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Exhibit 10.22
CONFIDENTIAL
STRATEGIC ALLIANCE AGREEMENT
This STRATEGIC ALLIANCE AGREEMENT (the "Agreement") effective as of May 3, 2000
(the "Effective Date") is made by and between Genaissance Pharmaceuticals, Inc.
(hereinafter referred to as "GENAISSANCE"), a Delaware corporation having its
principal place of business at Five Science Park, New Haven, Connecticut 06511
and Sequenom, Inc. (hereinafter referred to as "SEQUENOM") a Delaware
corporation having its principal place of business at 11555 Sorrento Valley
Road, San Diego, California 92121.
RECITALS
WHEREAS, SEQUENOM has expertise in the development and utilization of mass
spectrometry for biopolymer analysis, and expertise in biopolymer assay
design (MassARRAY-TM- Assays), and more specifically, has developed
SEQUENOM's proprietary MassARRAY-TM- technology for high-throughput DNA
analysis (hereinafter "MassARRAY") and whereas SEQUENOM is building a
database of variation in genes of commercial significance to the
pharmaceutical industry;
WHEREAS, GENAISSANCE has expertise in discovering human genomic variation and in
correlating such variation with clinical endpoints, and more specifically is
building a database of such variation in genes of commercial significance to the
pharmaceutical industry (ISOGENOMICS-TM- Database);
WHEREAS, GENAISSANCE desires to purchase certain MassARRAY Products (as
hereinafter defined) from SEQUENOM to be used for GENAISSANCE's Internal
Research Purposes (as hereinafter defined) and HAP-TM- Marker Genotyping
Collaborations (as hereinafter defined), and also desires that SEQUENOM
design MassARRAY Assays (as hereinafter defined) to be used in support of
GENAISSANCE's Internal Research Purposes and HAP-TM- Marker Genotyping
Collaborations;
WHEREAS, SEQUENOM is willing to supply MassARRAY Products and to design
MassARRAY Assays for GENAISSANCE for its Internal Research Purposes and HAP-TM-
Marker Genotyping Collaborations in accordance with the terms and conditions set
forth in this Agreement;
WHEREAS, SEQUENOM AND GENAISSANCE wish to collaborate in developing MassARRAY
technology for use in clinical trials and clinical genetic tests and wish to
collaborate in marketing each others products and services;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, GENAISSANCE and SEQUENOM (each a "party" or collectively the "parties")
agree as follows:
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ARTICLE 1. DEFINITIONS
1.1 "Affiliate" shall mean with respect to either party, a person or
entity, including without limiting the generality of the foregoing,
organizations, corporations, partnerships and joint ventures, that
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such person or entity.
"Control" (and, with correlative meanings, the term "controlled by" and
"under common control with") means the possession of the power to
direct or cause the direction of the management and policies of such
person or entity, whether through the ownership of voting stock, by
contract or otherwise. In the case of a corporation, "control" shall
mean, among other things, the direct or indirect ownership of fifty
percent (50%) or more of its outstanding voting stock.
1.1 "Commercial Genotyping Services" shall mean performing genotyping
services in conjunction with a clinical diagnostic test to detect known
disease mutations or known prognostic polymorphisms or performing
genotyping services on a direct fee for service basis. For purposes of
this Agreement, the parties agree that performance of genotyping by
GENAISSANCE for Internal Research Purposes and for HAP-TM- Marker
Genotyping Collaborations is excepted and not considered Commercial
Genotyping Services under this definition.
1.3 DecoGen-TM- Software shall mean GENAISSANCE's software which is
designed to curate, collate and mine IN SILICO gene variation data and
which contains algorithms for building haplotypes from SNPs and for
identifying associations between genetic polymorphisms and phenotypes.
1.4 "Element" shall mean the SpectroCHIP-TM- technology, and the Reaction
Components B, as set forth in Appendix B, required for the MassARRAY
System to produce a mass spectrum from the reaction products located at
a single defined area (a.k.a. "Position") located on the SpectroCHIP,
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************************************* By way of example, for the 96-D
SpectroCHIP, each SpectroCHIP contains ninety six (96) Positions, so
that for the MassARRAY System processing a SpectroCHIP that has a
biopolymer sample ******************************, ninety six (96)
Elements are used and consumed under this definition.
1.5 "Field of Use" shall mean Internal Research Purposes and HAP-TM- Marker
Genotyping Collaborations. Commercial Genotyping Services are
specifically excluded from the Field of Use.
1.6 "GENAISSANCE Know-How" shall mean any and all proprietary data,
information, know-how, inventions, trade secrets, copyrights,
regulatory submissions or other intellectual property of any kind,
other than Patent Rights, owned or controlled by GENAISSANCE as of the
Effective Date or during the term of this Agreement.
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1.1 "Genolyzer-TM- Software" or "SpectroTYPER-TM- Software" shall mean
SEQUENOM's software used in conjunction with the MassARRAY System to
generate and store genotyping data, including sequences of primers used
to detect SNPs, the nucleotides being detected, the mass spectrometry
data relating to extension of such primers, and the genotypes generated
from such data.
1.8 "HAP-TM- Marker Genotyping Collaborations" shall mean GENAISSANCE's
in-house genotyping of SNPs pursuant to an agreement or collaboration
with a third party, in which such genotyping is performed for the sole
purposes of discovering, testing, confirming, or validating a SNP
Association, including within the context of a clinical trial, and
providing information to the third party regarding such association.
1.9 "HAP-TM- Marker Genotyping Collaborator" shall mean a third party,
including but not limited to any pharmaceutical or biotechnology
company, or any academic or nonprofit institution, for which
GENAISSANCE performs genotyping for the purposes described in
section 1.8.
1.10 "Internal Research Purposes" shall mean purposes and activities within
GENAISSANCE that are limited to research and development. Internal
Research Purposes includes SNP validation for GENAISSANCE's in-house
disease specific projects. Internal Research Purposes does not mean and
is not meant to include activities performed under grant money,
funding, and non-funding arrangements with third party companies,
enterprises, or institutions (for example, but not limited to
pharmaceutical research or manufacturing organizations) under which
results, products, or information from such activities are to be
provided to the third party. Internal Research Purposes does not mean
and does not include HAP-TM- Marker Genotyping Collaborations and does
not mean and does not include Commercial Genotyping Services.
1.11 "MassARRAY Assay" or "Assay" shall mean an assay designed by SEQUENOM
at the request of GENAISSANCE for the purpose of genotyping a
particular Proprietary SNP or Non-proprietary SNP and to be used with
the multi-step process described in Appendix C hereto, and such Assay
shall include the nucleotide sequences of the amplification and
extension primers, as well as allele-specific mass values, that are
necessary for performing the Assay. For purposes of this Agreement, the
parties agree that "MassARRAY Assays" shall mean all Assays which are
designed by SEQUENOM at the request of GENAISSANCE after the Effective
Date of this Agreement, as well as all Assays which were designed by
SEQUENOM at the request of GENAISSANCE prior to the Effective Date of
this Agreement for the SNPs listed in Appendix H hereto.
1.12 "MassARRAY Products" shall mean the MassARRAY System (as described and
defined in Appendix A hereto, and as developed pursuant to sections
2.9.1 and 2.9.2) and the MassARRAY Kit (as described and defined in
Appendix B hereto).
1.13 "MassEXTEND-TM- Methods and Processes" shall mean the
MassEXTEND-TM- Reaction as described and defined in Appendix C hereto
and which is claimed under Patent Rights
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including United States Patent Application Serial No. ********* and
foreign equivalents thereof.
1.1 "Non-proprietary SNP" shall mean a SNP that is not claimed under Patent
Rights of GENAISSANCE or a HAP-TM- Marker Genotyping Collaborator and
that is not Confidential Information of GENAISSANCE or a HAP-TM- Marker
Genotyping Collaborator.
1.15 "Patent Rights" shall mean ownership of or exclusive license rights to
(i) any United States or foreign patent application, (ii) any issued
United States patent or foreign patent and (iii) any continuation,
continuation-in-part, divisional, reissue, re-examination, renewal,
substitution, addition, extension, supplementary protection certificate
or foreign counterpart thereof of any of the foregoing.
1.16 ***********************************************************************
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1.17 "Proprietary SNP" shall mean a SNP that is claimed under Patent Rights
of GENAISSANCE or a HAP-TM- Marker Genotyping Collaborator or that is
Confidential Information of GENAISSANCE or a HAP-TM- Marker Genotyping
Collaborator.
1.18 "SEQUENOM Know-How" shall mean any and all proprietary data,
information, know-how, inventions, trade secrets, copyrights,
regulatory submissions or other intellectual property of any kind,
other than Patent Rights, owned or controlled by SEQUENOM as of the
Effective Date or during the term of this Agreement.
1.19 "SNP" shall mean a single nucleotide polymorphism.
1.20 "SNP Association" shall mean an association between one or more SNPs
and a phenotype, including but not limited to the presence of, or
susceptibility for, any disease or condition in humans, or response to
a drug, where such association is discovered using MassARRAY Assays in
the Field of Use.
ARTICLE 2. PURCHASING, ORDERS AND COLLABORATION
2.1 GENAISSANCE agrees to purchase MassARRAY Products as identified in
Appendices A and B, and SEQUENOM agrees to sell and deliver MassARRAY
Products to GENAISSANCE. Such purchase, sale, and delivery shall be
under the terms of this Agreement.
