High Throughput Oligonucleotide Manufacturing and Supply and MassARRAY(TM) Analytical System Purchase Agreement - Sequenom Inc. and Integrated DNA Technologies Inc.
[LOGO] [LOGO]
INTEGRATED DNA SEQUENOM
TECHNOLOGIES, INC. INDUSTRIAL GENOMICS
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High Throughput Oligonucleotide Manufacturing and Supply
and MassARRAY(TM) Analytical System Purchase Agreement
By and between
Sequenom, Inc.
11555 Sorrento Valley Road, San Diego, CA 92121-1331
- Hereinafter referred to as Sequenom -
and
Integrated DNA Technologies, Inc.
1710 Commercial Park, Coralville, IA 52241
-Hereinafter referred to as IDT-
Table of Contents
Recitals................................................................ 2
Definitions............................................................. 2
Article 1 Oligonucleotide Supply Period and Deposit.................... 6
Article 2 Synthesizer Assembly and Platform Development Plan........... 6
Article 3 Assigned Systems Development Plan............................ 7
Article 4 Oligonucleotide Manufacturing and Supply Administration...... 9
Article 5 Pricing, Ordering and Invoicing.............................. 10
Article 6 Intellectual Property........................................ 12
Article 7 Representations & Warranties................................. 14
Article 8 Qualifications Collaboration................................. 16
Article 9 Confidential Information..................................... 16
Article 10 Term and Termination......................................... 18
Article 11 Notices...................................................... 20
Article 12 General...................................................... 21
Appendix A.............................................................. A-1
Appendix B.............................................................. B-1
Appendix C.............................................................. C-1
Appendix D.............................................................. D-1
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RECITALS
WHEREAS, Sequenom has developed its MassARRAY(TM) technology platform,
including the MassARRAY(TM) Analytical System, for high definition nucleic acid
and biopolymer analysis; and
WHEREAS, Sequenom and its customers have a need for large volumes of high
quality oligonucleotides for use with the MassARRAY(TM) technology platform and
Sequenom desires to secure for itself and its customers a dedicated capacity for
oligonucleotide production and a primary and preferred status for the supply of
oligonucleotides; and
WHEREAS, Sequenom wishes IDT to manufacture oligonucleotides for Sequenom and
to sell oligonucleotides to Sequenom, and in certain instances to deliver
oligonucleotides directly to Sequenom customers; and
WHEREAS, IDT is a recognized leader in high-volume oligonucleotide synthesis,
and has developed the "High Throughput [...***...] System" a customized,
quality-controlled, high-throughput oligonucleotide synthesis platform; and
WHEREAS, IDT desires to improve the quality and increase the throughput of its
high-throughput oligonucleotide synthesis platform by combining IDT's High
Throughput [...***...] System with Sequenom's MassARRAY(TM) Analytical System;
and
WHEREAS, IDT and Sequenom wish to collaborate on the design and production of
oligonucleotides using IDT's High Throughput [...***...] System together with
the MassARRAY(TM) Analytical System;
NOW THEREFORE, Sequenom and IDT agree to the following:
DEFINITIONS
For purposes of this High Throughput Oligonucleotide Manufacturing and Supply
and MassARRAY(TM) Analytical System Purchase Agreement, the following words,
phrases, or terms shall have the meanings as herein defined:
0.1 "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
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things, the direct or indirect ownership of fifty percent (50%) or more of
its outstanding voting stock.
0.2 "Agreement" means this High Throughput Oligonucleotide Manufacturing and
Supply and MassARRAY(TM) Analytical System Purchase Agreement, including
Appendices A through D, as originally executed and as properly amended
from time to time according to Article 12.11.
0.3 "Assigned Supply Period" shall mean a period of five (5) years from the
Assigned Systems Validation Date.
0.4 "Assigned Systems" shall mean [...***...] High Throughput [...***...]
Systems and the Supporting Equipment to be assigned to and operating
within, the High Throughput Synthesis Facility Housing to support Sequenom
and Sequenom Account daily Oligo requirements.
0.5 "Assigned Systems Validation Date" shall mean the date of the signed
writing contemplated in Article 3.6.2 herein, wherein Sequenom confirms to
IDT that the Assigned Systems meet or exceed the Validation Criteria.
0.6 "Business Day(s)" shall mean those days from Monday through Friday which
are not declared as national holidays in the United States, or as holidays
recognized by either or both Parties.
0.7 "Calendar Days" means all days Sunday through Saturday, which appear on
the calendar from January 1 through December 31.
0.8 "Customer Deposit" shall mean the credit for dedicated Oligo supply and
Oligo purchases obtained by Sequenom under this Agreement, which will be
credited to the benefit of Sequenom against Oligo purchases by Sequenom at
a rate of [...***...] per base in accordance with terms and conditions of
Article 5.1.
0.9 "Dedicated Data Management System" means the components of an integrated
hardware and software system designed to support the isolated processing,
tracking and storage of all information related to Sequenom and Sequenom
customer Oligonucleotide orders, with access secured from any party other
than IDT or Sequenom.
0.10 "Effective Date" shall be the execution date of the last signature on the
signature page of this Agreement.
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0.11 "High Throughput [...***...] System" or "[...***...] System" shall mean a
fully integrated bench of DNA synthesizers, chemical/reagent fluidics
systems, and custom production software, capable of synthesizing (with
appropriate material inputs and personnel) [...***...] Oligonucleotide
bases per 24-hour period.
0.12 "High Throughput Synthesis Facility Housing" shall mean the IDT structure
containing a production area, which is to be dedicated to the manufacture
of oligonucleotides for large volume customers.
0.13 "IDT" means Integrated DNA Technologies, Inc. and its Affiliates.
0.14 "Intellectual Property" means (i) inventions (whether patentable or
unpatentable and whether or not reduced to practice), all present
improvements thereto and future improvements thereto, and all United
States, and foreign patents, patent applications, patent disclosures, and
patentable inventions, together with all reissuances, continuations,
continuations-in-part, divisionals, revisions, extensions and
reexaminations thereof; (ii) trademarks, trade names, service marks, trade
dress, logos, and corporate names, together with all translations,
adaptations, derivations and combinations thereof whether registered or
arising under the common law, state law or federal law of the United
States, or the laws of other foreign countries, and all interests therein
throughout the world and all associated goodwill therewith, and all
applications, registrations and renewals in connection therewith, all
copyrights and all copyrightable works and interests throughout the world
and all other literary property and author rights whether or not
copyrightable, and all applications, registrations and renewals in
connection therewith; (iii) mask works and all applications, registrations
and renewals in connection therewith; (iv) all trade secrets and trade
secret rights arising under the common law, state law, and federal law of
the United States, and the laws of other foreign countries, and
confidential information (including product specifications, data, know-
how, formulae, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current research
and development, current research methodologies and processes, customer
lists, current and anticipated customer requirements, price lists, market
studies, business plans), however documented; (v) proprietary computer
software and programs (including object code and source code) and other
proprietary rights and copies and tangible embodiments thereof (in
whatever form or medium); (vi) database technologies, systems, structures
and architectures (and related processes, formulae, compositions,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information) and any other related information,
however, documented; (vii) any and all information concerning the business
and affairs of Sequenom (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel and
personnel training and techniques and materials), however documented;
(viii) any and all notes, analysis, compilations, studies, summaries, and
other material prepared by or for Sequenom containing or based, in whole
or in part, on any information included in the foregoing, however
documented; (ix) all industrial designs and any registrations and
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applications therefore; (x) all databases and data collections and all
rights therein; and (xi) any similar or equivalent rights to any of the
foregoing anywhere in the world.
0.15 "Interim Period" shall mean the period of time beginning on the Effective
Date and ending upon the Assigned Systems Validation Date.
0.16 "LICENSE AND RESTRICTED USE AGREEMENT" refers to Appendix C, governing the
purchase and use of MassARRAY Products.
0.17 "MassARRAY(TM) SpectroCHIP(TM)" or "SpectroCHIP(TM)" means Sequenom's
proprietary 384 SpectroCHIP(TM) that, for purposes of this Agreement, is
to be used solely for MALDI-TOF mass spectrometry quality control in the
manufacture of oligonucleotides.
0.18 "MassARRAY Analytical System" refers to the Sequenom materials referenced
in Appendix C.1 to the LICENSE AND RESTRICTED USE AGREEMENT.
0.19 "Oligonucleotide" or "Oligo" means a plurality of nucleotides or
nucleotide analogs forming a nucleotide chain and conforming to the
specifications and criteria set forth in Appendix A, for supply and
delivery to Sequenom and Sequenom Accounts.
0.20 "Parties" shall refer collectively to Sequenom and IDT, each individually
referred to as a "Party".
0.21 "Person or Persons" shall mean any person, corporation or other entity.
0.22 "Platform Validation Date" shall mean the date upon which Sequenom
confirms in a signed writing that the objectives of the Synthesizer
Assembly and Platform Development Plan (Article 2) have been
satisfactorily completed, as set forth in Article 2.6.
0.23 "Sequenom" means Sequenom, Inc. and its Affiliates.
0.24 "Sequenom Account" shall mean a user of Sequenom's MassARRAY(TM)
technology or a prospective Sequenom customer with whom Sequenom has
actively engaged in discussions regarding the supply of oligonucleotides.
0.25 "Supporting Equipment" shall mean the equipment needed for the processing
of Oligos and Oligo-related components before and after synthesis, the
analytical equipment, the computer hardware needed for functional
integration of the systems, the custom order entry software and related
computer hardware (e.g., the Dedicated Data Management
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System), and other related equipment and furnishings supportive of or
secondary to the actual synthesis of Oligos.
0.26 "Third-Party Customers" shall mean any persons or entities, other than
Sequenom and IDT, and other than Sequenom Accounts that order products or
services from IDT.
0.27 "Validation Criteria" shall mean the Oligonucleotide manufacturing
capacity, performance, quality control, and data criteria for the
Assigned Systems as established by the Parties according to Article 3
herein.
ARTICLE 1
OLIGONUCLEOTIDE SUPPLY PERIOD AND DEPOSIT
1.1 Supply Period. For the Assigned Supply Period, IDT will utilize the
Assigned Systems to manufacture and sell Oligos according to the terms
and conditions as described in this Agreement. This commitment by IDT
includes the obligations of IDT to individually staff, train, and fully
compensate, the personnel needed to operate the Assigned Systems for
Sequenom, and to otherwise fully manage the production of Oligos for
Sequenom.
