Exhibit 10.5
***Text Omitted and Filed Separately
with the Securities and Exchange Commission.
Confidential Treatment Requested Under
17 C.F.R. Sections 200.80(b)(4) and 240.24b-2.
EXECUTION COPY
BP TRANSITION SERVICES AGREEMENT
This BP TRANSITION SERVICES AGREEMENT (this "Agreement") is made and entered
into as of September 2, 2010 (the "Effective Date"), by and between BP BIOFUELS
NORTH AMERICA LLC, a Delaware limited liability company ("Provider"), and
VERENIUM CORPORATION, a Delaware corporation (the "Company"). Capitalized terms
used in this Agreement have the meanings given to them in the Purchase
Agreement (as defined below) unless otherwise defined herein. Provider and the
Company are each a "Party" and are collectively the "Parties."
RECITALS
WHEREAS, the Company and Provider are parties to that certain Asset Purchase
Agreement dated as of July 14, 2010 (the "Purchase Agreement"), pursuant to
which, among other things, the Company will sell to Provider, and Provider will
purchase from the Company, all of the Company's right, title and interest in
and to the assets used in or that are necessary for the operation of the LC
Business, as described in greater detail in the Purchase Agreement;
WHEREAS, following the sale of the LC Business, the Company plans to
continue operating the Enzymes Business;
WHEREAS, from and after the Effective Date, Provider will be a tenant of the
premises leased pursuant to the San Diego Building A Lease, as amended (such
premises, "Building A");
WHEREAS, from and after the Effective Date, the Company will be a tenant of
the premises leased pursuant to the San Diego Building B Lease, as amended
(such premises, "Building B," and together with Building A, the "San Diego
Premises");
WHEREAS, from and after the Effective Date, Provider will sublease certain
premises in Building A (such premises, the "Verenium Sublet Premises") to the
Company pursuant to the Sublease Agreement (as defined in the Purchase
Agreement); and
WHEREAS, in order to facilitate an orderly transition and to provide for the
operation of the Enzymes Business while the Company occupies the Verenium
Sublet Premises, the Parties desire that Provider provide the services
described in this Agreement during the time periods specified herein, on the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
1. Services; Work Capacity; Conditions.
(a) Services. Subject to the terms and conditions hereof, Provider shall
provide, or shall cause to be provided, to the Company the services
(individually, a "Service," and collectively, the "Services") described on
the service schedules attached hereto or described
on any additional service schedules entered in accordance with Section 4
hereof (collectively, the "Service Schedules") during the applicable Service
Term (as defined below).
(b) Work Capacity. Provider shall not be obligated to provide any volume
or level of Services in excess of, or allocate any employees or employee
worktime to the performance of Services in excess of, any maximum Work
Capacity requirements specified in the Service Schedules. For purposes of
this Agreement, "Work Capacity" means Provider's allocation of its
employees' work time to the provision of the Services, measured on a full
time equivalent ("FTE") basis, assuming a five-day workweek and eight-hour
workday.
(c) Conditions. Provider's obligation to provide the Services is
conditional upon Provider's receipt of required consents (in form and
substance reasonably satisfactory to Provider) to the performance of such
Services by (i) Ardea Biosciences, Inc., as subtenant under the San Diego
Sublease (as defined in the Purchase Agreement) and (ii) KR-Gateway
Partners, LLC, as landlord under the San Diego Leases (as defined in the
Purchase Agreement).
2. Term; Service Terms.
(a) Agreement Term. The term of this Agreement shall commence on the
Effective Date and shall continue in effect until the second anniversary of
the Effective Date, unless extended by mutual written agreement of the
Parties in writing or earlier terminated in accordance with the provisions
of Section 5 hereof (as the same may be extended or earlier terminated, the
"Agreement Term").
(b) Service Term. Each Service described in a Service Schedule attached
hereto shall commence on the Effective Date and shall continue until the
earliest to occur of (i) the expiration or termination of the Agreement
Term, (ii) the expiration of the term of such Services as set forth in such
Service Schedule, as the same may be renewed in accordance with Section 2(c)
if applicable, and (iii) such time as such Service is terminated in
accordance with the provisions of Section 5 hereof (individually, a "Service
Term," and collectively, the "Service Terms"). This Agreement is a master
agreement and each Service Schedule shall be construed as a separate and
independent agreement for the performance of the Services described therein,
subject to the terms and conditions of this Agreement. Any termination of
any Service under a Service Schedule shall not terminate this Agreement or
any Service Schedule with respect to any other Service then being provided
pursuant to this Agreement.
3. Fees.
(a) Service Fees. In consideration for the Services provided to the
Company by Provider hereunder, for each Service provided by Provider during
the applicable Service Term, the Company shall pay to Provider (i) the
fee(s) set forth with respect to such Service on the applicable Service
Schedule (individually, a "Service Fee," and collectively, the "Service
Fees") and, if applicable, any Affected Service Expense (as defined below)
and (ii) the monthly cost charges set forth with respect to such Service on
the applicable Service Schedule (individually, a "Monthly Cost Charge," and
collectively, the "Monthly Cost Charges"). The Company shall be responsible
for reimbursing any out-of-pocket travel or accommodation expenses incurred
by Provider in the performance of any Service.
2
(b) Payment Terms. Within thirty (30) days following the end of each
calendar month during the Agreement Term, Provider shall deliver to the
Company an invoice setting forth the Service Fees (including a reasonable
itemization) and Monthly Cost Charges incurred for each of the Services
provided, or caused to be provided, by Provider to the Company during the
prior calendar month (collectively, the "Monthly Amounts"). The Company
shall pay Provider any undisputed Monthly Amounts reflected in such invoice
promptly upon receipt by the Company of the invoice relating thereto, but in
no event later than thirty (30) days following the receipt of such invoice.
Any amount of any Monthly Amount not paid during such thirty (30) days shall
bear interest, from the thirty-first (31st) day following receipt of the
invoice relating thereto until the date such amount is paid, at the rate of
one percent (1%) per month or the maximum rate permitted by law, if less. In
the event any Service is provided for part of any month, then the Services
Fees payable in respect of such Service shall be pro-rated on a daily basis
in respect of such partial month.
