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EXHIBIT 10.12
SIDE AGREEMENT
This Side Agreement ("Agreement") is dated as of the 19th day of March 1999,
is by and between ACLARA BIOSCIENCES, INC., 0000 Xxxxx Xxx, Xxxxxxx, Xxxxxxxxxx
00000-0000 ("ACLARA") and THE XXXXXX-XXXXX CORPORATION, having its XXXXXX-XXXXX
Biosystems Division at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000
("XXXXXX-XXXXX").
A. WHEREAS, ACLARA and XXXXXX-XXXXX (the "Parties") will enter into a
collaboration agreement ("Collaboration Agreement") at a date coincident
with the execution of this Agreement;
B. WHEREAS, the Parties will enter into a Custom Instrument Development and
Commercialization Agreement ("PRI Agreement") with the X.X. Xxxxxxx
Pharmaceutical Research Institute, a Division of Ortho-XxXxxx
Pharmaceutical, Inc. (PRI), at a date coincident with the execution of this
Agreement, for the purpose of developing certain HTS Systems, under which
the Parties will receive [*] from PRI;
C. WHEREAS, XXXXXX-XXXXX has already received [*] from PRI;
D. WHEREAS, the Parties desire to clarify certain matters relating to the
Collaboration Agreement as it pertains to their participation in the PRI
Agreement.
NOW THEREFORE, in considerations of the mutual covenants and promises contained
in this Agreement, the Parties agree as follows:
1. Definitions. As used herein, capitalized terms will have the meaning
ascribed to them in the PRI Agreement or the Collaboration Agreement.
2. Distribution of Funds Received from PRI. Under the PRI Agreement, PRI will
provide the Parties with [*] with which to undertake the development of
certain HTS Systems for PRI, the money to be distributed between the Parties
as follows: [*] will go to XXXXXX-XXXXX, and [*] will go to ACLARA. In
particular, XXXXXX-XXXXX will pay ACLARA, within three (3) days after
received by XXXXXX-XXXXX, [*] scheduled to be received from PRI pursuant to
Section 6.1 of the PRI Agreement, and [*] of funds received from PRI
pursuant to Sections 6.2, 6.3 and 6.4 of the PRI Agreement. XXXXXX-XXXXX
will have no liability to ACLARA on account of PRI's failure for any reason
whatsoever to make any payment due XXXXXX-XXXXX, or XXXXXX-XXXXX and ACLARA,
under the PRI
[*] 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 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.
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Agreement. PERKIN-ELMER's sole obligation will be to pay ACLARA the
designated portion of whatever funds XXXXXX-XXXXX does in fact receive from
PRI.
3. Commercial Sale. Sales of Microfluidic Electrophoresis Devices to PRI under
the PRI Agreement will not be considered commercial sales as that term is
used in Section 3.3.8 of the Collaboration Agreement.
4. Technology Access Partner. PRI is a Technology Access Partner and the PRI
Agreement is a Technology Access Agreement.
5. Royalties. Any royalty received from PRI for PRI's manufacture or sale of
Microfluidic Electrophoresis Devices will be split [*] between XXXXXX-XXXXX
and ACLARA.
6. Installation, Service and Support. ACLARA and XXXXXX-XXXXX will determine
as between themselves which company will provide installation, service and
support to PRI pursuant to the provisions of Section 5.5 of the PRI
Agreement. Generally, it is contemplated that ACLARA will provide support
on matters involving Microfluidic Chips and assay chemistry, and
XXXXXX-XXXXX will provide support on matters involving HTS Chip Devices and
Commercial Instruments. Each party will bear its own expenses of providing
installation, service and support to PRI.
7. Allocation of Personnel. Commencing on the date the PRI Agreement is signed
by the last of the parties thereto or as soon thereafter as is feasible, but
in any event no later than ninety (90) days after such date, and during the
remainder of the original [*] term of the Project, which [*] term ends
[*], XXXXXX-XXXXX agrees to allocate an average of at least fourteen FTE's
to the Project, and ACLARA agrees to allocate an average of at least [*]
FTE's to the Project. In the event that the original [*] term of the Project
is extended by XXXXXX-XXXXX and ACLARA on the other hand, or PRI on the
other, XXXXXX-XXXXX will allocate and expend [*] of the number of FTE's
allocated to the Project and ACLARA will allocate and expend [*] of the
number of FTE's allocated and expended to the Project, unless the
XXXXXX-XXXXX/ACLARA Joint Steering Committee otherwise agrees.
8. Manufacturing Cost. Manufacturing Cost within the meaning of the
Collaboration Agreement will never be more than Fully Burdened Manufacturing
Cost and Fully Burdened Chip Manufacturing Cost within the meaning of the
PRI Agreement, notwithstanding anything contained in the Collaboration
Agreement to the contrary.
[Signature page Follows]
[*] 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 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.
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IN WITNESS WHEREOF, the Parties, through their authorized officers, have
executed this Agreement as of the date first written above.
ACLARA BIOSCIENCES, INC. THE XXXXXX-XXXXX CORPORATION,
THROUGH ITS PE BIOSYSTEMS
DIVISION
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXXX XXXXXXXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxxxxxxx
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Title: President, CEO Title: Executive Vice President
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Date: March 19, 1999 Date: March 19, 1999
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