EXHIBIT 99.1
DATED 25 October 2004
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SOLEXA LIMITED
AND
LYNX THERAPEUTICS INC
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COLONY TECHNOLOGY SHARING
AGREEMENT
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TABLE OF CONTENTS
1. Definitions and Interpretation...................................................................... 2
2. Term................................................................................................ 4
3. Project Management.................................................................................. 5
4. Assignment and Ownership of IP Rights............................................................... 5
5. License............................................................................................. 6
6. Ownership of Background Assets...................................................................... 7
7. Commercial Exploitation............................................................................. 7
8. Payments and Royalties.............................................................................. 7
9. Infringement of the Intellectual Property Rights.................................................... 9
10. Third Party Claims.................................................................................. 9
11. Audit Rights........................................................................................ 9
12. Liability........................................................................................... 10
13. Confidentiality..................................................................................... 10
14. Termination......................................................................................... 11
15. Survival............................................................................................ 11
16. Announcements....................................................................................... 12
17. Non-solicitation.................................................................................... 12
18. No Assignment....................................................................................... 13
19. Costs and Payments.................................................................................. 13
20. Entire Agreement.................................................................................... 13
21. Severability........................................................................................ 13
22. Notices............................................................................................. 13
23. Third Party Rights.................................................................................. 14
24. Disputes............................................................................................ 15
25. Governing Law and Jurisdiction...................................................................... 15
Schedule 1..................................................................................................... 17
Background IP....................................................................................... 17
Schedule 2..................................................................................................... 18
Background Assets................................................................................... 18
THIS DEED is made the 25th day of October 2004
BETWEEN:
SOLEXA LIMITED a company registered in England and Wales with company number
03625145 and registered office at Chesterford Research Park, Little
Chesterford, Saffron Xxxxxx, Essex CB10 1XL ("SOLEXA") and
LYNX THERAPEUTICS INC a Delaware corporation having its principal place of
business at 00000 Xxxxxxxxxx Xxxx, Xxxxxxx, XX 00000 ("LYNX").
RECITALS:
On 2 December 2003, Serono International S.A. issued an Information
Memorandum in respect of the proposed sale by auction by Manteia S.A.
(the "SELLER") of all the assets and rights identified in Schedules 1
and 2.
Solexa and Lynx jointly acquired the assets and rights identified in
Schedules 1 and 2 (the "ACQUISITION") on 15 April 2004.
Pursuant to the terms of a loan agreement dated 12 August 2004 Lynx has
agreed to transfer its ownership of the Colony Technology (as
hereinafter defined) to Solexa in consideration for the grant of a
worldwide, perpetual and non-exclusive license of the Colony
Technology. Both Parties shall have the right to exploit such rights
and assets on the terms set out herein.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, the following words and expressions shall have the
following meanings:-
"ACQUISITION": has the meaning prescribed in Recital (B);
"AFFILIATE": means any company, partnership or other entity which
directly or indirectly Controls, is Controlled by or is under common
Control with, either Party;
"ACQUISITION DATE": means the date of completion of the Acquisition;
"BACKGROUND IP": means any IP Rights obtained from the Seller as a
result of the Acquisition including in relation to the Background
Assets, as identified in Schedule 1;
"BACKGROUND ASSETS": means assets acquired from the Seller as a result
of the Acquisition as identified in Schedule 2;
"COLONY TECHNOLOGY": means the Background IP, any Foreground IP, any
Development and any Know-How relating thereto;
"COMPETENT AUTHORITY": means any local or national agency, authority,
department, court, tribunal, arbitrator, inspectorate, minister,
ministry official or public or statutory person (whether autonomous or
not) of, any government of, any country having jurisdiction over this
Agreement or any of the Parties or in respect of the regulation of a
Product;
"CONTROL": means the ownership of more than fifty percent (50%) of the
issued share capital or the legal power to direct or cause the
direction of the general management and policies of the Party in
question;
"DEED": means the terms and conditions set out herein, together with
any schedules hereto;
"DEVELOPMENT(S)": means any development, improvement or modification of
the IP Rights or Background IP whenever, wheresoever and however
undertaken, created, acquired, made or invented by the Parties after
the Acquisition Date, either jointly or independently including in
conjunction or jointly with any third party;
"EFFECTIVE DATE": means the date on which this Deed becomes effective
pursuant to the terms of clause 2.1;
"FOREGROUND IP": means any IP Rights in relation to a Development
(other than a Severable Development created by Lynx);
"FORCE MAJEURE": means any cause preventing either Party from
performing all or any of its obligations under this Deed which arise or
is attributable to acts, events, omissions or accidents beyond the
reasonable control of the Party so prevented;
"KNOW-HOW": means trade secrets, confidential business information and
unpatented technical and other information, including information
comprising or relating to concepts, formulae, specifications,
discoveries, data, material, ideas, inventions, procedures for
experiments, tests and results of experimentation and testing, results
of research or development processes, manufacturing processes and
techniques whether such information is recorded or stored in any paper
notebooks, books, files, ledgers, records, tapes, discs, diskettes,
CDROM or any other media;
"IP RIGHTS": means all rights in or to any and all patents, trade
marks, service marks, trade and business names, copyright (including
without limitation copyright in computer programs), rights in designs,
database rights, rights in Know-How, and all other intellectual
property rights or forms of protection of a similar or equivalent
nature or effect which may subsist anywhere in the world (whether or
not registered or capable of registration), together with all
applications for registration of and rights to apply for, and any
licence to use, any of the forgoing;
"NET SALES": means subject to Clause 9, any invoiced amount in respect
of the Sale of Products less the following, to the extent they are paid
or allowed and included in the invoice price:
(a) quantity and/or trade discounts actually granted;
(b) freight, shipment and insurance costs incurred in transporting
Products to customers; and
(c) sales taxes and customs duties incurred in connection with the
sale, exportation or importation of Product.
