Exhibit
10.20


 


EXECUTION
COPY


 


 


ASSIGNMENT AGREEMENT


 


BY AND BETWEEN


 


PHARMACYCLICS, INC.


 


AND


 


APPLERA CORPORATION


 


April 7,
2006


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 

















 


 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS

  	
   

  	
  1

  
	
  1.1

  	
  “Active
  Component”

  	
   

  	
  2

  
	
  1.2

  	
  “Affiliate”

  	
   

  	
  3

  
	
  1.3

  	
  “Assigned
  Product”

  	
   

  	
  3

  
	
  1.4

  	
  “Btk Compound”

  	
   

  	
  3

  
	
  1.5

  	
  “Btk Product”

  	
   

  	
  3

  
	
  1.6

  	
  “Btk Program”

  	
   

  	
  4

  
	
  1.7

  	
  “Bulk Form”

  	
   

  	
  4

  
	
  1.8

  	
  “Celera
  Intellectual Property”

  	
   

  	
  4

  
	
  1.9

  	
  “Celera
  Material”

  	
   

  	
  4

  
	
  1.10

  	
  “Celera
  Patent”

  	
   

  	
  5

  
	
  1.11

  	
  “Celera
  Program”

  	
   

  	
  5

  
	
  1.12

  	
  “Celera
  Technology”

  	
   

  	
  5

  
	
  1.13

  	
  “Clinical
  Trial”

  	
   

  	
  5

  
	
  1.14

  	
  “Combination
  Product”

  	
   

  	
  5

  
	
  1.15

  	
  “Commercialize”
  or “Commercialization”

  	
   

  	
  5

  
	
  1.16

  	
  “Commercially
  Reasonable Efforts”

  	
   

  	
  6

  
	
  1.17

  	
  “Confidential
  Information”

  	
   

  	
  6

  
	
  1.18

  	
  “Control”

  	
   

  	
  8

  
	
  1.19

  	
  “Default”

  	
   

  	
  8

  
	
  1.20

  	
  “DOJ”

  	
   

  	
  9

  
	
  1.21

  	
  “Dollar”

  	
   

  	
  9

  
	
  1.22

  	
  “Dosage Form”

  	
   

  	
  9

  
	
  1.23

  	
  “Drug Approval
  Application”

  	
   

  	
  9

  
	
  1.24

  	
  “Effective
  Date”

  	
   

  	
  9

  
	
  1.25

  	
  “EMEA”

  	
   

  	
  9

  
	
  1.26

  	
  “EU”

  	
   

  	
  10

  
	
  1.27

  	
  “Factor VIIa
  Compound”

  	
   

  	
  10

  
	
  1.28

  	
  “Factor VIIa
  Product”

  	
   

  	
  10

  
	
  1.29

  	
  “Factor VIIa
  Program”

  	
   

  	
  10

  
	
  1.30

  	
  “FDA”

  	
   

  	
  12

  
	
  1.31

  	
  “Force
  Majeure”

  	
   

  	
  12

  
	
  1.32

  	
  “FTC”

  	
   

  	
  12

  
	
  1.33

  	
  “GAAP”

  	
   

  	
  12

  
	
  1.34

  	
  “HDAC
  Compound”

  	
   

  	
  13

  
	
  1.35

  	
  “HDAC Product”

  	
   

  	
  13

  
	
  1.36

  	
  “HDAC Program”

  	
   

  	
  14

  
	
  1.37

  	
  “IND”

  	
   

  	
  14

  
	
  1.38

  	
  “Licensee”

  	
   

  	
  14

  
	
  1.39

  	
  “Losses”

  	
   

  	
  14

  
	
  1.40

  	
  “Major Market
  Country”

  	
   

  	
  14

  
	
  1.41

  	
  “Net Sales”

  	
   

  	
  14

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


i

















 


 


	
  1.42

  	
  “New Drug
  Application” or “NDA”

  	
   

  	
  21

  
	
  1.43

  	
  “Patent”

  	
   

  	
  21

  
	
  1.44

  	
  “Phase 3
  Clinical Trial”

  	
   

  	
  22

  
	
  1.45

  	
  “Regulatory
  Approval”

  	
   

  	
  22

  
	
  1.46

  	
  “Regulatory
  Authority”

  	
   

  	
  22

  
	
  1.47

  	
  “Royalty” or
  Royalties”

  	
   

  	
  23

  
	
  1.48

  	
  “Technology”

  	
   

  	
  23

  
	
  1.49

  	
  “Term”

  	
   

  	
  23

  
	
  1.50

  	
  “Third Party”

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 ASSIGNMENT AND DELIVERY

  	
   

  	
  11

  
	
  2.1

  	
  Assignment

  	
   

  	
  24

  
	
  2.2

  	
  Delivery

  	
   

  	
  24

  
	
