COLLABORATION AGREEMENT

Collaboration Agreement

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ILLUMINA INC

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Title: COLLABORATION AGREEMENT
Governing Law: California Date: 3/8/2005
Industry: Scientific and Technical Instr. Sector: Technology

COLLABORATION AGREEMENT, Parties: illumina inc

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CONFIDENTIAL EXHIBIT 10.28

[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED

SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN

REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

COLLABORATION AGREEMENT

This COLLABORATION AGREEMENT (this "Agreement") is made effective as of

the 17th day of December, 2004 (the "Effective Date") by and among ILLUMINA,

INC., a Delaware corporation having its principal place of business at 9885

Towne Centre Drive, San Diego, California, 92121 ("Illumina"), and INVITROGEN

CORPORATION, a Delaware corporation having its principal place of business at

1600 Faraday Avenue, Carlsbad, California, 92008 ("Invitrogen"). Illumina and

Invitrogen are sometimes referred to herein individually as a "Party" and,

collectively, as the "Parties."

RECITALS

The Parties separately possess intellectual property and have developed

instrumentation, technology and standard operating procedures for the

development, manufacturing and commercialization of oligonucleotides.

The Parties desire to enter into an exclusive collaboration, pursuant and

subject to the terms of this Agreement, whereby (a) Invitrogen markets, sells

and supports certain oligonucleotides ("Oligos") in tubes and plates to

customers throughout the world, (b) Illumina contributes certain oligonucleotide

synthesis technology, (c) Invitrogen manufactures certain Oligos that are to be

sold to customers throughout the world, excluding North America, and (d)

Illumina manufactures certain Oligos that are to be sold to customers in North

America and certain Oligos that are to be sold to customers throughout the

world.

NOW, THEREFORE, in consideration of the premises, covenants and agreements

set forth herein, and for other good and valuable consideration, the mutual

receipt and sufficiency of which are hereby acknowledged, and intending to be

legally bound hereby, the Parties hereby agree as follows:

1. Definitions.

As used in this Agreement, the following terms, whether used in the

singular or plural, shall have the following meanings:

"AAA" shall have the meaning set forth in Section 12.1.

"Affiliate" shall mean any corporation or other business entity (a) in

which a Party owns or controls, directly or indirectly, at least fifty percent

(50%) of the outstanding stock or other voting rights entitled to elect

directors, or (b) which owns or controls, directly or indirectly, at least fifty

percent (50%) of the outstanding stock or other voting rights entitled to elect

directors, of a Party, or (c) which is under common control with a Party,

through ownership or control of at least fifty percent (50%) of the outstanding

stock or other voting rights entitled to elect directors; provided, however, in

any country where the local law does not permit foreign equity participation of

at least fifty percent (50%), then an "Affiliate" includes any company in which

the Party owns or controls or is owned or controlled by, directly or indirectly,

the maximum percentage of outstanding stock or voting rights permitted by local

law.

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"Agreement" shall have the meaning set forth in the preamble.

"Bankruptcy Code" shall have the meaning set forth in Section 6.5.

"Big Bird" shall mean the fourth generation synthesis technology currently

in design and development by Illumina for the synthesis of Oligos. Illumina

anticipates that this platform will be capable of synthesizing an estimated [*]

at an estimated starting synthesis scale range of [*].

"Big Bird Milestone Payment" shall have the meaning set forth in Section

7.2.

"Build-out Dates" shall mean each of the dates on which Illumina completes

the build-out stages of the collaboration's manufacturing capacity as described

in clauses (a) through (b) of Section 3.1, and Invitrogen completes the

build-out stages of the collaboration's manufacturing capacity as described in

clause (c) of Section 3.1.

"Budget" shall mean the annual region-by-region pro forma income and

related statements for the Collaboration, covering, among other things, costs

and expenses for capital and facility investments, New R&D Projects and

Marketing Programs.

"Collaboration" shall mean the collaboration between the Parties hereunder

to jointly develop, manufacture, sell and market, and provide customers with

support services for Joint Products throughout the world upon the terms and

conditions set forth in this Agreement.

"Collaboration Committee" shall have the meaning set forth in Section 2.1.

"Collaboration Funding" shall have the meaning set forth in Section 7.1.

"Collaboration Profits" shall have the meaning set forth in Section 7.7.

"Commercially Reasonable Efforts" shall mean, with respect to the efforts

to be expended by a Party with respect to any objective, reasonable, diligent,

good faith efforts to accomplish such objective as such Party would normally use

to accomplish a similar objective under similar circumstances.

"Committee Facility Improvements" shall have the meaning set forth in

Section 7.3.