"PARTIES": means Solexa and Lynx collectively and reference to a
"PARTY" shall mean either Solexa or Lynx as the context so requires;
"PRODUCT(S)": means any and all goods, products, services or materials
utilising or incorporating or exploiting any part of the Colony
Technology the Sale of which would infringe the Colony Technology if
such Sale was not by the owner of the Colony Technology or with the
consent of such owner or if such utilisation, incorporation or
exploitation would require the consent or license of or to be
undertaken by such owner;
"PURCHASE AGREEMENT": means the Asset Purchase Agreement between the
Seller, Solexa and Lynx relating to the Colony Technology existing at
the date of such agreement;
"REGISTERED IP": means Background IP or Foreground IP which is
registered or capable of registration on any official register of IP
Rights anywhere in the world;
"SALE": means sale, lend, license, lease, hire, supply or dispose and
"Sells" and "Sold" shall be construed accordingly;
"SELLER": has the meaning prescribed in Recital (A);
"SEVERABLE DEVELOPMENT(S)": means any development, improvement or
modification of the Background IP that can be exploited without
infringing the IP Rights in the Background IP;
"STEERING COMMITTEE": has the meaning prescribed by Clause 3.1.
1.2 In this Deed:
1.2.1 all references to Clauses and Schedules are references to
clauses and schedules to this Deed unless the context
otherwise requires;
1.2.2 references to statutory provisions shall, except where the
context requires otherwise, be construed as references to
those provisions as respectively amended or re-enacted or as
their application is modified by other provisions (whether
before or after the date of this Deed from time to time);
1.2.3 unless the context otherwise requires, references to the
singular include the plural and vice versa, references to any
gender include all other genders, and references to "persons"
shall include individuals, bodies corporate, unincorporated
associations, businesses and partnerships;
1.2.4 the headings shall be ignored in construing the Deed; and
1.2.5 references to the words "includes" or "including" shall be
construed without limitation to the generality of the
preceding words.
1.3 The Schedule(s) form part of this Deed and shall have the same force
and effect as if expressly set out in the body of this Deed.
2. TERM
2.1 This Deed shall commence and become effective in all respects in the
event of the First Closing as defined in the agreement committing Lynx
to make an offer to acquire the entire issued share capital of Solexa
("Acquisition Agreement") dated 28th September 2004 not occurring,
other than as a result of a breach of the Acquisition Agreement by
Solexa.
2.2 This deed shall continue thereafter unless or until it expires or is
terminated in accordance with Clause 14.
3. PROJECT MANAGEMENT
3.1 The Parties shall each appoint a representative to form a committee for
the term of this Deed to deal with any issues that arise between them
including with regard to Developments of the Colony Technology (the
"STEERING COMMITTEE").
3.2 The Steering Committee shall consist of one member from each Party.
Each Party may replace or provide substitutes for its members as it
sees fit. On and from the Effective Date, the following persons shall
be appointed to the Steering Committee:
3.2.1 From Solexa: Xxxx Xxxxx
3.2.2 From Lynx: Xxxx Xxxxxxxx
3.3 The Steering Committee will meet every month in person or by telephone
conference at such places and on such dates as shall be mutually
convenient to the Parties. Additional representatives of the Parties
may attend provided the Party inviting the additional representatives
gives prior written notification to the other Party. The Quorum for
meetings of the Steering Committee shall be one representative from
each Party.
