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Exhibit 10.23
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON A REQUEST FOR
CONFIDENTIAL TREATMENT
SUPPLY AGREEMENT
Deltagen, Inc.
Affymetrix, Inc.
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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CONTENTS
<TABLE>
<S> <C>
INTRODUCTION...................................................................3
DEFINITIONS....................................................................3
PROBE ARRAY SUPPLY.............................................................9
AFFYMETRIX PROPRIETARY RIGHTS.................................................15
COMPENSATION..................................................................16
INTELLECTUAL PROPERTY.........................................................22
PROJECT COORDINATION..........................................................25
CONFIDENTIALITY...............................................................26
WARRANTY......................................................................27
INDEMNITY.....................................................................28
TERM AND TERMINATION..........................................................30
MISCELLANEOUS.................................................................30
EXHIBIT A: INITIAL FORECAST...................................................20
EXHIBIT B: SYSTEMS PURCHASES..................................................21
EXHIBIT C: FABRICATION VERIFICATION CRITERIA..................................39
EXHIBIT D: RMA................................................................40
</TABLE>
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
<PAGE>
SUPPLY AGREEMENT
This Supply Agreement ("Agreement") is effective as of July 12, 2000
("Effective Date") between Affymetrix, Inc. ("Affymetrix") a Delaware
corporation having its principal place of business at 3380 Central Expressway,
Santa Clara, California 95051, and Deltagen, Inc. ("Deltagen") a Delaware
corporation having its principal place of business at 1003 Hamilton Avenue,
Menlo Park, CA 94025.
1 INTRODUCTION
1.1 Affymetrix has research, development, and manufacturing capabilities
and facilities, and has developed certain rights relevant to DNA probe
array based technology.
1.2 Deltagen has research and development capabilities, and facilities to
conduct research and development activities for the generation of
databases useful in life sciences research.
1.3 Affymetrix and Deltagen desire to enter into an agreement whereby
Affymetrix will supply Deltagen with DNA probe arrays for use in
Deltagen's development of database products.
1.4 In consideration of the mutual covenants and promises contained in this
Agreement, Affymetrix and Deltagen agree as follows:
2 DEFINITIONS
2.1 "Affiliate" shall mean any corporation, company, partnership, joint
venture and/or firm which is controlled by or controls a Party or is
under common control with a Party, but only for so long as such
Affiliate remains an Affiliate of a Party, and only if such Affiliate
is bound by the terms of this Agreement. For purposes of this Section,
"control" shall mean, in the case of corporations (or equivalents of
corporations), direct or indirect ownership of at least *** of the
stock having the right to vote for directors of such corporation or, in
the case of partnerships, at least *** of the ownership interest in
such partnership. Each Party shall be liable to the other Party for
breach of this Agreement by any of such Party's Affiliates, and any
such breach shall be deemed a breach by such party.
2.2 "Chip Improvement Inventions" shall mean all those inventions,
excluding background rights therein, that are conceived and first
reduced to practice by an employee or contractor of Deltagen or its
Affiliates at any time during the period beginning on the Effective
Date and ending *** after termination of this
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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Agreement directly resulting from such inventor's use of the Probe
Arrays supplied hereunder and that specifically relate to probe
array manufacturing techniques, probe array layouts, and/or probe
array packaging techniques, and/or to software to extract raw data
from Probe Arrays *** but not including software or techniques or
methods for ***, *** and/or *** such data. Deltagen and its
Affiliates, shall have and retain a perpetual, fully-paid,
nonexclusive, nontransferable (except pursuant to assignment as
permitted in Section 12.5), nonsublicensable (except as necessary in
conjunction with the *** as contemplated in this Agreement),
world-wide license, and ***, if any, shall have a limited,
nonexclusive, nontransferable, nonsublicensable internal use only
right (solely to the extent, and for the sole purpose, and limited
to the duration of, performing such *** for Deltagen), to each such
Chip Improvement Invention, for any lawful use, which shall survive
any termination of this Agreement. It is to be understood that
neither any other inventions made with respect to the use of Probe
Arrays nor any inventions made independently of the use of Probe
Arrays provided hereunder (including, without limitation when made
through the use of Deltagen's or any third party's proprietary
technology or knowledge or other intellectual property) are Chip
Improvement Inventions within the meaning of this Agreement. Chip
Improvement Inventions shall further not include any other
inventions that are conceived of or reduced to practice by an
employee, contractor or customer of a Party or its Affiliates
including, for example, inventions relating in whole or part to gene
function, pathways interactions or discoveries resulting therefrom,
expression data or discoveries resulting therefrom, software
applications or algorithms used for higher level analysis of
expression data (beyond that listed in the first sentence of this
Section 2.2 above), targets identified through the use of the Probe
Arrays, or correlations between genetic sequences and function (all
of which are acknowledged and agreed to be the confidential
information of the Party owning or discovering or developing the
same, subject otherwise to the protections set forth in Section 8 of
this Agreement.
2.3 "Committee" shall mean the individuals designated by Deltagen and
Affymetrix to serve on a coordinating committee as outlined in Section
7.
2.4 "Confidential Information" shall mean all information and materials,
patentable or otherwise, of a Party disclosed by or on behalf of such
Party to the other Party and which derive value to a Party from not
being generally known, including, but not limited to DNA sequences,
vectors, cells, substances, formulations, techniques, methodology,
equipment, data, reports, know- how, trade secrets, pre-clinical and
clinical trials and the results thereof, sources of supply, patent
positioning, and business plans, including any negative developments.
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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2.5 "Custom Probe Array" means a custom Probe Array, ***, sold by
Affymetrix only to Deltagen and/or its Affiliates hereunder.
2.6 "Database" shall mean a collection of Datapoints which is made broadly
available for license in whole or in part for use to derive additional
information. A Database shall be considered to have been made "broadly
available" for purposes of this Agreement if it is made available to
third parties other than solely as a Service. If a database includes
both Datapoints and data or information that is not derived directly
from the use of a Probe Array supplied under this Agreement, then the
term "Database" as used in this Agreement shall mean only that portion
thereof which is comprised of Datapoints. In the event that a
collection of Datapoints is provided on a Service basis and is later
made broadly available, such collection of Datapoints shall be
considered a "Service" at the time delivered to a single customer and a
"Database" from and after the time it is made broadly available.
2.7 "Datapoint" shall mean the data and/or information (such as expression
levels per Gene) Deltagen or its Affiliates derives directly from use
of Probe Array(s) supplied under this Agreement which relates to a
particular Gene represented on such Probe Array(s) and comprising all
probe pairs on the Probe Array(s) that represent that Gene. ***.
2.8 "Deltagen's Area Of Interest" shall mean the use of Probe Arrays to
generate gene expression data, for Deltagen's or its Affiliate's
internal research purposes, Database technology development purposes
and/or for generating Databases for license, and providing Services, to
third parties.
2.9 "Demonstration Database" shall mean a Database that (A) omits or has
disabled substantial functionality and/or features in comparison with
the corresponding Database standard product and/or contains no more
than *** Datapoints (as increased proportional to increases after the
Effective Date in the number of genes in a Probe Array Chipset); (B) is
used by Deltagen for testing, training, demonstration, promotional,
marketing or other comparable purposes without charge (excluding
nominal media charges and Deltagen's normal installation, service
and/or training fees); and (C) may be used by the recipient for no more
than *** from receipt. It is understood that Demonstration Databases
shall not be distributed such that a recipient may assemble multiple
Demonstration Databases into a Database.
2.10 "Fabrication Verification Criteria" shall mean Affymetrix' then
current, applicable quality control criteria for Probe Arrays that are
widely distributed to third parties, which quality control criteria as
presently constituted have been delivered to Deltagen and which will be
provided to Deltagen from time to time when a material change is made,
plus the Specifications, PROVIDED THAT, the Fabrication Verification
Criteria provided to Deltagen ***. Affymetrix will not
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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change the Fabrication Verification Criteria so as to *** to satisfy
without Deltagen's prior written consent, which shall not be
unreasonably withheld. Affymetrix' current Fabrication Verification
Criteria as of the Effective Date is described in Exhibit C and
includes the following: Detectability = ***, Specificity = ***.
2.11 "Forward Compatibility" shall mean, with respect to the probe pairs
representing a single gene present on a Probe Array, the preservation
of the DNA sequences in each and all of such probe pairs between and
among all other Probe Arrays of the same Probe Array Chipset (including
subsequent releases and versions of Probe Arrays with different
specifications, such as an increase in the number or composition of the
genes comprising the Probe Array Chipset).
2.12 "GATC Compliant" shall mean software and/ or databases meeting the
standards set forth in accordance with the Genetic Analysis Technology
Consortium ("GATC") standards group. In the event that the GATC
standards are no longer maintained, the Parties will negotiate in good
faith to define substitute specifications for interoperability of their
respective software and databases.
2.13 "Gene" shall mean a nucleic acid sequence encoding a distinct RNA
transcript. A Gene may be represented by a partial nucleic acid
sequence representing an expressed sequence tag (EST). Multiple ESTs
from the same Gene are considered a single Gene. Polymorphic variants
of a nucleic acid sequence are considered a single Gene. If a nucleic
acid sequence encodes multiple distinct RNA transcripts due to
alternative splicing, each alternative internal splice variant is
considered a distinct Gene.
