Exhibit 99.2
COVENANTS NOT TO XXX
These Covenants Not to Xxx (this "Agreement") are made as of July 24,
2003, entered into by and among IGEN Integrated Healthcare, LLC, a Delaware
limited liability company ("NEWCO"), Meso Scale Diagnostics, LLC., a Delaware
limited liability company, and Meso Scale Technologies, LLC., a Delaware limited
liability company (collectively "Meso Scale"), Roche Diagnostics GmbH, a company
duly organized and validly existing under the laws of the Federal Republic of
Germany ("Roche Diagnostics"), Roche Holding Ltd, a company duly organized and
validly existing under the laws of Switzerland (together with Roche Diagnostics
referred to as "Roche") and IGEN LS LLC, a Delaware limited liability company
("LLC").
WHEREAS, IGEN International, Inc. and Roche Diagnostics are parties to
an Improvements License Agreement dated as of the date hereof (the "Improvements
License Agreement"),
WHEREAS, IGEN International, Inc. and LLC are parties to a License
Agreement dated as of the date hereof (the "License Agreement"),
WHEREAS, as a part of the transactions contemplated by the Merger
Agreement, IGEN is expected to assign all of its rights under the License
Agreement to NEWCO,
WHEREAS, Meso Scale are parties to one or more license agreements
between themselves and with IGEN International, Inc. relating to ECL Core
Technology (as defined herein), and
WHEREAS, the parties hereto desire to enter into this Agreement,
NOW, THEREFORE, in consideration of these premises and the mutual
covenants herein contained, NEWCO, Meso Scale, Roche and LLC (each singly a
"Party" and collectively the "Parties") hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, capitalized terms shall have the
respective meanings set forth below. Capitalized terms used in this Agreement
and not defined below shall have the meanings given to such terms in the Merger
Agreement.
1.1 "AFFILIATE" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person. The term
"person" means any individual, firm, corporation, partnership, company, limited
liability company, trust, joint venture, association, Governmental Entity or
other entity. The term "Government Entity" means any domestic or foreign
(whether a national, Federal, state, provincial, local or otherwise) government
or any court of competent jurisdiction, agency or commission or other
governmental authority or instrumentality, domestic or foreign. Neither
Genentech Inc., 0 XXX Xxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000, XXX, nor
Chugai Pharmaceutical Co., Ltd, 0-0 Xxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx, 000-0000,
Xxxxx shall be deemed an Affiliate of LLC for purposes of this Agreement.
Neither Meso Scale Diagnostics, LLC., 0000 Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx,
XXX 00000 nor Meso Scale Technologies,
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LLC., 0000 Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx, XXX 00000 shall be deemed an
Affiliate of NEWCO for purposes of this Agreement.
1.2 "COMMERCIAL AGREEMENTS" means the License Agreement
and the Improvements License Agreement.
1.3 "COVERED NEWCO ACTIVITY" means any NEWCO Activity
that is covered by the covenant not to xxx contained in Section 2.1.
1.4 "COVERED NEWCO ENTITIES" shall have the meaning
contained in Section 2.2.
1.5 "COVERED NEWCO TECHNOLOGY" means each of the
following (i) developed, discovered, invented and/or acquired by a NEWCO Party
or any of its Affiliates, in each case, after the Effective Time; and (ii) which
such NEWCO Party or such Affiliate owns or has a license to use:
(a) ECL Core Technology;
(b) Any improvements to reagent technology used in the
ECL Assays (as defined in the License Agreement) for those analytes listed on
Exhibit A attached hereto; and
(c) Any improvements to components/features that are used
in ECL Instruments (as defined in the License Agreement) being sold by Roche or
any of its Affiliates at or prior to the Effective Time and that are described
in Exhibit B attached hereto.
