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Title: |
Collaboration Agreement |
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Entities: |
Hitachi, Ltd.; Nanogen, Inc.; Massachusetts Institute of Technology |
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Date: |
2000 |
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Size: |
Preview shows 17KB of 92KB total |
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Price: |
$48 |
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ID: |
#1135638 |
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HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.]
NANOGEN/HITACHI
COLLABORATION AGREEMENT
1. DEFINITIONS
2. COLLABORATION
3. DEVELOPMENT FUNDING
4. EQUITY INVESTMENT
5. MANUFACTURING
6. DISTRIBUTION AND SERVICES
7. INTELLECTUAL PROPERTY RIGHTS
8. REPRESENTATIONS AND WARRANTIES
9. INDEMNIFICATION
10. LIMITATION OF LIABILITY
11. CONFIDENTIALITY INFORMATION
12. TERM AND TERMINATION
13. MISCELLANEOUS
14. EXHIBIT A - COLLABORATION PROJECTS
15. EXHIBIT B - COLLABORATION PRODUCTS
16 EXHIBIT C - DEVELOPMENT FUNDING
17 EXHIBIT D - COMMON STOCK PURCHASE AGREEMENT
1 of 33
<PAGE>
COLLABORATION AGREEMENT
This Agreement is made and entered into this 26th day of July 2000 (the
"Effective Date") by and between Nanogen, Inc., a corporation organized and
existing under the laws of Delaware, and having its principal place of business
at 10398 Pacific Center Court, San Diego, California, USA 92121 ("NANOGEN"), and
Hitachi, Ltd., a corporation organized and existing under the laws of Japan,
through its Instrument Group and having its principal place of business at 5-1,
Marunouchi 1-chome, Chiyoda-ku, Tokyo, 100 Japan, Nissei Sangyo Co. Ltd., having
its principal place of business at 24-14, Nishi-shimbashi, 1-chome, Minato-ku,
Tokyo, 105-8717 Japan, and Hitachi Instruments Service Co., Ltd., having its
principal place of business at 28-8 Yotsuya 4-Chrome, Shinjuku-ku Tokyo 160-0004
(collectively, "HITACHI"). NANOGEN and HITACHI are sometimes referred to herein
individually as a "Party," or collectively as the "Parties."
R E C I T A L S
A. WHEREAS, HITACHI has special expertise, proprietary technology and know-how
relating to the development and manufacture of certain instrumentation and
products, and NANOGEN has special expertise, proprietary technology and know-how
relating to the design and development of certain instrumentation and the
design, development and manufacture of certain consumable cartridges which can
be used with such instrumentation and products;
B. WHEREAS, the Parties desire to utilize their respective technologies and
expertise to develop jointly certain new products pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE in consideration of the promises and mutual covenants hereinafter
contained, the Parties hereto agree as follows.
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the meanings indicated.
1.1 "AGREEMENT TO COMMERCIALIZE" means a written agreement by the
Development and Commercialization Committee that a Collaboration Product meets
applicable standards and is ready to commercialize.
1.2 "ASIA" means: Japan, China, Korea, Singapore, and Taiwan and any other
country in Asia as agreed to by the Parties from time to time.
1 of 33
<PAGE>
1.3 **********************************************************************
*******************************************************************************
*******************************************************************************
1.4 **********************************************************************
*******************************************************************************
1.5 "CARTRIDGES" means consumable biochip cartridges, including those
which may be subject to the ***, and includes Existing NANOGEN Products or
New NANOGEN Products.
1.6 "COLLABORATION" means all of the activities of the Parties set forth in
Article 2 of this Agreement.
1.7 "COLLABORATION COMMITTEE" means the committee comprised of members
appointed by each Party, respectively, as set forth in Section 2.6.
1.8 "COLLABORATION MANAGER" means the individual appointed by each Party,
respectively, as set forth in Section 2.3 to serve on the Executive Committee.
1.9 "COLLABORATION PRODUCT" means a product developed hereunder as a
Collaboration Project pursuant to a Development Plan or pursuant to the Prior
Agreement, which combines NANOGEN Intellectual Property Rights and/or HITACHI
Intellectual Property Rights and/or jointly-owned Intellectual Property rights.