  2.3

  	
  License

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 DEVELOPMENT

  	
   

  	
  12

  
	
  3.1

  	
  Material
  Agreements

  	
   

  	
  26

  
	
  3.2

  	
  Development
  Efforts

  	
   

  	
  27

  
	
  3.3

  	
  Celera
  Assistance and Cooperation

  	
   

  	
  28

  
	
  3.4

  	
  Development
  Summaries

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 REGULATORY

  	
   

  	
  13

  
	
  4.1

  	
  General

  	
   

  	
  29

  
	
  4.2

  	
  Regulatory
  Reports and Additional Regulatory Filings

  	
   

  	
  29

  
	
  4.3

  	
  Applications
  for Regulatory Exclusivity

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 COMMERCIALIZATION

  	
   

  	
  13

  
	
  5.1

  	
  Pricing

  	
   

  	
  30

  
	
  5.2

  	
  Diligence

  	
   

  	
  30

  
	
  5.3

  	
  Reports

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 CONSIDERATION

  	
   

  	
  14

  
	
  6.1

  	
  Fee

  	
   

  	
  32

  
	
  6.2

  	
  Stock

  	
   

  	
  33

  
	
  6.3

  	
  Product
  Milestones

  	
   

  	
  33

  
	
  6.4

  	
  Royalties

  	
   

  	
  34

  
	
  6.5

  	
  Term of Royalties
  Payments

  	
   

  	
  37

  
	
  6.6

  	
  Royalty
  Payments and Reports

  	
   

  	
  38

  
	
  6.7

  	
  Records; Royalty Audit

  	
   

  	
  38

  
	
  6.8

  	
  Taxes

  	
   

  	
  40

  
	
  6.9

  	
  Blocked
  Currency

  	
   

  	
  42

  
	
  6.10

  	
  Foreign
  Exchange

  	
   

  	
  42

  
	
  6.11

  	
  Late Payments

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 INTELLECTUAL PROPERTY

  	
   

  	
  18

  
	
  7.1

  	
  Prosecution of
  Patents

  	
   

  	
  43

  
	
  7.2

  	
  Infringement of Patents by Third Parties

  	
   

  	
  43

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


ii

















 


 


	
  7.3

  	
  Infringement of Third Party Rights

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 REPRESENTATIONS AND WARRANTIES

  	
   

  	
  19

  
	
  8.1

  	
  Mutual
  Representations and Warranties

  	
   

  	
  46

  
	
  8.2

  	
  Mutual
  Covenants

  	
   

  	
  48

  
	
  8.3

  	
  Representations and Warranties of Celera

  	
   

  	
  49

  
	
  8.4

  	
  Representations, Warranties and Covenants
  of Pharmacyclics

  	
   

  	
  54

  
	
  8.5

  	
  Disclaimer

  	
   

  	
  55

  
	
  8.6

  	
  Limitation

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 INDEMNIFICATION

  	
   

  	
  23

  
	
  9.1

  	
  Indemnification
  by Celera

  	
   

  	
  57

  
	
  9.2

  	
  Indemnification
  by Pharmacyclics

  	
   

  	
  59

  
	
  9.3

  	
  Insurance

  	
   

  	
  61

  
	
  9.4

  	
  Limitation of
  Liability

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10 CONFIDENTIALITY

  	
   

  	
  25

  
	
  10.1

  	
  Treatment of
  Confidential Information

  	
   

  	
  63

  
	
  10.2

  	
  Authorized
  Disclosure

  	
   

  	
  64

  
	
  10.3

  	
  Publicity;
  Terms of Agreement

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 TERM AND TERMINATION

  	
   

  	
  27

  
	
  11.1

  	
  Term

  	
   

  	
  66

  
	
  11.2

  	
  Termination
  for Default

  	
   

  	
  66

  
	
  11.3

  	
  Reversion

  	
   

  	
  67

  
	
  11.4

  	
  Survival

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12 DISPUTE RESOLUTION

  	
   

  	
  27

  
	
  12.1

  	
  Disputes

  	
   

  	
  67

  
	
  12.2

  	
  Governing Law;
  Judicial Resolution

  	
   

  	
  69

  
	
  12.3

  	
  Patent Dispute
  Resolution

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13 MISCELLANEOUS

  	
   

  	
  28

  
	
  13.1

  	
  Entire
  Agreement; Amendment

  	
   

  	
  70

  
	
  13.2

  	
  Force Majeure

  	
   

  	
  71

  
	
  13.3

  	
  Notices

  	
   

  	
  72

  
	
  13.4

  	
  Maintenance of
  Records

  	
   

  	
  73

  
	
  13.5

  	
  No Strict
  Construction

  	
   

  	
  74

  
	
  13.6

  	
  Counterparts

  	
   

  	
  74

  
	
  13.7

  	
  Severability

  	
   

  	
  74

  
	