Notwithstanding the foregoing, for the avoidance of doubt and for the sake of
clarification, paragraphs (b) and (c) above shall not include any of the
following:
(i) Any polymerase chain reaction ("PCR") (nucleic acid
testing) technology;
(ii) Any technology relating to assays for analytes not
listed on Exhibit A;
(iii) Any components/features of ECL Instruments that are
not described in Exhibit B;
(iv) Any new components/features of ECL Instruments that
are developed, discovered and/or invented after the Effective
Time; and
(v) Any devices that are peripheral to ECL Instruments,
do not use ECL technology and are not described in Exhibit B,
such as printers, sample preparation devices, non-ECL modular
units, IT equipment and software for post-analytical analyses,
or improvements to any peripheral devices.
1.6 "COVERED ROCHE ACTIVITY" means any Roche Activity
that is covered by the covenant not to xxx contained in Section 3.1.
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1.7 "COVERED ROCHE ENTITIES" shall have the meaning
contained in Section 3.2.
1.8 "COVERED ROCHE TECHNOLOGY" means each of the
following: (i) developed, discovered, invented and/or acquired by a Roche Party
or any of its Affiliates, in each case, after the Effective Time; and (ii) which
such Roche Party or such Affiliate owns or has a license to use:
(a) ECL Core Technology;
(b) Any improvements to reagent technology used in the
ECL Assays (as defined in the License Agreement) for those analytes listed on
Exhibit A attached hereto; and
(c) Any improvements to components/features that are used
in ECL Instruments (as defined in the License Agreement) being sold by Roche or
any of its Affiliates at or prior to the Effective Time and that are described
in Exhibit B attached hereto.
Notwithstanding the foregoing, for the avoidance of doubt and for the sake of
clarification, paragraphs (b) and (c) above shall not include any of the
following:
(i) Any polymerase chain reaction ("PCR") (nucleic acid
testing) technology that is not specifically included in Roche
Improvements (as defined in the Improvements License
Agreement);
(ii) Any technology relating to assays for analytes not
listed on Exhibit A;
(iii) Any components/features of ECL Instruments being sold
at the Effective Time that are not described in Exhibit B;
(iv) Any new components/features of ECL Instruments that
are developed, discovered and/or invented after the Effective
Time; and
(v) Any devices that are peripheral to ECL Instruments,
do not use ECL technology and are not described in Exhibit B,
such as printers, sample preparation devices, non-ECL modular
units, IT equipment and software for post-analytical analyses,
or improvements to any peripheral devices.
1.9 "ECL CORE TECHNOLOGY" means detection methods and
detection systems, which employ electrochemiluminescence in the detection and/or
quantification of an analyte, including but not limited to ECL reagents, ECL
assays and/or immunodiagnostic detection methods by which light generation
occurs when a molecular compound (such as a ruthenium metal chelate) is
electrically stimulated by applying a voltage to an electrode which triggers a
chemical reaction to emit photons.
1.10 "EFFECTIVE TIME" shall have the meaning contained in
the Merger Agreement.
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1.11 "NEWCO FUTURE PATENTS" and "ROCHE FUTURE PATENTS"
shall mean U.S. or foreign patents issued to a person covering subject matter
within the Covered NEWCO Technology or Covered Roche Technology, respectively,
that claim their earliest priority from a patent application filed by a person
after the Effective Time, or in the case of Covered NEWCO Technology or Covered
Roche Technology acquired from a third party after the Effective Time, that
claim their earliest priority from a patent application filed by a person either
before or after the Effective Time.
1.12 "INTELLECTUAL PROPERTY RIGHTS" means all existing or
future U.S. or foreign (a) patents, patent applications or other patent rights
(including without limitation utility patents or "utility models"), (b)
copyrights and rights of authors, (c) trademarks, trade names, logos, service
marks and Internet domain names, (d) data and database rights, (e) designs and
registered designs, and (f) all registrations, extensions, substitutions,
divisions, continuations, continuations-in-part, reexaminations, reissues,
renewals and confirmations of any of the foregoing.
1.13 "MERGER AGREEMENT" means the Agreement and Plan of
Merger dated as of the date of this Agreement among Roche Holding Ltd, 66
Acquisition Corporation II, IGEN International, Inc. and NEWCO.