(c) Taxes. Provider will be solely responsible for all tax returns and
payments required to be filed with or made to any federal, state or local
tax authority with respect to Provider's performance of Services and receipt
of Service Fees and Monthly Cost Charges to be paid by the Company under
this Agreement. The Parties will cooperate with each other in determining
the extent to which any tax is due and owing under the circumstances, and
shall provide and make available to each other any resale certificates,
information regarding out-of-state or country use of materials, services or
sale, and other exemption certificates or information reasonably requested
by either Party. If any taxes are required to be withheld by the Company,
the Company will (i) deduct such taxes from the payment made to Provider,
(ii) timely pay the taxes to the proper taxing authority, (iii) send proof
of payment to Provider and certify its receipt by the taxing authority
within thirty (30) days following such payment, and (iv) shall provide such
assistance as Provider may reasonably require in obtaining any refund of
such amounts to which Provider may be entitled, to the extent that such
assistance does not cause the Company to incur any liability in respect of
the taxes asserted to be due.
(d) Adverse Impact. Unless otherwise provided for in this Agreement, if
the Company (i) makes any change to its processes, procedures, practices,
networks, equipment, configurations, or systems and (ii) such change has a
material adverse impact on Provider's ability to provide any of the
Services, Provider shall be excused from performing any such affected
Services until the Company adequately, in Provider's reasonable discretion,
mitigates the material adverse impact of such change on the Provider's
ability to provide such Services, and the Company shall be responsible for
all expenses, if any, incurred by Provider directly as a result of the
cessation and, if applicable, the resumption of the affected Service
("Affected Service Expense").
4. Change Order Requests.
(a) Written Request. Provider has no obligation to provide to the Company
any services under this Agreement other than the Services. Either Party may
at any time after the Effective Date, through the Governance Committee and
pursuant to Section 4(b) below, propose modifications, changes or deletions
to the Services ("Modified Services") or propose that additional services be
added as Services ("Additional Services"), which Modified Services or
Additional Services shall become Services subject to this Agreement if
approved in writing by the Parties pursuant to Section 4(b) below. The Party
requesting the Modified Services or
3
Additional Services is referred to herein as the "Requesting Party" and the
Party receiving the request is referred to herein as the "Other Party."
(b) Process. The Parties agree to use the process set forth in this
Section 4(b) to approve requests for Modified Services or Additional
Services. To request Modified Services or Additional Services, the
Requesting Party shall prepare and, through its representatives on the
Governance Committee (as defined below), submit a change order request in
the form of Annex 1 hereto (a "Change Order Request") to the Governance
Committee, pursuant to which the Requesting Party shall (i) in the case of
requested Modified Services, attach to the Change Order Request a proposed
modified Service Schedule relating to the applicable Services to be
modified, or (ii) in the case of Additional Services, attach to the Change
Order Request a new proposed Service Schedule for the Additional Services
being requested, including, in each case, a description of the proposed
functional area, Service Fee, Service Fee basis, Monthly Cost Charges,
Service Term, and estimated requirements for the Modified Services or
Additional Services. Following the Governance Committee's receipt of a
Change Order Request, the Governance Committee shall in good faith review
and approve such Change Order Request within fifteen (15) days of such
receipt, with such changes as the Governance Committee deems appropriate.
After a Change Order Request is approved by the Governance Committee, the
proposed Service Schedule attached thereto shall be attached hereto and
become a "Service Schedule" under this Agreement, and the Modified Services
or Additional Services covered by such Service Schedule, as the case may be,
shall become "Services" under this Agreement as of the date of approval, and
in each case shall be subject to the terms and conditions set forth herein.
(c) Substitution of Provider Designee. If a Service Schedule specifies a
designated employee of Provider (or any of its Affiliates, which shall
include any of the Biofuels Subsidiaries) who will provide the Services
(such employee, the "Provider Designee"), then only that Provider Designee,
to the extent such Provider Designee is still employed by Provider, and no
other employee or agent of Provider, shall provide such Services on behalf
of Provider unless mutually agreed by the Parties. If a Provider Designee is
unable to provide an applicable Service due to such Provider Designee no
longer being employed at Provider or as a result of exigent circumstances
affecting such Provider Designee, or if circumstances arise in which
Provider's continued provision of the Provider Designee's Services would
materially adversely affect Provider or the conduct of its business,
Provider may identify another designated employee of Provider (or any of its
Affiliates, which shall include any of the Biofuels Subsidiaries) as a
replacement Provider Designee through a Change Order Request, and if the
Governance Committee agrees to such replacement Provider Designee through a
mutually agreed Change Order Request, Provider shall continue to perform the
applicable Service through the replacement Provider Designee. If Provider is
unable to identify any other such employee who has adequate skills to
provide the applicable Service, Provider, through its representatives on the
Governance Committee, shall so notify the Company in writing, and the
Governance Committee shall meet and agree upon a resolution to such
situation. If, after such discussion, the Governance Committee determines
that Provider is no longer able to provide the applicable Service, Provider
or the Company shall each be permitted to terminate such Service.
(d) Expenses. Unless otherwise mutually agreed to by the Governance
Committee, each Party shall bear its own expenses with respect to preparing
any requests or responses to Change Order Requests.
4
5. Termination.
(a) Termination of Services and Agreement. Provider's obligation to
provide the Services shall terminate on the date provided on the applicable
Service Schedule with respect to such Service (each, a "Service Termination
Date"). The Company shall have the right to terminate any Service prior to
the applicable Service Termination Date upon thirty (30) days prior written
notice unless a different termination notice period is specified in the
applicable Service Schedule. Termination of this Agreement shall terminate
any and all outstanding Service Schedules, but termination of any individual
Service shall not constitute a termination of this Agreement or any other
Service. If all Services shall have been terminated under this provision
prior to the expiration of the Agreement Term, this Agreement shall
immediately terminate.
(b) Termination Upon Sublease Termination. If the Sublease Agreement
terminates prior to the end of the Agreement Term as a result of an "Event
of Default" (as defined in the Sublease Agreement) by the Company thereunder
then Provider may terminate the Services set forth in Schedule A (Lab
Services) and/or the Services set forth in Schedule C (Access Services).
(c) Change of Control. Upon the occurrence of a Change of Control,
(i) all Service Fees shall automatically increase fifty percent
(50%) effective as of the date of such Change of Control and (ii) Provider
shall have the right to terminate this Agreement or any Service Schedule
hereunder upon ninety (90) days prior notice. For the purposes of this
Agreement, a "Change of Control" means the acquisition of the Company by a
Third Party by means of any transaction or series of related transactions to
which the Company is a party (including, any stock acquisition, merger or
consolidation), in which transaction or series of transactions (i) the
holders of outstanding voting securities of the Company immediately prior to
such transaction do not hold, directly or indirectly, at least 50% of the
combined outstanding voting power of the acquiring entity (or of the Company
if it is the surviving entity in such transaction), or its direct or
indirect parent entity, immediately after such transaction or series of
related transactions or (ii) the members of the board of directors of the
Company immediately prior to such transaction or series of related
transactions do not constitute at least a majority of the board of directors
of the surviving entity (or the Company if it is the surviving entity of
such transaction or series of transactions) immediately after such
transaction.