"Confidential Information" shall mean all Know-How or other information,

including, without limitation, proprietary information and materials (whether or

not patentable) regarding a Party's technology, products, business information

or objectives, that is designated as confidential by the disclosing Party or is

treated as confidential by the disclosing Party in the regular course of

business. Notwithstanding any failure to expressly designate it as such, all

Know-How related to Big Bird, the VB Oligator(R) and all Oligator(R) Technology

shall be the Confidential Information of Illumina.

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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO

THE OMITTED PORTIONS.

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CONFIDENTIAL

"Controlled" shall mean, with respect to any Intellectual Property Right,

the possession (whether by license (other than a license granted pursuant to

this Agreement) or ownership, or by control over an Affiliate having possession

by license or ownership) by a Party, of the ability to grant to the other Party

access, a license or sublicense without violating the terms of any agreement

with any third party.

"Cost of Goods" shall have the meaning set forth in Section 7.7.

"Direct Marketing Budget" shall have the meaning set forth in Section 7.4.

"Direct Marketing Expenses" shall have the meaning set forth in Section

7.7.

"Effective Date" shall have the meaning set forth in the preamble to this

Agreement.

"Foreign G&A" shall have the meaning set forth in Section 7.7.

"Future Joint Products" shall mean any composition or product which

becomes a Joint Product after the Effective Date by approval by the

Collaboration Committee.

"GAAP". GAAP shall mean generally accepted accounting principles in the

United States.

"Illumina" shall have the meaning set forth in the preamble to this

Agreement.

"Illumina Facility Improvements" shall mean any and all capital purchases

by Illumina acquired with or produced using the Collaboration Funding and/or the

Big Bird Milestone Payment.

"Illumina Manufacturing Facility" shall mean Illumina's manufacturing

facility currently located in San Diego, California, or any successor facility

or facilities.

"Illumina Manufacturing Territory" shall mean all of North America.

"Illumina Marks" shall have the meaning set forth in Section 6.2(d).

"Illumina Patents" shall have the meaning set forth in Section 6.2(a)

"Independent Accountants" shall have the meaning set forth in Section 8.3.

"Industry Communications" shall mean industry communications and Joint

Product press releases, Joint Product branding, commercial trade show

positioning and presence, scientific publications and joint product related

literature.

"Intellectual Property" shall mean all patents, patent applications, trade

secrets (including proprietary processes, inventions, formulae and ideas),

Know-How, copyrights and other intellectual property and proprietary rights

protectable under the laws of any jurisdiction, together with all rights under

applications therefor and registrations thereof.

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CONFIDENTIAL

"Invitrogen" shall have the meaning set forth in the preamble to this

Agreement.

"Invitrogen Facility Improvements" shall have the meaning set forth in

Section 7.3.

"Invitrogen Patents" shall have the meaning set forth in Section 6.1(a)

"Invitrogen Manufacturing Facility(ies)" shall mean Invitrogen

Manufacturing Facility (Japan) and Invitrogen Manufacturing Facility (Scotland),

or any successor facility or facilities.

"Invitrogen Manufacturing Facility (Japan)" shall mean Invitrogen's

manufacturing facility currently located in Japan, or any successor facility or

facilities.

"Invitrogen Manufacturing Facility (Scotland)" shall mean Invitrogen's

manufacturing facility currently located in Scotland, or any successor facility

or facilities.

"Invitrogen Manufacturing Territory" shall mean all countries of the

world, excluding North America.

"Invitrogen Marks" shall have the meaning set forth in Section 6.1(d).

"Joint Intellectual Property" shall have the meaning set forth in Section

6.4.

"Joint Products" shall mean those products described in Exhibit A and

those Future Joint Products added to the Collaboration by the Collaboration

Committee. For clarity, Joint Products shall not include (a) Oligos made by

Illumina for use with Illumina's arrays or Kits, or (b) Oligos made by

Invitrogen for use with Invitrogen's arrays or Kits.

"Joint Products Sales Force" shall have the meaning set forth in Section

4.3.

"Know-How" shall mean any information or materials, whether or not

patentable and whether stored or transmitted in oral, documentary, electronic or

other form, Controlled by a Party during the Term that is necessary or useful

for the development, manufacture or commercialization of Oligos. Know-How may

include, without limitation, ideas, concepts, formulas, methods, procedures,

designs, plans, documents, data, inventions, discoveries, developments,

e-commerce tools, works of authorship, standard operating procedures, quality

control testing procedures, customer service software and any information

relating to research and development plans, experiments, results, trade secrets

and technical, manufacturing, marketing, financial, regulatory, commercial,

personnel and other business information and plans, and any scientific,

clinical, regulatory, marketing, financial and commercial information or data;

in each case, to the extent necessary or useful for the development, manufacture

or commercialization of Oligos.

