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EXHIBIT 10.8(a)
AMENDMENT NO. 1 TO COLLABORATION AGREEMENT
This Amendment No. 1 to Collaboration Agreement (the "Amendment"),
effective as of May 1, 1998 (the "Amendment Effective Date"), is entered into by
and between Symyx Technologies ("Symyx"), a California corporation having a
principal place of business at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx,
and Xxxxx XX ("Xxxxx"), a German corporation having a principal place of
business at X-00000 Xxxxxxxxxx, Xxxxxxx, and amends that certain Collaboration
Agreement entered into by and between Symyx and Bayer effective as of March 1,
1998 (the "Collaboration Agreement").
WHEREAS, Symyx and Bayer desire to amend the Collaboration Agreement to
provide for research in the Butyl Rubber Field as set forth more fully below;
NOW THEREFORE, the parties hereby agree as follows:
1. All capitalized terms not defined in this Amendment shall have the meanings
given to them in the Collaboration Agreement.
2. Section 2.2.1(a) of the Collaboration Agreement is amended to read in its
entirety as follows:
(a) Addition of Butyl Rubber Field.
(i) The Research Program shall include the Butyl Rubber
Field, which shall be defined as catalysts and process technology for
synthesizing poly(isobutylene) or butyl rubber through the high
temperature polymerization of isobutylene in non-halogenated solvents.
(ii) Symyx agrees to dedicate six (6) FTEs to research
activities in the Butyl Rubber Field during the period from May 1, 1998
to February 28, 1999, and will dedicate seven (7) FTEs to research
activities in the Butyl Rubber Field during the period from March 1,
1999 to March 1, 2000.
(iii) Bayer agrees to pay Symyx Research Expenses for
research activities in the Butyl Rubber Field as set forth in Section
6.2.1(b) and to pay Symyx royalties in accordance with Section 6.14.
(iv) Following termination of research activities within
the Butyl Rubber Field, the corresponding Research Field Committee will
prepare a summary of Program Technology generated in the course of the
research activities for the Butyl Rubber Field.
3. Section 6.2.1(b) is amended to read in its entirety as follows:
(b) In addition to the other Research Expenses to be
paid to Symyx by Bayer as set forth in this Section 6.2.1, Bayer shall
pay to Symyx Research Expenses of (i) One Million Three Hundred Thousand
US Dollars ($1,300,000) for the research activities in the Butyl Rubber
Field between May 1, 1998 and February 28, 1999 and (ii) One Million
Eight Hundred Twenty Thousand US Dollars ($1,820,000) for the research
activities in the Butyl Rubber Field between March 1, 1999 and March 1,
2000.
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4. Article 6 is amended by addition of the following new Section 6.14:
6.14 Royalties for Butyl Rubber Field.
(a) The parties agree the royalty model set forth in
Section 6.3 shall apply to the Butyl Rubber Field, and the parties shall
determine the applicable Added Value Royalty Rate in accordance with
Section 6.3.3; provided, however, that the maximum and minimum royalty
rates set forth in Section 6.3.3(iv) shall not apply to the Added Value
Royalty Rate for the Butyl Rubber Field, and further provided that
notwithstanding Section 6.3.3(i), "Added Value" for the Butyl Rubber
Field shall mean the difference between the Manufacturing Costs of
producing butyl rubber or poly(isobutylene) using a process which
utilizes an Agreement Compound or Program Technology and the
Manufacturing Costs of producing butyl rubber or poly(isobutylene) using
the process Bayer would use without access to Agreement Compounds and
Program Technology. By way of example and without limitation, in
determining the overall Added Value received by Bayer in the Butyl
Rubber Field, the parties shall consider, among other things, changes in
capital costs, raw material costs, processing costs, operating costs,
yield, Product sales volume, and Product pricing, in each case,
attributable to the use of Agreement Compounds, Products, or Program
Technology.
(b) Bayer may elect, upon prior notice to Symyx, to have
the forecasts and projections Bayer proposes to use in determining the
Added Value Royalty Rate for the Butyl Rubber Field (the Butyl Rubber
Projections) subject to restricted access by Symyx personnel as follows:
(i) Bayer shall disclose the Butyl Rubber Projections to one employee of
Symyx designated by the Chief Executive Officer of Symyx (the
"Designated Employee"); (ii) the Designated Employee shall not disclose
the figures contained in the Butyl Rubber Projections (other than the
proposed Added Value Royalty Rate and the projected net sales) to other
Symyx personnel without Bayer's consent; provided, however, that the
Designated Employee may disclose the Butyl Rubber Projections to Symyx's
attorneys and the auditor described in (iii), below; and (iii) Symyx
may, at Bayer's expense, have the Butyl Rubber Projections and the
related calculation of the Added Value Royalty Rate reviewed by an
independent auditor selected by Symyx, which auditor shall agree not to
disclose the figures contained in the Butyl Rubber Projections (other
than the proposed Added Value Royalty Rate and the projected net sales)
to Symyx personnel other than the Designated Employee without Bayer's
consent.
5. Except as specifically modified or amended hereby, the Collaboration
Agreement shall remain in full force and effect and, as modified or
amended, is hereby ratified, confirmed and approved. No provision of
this Amendment may be modified or amended except expressly in a writing
signed by both parties nor shall any terms be waived except expressly in
a writing signed by the party charged therewith. This Amendment shall be
governed by, construed and enforced in accordance with the laws of the
State of California, without reference to conflicts of laws principles.
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IN WITNESS WHEREOF, each of the parties has executed this Amendment as
of the date indicated on this Amendment.
XXXXX XX SYMYX TECHNOLOGIES
By: /s/ XXXXXX XXXXXX By: /s/ XXX XXXXXXXXXX
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Name: Prof. Xx. Xxxxxx Xxxxxx Name: Xxx Xxxxxxxxxx
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Title: Director R/D Title: President & COO
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Date: 3.6.1998 Date: May 28, 1998
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By: /s/ I.V. XXXX
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Name: Xx. Xxxx
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Title: Licensing Manager
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Date: June 3, 1998
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