(d) Termination for Default. In the event of a Default (as defined below)
by a Party, the non-Defaulting Party shall have the right, at its sole
discretion, to terminate this Agreement if the Defaulting Party has failed
to cure such Default within thirty (30) days of receipt of written notice of
such Default. Each of the following events shall be deemed a "Default" under
this Agreement:
(i) The Company shall fail to pay to Provider any undisputed amount
of any Monthly Fees within thirty (30) days of receipt of an invoice
therefor or shall fail to pay to Provider any amount of any Monthly Fees
disputed in good faith by the Company within thirty (30) days after
resolution of such dispute;
5
(ii) Either Party shall default, in any material respect, in the due
performance or observance by it of any of the terms, covenants or
agreements contained in this Agreement, other than those expressly
addressed in clause (i); or
(iii) Either Party shall become or be adjudicated insolvent and/or
bankrupt, or a receiver or trustee shall be appointed for either Party
or its property or a petition for reorganization or arrangement under
any bankruptcy or insolvency law shall be approved, or either Party
shall file a voluntary petition in bankruptcy or shall consent to the
appointment of a receiver or trustee that is not discharged within 90
days.
(e) Accrued Fees and Obligations. Except in the event of termination of
this Agreement as a result of a Default by Provider under Sections 5(b)(ii),
all accrued and unpaid Monthly Fees shall be due and payable upon
termination of this Agreement. Except as expressly provided herein, the
expiration or termination of this Agreement or the expiration of or
termination of any Service shall not relieve either Party of any obligations
or liabilities accruing prior to the date of such termination or expiration.
6. Relationship of the Parties. In providing the Services, Provider shall at
all times be an independent contractor. Nothing contained herein shall be
construed, applied or intended to create the relationship between the parties
hereto of principal and agent or of employer and employee or of a partnership
or joint venture. Provider shall have no authority to act as an agent of the
Company for any purpose and shall not enter into any contract, understanding or
agreement on behalf of the Company or incur any charge or expense in the name
of the Company.
7. Provider Representatives and Company Representative.
(a) Provider has appointed a representative(s) (each, a "Provider
Representative") in respect of each of the Services under this Agreement as
set forth on each of the Service Schedules. If a Service has a specifically
identified Provider Designee, the Provider Designee may also be appointed as
the Provider Representative for that Service. Provider shall at all times be
responsible for giving reasonable directions to each Provider Representative
in relation to the provision of the Services to the Company. Provider may
replace any Provider Representative at any time upon written notice to the
Company. The relevant Provider Representative will manage the day-to-day
provision of the applicable Service and be the first point of contact
between the Company and Provider in respect of the provision of such Service.
(b) The Company shall be represented by a nominee (the "Company
Representative"), who shall be appointed by the Company to act on behalf of
the Company for purposes of this Agreement and may be replaced by the
Company at any time upon written notice to Provider.
(c) The role of the Provider Representative and the Company
Representative shall be, on behalf of Provider and the Company,
respectively, to coordinate the provision of the Services, to discuss and
reach agreement on any proposed changes to the Services, and to escalate any
disputes arising between the Company and Provider to the Governance
Committee.
6
8. Cooperation Between the Parties.
(a) Provider and the Company acknowledge that the success of this
Agreement will be greatly affected by the good faith cooperation of each
Party. Accordingly, the Parties agree to use commercially reasonable efforts
to achieve the stated purposes of this Agreement.
(b) The Company and Provider will establish a governance committee,
equally represented by the Company and Provider (the "Governance
Committee"). Resolution of all disagreements and disputes between Company
and Provider regarding the obligations and performance of either Party under
this Agreement and Service Schedules will first be attempted by the
Governance Committee. Decisions of the Governance Committee shall be by
unanimous vote, with the representatives of the Company on the Governance
Committee collectively having one vote and the representatives of Provider
on the Governance Committee collectively having one vote. In the event the
Governance Committee is unable to resolve the matter within thirty
(30) days, then either Party may seek any and all remedies available to such
Party under the Purchase Agreement or any applicable Transaction Document
and Sections 11.12, 11.13 and 11.14 of the Purchase Agreement shall apply.
Any Modified Services or Additional Services shall be reviewed by the
Governance Committee and incorporated by reference as part of this Agreement
and the Service Schedules through the process set forth in Section 4(b).
(c) At least once every month and at other times as requested to
facilitate a Change Order Request or as determined to be necessary at the
request of either Party, the Governance Committee shall meet to discuss and
give consideration to desired or necessary changes to the scope, level or
type of Services provided hereunder.
(d) In cases where the Parties need or desire to interact through
in-person communications in connection with the Services, such
communications, and the timing and location of such communications, shall be
coordinated between the applicable Provider Representative and the Company
Representative. The Governance Committee may formulate rules and procedures
for in-person communications relating to particular Services or categories
of Services, in which case the Parties shall comply with such rules and
procedures.
9. Personnel. Provider shall select, employ, supervise and direct all
personnel providing the Services hereunder. Provider's employees (or employees
of any of its Affiliates, which shall include any of the Biofuels
Subsidiaries), if any, providing Services under this Agreement are recognized
as employees solely of Provider (or its Affiliates, which shall include any of
the Biofuels Subsidiaries, as applicable). The Parties expressly agree that
Provider and the Company are not joint or co-employers of the employees
providing such Services, and Provider shall provide and be solely responsible
for all salary, employment and other benefits and liabilities relating to the
employment, in each case, of persons who perform the Services hereunder,
including without limitation the provision of workers compensation and
disability insurance for such persons.
10. Indemnification.
(a) The Company shall indemnify, defend and hold harmless Provider and
its officers, employees, affiliates and agents from and against any losses,
damages, injuries or
7
expenses ("Losses") incurred as a result of any claims demands or actions by
any independent third party arising out of or related to (i) the Company's
breach of this Agreement or the Company's gross negligence or willful
misconduct in connection with the performance of this Agreement or (ii) the
Company's use of Permitted Access to access Provider's Accessed Premises,
except in each case of clause (i) and (ii) to the extent such Losses arise
from Provider's breach of this Agreement or Provider's gross negligence or
willful misconduct.
(b) Provider shall indemnify, defend and hold harmless the Company and
its officers, employees, affiliates and agents from and against any Losses
incurred as a result of any claims demands or actions by any independent
third party arising out of or related to (i) Provider's breach of this
Agreement or Provider's gross negligence or willful misconduct in connection
with the performance of this Agreement or (ii) Provider's use of Permitted
Access to access the Company's Accessed Premises, except in each case of
clause (i) and (ii) to the extent such Losses arise from the Company's
breach of this Agreement or the Company's gross negligence or willful
misconduct.