  13.8

  	
  Headings

  	
   

  	
  75

  
	
  13.9

  	
  Further
  Actions

  	
   

  	
  75

  
	
  13.10

  	
  Independent
  Contractors

  	
   

  	
  75

  
	
  13.11

  	
  Use of Name

  	
   

  	
  75

  
	
  13.12

  	
  No Waiver

  	
   

  	
  76

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


iii














 


 


ASSIGNMENT
AGREEMENT


 


THIS
ASSIGNMENT AGREEMENT
(the “Agreement”), effective as of April 7, 2006 (“Effective Date”), is by
and between PHARMACYCLICS, INC., a Delaware corporation having its principal place of
business at 995 East Arques Avenue, Sunnyvale, California 94085 (“Pharmacyclics”)
and APPLERA CORPORATION, a
Delaware corporation, by and through the CELERA GENOMICS
GROUP having its principal place
of business at 45 West Gude Drive, Rockville, Maryland 20850 (“Celera”). Celera
and Pharmacyclics are sometimes referred to herein individually as a “Party”
and collectively as the “Parties” and references to “Pharmacyclics” and “Celera”
will include their respective Affiliates.


 


RECITALS


 


WHEREAS,
Celera has been conducting research directed to the
discovery and development of therapeutic products and methods based on (i) HDAC
inhibitor compounds, including intravenous and oral formulations of a clinical
lead compound having the corporate identification [***], a backup compound
having the corporate identification [***] and other compounds identified as
selective HDAC-8 inhibitor compounds; (ii) Factor VIIa inhibitor
compounds, including a preclinical lead compound having the corporate
identification [***] and a backup compound having the corporate identification
[***] and other compounds identified in its program on Factor VIIa inhibitor
compounds; and (iii) Btk inhibitor compounds, including lead optimization
compounds identified in the Btk inhibitor program (collectively “Celera
Programs”); and


 


WHEREAS,
Pharmacyclics desires to acquire, and Celera wishes to
sell to Pharmacyclics, all proprietary technology and know-how that relate to
the Celera Programs, including but not limited to, (i) the small molecule
HDAC inhibitor compound [***] and all clinical trial data and results related
thereto, (ii) the multiple small molecule backup compounds in various
stages of preclinical development, including [***] and [***], (iii) certain
compounds and related information associated with Celera Programs, and (iv) related
intellectual property and know-how, on the terms and conditions set forth
herein.


 


NOW
THEREFORE, based on the foregoing
premises and the mutual covenants and obligations set forth below, the Parties
agree as follows:


 


ARTICLE 1


 


DEFINITIONS


 


The following
terms have the following meanings as used in this Agreement:


 


1.1                               “Active Component” means any
product other than an Assigned Product which performs an identifiable
therapeutic or prophylactic function when combined with an Assigned Product.


 


1.2                               “Affiliate” means a Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with Celera or


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


1

















 


 


Pharmacyclics. For purposes of
this definition, “control” means the possession, direct or indirect, of the
power to cause the direction of the management and policies of a Person,
whether through ownership of fifty percent (50%) or more of the voting
securities of such Person, by contract or otherwise.


 


1.3                               “Assigned Product” means Btk
Product, Factor VIIa Product or HDAC Product, and “Assigned
Products” means all of the foregoing.


 


1.4                               “Btk Compound” means any Btk
inhibitor compound identified by Celera during its Btk Program and any other
small molecule that acts as a Btk inhibitor.


 


1.5                               “Btk Product” means any product


 


(a)                                  that comprises


 


(i) [***]


 


(ii) [***]


 


and


 


(b)                                 that


 


(i) [***]


 


(ii) [***]


 


1.6                               “Btk Program” means the research
activities conducted by Celera prior to the Effective Date directed to the
discovery and development of small molecule Btk inhibitors as therapeutic
agents..


 


1.7                               “Bulk Form” means (a) bulk
active pharmaceutical ingredient, (b) with respect to biologics, bulk drug
substance (whether formulated or not) of the applicable product, or (c) any
pharmaceutical ingredient that as sold cannot be used or distributed without
further processing, combination with other Active Components or inactive
components or packaging into Dosage Form.


 


1.8                               “Celera Intellectual Property” means
Celera Material, Celera Patents and Celera Technology.


 


1.9                               “Celera Material” means any and
all small molecules synthesized by Celera or under the direction and control of
Celera pursuant to the Celera Programs, clinical formulations thereof, and
backup compounds, that are in the possession of Celera, or a Celera contractor and
accessible to Celera, and retrievable upon exercise by Celera of reasonable
efforts.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


2

















 


 


1.10                        “Celera Patent” means any and all
Patents that claim Celera Technology, including without limitation, the Patents
listed in Exhibit 1.10.


 


1.11                        “Celera Program” means the HDAC
Program, Factor VIIa Program or Btk Program.