2.14 "Lot" shall mean the standard minimum quantities in which Probe Arrays
are made available to third parties, as set forth in Affymetrix' price
list and specifications.
2.15 "Net Sales" shall mean the aggregate United States Dollar equivalent of
gross revenues derived by or payable to Deltagen or its Affiliates for
the transfer, sale, license, lease or other disposition of
Databases, or the right to access or use Databases, to third parties
less a) credits or allowances, if any, actually granted on account
of price adjustments, recalls, rejections, or return of items
previously sold, prompt payment discounts, *** actually incurred; b)
actual trade or quantity discounts actually allowed and taken; c)
excises, sales taxes, value added taxes, consumption taxes, duties,
foreign withholding tax actually withheld, or other taxes imposed
upon and paid with respect to such sales (excluding income or
franchise taxes of any kind); d) *** insurance, delivery, costs
actually incurred and e) any *** other payments paid to *** on
account of *** by, and/or for rights and/or licenses relating to,
*** or *** or *** and/or their *** as
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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contemplated hereby or in their respective *** or other ***. No
deduction shall be made for any item of cost incurred by Deltagen or
its Affiliates in preparing, manufacturing, shipping, or selling
Databases except as permitted pursuant to a), b), c), and d) above
and the aggregate deductions to Net Sales pursuant to a) above shall
not exceed ***. Net Sales shall not include (A) any royalties or
license fees or other payments for (i) licenses under Deltagen's
patents or other proprietary rights, even if the need for or
desirability of such license arises out of the use of a Database,
(ii) any knockout mice, conditional knockout mice, knock-in mice or
any other animal(s) or any associated sperm, cells, materials or
tissues, or (iii) licenses or other rights to access or use, or to
be provided, information or data not directly derived from use of a
Probe Array, even if such information is also contained within or
derivable from a Probe Array; (B) any internal use by Deltagen or
its Affiliates; or (C) any transfer between or among Deltagen and
any of its Affiliates including if for re-license or resale. If
Deltagen or an Affiliate licenses or sells to or through a
distributor (which is not an Affiliate of Deltagen), Net Sales shall
be the gross revenues (including but not limited to royalties and
agency fees) received by Deltagen and/ or the applicable Affiliate
from the license or other transfer of the Database to such
distributor. In the event that Deltagen or any of its Affiliates
licenses a Database to third parties for other than monetary value
in whole or in part, such transfer shall be considered a license
hereunder for accounting and royalty purposes. In the event cash and
non-cash consideration or solely non-cash consideration is received
by Deltagen, Net Sales shall be the cash consideration, if any, plus
the value of non-cash consideration. Non cash consideration shall be
determined on a country-by-country basis and shall be the average
price of comparable arms length licenses solely for cash by Deltagen
or its Affiliates in such country during the royalty reporting
period in which such transfer occurs less the amount of cash
consideration received, if any, or if no such comparable arms length
licensing occurred in such country during such period, during the
last period in which such arms length sales occurred. If no arms
length licenses solely for cash have occurred in a particular
country, non cash consideration for such transfer shall be the
average price of comparable arms length licenses solely for cash in
all countries less the amount of cash consideration received, if
any. If no comparable arms length licenses solely for cash occurred,
then the value of non cash consideration shall be valued on an
equitable basis to be agreed upon by the parties. If a Database is
sold or licensed as part of a database that includes both Datapoints
and other information or data and/or as part of a system, package,
or combination with other product(s), license(s) and/or service(s)
(collectively, a "Product Bundle"), then the Net Sales attributable
to the Database for purposes of
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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this Agreement shall be calculated by multiplying the Net Sales of the
Product Bundle during that financial reporting period in question by
the fraction A/ B where "A" is the average unit price during that
period of the Database when licensed separately and "B" is the sum of
all the average unit prices during that period of all of the component
products and services comprising the Product Bundle when licensed or
sold separately. If the Database or any other component product or
service of a Product Bundle is not licensed or sold separately from the
combination comprising the Product Bundle, then the percentage of the
Net Sales of the Product Bundle that is attributable to the Database
shall be an equitable allocation as reasonably determined by the
Parties (or, if the Parties cannot agree, by arbitration in accordance
with Section 12.6).
2.16 "Party" shall mean Affymetrix or Deltagen, as the context requires.
"Parties" shall mean Affymetrix and Deltagen.
2.17 "Physical Defect" shall mean, with respect to a Probe Array, a defect
in materials or workmanship of such Probe Array, or a defect in such
Probe array resulting from the manufacture or handling of such Probe
Array prior to delivery to the common carrier in accordance with
Section 3.5, such that defect(s) are the cause of impaired
hybridization of probe pairs, or any other impairment leading to
materially aberrant Datapoints. Such determination must be made
pursuant to Affymetrix' then current standard GeneChip expression assay
protocols and Fabrication Verification Criteria that apply to such
Probe Arrays.
2.18 "Probe Array" shall mean a solid support having an array of
polynucleotides with known location and sequence fabricated by
Affymetrix pursuant to this Agreement for use in expression analysis.
2.19 "Probe Array Chipset" means a set of Probe Arrays representing
Affymetrix' then-current representation of the genome of a particular
species or organism.
2.20 "Proprietary Probe Arrays" shall mean Probe Arrays which contain
substantial proprietary genetic information of a third party for which
incremental fees are due by Affymetrix to such third party associated
with the use of such proprietary genetic information.
2.21 "Services" shall mean (i) the "one-off" provision of a custom
collection of unique (relative to the Database(s) and not just a subset
thereof) Datapoints for value exclusively to a single third party
solely for such third party customer's internal use and/or (ii) the
business of Deltagen using Probe Arrays to generate expression analysis
information for third party customers on a service bureau basis. The
term "Service" does not include offering customers the option to
acquire a subset of the Datapoints that comprise a Database.
2.22 "Software" shall mean the software provided to Deltagen by Affymetrix
for use with Probe Arrays and Systems.
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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2.23 "Specifications" shall mean Affymetrix' then-current Probe Array
specifications, current versions (as of the Effective Date) of which
will be provided to Deltagen within seven (7) days of the execution of
this Agreement, for the Probe Arrays provided pursuant to this
Agreement.
2.24 "System(s)" shall mean fluidics station(s), work station(s), probe
array reader(s), hybridization ovens and any other systems or equipment
sold to Deltagen pursuant to this Agreement.
2.25 "Term" shall mean the period beginning on the Effective Date and
ending on a date (a) *** after the Effective Date in the event
Deltagen elects option (a) to continue under the terms and
conditions of the "Beginning Period" as set forth in Section 5.1, in
which case the Term shall be renewable for successive *** periods
(each, an "Extended Term") upon mutual written agreement by the
Parties; or (b) *** from the Effective Date in the event Deltagen
elects option (b) as set forth in Section 5.1, unless extended
pursuant to Section 5.1 in which case "Initial Term" shall mean the
initial 3 year portion of the Term and "Extended Term" shall mean
the potential extension of the Term by *** years pursuant to Section
5.1.
3 PROBE ARRAY AND SYSTEM SUPPLY
3.1 Only Custom Probe Arrays pursuant to Section 5.12 and those expression
Probe Arrays listed in Affymetrix' catalog at standard prices will be
available for purchase pursuant to this Agreement.
3.2 Beginning on the Effective Date, Affymetrix will deliver such
quantities of the appropriate Probe Arrays meeting the requirements of
this Agreement, as specified in a properly rendered forecast made
pursuant to Section 3.4, or, for the first 3 months of the Term,
according to a forecast previously supplied by Deltagen and attached as
Exhibit A. All Probe Arrays delivered to Deltagen under this Agreement
shall have a ***.
3.3 Affymetrix shall maintain a minimum capacity to supply to Deltagen at
least *** Probe Arrays per month (as used in this Agreement, "month"
means a calendar month), subject to the next two sentences. In no event
will Affymetrix be obligated to provide more than *** Probe Arrays in
any one month (as increased proportional to increases in the number of
Probe Arrays comprising the Probe Array Chipset(s) purchased by
Deltagen); provided, however, Affymetrix shall use commercially
reasonable efforts to fill Deltagen's orders for Probe Arrays in excess
of said limit. In the event Affymetrix experiences a significant
decrease in manufacturing yield for a sustained period or other
manufacturing incapacity (as opposed to intentionally accepting orders
in excess of Affymetrix's ability to
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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timely fill the same), such that Affymetrix is unable to supply
Deltagen with previously accepted orders of properly forecasted Probe
Arrays up to the maximum quantity per month obligation set forth in
Section 3 above ("Qualifying Deltagen Orders"),***.