3.4 All decisions to be taken by the Steering Committee will require
unanimous agreement from both Parties representatives. In the event
that there is not unanimous agreement, the matter in question requiring
the decision of the Steering Committee shall not proceed and the status
quo shall be preserved.
3.5 The Steering Committee shall keep accurate minutes of its deliberations
which record all proposed decisions and actions recommended or taken.
Draft minutes to be approved by the Committee Chairman within ten (10)
days.
3.6 During the term of the Deed each of the Parties shall furnish the
Steering Committee with monthly written reports describing the progress
of agreed projects and comprehensive written reports within thirty (30)
days of the completion of each such project.
3.7 Chairmanship of each meeting of the Steering Committee shall alternate
between the Parties. The Chairman shall not have a casting vote.
3.8 The costs of each Party's representative on the Steering Committee
shall be for the account of such Party. Expenses of the Steering
Committee shall be borne as agreed between the Parties of it not
agreed, equally by the Parties.
4. ASSIGNMENT AND OWNERSHIP OF IP RIGHTS
4.1 In consideration of the license granted pursuant to Clause 5 (the
"LICENSE") Lynx hereby irrevocably and absolutely assigns to Solexa
(including where possible by way of assignment of future IP Rights) all
such right, title and interest as it has, may have, may come to have or
is entitled to in the Background IP, Foreground IP, any Developments
and any Know-How in relation thereto but excluding any Severable
Developments created by Lynx.
4.2 The assignment pursuant to Clause 4.1 includes all rights to which Lynx
is entitled or which Lynx has, may have, or may come to have to xxx for
and claim damages in respect of all and any infringements and
threatened infringements of the IP Rights in any Background IP,
Foreground IP and any Development (excluding any Severable Development
created
by Lynx) which have occurred prior to the date hereof and all rights of
possession, to recover possession and to exclusive use of the Know-How
in relation thereto.
4.3 Lynx confirm that this Deed is made with the goodwill (if any)
attaching to the IP Rights.
4.4 Any Severable Developments created by Lynx will be owned by Lynx and
Lynx hereby grants to Solexa the non-exclusive, worldwide, perpetual
right and license under such right, title and interest as it may have
in such Severable Development and the Know-How and IP Rights relating
thereto to develop, make, use, import, market and sell Product.
4.5 Any IP Rights developed, acquired or created by either Party
independently of the other Party which is not a Development shall be
owned by such Party and nothing in this Deed shall give the other Party
any right, title, interest or licence therein or in respect thereof.
4.6 Each Party shall execute all such documents and do all such things as
shall be reasonably necessary to vest or perfect the vesting of the
Colony Technology (including Registered IP) in Solexa as provided in
this Clause 4 and otherwise to give effect to the provisions of this
Clause 4. The expenses of the Parties in doing so shall be shared
equally between the Parties.
5. LICENSE
5.1 Solexa hereby grants to Lynx the non-exclusive, worldwide, perpetual
(subject to the terms of this Deed) right and license under such right,
title and interest as it may have in the Background IP and Foreground
IP (if any) to develop, make, have made, use, import, market and sell
Product.
5.2 Subject to Clause 7.1 Lynx may sub-license the rights granted to it
under Clause 5.1. Any sub-licenses granted pursuant to this Clause 5.2
shall be on such terms and conditions as Solexa may approve from time
to time (such approval will not be unreasonably withheld or delayed),
and Lynx shall be responsible and liable to Solexa for all acts and
omissions of any sub-licensee of Lynx as if they were acts and
omissions of Lynx.
5.3 Solexa shall in its sole discretion determine the patent filing
strategy, including in relation to any Developments (other than the
Severable Development created by Lynx) and any inventions comprising
part of any Background IP and/or Foreground IP and shall be responsible
for the prosecution, maintenance, enforcement and defence of any
resulting IP Rights as it may determine appropriate in its absolute
discretion.
5.4 For the avoidance of doubt it is declared and agreed that any and all
Foreground IP arising out of work carried out by or upon behalf of
either Party shall be vested in and belong exclusively to Solexa.
6. OWNERSHIP OF BACKGROUND ASSETS
All right, title and interest in the Background Assets shall remain
with the Party in possession of the same at the Effective Date.