2.2
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************.
2.3 GENAISSANCE agrees to use MassARRAY Products as its preferred
genotyping technology as long as MassARRAY Products remain competitive
with alternative genotyping technologies in terms of the following
criteria: (i) cost per assay; (ii) high-throughput capacity; (iii)
accuracy; and (iv) consistency with industry or regulatory standards.
GENAISSANCE shall notify SEQUENOM if it considers that MassARRAY
Products are no longer competitive with an alternative genotyping
technology. In such a case, GENAISSANCE agrees to inform SEQUENOM of
the specific reasons why GENAISSANCE believes the MassARRAY Products
are not competitive and will, in good faith, provide SEQUENOM with an
opportunity to address these reasons and an opportunity to better meet
GENAISSANCE's needs.
2.4 This Agreement contains the exclusive terms and conditions which apply
to all purchases of MassARRAY Products, notwithstanding any
acknowledgment or other business forms ("forms" meaning and including
GENAISSANCE purchase orders) transmitted by SEQUENOM or GENAISSANCE.
All orders for MassARRAY Products must reference this Agreement and all
SEQUENOM and GENAISSANCE acknowledgments and transmittals will
reference this Agreement and the applicable GENAISSANCE purchase order.
2.5 All orders for MassARRAY Products must specify delivery within ninety
(90) days from the order date. All orders are subject to acceptance by
SEQUENOM and to product availability. All orders accepted by SEQUENOM
are firm and non-cancelable and SEQUENOM shall use its best efforts to
fill such orders within ninety (90) days from the order date.
2.6 This Agreement does not constitute a purchase order. Purchases
hereunder shall be made utilizing GENAISSANCE's written purchase orders
issued by GENAISSANCE.
2.7 GENAISSANCE will use its best efforts to supply SEQUENOM with a
forecast of its intended purchases on at least a quarterly basis, and
SEQUENOM shall advise GENAISSANCE within ten (10) business days of its
ability to meet such forecast. If SEQUENOM advises that it can meet
such forecast and SEQUENOM subsequently determines that it will be
unable to meet such forecast, SEQUENOM shall inform GENAISSANCE within
five (5) business days of its inability to meet such forecast and the
parties will discuss alternative solutions for meeting the forecast.
SEQUENOM shall use its best efforts to meet any forecast for which it
advised GENAISSANCE that it would meet.
2.8 When requested by GENAISSANCE, SEQUENOM agrees to design MassARRAY
Assays to be used by GENAISSANCE as set forth in Article 5 below.
GENAISSANCE shall request a group of MassARRAY Assays at a time, with
the number of assays in such group to be mutually agreed upon, and
shall provide SEQUENOM with the identity of, known alleles of, and
local sequence information surrounding the SNPs to be
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genotyped with the MassARRAY Assays. SEQUENOM agrees to advise
GENAISSANCE, within five (5) business days of receipt of such request,
the expected delivery date for the group of MassARRAY Assays and shall
use its best efforts to meet this date. Physical samples of primers in
aliquot form and/or validation of a MassARRAY Assay will only be
provided by SEQUENOM at GENAISSANCE's expense and subject to the
agreement of and at a price to be determined by the parties.
GENAISSANCE will be responsible for and bear all of the costs
associated with purchasing and performing quality control experiments
on all MassARRAY Assays that it uses or plans to use.
2.8.1 SEQUENOM, at its option, shall have the right to terminate its
obligation to design MassARRAY Assays at any time starting six
(6) months after the Effective Date of this Agreement PROVIDED
THAT SEQUENOM shall provide GENAISSANCE with three (3) months
advance notice of such termination.
2.9 SEQUENOM is interested in providing its customers with MassARRAY
Products together with Standard Operating Procedures (hereinafter
"SOPs") and validation materials that would assist its customers in
establishing that a laboratory using such MassARRAY Products for
performing high-throughput genotyping of SNPs in pharmacogenetic-based
clinical trials is compliant with US regulatory standards as set forth
in the Clinical Laboratory Improvement Amendments of 1988 ("CLIA"), and
possibly other governmental regulatory standards. GENAISSANCE is also
interested in using MassARRAY Products in conjunction with its
DecoGen-TM- Software in a high-throughput genotyping facility that is
compliant with all U.S. regulatory standards and has expertise in
obtaining certification of such compliance. As a result, the parties
agree as follows:
2.9.1 The parties agree to collaborate to define and develop a
standard configuration of a Moderate-Throughput MassARRAY
System for use only within the Field of Use, including but not
limited to, clinical molecular diagnostic laboratory uses
within the Field of Use. This Moderate-Throughput MassARRAY
System will be designed to process approximately
******************** assays per day. This Moderate-Throughput
System will be purchased and used by GENAISSANCE only in the
Field of Use after completion of satisfactory design,
implementation and testing by the parties, and contingent upon
the parties' mutual agreement on price and delivery schedule
pursuant to section 4.2.
2.9.2 The parties further agree to define and develop a standard
configuration of a High-Throughput MassARRAY Facility for use
only within the Field of Use, including but not limited to,
clinical molecular diagnostic laboratory uses within the Field
of Use. This High-Throughput MassARRAY Facility will be
designed to process up to ************************** assays
per day. The components of this High-Throughput Facility will
be purchased and used by GENAISSANCE only in the Field of Use
after completion of satisfactory design, implementation and
testing by the parties and contingent upon the parties' mutual
agreement on price and delivery schedule pursuant to
section 4.2.
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2.9.3 GENAISSANCE agrees to collaborate with SEQUENOM to
define and develop a standard set of molecular
genetic reagents (hereinafter "Reagents") and SOPs
for use with the Reagents and each of the standard
MassARRAY configurations developed pursuant to this
section 2.9. The Reagents and SOPs will be designed
to functionally validate the standard MassARRAY
configurations as part of the process of certifying
that a laboratory performing genotyping assays using
one of the standard MassARRAY configurations defined
herein is compliant with CLIA regulations for
operation of clinical molecular genetics
laboratories.
(a) The Reagents will include MassARRAY Assays for
genotyping a set of *** well characterized
Non-proprietary SNPs in a set of ****************
DNA specimens. All of the DNA specimens will be
derived from unrelated *************** samples
that are available to research and diagnostic
laboratories through the American Type Culture
Collection (ATCC). SEQUENOM will design and
retain ownership of the Assays PROVIDED THAT
GENAISSANCE shall receive a ************,
non-exclusive license, without the right to
transfer or sublicense, to use such Assays in the
Field of Use. GENAISSANCE will not provide any of
these Reagents to SEQUENOM or third party
laboratories. SEQUENOM may, at its discretion,
choose to package any or all of these materials
as a kit for sale and distribution to its
customers.
(b) The SOPs will include detailed instructions for
performing the Assays using the Reagents with
either the Moderate-Throughput MassARRAY System
or the High-Throughput MassARRAY Facility in a
manner consistent with CLIA regulations for
operation of clinical molecular genetics
laboratories. GENAISSANCE shall design and retain
ownership of these SOPs, PROVIDED THAT SEQUENOM
shall receive a ************, non-exclusive
license to use and sell the SOPs, and shall have
the right to sublicense the SOPs to customers of
SEQUENOM for use in conjunction with one of the
standard MassARRAY configurations designed
pursuant to this Agreement. GENAISSANCE shall, at
its sole discretion, have the right to modify the
Reagents and SOPs for its internal use and such
modifications will remain the Confidential
Information of GENAISSANCE.
(c) The parties agree that neither party shall
guarantee or warrant performance of the Reagents
and/or SOPs for use in obtaining certification
that a laboratory is in compliance with CLIA
regulations for operation of clinical molecular
genetics laboratories or for any other purpose.
2.9.4 SEQUENOM agrees to provide GENAISSANCE with clear,
understandable documentation regarding ************
************************************************ to
the extent necessary to allow GENAISSANCE to define
and produce data retrieval tools (hereinafter "Data
Tools") for use with GENAISSANCE's DecoGen-TM-
Software, electronic notebooks and any
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laboratory information management system selected by
GENAISSANCE. GENAISSANCE agrees that such
documentation shall only be used to develop the Data
Tools. GENAISSANCE shall retain complete title and
ownership to such Data Tools with the right to
license or transfer such Data Tools only to those
HAP-TM- Marker GenotypiNG Collaborators that have a
license from GENAISSANCE to use DecoGen-TM- Software
and, under a separate license agreement with
SEQUENOM, have a license to Genolyzer-TM- Software.
2.9.5 During the term of this Agreement, the parties agree
to negotiate in good faith to extend the
collaborations described in this section 2.9 to other
configurations of MassARRAY technology and other
SEQUENOM products that are currently under
development or that may be developed in the future by
SEQUENOM as well as to future versions of the
DecoGen-TM- Software or other software developed by
GENAISSANCE.
2.9.6 In the unlikely event that the parties can not agree
on the definition of a standard MassARRAY
configuration pursuant to section 2.9.1 or
section 2.9.2, or specifications therefor, then
SEQUENOM will use its best efforts to support
alternative MassARRAY-based configurations and
specifications installed at GENAISSANCE.