1.14 "NEWCO ACTIVITY" shall have the meaning contained in
Section 2.1.
1.15 "NEWCO PARTIES" means NEWCO, Meso Scale, and, prior
to the Effective Time, LLC.
1.16 "NEWCO PROPERTY RIGHTS" means any and all
Intellectual Property Rights owned by a NEWCO Party or its Affiliates on or
after the Effective Time, or which any of them have the right to license or
sublicense to third parties on or after the Effective Time (excluding
Intellectual Property Rights licensed to a NEWCO Party under the Improvements
License Agreement).
1.17 A "PERSON" means any individual, firm, corporation,
partnership, company, limited liability company, trust, joint venture,
association, domestic or foreign (whether national, Federal, state, provincial,
local or otherwise) government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, or other entity
1.18 "ROCHE ACTIVITY" shall have the meaning contained in
Section 3.1.
1.19 "FIELD" means
(a) the analyzing of specimens taken from a
human body, including without limitation blood, body fluid or
tissue, for the purpose of testing, with respect to that human
being, for a physiological or pathological state, a congenital
abnormality, safety and compatibility of a treatment, or to
monitor therapeutic measures.
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(b) Notwithstanding anything contained in
subsection 1.19(a), above, to the contrary, the Field shall
not include analyzing for (A) life science research and/or
development, including at any pharmaceutical company or
biotechnology company, (B) patient self testing use; (C) drug
discovery and/or drug development (including at any
pharmaceutical company or biotechnology company), including
clinical research or determinations in or for clinical trials
or in the regulatory approval process for a drug or therapy,
or (D) veterinary, food, water, or environmental testing or
use.
1.20 "ROCHE PARTIES" means Roche and, after the Effective
Time, LLC.
1.21 "ROCHE PROPERTY RIGHTS" means any and all
Intellectual Property Rights owned by a Roche Party or its Affiliates on or
after the Effective Time, or which any of them have the right to license or
sublicense to third parties on or after the Effective Time (excluding
Intellectual Property Rights licensed to a Roche Party under the License
Agreement).
2. COVENANT NOT TO XXX BY ROCHE PARTIES
2.1 COVENANT BY ROCHE PARTIES. Subject to the limitations
set forth in Section 2.3 below, each Roche Party hereby covenants and
irrevocably agrees (for itself and each of its Affiliates) that it shall not
directly or indirectly assert, authorize, pursue or induce any third party to
assert or pursue, assist or cooperate with any third party in asserting or
pursuing, or seek to obtain any recovery with respect to any legal or equitable
cause of action, suit, claim, defense, offset, counterclaim, cross-claim or
pleading or other proceeding of any sort whatsoever, participate in any
proceeding or action, or make any allegations against a NEWCO Party or any of
the Covered NEWCO Entities (as defined in Section 2.2 below) asserting that the:
(i) manufacture, use, sale, offer for sale,
importation, or exportation of any product,
or
(ii) act of authorizing others to manufacture,
use, sell, offer for sale, import, or export
any product, or
(iii) provision of any service, or
(iv) practice of any method, or
(v) promulgation of any specification,
after the Effective Time (the activities referred to in (i) through (v) above
inclusive being referred to, collectively, as the "NEWCO Activities") that is
both (i) conducted with respect to Products that use or incorporate ECL
Technology (as such terms are defined in the Improvements License Agreement) and
(ii) covered by or includes, in whole or in part, directly or indirectly, or is
performed or used in conjunction with, any of the claims under Roche Future
Patents, constitutes direct infringement, contributory infringement, inducement
to infringe, or otherwise violates, misappropriates or infringes any legal right
under any of the Roche Future Patents.