"Kit" means a catalog product that consists of both (a) one or more Oligo

components that, if sold as stand-alone items, would constitute Joint Products,

and

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(b) one or more components that (i) are active ingredients, and (ii) if sold as

stand-alone items, would not constitute Joint Products; provided, however, that

(x) sales bundling of catalog products or Kits with Joint Products do not

constitute a Kit, and (y) custom oligo synthesis components ordered by customers

are not considered components of Kits.

"LIMS" shall mean laboratory information management systems either

developed or Controlled by Illumina.

"Marketing Program" shall mean the Joint Product direct advertising,

electronic marketing, marketing programs, and any other items based on

guidelines provided by the Collaboration Committee.

"Net Sales" shall have the meaning set forth in Section 7.7.

"New R&D Projects" means defined research and development projects

undertaken to improve or expand the production capabilities of Joint Products,

which, for the avoidance of doubt, shall exclude ongoing research and

development undertaken to maintain the production capabilities of Joint

Products.

"North America" shall mean the United States of America, Canada, and

Mexico.

"Oligator(R) Technology" shall mean Intellectual Property Controlled by

Illumina and instrumentation developed by Illumina, in each case, relating to

the development, manufacturing and commercialization of Oligos, including the VB

Oligator, Big Bird and the LIMS, quality control software and business

processing software.

"Oligo Plates" shall mean (a) Oligos ordered by a customer [ * ] in one

order, in a quantity of Oligos greater than [ * ] (greater than [ * ]), or (b)

plate Oligos ordered by [ * ] customers. For customers that have an established

practice of placing multiple single plate orders during one day, it is the

intent that such orders will be considered a single order.

"Oligos" shall have the meaning set forth in the Recitals to this

Agreement.

"Party" shall have the meaning set forth in the preamble to this

Agreement.

"Performance Monitoring" shall mean monitoring the regional pro forma

income statements for the Collaboration, quality specifications, delivery

specifications and other performance metrics as agreed to by the Collaboration

Committee.

"Pricing Guidelines" means the Collaboration's global pricing strategy and

range of pricing for the Joint Products, which are subject to review and

revision by the Collaboration Committee at least on an annual basis, taking into

consideration, changes in currency exchange rates, market conditions,

competitive pricing and industry average sales prices.

"Sales & Marketing" shall have the meaning set forth in Section 7.7.

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"Solely Owned Intellectual Property" shall have the meaning set forth in

Section 6.4.

"Term" shall mean the period of time beginning on the Effective Date and

ending on the date that this Agreement is terminated in accordance with Section

10.

"VB Oligator" means the synthesis platform (capable of synthesizing [* ])

developed by Illumina currently used in production at Illumina's North American

manufacturing facility.

"Website" shall have the meaning set forth in Section 4.4(a).

2. Management of Collaboration.

2.1 Formation of Collaboration Committee; Purposes and Principles.

Within fourteen (14) days after the Effective Date, Invitrogen and Illumina

shall establish a committee (the "Collaboration Committee") that will govern,

subject to approval by authorized representatives of the respective Parties, and

have overall responsibility for the success of the Collaboration. The purposes

of the Collaboration Committee will be (i) to determine the overall strategy for

the Collaboration consistent with the terms and conditions of this Agreement,

(ii) to coordinate the Parties' activities hereunder, and (iii) to develop,

approve and effectuate plans for the Collaboration as provided herein. It is the

intent of the Parties to assign responsibilities for the various operational

aspects of the Collaboration to those portions of their respective organizations

which have the appropriate resources, expertise and responsibility for such

functions. The Parties intend that their respective organizations will work

together towards the success of the Collaboration.

2.2 Membership. The Collaboration Committee shall be composed of an

equal number of representatives appointed by each Party. The Collaboration

Committee shall initially have six (6) members, consisting of three (3)

representatives from each Party; provided that the Collaboration Committee may

change its size from time to time by unanimous consent of its members. A Party's

representatives shall serve at the discretion of such Party and each Party may

replace any of its Collaboration Committee representatives at any time upon

written notice to the other Party. Each representative appointed by a Party

shall have the requisite experience, knowledge and seniority to be able to make

decisions on behalf of such Party with respect to the Collaboration. From time

to time, the Collaboration Committee may establish subcommittees or subordinate

committees (which may or may not include members of the Collaboration Committee

itself) to oversee particular projects or activities, and such subcommittees or

subordinate committees shall be constituted and shall operate as the

Collaboration Committee agrees until such particular projects or activities are

deemed complete or are no longer required as determined by the Collaboration

Committee.