3.4 Beginning on the Effective Date and on a monthly rolling basis on the
first business day of each month during the Term of this Agreement,
Deltagen will provide a reasonable, good faith forecast of Probe Arrays
to be supplied by Affymetrix during the following *** period or the
period until the end of the Term if less than *** (such forecasts to be
supplied by number of Probe Arrays and part number) to Deltagen and its
Affiliates. The forecast will be provided according to a mechanism and
on forms consistent with this Agreement and to be agreed upon in good
faith by the Parties within 30 days after the Effective Date. The first
and second month of each successive forecast (part number and
individual quantity) shall constitute a firm order by Deltagen,
accepted by Affymetrix, for the purchase of Probe Arrays under this
Agreement. The subsequent months of such forecast will be Deltagen's
non-binding estimate for capacity planning purposes only, and shall not
be or constitute a commitment or firm order.
3.4.1 Delivery times for all Probe Arrays ordered hereunder will be on
date(s), quoted at the time Affymetrix receives a firm order for such
products, within the month as to which such order relates (subject to
Sections 3.3 and 3.4 above). If Deltagen requests specific delivery
date(s) for a firm order, then Affymetrix will use commercially
reasonable efforts to deliver in accordance with such request.
3.4.2 Unless approved in writing by Deltagen, over-shipment or under-shipment
of an order in excess of *** shall not be allowed.
3.4.3 If Affymetrix ships an order more than *** or more than ***, then a ***
shall be applied to such order.
3.4.4 If the number of ordered Probe Arrays for a month increases by more
than *** from the immediately preceding firm forecast for such month,
then the number of such Probe Arrays above the *** increase shall be
supplied in a reasonable time, but shall not be subject to penalty or
breach on account of late supply thereof for purposes of Section 3.4.3.
3.5 Probe Arrays will be packed in Affymetrix' standard shipping packages
and shipped to the address specified by Deltagen. Delivery of Probe
Arrays hereunder will be F. O. B. Affymetrix' facility or the facility
of its sales representative upon actual delivery to the common carrier
for shipment to Deltagen. Delivery of Probe Arrays to the common
carrier will be deemed by the Parties to be a representation by
Affymetrix that such Probe Arrays have passed Affymetrix' then-current
standard Probe Array quality control procedures and, meet the
then-current
[***] Confidential Treatment Requested. The confidential portions have been
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Fabrication Verification Criteria. Affymetrix will ship via a common
carrier and mode of shipment selected by Deltagen or, if none is
specified by Deltagen, Affymetrix will select the common carrier and
mode of shipment. Title and risk of loss or damage for deliveries will
pass to Deltagen upon delivery at the F. O. B. point. Deltagen will pay
all shipping costs from the F. O. B. point, duties, and sales taxes.
Deltagen will advise Affymetrix if insurance is desired on any
shipments of Probe Arrays, and will reimburse Affymetrix for all such
insurance charges.
3.6 Subject to provisions herein relating to warranty and support, all
Probe Arrays will be deemed accepted unless they are returned to
Affymetrix within 45 days after delivery to Deltagen, with written
explanation of the basis on which such Probe Arrays have been returned,
on Affymetrix' standard "Return Materials Authorization" according to
the procedures provided for in such Return Materials Authorization (a
current version (as of the Effective Date) of which is set forth in
Exhibit D). Affymetrix will replace (i) all Probe Arrays that have
Physical Defects and (ii) the entire affected Lot if more than a
reasonable number, consistent with Affymetrix' normal quality criteria
and overall size of the Lot, of the Probe Arrays in that Lot have
Physical Defects. Replacements of Probe Affrays or Lots pursuant to the
preceding sentence shall be free of charge to Deltagen and at
Affymetrix' expense as to both in-bound and out-bound shipping costs.
3.7 Notwithstanding anything to the contrary herein, Affymetrix will
provide Deltagen, *** in addition to the installation, set up and
certification activities contemplated by Section 3.13, with (i) up to
*** qualified instructor-days of training in use of Probe Arrays and
Systems during the "Beginning Period" (as defined in Section 5.1) and
up to *** qualified instructor-days of such training per year during
the remainder of the Term, as requested by Deltagen, in accordance with
schedules to be mutually and reasonably agreed and (ii) all *** used in
the course of the standard initial System setup procedure for each
System installed hereunder. In cases where Deltagen elects to have
training at Affymetrix' facility, travel and expenses of Deltagen
personnel will be paid by Deltagen. Additional training will be
reasonably provided by Affymetrix to Deltagen at the request of
Deltagen at the then current commercial terms.
3.8 Deltagen may not: 1) transfer the Probe Arrays provided by Affymetrix
pursuant to this Agreement to third parties other than Deltagen's
Affiliates and/or research partners who have purchased Affymetrix
instrumentation systems and have in effect a license from Affymetrix to
use such systems with Affymetrix probe arrays to perform bona fide
contract research for the benefit of Deltagen and/or its Affiliates
(such contract research must be pursuant to a written agreement
[***] Confidential Treatment Requested. The confidential portions have been
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consistent with this Agreement) but only for so long as such license
remains in effect and such third parties comply with the terms and
conditions applicable to their use of Affymetrix products ("Research
Partners"); or 2) transfer the data generated by use of Probe Arrays to
any third party other than (i) Affiliates, (ii) Research Partners or
(iii) subscribers to a Database; or 3) use the Probe Arrays provided by
Affymetrix pursuant to the Agreement to provide services to any third
party, other than to Affiliates, except as to those Probe Arrays where
i) the service recipient agrees to limit further distribution of the
data to other third parties consistent with Affymetrix' normal probe
array supply terms and conditions as updated from time to time with
advance written notice to Deltagen (Affymetrix has provided Deltagen
with a copy of such terms and conditions as in effect as of the
Effective Date; Deltagen shall use commercially reasonable efforts to
promptly integrate updates to such terms and conditions not later than
90 days after Deltagen's receipt thereof, except that unless Deltagen
elects otherwise, updated terms and conditions shall not apply to any
binding agreement between Deltagen and the service recipient in
existence as of the effective date of the update that is consistent
with the version of such terms and conditions in effect at the time
such agreement became binding on or the firm commitment of Deltagen),
and (ii) the applicable fee for Probe Arrays used in Services is paid
pursuant to Section 5.3; or 4) allow any third party, other than
Affiliates and Research Partners for use in Deltagen's Area of
Interest, to use the Probe Arrays supplied by Affymetrix to Deltagen
under this Agreement; or 5) otherwise use the Probe Arrays delivered
hereunder outside of Deltagen's Area of Interest; or 6) reuse the Probe
Arrays; or 7) use Probe Arrays in diagnostic or other similar settings
requiring FDA or other comparable regulatory agency approval unless
Deltagen obtains such approval and such Probe Arrays are to be used in
a clinical trial (and such Probe Arrays are not for microbial or
pathogenic organisms). Deltagen will allow Affymetrix reasonable,
periodic (but not more than once per year unless Deltagen has failed to
comply with the prohibition against reuse) access to the Systems during
regular business hours and with advance written notice solely to ensure
compliance with the prohibition against reuse and, in the case of an
audit conducted by an Affymetrix employee, without access to or
retention of any expression analysis or other information or data of
Deltagen or any of its Affiliates and Research Partners or its or their
customers, licensors or licensees; if Affymetrix utilizes an
independent auditor, such auditor shall have access to such information
as reasonably necessary to perform the audit provided that such auditor
shall not disclose the contents of such information to Affymetrix or
its Affiliates. Any auditor shall be under reasonable obligations of
confidentiality.
3.9 All Databases (excluding those provided on a Service basis) transferred
to a third
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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party by Deltagen pursuant to this Agreement will be GATC Compliant ***
that it is *** to use the GATC standard. Deltagen will bear its
internal costs of such GATC compliance.
3.10 Deltagen may not sell or license the Databases through a distributor or
agent except pursuant to written agreement(s) consistent with this
Agreement.
3.11 Affymetrix will provide to Deltagen all standard System and Probe Array
information, documentation and manuals and, in any event, sufficient
genetic information to identify all the Genes on each Probe Array. If
Affymetrix updates its Probe Arrays to include additional or different
genetic sequence information, Affymetrix shall provide such information
to Deltagen promptly, and in any event not later than *** after
Affymetrix first makes such information *** .
3.12 Upon either Party's request, Deltagen and Affymetrix may reasonably
cooperate in joint promotional activities of the Databases generated
hereunder as mutually agreed. Each Party may use the other Party's
trademarks, logos and tradenames ("Marks")as mutually agreed upon by
the Parties , provided that the use by a Party of any of the other
Party's Marks shall be subject to approval by such other Party, which
approval shall not be unreasonably withheld or delayed. Each Party
acknowledges the ownership by the other Party of its respective Marks.
Each Party will maintain a high quality standard in connection with
products and services promoted in connection with the other Party's
Marks. If, in either Party's sole discretion, the other Party's use of
the first Party's Marks does not meet the first Party's trademark usage
policy as (i) actually complied with by the first Party and (ii) as
communicated to the second Party in writing, then the first Party may,
at its option, terminate the second Party's right to use the Marks
pursuant to this Section 3.11. The parties agree to negotiate in good
faith joint marketing activities where mutually deemed applicable.
3.13 Deltagen will issue by *** purchase order(s) for the System(s) and
Software specified on Exhibit B. Promptly upon its receipt of
Deltagen's purchase order, Affymetrix will *** install and set-up
(including configuration, testing and certification) the Systems
ordered hereunder at Deltagen's facility in accordance with Affymetrix'
standard installation procedures ("Installation"). The Parties will
cooperate and use all commercially reasonable efforts to complete
Installation by not later than a date to be mutually agreed upon within
seven (7) days after execution of this Agreement.
