<PAGE>
EXHIBIT 10.28
CONFIDENTIAL
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
PURCHASE AND LICENSE AGREEMENT
This PURCHASE AND LICENSE AGREEMENT (the "Agreement") effective as of the last
date of execution below (the "Effective Date") is made by and between Specialty
Laboratories (hereinafter referred to as "SPECIALTY"), a California corporation
having its principal place of business at 2211 Michigan Avenue, Santa Monica,
California 90404 and Sequenom, Inc., a Delaware corporation having its principal
place of business at 11555 Sorrento Valley Road, San Diego, California 92121
(hereinafter referred to as "SEQUENOM").
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");
WHEREAS, SPECIALTY desires to purchase certain MassARRAY Products (as
hereinafter defined) from SEQUENOM to be used for SPECIALTY'S Internal Research
Purposes (as hereinafter defined), and Commercial Diagnostics Services (as
hereinafter defined) and also desires that SEQUENOM design MassARRAY Assays (as
hereinafter defined) for SPECIALTY, for these Purposes and Services;
WHEREAS, SEQUENOM is willing to supply MassARRAY Products and to design
MassARRAY Assays for SPECIALTY in accordance with the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, SPECIALTY and SEQUENOM (each a "party" and collectively the "parties")
agree as follows:
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.
<PAGE>
1.2 "Commercial Diagnostics Services" shall mean developing, validating and
performing in-house genotyping services in conjunction with a clinical
diagnostic test to detect known disease mutations or known prognostic
polymorphisms for Specialty customers.
1.3 "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,
[***]* 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.
1.4 "Exclusive Rights" means rights to the exclusion of SEQUENOM.
1.5 "Internal Research Purposes" shall mean purposes and activities within
SPECIALTY that are limited to research and development activities
involving discovery, testing, confirming or validating SNP Associations.
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.
1.6 "MassARRAY Assay" or "Assay" shall mean an assay for the purpose of
genotyping a particular Proprietary SNP or Non-proprietary SNP or a
group of more than one Proprietary or Non-Proprietary SNPs, and that may
be used with MassARRAY Products for performing MassEXTEND(TM) Methods
and Processes.
1.7 "MassARRAY Products" shall mean the MassARRAY System (as described in
Appendix A hereto), the MassARRAY Kit (as described in Appendix B
hereto), and the additional MassARRAY Consumables (as described in
Appendix C hereto).
1.8 "MassEXTEND(TM) Methods and Processes" shall mean SEQUENOM's proprietary
MassEXTEND(TM) reactions claimed under Patent Rights including United
Stales Patent Application Serial No, [***]* related applications, and
foreign equivalents thereof.
1.9 "Net Revenue" means the amount invoiced by SPECIALTY to its customers
for a SPECIALTY Product or Service (i) less cash discounts and/or
quantity discounts allowed, (ii) less sales and use taxes, duties or
other government tariffs and other similar taxes incurred and government
mandated rebates, (iii) less accruals for estimated contract rebates,
bid rebates, Medicaid rebates and any other similar rebates as SPECIALTY
may be required to pay from time to time, and (iv) in the event that
SPECIALTY must make royalty payments to third parties under licenses for
any patents that are necessary (in the reasonable judgment of SPECIALTY)
to develop, make, have made, use, sell, have sold or
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
2
<PAGE>
import a SPECIALTY Product or Service (a "Third Party Royalty,"), then
less such Third Party Royalty, provided that in no event shall such
reduction for Third Party Royalties be collectively, in the aggregate,
more than [***]* of the amount invoiced by SPECIALTY for such SPECIALTY
Product or Service. All of the foregoing shall be determined in
accordance with standard accounting methods.
1.10 "Non-proprietary SNP" shall mean a SNP that is not claimed under Patent
Rights of SPECIALTY and that is not Confidential Information of
SPECIALTY.
1.11 "Patent Rights" shall mean ownership of or license rights to (i) any
United States, or foreign patent application, (ii) any issued United
States 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.
1.12 "Proprietary SNP" shall mean a SNP that is claimed under Patent Rights
of SPECIALTY or that is Confidential Information of SPECIALTY.