2.3 Meetings of the Collaboration Committee. The Collaboration Committee

shall hold meetings at such times as it elects to do so, but in no event shall

such meetings be held less frequently than once every calendar quarter. The

Collaboration Committee shall meet alternately at Illumina's facilities in San

Diego, California and Invitrogen's

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facilities in Carlsbad, California or at such locations as the Parties may

otherwise agree (including by audio or video teleconference with the consent of

each Party). With the consent of the representatives of each Party serving on

the Collaboration Committee, other representatives of each Party or of Third

Parties involved in the collaboration may attend meetings of the Collaboration

Committee as nonvoting participants. Each Party shall be responsible for all of

its own expenses of participating in the Collaboration Committee.

2.4 Specific Responsibilities of the Collaboration Committee. In

addition to its overall responsibility for managing the Collaboration, subject

to approval by the authorized representative of the respective Parties, the

Collaboration Committee shall have exclusive responsibility to:

(a) establish Pricing Guidelines and review them at least quarterly, and

revise as appropriate;

(b) create, review and approve Budgets;

(d) establish a strategy and an approval process for Industry

Communications;

(e) establish strategy for and review of Marketing Programs;

(f) propose, evaluate and select Future Joint Products to become Joint

Products

(g) propose, evaluate and approve the establishment of Oligo

manufacturing facilities for the production of Joint Products;

(h) perform such other functions as appropriate to further the purposes

of this Agreement as determined by the Parties; and

(i) propose, evaluate, monitor and select Collaboration capital

expenditures and New R&D Projects.

(j) monitor progress of Big Bird development and post synthesis

automation.

2.5 Decision-Making. All decisions of the Collaboration Committee shall

be made by unanimous vote of the Parties, with each Party's representatives

collectively having one (1) vote on behalf of such Party regardless of the

number of representatives in attendance. Any deadlocks in disputes arising from

the Collaboration Committee shall be promptly referred to a designated

representative selected by the Parties' respective Chief Executive Officers

("Representatives") or equivalent for resolution. If the Representatives cannot

resolve such dispute, the parties shall agree to a binding arbitration process

as set forth in section 12.

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CONFIDENTIAL

2.6 Management Team. Each Party shall appoint a senior representative

(who may be a member of the Collaboration Committee) to act as its project

coordinator for all of the activities contemplated under this Agreement. Such

project coordinators will be responsible for the day-to-day worldwide

coordination of the Collaboration and will serve to facilitate communication

between the Parties. Such project coordinators will be experienced in project

management and have a general understanding of development, regulatory,

manufacturing and sales and marketing issues.

2.7 Collaboration Guidelines.

(a) General. In all matters related to the Collaboration, the Parties

shall strive to balance as best they can the legitimate interests and concerns

of the Parties and to realize the economic potential of the Joint Products and

each Party agrees to use Commercially Reasonable Efforts to carry out the

activities assigned to such Party in this Agreement and/or by the Collaboration

Committee. In conducting activities under this Agreement, neither Party shall

intentionally prejudice the value of any Joint Product by reason of such Party's

activities outside of the Collaboration; provided that nothing in this Agreement

is intended to require either Party to limit or prejudice the development or

commercialization of products that are not Joint Products (including any Oligos

or products based thereon, including Invitrogen's modified, purified, large

scale and specialty Oligos). Each Party acknowledges that the other Party is in

the business of developing, manufacturing and selling Oligos (or products

requiring Oligo synthesis) that are not Joint Products and nothing in this

Agreement shall be construed as restricting such businesses or imposing a duty

to market and/or sell and exploit the Joint Products to the exclusion of, or in

preference to, any other product or process, or in any way other than in

accordance with its normal commercial practices.

(b) Independence. Subject to the terms of this Agreement, the activities

and resources of each Party shall be managed by such Party, acting independently

and in its individual capacity. Nothing in this Agreement shall constitute or

create a joint venture, partnership, or any other similar arrangement between

the Parties. Neither Party is authorized to act as agent for the other Party and

neither Party shall have the power to bind or obligate the other Party in any

manner.

its activities in furtherance of or in connection with the Collaboration in

compliance with all applicable laws and regulations.

2.8 Actions by Affiliates. Any action required to be performed by a

Party under this Agreement may be performed by an Affiliate of such Party;

provided, however that such Party shall (a) not thereby be relieved of any of

its responsibilities under this Agreement, and (b) be jointly and severally

responsible with such Affiliate for failure by such Affiliate to comply with all

relevant restrictions, limitations and obligations in this Agreement.

2.9 Exhibits. In the event that the Parties do not revise or amend

Exhibits B and/or C prior to 2011, and except as otherwise provided in this

Agreement, the amounts

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and percentages set forth in Exhibits B and/or C applicable to the calendar year

2010 shall be the amounts and percentages applicable to all calendar years

following 2010 for the purposes of this Agreement.

