EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT OF MASTER AGREEMENT
This First Amendment of Master Agreement is made and effective as of 25
September, 2000, by and between Becton, Xxxxxxxxx and Company, a New Jersey
corporation through its BD Biosciences Division, having a place of business at 0
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter "Becton"), and Nanogen,
Inc., a Delaware corporation having its principal office and place of business
at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter
"Nanogen").
WHEREAS, Becton and Nanogen entered into and are parties to a certain
Master Agreement (hereinafter "Master Agreement") effective as of 1 October
1997; and
WHEREAS, the parties now desire to amend certain provisions of the
Master Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree to amend the Master Agreement as follows:
1. With respect to all periods commencing on and after the effective date
of this Amendment, the definition of "Partnership Business" appearing in the
second sentence of the second paragraph of Recital D on page 2, is hereby
amended to read in its entirety as follows:
"Partnership Business" shall mean collectively the
foregoing activities and functions to be performed
by the Partnership, its Partners and their
respective Affiliates, together with the commercial
exploitation, through the Nanogen Partner or its
designated Affiliate and unaffiliated third parties,
of technology developed by the Partnership prior to
September 25, 2000 including any and all
improvements thereto occurring after such date
("Partnership Technology") in order to perform
research and development activities and produce,
manufacture, market and sell Products solely in the
Field, by way of licensing exclusively such
Partnership Technology first to the Becton Partner
or its designated Affiliate, to in turn be
sub-licensed exclusively to the Nanogen Partner or
its designated Affiliate, and finally to such
unaffiliated third parties by the Nanogen Partner or
its designated Affiliate.
2. The second sentence of Paragraph 1.1 is hereby amended to add the words
"and sublicensees, as applicable" after the words "and their respective
Affiliates".
3. Section 2.6 (Right of First Offer) is hereby deleted in its entirety.
4. The first sentence of Section 5.1 is hereby amended to delete the
reference in (iv) to the SDA License Agreement.
5. In Section 7.7, the Notice address for Becton or the Becton Partner is
hereby amended to read as follows (the address for required copies remaining
unchanged):
BD Biosciences
0 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President, Licensing and Patents
Except with respect to the foregoing amendments, all other provisions of
the Master Agreement remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment of
Master Agreement through duly authorized representatives on the dates set forth
below, effective as of the date first written above.
NANOGEN, INC. BECTON, XXXXXXXXX AND COMPANY
THROUGH ITS BD BIOSCIENCES DIVISION
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXX
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Authorized Signature Authorized Signature
XXXXXXX X. XXXXXXXX
XXXXXX X. XXXXXXXX SENIOR VICE PRESIDENT
CHAIRMAN AND CEO TECHNOLOGY, STRATEGY & DEVELOPMENT
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Name and Title Name and Title
Date: 9-27-00 Date: September 28, 2000
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