1.2 Supply Deposit. In order to allow for accelerated assembly of the
required synthesizers, the development of a scaleable MALDI-TOF mass
spectrometry system, and the development of a customized dedicated on-
line ordering system, all of which will become part of the Assigned
Systems, Sequenom will advance Installments to IDT according to the
Installment Schedule described in Appendix B, that will be allocated and
counted toward Sequenom's Customer Deposit. IDT intends to use the
Customer Deposit Installments to implement and complete a Synthesizer
Assembly and Platform Development Plan (as set forth in Article 2) and an
Assigned Systems Development Plan (as set forth in Article 3).
1.3 Sale of Oligos. IDT will make and sell Oligos to Sequenom in accordance
with the pricing provisions contained in Article 5. IDT will invoice
Sequenom at the [...***...] per base, for each base of each Oligo ordered
by Sequenom and shipped by IDT, and shall reduce Sequenom's Customer
Deposit by an equivalent sum.
ARTICLE 2
SYNTHESIZER ASSEMBLY AND
PLATFORM DEVELOPMENT PLAN
2.1 Overview. In order to facilitate the manufacture and supply of Oligos
under this Agreement, and upon receipt of the Second Installment as set
forth in Appendix B, IDT will proceed with the following duties and
obligations which are collectively referred to herein as the "Synthesizer
Assembly and Platform Development Plan".
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2.2 Synthesizer Assembly. IDT will purchase the required components for,
assemble and validate the performance of, [...***...] System synthesizers
in IDT's existing facility in Coralville, Iowa.
2.3 MassARRAY Analytical System Purchase. IDT will purchase a MassARRAY
Analytical System and SpectroCHIPs (subject to the terms and conditions set
forth in Appendix C) from Sequenom for integration with the [...***...]
System synthesizers (referred to in paragraph 2.2) and will establish a
scaleable platform for high throughput Oligonucleotide analysis.
2.4 Software Development for On-line Ordering. IDT will complete the software
package for Sequenom's dedicated on-line ordering system and will validate
its operational performance.
2.5 Interim Capacity Expansion. Pending completion of the Assigned Systems and
the High Throughput Synthesis Facility Housing, IDT will increase
oligonucleotide production capacity within its present facility to allow
for production runs of at least [...***...] Oligos (average length of
approximately thirty (30) bases) per 24-hour day, solely for Sequenom.
2.6 Confirmation of Completion. IDT will provide written notice to Sequenom of
its completion of the Synthesizer Assembly and Platform Development Plan,
upon which Sequenom will have fifteen (15) Business Days to confirm in
writing, such completion to the reasonable satisfaction of Sequenom. IDT
agrees that Sequenom representatives will be permitted to observe and
confirm the satisfactory completion of the duties and obligations of IDT
described in Article 2. Sequenom agrees to notify IDT in writing of its
objections, if any, to IDT's performance under this Synthesizer Assembly
and Platform Development Plan within the fifteen (15) Business Day
confirmation period. Such written confirmation by Sequenom, or expiration
of the confirmation period without notice of objections to IDT, will
establish the "Platform Validation Date". IDT agrees to complete its duties
and obligations under Article 2 by approximately October 31, 2000.
ARTICLE 3
ASSIGNED SYSTEMS DEVELOPMENT PLAN
3.1 Overview. Upon successful completion and validation of the Synthesizer
Assembly and Platform Development Plan, confirmed in writing by Sequenom,
("the Platform Validation Date"), and upon receipt of the Third Installment
as set forth in Appendix B, IDT will continue, and will accelerate as
necessary, the performance of the following duties and obligations which
are collectively referred to herein as the "Assigned Systems Development
Plan".
3.2 Assigned Capacity Development. IDT will continue its construction of the
High Throughput Synthesis Facility, with an assigned manufacturing capacity
dedicated solely
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to supplying Oligos to Sequenom and Sequenom customers, of [...***...]
Oligos per day (based upon an average Oligo length of thirty (30) bases).
3.3 Assigned Systems Assembly and Acquisition. IDT will begin the timely
acquisition of the Supporting Equipment, and will make all manufacturing,
personnel management and related preparations for the operation of the
Assigned Systems to begin as soon as commercially practical following the
completion of the High Throughput Facility Housing.
3.4 MassARRAY Analytical System Purchase. Within five (5) days of the Platform
Validation Date, IDT will purchase a second MassARRAY Analytical System and
SpectroCHIPs (subject to the terms and conditions set forth in Appendix C)
from Sequenom for integration with the [...***...] System Synthesizers
(referred to in paragraph 2.2) and will establish this secondary system for
high throughput oligonucleotide analysis as a part of the Assigned Systems,
and which will be available on a secondary basis for IDT to independently
supply Third-Party Customers with oligonucleotides.
3.5 Reporting Requirements. IDT will supply Sequenom with written updates of
progress made on the Assigned Systems Development Plan on the last day of
each month during the Interim Period. In addition IDT shall immediately
notify Sequenom in writing of each the following:
(i) completion of the High Throughput Synthesis Facility Housing;
(ii) completion of the full assembly and integration of the Assigned
Systems operating within the High Throughput Synthesis Facility
Housing; and
(iii) any events, incidents, or occurrences that will materially change, or
materially affect the timely completion of the High Throughput
Synthesis Facility Housing or the Assigned Systems Development Plan.
3.6 Validation Criteria. No less than two (2) months following the Platform
Validation Date, IDT and Sequenom will establish Validation Criteria for
the Assigned Systems for the daily production of Oligos, that is, in
addition to the criteria set forth in paragraph 3.2. IDT will assemble and
integrate the Assigned Systems within the High Throughput Synthesis
Facility Housing so as to meet or exceed such Validation Criteria.
3.6.1 Initial Validation by IDT. As soon as is commercially practical
following the notice described in paragraph 3.5(ii), IDT will
independently perform an initial trial validation of the Assigned
Systems within the High Throughput Synthesis Facility Housing, and
will immediately report to Sequenom in writing the resulting
validation data in a format consistent with the Validation Criteria.
3.6.2 Validation & Confirmation by Sequenom. Within twenty (20) days of
Sequenom's receipt of validation data, which data meets or exceeds
the
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Validation Criteria, Sequenom shall have the option, but not the
obligation, to send at least two (2) representatives to IDT's facility
in Coralville, for the purpose of confirming that the Assigned Systems
meet the Validation Criteria agreed to by the Parties. IDT agrees to
operate the Assigned Systems in the presence of the representatives of
Sequenom, and to provide any and all information reasonably necessary
to confirm compliance of the Assigned Systems with the Validation
Criteria. Immediately thereafter the Sequenom representatives shall
either confirm in writing their validation of the Assigned Systems, or
shall specify in writing the Validation Criteria (or criterion) that
have not been met, or for which there is inadequate confirming data.
IDT shall be given reasonable opportunity to remedy any objections
raised by the representatives of Sequenom, but in no event more than
forty-five (45) days to remedy all valid objections. Immediately
following successful remedy of Sequenom's objections, Sequenom shall
confirm in writing, the validation of the Assigned Systems operating
within the High Throughput Synthesis Facility Housing (the "Assigned
Systems Validation Date"), and thereafter as set forth in Appendix B,
pay to IDT the Fourth Installment.
3.7 Completion Dates. IDT will use its best efforts to complete the High
Throughput Facility Housing by approximately February 28, 2001, and within
three (3) months after the completion thereof, the Assigned Systems will be
fully integrated and operational within the High Throughput Facility
Housing and complete and ready for manufacture of Oligos as set forth in
Article 5.
ARTICLE 4
OLIGONUCLEOTIDE MANUFACTURING
AND SUPPLY ADMINISTRATION
4.1 Appointment of Project Managers. It is contemplated by the Parties, that
all decisions affecting or regarding Oligo specifications, manufacturing,
and supply, will be the result of informed deliberation and mutual consent
of designated officials of the Parties. Accordingly, IDT hereby appoints
William (Trey) Edward Martin III, Vice President of Oligonucleotide
Manufacturing, and Sequenom hereby appoints Dr. Michael Willis, Ph.D.,
Senior Director of Chemistry, as the Project Managers for each respective
Party. The Project Managers, or their duly authorized designates, have the
authority to make any decision regarding modifications to the
specifications or criteria requirements (that is, Appendix A) of Oligos,
but are not authorized to make any decisions regarding pricing, or other
material issues that conflict with the terms of this Agreement. The Project
Managers will distribute their joint decisions as they relate to the
ordering, manufacturing and shipping specifications of Oligos to the
relevant members of their staffs, and will further instruct all staff
members to channel all related issues or concerns through Project Managers
or their designates.
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4.2 Executive Oversight. The Parties further recognize that the regular review
and input of senior level executive staff may be beneficial to the Parties
and accordingly the Parties agree to appoint at least one (1) individual of
each Party, in addition to the Project Managers, to serve on the Executive
Committee. The Executive Committee will be formed and will hold its first
meeting no later than one (1) month from the Effective Date. The Executive
Committee will be charged with reviewing the performance of the Parties,
forecasting the Oligonucleotide needs and manufacturing capabilities of the
respective Parties, and monitoring compliance with the Agreement and
proactively resolving any conflicts that may arise.
4.3 Specifications. Unless and until later amended by the Project Managers,
Oligos manufactured by IDT and sold to Sequenom and Sequenom Accounts will
meet or exceed the following requirements and specifications listed in
Appendix A attached hereto. Sequenom shall provide IDT with written notice
subject to Article 11, if Sequenom considers IDT to be failing to
satisfactorily perform its obligations under this Agreement and/or if
Sequenom believes the pricing or the terms of this Agreement are no longer
commercially advantageous or beneficial for Sequenom. In such case,
Sequenom agrees to provide IDT with a reasonable opportunity to address
Sequenom's concerns. If IDT is unable to resolve the concerns expressed by
Sequenom within in a period of time satisfactory to Sequenom, Sequenom
shall not be restricted in any way by the terms of this Agreement to
purchase oligonucleotides from another party.
