Research Lease - One Cell Systems Inc. and Diversa Corp.
RESEARCH LEASE
Equipment: CellSys 100(TM) Microdrop Maker (includes ice-water bath container
and a 12.3 cm autoclavable stainless steel shaft/blade assembly) as described in
Exhibit B, Equipment Specifications.
Reagents: [*****] of sterilized CelMix(TM) 200 Emulsion Matrix and [*****] of
sterilized CelBioGel(TM) Encapsulation Matrix.
Exhibit A lists the patents covering the Equipment and Reagents; Exhibit B lists
the Equipment specifications.
ONE CELL SYSTEMS, INC. (LESSOR)
100 Inman Street
Cambridge, MA 02139
DIVIERSA CORPORATION (LESSEE)
10665 Sorrento Valley Road
San Diego, CA 92121
Equipment Location Address (if different than above):
Street: _____________________________________________________
City: _____________________ State: ___________ Zip: _______
Renewal Lease Term: [*****];[*****] through December 31, 1999.
Lease Payment: [*****] for the Renewal Lease Term.
Payment Schedule: [*****] due by [*****].
LEASE TERMS AND CONDITIONS
Lessee requests that Lessor lease to Lessee the personal property shown above
(the "Equipment") for research purposes only. Lessee's offer will be binding on
Lessor when Lessor accepts it by having an authorized employee sign in the space
provided below. All Lease Payments and other sums due and to become due shall
be payable to Lessor at Lessor's offices at 100 Inman Street, Cambridge, MA
02139.
1. Lease-Payment. The Lease Payment for the Renewal Lease Term is [*****]
which is due by [*****].
2. Equipment Location. Equipment shall be delivered to, and not be removed
without Lessor's prior written consent from the "Equipment Location" shown above
or if no location is specified, Lessee's billing address. Lessor shall have the
right to inspect Equipment at any reasonable time during business hours with
reasonable notice.
1. *Confidential Treatment Requested
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3. Reagent Shipments. Unless directed to the contrary by Lessee in writing,
Lessor shall ship at [*****] of the Lease to the Equipment Location [*****] of
sterilized CelMix(TM) 200 Emulsion Matrix and [*****] of sterilized
CelBioGel(TM) Encapsulation Matrix. These shipments will be F.O.B. Cambridge,
MA; Lessor will prepay the freight and invoice Lessee accordingly, or, at
Lessee's direction, utilize Lessee's FedEx account number [*****].
4. Ownership; Personal Property. This equipment is Lessor's property, and no
rights or interests in it are conveyed except as expressly set forth herein.
The Equipment is and shall at all times remain personal property.
5. Use of Equipment and Reagents. The Equipment and Reagents can be used only
for Lessee's own internal research purposes. Lessee cannot sell or provide
services (now or in the future) that use or encompass the Equipment or Reagents
to third parties; Lessee cannot sell or provide products (now or in the future)
that either use or were developed (in whole or in part) with the Equipment or
Reagents or are manufactured by the Equipment to third parties. Lessee's
obligations and Lessor's rights under this Section 5 shall survive Lease
expiration or termination.
6. Assignment, Offset. LESSEE MAY NOT ASSIGN, TRANSFER, OR SUBLET ANY INTEREST
IN THIS LEASE OR THE EQUIPMENT WITHOUT LESSOR'S PRIOR WRITTEN CONSENT. Lessor
may assign this Lease or mortgage the Equipment, or both, in whole or in part
without notice to Lessee. If Lessee receives notice, Lessee will acknowledge
receipt thereof in writing. Each assignee or mortgagee of Lessor shall have all
Lessor's rights, but none of Lessor's obligations under this Lease. Lessee shall
not assert against assignee or mortgagee any defenses, counterclaims, or offsets
Lessee may have against Lessor. This Lease inures to the benefit of and is
binding upon the heirs, legatees, successors, and assigns of the parties hereto.
Lessee acknowledges that any assignment by Lessor will neither materially change
Lessee's duties hereunder nor increase Lessee's burdens or risks hereunder.
7. Lessee's Options After Expiration of Renewal Lease Term. At least [*****]
prior to the expiration of the Renewal Lease Term Lessor will send to Lessee 1)
notification that Lessee's Renewal Lease will expire as of a particular date and
2) a Continuing Lease specifying the terms and conditions upon which Lessee can
continue to lease the Equipment; the Lease Payment in the Continuing Lease will
be no more than [*****] of the Lease Payment in the Renewal Lease Term. Within
[*****] after the expiration of the Renewal Lease Term and assuming that no
default has occurred and is continuing, Lessee has the following Options:
(A) to release the Equipment on the terms and conditions specified in the
Continuing Lease, or
(B) to surrender the Equipment,
8. Taxes, No Liens. As Lessor directs, Lessee shall pay all charges and taxes
(local, state, and federal) incurred by Lessor which may now or hereafter be
imposed or levied upon the leasing, possession, or use of the Equipment,
excluding, however, all taxes on or measured by Lessor's net income. Lessee
shall keep the Equipment free and clear of all liens and encumbrances.