2.10 The parties each agree to recommend the other party's products and
services to potential customers in the pharmaceutical, biotechnology,
and agricultural markets, and refer publicly to one another as
Strategic Partners. SEQUENOM will refer to GENAISSANCE as a provider of
technology that connects genomic variation with clinical outcomes and
GENAISSANCE will refer to SEQUENOM as its provider of high-throughput
genotyping technology for use in genomic variation and clinical
association studies. Each party will make available to the other party
marketing and technical material, including non-proprietary data, to be
incorporated into public lectures where appropriate. Each party will
also make available a representative to present its respective
technology in private meetings with third party potential customers,
where it is determined that this will support the execution of a sale.
2.11 Within six months of executing this Agreement, the parties will
mutually agree upon a collaborative marketing scheme, which shall
include at least: (a) details of joint marketing tools (e.g. joint
events, web site cross-linking); (b) a procedure to establish which
party shall serve as `primary lead' when both parties independently
enter into discussions with the same potential customer; and (c)
financial incentives (e.g. royalties or `finder's fees'), if any, to be
provided when one party secures new business for the other party.
2.12 Throughout the term of this Agreement, each party will designate a
dedicated staff member as its Strategic Alliance Manager whose primary
responsibility will be the successful implementation of this Agreement.
SEQUENOM designates *************, Ph.D. as its initial Strategic
Alliance Manager and GENAISSANCE designates Mark
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Rabin, Ph.D. as its initial Strategic Alliance Manager. Each party
agrees to notify the other party within ten (10) business days of a
change in its Strategic Alliance Manager.
ARTICLE 3. DELIVERY, SHIPMENT AND RISK OF LOSS
3.1 Delivery of MassARRAY Products is subject to acceptance of the order by
SEQUENOM and to product availability, and to SEQUENOM's lead times
which may change from time to time.
3.2 SEQUENOM will ship according to SEQUENOM's standard commercial practice
as described in Appendix D. Special packing or shipping instructions
requested by GENAISSANCE must be agreed to by SEQUENOM in writing, and
any charges will be billed to GENAISSANCE.
3.3 All shipments by SEQUENOM shall be FOB SEQUENOM's point of manufacture
in the United States, PROVIDED THAT if SEQUENOM has a point of
manufacture in Europe, then any shipments by SEQUENOM to GENAISSANCE's
facilities in Europe shall be FOB SEQUENOM's point of manufacture in
Europe. Title to and risk of loss for the MassARRAY Products shall pass
to GENAISSANCE upon delivery by SEQUENOM to a carrier designated by
GENAISSANCE or selected by SEQUENOM if GENAISSANCE does not designate a
carrier.
ARTICLE 4. PRICE AND PAYMENT TERMS
4.1 MASSARRAY SYSTEM PRICE. SEQUENOM has delivered one MassARRAY System to
GENAISSANCE which consisted of the items listed on GENAISSANCE's
Purchase Order No. *****, which is attached as Appendix G hereto, and
for which GENAISSANCE has agreed to ***********************************
**************************************
4.2 GENAISSANCE agrees to purchase at ************* additional
SpectroSCAN-TM- array mass spectrometers, as well as the accompanying
components comprising one or both of the MassARRAY standard
configurations developed pursuant to sections 2.9.1 and 2.9.2, the
configuration, price, and delivery schedule of which to be mutually
agreed upon by the parties, with the understanding that the price and
delivery schedule shall reflect the ************************* of
GENAISSANCE.
4.3 SEQUENOM agrees to upgrade, ************ to GENAISSANCE, the MassARRAY
Systems purchased by GENAISSANCE pursuant to sections 4.1 and 4.2 to
provide a capacity for simultaneously processing three hundred eighty
four (384) samples through all steps in the Assay described in Appendix
C. SEQUENOM agrees to perform such upgrade within ten (10) business
days that such upgrade becomes commercially available and agrees that
such upgrade shall include replacement of components of the MassARRAY
Systems installed at GENAISSANCE if necessary to achieve such capacity.
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4.4 MASSARRAY KIT PRICE. Except as otherwise provided in this section 4.4
and section 4.5, the price of a MassARRAY Kit *************************
**********************. This price for the MassARRAY Kit is based upon
a fee ***************************** per Element. This price is for the
MassARRAY Kit set forth in Appendix B, each Kit including a ten (10)
chip 384-D SpectroCHIP-TM- pack, wherein each SpectroCHIP-TM- chip
contains three-hundred eighty four (384) Positions. Until the 384-D
SpectroCHIP becomes available, SEQUENOM will sell GENAISSANCE MassARRAY
Kits that include a ten (10) chip 96-D SpectroCHIP-TM- pack, wherein
each SpectroCHIP-TM- chip contains ninety six (96) Positions, for a
price ***************** ****************************. This price for
MassARRAY Kits having the ten (10) chip 96-D SpectroCHIP-TM- pack is
based upon the same fee ********************** ****** per Element. The
parties agree that the price per Element set forth in this section 4.4
shall be reviewed every six months and shall be reduced if necessary to
assure that GENAISSANCE receives ************************* as set forth
in section 2.2. Should the parties agree to extend this Agreement
beyond its three (3) year duration, SEQUENOM reserves the right to
adjust the price for its MassARRAY Kits at its option, PROVIDED THAT
the adjusted price shall reflect GENAISSANCE's **************** *****
as set forth in section 2.2. Payments for the MassARRAY Kits will be
due thirty (30) days from the date of shipment. Upon shipment of
MassARRAY Kits, SEQUENOM will submit an invoice reflecting an invoice
number, date, remit to address, purchase order number, quantity
ordered, unit price, and any applicable tax and shipping and handling
charges. The configuration of the MassARRAY Kit may change and/or be
improved from time to time and may or may not be accompanied by a
change in purchase price, although the fees per Element agreed to will
not increase during the three (3) year duration of this Agreement.
4.5 DISCOUNTED MASSARRAY KIT PRICING BASED UPON INCREASED CONSUMPTION.
SEQUENOM agrees to charge GENAISSANCE a reduced Element fee other than
that set forth under section 4.4 above, in the event and upon the
condition that GENAISSANCE, during a twelve month calendar year,
achieves Element consumption milestones as set forth below, according
to a scale where the Element fee is reduced as consumption increases.
For example, as shown in the table below, should GENAISSANCE consume
between *************************************************************
Elements in a given calendar year, GENAISSANCE will be charged an
Element fee of ******************************* per Element rather than
************************** per Element as set forth under section 4.4.
In such a case, GENAISSANCE will receive ****************************
***************************************, upon reaching such milestones,
and ***************************************************.
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ELEMENTS CONSUMED ************ ************ ********
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PER CALENDAR YEAR *******
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ELEMENT FEE **** **** ****
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4.6 MANNER OF PAYMENT. Payments to be made by GENAISSANCE to SEQUENOM under
this Agreement shall be payable in United States dollars.
ARTICLE 5. INTELLECTUAL PROPERTY AND LIMITED RIGHT TO USE
5.1 By this Agreement, and subject to the terms and conditions set forth
under section 5.1.1 of this Article 5, with the purchase of MassARRAY
Kits, SEQUENOM grants GENAISSANCE a world-wide, non-exclusive, limited
right, to use, without the right to permit third parties to use, the
MassARRAY Kits, in conjunction with the MassARRAY System, for the
defined Field of Use.
5.1.1 The MassARRAY Kits provided under this Agreement may be used
in performing SEQUENOM's proprietary MassEXTEND-TM- Methods
and Processes claimed under Patent Rights including United
States Patent Application Serial No. ********* and foreign
equivalent Patent Rights. The pricing of the MassARRAY Kit set
forth in sections 4.4 and 4.5 includes a prepaid royalty in
consideration for which SEQUENOM grants GENAISSANCE a
non-exclusive right without transfer or sublicense rights,
under United States Patent Application Serial No. *********,
foreign equivalent Patent Rights and SEQUENOM Know-How to use
the MassARRAY Kits to perform SEQUENOM's proprietary
MassEXTEND-TM- Methods and Processes, such right granted being
limited to the number of Elements provided per MassARRAY Kit
purchased, and such right granted being limited to use by
GENAISSANCE for the defined Field of Use.
5.2 The purchase price and royalty terms agreed to under Article 4 and this
Article 5 of this Agreement, are based upon the parties' mutual
understanding of the limited rights and the limited Field of Use placed
on GENAISSANCE's use of MassARRAY Products provided for under this
Article. Any other uses of the MassARRAY Products, and any terms and
conditions related thereto, must be agreed to, in writing, by the
parties. With the exception of the rights granted under this Article 5,
no other right or license is granted to GENAISSANCE either directly,
indirectly, by implication, estoppel, or otherwise by SEQUENOM under
this limited grant.
5.3 All MassARRAY Assays for Proprietary SNPs are hereby designated
GENAISSANCE Confidential Information and SEQUENOM's use of such assays
shall be limited as set forth in this section 5.3 and Article 11.
5.3.1 For the avoidance of doubt, SEQUENOM may make, use, offer to
sell and sell MassARRAY Assays for genotyping Proprietary SNPs
PROVIDED THAT SEQUENOM validates such Assays independently of
any GENAISSANCE Confidential Information as defined in section
11.1, PROVIDED THAT such Proprietary SNPs have lost their
status as Confidential Information or never were Confidential
Information and that such Assays do not infringe any issued
claim under Patent Rights of GENAISSANCE or a HAP-TM- Marker
Genotyping Collaborator.