1.13 "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.
1.14 "SNP" shall mean a single nucleotide polymorphism.
1.15 "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.
1.16 "SPECIALTY Product or Service" means a tangible or intangible item,
information, services, or, any combination thereof that SPECIALTY sells,
offers for sale, or otherwise provides to a customer that incorporates,
utilizes, or is generated from the use of, a MassARRAY Assay.
1.17 "Territory" means the United States.
ARTICLE 2.
PURCHASING, ORDERS, AND REQUESTS
FOR ASSAY DESIGN SERVICES
2.1 SPECIALTY agrees to purchase MassARRAY Products as identified in
Appendices A and B, and optionally those provided in Appendix C, and
SEQUENOM agrees to sell and
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
3
<PAGE>
deliver MassARRAY Products to SPECIALTY. Such purchase, sale, and
delivery shall be under the terms of this Agreement.
2.2 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
SPECIALTY purchase orders) transmitted by SEQUENOM or SPECIALTY. All
orders for MassARRAY Products must reference this Agreement and all
SEQUENOM and SPECIALTY acknowledgments and transmittals will reference
this Agreement and the applicable SPECIALTY purchase order.
2.3 This Agreement does not constitute a purchase order. Purchases hereunder
shall be made utilizing SPECIALTY'S written purchase orders issued by
SPECIALTY.
2.4 All orders for MassARRAY Products must specify delivery within ninety
(90) days from the order date. All orders are subject to acceptance by
SEQUENOM, such acceptance not to be unreasonably withheld, 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,
2.5 SPECIALTY will use its best efforts to supply SEQUENOM with a forecast
of its intended purchases on at least a quarterly basis, and SEQUENOM
shall use its best efforts to meet such forecast.
2.6 When requested by SPECIALTY, SEQUENOM agrees to design MassARRAY Assays
to be used by SPECIALTY subject to the pricing and other limitations set
forth in Articles 4 and 5 below. SPECIALTY shall request a group of
MassARRAY Assays at a time, with the number of Assays in such group to
be mutually agreed upon by the parties, and SPECIALTY shall provide
SEQUENOM with the identity of, known alleles of, and local sequence
information surrounding the SNPs to be genotyped with the MassARRAY
Assays. A MassARRAY Assay includes the nucleotide sequence information
of the amplification and extension primers, as well as allele-specific
mass values, that are necessary for performing the Assay. Physical
samples of primers in aliquot form and/or validation of a MassARRAY
Assay will only be provided by SEQUENOM at SPECIALTY'S additional
expense and subject to the agreement of and at a price to be determined
by the parties. SPECIALTY 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, and
will bear the complete cost and responsibility and provide all resources
and documentation necessary for compliance with CLIA guidelines and
requirements.
2.7 In consideration for the pricing, fees, royalties, and license rights
set forth in Articles 4 and 5, SPECIALTY has agreed, to use its best
commercial efforts to utilize MassARRAY Assays for all of the clinical
diagnostic areas of interest identified in Appendix D.
4
<PAGE>
ARTICLE 3.
DELIVERY, SHIPMENT AND RISK OF LOSS
3.1 Delivery of MassARRAY Products is subject to acceptance of the order by
SEQUENOM, such acceptance not to be unreasonably withheld 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.
All shipments by SEQUENOM shall be FOB SEQUENOM's point of manufacture
in the United States. Title to and risk of loss for the MassARRAY
Products shall pass to SPECIALTY upon delivery by SEQUENOM to a carrier
designated by SPECIALTY OR selected by SEQUENOM if SPECIALTY does not
designate a carrier. Special packing or shipping instructions requested
by SPECIALTY must be agreed to by SEQUENOM in writing, and any charges
will be billed to SPECIALTY.
ARTICLE 4.
PRICE AND PAYMENT TERMS
4.1 MassARRAY SYSTEM PRICE. SPECIALTY agrees to purchase one MassARRAY
System (as set forth in Appendix A) for which SPECIALTY has agreed to
pay [***]*. Payment will be made to SEQUENOM within thirty (30) days of
execution of this Agreement. Payment must be received by SEQUENOM prior
to delivery and installation of the MassARRAY System. Delivery and
installation of the MassArray system to occur within ninety (90) days of
execution of this agreement.