9. Indemnity. Lessee shall indemnify, defend, and hold Lessor harmless from
any costs, expenses, damages, fines, claims, or lawsuits arising from the lease,
possession, use, condition,
2. *Confidential Treatment Requested
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or return of the Equipment. The obligations under this Section 9 shall survive
Lease expiration or termination.
10. Lease Term, Noncancelability, Nonassignability. This lease shall continue
fur the number of months shown in the space above as the Renewal Lease Term and
end after Lessee has fulfilled all Lessee's obligations. THIS LEASE CANNOT BE
CANCELED OR TERMINATED FOR ANY REASON EXCEPT AS EXPRESSLY PROVIDED HEREIN.
LESSEE MAY NOT ASSIGN, TRANSFER, OR SUBLET ANY INTEREST IN THIS LEASE OR THE
EQUIPMENT WITHOUT LESSOR'S PRIOR WRITTEN CONSENT.
11. Warranty and Maintenance. Lessor warrants that the Equipment is free from
defects in materials and workmanship for the duration of this Lease and will
perform substantially in accordance with the Equipment documentation for the
life of the Equipment. Lessor will provide all labor and parts required to
maintain the Equipment in operating condition for the duration of this Lease.
Lessee is responsible for any freight and shipping charges associated with any
non-warranty repair or maintenance of the Equipment.
12. Disclaimer of Other Warranties. Section 11 contains the only Warranty of
any kind, express or implied, including but not limited to the implied
warranties of merchantability and fitness for a particular purpose, that are
made by Lessor on this Equipment. No oral or written information or advice
given by Lessor or Lessor's employees shall create a warranty or in any way
increase the scope of this Warranty, and Lessee may not rely on any such
information or advice.
13. Late Payment Charges. If any payment to Lessor required herein is not paid
on or before its due date, Lessee shall pay to Lessor interest on any such late
payment from the due date thereof until the date paid at the lesser of [*****]
or the [*****].
14. Default. If Lessee's failure to perform any obligation hereunder continues
for [*****] after Lessor demands in writing performance thereof, Lessor may take
possession of any Equipment, which possession shall not terminate Lessee's
obligations under this Lease. Lessee will he responsible for Lessor's legal
costs and expenses.
15. Insurance. Lessee shall at Lessee's expense provide and maintain (a)
insurance against loss, theft, damage or destruction of the Equipment for its
full replacement value, naming Lessor as the loss payee, and (b) public
liability and property damage insurance naming Lessor as additional insured.
Such insurance (and written evidence thereof delivered to Lessor at Lessor's
request) shall be satisfactory to Lessor. If Lessee fails to provide such
evidence, Lessor will have the right, but no obligation, to have such insurance
protecting Lessor placed at Lessee's expense.
3. *Confidential Treatment Requested
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1.6. Patents. All inventions and discoveries, whether or not patentable, which
are conceived or reduced to practice by Lessee while utilizing the Equipment
and/or Reagents shall be the sole and exclusive property of Lessee, provided
however, that any patent claims reciting the Equipment (specifically or
generically) and/or Reagents (specifically or generically which can form "bead
polymers" or "gel microdrops" as described in the Patents listed in Exhibit A of
this Lease) individually or as a component of a product or a process shall be
jointly owned by the Lessor and Lessee. Lessor's rights under this Section 16
shall survive Lease expiration or termination.
17. Miscellaneous; Lessee Waivers; Consent to Jurisdiction. This instrument
constitutes the entire agreement between the parties as to the subject matter
contained herein, and it shall not be amended, altered, or changed except by a
written agreement signed by the parties hereto and no provision of this Lease
can be waived except by Lessor's written consent. Lessee authorizes Lessor to
do all acts which Lessor may reasonably deem necessary to protect Lessor's
interests hereunder. This is a contract of lease only and nothing shall create
in Lessor solely a security interest or give Lessee an equity or other property
interest in the Equipment except as specifically provided herein.
The Undersigned affirms that he/she are duly authorized to execute this Lease
Contract:
One Cell Systems, Inc. (Lessor) by: Diversa Corporation (Lessee) by:
/s/ Edward O'Lear /s/ Carolyn Erickson
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Edward O'Lear Carolyn Erickson
Vice President Director, IP
Date: February 16, 1999
4. *Confidential Treatment Requested
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EXHIBIT A
PATENTS
The following Patents and pending patent applications cover the encapsulation of
a variety of biological substances using the Reagents (both specifically and
generically) and Equipment (both specifically and generically) and then assaying
for a variety of parameters:
[*****]
EXHIBIT B
EQUIPMENT SPECIFICATIONS
[*****]
5. *Confidential Treatment Requested