3.14 In the event that Affymetrix makes ***, the Specifications or any other
material probe array specification(s) such that Deltagen reasonably
will have to undergo *** or other *** to effectively incorporate
Datapoints from Probe Arrays incorporating such change into a Database
or to maintain *** Databases or Datapoints generated before and after
the change, and Affymetrix provides
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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<PAGE>
assistance intended to help ameliorate such situation ***.
Affymetrix shall use its commercially reasonable efforts to ensure
*** when designing updates or changes to Probe Arrays. If Affymetrix
is unable to maintain a commercially reasonable level of Forward
Compatibility in a subsequent version of a Probe Array Chipset
purchased by Deltagen such that Deltagen's ability (and/or
associated costs) to generate, populate or maintain its expression
database products or services are materially and adversely affected,
then notwithstanding anything herein to the contrary, Affymetrix
shall *** (subject to the same per *** set forth in Section 5) or,
alternatively, Deltagen may within 60 days of Affymetrix
discontinuing of the then previous Probe Array Chipset as a standard
product offering in its catalogue ***.
4 AFFYMETRIX PROPRIETARY RIGHTS
4.1 Until the end of the Term, Deltagen will not buy probe arrays of
diverse nucleic acids on solid supports from a third party when such
third party arrays materially infringes the patent or copyright rights
(or would materially infringe an allowed but as of then unissued patent
claim) of Affymetrix or its Affiliates. In order to enforce this
provision Affymetrix must provide Deltagen a) reasonable and prompt
written notice of such infringement upon Affymetrix becoming aware of
such infringement, b) reasonable evidence of such infringement, with
which counsel for Deltagen reasonably concurs, c) *** for the *** in
the review contemplated by clause b) preceding, and d) agrees in its
notice *** to the extent based on a *** or similar claim and to ***
finally *** for such claim and other *** (including ***) arising out of
Deltagen's compliance with this section 4.1. In order to avail itself
of the benefits of (c) and (d) above, Deltagen shall (i) provide the
notice described in (a) above to Deltagen's counsel within a reasonable
period of time after receipt of such notice from Affymetrix (reasonably
sufficient for (b) above to occur) and *** (ie., an agreement or
commitment not existing as of the date of Deltagen's receipt of
Affymetrix's notice) obligating Deltagen to buy any probe arrays of
diverse nucleic acids on solid supports from a third party where ***
(or would materially infringe an allowed but as of then unissued patent
claim) of Affymetrix or its Affiliates that are described in such
notice, and (ii) promptly, upon the occurrence of (b) above, cease all
negotiations and other interactions with such third party with respect
to such infringing arrays, provided that if (b) above does occur,
including if Deltagen subsequent to (a) above has entered into a new
agreement or other binding commitment after having allowed reasonably
sufficient time for (b) above to occur, then Deltagen shall terminate
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-14-
<PAGE>
such agreement or commitment as soon as contractually and legally
permissible and use its best efforts to abide by all contractual and
legal requirements applicable to such termination. This Section 4.1,
PER se, shall not confer on Deltagen or any third party any rights
under the patent rights of Affymetrix not already licensed as set forth
in Section 4.2.
4.2 Affymetrix hereby grants Deltagen and its Affiliates a non-exclusive,
worldwide right and license, subject to Deltagen and its Affiliates
compliance with the terms and conditions of this Agreement, to (i) use
the Software (subject further to Deltagen's compliance with Affymetrix'
standard software license terms and conditions (in written and/or
"click-through" form) on the workstation(s) provided with the System(s)
hereunder in accordance with its documentation and manuals to use and
operate such System(s) (a copy of such license has been provided to
Deltagen); (ii) use Probe Arrays, data, information and other materials
provided by Affymetrix pursuant to this Agreement, derive Datapoints
and generate Databases and Product Bundles therefrom and provide,
distribute and sublicense Databases and Services, all subject to, and
in accordance with, the terms and conditions of this Agreement; and
(iii) otherwise practice and have the quiet enjoyment of the benefits
and intents of this Agreement, as set forth herein.
5 COMPENSATION
5.1 Deltagen shall pay to Affymetrix a technology access fee of *** on the
Effective Date which shall cover the period beginning on the Effective
Date and ending on the whichever of the following occurs first: (i) the
*** of the Effective Date or (ii) the *** by Deltagen of a Database
that generates Net Sales (the "Beginning Period"). Beginning on the
last day of the Beginning Period and continuing throughout the
remainder of the Term (and any Extended Term), Deltagen shall have a
***, exercisable by providing written notice to Affymetrix thirty (30)
days after the first-to-occur date described in the first sentence, to
either (a) continue under the terms and conditions applicable during
the Beginning Period (including without limitation, training
obligations as set forth in Section 3.7, Probe Array fees as set forth
in Sections 5.2 and 3, and Database royalties as set forth in Section
5.5), in which case the "Beginning Period" shall be deemed by the
Parties to mean, and all such terms and conditions shall exclusively
apply during, the period beginning on the Effective Date and continuing
throughout the remainder, if any, of the Term and any Extended Term as
set forth in this Section; or (b) pay Affymetrix a *** per year
according to the following payment schedule: *** within 30 days after
the last day of the Beginning Period and *** at the end of every three
(3) month period thereafter throughout the remainder of the Term (and
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-15-
<PAGE>
any Extended Term). In the event Deltagen elects option (b) above,
Deltagen may extend the Term by *** years by providing written
notice to Affymetrix no later than ninety (90) days before the end of
the Initial Term. If so extended for *** years, Affymetrix will
negotiate in good faith for an additional extension of the Term of the
Agreement under similar terms for an additional *** years (for a
potential total Term of up to *** years), provided that Deltagen
must provide *** before the end of the initial Extended Term of its
desire to negotiate in good faith for such extension.
5.2 For each expression Probe Array (excluding those Probe Arrays for use
in internal use or Services) delivered to Deltagen or its Affiliates
during the Beginning Period that meet the Fabrication Verification
Criteria, Deltagen will pay a fixed fee per Probe Array of the greater
of: *** of Affymetrix' then-current regional (relative to where the
Probe Arrays are to be used by Deltagen) list price for that Probe
Array, as published in Affymetrix' catalog; or, ***. After the
Beginning Period and during the remainder of the Term (and any Extended
Term), for each expression Probe Array (excluding those Probe Arrays
for use in internal use or Services) delivered to Deltagen or its
Affiliates that meet the Fabrication Verification Criteria, Deltagen
will pay a fixed fee per Probe Array of the greater of: *** of
Affymetrix' then-current regional (relative to where the Probe Arrays
are to be used by Deltagen) list price for that Probe Array, as
published in Affymetrix' catalog; or, ***. The foregoing
notwithstanding, genetic information access fees actually paid by
Affymetrix to a third party with respect to Proprietary Probe Array(s)
will not be discounted and will be passed through to Deltagen without
mark-up as part of the fee payable hereunder with respect to such
Proprietary Probe Array(s), but only to the extent that the genetic
information access fees are not reflected in the list price of standard
equivalently sized Probe Arrays.
5.3 For each Probe Array to be used in Services delivered to Deltagen or
its Affiliates that meet the Fabrication Verification Criteria,
Deltagen shall pay *** of Affymetrix' then current local (relative to
the country in which the Datapoints from such Service is to be used by
the customer) list as published in its catalog or, if applicable, the
price for the equivalent probe arrays from Affymetrix then available to
that particular third party recipient of such Services (if lower). ***
For each expression Probe Array to be used for Deltagen's internal use
delivered to Deltagen or its Affiliates during the Term that meet the
Fabrication Verification Criteria, Deltagen will pay a fixed fee per
Probe Array of the greater of: *** of Affymetrix' then-current regional
(relative to where the Probe Arrays are to be used by Deltagen) list
price for that Probe Array, as published in Affymetrix' catalog; or,
***.
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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<PAGE>
5.4 Notwithstanding the foregoing or any provision to the contrary in this
Agreement, Deltagen will be responsible for any and all royalties due
to third parties for Probe Arrays supplied to Deltagen hereunder and/or
with respect to the manufacture, sale, reproduction, distribution or
use of any Database(s) or Datapoint(s). If Deltagen arranges with such
a third party to pay such a royalty directly to such party, Deltagen
shall at Affymetrix' request provide reasonably sufficient
documentation to evidence such direct royalty payments to such third
party, provided that Deltagen shall not be required to breach any
confidentiality obligations owed to such third party. In the event ***
based on a *** use of the Probe Arrays, System(s) or Software provided
hereunder ***, Deltagen *** provided that if Deltagen *** Affymetrix'
indemnity obligations, if any, arising from such suit pursuant to
Section *** shall be limited to Deltagen's continued use of Probe
Arrays ***.
5.5 At the time and in the manner hereinafter provided, Deltagen shall pay
to Affymetrix a royalty at the applicable rate according to the table
below times the Net Sales recognized by Deltagen in accordance with
GAAP during the applicable royalty reporting period.
