EXHIBIT 10.7.5
FIFTH AMENDMENT TO
TECHNOLOGY DEVELOPMENT AND SERVICES AGREEMENT
This Fifth Amendment to Technology Development and Services Agreement
(the "FIFTH AMENDMENT") is made and entered into as of September 30, 2002, but
shall be effective on July 1, 2002 (the "AMENDMENT EFFECTIVE DATE"), by LYNX
THERAPEUTICS, INC., a Delaware corporation, for itself and its majority-owned
subsidiaries, including SPECTRAGEN, INC., (collectively, "LYNX"), and BAYER
CROPSCIENCE GMBH, a German corporation ("BAYER CropScience"). Lynx and Bayer
CropScience are sometimes referred to herein individually as a "PARTY" and
collectively as the "PARTIES."
RECITALS
A. The Parties hereto (or their predecessors) previously entered into the
certain Technology Development and Services Agreement dated October 2,
1995 as amended by the First Amendment to Technology Development and
Services Agreement dated September 1, 1997, the Amended and Restated First
Amendment to Technology Development and Services dated May 1, 1998, the
Second Amendment to Technology Development and Services Agreement dated
March 1, 1999 (the "SECOND AMENDMENT"), the Third Amendment to Technology
Development and Services Agreement dated December 1, 1999, the letter
agreement dated March 16, 2001, the letter agreement dated November 8,
2001, the letter agreement dated December 13, 2001, and the Fourth
Amendment to Technology Development and Services Agreement dated March 31,
2002 (the "FOURTH AMENDMENT")(collectively, as amended, the "ORIGINAL
AGREEMENT").
B. Hoechst Aktiengesellschaft and its subsidiary, Hoechst Xxxxxx Xxxxxxx,
Inc. ("HMRI"), were original parties to the Agreement. Hoechst
Aktiengesellschaft subsequently assigned the Agreement to HMRI and HMRI's
affiliates. One of HMRI's affiliates, Hoechst Schering AgrEvo GmbH
("AgrEvo"), was added as a party to the Original Agreement under the
Second Amendment. As of December 15, 1999, HMRI and AgrEvo changed their
names to Aventis Pharmaceuticals, Inc. and Aventis CropScience GmbH,
respectively. In June 2002, Xxxxx XX acquired Aventis CropScience GmbH,
and Aventis CropScience GmbH survived such merger as a wholly owned
subsidiary of Xxxxx XX, which subsidiary was renamed Bayer CropScience
GmbH.
C. Under Section 5.1 of the Original Agreement, the Original Agreement [*] a
subscription for Lynx's Analysis services.
D. The Parties desire to modify the financial terms applicable to Lynx's
performance of genetic analysis services using the [*] Technology for
Bayer CropScience, as well as the
[ * ] = 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.
royalties payable by Lynx to Bayer CropScience on the revenues resulting
from the sale of products or services using or incorporating the [*]
Technology or the grant of licenses under the [*] Technology to third
parties.
NOW THEREFORE, in consideration of the foregoing premises and the covenants and
promises contained in this Amendment, the Parties hereby agree that the Original
Agreement shall be amended, effective as of the Amendment Effective Date, as
provided below:
1. All capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in the Original Agreement.
2. Each reference in the Original Agreement to "Hoechst Schering AgrEvo GmbH"
and "Aventis CropScience GmbH" shall be replaced by "Bayer CropScience GmbH
3. Each reference in the Original Agreement to "AgrEvo" and "CropScience" shall
be replaced by "Bayer CropScience".
4. Section 2.3 of the Original Agreement as amended shall be amended as
follows:
(a) "Aventis CropScience N.V." in the first paragraph is replaced by "Bayer
BioScience N.V.";
(b) The first sentence of the second paragraph is amended as follows:
"In consideration of this license grant, Lynx agrees to pay to Bayer
CropScience a royalty of [*] of Net Profits received during the first
[*] years after Product Launch, which royalty shall thereafter be
decreased to [*] of Net Profits on the [*] of Product Launch, and the
royalty rate [*] for the remainder of the term of this Agreement."