ARTICLE 5
PRICING, ORDERING AND INVOICING
5.1 Pricing. Subject to the provisions contained in paragraphs 5.2, 5.3, and
5.6 hereunder, the per base price for Oligos will be adjusted accordingly
when Sequenom orders the following volumes of Oligos on a per Business Day
average, such average to be determined for each calendar month:
(a) [...***...] per base if Sequenom orders between [...***...] Oligos per
day;
(b) [...***...] per base if Sequenom orders between [...***...] Oligos per
day;
(c) [...***...] per base for orders of between [...***...] Oligos per day;
and,
(d) [...***...] per base for orders of [...***...] Oligos per day.
IDT will invoice Sequenom at the above [...***...] per base, for each base
of an Oligo ordered by Sequenom and shipped by IDT, and shall reduce
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Sequenom's Customer Deposit by an equivalent sum. Sequenom shall not be
able to exhaust its Customer Deposit at a rate [...***...] per base for
each Oligo ordered and shipped. Sequenom shall not be precluded from any
discount it would otherwise be entitled to, due to any delays in shipping
by IDT.
5.2 External Factors & Price Increases. IDT warrants that it has performed
adequate manufacturing cost-forecasting to ensure that IDT can supply
Oligos at the above quoted per base prices in commercially viable fashion.
However, should unforeseeable events beyond the control of IDT cause the
manufacturing costs of IDT to increase such that the per base cost of
manufacture exceeds the then applicable per base price [...***...], then
IDT shall have the right to increase the per base price to restore a
[...***...] per base margin. The term "unforeseeable events" as used in
this paragraph includes, but is not limited to:
(a) new and substantial regulatory or legal restrictions imposed on the
manufacture of oligonucleotides or related manufacturing processes;
(b) substantial changes in the quality (or quality system) requirements of
Oligos requested by Sequenom;
(c) substantial increase(s) in the cost of necessary oligonucleotide
manufacturing amidites, reagents, solvents, or quality control
components, including specifically, the price of MassARRAY
SpectroCHIPsTM necessary to perform MALDI-TOF mass spectrometry for
Oligos;
Should IDT rely upon "unforeseeable events" beyond the control of IDT as a
basis for a price increase, IDT shall immediately as is practical disclose
to Sequenom in writing the cause of the price increase, and IDT's relevant
manufacturing costs in sufficient detail to allow for confirmation of the
costs by Sequenom.
5.3 Price Decreases. If there are substantial decreases in the price of the
necessary amidites/reagents, or changes in the specifications of Oligos
that result in reduced manufacturing costs of [...***...] average cost per
base for IDT, and only in those circumstances, then IDT shall reduce the
per base price to Sequenom by [...***...].
5.4 Oligo Ordering. During the Assigned Supply Period, Sequenom shall place all
orders for Oligos over the Dedicated Data Management System, using the
customer order entry software developed by IDT for Sequenom pursuant to
Article 2.4.
5.5 Oligo Specifications & Manufacturing Turnaround. The specifications and
requirements for the manufacture of Oligos will be those specifications and
requirements identified in Appendix A, as amended in writing from time-to-
time by the Project Managers.
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5.6 Direct Shipment to Sequenom Accounts. IDT will manufacture and directly
ship Oligos to certain Sequenom customers at the direction of Sequenom. If
such direct shipment is not specified by Sequenom, IDT will ship Oligos to
Sequenom. IDT's per base price to Sequenom for direct shipment to Sequenom
customers will be [...***...] than the price that would have been charged
to Sequenom under the pricing schedule outlined in Article 5.1 herein. The
number of Oligos ordered by Sequenom customers, will be included in the
daily Oligo count averages that determine the corresponding price per base
to Sequenom as set forth in Article 5.1. Sequenom will independently
invoice the sale of Oligos directly shipped from IDT to Sequenom customers.
5.7 Supply Forecasts & Pricing. On or before the 20th of each month during the
Assigned Supply Period, Sequenom will supply IDT with a forecast of its
intended Oligo orders for the following month (hereinafter "MAO
Forecasts"). IDT will advise Sequenom within three (3) Business Days of
receipt of a MAO Forecast of its ability to meet the MAO Forecast. It is
the expectation of both Parties that IDT will be able to meet any MAO
Forecast that requires a Business Day daily Oligo average of [...***...]
Oligos or less.
5.8 Invoicing. During the Assigned Supply Period, IDT will invoice Sequenom
following the close of each month for Oligos delivered. Payment of the
invoice by Sequenom will be due within five (5) Business Days from receipt
of the invoice by Sequenom, and payment will be made by electronic wire
transfer into an account as designated by IDT. Should Sequenom fail to pay
the full invoice within thirty (30) Business Days, IDT will have the right
to suspend Oligo manufacturing until the invoice is paid in full.
5.9 Covenant not to Compete. IDT agrees and covenants that for the duration of
the Assigned Supply Period, IDT shall not compete with Sequenom for the
sale of Oligos, meaning that IDT will not knowingly and independently sell
Oligos to Sequenom Accounts, without the express prior written consent of
Sequenom. Should Sequenom, in its sole discretion, elect not to supply a
Sequenom Account with Oligos, Sequenom will authorize IDT to sell Oligos to
that customer and Sequenom will identify IDT as a possible supplier to that
customer. However, as long as IDT does not use Sequenom's Oligos for the
purpose of supplying oligonucleotides to Third-Party Customers, and except
as specifically described in this paragraph 5.9, nothing in this Agreement
should be interpreted to prevent IDT from selling oligonucleotides to
Third-Party Customers.
ARTICLE 6
INTELLECTUAL PROPERTY
6.1 Inventions and Discoveries. The Parties do not anticipate, but do
acknowledge, that Intellectual Property may be developed through the joint
efforts of the Parties and their employees under this Agreement. If
Intellectual Property is developed by an individual Party, or by or through
the joint efforts of the Parties, the ownership of the Intellectual
Property, whether joint or separate, will be determined by the relevant
applicable federal
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or state laws regarding inventorship and reduction-to-practice. In the
event that an invention or know-how is developed through the joint or
collaborative efforts of the Parties and their employees, IDT and Sequenom
agree to instruct their respective employees to report the invention or the
development in a thorough and prudent manner to the management of the
respective Parties, and each Party and agrees to notify the other Party of
the invention or the development as soon as commercially practical
following internal reporting. The Parties thereafter agree to initiate good
faith negotiations directed toward the completion of a separate written
agreement directed to licensing and/or assignment of such Intellectual
Property.
6.2 Tradenames and Trademarks. IDT acknowledges that MassARRAY(TM),
SpectroCHIP(TM), SpectroCHECK(TM), and Sequenom(TM), among others, are
trademarks and tradenames of Sequenom, and that nothing in this Agreement
is intended as a grant to IDT, express, implied, or otherwise, to use any
trademark , tradename or trade dress of Sequenom unless expressly agreed to
in writing by Sequenom. Sequenom, in its sole discretion, may select the
trademark(s), tradename(s) and trade dress(es), if any, to be used in
connection with the Oligos, and all such trademarks, tradenames and trade
dresses are and shall be the exclusive property of Sequenom, and IDT shall
acquire no interest or right in and to any trademark, trade name or trade
dress selected or used by Sequenom. IDT agrees not to adopt any trademark,
trade name or trade dress that may be confusingly similar thereto, and not
to incorporate, mark, or affix to any Oligo, any IDT trademark.
6.3 Oligonucleotides. Notwithstanding the provisions of Article 6.1 and the
provisions of Appendix C, Sequenom shall be the sole owner of the Oligos,
which are the Confidential Information of Sequenom and subject to the
provisions of Article 9. IDT hereby assigns its entire worldwide right,
title, and interest, if any, in any Oligo to Sequenom, and IDT agrees to
take all necessary action to effect any such transfer, and to cooperate
with and assist Sequenom, at Sequenom's expense, in the pursuit,
enforcement, and defense of any Intellectual Property rights in any Oligo.
IDT shall be the sole owner of the Oligonucleotide manufacturing and
tracking methods developed prior to and/or during the term of this
Agreement, including, but not limited to, IDT's proprietary: Oligo reagent
preparation methods, Oligonucleotide synthesis methods, Oligo processing
and automation protocols, Oligo mass order entry software, Oligo tracking
software, and Oligo quality control systems.
6.4 Product Labeling. Sequenom will design, purchase and supply IDT with
product labels and corresponding product packaging to be used with all
shipments of Oligos. It is understood and agreed to by the Parties that
Oligos will be labeled as a Sequenom product, and according to labeling and
packaging requirements and specifications provided by Sequenom.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties by IDT:
IDT represents and warrants as follows:
(a) IDT is a corporation duly organized, validly existing and in
corporate good standing under the laws of the state of Iowa;
(b) IDT has the legal right, authority and power to enter into this
Agreement;
(c) IDT 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 valid and binding obligations against IDT
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;
(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) IDT 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;
(g) IDT has obtained, or will obtain, all governmental permits, licenses,
agreements, contracts, and other enabling documents to fully
implement and fulfill its duties hereunder;
(h) IDT represents and warrants that all employees or others acting on
its behalf pursuant to this Agreement are and shall be obligated
under a binding written agreement to assign to IDT all inventions
made or conceived by such employee or other person.
7.2 Representations and Warranties by Sequenom:
SEQUENOM represents and warrants as follows:
(a) SEQUENOM is a corporation duly organized, validly existing and in
corporate good standing under the laws of Delaware;
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(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 valid and binding obligations against 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;
(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, IDT's manufacture of Oligos does
not constitute contributory infringement with respect to any issued
patent of any third party that has issued prior to the effective date
of this Agreement;
(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;
(h) SEQUENOM represents and warrants that all employees or others acting
on its behalf pursuant to this Agreement are and shall be obligated
under a binding written agreement to assign to SEQUENOM all
inventions made or conceived by such employee or other person.
7.3 Limited Warranty for Oligos. IDT warrants that Oligos will meet the
specifications as determined in Appendix A, and as later amended by the
Project Managers if applicable. This limited warranty represents Sequenom's
sole and exclusive remedy with respect to Oligos manufactured for and sold
to Sequenom, or Oligos sold to Sequenom Accounts under this Agreement. IDT
does not warrant, guarantee or make any representations regarding the use
or the results of the use of Oligos in Sequenom's MassARRAY Analytical
System (and MassARRAY assays designed therefor), with respect to
correctness, accuracy, reliability or otherwise, above and beyond the
criteria set forth in Appendix A. Sequenom assumes the entire risk as to
the results obtained from the use of Oligos. Sequenom further acknowledges
that Sequenom, and not IDT, is solely responsible for any warranty or
guarantee made to Sequenom Accounts with respect to the performance of
Oligos. 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 or indirect, by estoppel, or by effect of the Uniform
Commercial Code, usage in the industry or through course of dealings of the
Parties, including but not limited to those concerning merchantability or
fitness for a particular purpose.