<TABLE>
<CAPTION>
--------------------------------------------------------- ----- ---------------------------------------------
TIME PERIOD ROYALTY RATE
--------------------------------------------------------- ----- ---------------------------------------------
<S> <C>
During Beginning Period ***
--------------------------------------------------------- ----- ---------------------------------------------
During first year *** ***
--------------------------------------------------------- ----- ---------------------------------------------
Second year *** ***
--------------------------------------------------------- ----- ---------------------------------------------
Third and each subsequent year *** ***
--------------------------------------------------------- ----- ---------------------------------------------
After termination of this Agreement (until last to ***
expire Affymetrix patent rights that would otherwise be
infringed by such Database)
--------------------------------------------------------- ----- ---------------------------------------------
</TABLE>
During the *** of the Beginning Period, and during the period beginning
on termination of the Agreement and ***, the one-time minimum royalty
payable by Deltagen per customer/licensee per Database shall be
calculated according to the following schedule:
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-17-
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------
For Databases Comprised of *
--------------------------------- ------- ------------------------------ ----------------------------------
More Than But No More Than Minimum Annual Royalty
--------------------------------- ------- ------------------------------ ----------------------------------
<S> <C> <C> <C>
*** Datapoints The then applicable maximum ***
number of Datapoints for a
Demonstration Database
--------------------------------- ------- ------------------------------ ----------------------------------
The then applicable maximum *** Datapoints ***
number of Datapoints for a
Demonstration Database
--------------------------------- ------- ------------------------------ ----------------------------------
*** Datapoints *** Datapoints ***
--------------------------------- ------- ------------------------------ ----------------------------------
*** Datapoints *** Datapoints ***
--------------------------------- ------- ------------------------------ ----------------------------------
*** Datapoints *** Datapoints ***
--------------------------------- ------- ------------------------------ ----------------------------------
*** Datapoints *** Datapoints ***
--------------------------------- ------- ------------------------------ ----------------------------------
*** Datapoints *** Datapoints ***
--------------------------------- ------- ------------------------------ ----------------------------------
*** Datapoints For Databases comprised
of more than *** Datapoints, the
Parties shall negotiate in good
faith a minimum annual royalty.
--------------------------------- ------- ------------------------------ ----------------------------------
</TABLE>
*For purposes of calculating the minimum annual royalty, the size of
the Database will be measured by the number of Datapoints contractually
accessible to a customer by way of a contract at inception of the
applicable contract. It is understood that such licenses are not
intended to allow license of multiple Demonstration Databases to a
single customer of the same species that can be combined into a larger
Database.
Royalties will be reported and paid quarterly as specified in Section
5.7. The amount payable per quarter will be calculated according to the
following formula:
***
Notwithstanding the foregoing, Net Sales otherwise subject to royalties
accruing pursuant to this Section 5.5 shall be subject to a ***, which
shall apply to the first *** in Net Sales recognized by Deltagen in
accordance with GAAP during the term of this Agreement so that,
notwithstanding the foregoing provisions, ***
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-18-
<PAGE>
such time as the aggregate ***. However, if this Agreement is
terminated during the period beginning on the Effective Date and ending
*** after the Effective Date such *** shall not apply to any Net Sales
accruing after such termination of the Agreement (even if aggregate Net
Sales have not exceeded *** as of such termination date).
5.6 Except as to royalty payments, all amounts referred to in this Section
5 will be invoiced by Affymetrix when due (Affymetrix will invoice for
Systems and Probe Arrays upon shipment in accordance with Section 3.5).
Royalty payments will be due as specified in Section 5.7. All payments
will be made to Affymetrix thirty (30) days from the date of invoicing
by Affymetrix. Late payments shall bear interest at the rate of ***
per month. All payments in this Agreement will be made in the form of a
check or wire transfer to Affymetrix in U. S. Dollars.
5.7 Deltagen shall deliver to Affymetrix, within sixty (60) days after the
end of each calendar quarter, a written report showing its computation
of royalty payments due under Section 5.5 of this Agreement, including
any Net Sales of licenses of Databases by Deltagen or its Affiliates
during such calendar quarter. All Net Sales shall be segmented in each
such on a country by country basis, including the rates of exchange
used to convert such royalties to U. S. Dollars from the currency in
which the licenses were made. For the purposes of this Agreement, the
methods and rates of exchange to be used for converting Net Sales in
foreign currencies into U. S. Dollars for royalty payment purposes
shall be the same as those used by Deltagen for its financial reporting
in accordance with GAAP. Simultaneously with the delivery of each such
report, Deltagen shall tender payment in U. S. Dollars of all royalties
shown to be due therein. Where royalties are due for licenses of
Databases in a country where, by reason of currency regulations or
other legal constraints it is impossible or illegal for Deltagen or its
Affiliates to transfer royalty payments to Affymetrix, such royalties
shall be deposited in whatever currency is allowable in a bank in that
country that is reasonably acceptable to Affymetrix. Any and all income
or similar taxes imposed or levied on account of the receipt of
royalties payable under this Agreement which are required to be
withheld by Deltagen shall be paid or remitted by Deltagen on behalf of
Affymetrix to the proper taxing authority. Proof of payment or
remittance shall be secured and sent to Affymetrix as evidence of such
payment or remittance in such form as required by the tax authorities
having jurisdiction over Deltagen or its Affiliates. Such withholding
taxes shall be deducted from the royalty that would otherwise be paid
by Deltagen or its Affiliates to Affymetrix hereunder.
5.8 Except as provided in Section 5.9, hardware, custom designs, and other
software, if any, may be acquired/ licensed by Deltagen and its
Affiliates at Affymetrix'
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-19-
<PAGE>
regional list prices with discounts and terms no less favorable when
taken as a whole than granted to other similarly situated un-Affiliated
licensees or customers of Affymetrix under similar terms and conditions
(taking into consideration applicable subscription, design and other
fees payable to Affymetrix by such third parties).
5.9 During the Beginning Period, Deltagen shall purchase the Systems and
the Software specified on Exhibit B, and may purchase Affymetrix'
Laboratory Information Management System ("LIMS") and Expression Data
Management Tool ("EDMT") software at a discount rate of *** from
Affymetrix' then current regional list prices as published in its
catalog. After the Beginning Period and during the remainder of the
Term (and any Extended Term), Deltagen may purchase LIMS and EDMT at a
discount rate of *** from Affymetrix' then current regional list prices
as published in its catalog. ***.
5.10 After the Beginning Period, Affymetrix will provide early access to new
product releases to Deltagen in a manner consistent with its ***
customers.
5.11 Following Deltagen's request, Affymetrix agrees to consider reasonable
proposals made by Deltagen in good faith under financial terms
acceptable to Affymetrix for supply to Deltagen during the Term of
custom Probe Arrays to be used by Deltagen in generating Databases;
provided that Affymetrix shall have no obligation hereunder with
respect to any such proposal and Affymetrix shall be free to reject any
such proposal for any reason or no reason in Affymetrix' sole absolute
discretion.
5.12 The parties shall mutually agree upon provisions to be added by written
amendment to this Agreement concerning Custom Probe Arrays.
6 INTELLECTUAL PROPERTY
6.1 Any invention made during the course of and as part of this Agreement
shall be owned according to inventorship of the relevant applications.
Deltagen shall be the owner of all Datapoints and Databases. However,
Deltagen (and its Affiliates) agree to assign to Affymetrix at
Affymetrix' cost all Chip Improvement Inventions. Deltagen agrees to
communicate periodically all technology improvements and developments
that Deltagen reasonably believes are Chip Improvement Inventions to
the Committee.
6.2 All Chip Improvement Inventions made available to Affymetrix hereunder
shall be on an as-is basis. DELTAGEN DISCLAIMS ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES RELATING TO INTELLECTUAL PROPERTY,
MERCHANTABILITY, AND
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-20-
<PAGE>
FITNESS FOR A PARTICULAR PURPOSE. Deltagen makes no warranty that it
will ever develop any Chip Improvement Invention. Deltagen shall have
no liability under any theory of strict liability, negligence, whether
active or passive, or products liability on account of the manufacture,
use, license, or sale of Chip Improvement Inventions or products or
Probe Arrays that contain or make use of any Chip Improvement
Invention.