HITACHI Products, NANOGEN Products and Other Products shall be considered
Collaboration Products.
1.10 "COLLABORATION PROJECT" means a project to develop a product based on
a certain technology which the Parties will agree to develop and/or contribute
hereunder. A list of potential Collaboration Projects is attached as Exhibit A.
1.11 "CONFIDENTIAL INFORMATION" means any information designated by the
disclosing Party as confidential in writing, or which reasonably should be
understood to be confidential in light of the nature of the information
contained therein, or which is not generally available to the public; provided,
however, that "Confidential Information" will not include information that the
receiving Party can establish by written evidence: (a) is or has become
generally known or available by publication, commercial use or otherwise through
no fault of the receiving Party; (b) is known and has been reduced to tangible
form by the receiving Party at the time of disclosure and is not subject to
restriction; (c) is independently developed by the receiving Party without use
of the disclosing Party's Confidential Information; (d) is lawfully obtained
from a third party who has the right to make such disclosure; or (e) is released
for publication by the disclosing Party in writing.
1.12 "DEVELOPMENT AND COMMERCIALIZATION COMMITTEE" means the committee
comprised of members appointed by each Party, respectively, as set forth in
Section 2.8.
-----------------
*** Confidential material redacted and separately filed with the Commission.
2 of 33
<PAGE>
1.13 "DEVELOPMENT PLAN" means the development plan for a certain
Collaboration Product to be prepared by the Development and Commercialization
Committee pursuant to Section 2.10.
1.14 "EXECUTIVE COMMITTEE" means the committee comprised of the
Collaboration Managers as described in Section 2.3.
1.15 "EXISTING HITACHI PRODUCTS" means the reader and loader currently
manufactured by HITACHI under the Prior Agreement.
1.16 "EXISTING NANOGEN PRODUCTS" means the products currently manufactured
by NANOGEN pursuant to the Prior Agreement.
1.17 "FIELD" means all fields of use for Collaboration Products, except for
use specifically in connection with infectious disease DNA diagnostics.
1.18 "GENERAL TECHNOLOGY DEVELOPMENT" means such development by NANOGEN as
NANOGEN desires to fund, provided that such development generally benefits the
Collaboration Projects.
1.19 "HII" means Hitachi Instruments, Inc., a California corporation having
its principal place of business at 3100 North Street, San Jose, California
95134.
1.20 "HITACHI" means Hitachi, Ltd., Instrument Group, Nissei Sangyo Co.,
Ltd., and Hitachi Instruments Service Co., Ltd.
1.21 "HITACHI IMPROVEMENTS" means any proprietary information, know-how,
software, technology or other information which HITACHI conveys to NANOGEN
pursuant to this Agreement, either orally (which oral disclosure is promptly
reduced to writing), in documents or other materials and which constitutes an
enhancement of, or any other improvement to any HITACHI Product, NANOGEN
Product, NANOGEN Improvement or Other Product.
1.22 "HITACHI INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
rights of any kind which may be now or hereafter owned by HITACHI, or pursuant
to which HITACHI has a right to grant licenses or sublicenses.
1.23 "HITACHI PRODUCTS" means Existing HITACHI Products, New HITACHI
Products, and HITACHI Improvements including without limitation: (a) all
hardware-related products, including firmware, instrument control and diagnostic
software; and (b) spare parts and hardware-related consumables and accessories
included with the Existing HITACHI Products.
1.24 "INTELLECTUAL PROPERTY" means all intellectual property rights of any
kind, including without limitation patents, patent applications, patentable
inventions, copyrights, trade secrets, trade names, service marks and
trademarks.
1.25 "NANOGEN" means NANOGEN, Inc.
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<PAGE>
1.26 "NANOGEN IMPROVEMENTS" means any proprietary information, know-how,
software, technology or other information which NANOGEN conveys to HITACHI
pursuant to this Agreement, either orally (which oral disclosure is promptly
reduced to writing), in documents or other materials, and which constitutes an
enhancement of or other improvement to any NANOGEN Product, HITACHI Product,
HITACHI Improvements, or Other Product.
1.27 "NANOGEN INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
rights of any kind which may be now or hereafter owned by NANOGEN, or pursuant
to which NANOGEN has a right to grant licenses or sublicenses.
