CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
AMENDED AND RESTATED SERVICES AND
SUPPLY AGREEMENT
This AMENDED AND
RESTATED SERVICES AND SUPPLY AGREEMENT (“Restated
Agreement”) is made and entered into as of January 1,
2006 (“Effective Date”), by and between E.I. du Pont de
Nemours and Company, having a principal business address at 1007
Market Street, Wilmington, Delaware 19898 (“DuPont”)
and Solexa, Inc. (formerly LYNX THERAPEUTICS, INC.), having a
principal business address at 25861 Industrial Boulevard, Hayward,
California, 94545 (“Solexa”). DuPont and Solexa may be
referred to herein collectively as the “Parties” or
individually as a “Party.”
WHEREAS, Solexa
has expertise and intellectual property involving the use of
certain molecular biological methods for cloning and identifying
the sequence of nucleic acids, and using such technologies for
discovery and characterization of genes;
WHEREAS, DuPont
and its agricultural Affiliates, including Pioneer Hi-Bred
International, Inc. of Des Moines, Iowa (“Pioneer”),
have expertise and interest in discovering, developing,
distributing and marketing agricultural products and
processes;
WHEREAS, DuPont
and Solexa have previously entered into a Research Collaboration
Agreement dated October 29, 1998 and subsequently amended from
time to time by the Parties (“1998 Collaboration
Agreement”) and a Services Agreement dated as of
December 31, 2003, which as amended from time to time by the
Parties superseded the 1998 Collaboration Agreement (the
“Previous Agreement”), under which Solexa technology
has been applied to gene expression, physical mapping, and other
analysis of certain crop plants for the benefit of DuPont’s
agricultural research and development programs;
WHEREAS, Solexa is
phasing out its MPSS platform and replacing it with a new and
alternative technology platform for identifying and counting
sequence tags, such platform known as cluster sequencing or
SBS;
WHEREAS, Solexa is
further developing this technology platform in 2006 with intention
of generally commercializing both Solexa-provided services and
instrument/consumables sales to customers by the end of
2006;
WHEREAS, the
Parties desire that DuPont have early access to services and
instruments/consumables related to this platform during 2006;
and
WHEREAS, the
Parties desire to supersede the Previous Agreement and to continue
their interaction with one another under the terms and conditions
of this Restated Agreement.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as
follows:
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a.
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“Affiliate” shall mean
any corporation, firm, limited liability company, partnership, or
other entity that directly or indirectly controls, or is controlled
by, or is under common control with a Party to this Restated
Agreement. For the purpose of this definition, control means
ownership, directly or through one or more Affiliates, of fifty
percent (50%) (or such lesser percentage which is the maximum
allowed to be owned by a foreign entity in a particular
jurisdiction) or more of the shares of stock entitled to vote for
the election of directors in the case of a corporation, or fifty
percent (50%) (or such lesser percentage which is the maximum
allowed to be owned by a foreign entity in a particular
jurisdiction) or more of the equity interests in the case of any
other type of legal entity, or status as a general partner in any
partnership, or any other arrangement whereby a Party controls or
has the right to control the board of directors or equivalent
governing body of a corporation or other entity. For purposes of
this Agreement, Affiliates shall also include Affiliates of
Pioneer.
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Page 1 of 12
CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
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b.
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“Results” shall mean all
information provided to DuPont and its Affiliates by Solexa, or
developed by Solexa, under this Restated Agreement, including
datasets, generated in the performance by Solexa of Analysis
Services on DuPont Samples (“DuPont Results”) or Other
Samples (for use in Category-2 Services under the Work Plan)
(“Other Results”), as further described in the Work
Plan.
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c.
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“DuPont Generated
Results” shall mean all information, including data sets,
generated by DuPont and its Affiliates during the Term in the
course of using the SBS Instrument and SBS Reagents.
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d.
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“Exclusive Plants” shall
mean [*].
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e.
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“Analysis Services”
shall mean the application by Solexa of Solexa Technology to a
Sample to generate Results, as outlined in the Work Plan and as
will be further specified between the Parties during the Term via
the JRC.
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f.
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“Intellectual Property”
shall mean any right that protects any invention, improvement or
discovery, that is created or discovered prior to, during, or as a
result of the Services hereunder, whether or not patentable, and
shall include, but is not limited to, patent rights, plant variety
protection certificates, patent applications, copyrights,
trademarks, and trade secrets.
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g.
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“Solexa Technology”
shall mean any and all technologies owned or controlled by Solexa,
including but not limited to MPSS and SBS.
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h.
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“MPSS™” shall mean
Solexa’s Massively Parallel Signature Sequencing technology
involving the solid phase cloning of nucleic acids on beads and its
applications, as further described at the Solexa internet site,
http://www.solexa.com/wt/page/mpss. For example, and as further
described at this site, MPSS™ is applied by Solexa to
identify and count the expressed sequence tags, each at least 17
bases long, in an mRNA Sample. Other applications of MPSS include
small RNA MPSS to identify and count small RNAs in an RNA Sample.
As used herein, “MPSS Services” means the application
of MPSS technology by Solexa to a customer’s or
collaborator’s samples to generate sequence tag data that is
shared with such customer or collaborator.
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i.
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“Non-exclusive Plants”
shall mean all plant species other than Exclusive Plants, except
for [*].
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Page 2 of 12
CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
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j.
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“Sample” shall mean the
biological material and information provided by DuPont
(“DuPont Samples”) or by an academic institution as
contemplated by the Work Plan (“Other Samples”) under
this Agreement for use by Solexa in performing Analysis
Services.
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k.