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5.3.2 Except as explicitly provided by section 5.3.1, the parties
agree that section 5.3.1 does not grant to SEQUENOM any
license to make, use, offer to sell or sell the MassARRAY
Assays referenced in section 5.3.1 under any Patent Rights
claiming such Assays and does not grant to SEQUENOM an
exemption for liability for any damages provided under any
patent protection associated with such Patent Rights.
5.2.1 The parties agree that nothing in this Agreement, including
any and all of the language in this Article 5, is intended to
grant GENAISSANCE a license to perform SEQUENOM's proprietary
MassEXTEND-TM- Methods and Processes, or to grant to
GENAISSANCE a license to any Patent Rights of SEQUENOM, based
solely upon the designation of MassARRAY Assays for
Proprietary SNPs as "GENAISSANCE Confidential Information" (as
set forth under section 5.3) or otherwise by implication under
this Agreement. For the avoidance of doubt, and by way of
example only, should this Agreement terminate or expire, while
GENAISSANCE possesses and own the rights to the MassARRAY
Assays (as defined in section 1.11) for Proprietary SNPs,
GENAISSANCE does not possess, control, or own any interest in
any Patent Rights of SEQUENOM, including any and all Patent
Rights to SEQUENOM's proprietary MassEXTEND-TM- Methods and
Processes. If MassARRAY Assays for Proprietary SNPs have
utility outside the scope of SEQUENOM's Patent Rights, then
GENAISSANCE is free to exploit such utility, however,
MassARRAY Assays for Proprietary SNPs may not be used within
the scope of any of SEQUENOM's Patent Rights unless, and only
upon the condition that MassARRAY Assays for Proprietary SNPs
are used with MassARRAY Products purchased from SEQUENOM and
the written license agreement provisions of sections 5.1 and
5.1.1 are in effect between the parties and are complied with
by GENAISSANCE.
5.4 All MassARRAY Assays for Non-proprietary SNPs are hereby designated
SEQUENOM Confidential Information and GENAISSANCE's use of such Assays
shall be limited as set forth in this section 5.4 and Article 11.
5.4.1 By this Agreement, SEQUENOM grants to GENAISSANCE a
world-wide, **********, non-exclusive license right, without
the right to sublicense or transfer, to make and use MassARRAY
Assays for Non-proprietary SNPs, only in the defined Field of
Use and only with MassARRAY Products purchased from SEQUENOM.
5.4.2 For the avoidance of doubt, the parties agree that GENAISSANCE
is free to make, use, offer to sell and sell assays for
genotyping Non-proprietary SNPs when GENAISSANCE designs and
validates such assays independently of any SEQUENOM
Confidential Information as defined in sections 5.4 and 11.1,
PROVIDED THAT such assays do not infringe any issued claim
under Patent Rights of SEQUENOM.
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5.4.3 Except as explicitly provided by section 5.4.2, the parties
agree that section 5.4.2 does not grant to GENAISSANCE any
license to make, use, offer to sell or sell the assays
referenced in section 5.4.2 under any Patent Rights claiming
such assays and does not grant to GENAISSANCE an exemption for
liability for any damages provided under any patent protection
associated with such Patent Rights.
5.4 GENAISSANCE shall have sole ownership of all right, title and interest
in all SNP Associations that are discovered by GENAISSANCE, or
codiscovered by GENAISSANCE and a HAP-TM- Marker Genotyping
Collaborator, using a MassARRAY Assay.
5.6 SEQUENOM represents and agrees that all employees or others acting on
its behalf pursuant to this Agreement shall be obligated under a
binding written agreement to assign to SEQUENOM all inventions made or
conceived by such employee or other person.
5.7 GENAISSANCE represents and agrees that all employees or others acting
on its behalf pursuant to this Agreement shall be obligated under a
binding written agreement to assign to GENAISSANCE all inventions made
or conceived by such employee or other person.
5.8 Except as provided under section 5.3.1, SEQUENOM agrees that it shall
require a license or prior written permission from GENAISSANCE to use,
market or sell MassARRAY Assays for Proprietary SNPs.
5.9 Except as otherwise expressly provided in this Agreement, under no
circumstances shall a party hereto, as a result of this Agreement,
obtain any ownership interest in or other right to any technology,
know-how, patents, patent applications, data, products, or biological
materials of the other party, including items owned, controlled or
developed by the other party, or transferred by the other party to said
party, at any time pursuant to this Agreement. Any compounds,
technology or know-how derived, developed or acquired by either party
independent of this Agreement or Confidential Information derived from
this Agreement shall be the property of such party.
5.10 SEQUENOM recognizes that GENAISSANCE would like HAP-TM- Marker
Genotyping Collaborators to have access to the MassARRAY Products
that GENAISSANCE is provided with under this Agreement. SEQUENOM
agrees that it will grant licenses to MassARRAY Products to HAP-TM-
Marker Genotyping Collaborators on commercially reasonable terms. In
addition, SEQUENOM agrees that it will grant to HAP-TM- Marker
Genotyping Collaborators a ********** non-exclusive license to make
and use MassARRAY Assays designed for GENAISSANCE by SEQUENOM for
Non-proprietary SNPs, PROVIDED THAT such licenses shall be limited
to the Field of Use defined herein and shall only be granted to
those HAP-TM- Marker Genotyping Collaborators who have a license
under a separate agreement with SEQUENOM to use MassARRAY Products.
While the license grants referred to in this section 5.11 will not
be unreasonably withheld by SEQUENOM, SEQUENOM does reserve the
right to abstain from granting a license to any HAP-TM- Marker
Genotyping Collaborator that is a
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competitor of SEQUENOM or that is otherwise not appropriate for a
license grant in the sound and reasonable business judgment of
SEQUENOM.
5.11 The parties agree that a HAP-TM- Marker Genotyping Collaborator is a
third-party beneficiary of the provisions of section 5.11 and shall
have the right to enforce such provisions against SEQUENOM.
ARTICLE 6. INSPECTION/AUDIT RIGHTS
6.1 Upon the written request of SEQUENOM, GENAISSANCE shall permit an
independent certified public accountant selected by SEQUENOM and
acceptable to GENAISSANCE, which acceptance shall not be unreasonably
withheld, to have access during normal business hours to such records
of GENAISSANCE as may be reasonably necessary to verify GENAISSANCE's
compliance with the terms of this Agreement, in respect of any fiscal
year ending not more than twenty-four (24) months prior to the date of
such request. SEQUENOM and GENAISSANCE shall use commercially
reasonable efforts to schedule all such verifications within forty-five
(45) days after SEQUENOM makes its written request. All such
verifications shall be conducted not more than once in each calendar
year. SEQUENOM agrees that all information subject to review under this
section 6.1 or under any agreement with a HAP-TM- Marker Genotyping
Collaborator is confidential and that SEQUENOM shall cause its
independent certified public accountant to retain all such informatioN
in confidence and to execute a written agreement indicating the same.
SEQUENOM's independent certified public accountant shall only report to
SEQUENOM that information directly relating to compliance with the
terms of this Agreement and shall not disclose to SEQUENOM any other
information of GENAISSANCE or its HAP-TM- Marker Genotyping
Collaborators.
6.2 Upon the written request of GENAISSANCE, SEQUENOM shall permit an
independent certified public accountant selected by GENAISSANCE and
acceptable to SEQUENOM, which acceptance shall not be unreasonably
withheld, to have access during normal business hours to such records
of SEQUENOM as may be reasonably necessary to verify SEQUENOM's
compliance with the terms of this Agreement, in respect of any fiscal
year ending not more than twenty-four (24) months prior to the date of
such request. SEQUENOM and GENAISSANCE shall use commercially
reasonable efforts to schedule all such verifications within forty-five
(45) days after GENAISSANCE makes its written request. All such
verifications shall be conducted not more than once in each calendar
year. GENAISSANCE agrees that all information subject to review under
this section 6.2 is confidential and that GENAISSANCE shall cause its
independent certified public accountant to retain all such information
in confidence and to execute a written agreement indicating the same.
GENAISSANCE's independent certified public accountant shall only report
to GENAISSANCE that information directly relating to compliance with
the terms of this Agreement and shall not disclose to GENAISSANCE any
other information of SEQUENOM.
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ARTICLE 7. TERM AND TERMINATION
7.1. The term of this Agreement will be from the Effective Date and will
continue for a period of three (3) years, unless terminated by a party
or the parties under one of the provisions of this Article 7.
7.2. This Agreement shall terminate upon written notice by one party to the
other party in the event the other party shall become insolvent, asks
its creditors for a moratorium, files a bankruptcy petition, or suffers
appointment of a temporary or permanent receiver, trustee, or
custodian, for all or a substantial portion of its assets.
7.3. Either party may terminate this Agreement for default by the other
party in performing any of its material obligations under this
Agreement by notifying the other party in writing of such default and
allowing the other party thirty (30) days within which to cure such
default, unless the default is the failure to pay money, in which case
the defaulting party shall have only ten (10) business days to cure
such default after receiving written notice of non-payment. If such
default is not cured within thirty (30) days from receipt of such
notice of default (or ten (10) business days in the case of non-payment
of money owed), the non-defaulting party may terminate this Agreement
by written notice to the defaulting party.
