EXHIBIT 10.35
[ * ] = 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.
SOFTWARE LICENSE AND ASSET ACQUISTION AGREEMENT
GENOMICA THIRD PARTY SOFTWARE
THIS SOFTWARE LICENSE AND ASSET ACQUISITION AGREEMENT ("Agreement") is made and
entered into as of April 4, 2002 ("Effective Date") by and between EXELIXIS,
INC., a Delaware corporation with a principal place of business at 000 Xxxxxx
Xxx, X.X. Xxx 000, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000, including its
Affiliates (any entity that controls, is controlled by or is under common
control with Exelixis) (collectively, "Exelixis"), and VISUALIZE INC., a Nevada
corporation with its principal place of business at 0000 X Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 ("Visualize"). Exelixis and Visualize may also be
referred to as "Parties" or a "Party" herein.
RECITALS
WHEREAS, Exelixis is the owner of certain proprietary software products
previously owned by Genomica Corporation under the names of LinkMapper,
Discovery Manager, and Vertebrate Reference Database and a partially developed
software product known as dmGenetics (formerly known as Discovery Manager
Genetics) as well as other related tangible and intangible assets related to the
development and licensing of those products;
WHEREAS, Exelixis has retained certain individuals and facilities located in
Sacramento, California in order to further develop the software products;
WHEREAS, the Parties entered into that certain Proposal to Acquire Genomica
Software Business on or about January 29, 2002 ("Proposal"), and the Parties
have performed the obligations described therein. This Agreement is the
definitive agreement which was contemplated in the Proposal;
WHEREAS, Visualize desires to license the Software with all rights and
obligations to third parties currently licensing the Software, including the
sole right to further develop and license the Software to other third parties,
to acquire ownership of the dmGenetics software product, and to acquire the
Other Assets (as defined below) from Exelixis;
WHEREAS, Exelixis desires to license to Visualize the software, and to transfer
the related tangible and intangible assets to Visualize under the terms and
conditions of this Agreement;
WHEREAS, Visualize has agreed to pay Exelixis total consideration of up to Two
Million Three Hundred Fifty Thousand US Dollars (US $2,350,000) for licenses to
the software and sale or license of the related Other Assets in accordance with
the terms and conditions of this Agreement; and
NOW THEREFORE, in consideration of the following premises and the mutual
promises and covenants set forth below, the Parties agree as follows:
ARTICLE 1. DEFINITIONS
For purposes of this Agreement, the terms defined in this Article shall
have the meanings specified below. These terms are intended to encompass both
the singular and plural forms.
1.1 "AFFILIATE" with respect to any person or entity, any other person or
entity, which controls, is controlled by or is under common control with such
person or entity. For purposes of this Agreement, a person or entity shall be
in "control" of an entity if it owns or controls at least fifty percent (50%) of
the equity securities of the subject entity entitled to vote in the election of
directors (or, in the case of an entity that is not a corporation, for the
election of the corresponding managing authority), or otherwise has the power to
control the management and policies of such other entity.
1.2 "CONFIDENTIAL INFORMATION" shall mean confidential and proprietary
information disclosed by a Party hereto (the disclosing Party) to the other
Party hereto (the receiving Party) which relates to either Party's business,
products and services, which (a) if in written form, is marked "Confidential" or
"Proprietary", or (b) if in other than written form, is identified by the
disclosing Party as confidential upon disclosure, reduced to summary writing or
other tangible form, marked as "Confidential" or "Proprietary", and a copy
delivered to the receiving Party within thirty (30) days of such disclosure.
Confidential Information shall include non-public information about the
Software. This Agreement shall be deemed to be Confidential Information.
1.3 "INITIAL PAYMENT CUSTOMERS" shall mean those customers identified on
EXHIBIT E attached hereto.