6.3 Subject to any prior rights of and Deltagen's contractual obligations
and commitments to third parties (including prior rights and
contractual obligations and commitments that arise after the Effective
Date), in the event Deltagen or its Affiliate intends to exclusively
license a invention to an un-Affiliated third party that is directed to
a particular *** or its use that was primarily discovered through use
of Probe Array(s) delivered hereunder, Affymetrix shall have the right
of first refusal to negotiate with Deltagen or its Affiliate and
execute an exclusive license to the applicable claims of such invention
(if any) under mutually agreeable terms and conditions solely in the
field of manufacture and use of probe arrays and systems (fluidics
station(s), work station(s), probe array reader(s), hybridization ovens
and any other systems or equipment) for use therewith manufactured by
or for Affymetrix or its Affiliate(s). In the event Affymetrix and
Deltagen are unable to reach agreement with regard to such exclusive
license within 120 days of Affymetrix receiving notice from Deltagen or
its Affiliate of such invention claims, Deltagen may then offer such
license to other un-Affiliated third parties on an exclusive or
non-exclusive basis provided that Deltagen shall not offer such
exclusive license to any other un-Affiliated third party on terms and
conditions more favorable, taken as a whole, to such party than those
last offered by Affymetrix, taken as a whole, without first offering
Affymetrix such more favorable terms and a reasonable time period (not
to exceed 5 business days) for Affymetrix and Deltagen to negotiate
such license. If Deltagen determines to offer such invention claims for
license on a non-exclusive basis, Deltagen agrees to negotiate in good
faith for at least non-exclusive access to Affymetrix under mutually
agreeable terms and conditions to all Deltagen (and its Affiliates)
owned inventions that are directed to particular *** or their uses
that were primarily discovered through use of the Probe Arrays
delivered hereunder, and such access will only be granted in the field
of manufacture and use of probe arrays and systems (fluidics
station(s), work station(s), probe array reader(s), hybridization ovens
and any other systems or equipment) for use therewith made by or for
Affymetrix or its Affiliate(s). Such non-exclusive access will be
negotiated to include royalty and other payments no less favorable,
taken as a whole, than granted to other similarly situated
un-Affiliated third party licensees, and need only be provided if
legally licensable at the time the invention is made. Deltagen
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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<PAGE>
need not report such inventions until after publication in, for
example, an issued patent or a patent application (depending on the
jurisdiction).
6.4 In the event Deltagen or its Affiliate intends to exclusively
license a invention to an un-Affiliated third party that is directed
to (a) *** techniques (but only insofar as such *** techniques
relate to *** or (b) software, techniques or methods for ***,
Affymetrix shall have the right of first refusal to negotiate with
Deltagen or its Affiliate and execute an exclusive license to the
applicable claims of such invention (if any) under mutually
agreeable terms and conditions solely in the field of manufacture
and use of probe arrays and systems (fluidics station(s), work
station(s), probe array reader(s), hybridization ovens and any other
systems or equipment) for use therewith manufactured by or for
Affymetrix or its Affiliate(s). In the event Affymetrix and Deltagen
are unable to reach agreement with regard to such exclusive license
within 120 days of Affymetrix receiving notice from Deltagen or its
Affiliate of such invention claims, Deltagen may then offer such
license to other un-Affiliated third parties on an exclusive or
non-exclusive basis provided that Deltagen shall not offer such
exclusive license to any other un-Affiliated third party on terms
and conditions more favorable, taken as a whole, to such party than
those last offered by Affymetrix, taken as a whole, without first
offering Affymetrix such more favorable terms and a reasonable time
period (not to exceed 5 business days) for Affymetrix and Deltagen
to negotiate such license. If Deltagen determines to offer such
invention claims for license on a non-exclusive basis, Deltagen
agrees to negotiate in good faith for at least non-exclusive access
to Affymetrix under mutually agreeable terms and conditions to all
Deltagen (and its Affiliates) owned inventions that are directed to
particular Genes or their uses that were primarily discovered
through use of the Probe Arrays delivered hereunder, and such access
will only be granted in the field of manufacture and use of probe
arrays and systems (fluidics station(s), work station(s), probe
array reader(s), hybridization ovens and any other systems or
equipment) for use therewith made by or for Affymetrix or its
Affiliate(s). Such non-exclusive access will be negotiated to
include royalty and other payments no less favorable, taken as a
whole, than granted to other similarly situated un-Affiliated third
party licensees, and need only be provided if legally licensable at
the time the invention is made. Deltagen need not report such
inventions until after publication in, for example, an issued patent
or a patent application (depending on the jurisdiction).
6.5 Affymetrix and Deltagen will negotiate in good faith for Deltagen to
act as a nonexclusive agent for license of Affymetrix' LIMS and EDMT
software for use with Deltagen's database products, PROVIDED THAT
notwithstanding anything to the contrary in this Agreement, Deltagen,
its Affiliates, its Research Partners and its
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
-22-
<PAGE>
customers *** Affymetrix-specified *** or *** in connection with use
of the *** or *** generated therefrom. To the extent Affymetrix
specifies that certain *** and *** be used with *** and Deltagen
elects not to follow such specification, then Affymetrix shall have
no liability under this Agreement for any damage to such *** or the
System(s), of any failure in the performance thereof that is caused
by Deltagen's use of such non-specified ***, and Affymetrix'
indemnity obligations under Section 10.1 shall not apply to any
third party claim(s) of infringement caused by Deltagen's use of
such nom-specified *** or *** (which claims of infringement shall be
deemed "Non-Covered Claims" for purposes of Section 10.1).
Furthermore, the foregoing statement of no contractual obligation
shall not be construed to convey or imply any right or license under
any intellectual property right of Affymetrix or its Affiliates.
6.6 Deltagen understands that no license is conveyed or implied for use of
the Systems herein for probe arrays other than those manufactured or
licensed by Affymetrix.
7 PROJECT COORDINATION
7.1 The parties will form the Committee, which shall be composed of such
representatives of Affymetrix and Deltagen as each shall respectively
appoint and be reasonably acceptable to the other Party. Each Party by
its representative( s) shall cast one vote on the Committee. A quorum
shall consist of at least one Committee representative from each Party.
The Committee shall act only with the concurring votes of both Parties.
A Party's representatives shall serve at the discretion of such Party
and may be substituted for or replaced at any time by such Party. The
Committee shall meet at least quarterly during the Term, except at such
times as the Parties mutually believe there are no significant agenda
items. The site of such meetings shall alternate between the offices of
Affymetrix and Deltagen, (or any other site mutually agreed upon by the
Parties) or be arranged by video conference. The proceedings of all
meetings of the Committee shall be prepared alternately by the Parties,
unless otherwise agreed, and sent to both Parties. In the event that
the Committee is unable to reach a decision by unanimous action with
respect to any matter and such inability continues for a period of
forty- five (45) days after the date on which the matter is first
submitted to the Committee, each Party shall refer the matter to the
Chief Executive Officers of Affymetrix and Deltagen for resolution.
Each Party shall set forth in writing a proposed solution to the
impasse. If an acceptable resolution is not achieved, either party may
choose to arbitrate the issue( s) in accordance with Section 12.7.
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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<PAGE>
The Parties shall use reasonable efforts to continue performance of
this Agreement during any such dispute.
7.2 The basic purpose of the Committee shall be to aid in coordinating the
performance of this Agreement, although each Party shall remain
responsible for the day to day performance of its respective duties and
obligations under and pursuant to the terms of this Agreement. The
charter and authority of the Committee shall be mutually agreed upon by
the Parties. In no event, however, shall the Committee have the
authority to amend this Agreement or to waive, or waive the performance
of, any provision hereof.
8 CONFIDENTIALITY
8.1 For a period of 5 years from disclosure to the other Party, each Party
shall maintain the Confidential Information of the other Party in
confidence (including the terms of this Agreement), and shall not
knowingly disclose, divulge, or otherwise communicate such Confidential
Information of the other, or use it for any purpose, except as
permitted or contemplated by this Agreement, and in order to carry out
the terms and objectives of this Agreement. The Parties will use
reasonable precautions to prevent and restrain the unauthorized
disclosure of such Confidential Information of the other Party. The
provisions of this paragraph and Section 8.2 shall not apply to
Confidential Information which:
8.1.1 was known or used by the receiving Party or its Affiliates without any
restriction on disclosure, prior to its date of disclosure to the
receiving Party, as evidenced by the prior written records of the
receiving Party or its Affiliates; or
8.1.2 either before or after the date of the disclosure to the receiving
Party is lawfully disclosed without restriction on disclosure to the
receiving Party or its Affiliates by an independent, unaffiliated third
party rightfully in possession of the Confidential Information,
provided that if such Confidential Information is provided to the
receiving Party by a third party rightfully in possession of the
Confidential Information, but with restrictions on disclosure, the
receiving Party may use such Confidential Information in accordance
with such restrictions of the third party;
8.1.3 either before or after the date of the disclosure to the receiving
Party becomes published or generally known to the public through no
fault or omission of the receiving Party or its Affiliates;
8.1.4 is required to be disclosed by the receiving Party or its Affiliates to
comply with applicable laws, to comply with a court order, or to comply
with governmental regulations, provided that the receiving Party
provides reasonable (prior, if feasible) written notice of such
disclosure to the other Party and the receiving
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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Party cooperates with the other Party, at the other Party's expense and
upon the other Party's reasonable written request, in taking reasonable
and lawful actions to avoid and/or minimize the degree of such
disclosure;
8.1.5 is independently developed by the receiving Party or its Affiliates
without reference to the Confidential Information.