1.28 "NANOGEN PRODUCTS" means Existing NANOGEN Products, New NANOGEN
Products, and NANOGEN Improvements including without limitation Cartridges,
Cartridge applications and data handling-related software to be used in
conjunction with HITACHI Products.
1.29 ********************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
1.30 "NEW HITACHI PRODUCTS" means those products developed by HITACHI
during the term of this Agreement, and contributed, in HITACHI's sole
discretion, to the Collaboration.
1.31 "NEW NANOGEN PRODUCTS" means those products developed by NANOGEN
during the term of this Agreement, and contributed, in NANOGEN's sole
discretion, to the Collaboration.
1.32 ********************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
-----------------
*** Confidential material redacted and separately filed with the Commission.
4 of 33
<PAGE>
******************************************************************************
1.33 "OTHER PRODUCTS" means reagents, chemicals, consumables and spare
parts developed by a Party and all other products not considered to be HITACHI
Products or NANOGEN Products.
1.34 "PRIOR AGREEMENT" means that certain Reader, Loader and Cassette Low
Cost Engineering and Manufacturing Agreement between HITACHI and NANOGEN dated
December 15, 1999, and executed by each of the Parties on January 12, 2000.
1.35 "PRODUCT SPECIFICATIONS" means the specifications for the
Collaboration Products as developed by the Parties pursuant to Section 2.8.
1.36 "SDA" means strand displacement amplification for genetic testing.
1.37 "SUBSIDIARIES OF HITACHI" means HII and Naka Instruments, Co. Ltd.
ARTICLE 2
COLLABORATION
2.1 OVERVIEW. The Parties shall each use commercially reasonable best
efforts to work jointly and independently to develop Collaboration Products
pursuant to the terms and conditions contained herein. The development phase for
each Collaboration Product shall commence as set forth in the Development Plan
for such Collaboration Product and shall continue until an Agreement to
Commercialize is reached for each such Collaboration Product, or until the
Parties mutually agree in writing to discontinue development of the
Collaboration Product. The commercialization phase for each Collaboration
Product shall commence upon the Parties' signing an Agreement to Commercialize
such Collaboration Product. The purpose of the commercialization phase of the
Collaboration is the facilitation of a cost effective manufacturing program for
the Collaboration Products and the development and implementation of a plan for
the marketing, sales, distribution and service of each Collaboration Product.
2.2 COMMITTEE APPOINTMENT AND VOTING. Within *** **** days of the Effective
Date of this Agreement, each Party shall appoint, in its sole discretion, one
(1) Collaboration Manager to serve on the Executive Committee, three (3)
individuals to serve on the Collaboration Committee and three (3) individuals to
serve on the Development and Commercialization Committee, respectively. All
decisions by the Collaboration Committee and the Development and
Commercialization Committee shall be by majority vote, which may be submitted by
proxy.
2.3 EXECUTIVE COMMITTEE. Each Party shall designate one of its executives
to act on its behalf as a member of the Executive Committee (each, a
"Collaboration Manager"). Each party shall have the right to replace its
Collaboration Manager, for any reason in its reasonable discretion, with an
individual reasonably acceptable to the other
-----------------
*** Confidential material redacted and separately filed with the Commission.
5 of 33
<PAGE>
Party. Each Collaboration Manager shall have the corporate authority to bind the
Party it represents with respect to all matters associated with the
Collaboration. The primary duty of the Executive Committee is to oversee the
Collaboration and to resolve any deadlocks or disputes of either the
Collaboration Committee or the Development and Commercialization Committee.
2.4 DEADLOCKS / DISPUTES. In the event that the Development and
Commercialization Committee is in deadlock or otherwise unable to resolve any
disputes, within ************************ of any such deadlock or dispute, the
Development and Commercialization Committee shall tender such deadlock or
dispute to the Collaboration Committee for resolution. In the event that the
Collaboration Committee is in deadlock or is otherwise unable to resolve any
disputes, within ************************* of any such deadlock or dispute, the
Collaboration Committee shall tender such deadlock or dispute to the Executive
Committee and the Collaboration Managers shall meet and confer in good faith to
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