3. Early Stage Capacity Build-Out; Middleware; Joint Products.

3.1 Manufacturing Build-out. Following the Effective Date, Illumina will

initiate the phased build-out of the Collaboration's manufacturing capacity in

the following stages:

(a) Stage 1: When Illumina has the capability contemplated by this Agreement

to fulfill orders of plate-based Joint Products from Invitrogen at the

Illumina Manufacturing Facility;

(b) Stage 2: When Illumina has the capability contemplated by this Agreement

to support tube-based Joint Product manufacturing at the Illumina

Manufacturing Facility; and

Invitrogen Manufacturing Facilities, and such instrumentation is fully

validated and demonstrated to be ready to receive and manufacture Oligo

orders as contemplated by this Agreement.

3.2 Middleware. Following the Effective Date, Illumina and Invitrogen

will co-develop e-commerce and middleware systems to enter, validate and route

tube and plate Joint Product orders.

3.3 Drying Instrumentation. It is contemplated that Invitrogen will be

reducing the Oligo production capacity of its manufacturing facility in

Frederick, Maryland. As such production capacity diminishes, Invitrogen shall

deliver to Illumina, at Invitrogen's book value, such of Invitrogen's

proprietary Oligo drying instrumentation (devices for drying Oligos in tubes and

plates) and related standard operating procedures used in connection with such

instrumentation as are no longer required by Invitrogen. Upon the termination of

this Agreement, Illumina shall, at Invitrogen's request, deliver to Invitrogen

all such proprietary Oligo drying instrumentation at Illumina's then current

book value plus delivery costs, subject to an arbitration decision that provides

otherwise from Section 12.

4. Marketing and Sales.

4.1 Marketing. Invitrogen will have the primary responsibilities for

global marketing activities, including account-specific pricing consistent with

the Pricing Guidelines. Invitrogen will promote the Joint Products in accordance

with this Agreement and Collaboration Committee guidelines. Subject to Section

6.2(d), all Joint Products will be co-branded globally with primary Invitrogen

branding and prominent secondary Illumina branding as approved by the

Collaboration Committee.

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4.2 Sales. Invitrogen will have exclusive responsibilities for Joint

Product sales and will book and recognize the revenue from the sales. Invitrogen

will have responsibility for billing the end customer and for collections.

Illumina will work with Invitrogen to make summary data available related to

work in process and shipped orders to facilitate billing.

4.3 Sales Force. Following the Stage 2 Build-out Date, Invitrogen shall

employ a Joint Products sales force whose sole sales responsibility will be to

sell Joint Products ("Joint Products Sales Force") that will have at least [ * ]

members. The Joint Products Sales Force's exclusive sales responsibility shall

be to both serve as Oligo specialists focused on high value opportunities and

support the general Invitrogen sales force in selling Joint Products. [ * ]

4.4 Order Taking and Routing.

(a) Website. Invitrogen will host an order taking front end website for

use with ordering of Joint Products ("Website") co-developed with Illumina that

enables customers to order Joint Products. The Website will be accessible

through Invitrogen's Invitrogen.com website. Invitrogen's Oligo design tools

(e.g., LUX(TM), RNA), which will continue to be hosted at Invitrogen.com

website, will also be integrated into the Website. For the avoidance of doubt,

the Parties agree and acknowledge that neither LUX(TM) (comprised of one labeled

and one unmodified Oligo) nor RNA Oligos are or shall be treated as Joint

Products under this Agreement.

(b) Fax and Email Orders. Invitrogen will receive all email and fax

orders for Joint Products and enter them into the order entry mechanisms.

Invitrogen will maintain sufficient customer service personnel to enter e-mail-

and fax-based orders. Invitrogen will use Commercially Reasonable Efforts to

induce customers to use low transaction cost order channels.

order-routing protocol:

(i) After the Stage 1 Build-out Date, all orders for Oligo Plates

that are Joint Products, which are to be sold anywhere in the world

(including the Illumina Manufacturing Territory and/or the Invitrogen

Manufacturing Territory)

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shall be routed to the Illumina Manufacturing Facility; provided that the

Collaboration Committee may permit exceptions either on a case-by-case

basis or via establishment of criteria to accommodate specific customer

requirements;

(ii) After the Stage 2 Build-out Date, all orders for tube-based

Joint Products to be sold into the Illumina Manufacturing Territory shall

be routed to the Illumina Manufacturing Facility; provided that the

Collaboration Committee may permit exceptions either on a case-by-case

basis or via establishment of criteria, when critical, to accommodate

specific customer requirements;

(iii) All orders for Joint Products (other than orders for Oligo

Plates) to be sold into the Invitrogen Manufacturing Territory shall be

routed to the applicable Invitrogen Manufacturing Facility; provided that

Collaboration Committee may permit exceptions either on a case-by-case

basis or via establishment of criteria to accommodate specific customer

requirements;

(iv) In the event that the Collaboration Committee approves the

establishment of additional manufacturing facilities for the manufacture

of Joint Products, the Collaboration Committee may develop a routing

protocol for these additional facilities.