----------
1.4 "LIFE SCIENCES" shall mean any or all of the following businesses or
operations: health care, medical product, medical services, pharmaceutical,
biotechnology, drug discovery, drug development, contract research services,
contract laboratory, agrichemical, agrochemical, agricultural biotechnology,
academic institutions involved with any of the forgoing, and any instrument
vendors or suppliers to any of the foregoing.
1.5 "NET SALES" shall mean an amount equal to Visualize's receipts, net of
returns and allowances, from any sales of Visualize products and services to
Life Sciences customers, where the term "sale" shall include any disposition,
transfer or license as well as any receipts from related consulting or training
services provided in connection with any disposition, transfer or license. In
the event of disposition to an Affiliate of Visualize, Net Sales shall be
calculated on the sale to an unaffiliated third party. Net Sales shall not
include (a) sales, value added and use taxes which are received by Visualize
which are associated with the sale of Visualize products and services; (b)
commissions on sales which are paid to third parties (not including Affiliates
of Visualize); and (c) third party costs of shipping, handling and installation
of products actually paid or credited by Visualize to such third parties.
1.6 "OTHER ASSETS" shall mean all (a) patents, copyrights, trademarks,
trade names, service marks, designs, drawings, specifications, documentation and
plans related to the Software as identified on EXHIBIT B; (b) "Genomica" domain
---------
names, website content, databases, third party licenses, leases, development
software licenses, reseller agreements, value added reseller agreements, support
contracts, customer lists, marketing plans, pricing schedules, as identified on
EXHIBIT B; (c) accounts receivable and customer contracts as identified on
----------
EXHIBIT C; and (d) tangible assets identified on EXHIBIT D.
---------- ----------
1.7 "SOFTWARE" shall mean all current versions and releases of the computer
software identified on EXHIBIT A attached hereto in object and source code
----------
format under the names of LinkMapper, Discovery Manager, Vertebrate Reference
Database, and dmGenetics (or Discovery Manager Genetics) as such computer
software exists on the Effective Date.
ARTICLE 2. LICENSE GRANTS
2.1 LICENSE TO SOFTWARE. Subject to the terms and conditions of this
Agreement, Exelixis hereby grants, and Visualize accepts:
(a) a worldwide, fully paid, perpetual, non-exclusive license to the
Software, including the right to make, have made, use, offer for sale,
sell, have sold, import, have imported, modify, sublicense and prepare
derivative works based upon or including the Software; and
(b) a worldwide, fully paid, perpetual, exclusive license to make, have
made, use, offer for sale, sell, have sold, import, have imported,
modify, and sublicense any and all derivative works based upon or
including the Software.
2.2 EXELIXIS INTERNAL USE LICENSE. Exelixis shall retain a worldwide,
fully paid, royalty free, perpetual, non-exclusive license to the Software
solely for internal use. "Internal use" shall mean use by Exelixis' employees
or contractors at Exelixis premises for the conduct of its proprietary
operations, and not as a service bureau or for the performance of services for
third parties who are not licensors of an Exelixis pharmaceutical product in
development. Internal use shall include use by Exelixis' Affiliates, subject to
meeting the forgoing limitations.
2.3 LICENSE TO DERIVATIVE WORKS. Visualize hereby grants, and Exelixis
accepts a world-wide, perpetual, fully paid, non-exclusive license, in source
and object code, for internal use only, to commercially released versions of
derivative works of the Software ported to Oracle Corporation databases prepared
by or for Visualize. The license hereunder shall apply to versions of the
Software that are released prior to the payment by Visualize of the Maximum
Total Price described in Section 4.3 (but in any event, not earlier than [ * ])
This license does not include a license to the source code for the proprietary
code, routines and tools which are owned by Visualize as of the Effective Date,
or derivative works thereof, provided that the application programming interface
for the purpose of accessing and manipulating the underlying Oracle database
shall be made available to Exelixis as part of the licensed Software. The
Parties shall as of the Effective Date enter into a separate agreement for the
support by Visualize of the Software licensed to Exelixis pursuant to this
section, at no cost to Exelixis.
