted hereunder. Unless a procedure for amending an
Exhibit is specifically set forth in this Agreement, the Exhibits shall be
amended promptly, as necessary, but in no event less than on a once per calendar
quarter basis by Amgen and Celera.
12.14 DISPUTE RESOLUTION: Celera and Amgen shall deal with each other in good
faith. The parties agree that in the event of a dispute between them arising
from, concerning or in any way relating to this Agreement, the parties shall
undertake good faith efforts to amicably resolve such dispute between
themselves. In the event the parties shall be unable to resolve any such
dispute, the matter shall be referred to the Chief Business Officer, or another
designated representative of Celera, and to, the Executive Vice President,
Research or another designated representative, of Amgen for further review and
resolution.
12.15 AFFILIATE PERFORMANCE: To the extent that any Amgen Affiliate shall have
access to any Celera Database and Analysis Products, and shall have the right to
receive any other rights or benefits under this Agreement, or otherwise shall be
obligated to perform any obligations under this Agreement, Amgen Inc. shall
cause such Amgen Affiliate to perform in full, when due, all applicable
obligations under this Agreement to the same extent as if such Amgen Affiliate
were a party to this Agreement; provided, however, that nothing in this Section
12.16 shall expand the rights or benefits of Amgen Inc. or any Amgen Affiliates,
or the obligations of Celera, beyond those otherwise expressly set forth in this
Agreement. Amgen Inc. shall guaranty timely performance in full by such Amgen
Affiliate of all such obligations. A breach by such Amgen Affiliate of any such
obligation shall constitute a breach by Amgen Inc. of this Agreement and, if a
material breach, shall entitle Celera to exercise its rights under Section 2.3.2
(Effects of Termination) and 9.0 (Termination) above, in addition to any other
rights and remedies to which Celera may be entitled.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officers as of the Effective Date.
CELERA GENOMICS CORPORATION AMGEN INC.
By: By:
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Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Title: Title: Senior V.P., Corporate Development
---------------------------- General Counsel and Secretary
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