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“SBS” shall mean
Solexa’s Sequencing-By Synthesis (SBS) technology
involving the sequencing of templates immobilized on a proprietary
flow cell surface via Clonal Single Molecule Array ™
technology as further described at
http://www.solexa.com/wt/page/sbs. SBS utilizes four proprietary
fluorescently labeled nucleotides to sequence millions of DNA
clusters present on the flow cell surface. These nucleotides,
specifically designed to possess a reversible termination property,
allow each cycle of the sequencing reaction to occur simultaneously
in the presence of all four nucleotides (A, C, G. T). In each
cycle, the polymerase is able to select the correct base to
incorporate, with the natural competition between all four
alternatives leading to very high accuracy.
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l.
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“SBS Instrument” shall
mean the early access version of Solexa’s SBS instrument,
together with the associated cluster station, and the commercial
version thereof resulting from the replacement or upgrade of the
early access version, together with related installation and
training, as described in the Work Plan.
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m.
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“SBS Reagents” shall
mean the consumables supplied by Solexa to DuPont for use on the
SBS Instrument, as described in the Work Plan.
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n.
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“Term” shall mean the
2006 calendar year, provided that in the event the commercial
version of the SBS Instrument has not been provided to DuPont as
contemplated by the Work Plan by the end of 2006, the portions of
this Restated Agreement pertaining specifically to the delivery of
such instrument shall continue in effect until such delivery has
been made.
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o.
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“Work Plan” shall mean
the description of the Analysis Services to be conducted under this
Agreement and the SBS Instrument, SBS Reagents and related services
to be supplied under this Agreement, attached as Schedule A
herein.
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2.
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Scope and Description of Services
and Supply:
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a.
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Services. Solexa shall conduct the Analysis
Services for DuPont, including its Affiliates, during the Term
using Samples as outlined in the Work Plan, or such other written
schedules, work plans or descriptions that the Parties may agree
upon from time to time and shall make part of this Restated
Agreement.
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Solexa hereby agrees (a) to use
DuPont Samples solely to perform the Services for DuPont and meet
its obligations under this Agreement, and (b) to send all
residual DuPont Samples to DuPont (or another site designated by
DuPont) within thirty (30) calendar days after the date of
completion of Analysis Services for such DuPont Samples, or at the
end of the Term, or at Termination of this Restated Agreement. In
the event that DuPont provides written direction to Solexa to
destroy all residual DuPont Samples, Solexa shall do so
promptly.
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Solexa shall not distribute,
release, sell, disclose, or otherwise transfer the DuPont Samples
to, or use DuPont Samples with or on behalf of, any third party
, except to such affiliates of Solexa as may be necessary
for the performance of the Analysis Services. In such event, Solexa
shall notify DuPont of such transfer or disclosure, and such Solexa
affiliates shall be bound by the same terms as contained herein
regarding use and treatment of DuPont Samples. DuPont agrees to pay
directly, or to reimburse Solexa for, any shipping, handling or
other like expenses that may be incurred in providing DuPont
Samples to Solexa hereunder.
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Page 3 of 12
CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
As consistent
with the timelines described in the Work Plan, DuPont shall provide
DuPont Samples to Solexa as necessary for Solexa to conduct the
applicable Analysis Services. Solexa will procure Other Samples as
contemplated by the Work Plan. Solexa shall provide, at its own
expense, all equipment, materials, information, know-how, and
related services as are necessary to perform the Analysis Services
using DuPont Samples and Other Samples and satisfy its obligations
under this Restated Agreement with respect thereto. Solexa shall
promptly deliver all Results to DuPont upon completion of the
corresponding Analysis Services.
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b.
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Supply . Solexa shall deliver and install
the SBS Instrument in accordance with the provisions of the Work
Plan. Following delivery of the early access version of the SBS
Instruments, Solexa will supply SBS Reagents to DuPont for use on
the SBS Instrument in accordance with, and subject to the
limitations set forth in, the Work Plan Solexa will also provide
training to DuPont personnel in the operation of the SBS Instrument
as described in the Work Plan.
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3. Exclusive Period. [*]
shall not [*] for any [*] in, or using, the [*] during [*]; or [*]
up until the date on which [*] to [*]. [*] may [*] during the [*]
to [*] in, or using, the [*]. [*] shall be [*] to [*] with respect
to [*], and [*] that may be under [*] by [*] to a [*], as soon as
such [*] becomes available. Nothing in this Section 3 shall
restrict [*] in any way from being able to [*] under [*] in effect
[*] of the [*] for the [*], and [*] of the [*] for the [*], whether
or not such [*] would otherwise be in violation of this Section
3.
4. Fees and Payments. As
further described in the Work Plan, and, as full consideration for
the Analysis Services to be provided during the Term and the SBS
Instrument and SBS Reagents to be delivered to DuPont under this
Restated Agreement, DuPont shall pay Solexa a total amount not to
exceed One Million Five Hundred Thousand Dollars (USD 1,500,000),
according to the payment schedule contained in the Work Plan.
DuPont shall cause its Affiliate, Pioneer Hi-Bred International,
Inc. to make all payments under this Restated Agreement. Except for
the first payment of [*], which shall be paid by [*] without
reliance on an invoice, all other payments specified in the Work
Plan will be made [*] days after DuPont’s or its
Affiliate’s receipt of an invoice from Solexa detailing the
Analysis Services provided and/or the instruments or consumables
delivered and following DuPont’s receipt of the specified
applicable Results and/or products. Invoices shall be submitted to
Pioneer’s contract administrator identified below, and each
invoice shall reference [*].
All amounts
paid hereunder shall be made to Solexa in US Dollars by bank wire
transfer to:
5. Future Access. The
Parties agree that beyond the Term, an appropriate agreement, to be
negotiated in good faith and mutually determined to be suitable for
the nature and delivery of Solexa services and products in such
year(s), may be established between the Parties.
Page 4 of 12
CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, H
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