(c) "Aventis CropScience N.V." in the fourth paragraph is replaced by "Bayer
BioScience N.V."
5. Section 2.4 of the Original Agreement shall be deleted in its entirety.
Bayer CropScience shall not [*] to Lynx upon Product Launch.
6. Section 3.9 of the Original Agreement as amended shall be deleted in its
entirety and replaced with the following:
"3.9 CREDITS FOR [*] TECHNOLOGY SERVICES. The Parties acknowledge that Bayer
CropScience or its predecessors-in-interest have made payments to Lynx
totaling [*] United States Dollars (US [*]) under the Original Agreement,
which payments are advance payments for the performance by Lynx of genetic
analyses of biological samples provided by Bayer CropScience or its
predecessors-in-interest. As of June 30, 2002, Lynx has performed genetic
analyses using the [*] Technology ("[*] ANALYSES") and other genetic
analyses of biological samples for Bayer CropScience having a total Value of
[*] U.S. Dollars, and thus, as of June 30, 2002, Bayer CropScience has a
remaining credit of [*] U.S. Dollars to be applied against the Value of
future services under the [*] Development Plan ("[*]
[ * ] = 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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SERVICES") and [*] Analyses to be performed by Lynx ("CREDIT"). On the first
day of each calendar [*] prior to [*], a flat fee of [*] U.S. Dollars shall
be charged against the Credit as an advance payment for [*] Services and [*]
Analyses to be performed by Lynx during such calendar [*]. The Parties
acknowledge and agree that, regardless of the amount of [*] Services and [*]
Analyses actually performed by Lynx in such calendar [*], the aggregate
Value of such [*] Services and [*] Analyses performed in such calendar [*]
shall be deemed to be [*] U.S. Dollars. If Product Launch does not occur by
[*], Lynx shall complete the development of the [*] Technology under the [*]
Development Plan at its sole cost and expense. As of [*], Bayer CropScience
shall have a remaining Credit in the amount of [*] U.S. Dollars, which
amount shall be for the performance by Lynx of at least [*] Analyses for
Bayer CropScience within [*] years after the date of Product Launch. For the
avoidance of doubt, the Parties hereby expressly agree that Bayer
CropScience shall never have to pay more than the remaining Credit of [*]
U.S. Dollars for these [*] Analyses and that in the event the remaining
Credit of [*] U.S. Dollars is not exhausted after such [*] Analyses, the
Credit can be further used by Bayer CropScience and its Affiliates for
additional [*] Analysis. Lynx shall perform [*] Analyses for Bayer
CropScience and its affiliates on such terms and conditions to be agreed
upon by the Parties, provided that in no event shall Lynx charge Bayer
CropScience and its affiliates more than the lesser of (a) the cost charged
by Lynx to third parties for the performance of similar assays, or (b) [*]
times Lynx's fully-burdened cost of performing the [*] Analysis."
7. Section 9 of the Fourth Amendment shall be amended as follows:
"The term of this Amendment shall be for five (5) years from the first date
written above and extendable upon mutual agreement and upon extension of the
Original Agreement. However, even after expiration of this Amendment, at
first written request of Bayer CropScience, Lynx shall render services with
respect to the [*] Technology to CropScience and its affiliates under terms
and conditions to be agreed upon by the Parties, provided that in no event
shall Lynx charge Bayer CropScience and its affiliates more than the lesser
of (a) the costs charged by Lynx to third parties for the performance of
similar assays, or (b) [*] times Lynx' fully-burdened cost of performing the
[*] Analysis."
8. Except as amended hereby, the Original Agreement shall remain in full force
and effect.
9. This Amendment may be executed in one or more counterparts, each of which
shall be an original, and all of which shall constitute together the same
document.
[ * ] = 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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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the date first written above.
LYNX THERAPEUTICS, INC. BAYER CROPSCIENCE GMBH
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Volkert Sjut
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Printed Name: Xxxxx X. Xxxxxxxx Printed Name: Volkert Sjut
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Title: President and CEO Title: Managing Director
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By: /s/ Xxxxxxx Faldie
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Printed name: Xxxxxxx Faldie
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Title: General Counsel
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