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ARTICLE 8
QUALIFICATIONS COLLABORATION
8.1 Mutual Interests in Qualification Standards. Sequenom is interested in
providing its customers with Standard Operating Procedures (hereinafter
"SOPs") and validation materials that would assist its customers in
establishing that a laboratory using MassARRAY Products for performing
high-throughput genotyping services in pharmacogenetic-based clinical
trials is compliant with United States regulatory standards as set forth in
the Clinical Laboratory Improvement Amendments of 1988 ("CLIA"), and
possibly other governmental regulatory standards. IDT is also interested in
developing SOPs and other validation materials that would establish that
oligos manufactured by IDT are compliant with United States regulatory
standards. As a result, the Parties agree as set forth in Articles 8.2 and
8.3.
8.2 Draft Quality Plan. IDT and Sequenom will collaborate on a draft quality
plan and supporting quality system for the Assigned Systems, that is
consistent with (but not necessarily initially compliant with) the relevant
standards set forth by CLIA. A designated employee or agent of IDT will be
the principal draftsperson for this initial draft, which will be submitted
to Sequenom for review by Sequenom, no later than twelve (12) months from
the Platform Validation Date. A managerial quality control or quality
assurance employee of Sequenom, will review the initial draft and provide
written comments to IDT within sixty (60) days of receipt.
8.3 Optional Qualifications Collaboration. Within sixty (60) days of IDT's
receipt of the review of the initial draft by Sequenom, the Parties agree
to meet to discuss the potential benefits of further pursuing a
collaborative effort consistent with this Article 8.
ARTICLE 9
CONFIDENTIAL INFORMATION
9.1 Confidential Information. 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 IDT.
9.2 Designated Confidential Information of Sequenom. All information relating
to Oligos ordered under this Agreement including but not limited to,
Oligonucleotide sequences, including specifically, target sequences and/or
SNPs validated by Sequenom during the course of this Agreement are hereby
designated as SEQUENOM Confidential Information. SEQUENOM agrees that it
will, in writing, clearly identify as confidential, any and all additional
information that it provides to IDT that it considers to be the
Confidential Information of SEQUENOM.
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9.3 Designated Confidential Information of IDT. Any and all data generated by
IDT's development, assembly, validation and use of the High Throughput
[...***...] Systems and/or the Dedicated Data Management System, except for
the information described in 9.2 herein, are hereby designated as IDT's
Confidential Information. IDT agrees that it will, in writing, clearly
identify as confidential, any and all such information that it provides to
SEQUENOM that it considers to be the Confidential Information of IDT.
9.4 Use of Confidential Information. Each Party may use the other Party's
Confidential Information only for the purpose of performing each Party's
duties and obligations under this Agreement.
9.5 Obligations of Confidentiality. Except as expressly provided herein,
SEQUENOM and IDT, and their officers, employees, agents, consultants, and
authorized representatives (a) shall hold in strict confidence all
Confidential Information from the other Party or any of its 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.
9.6 Other Information. 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
(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
*** Confidential Treatment Requested
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(vi) 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.
9.7 Additional Remedies. 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 9 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 9.
9.8 Publications. 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 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.
9.9 Extended Term. The provisions of this Article 9 shall survive any
termination or expiration of this Agreement and continue in force for a
period of five (5) years.
ARTICLE 10
TERM AND TERMINATION
10.1 Term. The term of this Agreement will be from the Effective Date and will
continue for a period of five (5) years from the Assigned Systems
Validation Date, unless terminated by a Party or the Parties under one of
the provisions of this Article 10.
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10.2 Bankruptcy. This Agreement shall terminate upon written notice subject to
Article 11, 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.
10.3 Termination. 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,
subject to Article 11, to the defaulting Party.
10.4 IDT Elective Termination. IDT may terminate this Agreement if SEQUENOM has
failed to order a Business Day daily average of [...***...] or more
Oligos, calculated over a consecutive ten (10) Business Day period, by the
second anniversary date (two years from the Effective Date) of this
Agreement, by providing SEQUENOM thirty (30) days written notice, subject
to Article 11, of such termination.
10.5 Sequenom Elective Termination. Sequenom may terminate this Agreement by
providing IDT thirty (30) days written notice if:
(i) the Platform Validation Date is not met within nine (9) months of
the Effective Date; or
(ii) the Assigned Systems Validation Date is not met within eighteen (18)
months of the Effective Date; or
(iii) IDT materially fails to comply with any of the Oligonucleotide
manufacturing or supply requirements set forth in Article 3.2 and in
Appendix A. The Parties recognize and acknowledge that the
production of Oligos conforming to the specifications and criteria
set forth in Appendix A is important to Sequenom and is a material
term of this Agreement, and further that time is of the essence with
respect to Sequenom and Sequenom customer demand for
Oligonucleotides. IDT's failure to materially produce and deliver
Oligos to Sequenom in quantity as set forth in Article 3.2 and in
conformity with the specifications and criteria set forth in
Appendix A, is considered a material breach of this Agreement and
must be cured to the satisfaction of Sequenom within thirty (30)
Calendar Days of notice of the same to IDT by Sequenom. Failure by
IDT to cure such a breach within thirty (30) Calendar Days is
grounds for Sequenom's elective termination of this Agreement.
*** Confidential Treatment Requested
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10.6 Effect Of Expiration Or Termination Of Agreement. Within thirty (30) days
after expiration or termination (the date of termination will be the date
upon which the thirty (30) day notice period lapses) of this Agreement,
each Party shall return to the other Party any and all Confidential
Information (Article 9) provided by the other Party pursuant to this
Agreement. Sequenom shall have the right to obtain and use all Oligos for
which Sequenom has paid and that are in IDT's possession, or are scheduled
to be produced, at the time of termination. Except to the extent expressly
provided to the contrary, the rights and obligations of the Parties
pursuant to Articles 9, 10, 11, and 12 shall survive the expiration or
termination of this Agreement. Any and all rights of IDT to payments
accrued through expiration or termination as well as obligations of the
Parties under firm orders for purchase and delivery of Oligos at the time
of such expiration or termination shall remain in effect. IDT will have no
obligation to sell and deliver Oligos to Sequenom or Sequenom Accounts
that have delivery dates more than five (5) Business Days after the date
of termination, and in the case of termination under sections 10.2 or
10.3, the terminating Party has discretion in electing whether firm orders
will remain in effect. Upon expiration or termination of this Agreement,
any unused Customer Deposit shall be forfeited by Sequenom and will
default to IDT. Upon termination of this Agreement by Sequenom under
Article 10.2, 10.3, or 10.5, IDT shall be required to transfer possession,
and all title, right and interest in and to the MassARRAY Analytical
Systems (the Pledged Collateral per Appendix D) immediately to Sequenom.
ARTICLE 11
NOTICES
11.1 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 courier service. Such notice shall be deemed to have
been given upon such date that it is 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.
11.2 If to IDT, the notice as required by 11.1 shall be addressed to the
address below or to another address designated by IDT as may change from
time to time:
Legal Department
Attn: Urgent
Integrated DNA Technologies, Inc.
1710 Commercial Park
Coralville, Iowa 52241
(with additional fax):
Fax: Attn: Legal -URGENT
(319) 626-8444
and (847) 470-8223
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with a copy to:
Dr. Joseph A. Walder
Chief Executive Officer
Integrated DNA Technologies, Inc.
1710 Commercial Park
Coralville, Iowa 52241
11.3 If to Sequenom, the notice as required by 11.1 shall be addressed to the
address below or to another address designated by Sequenom as may change
from time to time:
Sequenom, Inc.
Corporate Counsel
11555 Sorrento Valley Road
San Diego, CA 92121
Telephone: (858) 350-0345
Facsimile: (858) 350-0620
with a copy to:
Sequenom, Inc.
Chief Operating Officer
11555 Sorrento Valley Road
San Diego, CA 92121
Telephone: (858) 350-0345
Facsimile: (858) 350-0344
ARTICLE 12
GENERAL
12.1 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, 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 12.1 shall be extended for a
period equal to the duration of the cause.
12.2 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.
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12.3 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.
12.4 Successors In Interest. Subject to section 12.3, 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.
12.5 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of California, U.S.A., notwithstanding its
conflicts of law rules. Any litigation between the Parties relating to
this Agreement shall take place in San Diego County, California and the
Parties consent to the personal jurisdiction of and venue in the state and
federal courts within San Diego County, California.
12.6 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
IDT and an individual designated by the President (or the equivalent
position) of SEQUENOM (the "Representatives").
12.7 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 affect the intent of the Parties, and the remainder
of this Agreement shall continue in full force and effect.
12.8 No Waiver. Failure by either Party to enforce any term, 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.
12.9 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.
12.10 Facsimile Copies. For purposes of this Agreement, a signed facsimile copy
shall have the same force and effect as an original signed Agreement.
12.11 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,
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including the first and Second Letters of Intent, regarding such subject
matter. No amendment to or modification of this Agrement shall be binding
unless in writing and signed by duly authorized representative of each
Party.
12.12 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.
12.13 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.
12.14 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.
12.15 Public Announcements. Any announcements or similar publicity with respect
to the execution of this Agreement shall be agreed upon between 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 12.15. 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 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.
12.16 Conflicts. In the event that a conflict arises between this Agreement and
any work order, purchase order, billing statement, or invoice, 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.