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2.2 PARTIES PROTECTED. The covenant of Section 2.1 above
shall extend to the NEWCO Parties' Affiliates and to the NEWCO Parties' and such
Affiliates' respective officers, directors, advisors, consultants,
representatives, employees, agents, customers, distributors, licensees,
sublicensees, successors, assigns and any other third parties involved in the
Covered NEWCO Activities, including without limitation when products or services
included in the Covered NEWCO Activities are incorporated into, bundled with or
used in combination with other products and services. The parties protected
under this Section 2.2 are hereinafter referred to as "Covered NEWCO Entities."
2.3 LIMITATIONS ON SCOPE OF COVENANT BY ROCHE PARTIES.
Notwithstanding anything to the contrary herein:
(a) the covenant not to xxx granted in Section 2.1 above
shall not extend to any future claims, suits, actions or proceedings for breach
of contract brought by a Roche Party or any of its Affiliates to the extent
based on breaches by a NEWCO Party or any of its Affiliates of any of the
Commercial Agreements;
(b) nothing in this Agreement shall preclude any of the
Roche Parties or their respective Affiliates from providing any evidence
regarding any of the Roche Property Rights pursuant to subpoena or court order
or as otherwise required by law.
2.4 COVENANT NOT RETROACTIVE. The covenants granted under
this Article 2 shall not have retroactive effect to activities of a NEWCO Party
(or any predecessor, including IGEN, or assignor) or any Covered NEWCO Entity
prior to the Effective Time.
2.5 COVENANT RUNS WITH ROCHE PROPERTY RIGHTS. Any sale,
transfer or other disposition of a Roche Future Patent or any of the
Intellectual Property Rights licensed to IGEN under the Improvements License
Agreement (whether by a Roche Party or any subsequent holder or transferee)
shall be made subject to the covenant granted under this Article 2 and the
assignor shall cause any subsequent holder or transferee to agree in writing to
be bound by the covenant granted under this Article 2 as though an original
party to this Agreement.
2.6 COVENANT WITH RESPECT TO COVERED NEWCO ENTITIES. This
Agreement shall extend to and be for the benefit of the Covered NEWCO Entities.
To receive such benefits, each Covered NEWCO Entity shall be bound by the terms
and conditions of this Agreement as if it were named herein.
3. COVENANT NOT TO XXX BY NEWCO PARTIES
3.1 COVENANT BY NEWCO PARTIES. Subject to the limitations
set forth in Section 3.3 below, each NEWCO Party hereby covenants and
irrevocably agrees (for itself and each of its Affiliates) that it shall not
directly or indirectly assert, authorize, pursue or induce any third party to
assert or pursue, assist or cooperate with any third party in asserting or
pursuing, or seek to obtain any recovery with respect to any legal or equitable
cause of action, suit, claim, defense, offset, counterclaim, cross-claim or
pleading or other proceeding of any sort whatsoever, participate in any
proceeding or action, or make any allegations against a Roche Party or any of
the Covered Roche Entities (as defined in Section 3.2 below) asserting that the:
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(i) manufacture, use, sale, offer for sale,
importation, or exportation of any product,
or
(ii) act of authorizing others to manufacture,
use, sell, offer for sale, import, or export
of any product, or
(iii) provision of a service,
(iv) practice of a method, or
(v) promulgation of a specification,
after the Effective Time (the activities referred to in (i) through (v) above
inclusive being referred to, collectively, as the "Roche Activities") that is
both (a) conducted with respect to Products (as defined in the License
Agreement) within the Field and (b) covered by or includes, in whole or in part,
directly or indirectly, or is performed or used in conjunction with, any of the
claims under NEWCO Future Patents, constitutes direct infringement, contributory
infringement, inducement to infringe, or otherwise violates, misappropriates or
infringes any legal right under any of the NEWCO Future Patents.
3.2 PARTIES PROTECTED. The covenant of Section 3.1 above
shall extend to the Roche Parties' Affiliates and to the Roche Parties' and such
Affiliates' respective officers, directors, advisors, consultants,
representatives, employees, agents, customers, distributors, licensees,
successors, assigns and other third parties involved in the Covered Roche
Activities, including without limitation when products or services included in
the Covered Roche Activities are incorporated into, bundled with or used in
combination with other products and services. The parties protected under this
Section 3.2 are hereinafter referred to as "Covered Roche Entities".