(c) NO PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOST REVENUES AND LOSS OF BUSINESS), WHETHER
FORESEEABLE OR NOT, WHETHER OCCASIONED BY ANY FAILURE TO PERFORM OR THE
BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER OBLIGATION UNDER
THIS AGREEMENT FOR ANY CAUSE WHATSOEVER. Claims for indemnification under
this Section 10 shall not be considered incidental, consequential, indirect
or special damages hereunder.
11. Limitation of Liability. The maximum aggregate liability of Provider to
the Company arising in relation to this Agreement in respect of the provision
or non-provision of Services, whether for breach of contract, tort (including
negligence), breach of statute or otherwise and whether arising out of any
single act, omission, event or circumstance or series of acts, omissions,
events or circumstances occurring, shall in no circumstances exceed the total
amount paid for Services by the Company to Provider under this Agreement.
12. Performance. The Services shall be performed by Provider for the Company
in a timely, competent and workmanlike manner and quality that are
substantially consistent with Provider's performance of such activities in its
business in the ordinary course. The Parties further acknowledge and agree that
Provider shall not be responsible for and is not guaranteeing the achievement
of any results from the performance of the Services hereunder. Provider's
performance of the Services shall not be subject to any performance criteria or
performance targets unless such criteria or targets are specifically set forth
in the Service Schedules.
13. Notices. All notices to be provided under this Agreement shall be made
in writing and shall be effective when delivered personally to the recipient,
transmitted by facsimile machine or electronic mail, with confirmation of
delivery retained, or one (1) business day after deposit for overnight
delivery, fees prepaid, with a nationally recognized overnight courier service,
or if mailed, five (5) business days after the date of mailing, to the
addresses of the Parties as set forth below:
8
If to the Company: Verenium Corporation
00 Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
If to Provider: BP Biofuels North America LLC
Attention: Director of Business Development
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
14. Governing Law. This Agreement shall be construed in accordance with, and
governed by, the law of the State of New York, without giving effect to its
conflict-of-laws provisions.
15. Assignment; Successors and Assigns. Neither this Agreement nor any
rights or obligations hereunder may be assigned by any Party without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld; provided, however, that either Party may assign this Agreement and
its rights and obligations under this Agreement to any of its affiliates
without the other Party's consent. This Agreement shall be binding upon
successors and permitted assigns of the Parties. Any assignment not in
accordance with this Section 15 will be null and void.
16. No Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the Party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature. No failure on the part of any Party to exercise,
and no delay in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege operate as a waiver hereof.
17. Amendments. No change, amendment or modification of this Agreement shall
be valid unless the same shall be in writing and signed by the Parties hereto.
18. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective as to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforcement of such provision in any other jurisdiction.
19. Headings. The section headings used in this Agreement are included for
convenience of reference only and in no way should be used to construe or
interpret this Agreement.
20. Counterparts; Signatures. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute a single instrument. Additionally, the Parties
acknowledge and agree that signatures to this
9
Agreement provided by facsimile or email in .pdf format shall be recognized as
original signatures.
21. Confidentiality.
(a) "Confidential Information" means any and all information, data and
technology disclosed and/or provided by any Party hereto or any of its
affiliates, as applicable (each a "disclosing party"), to the other Party
hereto or any of its affiliates (each a "receiving party"), including,
without limitation, any and all methods and/or materials used in the
business of the disclosing party or one of its affiliates, as applicable,
technical information, technologies, systems, processes, procedures,
know-how, data, trade secrets (as such are determined under applicable law),
samples, inventions (whether patentable or unpatentable), improvements,
methods, materials and compositions, devices, molecules, genetically
engineered organisms, formulae, illustrations, patent applications,
products, works of authorship, compilations, programs, schematics, designs,
drawings, technical plans, prototypes, production and manufacturing
processes and techniques, research, development activities and plans,
specifications, computer programs, object and source code, databases,
passwords, log on identifiers, algorithms, derivative works, reports, mask
works, business and financial data, business plans, skills and compensation
of employees and consultants, pricing, financial and operational
information, information regarding litigation or other regulatory actions or
complaints, marketing plans, customer and supplier information (including,
without limitation, actual or potential customers or suppliers, customer or
supplier lists, and customer or supplier requirements), regardless of the
form in which such information appears, or by which it is communicated
whether in tangible or intangible form, whether or not marked as
confidential or otherwise identified as confidential, and whether or not
stored, compiled or memorialized physically, electronically, graphically,
photographically or in writing, as well as all documents and other
information which contain or reflect or are generated from any of the
foregoing. Notwithstanding anything to the contrary contained herein, all
Work Product and Inventions shall be the Confidential Information of the
Company.
(b) Requirements. During the Agreement Term and for ten (10) years
thereafter, the receiving party shall hold all Confidential Information of
the disclosing party in confidence and shall not disclose, use, copy,
publish, distribute, display, disseminate, provide access to or in any way
disburse any Confidential Information, except: (i) as reasonably necessary
to carry out its responsibilities under this Agreement; (ii) as otherwise
allowed under this Agreement; or (iii) with written consent of the
disclosing party. The receiving party will use at least the same standard of
care as it uses to protect proprietary or confidential information of its
own (but no less than reasonable care) to ensure that its and its
affiliates' employees, agents, consultants and other representatives do not
disclose or make any unauthorized use of the Confidential Information of the
disclosing party.
(c) Exceptions. The obligations set forth in Section 21(b) shall not
apply to any portion of Confidential Information which the receiving party
can prove by competent evidence:
(i) is now, or hereafter becomes, through no act or failure to act on
the part of the receiving party or its affiliates in breach of this
Agreement, generally known or available;
10
(ii) is known by the receiving party or its affiliates at the time of
receiving such information as evidenced by documentation pre-dating
disclosure to the receiving party or its affiliates by the disclosing
party;
(iii) is furnished to the receiving party by a third party that is
free to disclose to others without breach of any obligation of
confidentiality or non-disclosure; or
(iv) was independently developed by the receiving party or its
affiliates without reference to information provided by the disclosing
party, as evidenced by clear documentation.