12.17 Indemnification. Sequenom shall at all times during the term of this
Agreement and thereafter, indemnify, defend and hold IDT harmless against
all claims and expenses, including legal expenses and reasonable attorneys
fees, arising out of the death of, or injury to, any person or persons, or
out of any damage to property, and against any other claim, proceeding,
demand, expense and liability of any kind whatsoever resulting from the
use, consumption, sale or advertisement of Oligos arising from any right
granted to Sequenom or its Affiliates herein. IDT shall at all times
during the term of this
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Agreement and thereafter, indemnify, defend and hold Sequenom harmless
against all claims and expenses, including legal expenses and reasonable
attorneys fees, arising out of the death of, or injury to, any person or
persons, or out of any damage to property, and against any other claim,
proceeding, demand, expense and liability of any kind whatsoever resulting
from the construction and development of the High -Throughput Synthesis
Facility Housing or the Assigned Systems and/or the production and
manufacture of Oligos, as required under this Agreement. Notwithstanding
the above, IDT and Sequenom at all times reserves the right to retain
counsel of their own to defend IDT's or Sequenom's interest. Sequenom
shall not be liable to IDT, its successors or assignees, or IDT's
Affiliates, for any loss of profits, loss of business, interruption of
business, nor for indirect, special or consequential damages of any kind
under this Agreement. IDT shall not be liable to Sequenom, its successors
or assignees, Sequenom's Affiliates, or Sequenom Accounts, for any loss of
profits, loss of business, interruption of business, nor for indirect,
special or consequential damages of any kind under this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their
duly authorized representatives.
Sequenom, Inc. Integrated DNA Technologies, Inc.
By: By:
Signature: /s/ Delbert F. Foit, Jr. Signature: /s/ Joseph A. Walder
-------------------------- ----------------------
Name: Delbert F. Foit, Jr. Name: Joseph A. Walder
------------------------------ ---------------------------
Title: Chief Operating Officer Title: President and CEO
----------------------------- ---------------------------
Date: 8/24/00 Date: 8/24/00
------------------------------ ---------------------------
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APPENDIX A
OLIGO SPECIFICATIONS AND OTHER CRITERIA
[...***...]
(9) Ordering Criteria.
9.1 Ordering format. Unless alter modified by the Project Managers,
Sequenom will submit orders for oligos by e-mail with an
attached Microsoft Excel(R) Spreadsheet addressed to
orders@idtdna.com.
9.2 Daily ordering "deadline". Sequenom will submit orders to IDT
for Oligos as early in a business day as is commercially
practical, but in no event later than 5pm Central Time. Orders
for oligos received by IDT after 5pm CT will be considered as
received the following Business Day.
A-1
*** Confidential Treatment requested
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9.3 Maximum daily/weekly plate request. The Parties recognize that
IDT will be expanding its production capacity during the
Interim Period (prior to the Platform Validation Date) to
accommodate IDT's growth and the growing needs of Sequenom.
However, unless and until later modified by the Project
Managers, Sequenom agrees to maintain its daily oligo ordering
volume at or below [...***...] a day and its weekly oligo
ordering volume at or below [...***...] per week.
(10) Shipping Criteria. IDT will ship Sequenom's oligo orders according to the
following criteria:
10.1 Oligos will be shipped in sets of three (3) plates, comprising
one (1) plate each of the Untagged Primer, the Tagged Primer,
and Extend Primers, (hereinafter a "Plate Set").
10.2 Plate Sets will be shipped frozen on dry ice.
10.3 IDT will not ship Plate Sets from its facility on Fridays.
(i.e., Plate Sets are not to be shipped such that they arrive
at Sequenom on a Saturday or Sunday and therefore cannot be
immediately received.)
10.4 IDT's product shipments to Sequenom are FOB.
(11) Remakes. Should an oligo not meet the specifications listed in this
Appendix A or as later amended by the Project Managers, such an oligo will
be remade immediately. If the MALDI spectra from the second synthesis
passes the agreed specifications, it will be loaded in its corresponding
plate. If the MALDI spectra from the second synthesis again fails to meet
agreed specifications, but with an identical pattern on the MALDI spectra,
one oligo will be loaded in its corresponding plate, and the spectra for
both oligos will be sent to Sequenom for evaluation. Sequenom will be
invoiced for both oligos.
A-2 *** Confidential Treatment requested
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APPENDIX B
CUSTOMER DEPOSIT INSTALLMENT SCHEDULE
1. "First Installment". Sequenom previously paid IDT [...***...] on or
about June 19, 2000, to be counted toward and allocated to Customer
Deposit.
2. "Second Installment". Five (5) days after signing of Agreement,
Sequenom pays IDT [...***...] to be counted toward and allocated to
Customer Deposit.
3. "Third Installment". Upon completion by IDT of the Accelerated
Synthesizer Assembly and Validation Plan, Sequenom pays IDT
[...***...] to be counted toward and allocated to Customer Deposit.
4. "Fourth Installment". Upon completion by IDT of the Assigned Systems
within the High Throughput Facility Housing and validation confirmed
in writing by Sequenom, Sequenom pays to IDT [...***...] to be counted
toward and allocated to Customer Deposit. IDT shall thereafter
[...***...] to the Customer Deposit.
*** Confidential Treatment Requested
B-1
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CONFIDENTIAL
APPENDIX C
LICENSE AND RESTRICTED USE AGREEMENT
This LICENSE AND RESTRICTED USE AGREEMENT (the "Agreement") is part of the High
Throughput Oligonucleotide Manufacturing and Supply and MassARRAY(TM) Analytical
System Purchase Agreement and is made by and between Sequenom, Inc., a Delaware
corporation headquartered at 11555 Sorrento Valley Road, San Diego, CA USA
("SEQUENOM"), and Integrated DNA Technologies, Inc., having a principal place of
business at 1710 Commercial Park, Coralville, IA 52241 (hereinafter "IDT"), each
a "party" and together, the "parties."
RECITALS
WHEREAS, SEQUENOM has developed SEQUENOM's proprietary MassARRAY(TM) technology
for high-throughput and reliable biopolymer analysis utilizing mass spectrometry
(hereinafter "MassARRAY") with particular utility for the detection and analysis
of genetic variation in applications such as production and quality control for
Oligonucleotide manufacturing;
WHEREAS, IDT is a high volume Oligonucleotide manufacturer;
WHEREAS, IDT desires to purchase and license certain MassARRAY Products from
SEQUENOM to improve IDT's Oligonucleotide production capacity and quality
control by utilizing SEQUENOM's MassARRAY Products in combination with IDT's
Oligonucleotide production process, to serve SEQUENOM and SEQUENOM customer
demand for high quality Oligonucleotides, as set forth in the High Throughput
Manufacturing and Supply and MassARRAYTM Analytical System Purchase Agreement,
and for IDT to serve IDT customer demand, and SEQUENOM desires to grant IDT such
a license according to the terms and conditions herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, IDT and SEQUENOM agree as follows:
ARTICLE 1. DEFINITIONS
1.1 "Affiliate" means 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
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CONFIDENTIAL
things, the direct or indirect ownership of fifty percent (50%) or more of
its outstanding voting stock.
1.2 "Confidential Information" means any information, including, without
limitation, the terms of this Agreement, technical information,
specifications, trade secrets, software, source code, and all supporting
documentation and materials, related to the MassARRAY Products including
the MassARRAY Products themselves. Confidential Information further means
all information, data, and material, labeled or otherwise designated or
identified as Confidential by SEQUENOM or by IDT. All information relating
to, price, quantity, discount, and delivery schedule for SEQUENOM's
MassARRAY Products is hereby designated as SEQUENOM Confidential
Information.
1.3 "Element" shall mean SEQUENOM's SpectroCHIP(TM) technology required for the
MassARRAY Analytical System to produce a mass spectrum from [...***...]
located on the SpectroCHIP. By way of example, each SpectroCHIP contains
three hundred eighty four (384) Positions, [...***...] Elements are used
and consumed under this definition.
1.4 "Intellectual Property" means (i) inventions (whether patentable or
unpatentable and whether or not reduced to practice), all present
improvements thereto and future improvements thereto, and all United
States, and foreign patents, patent applications, patent disclosures, and
patentable inventions, together with all reissuances, continuations,
continuations-in-part, divisionals, revisions, extensions and
reexaminations thereof; (ii) trademarks, trade names, service marks, trade
dress, logos, and corporate names, together with all translations,
adaptations, derivations and combinations thereof whether registered or
arising under the common law, state law or federal law of the United
States, or the laws of other foreign countries, and all interests therein
throughout the world and all associated goodwill therewith, and all
applications, registrations and renewals in connection therewith, all
copyrights and all copyrightable works and interests throughout the world
and all other literary property and author rights whether or not
copyrightable, and all applications, registrations and renewals in
connection therewith; (iii) mask works and all applications, registrations
and renewals in connection therewith; (iv) all trade secrets and trade
secret rights arising under the common law, state law, and federal law of
the United States, and the laws of other foreign countries, and
confidential information (including product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current research and
development, current research methodologies and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans), however documented; (v) proprietary computer software and
programs (including object code and source code) and other proprietary
rights and copies and tangible embodiments thereof (in whatever form or
medium); (vi) database technologies, systems, structures and architectures
(and related processes, formulae, compositions, improvements, devices,
know-how, inventions, discoveries, concepts, ideas, designs, methods and
information) and any other related information, however, documented; (vii)
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CONFIDENTIAL
any and all information concerning the business and affairs of SEQUENOM
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and
plans, the names and backgrounds of key personnel and personnel training
and techniques and materials), however documented; (viii) any and all
notes, analysis, compilations, studies, summaries, and other material
prepared by or for SEQUENOM containing or based, in whole or in part, on
any information included in the foregoing, however documented; (ix) all
industrial designs and any registrations and applications therefore; (x)
all databases and data collections and all rights therein; and (xi) any
similar or equivalent rights to any of the foregoing anywhere in the world.
1.5 "Limited Field of Use" means the use of the MassARRAY Products for MALDI-
TOF facilitated Oligonucleotide quality control analysis and further means
[...***...]
1.6 "MassARRAY Analytical System" refers to the SEQUENOM materials referenced
in Appendix C.1 hereto.
1.7 "MassARRAY SpectroCHIP(TM) Pack" means a package of ten (10) 384-D
SpectroCHIPs, each SpectroCHIP containing three hundred eighty-four
Positions.
1.8 "MassARRAY Products" means the MassARRAY Analytical System, MassARRAY
SpectroCHIP Packs and MassARRAY SpectroCHIPs.
1.9 "Oligonucleotide" means a plurality of nucleotides or nucleotide analogs
forming a nucleotide chain.
1.10 "Territory" means IDT facilities located worldwide.