7.4. GENAISSANCE may terminate this Agreement if, in its sole judgement,
SEQUENOM has failed to make MassARRAY Products competitive pursuant to
section 2.3, by providing SEQUENOM thirty (30) days written notice of
such termination.
7.5. In addition to the other grounds set forth in this Article 7,
GENAISSANCE may terminate this Agreement by providing SEQUENOM thirty
(30) days written notice if GENAISSANCE reasonably believes that this
Agreement is no longer consistent with GENAISSANCE's overall business
strategy.
7.6. EFFECT OF EXPIRATION OR TERMINATION OF AGREEMENT. Within thirty (30)
days after expiration or termination under this Article 7, each party
shall return to the other party or destroy any and all Confidential
Information provided by the other party pursuant to this Agreement
according to section 11.3. GENAISSANCE shall have the right to use all
MassARRAY Kits for which GENAISSANCE has paid and are in GENAISSANCE's
possession at the time of termination, and the licenses granted
GENAISSANCE pursuant to sections 5.1 and 5.1.1 shall continue until all
such MassARRAY Kits are used. Except to the extent expressly provided
to the contrary, the rights and obligations of the parties pursuant to
Articles 6, 7, 11, and 12 and sections 5.3, 5.3.1, 5.3.2, 5.3.3, 5.4,
5.4.1, 5.4.2, 5.4.3, 5.5, 5.6, 5.7, 5.8, 5.9, 14.3, 14.5, 14.6 and
14.15 shall survive the expiration or termination of this Agreement.
Any and all rights of SEQUENOM to payments accrued through expiration
or termination as well as obligations of the parties under firm orders
for purchase and delivery of MassARRAY Products at the time of such
expiration or termination shall remain in effect, except that SEQUENOM
will have no obligation to sell and deliver MassARRAY Products that
have delivery dates more than three (3) months after the date of
termination, and in the case of termination under sections 7.2 or
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7.3, the terminating party has discretion in electing whether
obligations under firm orders will remain in effect.
ARTICLE 8. INSTALLATION AND ACCEPTANCE
8.1 Installation of each MassARRAY System by SEQUENOM at a location
designated by GENAISSANCE is included in the price under sections 4.1
and 4.2. SEQUENOM shall install each MassARRAY System in accordance
with SEQUENOM's standard installation practice as defined in Appendices
D and E hereto, or as amended in the future by mutual written agreement
of the parties, and SEQUENOM will use commercially reasonable efforts
to schedule and complete installation in a timely fashion. GENAISSANCE
and SEQUENOM will cooperate with each other to coordinate the
installation effort.
8.2 Installation shall be complete, and acceptance by GENAISSANCE shall
occur, when the MassARRAY System passes SEQUENOM's standard
installation and test procedures as defined in Appendices D and E
hereto, or as amended in the future by mutual written agreement of the
parties. In the event the MassARRAY System delivered will not pass
SEQUENOM's standard installation and test procedures, SEQUENOM will use
reasonable commercial efforts to make the necessary adjustments and/or
to replace the MassARRAY System in whole or in part until the MassARRAY
System performs as intended and passes such tests.
ARTICLE 9. TRAINING
9.1 Included in the price under sections 4.1 and 4.2, SEQUENOM will train
designated GENAISSANCE employees in the installation, use, and routine
maintenance of the MassARRAY Products in accord with SEQUENOM's
standard training program as described in Appendices E and F hereto, or
as amended in the future by mutual written agreement of the parties,
and at a mutually convenient time for the parties. GENAISSANCE may
request from time to time, due to additional instrument purchases,
employee changes, increased use, or otherwise, additional training as
the need arises. SEQUENOM will provide additional training according to
a mutually convenient schedule and at a price to be mutually agreed
that will reflect GENAISSANCE's *********************.
ARTICLE 10. REPRESENTATIONS AND WARRANTY
10.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF GENAISSANCE. GENAISSANCE
represents and warrants to and covenants with SEQUENOM that:
(a) GENAISSANCE is a corporation duly organized, validly
existing and in corporate good standing under the
laws of Delaware;
(b) GENAISSANCE has the legal right, authority and power
to enter into this Agreement;
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(c) GENAISSANCE has taken all necessary action to
authorize the execution, delivery and performance of
this Agreement;
(d) upon the execution and delivery of this Agreement,
this Agreement shall constitute a valid and binding
obligation of GENAISSANCE enforceable in accordance
with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally
and except as enforceability may be subject to
general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law);
(e) the performance of its obligations under this
Agreement will not conflict with its charter
documents or result in a breach of any agreements,
contracts or other arrangements to which it is a
party; and
(f) GENAISSANCE will not during the term of this
Agreement enter into any agreements, contracts or
other arrangements that would be inconsistent with
its obligations under this Agreement.
10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SEQUENOM. SEQUENOM
represents and warrants to and covenants with GENAISSANCE that:
(a) SEQUENOM is a corporation duly organized, validly
existing and in corporate good standing under the
laws of Delaware;
(b) SEQUENOM has the legal right, authority and power to
enter into this Agreement;
(c) SEQUENOM has taken all necessary action to authorize
the execution, delivery and performance of this
Agreement;
(d) upon the execution and delivery of this Agreement,
this Agreement shall constitute a valid and binding
obligation of SEQUENOM enforceable in accordance with
its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as
enforceability may be subject to general principles
of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(e) the performance of its obligations under this
Agreement will not conflict with its charter
documents or result in a breach of any agreements,
contracts or other arrangements to which it is a
party;
(f) to the best of SEQUENOM'S knowledge, GENAISSANCE's
use of MassARRAY Products and practice of
MassEXTEND-TM- Methods and Processes in accordance
with the product information, notices, and
instructions for use provided therewith, do not and
will not infringe any issued patent or valid
copyright of any third party that is issued or
registered prior to the effective date of this
Agreement, respectively; and
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(g) SEQUENOM will not during the term of this Agreement
enter into any agreements, contracts or other
arrangements that would be inconsistent with its
obligations under this Agreement.
10.3 LIMITED WARRANTY RELATING TO MASSARRAY PRODUCTS. SEQUENOM warrants that
the MassARRAY System will be free from defects in materials and
workmanship and will conform to SEQUENOM's current specifications, or
as amended in the future by mutual written agreement of the parties,
and perform accordingly, from the time of installation and for a period
of at least one (1) year thereafter, so long as the MassARRAY System
remains unchanged and in the original condition supplied by SEQUENOM.
SEQUENOM warrants that the MassARRAY Kits will be free from defects in
materials and workmanship and will conform to SEQUENOM's specifications
as defined in Appendix C hereto, or as amended in the future by mutual
written agreement of the parties, and perform accordingly, for a period
of at least two (2) months from the date of shipment, so long as the
MassARRAY Kits are stored according to specifications as defined in
Appendix C hereto, or as amended in the future by mutual written
agreement of the parties, and remain unchanged and in the original
condition supplied by SEQUENOM. The foregoing warranty does not include
periodic maintenance or calibration recommended for some MassARRAY
Products. This warranty does not apply to defects resulting from
improper or inadequate maintenance or calibration by GENAISSANCE;
defects resulting from hardware, software, interfacing, or supplies
provided by parties other than SEQUENOM; defects resulting from
unauthorized modification, maintenance, or repair, or improper use or
operation outside of SEQUENOM's specifications for the MassARRAY
Products or by personnel not authorized by SEQUENOM, and; defects
resulting from abuse, negligence, accident, loss or damage in transit.
In addition, this warranty does not apply to damage due to (1)
environmental conditions at the site of installation; (2) operator
failure to perform standard operating procedures and routine
maintenance as prescribed in the operator manuals; (3) moving (by other
than SEQUENOM authorized personnel) the MassARRAY System from its
installed location; (4) exposure of the MassARRAY Products to
Bio-Safety Level 3 or 4 (as defined by the United States Occupational
Health and Safety Administration) agents; or (5) exposure to
radioactivity.
10.3.1 SEQUENOM's sole obligation and liability for any breach of the
limited warranty set forth in section 10.3 shall be at
SEQUENOM's sole discretion and option: (1) to replace the
MassARRAY Products, in whole or in part, provided that
GENAISSANCE notifies SEQUENOM of the defects, SEQUENOM directs
GENAISSANCE to return the defective MassARRAY Products to
SEQUENOM and GENAISSANCE returns the MassARRAY Products as
directed, at SEQUENOM's expense or (2) to repair (and
recalibrate as necessitated by repair) the MassARRAY Products
in whole or in part. MassARRAY Products may not be returned to
SEQUENOM under any circumstances without SEQUENOM's prior
authorization. Except as provided in Article 12, SEQUENOM
shall not be liable, to any extent whatsoever, for any damages
resulting from or arising out of the use or performance of the
MassARRAY Products provided under this Agreement, regardless
of foreseeability or the form of the cause of action,
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whether in contract, breach of warranty, tort (including
negligence, strict liability, or otherwise), and including but
not limited to damages resulting from loss of data, loss of
anticipated profits or revenue, or any special, direct,
indirect, incidental or consequential damages.