2.4 COVENANT OF EXELIXIS. Subject to the terms and conditions of this
Agreement and except as may be provided under existing license agreements as of
the Effective Date, Exelixis shall not grant to any third party a license or
sublicense of any rights to the Software, including any right to modify the
Software or create any derivative works based upon or including the Software,
without the prior written consent of Visualize, which consent may be withheld in
the sole discretion of Visualize.
2.5 RIGHTS. Exelixis and its third party licensors retain all right,
title and interest in the Software except for the licenses granted under this
Agreement, except as provided in Section 2.8 hereof.
2.6 SUBLICENSES. To the extent applicable, Visualize shall comply with
and be responsible for, and shall ensure that any sublicenses hereunder comply
with the obligations under that certain Value Added Remarketer Agreement between
Genomica Corporation and Gemstone Systems, Inc. dated October 20, 1998, as
amended.
2.7 EXISTING CUSTOMER RENEWALS. Each of Exelixis and Visualize shall
use best commercially reasonable efforts to cause Initial Payment Customers to
renew existing licenses to the Software under existing agreements.
2.8 TRANSFER OF OWNERSHIP OF SOFTWARE TO VISUALIZE. Upon the payment by
Visualize of the Maximum Total Payments described in Section 4.3 (but in any
event, not earlier than [ * ]), Exelixis shall, subject to the licenses
to Exelixis hereunder, assign to Visualize all of Exelixis' right, title and
interest in the Software.
ARTICLE 3. TRANSFER OF OTHER ASSETS; EXISTING SUPPORT OBLIGATIONS
3.1 OTHER ASSETS. At the Effective Date, Exelixis shall convey and
assign, or if assignment is impracticable, license to Visualize all right, title
and interest in and to the Other Assets. Visualize shall be responsible for any
fees, filing expenses or other costs associated with the acceptance or licensing
of such rights from Exelixis.
3.2 SACRAMENTO LEASE. Exelixis shall have the right to procure the
landlord's consent to assign that certain Standard Sublease ("Sacramento Lease")
between American Tower, Inc. and Genomica Corp. dated February 14, 2001, or if
assignment is impracticable, to sublet to Visualize the premises located at
00000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx. Visualize shall
use commercially reasonable efforts to cooperate with such assignment or
subletting, provided, however, no person or entity shall be obligated to
guarantee the obligations of Visualize to the landlord. Upon an assignment or
sublease of the Sacramento Lease, Visualize shall reimburse Exelixis [ * ] and
make payments thereon commencing with the Effective Date. In the event that
assignment or subletting is impracticable, Visualize shall reimburse Exelixis
for payments made under the Sacramento Lease, including related utilities and
services for those facilities.
3.3 CERTAIN SOFTWARE DEVELOPERS. Visualize has retained and is in its
discretion shall be solely responsible for employment of the following
individuals as of the Effective Date: [ * ]. These individuals have been under
the direction of a designee of Visualize, primarily [ * ].
3.4 OTHER CONSULTANTS. Visualize in its discretion shall be responsible
for retaining [ * ] as well as any other consultants Visualize deems necessary
or appropriate to continue the development and transfer of the Software under
this Agreement.
3.5 SUPPORT OBLIGATIONS. Effective upon the Effective Date, Visualize
shall be solely responsible for Software support obligations for any Initial
Payment Customers as well as any new customers of Visualize.
3.6 DEMONSTRATION LICENSES AND INSTALLATIONS. Exelixis and Visualize
shall use commercially reasonable efforts to identify and ensure that
demonstration and beta installation sites, including Glaxo SmithKline
Corporation, are appropriately licensed with respect to any use of the Software
permitted as of the Effective Date.
