EXHIBIT 10.36
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS.200.80(B)(4),
200.83 AND 240.24B-2
AMENDED AND RESTATED
RESTATED FIRST AMENDMENT TO
TECHNOLOGY DEVELOPMENT AND SERVICES AGREEMENT
This Amended and Restated First Amendment (" Restated First Amendment") to the
Technology Development and Services Agreement ("Agreement") is made and entered
into as of the first day of May, 1998 (the "Amended Effective Date") by LYNX
THERAPEUTICS, INC., a Delaware corporation, and its majority-owned subsidiaries,
including SPECTRAGEN, INC., (collectively referred to as "Lynx") and Hoechst
Xxxxxx Xxxxxxx, Inc., a Delaware corporation, to whom the Agreement was
assigned, and its affiliates ("HMRI"), for the purpose of replacing in its
entirety the Restated First Amendment to the Agreement dated September 1, 1997,
which as of the Amended Effective Date shall have no further force or effect.
RECITALS
WHEREAS, Lynx and HMRI agree that the Practical Application Milestone
as set forth in the Agreement may not be achievable as originally defined;
WHEREAS, HMRI continues to desire early, preferred access to Lynx's
library analysis and other subscription services;
NOW THEREFORE, in consideration of the foregoing premises and the
covenants and promises in the Agreement and in this Restated First Amendment.
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Restated First Amendment shall have the
meanings ascribed to them in the Agreement unless otherwise defined in or
amended by this Restated First Amendment.
1.1 "Massively Parallel Signature Sequencing" or "MPSS" means the
acquisition of at least [...***...] contiguous bases (a "Signature Sequence")
from each of at least [...***...] templates sampled from a given cell culture or
tissue cDNA library or of such other information
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* CONFIDENTIAL TREATMENT REQUESTED
as may be obtained by customers of technology subscription services developed
and made available from time to time by Lynx.
1.2 "MPSS Library Analysis" means a report containing each [...***...]
base sequence and its abundance within the [...***...] or more cCNA templates
extracted from a given sample or such other information as can be generated and
is provided by Lynx to its other subscription service customers.
1.3 No amendment is made to Article 1.3.
1.4 "Practical Application Milestone" as defined in Article 1.4 of the
Agreement and Exhibit A thereto are no longer applicable.
ARTICLE 2
DEVELOPMENT OF MPSS TECHNOLOGY
2.1 Lynx Program. Lynx shall continue to use commercially reasonable
efforts consistent with its normal business practices and objectives to develop
its sequencing and solid phase cloning technologies and to define, develop and
offer to customers in the ordinary course of its business subscription services
based on such technologies.
2.2 Reports and Information. Periodically during the term of this
Agreement, and in any event at least once per calendar quarter, Lynx will
provide Hoechst written reports summarizing its technical progress to date, its
plans with respect to the nature of subscription services that it intends to
offer and its assessment of how customers could use such services to further
their research objectives. If requested by Hoechst, Lynx will provide relevant
supporting data and studies to enable Hoechst to assess its interest in securing
access to such services. All such reports, including supporting data and
studies, and all information contained therein, shall be deemed "Confidential
Information" of Lynx under Article 4 hereof.
2.3 Ownership of Technology. No amendment is made to this Article,
except that the parties agree to amend the last sentence thereof if and as
necessary to accurately describe the services that Hoechst ultimately determines
to access hereunder.
2.4 Development Payments to Lynx. Lynx acknowledges that Hoechst has
paid to Lynx Three Million U.S. Dollars ($3,000,000), in part, for Lynx's
commitment to undertake the development of technologies that may be useful to
Hoechst. Lynx agrees that no additional payment by HMRI to Lynx shall be
required for Lynx's continued development work. If in the course of the
Development Program Lynx is able to establish to HMRI's satisfaction that the
services offered or to be offered by Lynx are applicable for HMRI's purposes and
fulfill HMRI's needs as determined by HMRI at its sole discretion then HMRI will
pay to Lynx a technology access fee to be negotiated but of not more than
[...***...] U.S. Dollars [...***...] within thirty (30) days. In the event that
a third party (other than BASF) has paid Lynx less than [...***...]
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* CONFIDENTIAL TREATMENT REQUESTED
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U.S. Dollars [...***...] as a technology access fee, than HMRI will pay no more
than such third party technology access fee less [...***...] U.S. Dollars
[...***...].
2.5 If Lynx notifies HMRI that it has developed the MPSS technology to
the extent that it is being accessed and used by another party, HMRI will at its
sole discretion determine the usefulness of the technology for HMRI's purpose
and decide whether to access the technology under the conditions outlined under
2.4. A decision by HMRI during the term of this Agreement not to access the
technology does not constitute a termination of the Agreement.
ARTICLE 3
LYNX MPSS SERVICES
No amendment is made to this Article except that (a) the parties agree
to amend the description of the services to be offered if and as necessary to
accurately describe the services that Hoechst ultimately determines to access
hereunder, (b) HMRI no longer requires that Lynx limit its services to a maximum
of three parties and (c) the cost of the renewal of the subscription shall be
renegotiated in good faith according to the then prevailing circumstances
regarding third party subscribers and the amount of work to be done.
ARTICLE 4
CONFIDENTIALITY
The provisions of this article the Agreement are not amended by this
Restated First Amendment.
ARTICLE 5
TERM AND TERMINATION
5.1 The term of the Agreement shall be extended to [...***...], and may
be extended for another [...***...] at HMRI's discretion upon written notice to
Lynx. If the Agreement terminates pursuant to this section, Lynx agrees that
HMRI shall be entitled to a credit of [...***...] U.S. Dollars [...***...] with
regard to any future technology access fee and any such technology access fee
and subscription fee shall be reduced as set forth in this Restated First
Amendment. All other terms and conditions of Article 5 of the Agreement are not
amended by this Restated First Amendment.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
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The provisions of this article of the Agreement are not amended by this
Restated First Amendment.
ARTICLE 7
MISCELLANEOUS
The provisions of the Agreement are not amended by this Restated First
Amendment except that all notices to Hoechst pursuant to Article 7.6 of the
Agreement shall hereafter be delivered to
Hoechst Xxxxxx Xxxxxxx, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Patent Counsel
IN WITNESS WHEREOF, the parties hereto have duly executed this Restated
First Amendment as of the date first written above.
LYNX THERAPEUTICS, INC. HOECHST XXXXXX XXXXXXX, INC.
By: /s/ Xxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxxxx
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Title: Chief Executive Officer Title: Senior Vice President, Business
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Development and Strategic Planning
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Date: June 8, 1998 Date: June 15, 1998
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