10.3.2 The limited warranty set forth in section 10.3 states
GENAISSANCE's sole and exclusive remedy and SEQUENOM's sole
and exclusive responsibility with respect to any alleged
breach of this limited warranty. Except as provided in section
10.3, the MassARRAY Products are provided without warranty of
any kind or nature. SEQUENOM does not warrant, guarantee, or
make any representations regarding the use or the results of
the use, of the MassARRAY Products in terms of correctness,
accuracy, reliability, or otherwise. GENAISSANCE assumes the
entire risk as to the results and performance of the MassARRAY
Products. The foregoing warranty is exclusive and is made in
lieu of and to the exclusion of any other warranties, whether
oral or written, express or implied, direct, indirect, by
estoppel or otherwise, or created by the Uniform Commercial
Code or the usage in the industry or the course of dealings of
the parties, as to any matter whatsoever, including but not
limited to those concerning merchantability or fitness for a
particular purpose.
ARTICLE 11. CONFIDENTIALITY
11.1 For the purpose of this Agreement, Confidential Information
means all information, data, and material, labeled or
otherwise designated or identified as confidential by SEQUENOM
or by GENAISSANCE or their Affiliates.
11.1.1 All information relating to SEQUENOM's MassARRAY
Products including but not limited to, price,
quantity, discount, delivery schedule, improvements,
standard operating procedure documents, operation
manuals, schematics, design specifications,
manufacturing and related specifications, is hereby
designated as SEQUENOM's Confidential Information.
SEQUENOM agrees that it will, in writing, clearly
identify as confidential, any and all information
that it provides to GENAISSANCE that it considers to
be the Confidential Information of SEQUENOM.
11.1.2 Any and all data generated by GENAISSANCE's use of
MassARRAY Products is hereby designated as
GENAISSANCE's Confidential Information. All
information that GENAISSANCE has received from a
third party under an obligation of confidentiality to
the third party is also hereby designated as
GENAISSANCE's Confidential Information. GENAISSANCE
agrees that it will, in writing, clearly identify as
confidential, any and all SNPs and any other
information that it provides to SEQUENOM and that it
considers to be the Confidential Information of
GENAISSANCE.
11.3 Each party may use the other party's Confidential Information
only for the purpose of performing under this Agreement. For
the avoidance of doubt, the parties agree that
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neither party shall include in its database of gene variation
any information relating to a SNP that is the Confidential
Information of the other party unless such information is
derived independently of such Confidential Information. All
Confidential Information remains the sole property of the
disclosing party. Upon termination or expiration of this
Agreement, all materials and all copies of all materials
containing Confidential Information, including but not limited
to papers, books, logs, correspondence and records, in any
form, whether written, typed, electronic, videotape,
audiotape, etc., shall be returned to the disclosing party
within thirty (30) days of the termination or expiration of
this Agreement, except that each party may retain a single
copy of the other party's Confidential Information solely for
the purpose of ensuring compliance under this Agreement and
GENAISSANCE may retain and use a copy of Genolyzer-TM-
Software for a period of ************** after termination of
this Agreement SOLELY for the purpose of providing genotyping
data that has been created under this Agreement while this
Agreement was in effect, to a regulatory agency or to a
HAP-TM- Marker Genotyping Collaborator. GENAISSANCE shall have
the right to capture in any and all digital forms any type of
data generated from its use of MassARRAY Products and
Genolyzer-TM- Software during the term of this Agreement.
11.4 Except as expressly provided herein, SEQUENOM and GENAISSANCE
Affiliates, officers, employees, agents, consultants, and
authorized representatives (a) shall hold in strict confidence
all Confidential Information from the other party or any of
its Affiliates, officers, employees, agents or representatives
and (b) shall not distribute, disclose or disseminate such
Confidential Information to any third party without the prior
written approval of the other party (that is, the original
disclosing party), PROVIDED, HOWEVER, that such approval will
not be unreasonably withheld where the receiving party
reasonably believes that disclosure of the other party's
Confidential Information is reasonably necessary to obtain
patents, authorization to conduct clinical trials, or
regulatory approval, and PROVIDED THAT GENAISSANCE may, at its
sole option and discretion, disclose to its HAP-TM- Marker
Genotyping Collaborators only that SEQUENOM Confidential
Information directly relating to MassARRAY Assays for
Non-proprietary SNPs on condition that such Collaborators
agree in writing to keep such information confidential to the
same extent as GENAISSANCE is required to keep the
Confidential Information confidential.
11.5 For purposes of this section, information will not be
considered to be Confidential Information of a party if the
information:
(i) was lawfully in the receiving party's possession
prior to disclosure under this Agreement and was not
acquired directly or indirectly from the disclosing
party; or
(ii) was, at the date of disclosure by the disclosing
party, public knowledge; or subsequently becomes
public knowledge other than through the failure of
the receiving party to comply with its obligations of
confidentiality under the terms of this Agreement; or
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(iii) was or is acquired by the receiving party from any
third party lawfully having possession of such
information and who is not under an obligation of
confidentiality to the disclosing party; or
(iv) was or becomes independently known by the receiving
party without utilizing information provided by the
disclosing party and wherein such independent
knowledge is supported in contemporaneously written
and dated documentation of the receiving party; or
(v) is required to be disclosed, retained, or maintained
by either party, or by a HAP-TM- Marker Genotyping
Collaborator, by applicable law or regulation or
under the rules of any regulatory or governmental
authority, PROVIDED HOWEVER that each party shall
immediately notify the other party in writing of such
required disclosure and must provide such notice at
least thirty (30) days prior to the date when
disclosure is proposed to take place, and provided
that the party or third party required to make
disclosure shall use its best efforts to secure
confidential treatment of any such information
required to be disclosed.
11.6 The parties hereto understand and agree that remedies at law
may be inadequate to protect against any breach of any of the
provisions of this Article 11 by either party or their
employees, agents, officers or directors or any other person
acting in concert with it or on its behalf. Accordingly, each
party shall be entitled to the granting of injunctive relief
by a court of competent jurisdiction against any action that
constitutes any such breach of this Article 11.
11.7 Either party may publish or present data and/or results
generated under this Agreement, PROVIDED THAT, the proposed
disclosure shall be subject to the prior review by the other
party solely to determine (i) whether the proposed disclosure
contains the Confidential Information of the other party, (ii)
whether the information contained in the proposed disclosure
should be the subject of a patent application prior to such
disclosure or (iii) whether the disclosure would be adverse to
the business interests of the other party. Each party shall
provide the other party with the opportunity to review any
proposed abstract, manuscript or presentation by delivering a
copy thereof to the other party no less than thirty (30) days
before its intended submission for publication or
presentation. The other party shall have thirty (30) days from
its receipt of any such abstract, manuscript or presentation
in which to notify the party in writing of any specific
objections to the disclosure. In the event a party objects to
the disclosure, the other party agrees not to submit the
publication or make the presentation containing the
objected-to information until the party is given a reasonable
additional period of time (not to exceed an additional thirty
(30) days) to seek patent protection for any material in the
disclosure which it believes is patentable or, in the case of
Confidential Information, to allow the party to delete any
Confidential Information of the other party from the proposed
disclosure. Each party agrees to delete from the proposed
disclosure any Confidential Information or information that
would be adverse to the business interests of the other party
upon request.
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11.8 Except as provided in section 11.3, the provisions of Article
11 shall survive any termination or expiration of this
Agreement and continue in force for a period of ten (10) years
following the effective date of any such termination or
expiration.
ARTICLE 12. INDEMNIFICATION
12.1 In the event of an accusation, claim or lawsuit brought by a
third party for infringement of a patent, copyright, or other
proprietary right of a third party, based upon GENAISSANCE's
use of the MassARRAY Products and performance of
MassEXTEND-TM- Methods and Processes in accordance with the
product information, notices, and instructions for use
provided therewith, SEQUENOM shall use its best efforts to
procure for GENAISSANCE the right to continue such use, or if
unable to procure such continued use, then SEQUENOM shall use
its best efforts to provide a substitute, non-infringing
product which provides substantially the same results. In any
event, SEQUENOM shall defend the accusation, claim or lawsuit
and indemnify GENAISSANCE for any damages which may be
awarded, PROVIDED THAT GENAISSANCE (1) provide prompt written
notice of the accusation, claim or lawsuit to SEQUENOM; (2)
authorize and provide SEQUENOM with complete control of the
defense of the accusation, claim or lawsuit and any and all
settlements, negotiations, compromises, and discussions
thereof; (3) cooperate fully with SEQUENOM and provide
SEQUENOM with such reasonable assistance, as SEQUENOM may
request in the defense of such accusation, claim or lawsuit;
and (4) make no statements or admissions directly or
indirectly related to the MassARRAY Products or intellectual
property related to the accusation, claim, or lawsuit, or the
merits or lack of merit of any accusation, claim, or lawsuit,
without the express written permission of SEQUENOM. Nothing in
this provision shall be construed to prevent GENAISSANCE from
participating in (but not controlling) the defense of any such
action, with its counsel and at its own expense.
12.2 GENAISSANCE IS HEREBY PUT ON NOTICE THAT SEQUENOM'S MASSARRAY
PRODUCTS HAVE NOT BEEN SUBJECTED TO REGULATORY REVIEW OR
APPROVED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION OR ANY
OTHER UNITED STATES GOVERNMENTAL AGENCY OR ENTITY, UNDER ANY
STATUTE, FOR ANY PURPOSE, RESEARCH, COMMERCIAL, OR OTHERWISE.
