Exhibit 10.35
July 29, 1998
Xx. Xxxxx Xxxxx, President
Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Dear Xx. Xxxxx:
This letter, with your signature below, will constitute an agreement between
Affymetrix, Inc. ("Affymetrix") and Xxxxxxx Xxxxxxx, Inc. ("BCI") and will
govern the order of precedence and effective dates of the following document
sets:
I. Consortium Agreement and its Exhibits, including Exhibits thereto
(jointly the "Consortium Agreement").
II. Asset Purchase Agreement and its Exhibits, including Exhibits thereto
(jointly the "Asset Purchase Agreement").
III. License Agreement from Affymetrix to BCI (the "License").
Notwithstanding that each of the foregoing Agreements are signed
contemporaneously with this agreement and thus, by their terms and on their face
have the same effective date as this agreement, it is our intent that certain of
such Agreements not come into full force and effect on the above date and that
this agreement decide the precedence and order of such Agreements coming into
full force and effect. We have agreed as follows:
1. The Consortium Agreement will come into full force and effect on even
date herewith. The parties will promptly and diligently exercise their
best efforts, consistent with the limitations of Paragraph 5.3 of the
Consortium Agreement, to obtain a non-exclusive license for Affymetrix
under the Southern Patents (as such term is defined in such Paragraph)
on reasonable terms and conditions. For purposes of this agreement
"reasonable terms and conditions" means terms and conditions
substantially equivalent
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to those granted Xxxxxxx Instruments in the Isis Agreement (as that term
is hereafter defined) and does not include a requirement that Affymetrix
grant a license under its intellectual property to Oxford Gene
Technology ("OGT"). If OGT grants the requested license under
reasonable terms and conditions within the time specified in such
Paragraph 5.3 then the parties shall thereupon terminate the Asset
Purchase Agreement and the License Agreement and their relationship
shall be bound and determined solely by the Consortium Agreement. BCI
shall refund to Affymetrix $900,000 of the $5,900,000 payment made by
Affymetrix under the Asset Purchase Agreement. If OGT refuses to grant
the requested license under reasonable terms and conditions within the
time specified in such Paragraph 5.3 or any extension thereof agreed by
Affymetrix and BCI then the parties shall, subject to the next sentence
hereof, thereupon, terminate the Consortium Agreement.
2. The Asset Purchase Agreement will come into full force and effect upon
the termination of the Consortium Agreement in accordance with Paragraph
1.
3. BCI represents that as of the day prior to this agreement to its
Knowledge (as that term is defined in the Asset Purchase Agreement) the
Isis Agreement is in full force and effect and to its Knowledge that the
Acquired Assets (as that term is defined in the Asset Purchase
Agreement) includes all of BCI's assets relating to the business in
products licensed under the Isis agreement. For the avoidance of doubt,
the parties agree that U.S. Patent No. 5,653,939 and its U.S. and
foreign counterparts is not related to the business in products licensed
under the Isis Agreement and is not an Acquired Asset. If, for any
reason, the LLC established by the Asset Purchase Agreement is deemed
not to be an Affiliate of Affymetrix, as that term is defined in the
Patent License between Isis Innovation Limited and Xxxxxxx Instruments,
Inc. revised on April 17, 1996 (the "Isis Agreement"), and thus not
entitled to access to and use of the Southern Patents, then the License
Agreement shall come into full force and effect. It is expressly
understood and agreed that if for any reason Affymetrix shall be deemed
not to be the assignee of the Isis Agreement under the Asset Purchase
Agreement that Affymetrix shall have no right of action or recourse
against BCI for breach of contract or breach of warranty or failure of
consideration or tort or under any other legal or equitable theory and
no right to terminate or rescind or reform the Asset Purchase Agreement
nor to direct, indirect, special or consequential damages of any kind or
nature nor shall Affymetrix be entitled to demand or receive return of
the consideration paid by Affymetrix to BCI under either the Asset
Purchase Agreement or the License Agreement; provided that if the
foregoing representations are knowingly false Affymetrix may demand and
receive return of all compensation paid to BCI under the Asset Purchase
Agreement. Affymetrix recognizes and accepts
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that it enters the Asset Purchase Agreement and Affymetrix side letter
of July 31, 1998 and the License Agreement entirely at its own risk.
This agreement contains the full understanding of the parties relative
to it subject matter and fully supersedes any and all prior understanding or
agreement, whether oral or in writing pertaining to such subject matter. This
agreement may only be modified in a writing signed by both of the parties. The
covenants and agreements contained herein shall be binding upon and inure to the
benefit of the heirs, executors, administrators, personal representatives,
successors and assigns of the parties.
This agreement, including its existence, validity, construction and
operating effect and the rights of each of the parties hereto shall be governed
by and construed in accordance with the laws of the State of California.
If the foregoing properly sets forth our agreement and intent, please
sign both copies in the space indicated below and return one copy to me; the
second copy is for your files.
Very truly yours,
Xxxxxxx Xxxxxxx, Inc.
by: /s/ Xxxx Warcham
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title: Chief Executive Officer
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Understood and Accepted:
Affymetrix, Inc.
by: /s/ Xxxxxxx P.A. Xxxxx
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title: President and Chief Executive Officer
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