7. COMMERCIAL EXPLOITATION
7.1 Both Parties shall have the right (the rights of Lynx being exclusively
granted under the License) to manufacture, market, distribute, sell and
otherwise commercially exploit the Products and Colony Technology
independently of the other Party as it may determine appropriate in its
absolute discretion (including without limitation to grant one or more
non-exclusive licences provided the same do not include any right to
sub-license and do not prejudice the integrity, reputation, or value of
the Colony Technology or the ability of the other Party to manufacture,
market, distribute, sell or otherwise exploit Products or the Colony
Technology). Neither Party shall grant any licence of any part of the
Colony Technology to any third party during the period of three years
from the Effective Date without the prior written consent of the other.
7.2 At least 30 days prior to the grant of any licence or right by any
Party under or in relation to the Colony Technology to any third party
such Party shall provide to the other Party details of the licence or
right to be granted and a copy of the agreement or document recording
the same. The Party intending to grant the licence or right shall take
into account (including by way of amendment to the intended licence or
right) the comments of the other Party to the extent the other Party
reasonably requires in order to preserve the integrity, reputation or
value of the Colony Technology or its ability to manufacture, market,
distribute, sell or otherwise exploit Products or the Colony
Technology.
7.3 Neither Party shall charge, mortgage, encumber or, except as specified
in Clause 8.1, create any licence, right or interest over or in respect
of the Colony Technology without the prior written consent of the other
Party (except in relation to any licence of the Colony Technology
during the period of 3 years from the Effective Date, such consent not
to be unreasonably withheld or delayed).
7.4 Neither Party shall assign, transfer, sell or dispose of its interest
(or any part thereof) in the Colony Technology or Background Assets
without the prior written consent of the other Party (such consent not
to be unreasonably withheld or delayed).
8. PAYMENTS AND ROYALTIES
8.1 In the event that Lynx or any licensee of Lynx sells any Product Lynx
shall pay to Solexa a royalty equal to eleven and one half percent
(11.5 %) of any and all Net Sales in respect of that Product whether
such Net Sales are by Lynx or its licensee (but subject always to
Clause 8.4).
8.2 In the event that Solexa or any licensee of Solexa sells any Product
Solexa shall pay to Lynx a royalty equal to three percent (3%) of any
and all Net Sales in respect of that Product whether such Net Sales are
by Solexa or its licensees (but subject always to Clause 8.4)
8.3 The Sale of any Product to a third party other than in a bona fide arms
length transaction exclusively for money and any use of a Product by a
third party for commercial purposes which does not result in a Sale
shall be deemed to constitute a Sale and the Net Sales in respect of
such Sale shall be the higher of the actual invoiced amount or the
usual selling
price of Product of the Party or its licensee (as the case may be) or,
if none, the fair market value of such Product. Net Sales by either
Party to its Affiliate shall not be subject to the payment of a royalty
under Clause 8.1 but any Sale of Product by an Affiliate to a third
party shall be subject to the payment of a royalty under Clause 8.1 in
all respects as if such Sale were by the relevant Party and not by its
Affiliate.
8.4 If any Product is incorporated in any other product sold or supplied by
either Party or any licensee and is not priced separately from such
other product, the Net Sales of such Products shall be taken to be that
proportion of the invoiced Sales of such other product fairly
attributable to the Product when comparing the cost to make the Product
with the cost to make the other product.
8.5 The Parties may vary the percentage of royalties payable on Net Sales
of Product by licensees of a Party by prior written agreement. Neither
Party shall unreasonably withhold or delay their consideration or
consent to a request by either Party to a reduction in the royalties
payable in respect of Net Sales by a licensee if such a reduction is
reasonably needed to achieve a licence of the Colony Technology and the
percentage of royalties payable on Net Sales of Product by the licensee
(and the share of such royalties payable to the Party whose consent is
required) is commercially reasonable under the circumstances. For the
avoidance of doubt it shall not in any circumstance be unreasonable for
a Party to withhold its consent to such a reduction if the proposed
royalty payable on Net Sales of Product by the licensee is less than
eleven and one half percent (11.5 %) or such rate as is applicable
pursuant to clause 8.2, or the proposed share of such royalty
receivable by the Party whose consent is required is less than five and
three quarter per cent (5.75%) of Net Sales of Product by the licensee.
8.6 Payment of the sums due under this Clause 8 shall be made in arrears
within thirty (30) days of the end of each calendar quarter in respect
of Net Sales of the Product made during such a calendar quarter. Both
Parties shall procure that all payments are accompanied by a written
statement giving full details of the quantity and description of the
Product Sold, the invoiced value of Sales and the deductions made from
such invoiced value in order to give Net Sales and the amount due in
respect of that period. Such statements shall be accompanied by payment
in full of the total amount shown to be due by the statement.
8.7 All sums payable under this Clause 8:
8.7.1 shall be paid in US dollars. If any Net Sales are not
calculated in US dollars it shall be converted into US dollars
on the last day of the relevant period specified in Clause 8.5
at the open middle market rate of exchange published on that
day by the Wall Street Journal;
8.7.2 shall be paid in full without any withholding or deduction
whether on account of any taxes, charges or duties or
otherwise unless the Party is required by law to make such
withholding or deduction. The parties to this Deed shall take
all steps necessary to ensure that royalties may be paid under
this Deed without any or at reduced rates of withholding or
deduction and the paying Party shall provide the other with
proper documentary evidence as to the deduction or withholding
to enable the other Party to obtain appropriate relief under
such double taxation agreements as may be relevant; and
8.7.3 shall be paid by the due date failing which the other Party
shall be entitled to charge interest on any outstanding amount
at the statutory rate of interest for late payment prescribed
by section 1 of the Late Payment of Commercial Debts
(Interest) Xxx 0000. Such interest shall be paid by the
defaulting Party on demand in writing.
8.8 All payments to be made under this Clause 8 are exclusive of any
applicable VAT or sales tax to which the payment is subject. The paying
Party shall be additionally liable for all taxes, charges or duties in
respect of all payments to be made hereunder and shall pay the same for
the other Party in the manner and at the rate prescribed by law or
regulation.
8.9 All payments under this Deed shall be made without legal or equitable
deduction, abatement or set-off.
9. INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS
9.1 In the event that either Party becomes aware of a third party
infringing any part of the Colony Technology, it shall notify the other
Party as soon as reasonably practicable. Any costs in relation to an
action against a third party in respect of the relevant IP Rights shall
be shared equally unless one Party decides that it does not wish to
enforce the relevant IP Rights against the infringer in which case the
other Party can elect to prosecute on its own (indemnifying the
non-participating Party against all costs and expenses that it may
incur in respect of the claim against the third party).
9.2 Any awards or payments received from the third party infringer shall be
shared equally by the Parties, unless one of the Parties elects not to
participate in the action against the infringer in which case the sole
participating Party shall retain such sums.
10. THIRD PARTY CLAIMS
10.1 In the event that either Party receives notice of a claim by a third
party that any of the relevant Colony Technology infringes that third
party's rights, the Party will inform the other Party as soon as
reasonably practicable and the Parties shall meet to discuss and agree
the action to be taken by them in respect of such claim. If an action
is brought by a third Party against one of the Parties alleging that
the Colony Technology infringes that third Parties' IP Rights the other
Party shall on request and at the requesting Parties' expense assist in
the defence to such claim or action to the extent that in all the
circumstances it is reasonable to do so.
11. AUDIT RIGHTS
11.1 Both Parties shall keep, and procure that any licensee shall keep, at
its normal place of business, complete and accurate records showing the
quantity, description and Net Sales of the Products Sold or used as may
be necessary or proper to enable the other Party to check the
statements required under Clause 8.2, through an independent certified
or chartered accountant, and shall at all times if and when required by
the other Party produce such records to an independent certified or
chartered accountant nominated by the other Party and permit such
independent certified or chartered accountant to inspect and take
copies and extracts of such records.
11.2 Subject to Clause 11.3 below, each Party shall be entitled on not less
than ten (10) business days notice to require the other Party to permit
it and its employees, agents, auditors to inspect the Sales and other
records of that Party in relation to the Products.
11.3 Each Party shall not be entitled to exercise such audit right more
frequently than twice in any period of twelve (12) months unless it
finds a discrepancy amounting to a shortfall payment of more than five
per cent (5%) during a previous audit in which case it shall be
entitled to undertake quarterly audits.
11.4 Each Party shall pay its own costs in conducting any audits of the
other Party's records.
12. LIABILITY
12.1 Neither Party shall be considered to be in breach of this Deed or be
liable for any damages suffered by the other, by reason of any failure
to perform any obligation hereunder if and to the extent that such
failure is the result of an event of Force Majeure. The respective
obligations of the relevant Party's shall be suspended for such time as
such an event shall prevent it from performing its obligations.
12.2 For the purpose of the establishment of any liability on the part of
any of the Parties and for the purpose of the application of this
Clause, a series of interrelated events shall be considered to
constitute one single event.
12.3 Nothing in this Deed shall be taken to exclude or limit either Party's
liability:
12.3.1 for death or personal injury caused by negligence;
12.3.2 for fraud or fraudulent misrepresentation or the tort of
deceit;
12.3.3 any liability which cannot be excluded or limited by
applicable law.
12.4 Neither Party shall be liable to the other for any indirect, special,
punitive or consequential loss or damage whatsoever or howsoever
occurring (including if arising in consequence of its negligence).
13. CONFIDENTIALITY
13.1 Each Party hereby undertakes and agrees to maintain and protect the
confidentiality of the Colony Technology in the same manner and to the
same extent as it would maintain and protect comparable information
that it exclusively owns including in relation to the disclosure of the
Colony Technology as necessary to commercially exploit the same.
13.2 Each Party hereby undertakes and agrees to:
13.2.1 use the confidential information (including that relating to
the business affairs or finances) of the other Party disclosed
or made available to or acquired by it under, pursuant to or
in consequence of this Deed (excluding the Colony Technology)
("CONFIDENTIAL INFORMATION") only as specified in and for the
purposes envisaged under this Deed and not to use the same for
any other purpose whatsoever;
13.2.2 ensure that only those of its officers and employees who are
directly concerned with the carrying out of this Deed have
access to the Confidential Information on a strictly applied
"need to know" basis and are informed of the secret and
confidential nature of it;
13.2.3 keep the Confidential Information secret and confidential and
shall not directly or indirectly publish, disclose or permit
to be published or disclosed the same to any third party for
any reason without the prior written consent of the other
Party.
13.3 The obligations of confidence referred to in Clause 13.2 shall not
extend to any Confidential Information which:
13.3.1 is or becomes generally available to the public otherwise than
by reason of breach by the Party receiving the Confidential
Information ("RECIPIENT PARTY") of the provisions of this
Clause 13;
13.3.2 is known to the Recipient Party and is at its free disposal
(having been generated independently by the Recipient Party or
a third party in circumstances where it has not been derived
directly or indirectly from the other Party's Confidential
Information) prior to its receipt from the other Party
provided that evidence of such knowledge is furnished by the
Recipient Party to the other Party within twenty-eight (28)
days of receipt of that Confidential Information; or
13.3.3 is subsequently disclosed to the Recipient Party without
obligations of confidence by a third party owing no such
obligations to the other Party in respect of that Confidential
Information.
13.4 The obligations of the Parties under this Clause 13 shall survive the
expiration or termination of this Deed for whatever reason.
14. TERMINATION
14.1 This Deed shall continue and remain in full force and effect for so
long as any application for a patent or a registered patent in relation
to the Colony Technology shall remain subsisting. This Deed may only be
terminated by the Parties upon mutual written agreement or in
accordance with Clause 15.4.
14.2 If within twelve (12) months of the Effective Date Lynx shall be
subject to a change of Control such that fifty (50) per cent of the
issued share capital of Lynx or the right to appoint the majority of
directors to the board of Lynx shall be acquired by a third party who
currently does not have such Control of Lynx then Solexa shall have the
right and option upon notice to Lynx to terminate the License and any
sublicense's granted by Lynx shall automatically terminate upon
termination of the License. Lynx shall within ten (10) days of the said
change of Control affecting it notify Solexa of such change of Control
in writing. Within thirty (30) days of receipt of such notice Solexa
shall notify Lynx in writing that it wishes to exercise its right and
option under this Clause 14.2.
15. SURVIVAL
15.1 Clauses 4 (Ownership of IP Rights), 6 (Ownership of Background Assets),
12 (Liability), 13 (Confidentiality) and 24 (Governing Law and
Jurisdiction) shall survive expiry and termination of this Deed.
15.2 Without prejudice to Clause 15.1, the royalties payable in respect of
Net Sales in accordance with Clause 8 in respect of Net Sales during
the term of this Deed and the rights of the Parties to conduct audits
thereof under Clause 12 shall survive the termination of this Deed.
15.3 Obligations that by their nature are intended to continue to be in
force after termination of this Deed, shall survive the termination of
this Deed.
15.4 In the event of Lynx:
15.4.1 issuing a notice to convene a meeting for the purpose of
passing a resolution to wind it up, or such a resolution is
passed (other than a resolution for its solvent reconstruction
or reorganisation);
15.4.2 passing a resolution by its directors to seek a winding up or
to enter administration; or a petition for a winding up order
is presented against it or a petition is presented or an
application is made for the appointment of an administrator,
or such an order or appointment is made;
15.4.3 appointing a receiver, administrative receiver and manager,
interim receiver, custodian, sequestrator, administrator or
similar officer or over a substantial part of its assets;
15.4.4 taking any step or event which arises outside the United
Kingdom which is similar or analogous to any of the steps or
events listed at 15.5.1 to 15.5.3 above; or
15.4.5 making any general assignment, composition or arrangement with
or for the benefit of all or some of its creditors,
Solexa shall have the right and option to terminate the License (on the
exercise of such option). Such option to be exercisable by Solexa upon
written notice to Lynx at any time from the occurrence of such event to
30 days after receiving notice of such event from Lynx. Upon
termination of such License this Deed shall terminate. Upon such
termination Clause 15.2 shall not apply.
16. ANNOUNCEMENTS
16.1 No Party shall make any formal press release or other public
announcement in connection with any of the transactions contemplated by
this Deed except:
16.1.1 an announcement in the agreed form or in any other form agreed
by both Parties; or
16.1.2 any announcement required by any applicable Competent
Authority.
17. NON-SOLICITATION
The parties agree that during the term of the Deed and for a period of
twelve (12) months thereafter, they will not, whether directly or
indirectly, procure the services of any of the other Party's employees or
consultants directly engaged in the performance of this Deed. In the event
that either Party breaches this Clause, the defaulting Party shall pay to
the affected Party all unavoidable and reasonable costs incurred by the
affected Party including but not limited to a sum equal to the gross salary
of the employee or the consultant due under any relevant notice period.
This Clause shall not restrict either Party from appointing any person,
whether employee or consultant of the other or not, who has applied in
response to an advertisement properly and publicly placed in the normal
course of business.
18. NO ASSIGNMENT
Neither Party may assign any right under this Deed without the prior
written consent of the other Party (such consent not to be unreasonably
withheld or delayed) except to an Affiliate or third party which at the
same time acquires the whole of such Party's interest in the Colony
Technology and Background Assets pursuant to Clause 7.2.
19. COSTS AND PAYMENTS
Except as otherwise stated in this Deed, each Party shall bear its own
costs and expenses in relation to the negotiation, preparation,
execution and carrying into effect of this Deed and all other
agreements forming part of the transactions contemplated by this Deed.
20. ENTIRE AGREEMENT
20.1 This Deed constitutes the whole and only agreement and understanding
between the parties in relation to its subject matter. Except as
provided in Clause 20.3, all previous agreements, understandings,
undertakings, representations, warranties and arrangements of any
nature whatsoever between the Parties with any bearing on the subject
matter of this Deed are superseded and extinguished (and all rights and
liabilities arising by reason of them, whether accrued or not at the
date of this Deed, are cancelled) to the extent that they have such a
bearing.
20.2 The rights, powers and remedies provided in this Deed are independent
and cumulative and do not exclude any rights, powers or remedies
(express or implied) which are available as a matter of common law,
statute, custom or otherwise.
20.3 Nothing in this Deed shall be read or construed as excluding or
restricting any liability or remedy in respect of fraud or the tort of
deceit.
21. SEVERABILITY
If any provision or portion of this Agreement is void, restricted,
prohibited or unenforceable, in any jurisdiction, such provision or
portion shall, as to such jurisdiction only, be struck from this
Agreement to the extent of such restriction, prohibition or
unenforceability, without invalidating or affecting the remaining
provisions of this Agreement and without affecting the validity or
unenforceability of such provision or portion of this Agreement in any
other jurisdiction or its application to other parties or
circumstances.
22. NOTICES
22.1 Any communication to be given in connection with the matters
contemplated by this Deed shall except where expressly provided
otherwise be in writing and shall either be delivered by hand or sent
by first class pre-paid or registered post. Delivery by courier shall
be regarded as delivery by hand.
22.2 Such communication shall be sent to the address of the relevant Party
referred to in this Deed or to such other address as may previously
have been communicated to the sending Party in accordance with this
Clause. Each communication shall be marked for the attention of the
relevant person.
22.3 The addresses of the parties for the purpose of Clause 22.2 are as
follows:
Solexa: Chesterford Research Park,
Xxxxxx Xxxxxxxxxxx,
Xxxxxxx Xxxxxx,
Xxxxx XX00 0XX
For the attention of: The CEO
Lynx: 00000 Xxxxxxxxxx Xxxx,
Xxxxxxx, XX 00000
For the attention of: Xxxxx Xxxxxxxx
22.4 A communication shall be deemed to have been served:
22.4.1 if delivered by hand at the address referred to in Clause 22.3
at the time of delivery; or
22.4.2 if sent by first class pre-paid post to the address referred
to in that sub-clause, at the expiration of two clear days
after the time of posting; and
22.5 If a communication would otherwise be deemed to have been delivered
outside normal business hours (being 9:30 a.m. to 5:30 p.m. on a
business day) under the preceding provisions of this Clause, it shall
be deemed to have been delivered at the next opening of such normal
business hours.
22.6 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class
pre-paid letter or that the facsimile was despatched and a confirmatory
transmission report received.
22.7 Either Party may notify the other of a change to its name, relevant
person or address for the purposes of Clause 22.3 (Address) provided
that such notification shall only be effective on:
22.7.1 the date specified in the notification as the date on which
the change is to take place; or
22.7.2 if no date is specified or the date specified is less than
five clear business days after the date on which notice is
deemed to have been served, the date falling five clear
business days after notice of any such change is deemed to
have been given.
22.8 For the avoidance of doubt, the Parties agree that the provisions of
this Clause shall not apply in relation to the service of any statement
of claim, summons, order, judgment or other document relating to or in
connection with any legal proceedings.
23. THIRD PARTY RIGHTS
Nothing in this Deed is intended to confer on any person any right to
enforce any term of this Deed which that person would not have had but for
the Contracts (Rights of Third Parties) Xxx 0000.
24. DISPUTES
24.1 Any dispute in relation to this Deed shall be referred by either Party
to the Steering Committee for resolution unless the Steering Committee
have already considered the matter in which case it shall be referred
as indicated in Clause 24.2 below.
24.2 If within the 14 business days of the reference made under Clause 24.1
the Steering Committee has not resolved the dispute the Parties shall
refer the dispute to the Chief Executive Officers of Solexa and Lynx
for resolution. If the dispute cannot be resolved by those individuals
within 14 days after the dispute has been referred the dispute shall be
resolved in accordance with the remaining provisions of this Clause.
24.3 Following a failure to resolve a dispute under Clause 24.2, either
Party may request that the dispute be referred to mediation. Any
reference to mediation shall be made in accordance with the mediation
procedures of the Centre for Effective Dispute Resolution ("CEDR"). The
mediation will be conducted by a single mediator appointed by the
parties or, if the parties are unable to agree on the identity of the
mediator within 14 days after the date of the request that the dispute
be resolved by mediation, or if the person appointed is unable or
unwilling to act, the mediator shall be appointed by the Executive of
the CEDR on the application of either Party. The mediation shall be
conducted in London and in English. Mediation is without prejudice to
the rights of the parties in any future proceedings.
24.4 This Clause 23 is without prejudice to either Party's right to seek
interim relief against the other Party (such as an injunction) through
relevant courts and legal process in order to protect its rights and
interests, or to enforce the obligations of the other Party.
25. GOVERNING LAW AND JURISDICTION
25.1 This Deed shall be governed by and construed in accordance with English
law.
25.2 Subject to Clause 24, the parties hereby irrevocably agree to submit to
the exclusive jurisdiction of the Courts of England in respect of any
dispute which may arise in connection with the validity, effect,
interpretation or performance of, or the legal relationships
established by, this Deed or otherwise arising in connection with this
Deed.
IN WITNESS WHEREOF the Parties duly executed this Deed the day and year
first above written.
SIGNED as a DEED by )
SOLEXA LIMITED )
in the Presence of ) /s/ Xxxx Xxxx
------------------------------------
(Signature of party)
Signature of witness: /s/ Xxxxx X. San Roman
--------------------------------
Name of witness: Xxxxx X. San Roman
Address: 00000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Occupation VP, HR & Admin.
SIGNED as a DEED by )
LYNX THERAPEUTICS INC )
in the Presence of ) /s/ Xxxxx X. Xxxxxxxx
------------------------------------
(Signature of party)
Signature of witness: /s/ Xxxxx X. San Roman
--------------------------------
Name of witness: Xxxxx X. San Roman
Address: 00000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Occupation VP, HR & Admin.
SCHEDULE 1
BACKGROUND IP
The Manteia patents and patent applications detailed in Schedule 1.2
(Annexes A - I inclusive) of the Purchase Agreement.
The Manteia Know-How detailed in Schedule 1.3 of the Purchase
Agreement.
SCHEDULE 2
BACKGROUND ASSETS
The Mosaic Licence Agreement detailed in Schedule 1.4 of the Purchase
Agreement.
The Manteia Tangible Assets detailed in Schedule 1.1 of the Purchase
Agreement.
Any other physical assets (excluding any IP Rights) acquired by the
Parties under the Purchase Agreement and which are referred to in
Schedule 1.