ARTICLE 13. NOTICES
13.1 All notices and requests required or authorized hereunder
shall be given in writing either by personal delivery; by
registered or certified mail, return receipt requested; or by
confirmed facsimile followed by first class mail or express
delivery. Such notice shall be deemed to have been given upon
such date that it is so personally delivered; the date three
(3) days after it is deposited in the mail; or the date the
same is received by the receiving party's fax machine,
irrespective of the date appearing therein.
22
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CONFIDENTIAL
<TABLE>
<CAPTION>
<S> <C>
If to GENAISSANCE: If to SEQUENOM:
GENAISSANCE PHARMACEUTICALS, Inc. SEQUENOM, Inc.
Attention: Gerald F. Vovis, Ph.D. Attention: President and CEO
Five Science Park 11555 Sorrento Valley Road
New Haven, CT 06511 San Diego, CA 92121-1331
Tel: (203) 773-1450 Tel: (858) 350-0345
Fax: (203) 562-9377 Fax: (858) 350-0344
and a copy to: and a copy to:
GENAISSANCE PHARMACEUTICALS, Inc. SEQUENOM, Inc.
Attention: Melodie W. Henderson Attention: Corporate Counsel
Five Science Park 11555 Sorrento Valley Road
New Haven, CT 06511 San Diego, CA 92121-1331
Tel: (203) 773-1450 Tel: (858) 350-0345
Fax: (203) 562-9377 Fax: (858) 350-0344
</TABLE>
ARTICLE 14. GENERAL
14.1 FORCE MAJEURE. Except with respect to the payment of money,
neither party shall be liable for any failure or delay in its
performance under this Agreement due to causes, including, but
not limited to, acts of God, acts of civil or military
authority, fires, epidemics, floods, earthquakes, riots, wars,
sabotage, labor shortages or disputes, and governmental
actions, which are beyond its reasonable control; provided
that the delayed party: (i) gives the other party written
notice of such cause and (ii) uses its reasonable efforts to
correct such failure or delay in its performance. The delayed
party's time for performance or cure under this section 14.1
shall be extended for a period equal to the duration of the
cause.
14.2 RELATIONSHIP OF PARTIES. The parties to this Agreement are
independent contractors. Neither party nor their respective
Affiliates, employees, consultants, contractors or agents, are
Affiliates, agents, employees, joint ventures of the other,
nor do they have any authority to bind the other by contract
or otherwise to any obligation. Neither party will represent
anything to the contrary, either expressly, implicitly, by
appearance or otherwise.
14.3 ASSIGNMENT. The parties may not assign this Agreement in whole
or in part without the consent of the other, except if such
assignment occurs in connection with the sale or transfer of
all or substantially all of the assets of a party to which the
subject matter of this Agreement pertains. Notwithstanding the
foregoing, any party may assign its rights (but not its
obligations) pursuant to this Agreement in whole or in part to
an Affiliate of such party.
14.4 SUCCESSORS IN INTEREST. Subject to section 14.3, the rights
and liabilities of the parties hereto will bind and inure to
the benefit of their respective successors, executors and
administrators, as the case may be.
23
<PAGE>
CONFIDENTIAL
14.5 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of Delaware, U.S.A.,
exclusive of its conflicts of law rules. Any litigation
between the parties relating to this Agreement shall take
place in Delaware and the parties consent to the personal
jurisdiction of and venue in the state and federal courts
within Delaware.
14.6 DISPUTE RESOLUTION. The parties hereby agree that they will
attempt in good faith to resolve any controversy or claim
arising out of or relating to this Agreement promptly by
negotiations. If a controversy or claim should arise
hereunder, the matter shall be referred to an individual
designated by the Chief Executive Officer (or the equivalent
position) of GENAISSANCE and an individual designated by the
President (or the equivalent position) of SEQUENOM (the
"Representatives"). If the matter has not been resolved within
thirty (30) days of the first meeting of the Representatives
of the parties (which period may be extended by mutual
agreement) concerning such matter, either party may bring suit
in an appropriate state or federal court. Nothing herein shall
preclude the parties from agreeing to binding arbitration at a
location and under rules agreed to by each party.
14.7 SEVERABILITY. If for any reason a court of competent
jurisdiction finds any provision of this Agreement, or portion
thereof, to be unenforceable, that provision of the Agreement
shall be enforced to the maximum extent permissible so as to
effect the intent of the parties, and the remainder of this
Agreement shall continue in full force and effect.
14.8 NO WAIVER. Failure by either party to enforce any term,
provision, or condition of this Agreement shall not be deemed
a waiver of future enforcement of that or any other term,
provision, or condition. No waiver of a term, provision, or
condition of this Agreement in any one or more instances,
whether by context, implication, express, or otherwise, shall
be construed to be a further or continuing waiver of such
term, provision, or condition.
14.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but
all of which will constitute but one and the same instrument.
14.10 FACSIMILE COPIES. For purposes of this Agreement, a signed
facsimile copy shall have the same force and effect as an
original signed Agreement.
14.11 COMPLETE AGREEMENT. This Agreement, including all Appendices,
constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes and
replaces all prior or contemporaneous understandings or
agreements, written or oral, regarding such subject matter. No
amendment to or modification of this Agreement shall be
binding unless in writing and signed by a duly authorized
representative of both parties.
24
<PAGE>
CONFIDENTIAL
14.12 THIRD PARTY BENEFICIARIES. Except as specifically set forth
herein, no third party beneficiary rights are conferred or are
intended to be conferred by this Agreement.
14.13 HEADINGS. Headings in this Agreement are for convenience only,
and shall not be used to and shall not affect the meaning or
interpretation of this Agreement.
14.14 CONSTRUCTION. This Agreement shall not be strictly construed
against any party hereto, regardless of which party, or how
much a party, contributed to the drafting of the Agreement.
14.15 PUBLIC ANNOUNCEMENTS. Any announcements or similar publicity
with respect to the execution of this Agreement shall be
agreed upon among the parties in advance of such announcement.
The parties understand that this Agreement is likely to be of
significant interest to investors, analysts and others, and
that any of the parties therefore may make such public
announcements with respect thereto, provided that the
disclosing party has complied with the conditions of this
section 14.15. The parties agree that any such announcement
will not contain confidential business or technical
information and, if disclosure of confidential business or
technical information is required by law or regulation, the
disclosing party will use its best efforts to minimize such
disclosure and obtain confidential treatment for any such
information which is disclosed to a governmental agency or
group. Each party agrees to provide to the other party a copy
of any public announcement as soon as reasonably practicable
under the circumstances prior to its scheduled release. Each
party shall provide the other with an advance copy of any
press release at least ten (10) business days prior to the
scheduled disclosure. Each party shall have the right to
expeditiously review and recommend changes to any announcement
regarding this Agreement or the subject matter of this
Agreement. Except as otherwise required by law, the party
whose press release has been reviewed shall remove any
information the reviewing party reasonably deems to be
inappropriate for disclosure.
14.16 CONFLICTS. In the event that a conflict arises between this
Agreement and any work order, purchase order, billing
statement, or invoice related to the purchase of and right to
use MassARRAY-TM- Products, this Agreement will govern and the
conflicting terms, provisions, and conditions of any such
other documents shall be deemed nonexistent, and shall not be
binding upon either party.
25
<PAGE>
CONFIDENTIAL
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first indicated above.
GENAISSANCE SEQUENOM, Inc.
PHARMACEUTICALS, Inc.
By: /s/ Gerald F. Vovis By: /s/ Toni Schuh
-------------------------------- -------------------------------
Name: Gerald F. Vovis, Ph.D. Name: Toni Schuh
Title: Senior Vice-President of Genomics Title: Executive Vice-President
Date: 3 May 2000 Date: 4 May 2000
------------ ------------
26
<PAGE>
CONFIDENTIAL
APPENDIX A
MassARRAY-TM- System
High-speed SpectroSCAN-TM- array mass spectrometer for separation, detection and
characterization of the analyte molecules from a miniaturized array; configured
with:
- a 10-chip SCOUT MALDI target
- high precision x/y positioning stage (4 m/step)
- low maintenance N(2) UV laser (10Hz) for sample ionization
- gridless pulsed ion extraction
- 125 cm linear TOF analyzer with gated detector
- fuzzy logic feedback control
- 2 GHz digitizer for high-accuracy data acquisition
- Workstation, post processing software
SpectroJET-TM-, 4-Channel, v1.1, dispenser for nanoliter sample transfer,
equipped with:
- SPIP Micropump with 800 nl chamber volume
- droplet volume range of 0.5-2 nl
- CV (less than) 2% dispensing precision of the pump
- 0.1 mm precision of x/y positioning stage
- maximum speed of 41.9 cm/sec
- PC, controller software
Automated Multipipettor including:
- 96-channel automated pipettor
- pipetting volume range of 2-200 l
- magnetic lifter for bead separation
- six position workdeck
- PC, controller software
Biomass Workstation for data management and interpretation
- Workstation (hardware)
- Genolyzer-TM- software
- Oracle database
A-1
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CONFIDENTIAL
APPENDIX B
MassARRAY-TM- Kit
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------
Storage
Kit Package DEG. Components Quantity Dilutions
Temp.