4.5 Customer Service; Technical Support. Invitrogen will provide

customer service and technical support to all Joint Product customers. Illumina

will establish a point of contact who will be available to assist Invitrogen in

resolving customer service and technical support issues arising from Joint

Products manufactured at the Illumina Manufacturing Facility.

4.6 Diligence. Invitrogen agrees to use Commercially Reasonable Efforts

to allocate and focus the appropriate sales and marketing resources to

substantiate the fixed sales and marketing allocation expenses outlined in

Exhibit B line item 5 in promoting and selling Joint Products. During the first

(2) two years of the Collaboration, any changes in the Joint Products Sales

Force in number or region shall be approved by the Collaboration Committee.

Nothing in the foregoing shall prevent Invitrogen from ceasing at any time, in

its sole discretion, to employ any member of the Joint Products Sales Force for

cause, provided only that Invitrogen use Reasonable Commercial Efforts to

promptly replace such individual. Thereafter, Invitrogen will be responsible for

the size and staffing of the Joint Products Sales Force.

4.7 End-User Agreement. The Collaboration Committee shall approve all

forms of end-user agreements to be used in sales of Joint Products to customers.

Nothing in the foregoing shall imply that the Collaboration Committee shall have

any approval rights over Invitrogen's standard terms of sale, which shall govern

the majority of sales. A copy of Invitrogen's current standard terms of sale is

attached hereto as Exhibit E. Invitrogen at its sole discretion may change such

standard terms of sale from time to time; provided that such standard terms are

not inconsistent with standard terms for all other Invitrogen products, and

Invitrogen shall provide a copy to Illumina.

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5. Manufacturing.

5.1 Illumina Manufacturing. Illumina shall exclusively manufacture all

Joint Products to be sold into the Illumina Manufacturing Territory and Joint

Products that are Oligo Plates to be sold anywhere in the world. Invitrogen

shall obtain its supply of Joint Products to be sold into the Illumina

Manufacturing Territory and its supply of Joint Products that are Oligo Plates

exclusively from Illumina. Illumina will implement the quality controls set

forth on Exhibit D-1 for the manufacture of tube and plate Joint Products at the

Illumina Manufacturing Facility. Illumina will work with Invitrogen to develop

capability to make readily available the summary of manufacturing status and

quality-control data to Invitrogen customer service and technical support staff

for supporting Joint Product customers. Illumina will utilize its

post-processing capabilities described in Exhibit D-1. Illumina will develop its

pick, pack and ship capabilities to accommodate tube orders and to support

combined volume of Joint Products and forecast growth as outlined by the

Collaboration Committee. Illumina will further endeavor to automate its pick,

pack and ship capabilities to accommodate increased volume of Joint Products.

Illumina shall conduct the activities described in this Section 5.1 in

accordance with such additional summary quality control data and other

specifications adopted by the Collaboration Committee from time to time.

5.2 Invitrogen Manufacturing.

(a) Invitrogen shall exclusively manufacture Joint Products (other than

Oligo Plates) to be sold into the Invitrogen Manufacturing Territory.

(b) Within three (3) months of Big Bird becoming operational in the

Illumina Manufacturing Facility, Illumina will deliver to Invitrogen's

Affiliates that operate the two current Invitrogen Manufacturing Facilities [ *

] VB Oligators per Invitrogen Manufacturing Facility solely for the purpose of

manufacturing Joint Products subject to the license granted in Section 6 of this

Agreement; provided, however, that (i) Illumina will use Commercially Reasonable

Efforts to deliver such VB Oligators within [ * ] following the Effective Date,

and (ii) Illumina will in no event deliver such VB Oligators later than [ * ]

after the Effective Date. Illumina will provide to Invitrogen (i) Illumina's

expertise and technical support at the Invitrogen Manufacturing Facilities to

facilitate the establishment of the manufacturing and related capabilities

efficiently and effectively, and (ii) the quality control systems identified on

Exhibit D-2 for use by Invitrogen's Affiliates solely at the Invitrogen

Manufacturing Facilities. Invitrogen shall reimburse Illumina for Illumina's

costs (including, the then-current book value of the VB Oligators, installation

costs, and delivery costs) out of Invitrogen's [ * ]-per-Invitrogen

Manufacturing Facility funding described in Section 7.3; provided, however, in

the event that new VB Oligators must be built for Invitrogen, the purchase price

of such new VB Oligators to Invitrogen shall not exceed the then book value of

the existing VB Oligators that the parties contemplated would have been provided

to Invitrogen under this Agreement. Illumina shall not charge Invitrogen for the

cost of assembling such VB Oligators in the event that such VB Oligators have

not been assembled. Invitrogen shall own the VB Oligators it purchases. Upon

termination of this Agreement, Invitrogen shall, at Illumina's request, resell

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Illumina all VB Oligators at Invitrogen's then current book value plus delivery

costs, subject to an arbitration decision that provides otherwise from Section

12.

manufacturing, which will require additional automation for formatting and

handling tubes in the Invitrogen Manufacturing Facilities, the costs for which

are included in the [ * ]-per-Invitrogen Manufacturing Facility funding

described in Section 7.3. Invitrogen will be responsible for facilitating all

pick, pack and ship requirements in the Invitrogen Manufacturing Facilities.

