Agreement - Third Wave Technologies Inc. and ACLARA BioSciences Inc.
CONFIDENTIAL
AGREEMENT
This Agreement ("AGREEMENT"), dated October 24, 2001, shall govern certain
matters agreed upon by and between Third Wave Technologies, Inc. ("TWT") and
ACLARA BioSciences, Inc. ("ACLARA") related to the Development and
Commercialization Agreement entered into on even date herewith (the
"COLLABORATION AGREEMENT").
1. DEFINITIONS. Terms defined in the Collaboration Agreement shall have,
in this Agreement, the meanings set forth in the Collaboration
Agreement. Additionally, "COMPETITOR" shall mean with respect to TWT,
the entities listed in Exhibit A under the heading TWT Competitors, and
with respect to ACLARA, the entities listed in Exhibit A under the
heading ACLARA Competitors.
2. SUPPLY OF ACLARA COMPONENTS. [ * ]
3. SUPPLY OF CLEAVASE ENZYME. [ * ]
4. INDIRECT DISTRIBUTION. [ * ]
5. ALTERNATE SOURCE INVESTIGATION. No Competitor of TWT or ACLARA shall be
used as a manufacturer pursuant to Section 10.4 of the Collaboration
Agreement.
6. ESCROW AUDITORS AND CONTRACT MANUFACTURER. No Competitor of a Party, or
an employee of such a Competitor, shall be used as an auditor for
purposes of inspecting materials deposited by such Party in escrow
under Sections 11.11 or 12.11 of the Collaboration Agreement.
Additionally, no Competitor of a Party shall be used by the other Party
in order to exercise such other Party's manufacturing rights under
Section 11.11 or 12.11 of the Collaboration Agreement, as applicable.
7. LICENSING. Notwithstanding anything to the contrary in the
Collaboration Agreement, neither Party shall grant or authorize [ * ] a
license or other authorization to a Competitor of the other Party under
Patent Rights to the extent claiming a Collaborative Invention;
provided that Patent Rights assigned to a Party pursuant to the second
to last sentence of Section 14.3.1 of the Collaboration Agreement shall
not be so restricted. This Paragraph 7 shall survive expiration or
termination of this Agreement.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [ * ]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL
8. Change of Control.
(a) TERMINATION. A Party shall have the right to terminate the
Collaboration Agreement by providing written notice of
termination to the other Party in the event of a transfer of
the Collaboration Agreement by such other Party, or in the
event of a Change of Control of such other Party, to a
Competitor of the Party providing the notice, provided that
(i) an agreement which effects the transfer or Change of
Control was entered into on or before the [ * ] under the
Collaboration Agreement; and (ii) such other Party did not
obtain the prior written consent to the transfer or Change of
Control, as applicable, from the Party providing the notice,
which consent shall not be unreasonably withheld. Under such
circumstances, provided that such notice of termination is
provided no later than sixty (60) days after the transfer or
Change of Control, the Collaboration Agreement shall
automatically terminate as of the date of such notice unless
such consent has been obtained by such time. If a Party enters
into an agreement under such circumstances which effects, or
would effect upon closing, such a transfer of the
Collaboration Agreement, or such a Change of Control, then it
shall immediately provide written notice of the agreement to
the other Party, setting forth in such notice the identity of
the Competitor. For purposes of this Agreement and the
Collaboration Agreement, "CHANGE OF CONTROL" means any
transaction or series of related transactions that would
occasion: (i) a Party's sale, lease, or other transfer of all
or substantially all of its business or assets to any person
or group; (ii) any merger, consolidation, share exchange,
re-capitalization, business combination or other transaction
resulting in the exchange if the outstanding shares of a Party
for securities or consideration issued, or caused to be
issued, by an acquiring person or group, unless the
stockholders of such Party that exist immediately prior to the
closing date of such transaction (or series of related
transactions) hold, after the closing date, fifty percent
(50%) or more of the equity of the surviving corporation in
such transaction computed on a fully diluted basis; (iii) any
tender offer or exchange offer for fifty percent (50%) or more
of the outstanding voting securities of a Party or the filing
of a registration statement under the United States Securities
Act of 1933 in connection therewith; or (iv) any person or
group acting in concert to control a Party (as control is
defined in Section 1.5 of the Collaboration Agreement)
having acquired beneficial ownership or the right to acquire
beneficial ownership of fifty percent (50%) or more of the
outstanding voting securities of a Party. As used in this
Paragraph 8(a), "person" and "group" shall have the meanings
given to such terms when used in Sections 13(d) and 14(d) of
the
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[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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CONFIDENTIAL
United States Securities Exchange Act of 1934. For clarity,
this Paragraph 8(a) is not intended to prevent from occurring
such an acquisition or transfer with respect to a Party to the
extent the transaction is authorized under Section 20.3 of the
Collaboration Agreement, but rather is to provide the other
Party with the right to terminate the Collaboration Agreement
as set forth above. Termination under this Paragraph 8(a)
shall be treated as termination for material breach under
Section 19.3 of the Collaboration Agreement for purposes of
determining the effects under Section 19.5 of the
Collaboration Agreement, except as otherwise provided in
Paragraph 8(b) of this Agreement below.