ARTICLE 4. PAYMENTS
4.1 INITIAL PAYMENTS. With respect to Software renewal payments (i.e.,
those under licensing agreements with Genomica Corporation or its successors in
effect as of the Effective Date) in 2002 received from Initial Payment Customers
(including payments received in 2002 prior to the Effective Date), the Parties
agree to [ * ] for the following:
[ * ]
4.2 SUBSEQUENT PAYMENTS. With respect to any revenues from the Net Sales of
the dmGenetics software product and its derivative works and any other products
of Visualize (other than renewals of Software licenses covered under Section
4.1) which are sold, licensed or otherwise provided to Life Sciences customers,
Visualize shall pay to Exelixis an amount equal to [ * ].
4.3 MAXIMUM TOTAL PAYMENTS. The aggregate maximum amount of payments to
Exelixis under Sections 4.1 and 4.2 (not including its reimbursement of
amounts received or paid pursuant to Section 4.1) shall not exceed two
million three hundred fifty thousand US dollars (US $2,350,000).
4.4 4.4 PAYMENT SCHEDULE. All amounts payable hereunder shall be paid [ * ]
commencing with [ * ].
4.5 REPORTS. A Party making any payment hereunder shall deliver to the
other Party a report in reasonable detail containing the gross receipts from the
license, sale, lease or other disposition of the Software by customer together
with a calculation of the amount payable to such Party for the applicable
calendar quarter at the time of delivery of the payments due under this Article
4.
4.6 AUDIT RIGHTS. A Party may, upon reasonable prior notice to the other
Party, not more than [ * ], cause a third party auditor to review and audit the
records of the other Party which are reasonably necessary to verify compliance
with the payment terms of Article 4 of this Agreement. Any audit shall be
conducted during normal business hours and all information reviewed shall be
considered Confidential Information (as defined below) of the other Party. In
the event that the audit reveals an error or other failure to make payments to a
Party as provided under this Agreement in excess of [ * ] of the amounts
payable, then the Party having the payment obligation shall immediately pay the
underpayment amount to the party which is entitled to the payment and reimburse
the fees of the audit.
4.7 TAXES. The amounts payable to Exelixis under this Agreement do not
include, and Visualize shall be responsible for all sales, use, property,
value-added or other taxes (including amounts required to be withheld for
purposes of paying the foregoing) applicable to the receipts of Visualize;
provided that Visualize shall in no event be responsible for any income taxes
applicable to the fees received by Exelixis hereunder.
ARTICLE 5. CONDITIONS TO CLOSING
5.1 VISUALIZE. Satisfaction or waiver of the following conditions shall
be a condition to Visualize's obligations under this Agreement:
(a) the representations and warranties of Exelixis set forth in
Article 7 shall be true and correct as of the Effective Date;
(b) the escrow account which was established pursuant to the terms of
the Proposal shall be released to Visualize; and
(c) the covenant of Exelixis in Section 2.4 shall remain in effect as
of the Effective Date.
5.2 EXELIXIS. Satisfaction or wavier of the following condition shall be
a condition to Exelixis' obligations under this Agreement:
(a) the representation and warranty of Visualize set forth in Section
7.1 shall be true and correct as of the Effective Date.
ARTICLE 6. CONFIDENTIALITY
6.1 PROTECTION. The Parties shall share Confidential Information, but
in no event shall Visualize be obligated to disclose proprietary information of
its customers, except to the extent expressly provided in this Agreement. With
respect to Confidential Information that may be disclosed by one party
("Discloser") to the other party ("Recipient"), Recipient agrees:
(a) To protect such Confidential Information from disclosure to
others, using the same degree of care used to protect Recipient's
Confidential Information, but in any case using no less than a
reasonable degree of care. Recipient may disclose Confidential
Information received hereunder to its employees, subcontractors,
agents, representatives, and affiliates, who have a need to know
to accomplish the purposes of this Agreement and who are bound by
terms of confidentiality, non-use and nondisclosure at least as
strict as set forth herein prior to disclosure to protect the
received Confidential Information. Each party agrees that it
shall enforce the provisions of any agreements of nondisclosure
set forth in the preceding sentence, and shall remain responsible
for any breaches of this Article 6 by its employees,
subcontractors, agents, representatives, and affiliates.