Invitrogen shall conduct the activities described in this Section 5.2 in

accordance with such additional quality control and other specifications adopted

by the Collaboration Committee from time to time.

5.3 Additional Manufacturing Facilities. Except as expressly authorized

in this Section 5 or by the Collaboration Committee, neither Party shall be

permitted to (a) prepare or establish any additional Oligo manufacturing

facilities or capacity with the intent to produce Joint Products, or (b) build

out existing manufacturing facilities with the intent or capability to produce

Joint Products. Following the Effective Date, the Collaboration Committee may

authorize one or both Parties to establish additional manufacturing facilities

utilizing the [ * ] VB Oligator instrument set-up utilized by the Invitrogen

Manufacturing Facilities (as described in Section 5.2) to manufacture Joint

Products to be sold into the Invitrogen Manufacturing Territory.

5.4 Cost Containment. The Collaboration Committee will work together to

achieve lowest practical Cost of Goods by (a) introducing and maintaining best

practices among the Illumina Manufacturing Facility and the Invitrogen

Manufacturing Facilities, and (b) minimizing raw materials and overhead costs,

and (c) increasing efficiency.

6. Intellectual Property.

6.1 Invitrogen Grants.

(a) Invitrogen hereby grants during the Term, under Intellectual

Property Controlled by Invitrogen (other than the Invitrogen Marks) that, but

for the license granted in this Section 6.1(a) would be infringed or otherwise

violated, to Illumina a royalty-free (except to the extent that royalties are

owed to third party licensors, in which event such royalties shall be deducted

by Invitrogen in determining Net Sales), non-exclusive right and license, with

the right to grant sublicenses only as permitted under Section 6.3, solely to

manufacture the Joint Products at the Illumina Manufacturing Facility. An

initial list of the patents and patent applications to be licensed pursuant this

subparagraph is listed on the attached Exhibit F, and shall be referred to as

"Invitrogen Patents". Invitrogen Patents shall also include all continuing

applications including divisions, substitutions, and continuations-in-part, and

any patents issuing on any of the foregoing applications including reissues,

reexaminations and extensions; and all foreign applications and patents

corresponding to any of the foregoing.

(b) Invitrogen hereby grants during the Term, under all Intellectual

Property Controlled by Invitrogen (other than the Invitrogen Marks) that, but

for the license granted in this Section 6.1(b) would be infringed or otherwise

violated, to Illumina a royalty-free (except to the extent that royalties are

owed to third party licensors, in which

[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY

WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO

THE OMITTED PORTIONS.

<PAGE>

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event such royalties shall be deducted by Invitrogen in determining Net Sales),

non-exclusive right and license, with the right to grant sublicenses only as

permitted under Section 6.3, solely to enable Illumina to perform its

obligations under this Agreement relating to the commercialization of Joint

Products.

Invitrogen develops during the Term, and (ii) was developed by funding approved

by the Collaboration Committee, to Illumina a perpetual, royalty-free (except to

the extent that royalties are owed to third party licensors, in which event such

royalties shall be deducted by Invitrogen in determining Net Sales),

non-exclusive right and license, with the right to grant sublicenses only as

permitted under Section 6.3, to manufacture, use or sell Oligos. Such rights

shall survive termination of this Agreement.

(d) Invitrogen hereby grants Illumina during the Term, a limited,

royalty-free, non-exclusive right and license, with the right to grant

sublicenses only as permitted under Section 6.3, to the use of certain of its

trademarks and service marks, trade names and logos to be specifically

identified by Invitrogen (collectively hereinafter referred to as "Invitrogen

Marks") solely in connection with the commercialization activities provided for

in this Agreement. Illumina agrees to comply with Invitrogen's guidelines

delivered to Illumina from time to time with respect to manner of use, and to

maintain the quality standards of Invitrogen with respect to the goods sold and

services provided in connection with the Invitrogen Marks. Illumina recognizes

and agrees that no ownership rights are vested or created by the limited rights

of use granted to Illumina in connection with this use of the Invitrogen Marks,

and that all use thereof inures to the benefit of Invitrogen. Further, Illumina

shall submit to Invitrogen any materials bearing the Invitrogen Marks for review

and approval prior to the use thereof and shall make no use of the Invitrogen

Marks without Invitrogen's prior written consent. Each Party shall execute any

documents required in the reasonable opinion of the other Party for Illumina to

be entered as a "registered user" or recorded licensee of the Invitrogen Marks,

or to be removed as registered user or licensee thereof.