ARTICLE 2. MASSARRAY PRODUCT
SUPPLY AND ORDERING
2.1 IDT agrees to purchase and license the MassARRAY Analytical System as
defined in Appendix C.1, and MassARRAY SpectroCHIP Packs to IDT, and
SEQUENOM agrees to supply and deliver the MassARRAY Analytical System and
MassARRAY SpectroCHIP Packs to IDT as set forth herein, subject to the
limited license provisions under Article 5, and subject to the other terms
and conditions set forth in this Agreement.
2.2 This Agreement contains the exclusive terms and conditions which apply to
the supply of all MassARRAY Products, notwithstanding any acknowledgment or
other business forms ("forms" meaning and including IDT order forms)
transmitted by SEQUENOM or IDT. All orders for MassARRAY Products must
reference this Agreement and all SEQUENOM and IDT acknowledgments and
transmittals will reference this Agreement and the applicable IDT order
number.
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2.3 IDT will use its best efforts to supply SEQUENOM with a forecast of its
intended orders on a monthly basis.
2.4 This Agreement is not a purchase order. Purchases of MassARRAY Products
hereunder shall be made utilizing IDT's purchase order forms issued by IDT.
2.5 All MassARRAY Product ordering and supply will be administered and executed
by SEQUENOM.
ARTICLE 3. MASSARRAY PURCHASING,
LICENSE FEES AND PAYMENT TERMS
3.1 MassARRAY Analytical System. A one-time purchase price of [...***...] per
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MassARRAY Analytical System (which includes a [...***...] license to
SEQUENOM's proprietary SpectroCHECK(TM) software for the duration of this
Agreement and subject to return under Article 6.3) will be paid by IDT to
SEQUENOM. IDT agrees to purchase two (2) MassARRAY Analytical Systems in
accord with the schedules set forth in Articles 2 (paragraph 2.3) and
Article 3 (paragraph 3.4) of the High Throughput Oligonucleotide
Manufacturing and Supply and MassARRAY(TM) Analytical System Purchase
Agreement. Payment will be made in cash funds and will be due prior to
shipment.
3.2 MassARRAY SpectroCHIP. The purchase price of a MassARRAY SpectroCHIP Pack
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is [...***...] each. This price for the MassARRAY SpectroCHIP Pack is based
upon a license fee of [...***...] per Element. This price is for a
MassARRAY SpectroCHIP Pack with each SpectroCHIP Pack containing ten (10)
384-D SpectroCHIP chips, wherein each chip contains three-hundred eighty
four (384) Positions. Payments for the MassARRAY SpectroCHIP Packs will be
made in cash funds and will be due thirty (30) days from the date of
shipment. All payments under this Agreement will be made to SEQUENOM. Upon
shipment of MassARRAY SpectroCHIP Packs, SEQUENOM will submit an invoice
reflecting an invoice number, date, remit to address, order number,
quantity ordered, unit price, and any applicable tax and shipping and
handling charges. The configuration of the MassARRAY SpectroCHIP Packs
and/or MassARRAY SpectroCHIPs 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 license fees per Element agreed to will not change during the
duration of this Agreement.
3.3 SpectroCHECK(TM) Software. Notwithstanding IDT having satisfied its
-----------------------
purchase price obligation for the MassARRAY Analytical System, title to
SEQUENOM's proprietary SpectroCHECK(TM) software remains with SEQUENOM and
is only included as a licensed component, subject to return to SEQUENOM
upon expiration or termination of this Agreement as set forth under Article
6.3. Further, nothing in this Agreement should be construed as a grant,
title, or transfer of ownership of any Intellectual Property rights to IDT,
such Intellectual Property rights remain in their entirety, held and owned
by SEQUENOM.
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ARTICLE 4. MASSARRAY PRODUCT DELIVERY,
SHIPMENT AND RISK OF LOSS
4.1 Delivery of MassARRAY Products is within one (1) month, subject to
acceptance of the order by SEQUENOM and to product availability.
4.2 SEQUENOM will ship according to SEQUENOM standard commercial practice. All
shipments will be made by SEQUENOM and 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 IDT upon delivery by SEQUENOM to a carrier
designated by IDT or selected by SEQUENOM if IDT does not designate a
carrier. Special packing or shipping instructions requested by IDT must be
agreed to by SEQUENOM in writing, and any charges will be billed to IDT.
ARTICLE 5. LIMITED LICENSE
5.1 By this Agreement, SEQUENOM grants IDT the limited right to use the
MassARRAY Products, in the Territory, without transfer or sublicense
rights, solely for the Limited Field of Use. Any use of the MassARRAY
Products outside this scope is prohibited. IDT shall not use the MassARRAY
Products for the purposes of detecting or discovering polymorphisms or
mutations in biopolymers, (hereinafter a "Prohibited Use"). A Prohibited
Use by IDT shall constitute a material breach of this Agreement. The per
System purchase price of [...***...], the recurring license fees per
Element, and the related terms agreed to under Article 3, are based upon
the parties' mutual understanding of this limited right.
5.2 Conditions to Use of MassARRAY Products: IDT acknowledges that the
MassARRAY Products and the documentation related thereto contains
Confidential Information of SEQUENOM and that all Intellectual Property
rights in or to the MassARRAY Products are solely owned and will remain the
sole property of SEQUENOM. SEQUENOM's proprietary SpectroCHECK(TM) software
(a component of the MassARRAY Analytical System) is a trade secret and the
Confidential Information of SEQUENOM. IDT agrees that any and all use of
the MassARRAY Products by IDT shall be subject to the following conditions
and obligations: IDT shall (1) use its best efforts to protect and keep
confidential any Confidential Information contained in the MassARRAY
Products or otherwise transferred to IDT pursuant to this License And
Restricted Use Agreement; (2) only disclose the Confidential Information to
employees, agents, and consultants who have a need-to-know solely for the
Limited Field Of Use granted by this Agreement, and who have executed
appropriate written agreements with IDT sufficient to enable IDT to comply
with the provisions of this Agreement; and (3) not reverse engineer the
MassARRAY Products or any component thereof to discover SEQUENOM's
Confidential Information. IDT further acknowledges the extreme importance
of the confidentiality of the Confidential Information and agrees in
addition to: (1) use the
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MassARRAY Products only in accordance with the Limited Field of Use granted
by this Agreement, (2) inform its employees, agents and/or consultants of
the importance of preserving the confidentiality of the Confidential
Information, (3) maintain a controlled, secure environment for the storage
and use of the MassARRAY Products.
5.3 With the exception of the right granted under Article 5.1, no other right
or license is granted to IDT either directly, indirectly, by implication,
estoppel, or otherwise by SEQUENOM under this Agreement.
5.4 IDT agrees that each Oligonucleotide which is sold or delivered by IDT (or
by any of IDT's distributors, agents, or representatives) to any of its
customers or to Sequenom customers, which has been quality-controlled using
MassARRAY Products, will be accompanied by a printed or electronic
specification sheet containing a Sequenom logo and a statement indicating
in substance that such Oligo has been quality-controlled using
MassARRAY(TM) technology, such statement and logo use to be in a form and
content mutually agreed upon by the parties. The parties also agree that
the Project Managers (per Article 4.1 of the High Throughput
Oligonucleotide Manufacturing and Supply and MassARRAY(TM) Analytical
System Purchase Agreement) will work together to make the mass spectra
information generated using Sequenom's MassARRAY technology easily
accessible to Sequenom, Sequenom's customers and IDT's customers.
ARTICLE 6. TERMINATION
6.1 This Agreement shall terminate upon termination of the High Throughput
Oligonucleotide Manufacturing and Supply and MassARRAY(TM) Analytical
System Purchase Agreement or 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.
6.2 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 or to deliver Oligonucleotides, in
which case the defaulting party shall have only ten (10) days to cure such
default after receiving written notice of nonpayment or nondelivery. If
such default is not cured within thirty (30) days from receipt of such
notice of default (or ten (10) days in the case of non-payment of money
owed or delivery of oligonucleotides owed), the non-defaulting party may
terminate this Agreement by written notice to the defaulting party. In
accordance with the Limited Field of Use of the MassARRAY Products granted
by this Agreement, if IDT fails to comply with the Limited Field of Use
restrictions provided in this Agreement, SEQUENOM shall consider it to be a
breach of a material obligation by IDT and all warranties, express or
implied, shall be deemed null and void. In the event of a Limited Field of
Use material breach by IDT, SEQUENOM shall have the option of immediately
terminating this Agreement.
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6.3 Articles 3.1, 3.2, 3.3, and 10 shall survive the termination or expiration
of this Agreement. Any and all rights of SEQUENOM to payments of cash funds
accrued through termination or expiration shall remain in effect. SEQUENOM
will have no obligation to continue to license and supply MassARRAY
Products to IDT following termination or expiration. Upon expiration or
termination of this Agreement, IDT shall have the right to use all
MassARRAY SpectroCHIP Packs and all MassARRAY SpectroCHIPs for which IDT
has paid and that are in IDT's possession at the time of termination or
expiration. The license granted IDT pursuant to Article 5 shall continue
until all such MassARRAY SpectroCHIP Packs and SpectroCHIPs, are used, upon
which the license will then terminate. Within thirty (30) days of the
expiration or termination of this Agreement, IDT will return any and all
copies of SEQUENOM's proprietary SpectroCHECK(TM) software (and including
any version of SEQUENOM's software that has been adapted for integration
with IDT's databases and/or software) to SEQUENOM. Upon expiration or
termination of this Agreement, and upon the condition that IDT has
satisfied its purchase price obligation under Article 3.1, IDT will retain
possession of the MassARRAY Analytical System, excepting SEQUENOM's
proprietary SpectroCHECK(TM) software which must be returned to SEQUENOM as
described above. In the case where such purchase price satisfaction
condition has been met by IDT, IDT may use the MassARRAY Analytical System
components (except the SpectroCHECK(TM) software) that it retains
possession of provided that such manner of use does not utilize trade
secrets or infringe any patent or other Intellectual Property rights of
SEQUENOM. Should this Agreement expire or terminate prior to IDT having
satisfied its purchase price obligation under Article 3.1, the MassARRAY
Analytical System will be returned to SEQUENOM pursuant to SEQUENOM's
shipping and handling instructions.
ARTICLE 7. INSTALLATION AND ACCEPTANCE
7.1 Installation of the MassARRAY Analytical System by SEQUENOM at IDT is
included with purchase under Article 3.1. SEQUENOM shall install the
MassARRAY Analytical System in accordance with SEQUENOM's standard
installation practice and SEQUENOM will use commercially reasonable efforts
to schedule and complete installation in a timely fashion. IDT and SEQUENOM
will cooperate with each other to coordinate the installation effort.
7.2 Installation shall be complete, and acceptance by IDT shall occur, when the
MassARRAY Analytical System passes SEQUENOM's standard installation and
test procedures in effect at the time of installation. In the event the
MassARRAY Analytical 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
Analytical System in whole or in part until the System performs as intended
and passes such tests.
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ARTICLE 8. TRAINING
8.1 Included with purchase under Article 3.1, SEQUENOM will train designated
IDT employees in the installation, use, and routine maintenance of the
MassARRAY Analytical System and SpectroCHIPs in accord with SEQUENOM's
standard training program and at a mutually convenient time for the
parties. IDT may request from time to time, due to employee changes,
increased use, or otherwise, additional training as the need arises.
SEQUENOM will provide additional training according to a mutually
convenient schedule and will invoice IDT at a rate to be determined and
mutually agreed upon in advance, depending upon the nature and extent of
the additional training required.
ARTICLE 9. WARRANTY
9.1 SEQUENOM warrants that the MassARRAY Analytical will be free from defects
in materials and workmanship and will conform to SEQUENOM specifications
and perform accordingly, from the time of installation and for a period of
at least one (1) year thereafter, so long as the MassARRAY Analytical
System remains unchanged and in the original condition supplied by
SEQUENOM. SEQUENOM warrants that the MassARRAY SpectroCHIPs will be free
from defects in materials and workmanship and will conform to SEQUENOM
specifications and perform accordingly, for a period of at least two (2)
months from the date of shipment, so long as the MassARRAY SpectroCHIPs 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
Products. This warranty does not apply to defects resulting from improper
or inadequate maintenance or calibration by IDT; 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 specifications for
the MassARRAY Products or by personnel not authorized by SEQUENOM; or
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 operator manuals; (3) moving (by other than SEQUENOM
authorized personnel) the MassARRAY Analytical System from its installed
location; (4) exposure of the MassARRAY Analytical System to Bio-Safety
Level 3 or 4 (as defined by the United States Occupational Health and
Safety Administration) agents; or (5) exposure to radioactivity.
9.2 SEQUENOM's sole obligation and liability for any breach of this warranty
shall be at SEQUENOM's sole discretion and option: (1) to replace the
MassARRAY Products, in whole or in part, provided that IDT notifies
SEQUENOM of the defects, SEQUENOM directs IDT to return the defective
Products to SEQUENOM and IDT returns the Products as directed, at
SEQUENOM's expense; or (2) to repair (and recalibrate as
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necessitated by repair) the MassARRAY Products in whole or in part; or (3)
to refund the applicable license fee paid for the defective Products, in
whole or in part. MassARRAY Products may not be returned to SEQUENOM under
any circumstances without SEQUENOM's prior authorization. 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.
9.3 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
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 10. CONFIDENTIALITY
10.1 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.
a) Except as expressly provided herein, SEQUENOM and IDT, their
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).
b) For purposes of this section, information will not be considered to be
Confidential Information if the information:
(i) was lawfully in either 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 is 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 required to
make disclosure shall use its best efforts to secure
confidential treatment of any such information required to be
disclosed.
ARTICLE 11. INDEMNIFICATION
11.1 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 IDT's use of the MassARRAY Products in accord with
the product information, notices, and instructions for use provided
therewith, SEQUENOM shall, at SEQUENOM's sole option and discretion, do one
of the following:
a) Procure for IDT the right to continue such use; or
b) Provide a substitute, non-infringing product which provides
substantially the same results; or
c) Defend the accusation, claim or lawsuit and indemnify IDT for any
damages which may be awarded; provided that IDT (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 ex-press
written permission of SEQUENOM. Nothing in this provision shall be
construed to prevent IDT from participating in
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(but not controlling) the defense of any such action, with its counsel
and at its own expense.
ARTICLE 12. NOTICES
12.1 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 IDT: If to Sequenom:
Legal Department Sequenom, Inc.
Attn: Urgent Corporate Counsel
Integrated DNA Technologies, Inc. 11555 Sorrento Valley Road
1710 Commercial Park San Diego, CA 92121
Coralville, Iowa 52241 Telephone: (858) 350-0345
Facsimile: (858) 350-0620
(with additional fax):
Fax: Attn: Legal -URGENT with a copy to:
(319) 626-8444
and (847) 470-8223 Sequenom, Inc.
Chief Operating Officer
with a copy to: 11555 Sorrento Valley Road
San Diego, CA 92121
Dr. Joseph A. Walder Telephone: (858) 350-0345
Chief Executive Officer Facsimile: (858) 350-0344
Integrated DNA Technologies, Inc.
1710 Commercial Park
Coralville, Iowa 52241
ARTICLE 13. GENERAL
13.1 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, 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
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performance or cure under this Paragraph 13.1 shall be extended for a period
equal to the duration of the cause.
13.2 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, or joint ventures of the other. Neither party
will represent anything to the contrary, either expressly, implicitly, by
appearance or otherwise.
13.3 Assignment
The parties may not assign this Agreement in whole or in part without the
written consent of the other, except upon the transfer or sale of all, or
substantially all, of the assets of a Party that pertain to the subject matter
of this Agreement, in which case consent is not required.
13.4 Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of
California, U.S.A., notwithstanding its conflicts of law rules. Any litigation
between the Parties relating to this Agreement shall take place in San Diego
County, California and the Parties consent to the personal jurisdiction of and
venue in the state and federal courts within San Diego County, California.
13.5 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 remaining provisions shall continue in full
force and effect.
13.6 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.
13.7 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.
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13.8 Complete Agreement
This Agreement, including all Appendices, constitutes the entire agreement
between the parties with respect to the subject matter hereof. No amendment to
or modification of this Agreement shall be binding unless in writing and signed
by a duly authorized representative of both parties.
13.9 Third Party Beneficiaries
No third party beneficiary rights are conferred or are intended to be conferred
by this Agreement.
13.10 Headings
Headings in this Agreement are for convenience only, and shall not be used to
and shall not effect the meaning or interpretation of this Agreement.
13.11 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.
13.12 Public Announcements
Any announcements or similar publicity with respect to the execution of, or
performance under, this Agreement shall be agreed upon among the parties in
advance of such announcement. All 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. The parties agree that any such announcement will not contain
Confidential Information and, if disclosure of Confidential 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. Except under extraordinary circumstances, each party shall provide the
other with an advance copy of any press release at least five (5) 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.
13.13 Conflicts
In the event that a conflict arises between this Agreement and any order, work
order, billing statement, or invoice related to the MassARRAY 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.
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<PAGE>
ARTICLE 14. MOST-FAVORED LICENSEE
14.1 Most Favored Licensee
If SEQUENOM hereafter grants to a third-party an equivalent or substantially
similar license as granted to IDT in Article 5 herein, but that includes terms
more favorable to the third-party as compared to the terms of the license to
IDT, SEQUENOM shall immediately notify IDT in writing of the grant of such
license, and IDT shall have the right to become subject to the more favorable
terms, going forward. The Parties thereafter agree to formally amend this
Agreement to reflect the adoption of the more favorable terms.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
Integrated DNA Technologies, Inc. SEQUENOM, Inc.
By: /s/ Joseph A. Walder By: /s/ Delbert F. Foit, Jr.
---------------------------- -------------------------------
Print Name: Joseph A. Walder Print Name: Delbert F. Foit, Jr.
-------------------- ------------------------
Title: President and CEO Title: Chief Operating Officer
------------------------- ----------------------------
Date: 8/24/00 Date: 8/24/00
-------------------------- ----------------------------
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<PAGE>
APPENDIX C.1
MassARRAY(TM) Analytical 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 (4im/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
SpectroJET(TM) dispenser for nanoliter sample transfer, equipped with:
. SPIP Micropump with 800 nl chamber volume
. droplet volume range of 0.5-2 nl
. CV*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
SpectroCHECK(TM) Workstation
. PC
. SpectroCHECK(TM) software (for data management and interpretation)
* denotes less than
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<PAGE>
APPENDIX D
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), is made by and between IDT
("Pledgor"), and SEQUENOM, INC., ("Secured Party").
Pledgor and Secured Party hereby agree as follows:
SECTION 1 Definitions.
--------- -----------
(a) All capitalized terms used in this Agreement without definition
shall have the meanings ascribed to them in that certain High Throughput
Oligonucleotide Manufacturing and Supply and MassARRAY(TM) Analytical System
Purchase Agreement, dated and executed of even date herewith, by and between
Pledgor and Secured Party (the "Supply Agreement").
(b) As used in this Agreement, the following terms shall have the
following meanings:
"Documents" means this Agreement, the Supply Agreement, and all other
---------
appendices, and schedules delivered to Secured Party under the Supply Agreement
or in connection with the Obligations.
"Event of Default" has the meaning set forth in Section 6.
----------------
"Lien" means any mortgage, deed of trust, pledge, security interest,
----
assignment, deposit arrangement, charge or encumbrance, lien, or other type of
preferential arrangement.
"Obligations" means the liabilities and obligations of Pledgor to
-----------
Secured Party, created under, arising out of or in connection with the Supply
Agreement and Documents, and whether due or to become due, absolute or
contingent, liquidated or unliquidated, determined or undetermined.
"Pledged Collateral" has the meaning set forth in Section 2(a).
------------------
"UCC" means the Uniform Commercial Code as the same may, from time to
---
time, be in effect in the State of California; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the security interest in any Pledged Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of California, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
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(c) Where applicable and except as otherwise defined herein, terms
used in this Agreement shall have the meanings assigned to them in the UCC.
(d) In this Agreement, (i) the meaning of defined terms shall be
equally applicable to both the singular and plural forms of the terms defined;
and (ii) the captions and headings are for convenience of reference only and
shall not affect the construction of this Agreement.
SECTION 2 Security Interest.
--------- -----------------
(a) As security for the performance of the Obligations, Pledgor
hereby pledges, assigns, transfers, hypothecates and sets over to Secured Party,
and hereby grants to Secured Party a security interest in, all of Pledgor's
right, title and interest in, to and under the assets described in Schedule 1
hereto (collectively, the "Pledged Collateral").