Recipient agrees to promptly notify the Discloser in the event it
learns of any unauthorized use or disclosure of the Discloser's
Confidential Information. Confidential Information shall not
otherwise be disclosed to any third party without the prior
written consent of the Discloser;
(b) To use such Confidential Information only for the business
purpose as expressly permitted by this Agreement;
(c) Not to make copies of any such Confidential Information or any
part thereof except for the business purpose; and
(d) To reproduce and maintain on any copies of any Confidential
Information such proprietary legends or notices marked
"confidential", whether of Discloser or a third party, as are
contained in or on the original or as the Discloser may otherwise
reasonably request in writing.
6.2 PERMITTED DISCLOSURE. Recipient shall not have any liability to
Discloser with respect to the disclosure of this Agreement to the extent such
disclosure is reasonably necessary to enforce the terms hereof or to comply with
any applicable law, rule or regulation, and with respect to the use or
disclosure to third parties of such Confidential Information as such Recipient
can by written evidence establish:
(a) is or has become public knowledge as of the date of this
Agreement through no fault of the Recipient, its employees,
subcontractors, agents, representatives or affiliates;
(b) was rightfully in the possession of the Recipient prior to
disclosure by the Discloser;
(c) is received by the Recipient at any time from a third party
lawfully having possession of such information and lawfully
empowered to disclose such information; or
(d) is independently developed by the Recipient, its employees,
subcontractors, agents, representatives or affiliates, without
the aid, application, or use of Confidential Information
disclosed hereunder.
6.3 NOTICE OF DISCLOSURE. In cases other than the disclosure of this
Agreement pursuant to efforts to enforce its provisions, in the event Recipient
is required by law, regulation or court order to disclose any of Discloser's
Confidential Information, Recipient will promptly notify Discloser in writing
prior to making any such disclosure in order to facilitate Discloser seeking a
protective order or other appropriate remedy from the proper authority.
Recipient agrees to cooperate with Discloser in seeking such order or other
remedy. Recipient further agrees that if Discloser is not successful in
precluding the requesting legal body from requiring the disclosure of the
Confidential Information, then Recipient will furnish only that portion of the
Confidential Information which is legally required and will exercise all
reasonable efforts to obtain reliable assurances that confidential treatment
will be accorded the Confidential Information.
6.4 TERM OF PROTECTION. The obligations of confidentiality and non-use
agreed to herein shall terminate [ * ] from the date of termination or
expiration of this Agreement.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES
7.1 DUE AUTHORIZATION; EFFECTIVENESS. Each Party represents and warrants
to the other that as of the Effective Date it has the legal right and power to
enter into this Agreement, to extend the licenses granted to the other in this
Agreement, and to fully perform its obligations hereunder, and that the
performance of such obligations will not conflict with its charter documents or
any agreements, contracts, or other arrangements to which it is a party.
7.2 DISCLOSURE BY EXELIXIS. Exelixis represents to its knowledge that it
has provided Visualize with access to or otherwise made available all records,
documents, files, contracts currently in effect, source code, object code,
databases, analyses, marketing studies, personnel, patent applications,
trademark applications, copyright registrations and electronic files related to
the Software and the Other Assets in the possession of Exelixis or the former
employees of Genomica Corporation retained by Exelixis.
7.3 PROPRIETARY RIGHTS. Exelixis represents and warrants that the Software
does not infringe or misappropriate any patent, copyright or other intellectual
property right of a third party. Exelixis represents and warrants that it can
grant the licenses and perform its other obligations hereunder with respect to
the Software as of the Effective Date without the consent or participation of
any third party licensors.
7.4 TITLE TO OTHER ASSETS. Exelixis represents and warrants that, to the
extent assignable, title to the Other Assets shall be transferred free and clear
of any liens, encumbrances or claims of third parties; provided that no
representation or warranty is made with respect to the intellectual property
rights under any of the third party licenses, development software licenses,
website content or databases comprising the Other Assets.