6.2 Illumina Grants.

(a) Illumina hereby grants during the Term, under all Intellectual

Property Controlled by Illumina (other than the Illumina Marks) that, but for

the license granted in this Section 6.2(a) would be infringed or otherwise

violated, to Invitrogen a royalty-free (except to the extent that royalties are

owed to third party licensors, in which event such royalties shall be deducted

by Invitrogen in determining Net Sales, or added to Cost of Goods by Illumina,

as applicable), non-exclusive right and license, with the right to grant

sublicenses only as permitted under Section 6.3, solely to manufacture the Joint

Products at the Invitrogen Manufacturing Facilities. An initial list of the

patents and patent applications to be licensed pursuant this subparagraph is

listed on the attached Exhibit G, and shall be referred to as "Illumina

Patents". Illumina Patents shall also include all continuing applications

including divisions, substitutions, and continuations-in-part, and any patents

issuing on any of the foregoing applications including reissues, reexaminations

and extensions; and all foreign applications and patents corresponding to any of

the foregoing.

<PAGE>

CONFIDENTIAL

(b) Illumina hereby grants during the Term, under all Intellectual

Property Controlled by Illumina (other than the Illumina Marks) that, but for

the license granted in this Section 6.2(b) would be infringed or otherwise

violated, to Invitrogen a royalty-free (except to the extent that royalties are

owed to third party licensors, in which event such royalties shall be deducted

by Invitrogen in determining Net Sales, or added to Cost of Goods by Illumina,

as applicable), non-exclusive right and license, with the right to grant

sublicenses only as permitted under Section 6.3, solely to enable Invitrogen to

perform its obligations under this Agreement relating to the commercialization

of Joint Products.

Illumina develops during the Term, and (ii) was developed with the Collaboration

Funding, Big Bird Milestone Payment, and/or funding approved by the

Collaboration Committee, to Invitrogen a perpetual, royalty-free (except to the

extent that royalties are owed to third party licensors, in which event such

royalties shall be deducted by Invitrogen in determining Net Sales, or added to

Cost of Goods by Illumina, as applicable), non-exclusive right and license, with

the right to grant sublicenses only as permitted under Section 6.3 to

manufacture, use or sell Oligos. Such rights shall survive termination of this

Agreement.

(d) Illumina hereby grants Invitrogen during the Term, a limited,

royalty-free, non-exclusive right and license, with the right to grant

sublicenses only as permitted under Section 6.3, to the use of certain of its

trademarks and service marks, trade names and logos to be specifically

identified by Illumina (collectively hereinafter referred to as "Illumina

Marks") solely in connection with the commercialization activities provided for

in this Agreement. Invitrogen agrees to comply with Illumina's guidelines

delivered to Invitrogen from time to time with respect to manner of use, and to

maintain the quality standards of Illumina with respect to the goods sold and

services provided in connection with the Illumina Marks. Invitrogen recognizes

and agrees that no ownership rights are vested or created by the limited rights

of use granted to Invitrogen in connection with this use of the Illumina Marks,

and that all use thereof inures to the benefit of Illumina. Further, Invitrogen

shall submit to Illumina any materials bearing the Illumina Marks for review and

approval prior to the use thereof and shall make no use of the Illumina Marks

without Illumina's prior written consent. Each Party shall execute any documents

required in the reasonable opinion of the other Party for Invitrogen to be

entered as a "registered user" or recorded licensee of the Illumina Marks, or to

be removed as registered user or licensee thereof.

6.3 Sublicensing and Extension of Rights. Either Party may, subject to

the prior written approval of the other Party on a case-by-case basis,

sublicense its rights under the licenses granted pursuant to Section 6.1 or 6.2,

as the case may be; provided, however, that no consent or approval shall be

required for either Party to extend such a sublicense to its Affiliates and/or

third party distributors for Joint Products. All such sublicenses (other than

sublicenses to Affiliates and/or third party distributors for Joint Products)

shall be granted pursuant to a written agreement that subjects the sublicensee

to all relevant restrictions, limitations and obligations in this Agreement;

provided, that no such sublicensee shall be permitted to further sublicense. A

Party sublicensing its rights pursuant to this Section 6.3 shall be jointly and

severally responsible with each of its

<PAGE>

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sublicensees (including its Affiliates) for failure by such sublicensee to

comply with all relevant restrictions, limitations and obligations in this

Agreement.

6.4 Ownership; Reservation of Rights. The Parties shall jointly own all

inventions and Intellectual Pro

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