(b) EFFECT. In the event of termination of the Collaboration
Agreement by a Party under Paragraph 8(a) of this Agreement as
a result of the Change of Control of the other Party, and if
the Development Committee approved prior to such termination
an Approved Product for Commercial Launch, then the terms and
conditions of Section 19.5.3 of the Collaboration Agreement
shall apply, subject to the modifications in this Paragraph
8(b). Under Section 19.5.3(i) of the Collaboration Agreement,
all reimbursement of Development Costs, including with respect
to Approved Products that have not been approved by the
Development Committee for Commercial Launch, will be in
accordance with Section 5.6 of the Collaboration Agreement in
the same manner as prior to termination, except that reports
shall be exchanged, and reconciliation and reimbursement shall
be completed, within thirty (30) days after the date of
termination. Under Section 19.5.3(ii) of the Collaboration
Agreement, the amounts payable to the Party undergoing the
Change of Control shall be [ * ], rather than [ * ], of Net
Sales based upon sales of Approved Products and Software by
the non-breaching Party. Under Section 19.5.3(vii) of the
Collaboration Agreement, if TWT is the Party undergoing the
Change of Control, then ACLARA would be authorized in the
event of termination to manufacture Approved Products
(excluding Cleavase Enzymes) in accordance with Section 12.11
of the Collaboration Agreement, it being acknowledged that the
manufacture of Cleavase Enzymes would be retained by TWT,
subject to ACLARA's right to manufacture Cleavase Enzyme in
the event of a failure of TWT's failure to adequately supply
Cleavase Enzyme as set forth in Section 12.11of the
Collaboration Agreement. Under Section 19.5.3(vi) of the
Collaboration Agreement, if ACLARA is the Party undergoing
the Change of Control, then TWT would continue to be
authorized to manufacture Approved Products, it being
acknowledged that the manufacture of ACLARA Components would
be retained by ACLARA, subject to TWT's right to manufacture
the
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[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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CONFIDENTIAL
ACLARA Components in the event of a failure of ACLARA to
supply an ACLARA Component as set forth in Section 11.11 of
the Collaboration Agreement.
9. TERM. This Agreement shall commence on the Effective Date and continue
in full force and effect throughout the entire term of the
Collaboration Agreement, terminating automatically upon expiration of
the Collaboration Agreement. Neither Party shall have any right to
otherwise terminate this Agreement.
10. MISCELLANEOUS. Section 20 of the Collaboration Agreement is hereby
incorporated into this Agreement by this reference as if fully set
forth in this Paragraph 10. The Parties acknowledge that this Agreement
and the Exhibit hereto and the Collaboration Agreement and the Exhibits
thereto set forth the entire agreement and understanding of the Parties
as to the subject matter hereof and thereof, and supersede all prior
and contemporaneous discussions, agreements and writings in respect
hereto and thereto, including without limitation, the term sheet.
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement.
THIRD WAVE TECHNOLOGIES, INC. ACLARA BIOSCIENCES, INC.
("TWT") ("ACLARA")
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By: /s/ Ian B. Edvalson By: /s/ Philip A. Petersen
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Name: IAN B. EDVALSON Name: PHILIP A. PETERSEN
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Title: SR VP, CORPORATE DEVELOPMENT Title: VICE PRESIDENT, CORPORATE DEVELOPMENT
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Date: 24 OCTOBER 2001 Date: OCTOBER 24, 2001
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CONFIDENTIAL
EXHIBIT A
[ * ]
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[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.