(d) Permitted Disclosures. The receiving party and its affiliates are
expressly authorized to disclose Confidential Information of the disclosing
party as expressly permitted by this Agreement or if and to the extent such
disclosure is reasonably necessary in the following instances:
(i) exercising the rights and performing the obligations of the
receiving party under this Agreement;
(ii) prosecuting or defending litigation as permitted by this
Agreement;
(iii) complying with applicable laws and regulations;
(iv) disclosure to FDA, DOE, USDA or EPA or any comparable or
successor government agencies worldwide;
(v) disclosure to employees, agents, consultants and independent
contractors of the receiving party and its affiliates only on a
need-to-know basis and solely as necessary in connection with the
performance of this Agreement, provided that each disclosee must be
bound by similar obligations of confidentiality and non-use at least as
equivalent in scope as those set forth in this Section 21 prior to any
such disclosure; or
(vi) disclosure to any bona fide potential investor, investment
banker, acquirer, merger partner, or other potential financial partner;
provided that in connection with such disclosure, the receiving party
shall inform each disclosee of the confidential nature of such
Confidential Information and use reasonable efforts to cause each
disclosee to treat such Confidential Information as confidential.
In the event the receiving party or any of its affiliates are required to
make a disclosure of the Confidential Information of the disclosing party
pursuant to Section 21.1(d)(ii) or 21.1(d)(iii), it will, except where
impracticable, provide the disclosing party at least sufficient prior written
notice of any such disclosure so that the disclosing party may seek a
protective order or other appropriate remedy. Notwithstanding the foregoing,
the receiving party and its affiliates shall take all reasonable action to
preserve the confidentiality of the Confidential Information of the disclosing
party, including, without limitation, by cooperating with the disclosing party
to obtain a protective order or other appropriate remedy.
11
(e) Notice of Non-Permitted Disclosure. If the receiving party becomes
aware of any unauthorized use or disclosure of the Confidential Information
of the disclosing party, the receiving party shall promptly notify the
disclosing party in writing.
(f) Injunctive Relief. Given the nature of the Confidential Information
and the competitive damage that would result to the disclosing party upon
unauthorized disclosure, use or transfer of its Confidential Information to
any third party, the Parties agree that monetary damages may not be a
sufficient remedy for any breach of this Section 21. In addition to all
other remedies, the disclosing party shall be entitled to seek specific
performance and injunctive and other equitable relief as a remedy for any
breach or threatened breach of this Section 21.
22. Intellectual Property and Work Product.
(a) Work Product. All personal property that is embodied in any tangible
form and that is created or provided by Provider for the Company in
performance of the Services (such personal property is referred to as "Work
Product") shall be owned by the Company. If requested by the Company,
appropriate portions (such as, but not limited to, designs, drawings, plans,
specifications, prints, and reports) of such Work Product will be furnished
in electronic format. Work Product may be in the form of a work of
authorship, a process diagram, a drawing, a blueprint, a model, a
specification, a design, a report, a manuscript, a document, a manual, a
chart, a photograph, a database, a computer program, a design for an
apparatus or process or system, working notes, a plan, or a model. Provider
will periodically furnish Work Product to the Company and at least
one tangible copy of such Work Product, or any part thereof, upon request by
the Company, and at least one (1) tangible copy of the Work Product upon
completion of the Services.
(b) Inventions. All inventions, improvements and discoveries made,
developed, or conceived by Provider in connection with the Services
performed hereunder shall be promptly and fully disclosed to the Company in
writing by Provider (such inventions, improvements and discoveries are
referred to as "Inventions"). All Inventions shall be owned the Company with
unencumbered title thereto.
(c) Assignment to Effect Ownership. Provider hereby assigns to the
Company any and all rights Provider has or may acquire in Work Product and
Inventions and intellectual property rights therein, or if assignment is not
permitted by law, waives such rights or grants to the Company an exclusive,
fully paid, perpetual irrevocable, worldwide license under such rights in
Work Product and Inventions and intellectual property rights therein for any
and all purposes. Provider agrees to execute any assignment or other
documents reasonably necessary to convey to the Company any right, title or
other interest to Work Product and Inventions and intellectual property
rights therein as necessary to effect the ownership of Work Product and
Inventions and intellectual property rights therein by the Company, and, at
the request of the Company, Provider shall execute all applications for
United States and foreign Letters Patent and any papers relating thereto
which the Company or its nominee deems reasonably necessary or proper. The
Company or its nominee shall have sole responsibility for the preparation,
filing and prosecution of all such applications for Letters Patent and will
bear all costs and expenses in connection therewith. However, the Company
shall have no obligation hereunder to file any patent application, secure
any patent or maintain any patent in force.
12
(d) The Company and Provider agree that any new discoveries or inventions
covered by a pending patent application or a provisional patent application
or otherwise invented or discovered under this Agreement by Provider and
obligated to be assigned to the Company pursuant to this Section 22(d) shall
be considered to be part of a joint research agreement in the context of 35
USC (S)103(c). Further, such invention or discovery shall be considered to
be owned by, subject to an obligation of assignment to, or otherwise
considered to be commonly owned by the same person at the time of the
applicable application for patent was made, and was assigned to the assignee
in accordance with the obligations set forth in 37 CFR 3.11, so as to in all
respects meet the obligations set forth in and not serve as a "prior art"
basis for rejection based on anticipation pursuant to 35 U.S.C. (S)(S)
102(e), (f), or (g). In addition, each Party hereby agrees to cooperate, as
reasonably necessary, and provide such applicable documentation as requested
by the other Party as such Party determines is reasonably necessary to
comply with this Section 22(d) and otherwise avoid rejection based on
anticipation pursuant to 35 U.S.C. (S)(S) 102(e), (f), or (g).
23. Access to Premises.
(a) The performance and receipt of Services hereunder shall not entitle a
Party or its personnel or agents to access the premises, facilities,
equipment or systems of the other Party except as specifically set forth
under a Service Schedule or as specifically authorized by a Receiving Party
Representative (such specified permitted access, "Permitted Access"). The
foregoing sentence does not limit either Party's right to access the Shared
Space (as defined in the Sublease Agreement) under and in accordance with
the Sublease Agreement. All Permitted Access shall be subject to the
requirements set forth in this Section 23 and the applicable Service
Schedule. For purposes of this Agreement, "Accessing Party" means the Party
using Permitted Access to access the Receiving Party's Accessed Premises;
"Receiving Party" means the Party whose Accessed Premises are being accessed
by the Accessing Party; "Accessed Premises" means a Receiving Party's
premises, facilities, equipment, supplies or systems that are accessed by
the Accessing Party; "Receiving Party Representative" means the Provider
Representative (if Provider is the Receiving Party) or the Company
Representative (if the Company is the Receiving Party), as applicable; and
"BP Premises" means the San Diego Premises other than the Verenium Sublet
Premises.