3.3 LIMITATIONS ON SCOPE OF COVENANT BY NEWCO PARTIES.
Notwithstanding anything to the contrary herein:
(a) the covenant not to xxx granted in Section 3.1 above
shall not extend to any future claims, suits, actions or proceedings for breach
of contract brought by a NEWCO Party or any of its Affiliates to the extent
based on breaches by a Roche Party or any of its Affiliates of any of the
Commercial Agreements;
(b) in the event the License Agreement is terminated or
expires, nothing in the covenant not to xxx granted in Section 3.1(a) above or
in Section 3.1(b) above shall prevent or hinder a NEWCO Party or its Affiliates
from asserting or authorizing or inducing any third party to assert or assisting
any third party in asserting or seeking to obtain any recovery with respect to
any legal or equitable cause of action, claim, defense, offset, counterclaim,
cross-claim or pleading of any sort whatsoever, or participating in any claim,
suit, action or proceeding, or making any allegations against a Roche Party or
any Covered Roche Entity that any Covered Roche Activity after the date of
termination or expiration constitutes direct infringement, contributory
infringement, inducement to infringe, or otherwise violates, misappropriates or
infringes any claim under a NEWCO Future Patent; and
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(c) nothing in this Agreement shall preclude any of the
NEWCO Parties or their respective Affiliates from providing any evidence
regarding any of the NEWCO Property Rights pursuant to subpoena or court order
or as otherwise required by law.
(d) The covenant not to xxx granted in Section 3.1 above
shall not extend to any future claims, suits, actions or proceedings of any sort
brought by Meso Scale Diagnostics, LLC. ("MSD") and/or Meso Scale Technologies,
LLC. ("MST") against any of the Covered Roche Entities arising out of or related
to claims that the Roche Activities conducted after the Effective Time in
conjunction with ECL Core Technology that either involves the use of, or
constitutes direct infringement, contributory infringement, inducement to
infringe, or otherwise violates, misappropriates or infringes, any Intellectual
Property Right of MSD and/or MST in or relating to Multi-Array Assays, carbon
electrodes and/or disposable electrodes; provided, however, the foregoing
exception to the covenant not to xxx granted in Section 3.1 above shall not
limit or affect the "Consent by Meso Scale Diagnostics, LLC. and Meso Scale
Technologies, LLC" attached to the License Agreement.
3.4 COVENANT NOT RETROACTIVE. The covenants granted under
this Article 3 shall not have retroactive effect to activities of a Roche Party
(or any predecessor or assignor) or any Covered Roche Entity prior to the
Effective Time.
3.5 COVENANT RUNS WITH NEWCO PROPERTY RIGHTS. Any sale,
transfer or other disposition of a NEWCO Future Patent or any of the
Intellectual Property Rights licensed to LLC under the License Agreement
(whether by a NEWCO Party or any subsequent holder or transferee) shall be made
subject to the covenant granted under this Article 3 and the assignor shall
cause any subsequent holder or transferee to agree in writing to be bound by the
covenant granted under this Article 3 as though an original party to this
Agreement.
3.6 COVENANT WITH RESPECT TO COVERED ROCHE ENTITIES. This
Agreement shall extend to and be for the benefit of the Covered Roche Entities.
To receive such benefits, each Covered Roche Entity shall be bound by the terms
and conditions of this Agreement as if it were named herein.
4. INTELLECTUAL PROPERTY
4.1 NO OWNERSHIP, RIGHTS OR LICENSE.
Nothing contained herein shall confer on the NEWCO Parties or
any Covered NEWCO Entity any ownership interest or other interest (legal or
equitable), right or license in or to any Roche Property Right. Nothing
contained herein shall confer on the Roche Parties or any Covered Roche Entity
any ownership interest or other interest (legal or equitable), right or license
in or to any NEWCO Property Right. No Party shall have an obligation to exercise
efforts to create any Intellectual Property Rights, whether or not incorporated
in a Future Patent. Furthermore, no Parties shall have any obligation to
disclose or license any Future Patent to any other Party.