4.2 UPGRADE. SEQUENOM agrees to upgrade, [***]* to SPECIALTY, the MassARRAY
System purchased by SPECIALTY pursuant to section 4.1 to provide a
capacity for simultaneously processing three hundred eighty four (384)
samples after such upgrade becomes commercially available and agrees
that such upgrade shall include replacement of components of the
MassARRAY System installed at SPECIALTY if necessary to achieve such
capacity. Further, if a technology is made commercially available by
SEQUENOM for upgrading or replacing its present nanoliter transfer
device configuration, SEQUENOM will provide SPECIALTY with [***]* credit
toward the list purchase price of an upgraded or replacement nanoliter
transfer device in exchange for return of the present transfer device
configuration. In addition, subject to mutual agreement of the parties,
SPECIALTY will be considered and may be included as a beta test site for
the introduction of new products by SEQUENOM.
4.3 MassARRAY KIT PRICE. The price of a MassARRAY Kit is [***]* This price
for the MassARRAY Kit is based upon a fee of [***]* 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
5
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
four (384) Positions. Until the 384-D SpectroCHIP becomes available,
SEQUENOM will sell SPECIALTY 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 of [***]*. This price for
MassARRAY Kits having the ten (10) chip 96-D SpectroCHIP(TM) pack is
based upon the same fee of [***]* per Element. Should the parties agree
to extend this Agreement beyond its two (2) year duration, SEQUENOM
reserves the right to adjust the price for its MassARRAY Kits at its
option, but not above fair market price. 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 two (2) year duration of this Agreement.
4.4 ADDITIONAL MassARRAY CONSUMABLES. Current prices for additional
MassARRAY Consumables used in performing SEQUENOM's proprietary
MassEXTEND Methods and Processes are shown in Appendix C and may also be
purchased by SPECIALTY at its option, subject to the same terms and
conditions of this Agreement that apply to MassARRAY Kits. These
additional MassARRAY Consumables include reagents required for DNA
extraction, preparation and amplification; enzyme and nucleotide mixes
required for the MassEXTEND reaction; and positive controls.
4.5 SALES TAX. For all purchases, SEQUENOM will add to the purchase price,
applicable sales tax for all shipments to California and Massachusetts
destinations.
4.6 SEQUENOM MassARRAY ASSAY DESIGN SERVICES. SEQUENOM will design and
develop MassARRAY Assays requested by SPECIALTY, subject to the
provisions below, for an Assay Fee according to the following schedule:
IN SILICO MassARRAY ASSAYS
4.6.1 MassARRAY Assays for Non-Proprietary SNPs will be provided IN
SILICO, in either monoplex or biplex formats, without
validation, by SEQUENOM to SPECIALTY, [***]
4.6.2 MassARRAY Assays for Proprietary SNPs that SPECIALTY will
maintain Exclusive Rights to, will be provided IN SILICO in
either the monoplex or biplex formats, without validation, by
SEQUENOM to SPECIALTY for an Assay Fee of
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
[***]* per Assay. Should SPECIALTY request an IN SILICO
MassARRAY Assay for a Proprietary SNP and should SPECIALTY also
be willing to permit SEQUENOM to sell or otherwise provide the
same MassARRAY Assay to other SEQUENOM customers, SEQUENOM will
design (in either a monoplex or biplex format) the MassARRAY
Assay, without validation, and provide the Assay to SPECIALTY,
[***]*.
VALIDATED MassARRAY ASSAYS
4.6.3 For Non-Proprietary SNPs, SEQUENOM will design (in either a
monoplex or biplex format) and validate MassARRAY Assays and
provide the Assays to SPECIALTY for an Assay Fee of [***]* per
Assay.
4.6.4 For Proprietary SNPs that SPECIALTY will maintain Exclusive
Rights to, SEQUENOM will design (in either a monoplex or
biplex format) and validate MassARRAY Assays and provide the
Assays to SPECIALTY for an Assay Fee of [***]* per Assay.
Should SPECIALTY request a MassARRAY Assay for a Proprietary
SNP and should SPECIALTY also be willing to permit SEQUENOM to
sell or otherwise provide the same MassARRAY Assay to other
SEQUENOM customers, SEQUENOM will design (in either a monoplex
or biplex format) and validate the MassARRAY Assay and provide
the Assay to SPECIALTY for an Assay Fee of [***]* per Assay.
4.6.5 For any and all Proprietary SNPs that SPECIALTY will maintain
Exclusive Rights to, SPECIALTY will specifically identify such
Proprietary SNPs to SEQUENOM in writing prior to the
performance of any Assay Design Services by SEQUENOM.
4.6.6 For any Assays (IN SILICO or validated) requested by SPECIALTY
to be provided in a format other than in a monoplex or biplex
format, the Assay Fee will be determined by Sequenom on a case
by case basis. Further, while SEQUENOM will use commercially
reasonable efforts to provide MassARRAY Assays requested by
SPECIALTY, depending upon the Assay complexity, as well as
operational, administrative, technical and biological
limitations that may exist, SEQUENOM reserves the right to
refuse Assay Design Services under appropriate circumstances
upon notice to SPECIALTY of the same.
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
7
<PAGE>
ARTICLE 5.
LICENSE AND ROYALTIES
5.1 With the purchase of MassARRAY Kits, SEQUENOM grants SPECIALTY a
non-exclusive, limited right to use, without the right to sublicense or
otherwise permit third parties to use, the MassARRAY Kits, in
conjunction with the MassARRAY System, for the defined Internal Research
Purposes, within the Territory. The MassARRAY Kits provided under this
Agreement may be used in performing SEQUENOM's proprietary
MassEXTENDT(TM) Methods and Processes claimed under Patent Rights
including United States Patent Application Serial No, [***]* related
applications, and foreign equivalent Patent Rights. The pricing of the
MassARRAY Kit set forth in section 4.3 includes a prepaid royalty in
consideration for which SEQUENOM grants SPECIALTY a non-exclusive right,
without transfer or sublicense rights, under United States Patent
Application Serial No, [***]*, and related applications and SEQUENOM
know-how, to use the MassARRAY Kits to perform SEQUENOM 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 SPECIALTY for the defined Internal
Research Purposes in the Territory.
5.2 MassARRAY Assays
5.2.1 MassARRAY ASSAYS DESIGNED AND DEVELOPED BY SEQUENOM
For MassARRAY Assays designed and developed solely by SEQUENOM
for either Non-Proprietary SNPs or for Proprietary SNPs that
SPECIALTY will not maintain Exclusive Rights to, SEQUENOM hereby
grants SPECIALTY a [***]* license, without sublicense or
transfer rights, to use MassARRAY Assays designed and developed
by SEQUENOM in conjunction with the MassARRAY Products and
MassEXTEND Methods and Processes, for SPECIALTY'S Commercial
Diagnostics Services, in the Territory, in consideration for a
royalty payment to SEQUENOM of [***]* of Net Revenues associated
with such Commercial Diagnostics Services.
For MassARRAY Assays designed and developed by SEQUENOM (for
Proprietary SNPs that SPECIALTY will maintain Exclusive Rights
to) a separate license agreement for Commercial Diagnostics
Services will be negotiated in good faith based upon factors
including MassARRAY Assay and MassARRAY Product volume
commitments by SPECIALTY and a time limited period of
exclusivity, in exchange for a royalty payment to SEQUENOM, all
to be negotiated hereafter.
5.2.2 MassARRAY ASSAYS DESIGNED AND DEVELOPED BY SPECIALTY
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
8
<PAGE>
For MassARRAY Assays designed and developed solely by SPECIALTY
SEQUENOM hereby grants SPECIALTY [***]* license, without
sublicense or transfer rights, to use MassARRAY Products and
MassEXTEND Methods and Processes in conjunction with the
MassARRAY Assays designed and developed by SPECIALTY for
SPECIALTY'S Commercial Diagnostics Services, in the Territory,
in consideration for a royalty payment to SEQUENOM of [***]* of
Net Revenues associated with such Commercial Diagnostics
Services.
5.2.3 MassARRAY ASSAYS JOINTLY DESIGNED AND DEVELOPED BY SEQUENOM AND
SPECIALTY
For MassARRAY Assays jointly designed and developed by SEQUENOM
and SPECIALTY, SEQUENOM hereby grants SPECIALTY [***]* license,
[***]* from Assay validation, without sublicense or transfer
rights, to use MassARRAY Assays jointly designed and developed
by SEQUENOM and SPECIALTY in conjunction with the MassARRAY
Products and MassEXTEND Methods and Processes, for SPECIALTY'S
Commercial Diagnostics Services, in the Territory, in
consideration for a royalty payment to SEQUENOM of [***]* of Net
Revenues associated with such Commercial Diagnostics Services.
[***]*, SPECIALTY is granted [***]* license without sublicense
or transfer rights, to use MassARRAY Assays jointly designed and
developed by SEQUENOM and SPECIALTY in conjunction with the
MassARRAY Products and MassEXTEND Methods and Processes, for
SPECIALTY'S Commercial Diagnostics Services, in the Territory,
in consideration for a royalty payment to SEQUENOM of [***]* of
Net Revenues associated with such Commercial Diagnostics
Services.
5.2.4 UNAFFECTED RIGHTS OF SEQUENOM
Further, nothing in this Agreement is meant to prevent SEQUENOM
or other SEQUENOM customers from developing, using, and selling
new MassARRAY Assays based on independently discovered SNPs (or
other form of marker) associated with one or more of the areas
identified in Appendix D provided that such development, use, or
sale is not based upon any Confidential Information of
SPECIALTY.
5.3 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 restrictions and limited rights placed on
SPECIALTY'S use of MassARRAY Products and MassARRAY Assays provided for
under this Article. Any other uses of the MassARRAY Products and Assays,
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 SPECIALTY either
directly, indirectly, by implication, estoppel, or otherwise by SEQUENOM
under this limited grant.
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
9
<PAGE>
5.4 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, Patent Rights, 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.
5.5 Both parties recognize that an opportunity exists for co-branding and
co-marketing of MassARRAY Assays and MassARRAY Assay design services.
The parties agree to cooperate when it is deemed appropriate in the
business judgment of both parties, on a case by case basis, to employ
co-branding and/or joint marketing programs in order to maximize
investment return for each party.
ARTICLE 6.
ROYALTY PAYMENTS AND ACCOUNTING
6.1 ROYALTY PAYMENTS/REPORTS. Payments of royalties to SEQUENOM under
Article 5.2 based upon Net Revenues will be made on a monthly basis and
within thirty (30) days of the close of each calendar month. With each
monthly payment, SPECIALTY shall provide SEQUENOM with a written report
setting forth sufficient information to verify Net Revenues received by
SPECIALTY.
6.2 AUDITS. SPECIALTY shall keep true and accurate books of account and
records in sufficient detail to properly determine the amounts payable
to SEQUENOM under this Agreement. SPECIALTY shall keep such books and
records for at least three (3) years following the termination or
expiration of this Agreement, and shall make available such books and
records for inspection during such three (3) year period by a certified
public accountant retained by SEQUENOM for such purpose, solely for the
purpose of verifying the amount of Net Revenues hereunder. Such
inspections may be made no more than once in any six (6) month period,
at reasonable times mutually agreed upon by the parties after at least
five (5) days written notice to SPECIALTY. The certified public
accountant shall execute a reasonable confidentiality agreement prior to
commencing any such inspection.
6.3 COSTS. Inspections conducted under Section 6.2 shall be shall be at the
expense of SEQUENOM unless an underpayment of at least [***]* of
the-amount due for the audited period is established in the course of
any such inspection, whereupon all reasonable costs relating to such
inspection shall be paid by SPECIALTY.
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
10
<PAGE>
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 two (2) years, unless terminated by a party or
the parties under one of the provisions of this Article 7. Upon written
notice provided at least ninety (90) days before the end of the initial
term of this Agreement, SPECIALTY may elect at its option to renew this
Agreement for an additional two (2) year term.
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 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 1l.3. SPECIALTY shall have the right to use all
MassARRAY Kits for which SPECIALTY has paid and are in SPECIALTY'S
possession at the time of termination, and the licenses granted
SPECIALTY pursuant to sections 5.1 and 5.2 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
4.1, 4.3, 4.5, 6.1, 6.2, 6.3, 11, 12 and 14.14 shall survive the
expiration or termination of this Agreement. Any and all rights of
SEQUENOM to purchase price and royalty 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 7.3,
the terminating party has discretion in electing whether obligations
under firm orders will remain in effect.
11
<PAGE>
ARTICLE 8.
INSTALLATION AND ACCEPTANCE
8.1 Installation of the MassARRAY System by SEQUENOM at a location
designated by SPECIALTY is included in the price under sections 4.1 and
4.2. SEQUENOM shall install the MassARRAY System in accordance with
SEQUENOM's standard installation practice and will use commercially
reasonable efforts to schedule and complete installation in a timely
fashion. SPECIALTY and SEQUENOM will cooperate with each other to
coordinate the installation effort.
8.2 Installation shall be complete, and acceptance by SPECIALTY shall occur,
when the MassARRAY System passes SEQUENOM's standard installation and
test procedures. 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 SPECIALTY employees in the installation, use, and routine
maintenance of the MassARRAY Products in accord with SEQUENOM's standard
training program. SPECIALTY 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.
ARTICLE 10.
REPRESENTATIONS AND WARRANTY
10.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SPECIALTY. SPECIALTY
represents and warrants to and covenants with SEQUENOM that:
(a) SPECIALTY is a corporation duly organized, validly
existing and in corporate good standing under the laws
of California;
(b) SPECIALTY has the legal right, authority and power to
enter into this Agreement;
(c) SPECIALTY 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 SPECIALTY enforceable in
12
<PAGE>
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); and
(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.
10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SEQUENOM. SEQUENOM
represents and warrants to and covenants with SPECIALTY that:
(a) SEQUENOM, Inc, is a corporation duly organized, validly
existing and in corporate good standing under the laws
of Delaware, United States;
(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); and
(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.
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
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, 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
13
<PAGE>
Products. This warranty does not apply to defects resulting from
improper or inadequate maintenance or calibration by SPECIALTY; 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 herein shall be at SEQUENOM's sole
discretion and option: (1) to replace the MassARRAY Products, in
whole or in part, provided that SPECIALTY notifies SEQUENOM of
the defects, SEQUENOM directs SPECIALTY to return the defective
MassARRAY Products to SEQUENOM and SPECIALTY 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, 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 herein states SEQUENOM's sole and
exclusive responsibility with respect to any alleged breach of
this limited warranty. Except as provided herein, 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. SPECIALTY assumes the entire risk as
to the results and performance of the MassARRAY Products. The
foregoing warranty is exclusive and 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.
14
<PAGE>
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 SPECIALTY 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
additional information that it provides to SPECIALTY that it
considers to be the Confidential Information of SEQUENOM.
11.1.2 SPECIALTY 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 SPECIALTY.
11.2 Each party may use the other party's Confidential Information only for
the purpose of performing under this Agreement. 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.
11.3 Except as expressly provided herein, SEQUENOM and SPECIALTY 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).
11.4 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
<PAGE>
the receiving party to comply with its obligations of
confidentiality under the terms of this Agreement; or
(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, 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.
11.5 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 Affiliates, 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.
11.6 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
16
<PAGE>
information that would be adverse to the business interests of the other
party upon request.
11.7 The provisions of Article 11 shall survive any termination or expiration
of this Agreement and continue in perpetuity thereafter.
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 SPECIALTY's use of the MassARRAY Products or use
of MassEXTEND(TM) Methods and Processes in accordance with the product
information, notices, and instructions for use provided therewith,
SEQUENOM shall use its reasonable efforts to procure for SPECIALTY the
right to continue such use, or if unable to procure such continued use,
then SEQUENOM shall use its reasonable efforts to provide a substitute,
non-infringing product which provides substantially the same results.
Further, SEQUENOM shall defend the accusation, claim or lawsuit and
indemnify SPECIALTY for any damages which may be awarded, provided that
SPECIALTY(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, MassEXTEND(TM) Methods and
Processes, 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 SPECIALTY from
participating in (but not controlling) the defense of any such action,
with its counsel and at its own expense.
12.2 SPECIALTY IS HEREBY PUT ON NOTICE THAT SEQUENOM'S MASSARRAY PRODUCTS AND
MassEXTEND(TM) METHODS AND PROCESSES 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,
AND HAVE NOT BEEN APPROVED FOR CLIA COMPLIANCE, OR OTHERWISE APPROVED
UNDER ANY STATUTE, RULE, LAW, OR REGULATION, FOR ANY PURPOSE. RESEARCH,
COMMERCIAL, DIAGNOSTIC OR OTHERWISE. In the event of an accusation,
claim or lawsuit brought by a third party against SEQUENOM based upon
SPECIALTY'S Commercial Diagnostics Services or a SPECIALTY Product or
Service, SPECIALTY shall defend the accusation, claim or lawsuit and
indemnify and hold harmless SEQUENOM for any and all damages and
attorneys' fees which may be awarded, provided that SEQUENOM (1) provide
prompt written notice of the accusation, claim or lawsuit to SPECIALTY;
(2) authorize and provide SPECIALTY with complete control of the defense
of the accusation, claim or lawsuit and any and all settlements,
17
<PAGE>
negotiations, compromises, and discussions thereof; (3) cooperate fully
with SPECIALTY and provide SPECIALTY with such reasonable assistance, as
SPECIALTY may request in the defense of such accusation, claim or
lawsuit; and (4) make no statements or admissions directly or indirectly
related to the Commercial Diagnostics Services or SPECIALTY Product or
Service, or the merits or lack of merit of any accusation, claim, or
lawsuit, without the express written permission of SPECIALTY. Nothing in
this provision shall be construed to prevent SEQUENOM from participating
in (but not controlling) the defense of any such action, with its
counsel and at its own expense.
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.
If to SPECIALTY: If to SEQUENOM:
Specialty Laboratories SEQUENOM, Inc,
Attention: Paul Beyer Attention: President & CEO
2211 Michigan Avenue 11555 Sorrento Valley Road
Santa Monica, California 90404 San Diego, CA 92121-1331
Tel: (805) 501-9252 Tel: (8.58) 350-0345
Fax: (310) 828-5173 Fax: (858) 350-0344
and a copy to:
SEQUENOM, Inc,
Attention: Corporate Counsel
11555 Sorrento Valley Road
San Diego, CA 92121-1331
Tel: (858) 350-0345
Fax: (858) 350-0620
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
18
<PAGE>
governmental action, 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.
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.
14.5 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of California, U.S., exclusive of its conflicts
of law rules.
14.6 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.
14.7 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.
14.8 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.
14.9 FACSIMILE COPIES. For purposes of this Agreement, a signed facsimile
copy shall have the same force and effect as an original signed
Agreement.
14.10 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
19
<PAGE>
be binding unless in writing and signed by a duly authorized
representative of both parties.
14.11 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.
14.12 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.
14.13 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.
14.14 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 14.14. 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.
14.15 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.
20
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first indicated above.
SPECIALTY LABORATORIES SEQUENOM, Inc.
By: /s/ Paul Beyer By: /s/ Steve Zaniboni
---------------------------- ----------------------------
Name: Paul Beyer Name: Steve Zaniboni
Title: President Title: Chief Financial Officer
Date: 6/19/00 Date: 6/20/00
-------------------------- --------------------------
21
<PAGE>
CONFIDENTIAL
APPENDIX A
MassARRAY(TM) SYSTEM
SpectroREADER(TM), high-speed mass spectrometer for separation, detection and
characterization of the analyte molecules from a miniaturized array; configured
with a workstation and post processing software
SpectroJET(TM), 4-Channet, 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
SpectroPREP(TM) Automated Multipipettor including:
- 96-channel automated pipettor
- pipetting volume range of 2-200 ul
- magnetic lifter for bead separation
- six position workdeck
- PC, controller software
SpectroTYPER(TM) Workstation for automated genotype calling and data management
- Workstation (hardware)
- SpectroTYPER(TM) software
- Oracle database with a license for up to five (5) users, for
single location use
A-1
<PAGE>
CONFIDENTIAL
APPENDIX B
MassARRAY-TM- Kit
<TABLE>
<CAPTION>
------------------------ --------------- ------------------------------------ ------------------ ----------------------
KIT PACKAGE STORAGE TEMP. COMPONENTS QUANTITY DILUTIONS
------------------------ --------------- ------------------------------------ ------------------ ----------------------
<S> <C> <C> <C> <C>
Reaction 2-8(degree)C Beads 16 mL none
Components B Binding Buffer 60 mL 1:3 & undiluted
Denaturation Solution 60 mL 1:10
Wash & Conditioning Buffer 2 x 60 mL 1:10
Recovery Solution 60 mL 1:10
Calibrant
------------------------ --------------- ------------------------------------ ------------------ ----------------------
SpectroCHIP(TM) Pack 15-25(degree)C 384-D SpectroCHIP(TM) (96-D n/a
Spectro CHIP(TM) will be
supplied until 384-D
available)
------------------------ --------------- ------------------------------------ ------------------ ----------------------
</TABLE>
B-1
<PAGE>
CONFIDENTIAL
APPENDIX C
<TABLE>
<CAPTION>
------------------------------------ ------------------------------------------------------------- --------------
MassARRAY ITEM PRICE
ENZYME PACK
------------------------------------ ------------------------------------------------------------- --------------
<S> <C> <C>
MassEXTEND Enzyme [***]*
------------------------------------ ------------------------------------------------------------- --------------
------------------------------------ ------------------------------------------------------------- --------------
MassARRAY
POSITIVE CONTROL ITEM PRICE
PACK
------------------------------------ ------------------------------------------------------------- --------------
MassEXTEND Template [***]*
------------------------------------ ------------------------------------------------------------- --------------
MassEXTEND Primer
------------------------------------ ------------------------------------------------------------- --------------
------------------------------------ ------------------------------------------------------------- --------------
MassARRAY
NUCLEOTIDE UNI-MIX ITEM PRICE
PACK
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 1 - ddATP/dCTP/dGTP/dTTP [***]*
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 2 - ddCTP/dATP/dGTP/dTTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 3 - ddGTP/dATP/dCTP/dTTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 4 - ddTTP/dATP/dCTP/dGTP
------------------------------------ ------------------------------------------------------------- --------------
------------------------------------ ------------------------------------------------------------- --------------
MassARRAY
NUCLEOTIDE DI-MIX Item Price
PACK
------------------------------------ ------------------------------------------------------------- --------------
EXPEND Mix 5 - ddATP/ddCTP/dGTP/dTTP [***]*
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 6 - ddATP/ddGTP/dCTP/dTTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 7 - ddATP/ddTTP/dCTP/dGTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 8 - ddCTP/ddGTP/dATP/dTTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 9 - ddCTP/ddTTP/dATP/dGTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 10 - ddGTP/ddTTP/dATP/dCTP
------------------------------------ ------------------------------------------------------------- --------------
------------------------------------ ------------------------------------------------------------- --------------
MassARRAY
NUCLEOTIDE TRI-MIX ITEM PRICE
PACK
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 11 - ddATP/ddCTP/ddGTP/dTTP [***]*
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 12 - ddATP/ddCTP/ddTTP/dGTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 13 - ddATP/ddGTP/ddTTP/dCTP
------------------------------------ ------------------------------------------------------------- --------------
EXTEND Mix 14 - ddCTP/ddGTP/ddTTP/dATP
------------------------------------ ------------------------------------------------------------- --------------
</TABLE>
--------------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
C-1
<PAGE>
CONFIDENTIAL
APPENDIX D
[***]*
--------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
D-1