(b) All Permitted Access shall be subject to the following requirements,
in addition to the requirements specified in the applicable Service
Schedules: (i) the Accessing Party shall provide the Receiving Party's
Representative reasonable advance notice each time the Accessing Party plans
to access or use its Permitted Access, with such notice including details
regarding the personnel or agents of the Accessing Party who will be
accessing the Accessed Premises and the timing and nature of such
personnel's or agents' intended activities on the Accessed Premises;
(ii) the Accessing Party's personnel and agents shall comply with all
reasonable scheduling decisions, rules, policies and procedures established
by the Receiving Party Representative in connection with the Accessing
Party's exercise of the Permitted Access; (iii) the Accessing Party and its
personnel and agents shall not perform any activities or work on the
Accessed Premises except as specified in the applicable Service Schedule and
such activities and work shall be subject to the scheduling decisions,
rules, policies or procedures established by the Receiving Party
Representative; and (iv) the Receiving Party Representative and any designee
thereof shall have the right to oversee all uses of Permitted Access by the
Accessing Party and its personnel or agents and to prevent or cease any
particular use of Permitted Access
13
if the Receiving Party Representative or such designee determines that the
Accessing Party has violated any access requirements set forth in this
Section 23 or the applicable Service Schedule.
(c) Each time the Accessing Party uses Permitted Access to the Accessed
Premises, the Accessing Party shall comply with the Receiving Party's
written security policies, procedures and requirements made available by the
Receiving Party, and will not tamper with, compromise, or circumvent any
security or audit measures employed by the Receiving Party. The Accessing
Party shall not allow its personnel or agents to have access to the Accessed
Premises except as expressly permitted under this Section 23 and shall
prevent unauthorized use, destruction, alteration or loss in connection with
such unauthorized access.
(d) The Parties agree that if the Accessing Party accesses or uses
Permitted Access to the Accessed Premises, the Accessing Party shall assume
all responsibility and liability, and the Receiving Party shall not assume
any responsibility or liability, for any Losses (including any Losses
incurred or caused by an employee or agent of the Accessing Party) arising
out of the Accessing Party's use of such Permitted Access.
(e) In cases where the Company stores in, locates on or brings onto the
BP Premises any equipment, machinery, materials, supplies or other items in
connection with the performance of the Services, the Parties agree that
(i) Provider assumes no responsibility for or liability in respect of any
damage caused to such items other than damage caused solely by Provider's
gross negligence or willful misconduct, (ii) Provider shall have no
obligation to maintain or repair such items, (iii) Provider shall not be a
xxxxxx with respect to such items, (iv) Provider shall not use any such
items for any purpose other than performance of the Services, (v) the
Company may request at any time authorization for Permitted Access to remove
any such items, which authorization shall not be unreasonably withheld or
delayed and (vi) upon expiration or termination of the applicable Services,
Provider may require the Company to remove such items from the BP Premises
promptly.
24. Controlling Provisions. If there is any conflict or inconsistency
between the terms and conditions set forth in the main body of this Agreement
and any of the Service Schedules attached hereto, the provisions of the Service
Schedules attached hereto and thereto shall control with respect to the rights
and obligations of the Parties regarding the Services. If there is any conflict
or inconsistency between the terms and conditions of this Agreement and any
other Transaction Document, the provisions of this Agreement shall control
solely with respect to the rights and obligations of the Parties regarding the
Services.
25. Insurance. At all times during the Agreement Term and for a period of
one year thereafter, Provider shall maintain sufficient insurance coverage to
enable it to meet its obligations under this Agreement and by law. Without
limiting any of the other liabilities under this Agreement, Provider shall, at
all times, carry and maintain or cause to be carried and maintained at its
expense, such insurance as is customarily maintained by Provider; provided,
that such insurance shall be placed with insurers having a minimum A.M. Best
rating of A: IX and be licensed to do business in the states of jurisdiction in
which the Services are being provided hereunder. Notwithstanding the foregoing,
Provider shall have the right to self insurance.
14
26. Force Majeure. Neither Party shall be liable for any failure of
performance attributable to acts or events (including but not limited to war,
acts of terrorism, conditions or events of nature, industry-wide supply
shortages, civil disturbances, work stoppage, labor disturbance, power
failures, failure of telephone lines and equipment, fire and earthquake, or any
law, order, proclamation, regulation, ordinance, demand or requirement of any
governmental authority) beyond its control which prevent in whole or in part
performance by such Party hereunder.
27. Survival. The provisions of Section 5(e) (Accrued Fees and Obligations),
Section 6 (Relationship of the Parties), Section 10 (Indemnification),
Section 11 (Limitation of Liability), Section 14 (Governing Law), Section 15
(Assignment; Successors and Assigns), Section 21 (Confidentiality), Section 22
(Intellectual Property and Work Product), Section 25 (Insurance), this
Section 26 (Survival) and Section 27 (Entire Agreement) shall survive
termination of this Agreement.
28. Entire Agreement. This Agreement, together with the Service Schedules
and other Transaction Documents, constitutes the complete agreement and
understanding among the Parties regarding the subject matter of this Agreement
and such other agreements and supersedes any prior agreement (including,
without limitation, the Term Sheet) understanding or representation regarding
the subject matter of this Agreement or such other agreements.
[Signature Page Follows]
15
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly and lawfully authorized officers or legal representatives effective
as of the date first set forth above.
BP BIOFUELS NORTH AMERICA LLC VERENIUM CORPORATION
By: By:
------------------------------- ------------------------------
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxx
Title: President Title: President and Chief Executive
Officer
[Signature Page - BP Transition Services Agreement]
SCHEDULE A
Lab Services
Provider Name: [...***...] *
Representative: Phone: *
Email: [...***...]
Location of Services: San Diego Premises.
Service Term: Two years unless specified below
Description of Services:
General Lab Services.
Autoclaving. Provider shall provide autoclaving services during normal
business hours on at least three weekdays per week, averaging
approximately one autoclave run per business day. Provider shall
provide such services up to a maximum Work Capacity of [...***...] FTE
per month. The materials to be autoclaved shall be dropped off at and
picked up from the area designated by the Provider Representative.
Equipment/materials should be in generally acceptable condition prior
to autoclaving (i.e., no unusual cleaning or removal needed).
Glass Washing. Provider shall provide glass-washing services in
respect of laboratory glassware during normal business hours on at *
least three weekdays per week, up to an average of five glass washings
per a week. Provider shall provide such services up to a maximum Work
Capacity of [...***...] FTE per month. The materials for glass washing
must be dropped off at and picked up from the area designated by the
Provider Representative. Glassware should be in generally acceptable
condition prior to glass washing (i.e., no unusual cleaning or removal *
needed). Provider shall provide such glass washing services as
promptly as practical and shall thereafter return such glassware to
the Company.