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5. TERM
5.1 The Parties agree that this Agreement will become
effective at the Effective Time.
5.2 In the event the Merger Agreement is terminated
pursuant to its terms prior to the Effective Time, this Agreement shall
automatically and simultaneously terminate. In the event of such termination, no
Party shall have any liability to any other Party pursuant to this Agreement. It
is understood and agreed that the consummation of the Merger shall not
constitute or cause a termination of this Agreement.
5.3 This Agreement shall terminate as to the covenant
granted under Article 2 on the last date on which a Roche Party or any of its
Affiliates may assert or bring any legal or equitable claim against any Covered
NEWCO Entity under any Roche Future Patent. This Agreement shall terminate as to
the covenant granted under Article 3 on the earlier of (a) the last date on
which a NEWCO Party or any of its Affiliates may assert or bring any legal or
equitable claim against any Covered Roche Entity under any NEWCO Future Patent
or (b) the date that the License Agreement is terminated in accordance with its
terms.
6. WARRANTY AND LIMITATION OF LIABILITY
6.1 Each Party represents and warrants to the other
Parties that it has the full right and power to grant and perform the covenants
specified herein.
6.2 IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER
PARTY HEREUNDER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY OR MULTIPLE DAMAGES OR LOST PROFITS ARISING OUT OF THE
BREACH THIS AGREEMENT OR ANY OTHER CAUSE OF ACTION, CLAIM, DEFENSE, OFFSET,
COUNTERCLAIM, CROSS-CLAIM OR PLEADING OF ANY SORT WHATSOEVER ARISING THEREFROM.
6.3 In the event of any legal or equitable cause of
action, suit, claim, defense, offset, counterclaim, cross-claim or other
proceeding in which any Covered NEWCO Entity or any Covered Roche Entity, as the
case may be (the "Prevailing Party"), obtains a final and nonappealable order of
a court of competent jurisdiction that provides or states that any Covered Roche
Entity or any Covered NEWCO Entity, as the case may be, breached Article 2 or
Article 3, as applicable, then the Prevailing Party shall be entitled to
reimbursement from the non-prevailing Covered Roche Entity or Covered NEWCO
Entity, as the case may be, of its legal fees and expenses incurred in such
cause of action, suit, claim, defense, offset, counterclaim, cross-claim or
other proceeding.
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7. GENERAL
7.1 APPLICABLE LAW. This Agreement is made in accordance
with and shall be governed by and construed under the laws of the State of New
York, U.S.A., without regard to its conflicts of laws rules.
7.2 ASSIGNMENTS. This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their permitted successors and
assigns; provided, however, that: (a) none of the Parties shall assign any of
its rights and obligations hereunder except as consented to by the all of the
other Parties, which consent shall not be unreasonably withheld, and (b) such
consent shall not be required with respect to an assignment of (i) any or all of
its rights and obligations hereunder to an Affiliate of such assigning Party; or
(ii) all (but not less than all) of its rights and obligations hereunder to an
acquirer of all or substantially all of the assets or business of the assigning
Party related to such party's use of ECL Technology, whether as incident to a
merger, consolidation, reorganization, acquisition or otherwise. Whenever there
has been an assignment by a Party as permitted by this Agreement, the term
"NEWCO Parties," "NEWCO Covered Entities, ""ROCHE Parties" or "ROCHE Covered
Entities," as used in this Agreement, shall also include and refer to, if
appropriate, such assignee.
7.3 INDEPENDENT CONTRACTORS. In granting, performing or
exercising rights under this Agreement, each Party acts and shall act at all
times as independent contractors and nothing contained in this Agreement shall
be construed or implied to create an agency, partnership or employer and
employee relationship between any of the Parties hereto. At no time shall one
Party make commitments or incur any charges or expenses for or in the name of
the other Party.