ARTICLE 8. INDEMNIFICATION; DISCLAIMER OF WARRANITES; LIMITATION OF
LIABILITY
8.1 INDEMNIFICATION BY EXELIXIS. Exelixis hereby agrees to defend,
indemnify and hold Visualize harmless from and against any and all damages,
settlements, costs, and out-of-pocket expenses (including reasonable attorneys'
fees) incurred in connection with or arising from any claims against Visualize
for infringement of any intellectual property rights of any third party with
respect to the activities of Exelixis with the Software from December 28, 2001
through the Effective Date.
8.2 INDEMNIFICATION BY VISUALIZE. Visualize hereby agrees to defend,
indemnify and hold Exelixis harmless from and against any and all damages,
settlements, costs, and out-of-pocket expenses (including reasonable attorneys'
fees) incurred in connection with or arising from any claims against Exelixis
arising from or based upon any action or omission of Visualize or its agents or
employees with respect to the Software.
8.3 DISCLAIMER. OTHER THAN AS PROVIDED IN ARTICLE 7, THE SOFTWARE AND
OTHER ASSETS ARE PROVIDED "AS IS" AND EXELIXIS DISCLAIMS ANY AND ALL
REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH REGARD TO THE SOFTWARE AND OTHER
ASSETS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR THE WARRANTY OF
NONINFRINGEMENT. FURTHERMORE, EXELIXIS DISCLAIMS ANY WARRANTY THAT THE SOFTWARE
WILL MEET VISUALIZE'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE
ERROR-FREE OR UNINTERRUPTED.
8.4 LIMITATION OF LIABILITY. Neither Party shall be liable to the other
for consequential, incidental, indirect or punitive damages in connection with
this Agreement or with any license granted hereunder.
9. CLOSING
9.1 CLOSING. The closing of the transaction contemplated under this
Agreement shall occur by the exchange of documents via fax and overnight
delivery during business hours on April 4, 2002, except as may otherwise agreed
upon by the Parties in writing.
9.2 DELIVERIES. Not later than the closing:
(a) Visualize and Exelixis shall agree upon a schedule and process
for the assignment of Initial Payment Customer contracts and the
assignment or sublease under the Sacramento Lease;
(b) Exelixis shall convey to Visualize by xxxx of sale the tangible
assets identified on Exhibit D;
(c) Exelixis shall convey to Visualize by assignment the other assets
identified on Exhibit B;
(d) Visualize and Exelixis shall agree upon a schedule of the
payments received and the expenses claimed pursuant to Section
4.1;
(e) Exelixis shall deliver possession of the premises in the
Sacramento Office to Visualize; and
(f) Visualize and Exelixis shall enter into a support agreement
pursuant to Section 2.3.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of each of the Parties under Article 7 shall
survive the Effective Date by a period of one year.
10. TERMINATION
10.1 TERMINATION. This Agreement may be terminated by either Party upon
[ * ] prior written notice for a material breach of this Agreement, which breach
shall not have been cured within the specified notice period. Insolvency or the
entry into an agreement with creditors or the appointment of a receiver for any
Party hereto shall be deemed a material breach by such Party hereunder.
10.2 EFFECT OF TERMINATION. In the event of termination for breach of
this Agreement by Visualize, the license grants hereunder shall terminate as of
the effective date of termination and Visualize shall immediately cease any use
of the Software and return all copies of the Software to Exelixis. In the event
of termination for breach of this Agreement by Exelixis, all amounts paid by
Visualize hereunder or pursuant to the Proposal shall immediately be repaid or
released to Visualize.