Service Fee: [...***...]. *
Monthly Cost Charge: [...***...]. *
Media Preparation.
No more than four times a calendar month, the Company may, by giving
three business day's notice, request that Provider provide the Company
with designated quantities (as the Company shall detail in writing) of
any of lab materials and supplies for use in media preparation.
Provider shall provide such services up to a maximum Work Capacity of
[...***...] FTE per month.
Provider shall provide such materials or supplies to the Company as
promptly as practical.
*
In the event the Company requests materials or supplies that are not
in stock at Provider, Provider shall not be obligated to provide such
materials or supplies. In no circumstances will Provider be obligated
to hold in stock any quantity of such materials or supplies outside
the ordinary course of business.
Service Fee: [...***...]. *
Monthly Cost Charge: [...***...]. *
A-1
NMR Services. Provider shall provide nuclear
magnetic resonance services ("NMR services") in
respect of samples provided by the Company no more
than once per business day. Provider shall provide
such services up to a maximum Work Capacity
of [...***...] FTE per month.
Each time the Company intends to procure NMR
services, the Company shall notify the Provider
Representative of such intent three business days
in advance, and shall coordinate with the Provider
Representative as to the timing and procedures for *
delivery of the samples that will be the subject of
the NMR services.
Provider shall provide the NMR services as promptly
as practical and shall thereafter return the
samples and the data resulting from the services to
the Company.
Service Fee: [...***...]. *
Monthly Cost Charge: [...***...]. *
Automation Lab Services. Provider shall provide
automation lab services in respect of samples
provided by the Company during at least three weeks
of each calendar month. Provider shall provide such
services up to a maximum Work Capacity
of [...***...] FTE per month.
Each time the Company intends to procure automation
lab services, the Company shall notify the Provider
Representative of such intent three business days
in advance, and shall coordinate with the Provider
Representative as to the automation procedures
required and to timing and procedures for delivery
of the samples that will be the subject of the
services.
Provider shall provide the automation lab services *
as promptly as practical and shall thereafter
return the samples and the data, resulting from the
services to the Company.
Service Fee: One month's prior notice is required
to commence automation lab services. Beginning in
the first month in which the Company first requests
that Provider provide automation lab services,
[...***...].
*
Monthly Cost Charge: Beginning in the first month
in which the Company first requests that Provider
provide automation lab services, [...***...]. *
Fermentation Plant Services. Provider shall provide
fermentation plant services to the Company during
at least three weeks of each calendar month. For
the duration of this Service Schedule for
fermentation services, Provider will operate the
fermentation plant, as it currently operates, as a
dual purpose facility. The facility will operate
according to food cGMP standards and the physical
space (including storage of food grade raw
materials) and equipment will be divided to meet
the needs of food cGMP standards (rooms
[...***...]) and non-GMP (room [...***...])
activities; provided that, if Provider is required
to incur any costs outside of the ordinary course
of business in order to comply with these standards
for purposes of providing the fermentation
services, such costs will be borne by the Company.
Provider shall provide such services up to a
maximum Work Capacity of [...***...] employees (on *
average) at [...***...] FTE each (on average) per
month (i.e., [...***...]% FTE per month in total).
Specifically, [...***...] fermenters, [...***...] *
fermenters, and [...***...] fermenters shall be
designated for the Company's priority use.
*
Provider shall provide the fermentation plant *
services as promptly as practical and shall *
thereafter return the samples and the data *
resulting from the services to the Company.
Service Fee: [...***...]. *
Monthly Cost Charge: [...***...]. *
Soil Room Access, Gene Library Construction
Services, Training and Knowledge Transfer.
Provider shall provide soil room access, gene
library construction services and related
A-2
training and knowledge transfer in respect of samples provided by the
Company when requested. Provider shall provide such services up to a
maximum Work Capacity of [...***...] FTE total per month.
Provider Designee(s): [...***...]
Service Termination Date: December 31, 2011.
Service Fee: One month's prior notice is required to commence these
services. Beginning in the first month in which the Company first
requests that Provider provide soil room access, gene library
construction services or related training and knowledge transfer,
[...***...].
Monthly Cost Charge: [...***...]
Formulation Consulting Services:
Provider shall provide protein formulation consultations in support of
specialty enzyme product development efforts no more than once per
business week. Provider shall provide formulation consultations up to a
maximum Work Capacity of [...***...] FTE per month ([...***...] hours
per business week).
Provider Designee: [...***...]
Service Termination Date: December 31, 2010
Service Fee: [...***...]
Monthly Cost Charge: [...***...]
QA/QC Support [...***...].
[...***...] Provider shall provide such services up to a maximum Work
Capacity of [...***...] FTE per month through October 31, 2010,
[...***...] FTE per month thereafter.
Provider Designee(s): [...***...]
Service Fee: [...***...]
Monthly Cost Charge: [...***...]
Analytical Support for Test Article Production. At the Company's
request, Provider will conduct requested enzyme analysis testing
following GMP (Good Manufacturing Practices) standards in the support
of all test article production and as requested by the Company's
Representative from the service agreement. Provider shall provide such
services up to a maximum Work Capacity of [...***...] FTE per month.
Provider Designee(s): [...***...]
*
Service Termination Date: February 28, 2011
Service Fee: [...***...] *
Monthly Cost Charge: [...***...] *
Site HSSE and Facilities Services
Provider will manage building moves within Building A, perform
after-hours emergency response, and HSSE safety maintenance and
inspections. Provider shall also provide routine shipping and receiving
and third party document shredding services for the Company. The
Company will be responsible for any external shipping costs. Deliveries
for the Company will be made available by the Provider Representative
at a shared use area in Building A to
A-3
be designated by the Provider Representative Provider shall provide
such services up to a maximum Work Capacity of [...***...] FTE total
per month. *
Service Fee: [...***...] *
Monthly Cost Charge: [...***...] *
A-4
SCHEDULE B
Technical Consulting Services
Provider Name: [...***...] *
Representative: Phone:
Email: [...***...] *
Location of Services: San Diego Premises.