(b) Pledgor shall execute and deliver to Secured Party concurrently
with the execution of this Agreement, and at any time and from time to time
thereafter, all financing statements, assignments, continuation financing
statements, termination statements, and other documents and instruments, in form
reasonably satisfactory to Secured Party, and take all other action, as Secured
Party may reasonably request, to effect a transfer of a perfected first priority
security interest in and pledge of the Pledged Collateral to Secured Party
pursuant to the UCC and to continue perfected, maintain the priority of, or
provide notice of the security interest of Secured Party in the Pledged
Collateral and to accomplish the purposes of this Agreement.
(c) Pledgor agrees that this Agreement shall create a continuing
security interest in and pledge of the Pledged Collateral which shall remain in
effect until terminated in accordance with Section 17.
SECTION 3 Covenants. So long as any of the Obligations remain
--------- ---------
unsatisfied, Pledgor agrees that:
(a) Pledgor will, at its own expense, appear in and defend any
action, suit or proceeding which purports to affect its title to, or right or
interest in, the Pledged Collateral or the security interest of Secured Party
therein and the pledge to Secured Party thereof.
(b) Pledgor shall give prompt written notice to Secured Party (and in
any event not later than thirty (30) days following any change described below
in this subsection) of: (i) any change in the location of Pledgor's chief
executive office or principal place of business, (ii) any change in the location
of books and records pertaining to Pledged Collateral; (iii) any change in its
name, (iv) any changes in, additions to or other modifications of its trade
names and trade styles, and (v) any changes in its identity or structure in any
manner which might make any financing statement filed hereunder incorrect or
misleading.
(c) Pledgor will not surrender or lose possession of (other than to
Secured Party or, with the prior consent of Secured Party, to a depositary or
financial intermediary), exchange,
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<PAGE>
sell, convey, transfer, assign or otherwise dispose of or transfer the Pledged
Collateral or any right, title or interest therein.
(d) Pledgor will not create, incur or permit to exist any Liens upon
or with respect to the Pledged Collateral, other than the security interest of
and pledge to Secured Party created by this Agreement.
(e) Pledgor shall maintain and preserve its corporate existence, its
rights to transact business and all other rights, franchises and privileges
necessary or desirable in the normal course of its business and operations and
the ownership of the Pledged Collateral, except in connection with any
transactions expressly permitted by the Supply Agreement.
SECTION 4 Administration of the Pledged Collateral.
--------- ----------------------------------------
(a) Upon and after the occurrence of any Event of Default: (i)
Secured Party shall be entitled to receive the Pledged Collateral; (ii) Secured
Party shall have the right following prior written notice to Pledgor to take any
action with respect to the Pledged Collateral and exercise all rights of
conversion, exchange, subscription or any other rights, privileges or options
pertaining to the Pledged Collateral as if Secured Party were the absolute owner
thereof; and (iii) Secured Party shall have the right, for and in the name,
place and stead of Pledgor, to execute endorsements, assignments or other
instruments of conveyance or transfer with respect to all or any of the Pledged
Collateral, to file any claims, take any action or institute, defend, settle or
adjust any actions, suits or proceedings with respect to the Pledged Collateral,
execute any and all such other documents and instruments, and do any and all
such acts and things, as Secured Party may deem necessary or desirable to
protect, collect, realize upon and preserve the Pledged Collateral, to enforce
Secured Party's rights with respect to the Pledged Collateral and to accomplish
the purposes of this Agreement.
(b) For the purpose of enabling Secured Party to exercise its rights
under this Section 4 or otherwise in connection with this Agreement, Pledgor
hereby (i) constitutes and appoints Secured Party (and any of Secured Party's
officers, employees or agents designated by Secured Party) its true and lawful
attorney-in-fact, with full power and authority to execute any notice,
assignment, endorsement or other instrument or document, and to do any and all
acts and things for and on behalf of Pledgor, which Secured Party may deem
necessary or desirable to protect, collect, realize upon and preserve the
Pledged Collateral, to enforce Secured Party's rights with respect to the
Pledged Collateral and to accomplish the purposes hereof. This appointment is
coupled with an irrevocable interest so long as the Obligations have not been
performed in full. Pledgor hereby ratifies, to the extent permitted by law, all
that Secured Party shall lawfully and in good faith do or cause to be done by
virtue of and in compliance with this Section 4.
SECTION 5 Secured Party's Duties. Notwithstanding any provision
--------- ----------------------
contained in this Agreement, Secured Party shall have no duty to exercise any of
the rights, privileges or powers afforded to it and shall not be responsible to
Pledgor or any other person for any failure to do so or delay in doing so.
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<PAGE>
SECTION 6 Events of Default. Any of the following events which shall
--------- -----------------
occur and be continuing shall constitute an "Event of Default":
(a) The failure of Pledgor to perform its material Obligations under
the Supply Agreement, time being of the essence of all Obligations of Pledgor to
Secured Party;
(b) Pledgor makes a general assignment for the benefit of creditors,
generally fails to pay its debts as they come due, or becomes insolvent;
(c) Pledgor or any of its subsidiaries shall become a debtor in a
case under Chapter 11 of the United States Bankruptcy Code, or shall otherwise
become the subject of any case, proceeding or process designed for the
protection of debtors or borrowers.
(d) Pledgor shall voluntarily or involuntarily transfer or assign any
interest in the Pledged Collateral to any person or entity, including (without
limitation) by granting a security interest therein, or by suffering to exist
any judgment lien thereon;
(e) Any impairment in the priority of Secured Party's Lien hereunder
shall occur; or
(f) Any levy upon, seizure or attachment of any of the Pledged
Collateral shall be threatened or shall occur.
SECTION 7 Remedies.
--------- --------
(a) Upon the occurrence and during the continuance of any Event of
Default, Secured Party may declare any of the Obligations to be immediately due
and shall have, in addition to all other rights and remedies granted to it in
this Agreement or the Supply Agreement, all rights and remedies of a secured
party under the UCC and other applicable laws.
SECTION 8 Certain Waivers. Pledgor waives, to the fullest extent
--------- ---------------
permitted by law, (i) any right of redemption with respect to the Pledged
Collateral; and (ii) any right to require Secured Party (A) to proceed against
any person, (B) to exhaust any other collateral or security for any of the
Obligations, (C) to pursue any remedy in Secured Party's power, or (D) to make
or give any presentments, demands for performance, notices of nonperformance,
protests, notices of protests or notices of dishonor in connection with any of
the Pledged Collateral; and (iii) all claims, damages, and demands against
Secured Party arising out of the repossession, retention, or other disposition
of the Pledged Collateral by Secured Party.
SECTION 9 Notices. All notices or other communications hereunder shall be
--------- -------
in writing (including by facsimile transmission) and mailed, sent or delivered
to the respective parties hereto at or to their respective addresses or
facsimile numbers specified for notices under the Supply Agreement, or at or to
such other address or facsimile number as shall be designated by any party in a
written notice to the other parties hereto. All such notices and other
communications shall be effective (i) if delivered by hand, when delivered; (ii)
if sent by mail, upon the earlier of the date of receipt or five business days
after deposit in the mail, first class (or
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<PAGE>
air mail, with respect to communications to be sent to or from the United
States); and (iii) if sent by facsimile transmission, when sent.
SECTION 10 No Waiver; Cumulative Remedies. No failure on the part of
---------- ------------------------------
Secured Party to exercise, and no delay in exercising, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to Secured Party.
SECTION 11 Costs and Expenses. Pledgor agrees to pay on demand all costs
---------- ------------------
and expenses of Secured Party, including the reasonable fees and disbursements
of counsel to Secured Party, in connection with the enforcement or attempted
enforcement of, and preservation of any rights or interests under this
Agreement, including in any out-of-court workout or other refinancing or
restructuring or in any bankruptcy case, and the protection, sale or collection
of, or other realization upon, any of the Pledged Collateral.
SECTION 12 Binding Effect. This Agreement shall be binding upon, inure
---------- ----------------
to the benefit of and be enforceable by Pledgor, Secured Party and their
respective successors and assigns.
SECTION 13 Governing Law. This Agreement shall be governed by, and
---------- -------------
construed in accordance with, the law of the State of California.
SECTION 14 Entire Agreement. This Agreement (and all exhibits and
---------- ----------------
schedules attached hereto), the Supply Agreement (and all representations and
warranties contained therein and appendices and exhibits attached thereto), and
all other documents delivered in connection herewith supercede all prior
discussions and agreements among the parties with respect to the subject matter
hereof and thereof and contains the sole and entire agreement among the parties
hereto with respect thereto.
SECTION 15 Severability. Whenever possible, each provision of this
---------- ------------
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 16 Counterparts. This Agreement may be executed in any number of
---------- ------------
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
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<PAGE>
SECTION 17 Termination. Upon performance in full of all Obligations,
---------- -----------
this Agreement shall terminate and Secured Party shall promptly execute and
deliver to Pledgor such documents and instruments reasonably requested by
Pledgor as shall be necessary to evidence termination of all security interests
given by Pledgor to Secured Party hereunder.
SECTION 18 Conflicts. In the event of any conflict or inconsistency
---------- ---------
between this Agreement and the Supply Agreement, the terms of this Agreement
shall control.
IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
Agreement, as of the date first above written.
Sequenom, Inc. Integrated DNA Technologies, Inc
By: By:
Signature: /s/ Delbert F. Foit, Jr. Signature: /s/ Joseph A. Walder
--------------------------- -------------------------
Name: Delbert F. Foit, Jr Name: Joseph A. Walder
-------------------------------- ------------------------------
Title: Chief Operating Officer Title: President and CEO
------------------------------- -----------------------------
Date: 8/24/00 Date: 8/24/00
------------------------------- ------------------------------
D-6
<PAGE>
SCHEDULE 1
to the Pledge Agreement
PLEDGED COLLATERAL
"Pledged Collateral" means the following assets, in each case whether presently
existing or owned or hereafter arising or acquired and wherever located:
(a) a first MassARRAY(TM) Analytical System as referred to under Article
2.3 and Appendix C of the Supply Agreement;
(b) a second MassARRAY(TM) Analytical System as referred to under Article
3.4 and Appendix C of the Supply Agreement;
S-1