8.2 Deltagen may not publish in a journal article or other publication any
benchmark results comparing the use of the Probe Arrays with other
competitive technologies without the prior written approval of
Affymetrix. Affymetrix may not publish results of the use of the Probe
Arrays that include any results derived by Deltagen without the prior
written approval of Deltagen. Subject to the limitations of the
foregoing and Section 3 above, Deltagen may publish the results of its
research and/or use of the Probe Arrays at its sole discretion,
provided that in no event shall Deltagen publish Affymetrix'
Confidential Information or Chip Improvement Inventions without
Affymetrix' consent. In the event that Deltagen chooses to publish such
results, if Affymetrix scientists have contributed to such work, then
authorship will be according to scientific input in accordance with
applicable industry standards for such matters and Affymetrix will
cooperate in such publications. If a Party decides to make a
publication that requires the prior approval of the other Party
pursuant to this Section, then the publishing Party will provide the
other Party with draft versions of all such publications at least 60
days prior to submission, for the other Party's approval (and, if
approval is given, technical review), and will allow for removal of the
other Party's Confidential Information. For purposes of this Section
"publication" shall not mean the license of Databases or the provision
of Services hereunder.
9 WARRANTY
9.1 Both Parties to this Agreement represent and warrant that they have the
full right and authority to enter into and perform this Agreement.
9.2 Affymetrix warrants that the Probe Arrays delivered hereunder do not
incorporate the *** of a third party anywhere in the world or, to
its *** (provided that such obligation to perform *** shall be fully
satisfied by ***, for purposes of disclosure to the relevant ***
during ***), *** of a third party in the ***. EXCEPT AS OTHERWISE
PROVIDED HEREIN, AFFYMETRIX DISCLAIMS ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES RELATING TO MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. Affymetrix shall have no liability under any
theory of strict liability, negligence,
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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whether active or passive, or products liability. Affymetrix' entire
liability shall in no event exceed the compensation hereunder.
Affymetrix shall have no liability under this Section for any indirect,
consequential, incidental, or special damages. Deltagen understands
that the risks of loss herein are reflected in the price of the Probe
Arrays and access fees and that the terms would have been different if
there had been a different allocation of risk.
9.3 AFFYMETRIX warrants that (i) all *** provided hereunder shall meet
the *** and shall be ***, provided that Deltagen's sole and
exclusive remedy and Affymetrix' sole and exclusive liability for a
breach of this warranty in this subsection (i) shall be limited to
those express provisions set forth in Sections 3 and 5 above and
(ii) for one (1) year from the date of shipping, the System and the
Software shall be free from defects in design, materials and
workmanship; shall operate in accordance with Affymetrix' respective
documentation, manuals and published specifications in all material
respects; and, in the case of the Software, shall, at the time of
shipment, constitute the most recent generally available release or
version thereof. Support services for Software and Systems will be
provided pursuant to Affymetrix' standard service terms. Affymetrix'
sole and exclusive liability (and Deltagen's sole and exclusive
remedy) under the foregoing warranty shall be to repair or replace
Software and Systems or provide Deltagen a refund, as solely
determined by Affymetrix. Nonconforming Systems will be serviced at
Deltagen's facility or, at Affymetrix' option, Affymetrix' facility.
If service is performed at Affymetrix' facility, Affymetrix will
bear shipping costs. This warranty does not apply to any defect
caused by failure to provide a suitable storage, use, or operating
environment, use of non-recommended reagents, or the use of the
Probe Arrays, Systems or Software for a purpose or in a manner other
than that for which they were designed, modifications or repairs
done by Deltagen, or any other abuse, misuse, or neglect of such
products. This warranty applies only to Deltagen and its Affiliates,
and not third parties.
10 INDEMNITY
10.1 Affymetrix will settle or defend any suit or proceeding brought against
Deltagen and its Affiliates to the extent based on a claim that ***
delivered hereunder or their *** (e.g., System manuals) *** in the ***.
Affymetrix will settle or defend any suit or proceeding brought against
Deltagen to the extent based on a claim that the manufacture, sale or
license by Affymetrix or its Affiliates of *** delivered hereunder ***
(i. e. through***) infringes a *** in or by the ***. Affymetrix shall
have no liability under this paragraph to the extent that the
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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alleged infringement arises out of any addition or modification to
the Probe Arrays or their use by Deltagen not specified by
Affymetrix in, or not contemplated by, this Agreement or any such
standard documentation, or Deltagen's combination of the *** with
other devices not specified or provided by Affymetrix. Patent claims
that meet all of the following three criteria are referred to herein
as "Non-Covered Claims:" (i) the claim arises solely out of
Deltagen's use of the Probe Arrays, System or Software; (ii)
Affymetrix does not indemnify Deltagen with respect to such claim
under the first two sentences of this Section 10.1; and (iii) the
claim is for infringement of a patent issued in or by the ***.
Deltagen will settle or defend any suit or proceeding arising out of
Deltagen's specific use of Probe Arrays, which suit or proceeding is
based on an *** the *** brought against Affymetrix for Non-Covered
Claims. The indemnifying Party shall pay all damages and costs
finally awarded against the indemnified Party for such infringement.
For this paragraph to apply the indemnified Party must inform the
indemnifying Party within 14 days of notice of any claim or suit
being made or brought, and give the indemnifying Party the full
authority, information, and assistance necessary to settle or defend
such suit or proceeding. The indemnifying Party shall not be bound
in any manner by any settlement made without its prior written
consent. Each indemnifying Party's liability hereunder *** shall be
limited to an amount equal to the total amount paid. In the event
that the Probe Arrays are held to infringe and their use is enjoined
as a result of infringement (not limited to those for which it has
an obligation to indemnify Deltagen), Affymetrix may obtain for
Deltagen the right to continue using such Probe Arrays, modify them
to become noninfringing, or grant Deltagen a credit equal to the
cost of all affected Probe Arrays that are unused, and accept the
return of such unused Probe Arrays, or, alternatively, a credit
equal to the amount which Deltagen is legally obliged to pay as a
royalty to the third party for use of such Probe Arrays. This
Section 10.1 states the entire liability for infringement of
intellectual property rights and is in lieu of all other warranties,
express or implied except as stated in Section 9.
11 TERM AND TERMINATION
11.1 This Agreement shall extend until the end of the Term unless terminated
earlier by a Party for cause by written notice if the other Party (or
its Affiliate) materially breaches any material provision of this
Agreement and fails to substantially cure such breach within 30 days of
written notice describing the breach and the intent of the notifying
Party to terminate the Agreement in the event such breach is not
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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substantially cured. In addition, in the event Deltagen elects option
(b) as set forth in Section 5.1, Deltagen may terminate this Agreement
without cause and without liability to Affymetrix on not less than ***
prior written notice given at any time within the period beginning ***
after the end of the *** and ending *** after the end of the ***.
11.2 Upon termination of this Agreement due to expiration of the Term or for
any reason other than a material, uncured breach by Deltagen of a
material provision of this Agreement, Deltagen may continue in
accordance with this Agreement (i) to use the Software, (ii) to use the
Probe Arrays previously purchased by Deltagen within their specified
shelf life, all subject to the warranty and return provisions provided
in this Agreement, and (iii) to use and sublicense the Datapoints and
Databases.
11.3 Upon termination of this Agreement, the following provisions will
survive: 2, 3.5, 3.6, 3.8, 3.9, 3.10, 4.2*, 5.2**, 5.3**, 5.4, 5.5***,
5.6, 5.7, 6, 8, 9, 10, 11.2, 11.3, and 12. (* Except in the case where
this Agreement is terminated due to a material, uncured breach by
Deltagen of a material provision of this Agreement.) (** To the extent
obligations are accrued prior to the termination date.) (*** For the
avoidance of doubt, Deltagen's obligation to pay royalties for a
Database shall survive termination of this Agreement and persist until
the expiration of the last to expire Affymetrix patent rights that
would otherwise be infringed by such Database.)
12 MISCELLANEOUS
12.1 Deltagen shall keep, and shall cause its Affiliates to keep, for a
period of at least two (2) years full, accurate, and true books of
accounts and other records containing all information and data which
may be necessary to ascertain and verify the fees and royalties payable
hereunder. During the Term of this Agreement and for a period of two
(2) years following the time at which the relevant fee or payment is
due, Affymetrix shall have the right from time to time (not to exceed
once during a calendar year or once with respect to any given period)
to have an independent certified public accountant reasonably
acceptable to Deltagen audit in confidence such books, records, and
supporting data on reasonable advance written notice and at their
normal location. Any such audit shall be conducted so as to have the
minimum impact on the normal conduct of Deltagen's business and
operations and such auditor shall only disclose to Affymetrix his
conclusion and summary information showing whether or not Deltagen has
made correct payment of the fees and royalties payable hereunder, or,
if not, the extent and nature of any discrepancy. In the event it is
finally
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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determined that there is a discrepancy initially revealed by an audit
reveals greater than *** in the relevant period, Deltagen will pay any
reasonable audit fees.
12.2 DELTAGEN UNDERSTANDS THAT THE PROBE ARRAYS DELIVERED HEREUNDER ARE NOT
FDA APPROVED. DELTAGEN AGREES NOT TO USE THE PROBE ARRAYS DELIVERED
HEREUNDER IN ANY CLINICAL OR OTHER SETTING REQUIRING FDA REVIEW OR
APPROVAL EXCEPT THAT DELTAGEN MAY USE THE PROBE ARRAYS IN CLINICAL
TRIALS WHEN IT OBTAINS ALL REQUIRED FDA OR OTHER REGULATORY APPROVALS
REQUIRED FOR USE IN SUCH TRIALS. DELTAGEN WILL INDEMNIFY AFFYMETRIX FOR
ANY CLAIMS MADE BY A PATIENT ARISING FROM THE USE OF THE PROBE ARRAYS.