Service Term: Two years unless specified below
Description of Services:
General Technical Consulting. At the Company's request,
Provider shall provide such technical consulting services as
the Company shall specify. Requests shall be submitted no later
than during the facility operations meeting held during the
week prior to the week for which the technical consulting
services are requested. Provider shall use reasonable efforts
but shall not be responsible for assuring that the requested
services will be made available. Provider shall provide such
services (by employees designated by Provider to provide such
services) up to the following limitations on hours:
2010: [...***...] *
2011: [...***...] *
2012: [...***...] *
Service Fee:
2010: [...***...] *
2011: [...***...] *
2012: [...***...] *
Fermentation Lab Design Consulting. Provider shall arrange for
the Provider Designees to provide, at the Company's request,
consulting services in connection with the Company's design of
a new fermentation lab facility. The Provider Designee shall
provide such services up to a maximum Work Capacity of
[...***...] FTE per month.
Service Termination Date: December 31, 2010. *
Provider Designees: [...***...] *
Service Fee: [...***...] *
Fermentation Technical Consulting. Provider shall arrange for
Provider Designee to provide, at the Company's request,
consultation services (under the direction of a designated
Company employee) in connection with the Company's development
and implementation of strain and creation of test articles. The
Provider Designee shall provide such services up to a maximum
Work Capacity of [...***...] FTE per month.
Provider Designee: [...***...] *
Service Termination Date: February 28, 2011 *
Service Fee: [...***...] *
IT Support Services. Provider shall arrange for the Provider
Designee to provide, at the Company's request, IT support
services. The Provider Designee shall provide such services up
to a maximum Work Capacity of [...***...] FTE per month.
Provider Designee: [...***...] *
Service Termination Date: March 31, 2011 *
Service Fee: [...***...] *
B-1
Manufacturing and Engineering Support for Fermic
Operations. Provider shall arrange for the Provider
Designee to provide, at the Company's request,
consultation services in connection with the
Company's provision of manufacturing, technical and
engineering service support to its Fermic operations.
Engineering and design consulting services are only
in support of on-going projects that have been
previously started as of the Effective Date.
Provider shall provide such services up to a maximum
Work Capacity of [...***...] FTE per month through
December 31, 2010; [...***...] FTE through March 31,
2011; [...***...] FTE through June 30, 2011.
Provider Designees:
Manufacturing support: [...***...]
Engineering support: Xxxxxx [...***...]
Service Termination Date: June 30, 2011.
Service Fee: [...***...]
[...***...]
[...***...]
Bioinformatics Consulting Services
At the Company's request, Provider shall provide such
bioinformatics services as the Company shall specify.
Supported systems shall include but are not limited
to bioInformatics systems such as SciLect, ADAMAS,
Symphony, Reporting Services, Speed Database,
Automation Systems, Molinos Purifine Processing and
the Shipping Request System. Provider shall provide
such services (by employees designated from the
Provider's Designee list below) up to the following
limitations:
Up to [...***...] FTE per month through
September 30, 2010
Up to [...***...]FTE per month from October 1,
2010 through February 28, 2011
Provider Designee(s): [...***...]
Service Termination Date: February 28, 2011
Service Fee: [...***...]
Monthly Cost Charge: [...***...]
B-2
SCHEDULE C
Access Services
Provider Name: [...***...] *
Representative: Phone:
Email: [...***...] *
Location of Services: San Diego Premises.
Service Term: Two years
Description of Services:
Access to Robotics Lab for Observation: At the Company's
request, but in no event more frequently than ten business days
per calendar month (unless specifically authorized by the
Provider Representative), Provider shall grant the Company
Representative access during normal working hours to the
automation lab located in Building B, Room [...***...] at the
San Diego Premises, which access is "Permitted Access" under
the Agreement. Such Permitted Access shall be solely for the
purpose of allowing such Company Representative to observe and
confirm proper use of robotic equipment while such equipment is
being used to run experiments for the Company under Schedule A *
(Lab Services). Under no circumstances will the Company
Representative operate the robotic equipment or conduct any
experiments pursuant to this Service Schedule.
Company Representative: [...***...], or a replacement
designated by the Company and reasonably acceptable to Provider. *
Access to Fungal Room for Experimentation: At the Company's
request, but in no event more frequently than ten days per
calendar month (unless specifically authorized by the Provider
Representative), Provider shall grant the Company
Representatives access during normal working hours to the
fungal lab located in Building A, Room [...***...] at the San
Diego Premises, which access is "Permitted Access" under the
Agreement. Such Permitted Access shall be solely for the
purpose of conducting fungal manipulation work.
Company Representatives: The Company may request access for up
to two designated Company Representatives per visit (unless a
greater number of representatives is specifically authorized by
the Provider Representative). The Company shall provide to the *
Provider Representative the names and proposed time of entry of
the persons to be granted Access pursuant to this Service
Schedule for approval at least one working day in advance. The
Provider Representative may approve or not approve access by
such persons, in the Provider Representative's discretion,
provided that such approval will not be unreasonably withheld.
Access to Fermentation Lab for Fermentation Consulting Services:
Provider shall permit [...***...] to access the Fermentation
Lab Area Building A, Rooms [...***...] at the San Diego
Premises for the purpose of observing and advising on the
efficient utilization of downstream processing for enzyme *
bioprocess development. Under no circumstances shall *
[...***...] operate any equipment or conduct any experiments
while she is utilizing such access to Provider's facilities. *
Such access is "Permitted Access" under the Agreement.
Service Fee for all Access Services: [...***...] *
C-1
APPENDIX 1
CHANGE ORDER REQUEST
Date: __________, 20__
Change Order Request Number: ____________________
_______________ (the "Requesting Party") hereby submits this Change Order
Request to _____________ (the "Other Party") pursuant to Section 4(b) of the
Transition Services Agreement, dated as of [__________], 2010 (the
"Agreement"), between the Requesting Party and the Other Party.
This Change Order Request pertains to the following (check one):
[_]Modified Services, as set forth in Schedule 1 hereto.
[_]Termination of Services, as set forth in Schedule 1 hereto.
[_]Additional Services, as set forth in Schedule 1 hereto.
The Requesting Party requests that the Other Party approve this Change Order
Request by signing in the designated space below. Upon the Other Party's
approval of this Change Order Request, the Modified Services or Additional
Services covered by this Change Order Request, as applicable, shall become
"Services" under the Agreement and the attached Schedule 1 shall become a
"Service Schedule" to the Agreement, in each case, subject to the terms and
conditions set forth therein.
Submitted by Requesting Party:
--------------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Approved by the Other Party:
on _______________, 20__:
----------------------------------
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
SCHEDULE 1 to
Change Order Request No. ____
FORM OF SCHEDULE FOR MODIFIED SERVICES, TERMINATION OF SERVICES,
OR ADDITIONAL SERVICES
Services
Provider Name:
Representative: Phone:
Email:
Location of Services:
Service Term:
Termination Notice
Period:
Description of
Services:
Service Fee:
