EXHIBIT 10.36
CELERA GENOMICS/APPLIED
BIOSYSTEMS
MARKETING
AND
DISTRIBUTION
AGREEMENT
EFFECTIVE AS OF APRIL 1,
2002
AMENDED AND RESTATED AS OF
JUNE 22, 2004
Back to
Contents
AMENDED AND RESTATED
MARKETING AND DISTRIBUTION AGREEMENT
AMENDED
AND RESTATED MARKETING AND DISTRIBUTION AGREEMENT (this
“Agreement”), dated as of June 22, 2004, by and among
Applera Corporation (“Applera”), the Applied Biosystems
Group of Applera (“AB”), and the Celera Genomics Group
of Applera (“Celera”).
WHEREAS,
the parties hereto entered into a Marketing and Distribution
Agreement (the “Original Agreement”) dated as of
February 27, 2003, and effective as of the 1 st day of
April, 2002 (the “Effective Date”), relating to the
business that had been developed by Celera based on the generation
and sale of human genomic and other biological and medical
information (the “Online/Information Business,” which
term does not include Celera’s proteomics efforts or
facilities); and
WHEREAS,
since the parties entered into the Original Agreement, AB has
consummated organizational changes that have resulted in, among
other things, the elimination of its Knowledge Business (as defined
in the Original Agreement); and
WHEREAS,
the parties desire to amend and restate the Original Agreement as
set forth herein to reflect the aforementioned organizational
changes within AB, and in particular to ensure that those
organizational changes do not alter in any material respect the
substantive terms and conditions of the transaction intended by the
Original Agreement; and
WHEREAS,
the changes proposed by the parties and reflected herein have been
approved by the Inter-Group Policy Committee (as defined herein) as
required by the Original Agreement.
NOW,
THEREFORE, the parties hereto agree to the Terms and Conditions
described in Annex A attached hereto, with the changes to
the Original Agreement reflected in such annex being effective as
of the date hereof.
Back to
Contents
IN
WITNESS WHEREOF, the parties agree to the foregoing as of the date
written above.
|
|
APPLERA CORPORATION
|
|
|
|
|
|
|
By:
|
/s/ Tony L.
White
Name: Tony L.
White
Title: Chairman,
President and
Chief Executive
Officer
|
|
|
|
|
|
|
APPLIED BIOSYSTEMS GROUP
OF
APPLERA CORPORATION
|
|
|
|
|
|
|
By:
|
/s/ Catherine M.
Burzik
Name: Catherine M.
Burzik
Title:
President
|
|
|
|
|
|
|
CELERA GENOMICS GROUP OF
APPLERA CORPORATION
|
|
|
|
|
|
|
By:
|
/s/ Kathy
Ordoñez
Name: Kathy
Ordoñez
Title:
President
|
- 2 -
Back to
Contents
TERMS AND CONDITIONS OF
MARKETING AND DISTRIBUTION AGREEMENT
|
|
1.1
|
Knowledge Products
. AB is developing
new products comprising genomic and biological content, assays,
reagents for use in combination with oligonucleotide arrays,
services, experimental protocols, algorithms, and software
(collectively, “Knowledge Products”). As part of this
new class of products, AB has begun to develop and implement a
portal for the integration, delivery, and presentation of
biological information and products to enable scientific discovery
by life sciences customers (the “Portal”). The Portal
incorporates Celera’s existing Celera Discovery System
(“CDS”) infrastructure.
|
|
|
|
|
|
|
1.2
|
Products
. This Agreement
covers AB’s development, marketing, and distribution of the
following products (“Covered Products”):
|
|
|
|
|
|
|
|
|
(a)
|
CDS and the datasets of
Celera’s Online/Information Business, in all formats, and
including all analysis tools, software, and related information
provided to former or current customers of the Online/Information
Business, including any future versions or updates to such that are
required by Committed Contracts, as that term is defined in Section
3.1 below (“Existing Information Products”);
|
|
|
|
|
|
|
|
|
(b)
|
Probes, primer sets, or
oligonucleotide arrays, each that are designed with reference to
information included within the Online/Information Business, and
new Portal subscription business marketed by AB (“Related
Products”) (for the avoidance of doubt, Portal subscriptions
which do not constitute Committed Contracts under Section 3.1 or
3.2, and which are not renewals or modifications of Committed
Contracts under Section 3.3, shall constitute new Portal
subscription business); and
|
|
|
|
|
|
|
|
|
(c)
|
Other Knowledge Products
developed at AB’s expense after the Effective Date
(“Future Products”).
|
|
|
|
|
|
|
|
|
|
|
(1)
|
AB and Celera shall
collaborate with respect to the development of Future Products;
and
|
Annex A-1
Back to
Contents
|
|
|
|
(2)
|
AB and Celera shall agree on
the budget for new research and development initiatives, and unless
otherwise agreed, the costs shall be borne by AB.
|
|
|
|
|
|
|
1.3
|
AB’s Access to Celera
IP .
Subject to Section 6 below, AB shall have unrestricted and
exclusive access to and use of the intellectual property associated
with Existing Information Products for the development and
marketing of Knowledge Products, provided that such access shall be
on an “as is” basis with no recourse to
Celera.
|
|
|
|
|
|
|
1.4
|
Ownership of Existing
Online/Information Business Assets . Celera shall retain
ownership of the assets, including intellectual property, relating
to Existing Information Products.
|
|
|
|
|
|
|
1.5
|
Ownership of
Improvements . Improvements to Existing
Information Products shall be owned by the party funding such
improvements, provided that at the end of the Term of this
Agreement Celera shall have the right to purchase any such
improvements owned by AB at fair value as determined by the Board
of Directors of Applera (the “Applera Board”). Celera
shall have 6 months following the end of the Term to exercise such
right.
|
|
|
|
|
|
|
1.6
|
Competition
. Consistent with
Applera’s tracking stock principles, neither AB nor Celera
shall engage in each other’s principal business except to the
extent provided herein.
|
|
|
|
|
2.
|
Conduct and Relationship of
the Parties .
|
|
|
|
|
|
|
2.1
|
Cooperation between AB and
Celera . The parties believe that
the successful implementation of this Agreement will require close
cooperation between AB and Celera. In particular, the parties
expect that the relationship established by this Agreement will
benefit from the application of both AB’s and Celera’s
respective resources and expertise relating to Knowledge Products.
However, the parties also acknowledge that Celera nonetheless must
continue to have sufficient resources dedicated to the performance
of its obligations under this Agreement, including particularly its
obligations in respect of Committed Contracts (as defined below).
Therefore, AB and Celera shall cooperate and use reasonable
commercial efforts to ensure that their resources and expertise are
applied in a manner that effectively achieves the purposes of this
Agreement without interfering with the respective businesses of AB
and Celera and their other obligations under this Agreement (the
“Cooperation Guidelines”).
|
Annex A-2
Back to
Contents
|
|
2.2
|
Online/Information Business
Personnel . The parties believe that the
development of Knowledge Products will benefit from the unique
expertise that certain Celera personnel have developed from their
involvement with the Online/Information Business. Accordingly, the
parties anticipate that the cooperation referred to in Section 2.1
will involve, among other things, the dedication of some or all of
the time of various Online/Information Business personnel to
Knowledge Products. The cost of such personnel shall be paid by AB
as contemplated by Section 4.2. In performing services for
Knowledge Products, the Online/Information Business personnel may
report to, and be subject to the supervision of, AB personnel
responsible for Knowledge Products. However, such
Online/Information Business Personnel and services shall at all
times remain subject to the Cooperation Guidelines.
|
|
|
|
|
|
|
2.3
|
Operating
Procedures . The parties acknowledge and
agree that it may be appropriate from time to time to establish
specific operating procedures with respect to the allocation of
resources contemplated by Section 2.1 and the activities of the
Online/Information Business personnel contemplated by Section 2.2.
Accordingly, the Inter-Group Policy Committee (as defined in
Section 8), working with AB and Celera, shall periodically (and
upon request of a party) evaluate the need for, and if applicable
adopt (and amend as necessary), operating procedures for the
relationship established by this Agreement consistent with its
terms (including specifically the Cooperation
Guidelines).
|
|