7.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and any
and all Schedules and Appendices referred to herein, together with the other
agreements referenced herein and the Transactions Agreements (as defined in the
Merger Agreement), embody the entire understanding of the parties with respect
to the subject matter hereof and shall supersede all previous communications,
representations or understandings, either oral or written, between the Parties
relating to the subject matter hereof. This Agreement shall not be amended,
altered or changed except by a written agreement signed by all of the Parties
hereto.
7.5 NO WAIVER. No delay or omission on the part of any
Party to this Agreement in requiring performance by any other Party or in
exercising any right hereunder shall operate as a waiver of any provision hereof
or of any right or rights hereunder; and the waiver, omission or delay in
requiring performance or exercising any right hereunder on any one occasion
shall not be construed as a bar to or waiver of such performance or right, or of
any right or remedy under this Agreement, on any future occasion. Any agreement
on the part of any Party to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such Party.
7.6 THIRD PARTY BENEFICIARIES. Except for Articles 2 and
3 of this Agreement, nothing contained in this Agreement is intended to confer
upon any person other than the Parties hereto and their respective successors
and permitted assigns any benefit, right or remedy under or by reason of this
Agreement.
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7.7 NOTICES. Any notice or other communication required
or permitted to be given to any Party hereto shall be in writing and shall be
deemed to have been properly given and to be effective on the date of delivery
if delivered in person or by facsimile (with electronic confirmation of receipt
and with a confirmation copy sent by internationally-recognized air courier
service), to such Party at the following address:
In the case of NEWCO, MESO SCALE or, prior to the Effective Time, LLC:
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: President
Fax No.: 0-000-000-0000
With a copy to NEWCO's designated legal counsel.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
In the case of Roche or, after the Effective Time, LLC:
Roche Diagnostics GmbH
Xxxxxxxxx Xxxxxxx 000
X-00000 Xxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Attention: Legal Department
Fax No.: 000-00-000-000-0000
With a copy to Roche's designated legal counsel.
Any Party may change its address for communications by a notice to the
other Parties in accordance with this Section.
7.8 HEADINGS. The headings of the several sections are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
7.9 SEVERABILITY. If, under applicable law, any term,
condition or provision of this Agreement is invalid or unenforceable, or
otherwise directly or indirectly affects the validity of any other material
provision(s) of this Agreement (the "Severed Clause"), then this Agreement shall
remain in full force and effect, except for the Severed Clause. The Parties
agree to renegotiate in good faith the Severed Clause and be bound by the
mutually agreed substitute provision.
7.10 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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7.11 EXHIBITS/ATTACHMENTS. This Agreement includes the
following exhibits and attachments which are hereby incorporated by reference:
Exhibit A -Roche ECL Assays
Exhibit B- Components/Features of ECL Instruments
7.12 INTERPRETATION. The official text of this Agreement
shall be English. For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms of this Agreement do not amend or
supersede, and shall not be used to interpret, the
terms of the License Agreement, the Improvements
License Agreement, the License Agreement (Human IVD,
Veterinary IVD, HLA Typing, Paternity, DNA
Manufacturing and Plasma Testing), dated as of the
date hereof, by and among NEWCO, X. Xxxxxxxx-Xx Xxxxx
Ltd ("Roche/Basle"), Roche Diagnostics and Roche
Molecular Systems, Inc. ("Roche/USA"), or the License
Agreement (Human IVD Services and Animal Diagnostic
Services), dated as of the date hereof, by and among
NEWCO, Roche/Basle, Roche Diagnostics and Roche/USA;
(b) the terms defined in this Agreement have the
meanings assigned to them in this Agreement and
include the plural as well as the singular, and the
use of any gender herein shall be deemed to include
the other gender;
(c) references herein to "Sections,"
"Subsections," "Paragraphs," and other subdivisions
without reference to a document are to designated
Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(d) a reference to a Subsection without further
reference to a Section is a reference to such
Subsection as contained in the same Section in which
the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(e) the words "herein," "hereof," "hereunder,"
and other words of similar import refer to this
Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean
"including without limitation";
(g) the term "to the extent" shall mean the
degree to which a subject or other thing extends, and
such phrase shall not mean simply "if";
(h) the term "or" is not exclusive; and
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(i) the Exhibits, Appendices and Annexes to this
Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the day and year first above written.