11. GENERAL PROVISIONS
11.1 FORCE MAJEURE. Neither Party shall be held liable or responsible to
the other Party nor be deemed to have defaulted under or breached this Agreement
for failure or delay in performing any term of this Agreement (other than an
obligation for the payment of money) when such failure or delay is caused by or
results from causes beyond the reasonable control of the affected Party,
including but not limited to fire, floods, embargoes, war, acts of war (whether
war is declared or not), riots, strikes, power outages, lockouts or other labor
disturbances, terrorists attacks, acts of God, or acts, omissions or delays in
acting by any court, governmental authority or the other Party.
11.2 NOTICES. Formal notices required or permitted hereunder shall be
given in writing. Written notices may be delivered personally, sent by first
class mail or by recognised overnight courier service, or transmitted
electronically or facsimile. Any notices shall be sent to the following:
If to Visualize:
------------------
Xxxx Xxxxxxx
0000 X. Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: 000-000-0000
If to Exelixis:
-----------------
Chief Financial Officer
000 Xxxxxx Xxx
X X Xxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Or to such other address as a Party may designate to the other Party by written
notice provided in accordance with this provision.
11.3 NO WAIVER. The failure by either Party to enforce at any time any
of the provisions of this Agreement, or to exercise any election or option
provided herein, shall in no way be construed as a waiver of such provisions or
options, nor in any way to affect the validity of this Agreement or any part
thereof, or the right of either Party thereafter to enforce each and every such
provision.
11.4 HEADINGS AND COUNTERPARTS. All headings in this Agreement are for
convenience only and shall not affect the meaning of any provision hereof. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which together shall be deemed to be one and the
same instrument.
11.5 ASSIGNMENT. The terms and conditions of this Agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
parties. In the event of an assignment or other transfer by Visualize of any
rights to the Software or any derivative works based upon or including the
Software, the proceeds (whether in cash or in kind) to Visualize arising from
such assignment shall be deemed Net Sales hereunder.
11.6 GOVERNING LAW. This Agreement will be governed by the laws of
the State of California, except with regard to its conflict of law provisions.
Any dispute concerning the validity, interpretation or performance of this
Agreement shall be finally settled in a court of competent jurisdiction in
California.
11.7 SURVIVAL. Other than as provided in Article 10, the rights and
obligations of Articles 2, 4, 6 and 8 shall survive any termination of this
Agreement.
11.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding between the Parties concerning the subject matter hereof and
supersedes all prior or contemporaneous agreements, negotiations, and
understanding of Parties with respect thereto including but not limited to the
Proposal. No representation, promise, modification or amendment shall be
binding upon either Party as a warranty or otherwise unless in writing and
signed on behalf of each Party by a fully authorised representative.
The remainder of this page has been intentionally left blank.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement on the Effective Date.
EXELIXIS, VISUALIZE,
Date : April 4, 2002 Date : April 4, 2002
------------------- --------------------
Signature: Signature:
/s/ Xxxx Xxxx /s/ Xxxx Xxxxxxx
--------------------------- ----------------------------
Name : Xxxx Xxxx Name : Xxxx Xxxxxxx
Title : Chief Financial Officer Title : Chairman & CEO
[ * ] = 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.
EXHIBIT A
List of Software:
1) Discovery Manager
2) Discovery Applications and Tools
3) Vertebrate Reference Database
4) Link Mapper
5) dmGenetics (also known as Discovery Manager
Genetics)
6) dmCore
7) Expression Database
8) K-EM
[ * ] = 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.
EXHIBIT B
Other Assets
1) Patents, copyrights, trademarks, trade names, etc.: No patents or
registered copyrights. Trademarks and pending trademark applications as
attached.
2) Assets and liabilities as follows:
a. "Genomica" domain names (assignment in progress),
b. website content (previously delivered),
c. databases,
d. third party licenses
(Reasonable number related to 6 seats in Sacramento)
Adobe: FrameMaker 6.0
Adobe : Acrobat 4.0 and 5.0
Xxxxxxx : Homeslte v4.5
XML Spy 3.5
Benthic Software : GoldView and Golden
Borland : Jbuilder v4.0 and v5.0
InstallShield Professional
Infragistics Suite
Microsoft : Project 2000
Microsoft : Visual Basic
Microsoft : Visio Pro 2000
Microsoft : Visual C++ Professional with Plus
Pack and Reference Library
Microsoft : Visual Studio Professional
Merant : PVCS Tracker
Mercury Interactive : Test Director, LoadRunner and WinRunner
Oracle : Enterprise, Standard and Personal Oracle
ParaSoft : Jtest
Quest Software : Toad v6.5 and v7.0
Starbase Corporation : Star Team
Component One : VS FlexGrind Pro
e. leases-that certain Standard Sublease dated February 14, 2001 by
and between American Tower, Inc. and Genomica Corporation for the
premises located at 00000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxx, including all related utilities and
services for that facility [ * ],
f. development software licenses,
g. reseller agreements--none,
h. value added reseller agreements--none,
i. support contracts-contracts for Initial Payment Customers
previously provided,
j. customer lists, marketing plans, and pricing schedules-previously
provided
[ * ] = 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.
EXHIBIT C
Accounts Receivable-None
Customer Contracts-Existing Agreements with Initial Payment Customers previously
provided.
[ * ] = 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.
EXHIBIT D
Tangible Assets:
1. ELECTRICAL/ELECTRONIC EQUIPMENT AND SOFTWARE
PERSONAL
5 Dell Computer Corporation Latitude C800
6 Dell 21" P110 Iltrascan
5 Dell docking station and monitor stand
2 optical mice
4 normal mice
2 Microsoft Internet Keyboard
1 Microsoft Natural Keyboard Pro
2 Microsoft Natural Keyboard
6 Normal Keyboards
6 Lucent Partner 18 Phone
1 Lucent Partner 18D phone
1 HP LaserJet2100
SHARED EQUIPMENT
1 Optiquest monitor
1 Sun Ultra 80
1 External Disc Xxxxx
0 XXX Xxxx Xxxxx
1 Rack
1 Rack Mount Compaq Proliant D1380
1 APC Smart UPS (Rack Mount)
1 Raritan Switch Man KVM Switch
1 Cisco z600
1 Cisco Catalyst 3500 Series XL
1 Cisco Secure PIX 506 Firewell
1 Cayman DSL modem
1 Netgear Fast Ethernet Switch
1 GE Analog Phone
1 APC Smart UPS1000
1 APC Smart UPS650
1 APC Smart UPS500
1 Lucent Telephone System
1 Mimio Presentation Hardware
1 Polycom Sound Station
1 Rooper Fridge Freezer
1 Microwave
1 HP Fax 1220
1 HP LaserJet4100TN
2 Netgear fast Ethernet switch fs105
1 Canon PC980 Copier
2 Dell Optiplex GX110
1 Dell 17" monitor
Server from Boulder identified as 'Ramrod"
Server from Boulder identified as "Blackbox"
2. FURNITURE.
CUBICLE AREA :
----------------
5 Complete Technicron office cubicles
OFFICE 1:
----------
Single office with three piece Technicron workstation
1 round Technicron table
4 Technicron side chairs
1 Technicron office chair
1 Technicron bookcase
OFFICE 2 :
------------
Double office with three piece Technicron workstation
2 Technicron office chairs
OFFICE 3:
----------
1 Technicron Conference table
8 Technicron conference chairs
OFFICE 4:
----------
Double office with three piece Technicron workstation
2 Technicron office chairs
2 Technicron side chairs
OFFICE 5:
----------
Single office with one three piece Technicron workstation
1 Technicron bookcase
1 Technicron Office Chair
HALLWAY :
-------
1 Hon metal Technicron supply cabinet
2 Technicron printer tables
1 mail sorting table
KITCHEN :
----------
1 large Technicron black bookcase
2 semi circular Technicron tables
4 Technicron side chairs
[ * ] = 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.
EXHBIT E
INITIAL PAYMENT CUSTOMERS
[ * ]
[ * ] = 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.