THE PROBE ARRAYS AND SYSTEMS ARE NOT LICENSED EXCEPT AS SPECIFICALLY
RECITED HEREIN UNDER ANY INTELLECTUAL PROPERTY RIGHTS OF AFFYMETRIX.
12.3 SUBJECT TO SECTION 9 AND 10, NEITHER PARTY SHALL ANY LIABILITY FOR
PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES.
12.4 Neither Party nor any of its Affiliates shall originate any news
relating to this Agreement without the prior written approval of the
other Party, which approval shall not be unreasonably withheld, or
except as otherwise required by law.
12.5 Either Party may assign any rights or obligations of this Agreement
to (i) an Affiliate, (ii) any third party who acquires all or
substantially all of the relevant assets of the assigning Party by
merger or sale of assets or otherwise or (iii) with the written
consent of the other Party (not to be unreasonably withheld), any
other third party. Notwithstanding the foregoing and only at
Affymetrix' option, to be exercised by providing notice in writing
to Deltagen within *** business days of having received written
notice of the pendency of such transaction, if Deltagen is acquired
by or otherwise makes an assignment hereof to a company or an
Affiliate of a company that, at the time of assignment, either (i)
has *** (defined as a *** whose primary source of gross revenue is
derived from sale of *** and such gross revenue is not less than
***) in *** (including, without limitation, if this provision were
applicable as of the date of this Agreement, *** or (ii) is a party
or an Affiliate of *** or its Affiliate with respect to
allegation(s) of ***, then, provided that Affymetrix (A) refunds to
the assignee or Deltagen (as Deltagen elects) the pro-rated portion
of the payment under Section 5.1 for the remainder of the year in
which the assignment occurs; (B) agrees in writing that the assignee
is not obligated to make payment under this Agreement other than
unpaid amounts (if any) due with respect to period(s) ending on or
before the date of assignment and, subject to the *** royalties
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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accruing on Net Sales of the ***; and (C) *** (including cost of
capital), all of *** as of the date of assignment (if Deltagen so
elects), then such assignee's rights hereunder shall be limited to
*** that either existed prior to such assignment by Deltagen or, if
Deltagen elects not to have *** pursuant to clause (C) preceding,
are *** after such assignment from use of *** in Deltagen's *** as
of the date of assignment, and such assignee shall not, without
Affymetrix prior written consent which Affymetrix may withhold for
any reason or no reason in Affymetrix' absolute sole discretion, be
entitled hereunder to *** nor otherwise create ***.
12.6 This Agreement shall be construed according to the laws of California
without regard to conflict of law provisions.
12.7 In the event of any controversy or claim relating to, arising out of or
in any way connected to any provision of this Agreement ("Dispute"),
the Parties shall seek to settle their differences amicably between
themselves. Any unresolved Dispute shall be finally resolved by final
and binding arbitration. Whenever a Party shall decide to institute
arbitration proceedings, it shall give written notice to that effect to
the other Party. The Party giving such notice shall refrain from
instituting the arbitration proceedings for a period of ten (10) days
following such notice to allow the Parties to attempt to resolve the
Dispute between themselves. If the Parties are still unable to resolve
the dispute, the Party giving notice may institute the arbitration
proceeding under the rules of the American Arbitration Association
("AAA Rules"). Arbitration shall be held in Palo Alto, California. The
arbitration shall be conducted before a single arbitrator mutually
chosen by the Parties, but if the parties have not agreed upon a single
arbitrator within fifteen (15) days after notice of the institution of
the arbitration proceeding, then the arbitration will be conducted by a
panel of three arbitrators. In such case, each Party shall within
thirty (30) days after notice of the institution of the arbitration
proceedings appoint one arbitrator. The third and presiding arbitrator
shall then be appointed by the AAA in accordance with AAA Rules. All
arbitrator(s) eligible to conduct the arbitration must undertake in
writing as a condition of service to render their opinion( s) promptly
after the final arbitration hearing. No arbitrator (nor the panel of
arbitrators) shall have the power to award punitive damages or any
award of multiple damages under this Agreement and such awards are
expressly prohibited. Decisions of the arbitrator(s) shall be final and
binding on the Parties. Judgment on the award of the arbitrator(s) may
be entered in any court having jurisdiction thereof. Except to the
extent entry of judgment and any subsequent enforcement may require
disclosure, all matters relating to the arbitration, including the
award, shall be held in confidence by the Parties.
12.8 The waiver by either Party of a breach or a default of any provision of
this
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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Agreement by the other Party shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any
delay or omission on the part of either Party to exercise or avail
itself of any right power or privilege that it has or may have
hereunder operate as a waiver of any right, power or privilege by such
Party.
12.9 This Agreement and the documents referred to herein are the full
understanding of the Parties with respect to the subject matter hereof
and supersede all prior understandings and writings relating to the
subject matter herein. No waiver alteration or modification of any of
the provisions herein shall be binding unless in writing and signed by
the Parties by their respective authorized representatives. In the
event of a conflict or inconsistency between the provisions of this
Agreement and the provisions of any license or other documentation
provided by Affymetrix with the Systems, Software, Probe Arrays,
reagents or any other Affymetrix product, then the provisions of this
Agreement shall govern.
12.10 The headings in this Agreement are for convenience only and shall not
be considered in construing this Agreement.
12.11 In the event that any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable because it is invalid or in
conflict with any law of any relevant jurisdiction, the validity of the
remaining provisions shall not be affected, and the rights and
obligations of the Parties shall be construed and enforced as if the
Agreement did not contain the particular provision(s) held to be
unenforceable.
12.12 This Agreement shall be binding on and inure to the benefit of the
Parties and their successors and permitted assigns.
12.13 None of the provisions of this Agreement shall be for the benefit of or
enforceable by any third party.
12.14 Any notice required under this Agreement shall be made by overnight
mail or courier to the addresses below.
If to Deltagen:
Deltagen, Inc.
1003 Hamilton Avenue
Menlo Park, CA 94025
Attn: President (with a copy to General Counsel)
Facsimile Number: (650) 752-0202
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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If to Affymetrix:
Affymetrix, Inc.
3380 Central Expressway
Santa Clara, California 95051
Attn: General Counsel
Facsimile Number: (408) 481- 4709
12.15 "Force Majeure" shall mean an Act of God, flood, fire, explosion,
earthquake, strike, lockout, casualty or accident, war, civil
commotion, act of public enemies, blockage or embargo, or any
injunction, law, order proclamation, regulation, ordinance, demand or
requirement of any government or any subdivision, authority
representative thereof, or the inability to procure or use materials,
labor, equipment, transportation or energy sufficient to meet
manufacturing needs without the necessity of allocation, or any other
cause whatsoever, whether similar or dissimilar to those enumerated
above, which are beyond the reasonable control of such Party, which the
party affected has used its reasonable best efforts to avoid, and which
prevent, restrict or interfere with the performance by a Party of its
obligations hereunder. The Party affected by Force Majeure shall give
notice to the other Party promptly in writing and whereupon shall be
excused from those obligations hereunder, to the extent of such
prevention, restriction or interference, provided that the affected
Party shall use its commercially reasonable efforts to overcome, avoid
or remove such cause(s) of non-performance and shall continue
performance whenever such cause(s) is removed with all possible speed.
Nothing herein shall be deemed to require any Party to settle on terms
unsatisfactory to such Party with regard to any strike, lockout or
other labor difficulty, any investigation or proceeding by any public
authority or any litigation by any third party.
12.16 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their properly and duly authorized officers or representatives as set forth
below.
Affymetrix, Inc.
By: /s/ Susan E. Siegel
---------------------------------
Name: Susan E. Siegel
-------------------------------
Title: President
------------------------------
Date: 7/12/00
-------------------------------
Deltagen, Inc.
By: /s/ William Matthews
---------------------------------
Name: William Matthews
-------------------------------
Title: Chief Executive Officer
------------------------------
Date: July 12, 2000
-------------------------------
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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EXHIBIT A
INITIAL PROBE ARRAY FORECAST
TBD
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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EXHIBIT B
SOFTWARE AND HARDWARE ORDERS
<TABLE>
<CAPTION>
ITEM NUMBER DESCRIPTION QUANTITY
--------------------------------------------------------------------------------
<S> <C>
***
</TABLE>
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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EXHIBIT C
FABRICATION VERIFICATION CRITERIA
I. GENE EXPRESSION ARRAY FABRICATION VERIFICATION
- ***
- ***
- ***
- ***
- ***
- ***
II. CHIP DESIGN QUALITY CHECK
- ***
- ***
- ***
- ***
III. QC TESTING PROCEDURE
- ***
- ***
- ***
- ***
- ***
- ***
IV. GE ARRAY QC TESTING PROCEDURE
- ***
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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- ***
- ***
- ***
- DOP AD027
- Assay
- ***
- ***
- Analysis
- ***
- ***
V. GE ARRAY QC TESTING CRITERIA
1. ***
- ***
2. ***
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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EXHIBIT D
RMA
[***] Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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