IGEN INTEGRATED HEALTHCARE, LLC
By: /s/ Xxxxxxx X. Xxxxxx
______________________________________
Title: President and Chief Operating
Officer
MESO SCALE DIAGNOSTICS, LLC.
By: /s/ X. Xxxxxxxxxxx
______________________________________
Title: President and Chief Executive
Officer
MESO SCALE TECHNOLOGIES, LLC.
By: /s/ X. Xxxxxxxxxxx
______________________________________
Title: President and Chief Executive
Officer
ROCHE DIAGNOSTICS GMBH
By: /s/ X.X. Xxxxxx
______________________________________
Title: General Counsel
By: /s/ Xxxxx Von Prondzynski
______________________________________
Title: Authorized Signatory
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ROCHE HOLDING LTD
By: /s/ D. Xxxxx X. Xxxxx
______________________________________
Title: President and Chairman
By: /s/ Xxxxx Xxxxxxxx
______________________________________
Title: Chief Financial Officer
IGEN LS LLC
By: /s/ Xxxxxx X. Xxxxxxxxxxx
______________________________________
Title: Chairman and Chief Executive
Officer
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EXHIBIT A
ROCHE ECL ASSAYS
T4 Anti-HBs AFP
T3 HBsAg CEA
free T3 Anti-Hbe PSA
free T4 HbeAg free PSA
T uptake Anti-HBc CA 15-3
TSH Anti-HBc/IgM CA 19-9
anti-TPO Anti HAV CA 12-5
Thyreoglobulin Anti-HAV/IgM CA 72-4
anti-Thyreoglobulin Anti-HCV Cyfra 21-1
TSH Receptor NSE
anti-HIV S 100
Prolactin anti-HIV p-24 P1NP
LH HIV Antigen XXXX-A
FSH HIV Combined Lp-PLA2
Testosterone sCD40L
Progesterone anti-Rubella IgG IL 18
Estradiol anti-Rubella IgM Survivin
hCG anti-Toxoplasmosis IgG
hCG+(beta) anti-Toxoplasmosis IgM
SHBG anti-CMV IgG
DHEA-S anti-CMV IgM
hGH H. Pylori
ACTH anti-HGV
Cortisol anti-HTLV
Insulin
Ferritin (beta)-Crosslaps
Folate Osteocalcin
RBC Folate PTH
Vitamin B12
Vitamin D
C-Peptide
IgE
Digoxin
Troponin T Digitoxin
CK-MB
Myoglobin
pro-BNP
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EXHIBIT B
COMPONENTS/FEATURES OF ECL INSTRUMENTS
Any component/feature of an ECL Instrument, which
component/feature performs one or more of the following functions:
1. Dispenses the antibodies (or those specific proteins used for
the Folate assay, RBC Folate assay and Vitamin B-12 assay; or antigens in the
case where the analyte in the immunoassay is an antibody) for purposes of
performing an ECL Assay;
2. Accesses and aliquots magnetic beads directly from the Reagent
Packs on board the ECL Instrument;
3. Incubates the patient sample with antibodies (or those
specific proteins used for the Folate assay, RBC Folate assay and Vitamin B-12
assay; or antigens in the case where the analyte in the immunoassay is an
antibody) for conducting an ECL Assay;
4. Transfers the incubated sample to the flow cell in the ECL
Instrument where the electrochemiluminescence reaction takes place;
5. Performs one or more pre-wash steps; or
6. Flushes out and cleans the flow cell following the performance
of the electrochemiluminescence measurement.
Capitalized terms in this Exhibit B shall have the meanings assigned to them in
the License Agreement.
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