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Reaction 2-8 DEG. C
Components B Beads 16 mL none
Binding Buffer 60 mL 1:3 &
Denaturation Solution 60 mL undiluted
Wash & Conditioning Buffer 2 x 60 mL 1:10
Recovery Solution 60 mL 1:10
1:10
-------------------------------------------------------------------------------------------------------------------
SpectroCHIP-TM- Pack 15-25 DEG. C 384-D SpectroCHIP-TM- 10 n/a
(96-D Spectro CHIP-TM- will be
supplied until 384-D available)
-------------------------------------------------------------------------------------------------------------------
</TABLE>
B-1
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CONFIDENTIAL
<TABLE>
<CAPTION>
KIT COMPOSITION
INVENTORY ITEMS BASIC KIT KIT COMPOSITION GENOMICS R&D
----------------------------------------------------------------------------------------------------------------------
Basic Kit Composition (MFGLST00002, R00)
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
COMPONENTS QUANTITY FORMULATION SHIPPING STORAGE CO
CONDITIONS CONDITIONS
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
<S> <C> <C> <C> <C> <C>
Probe Enzyme 3840 U Thermosequenase (32U/ul) Cold Frozen(-20C) 10u
20%
due
diffi
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
PROBE Mix 1 2.0 ml 10X Buffer, 0.5mM ddATP, 0.5mM ddCTP, 0.5 Cold Frozen (-20C)
mM dGTP, 0.5mM dTTP
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
PROBE Mix 2 2.0 ml 10X Buffer, 0.5mM ddATP, 0.5mM ddGTP, Cold Frozen (-20C)
0.5mM dCTP, 0.5mM dTTP
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
PROBE Mix 3 2.0 ml 10X Buffer, 0.5mM ddATP, 0.5mM ddTTP, Cold Frozen (-20C)
0.5mM dCTP, 0.5mM dGTP
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
PROBE Mix 4 2.0 ml 10X Buffer, 0.5mM ddCTP, 0.5mM ddGTP, Cold Frozen (-20C)
0.5mM dATP, 0.5mM dTTP
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
PROBE Mix 5 2.0 ml 10X Buffer, 0.5mM ddCTP, 0.5mM ddTTP, Cold Frozen (-20C)
0.5mM dATP, 0.5mM dGTP
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
PROBE Mix 6 2.0 ml 10X Buffer, 0.5mM ddGTP, 0.5mM ddTTP, Cold Frozen (-20C)
0.5mM dATP, 0.5mM dCTP
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
SpectroChips 10 TF1, 96well, 0.8 um pad height Room Temp Room Temp
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Matrix pre-applied 70/10/10 3-HPA, Acetonitrile, Ammonium n/a n/a
Citrate
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Magnetic Beads 16 ml Dynal Beads, d=2.8um Room Temp Cold (2-8C)
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Binding Buffer 60 ml 3M NaC1, 15mM Tris-HCI pH7.5, 1.5mM EDTA Room Temp Cold (2-8C)
(3X)
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Denaturation Buffer 60 ml 1N NaOH (10x concentrate) Room Temp Cold (2-8C)
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Wash & Conditioning 2 x 60 ml 100mM Tris-HCI pH=8.0 (10x concentrate) Room Temp Cold (2-8C)
Buffer
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Recovery Solution 60 ml 0.5M NH40H (10x concentrate) Room Temp Cold (2-8C)
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Positive Control - 25 ul 25uM PCR Primer PC-F, 10uM PCR Primer Cold Frozen (-20C) 25r
PCR Primers PC-R-bio, 1X TE Buffer
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Positive Control - 50 ul 10uM PROBE Primer PC-P, 1X TE Buffer Cold Frozen (-20C) 25 20p
PROBE Primer
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
Calibrant 125 ul 0.3uM Oligo standard 17, 1.0uM Oligo Cold Frozen (-20C) 25
standard 28, 1.0uM Oligo standard 33 5ul/
---------------------- ------------- -------------------------------------------- -------------- -------------- ------
</TABLE>
B-2
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
APPENDIX C
*****
C-1
<PAGE>
*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
APPENDIX D
*****
D-1
<PAGE>
*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
APPENDIX E
*****
E-1
<PAGE>
*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
APPENDIX F
*****
F-1
<PAGE>
*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
APPENDIX G
PURCHASE ORDER NO. 15975
-----
SHIP TO:
Genaissance Pharmaceuticals, Inc.
Five Science Park
New Haven, CT 06511
(203) 773-1450
BILL TO:
Finova Capital Corporation
Attn: Barbara Sullivan
10 Waterside Drive
Farmington, CT 06032-3065
860-674-7503
Req. By: K. NANDABALAN
Date: 01/26/00 Approved By:
--------------------------- ---------------
To: SEQUENOM
---------------------------
Phone: (978) 371-9830 EXT 17 Daniel Little, Ph.D.
---------------------------
Fax: (978) 371-9644
---------------------------
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
ACCT # JOB DESC. QTY. PART # DESCRIPTION UNIT PRICE TOTAL
-------------------------------------------------------------------------------------------------------
** SYSTEM MassArray System ********** ********
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
ANY UPGRADES TO ANY OF THE COMPONENTS 0.00
ARE TO BE MADE ONSITE BY SEQUENOM AS 0.00
SOON AS THESE UPGRADES ARE AVAILABLE 0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
TOTAL ******
-------------------------------------------------------------------------------------------------------
Reference/Order No. Date: _____________________________
With: _____________________________
Expected Delivery: _____________________________
-------------------------------------------------------------------------------------------------------
</TABLE>
G-1
<PAGE>
[SEQUENOM LETTERHEAD]
January 24, 2000
Dr. Krishnan Nandabalan
Genaissance Pharmaceuticals
Five Science Park
New Haven, CT 06511
(203) 773-1450 x3045
Dear Krishnan,
Please find to follow a proposal for a MassArray-TM- system for initial
experiments and assay validation at Genaissance. If the proposal is accepted by
the end of January we can guarantee the requested accelerated (4 weeks from
order placement) delivery.
We have included in this quotation the Spectroscan-TM- Biflex
(developed with our partner Bruker Daltonics) as the mass spectrometer. While we
are progressing on the development and validation of the Spectroscan Voyager
(developed with our partner Perkin Elmer), we cannot offer this as part of a
validated system within the next month. We will of course introduce you to both
mass spectrometers preceding the establishment of the multi-system core
genotyping facility at Genaissance later this year. Likewise, we will in this
timeframe give demonstration of the high-throughput sample processing station
capable of processing more than 25 384-well microtiter plates per day, which is
a product of our collaboration with the lab automation division of Beckman
Instruments.
Please do not hesitate to contact me by phone, fax, or email if there
are any questions.
Best regards,
/s/ Daniel P. Little
-------------------------------
Daniel P. Little, Ph.D.
Director, East Coast Operations
G-2
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CONFIDENTIAL
PROPOSAL
By and between
SEQUENOM INC.
1-555 Sorrento Valley Road, San Diego, CA 92121-1331, USA,
--Hereinafter referred to as SEQUENOM--
and
GENAISSANCE
--Hereinafter referred to as GENAISSANCE--
PROPOSAL
SEQUENOM is pleased to provide the GENAISSANCE with a non-binding proposal
for a MassArray-TM- System ("SYSTEM") which incorporates the following
components:
- High-speed SpectroSCAN Biflex array mass spectrometer for separation,
detection and characterization of the analyte molecules from a
miniaturized array; configured with:
- a 10-chip MALDI target
- high precision x/y positioning stage (4 (muon)m/step)
- low maintenance N(2) UV laser (10Hz) for sample ionization
- High speed digitizer for high-accuracy data acquisition
- Data acquisition workstation
- SpectroJET, 4-Channel, v1.1, dispenser for nanoliter sample transfer
(from microtiter plate to Spectrochip); equipped with:
- Micropump
- droplet volume range of 0.5-2 nl
- CV (less than) 2% dispensing precision of the pump
- 0.1 mm precision of x/y positioning stage
- PC, controller software
- SpectroPREP Automated Multipipettor including:
- 96-channel automated pipettor
- pipetting volume range of 2-200 (muon)
- magnetic lifter for solid support (bead) manipulation
- six position workdeck
- PC, controller software
G-3
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
- Data management and interpretation tools
- Workstation (hardware)
- SpectroTYPER software
- Oracle database
TERMS AND CONDITIONS
1. Price for SYSTEM $********** (************************************ US
Dollars).
2. This is a non-binding quotation for the products and services printed
above.
3. Proposal pricing valid for sixty (60) days after issue.
4. Upon acceptance of this Proposal, both parties will enter into an
Agreement outlining the terms and conditions as mutually agreed upon.
5. Terms of the strategic alliance agreement under discussion between
Genaissance and Sequenom will take precedence over those outlined
here, upon singing of said strategic alliance agreement.
6. All product and software licenses are valid only when used with
authorized SEQUENOM consumables.
7. Delivery Date: 4-weeks after the order is placed; order must be placed
by January 31, 2000 to guarantee the accelerated delivery schedule.
Valid for this proposal only.
SEQUENOM warrants that the SYSTEM conforms to specifications and performs
as specified for a period of six (6) months beginning on the date of the
first test result provided by SYSTEM after it is installed at GENAISSANCE
by SEQUENOM. Genaissance may, at its discretion, purchase an annual service
and maintenance agreement from SEQUENOM. The service and maintenance price
will depend on the system configuration GENAISSANCE purchases.
G-4
<PAGE>
*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
Genaissance Pharmaceuticals
Confidential and Proprietary
APPENDIX H
*****
H-1