 


1.12                        “Celera Technology” means any and
all Technology owned or Controlled by Celera as of the Effective Date that
arose from or is directed solely to a Celera Program, including without
limitation, all data and results obtained by Celera during the Clinical Trial.


 


1.13                        “Clinical Trial” means the
clinical trial listed in Exhibit 1.13 hereto,
which was directed to compound [***], that Celera conducted prior to the
Effective Date. Celera represents that the Clinical Trial listed in Exhibit 1.13 is the only clinical
trial of compound [***] conducted by or on behalf of Celera as of the Effective
Date.


 


1.14                        “Combination Product” means a
product that contains an Assigned Product and one or more other Active
Components.


 


1.15                        “Commercialize” or “Commercialization” means
those activities relating to the promotion, marketing and sale of Assigned
Products and will include without limitation, Phase 4 clinical trials or
equivalent clinical trials conducted following Regulatory Approval to market a
pharmaceutical product.


 


1.16                        “Commercially Reasonable Efforts” means
the level of efforts and resources required to Commercialize an Assigned
Product in a sustained manner consistent with the efforts a similarly situated
biopharmaceutical company would typically devote to a product of similar market
potential, profit potential or strategic value resulting from its own research
efforts, based on conditions then prevailing. Commercially Reasonable Efforts
will be determined on a country-by-country (each country including its
territories) basis for a particular Assigned Product, and it is anticipated
that the level of effort will change over time reflecting changes in the status
of the Assigned Product and the country (including its territories) involved.
Commercially Reasonable Efforts may be different for each Assigned Product.


 


1.17                        “Confidential Information” means all information received by
either Party (“Receiving Party”) from
the other Party (“Disclosing Party”) pursuant
to this Agreement, other than that portion of such information or materials
which the Receiving Party can establish by direct evidence:


 


(a)                                 is publicly disclosed by the
Disclosing Party, either before or after it becomes known to the Receiving
Party;


 


(b)                                 was known to the Receiving Party,
without obligation to keep it confidential, prior to when it was received from
the Disclosing Party;


 


(c)                                 is subsequently disclosed to the
Receiving Party by a Third Party lawfully in possession thereof without
obligation to keep it confidential;


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


3

















 


 


(d)                                 has been publicly disclosed other
than by the Disclosing Party and without breach of an obligation of
confidentiality with respect thereto; or


 


(e)                                 has been independently developed by
the Receiving Party without the aid, application or use of Confidential
Information, as demonstrated by competent written proof


 


Specific
aspects or details of Confidential Information will not be deemed to be within
the public knowledge or in the prior possession of the Receiving Party merely
because the aspects or details of the Confidential Information are embraced by
general disclosures in the public domain. In addition, any combination of
Confidential Information will not be considered in the public knowledge or in
the prior possession of the Receiving Party merely because individual elements
thereof are in the public domain or in the prior possession of the Receiving
Party unless the combination and its principles are in the public knowledge or
in the prior possession of the Receiving Party. Confidential Information will
include information received in confidence by the Disclosing Party from a Third
Party. Prior to disclosure of such Third Party Confidential Information to the
Receiving Party the Disclosing Party will determine that it has the right to
make such disclosure, advise the Receiving Party that the disclosure includes
Third Party Confidential Information and provide the Receiving Party with the
terms and conditions of any agreement between the Third Party and the
Disclosing Party respecting such Third Party Confidential Information. For
purposes of this Agreement, all Confidential Information relating solely to
Celera Program and Celera Intellectual Property, except for information that is
publicly available as of the Effective Date, shall be deemed to be Confidential
Information of Pharmacyclics. The Parties acknowledge and agree that certain
information will apply to, and be proprietary and confidential information of,
both Celera Program and Celera Intellectual Property and, in addition, other
programs of Celera that are not subject to the terms of this Agreement, and
that, for purposes of this Agreement, such information shall be deemed to be
Confidential Information both of Celera and of Pharmacyclics.


 


1.18                        “Control” means, with respect to Patents, Technology and
other tangible and intangible property, possession of the ability to disclose,
to license or to assign as provided for in this Agreement without violating the
terms of any written agreement or other written arrangement with any Third
Party.


 


1.19                        “Default” means with respect to either Party (a) that
any representation of such Party set forth herein was untrue in any material
respect when made, (b) that any warranty of such Party becomes untrue in
any material respect, or (c) such Party, such Party’s Affiliate or such
Party’s licensee fails to materially perform any material obligation set forth
in this Agreement.


 


1.20                        “DOJ” means
the United States Department of Justice.


 


1.21                        “Dollar” means a United States dollar, and “$” will be
interpreted accordingly.


 


1.22                        “Dosage Form” means a pharmaceutical product that as sold is
in individual dosage amounts and in the form approved for sale to end users.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


4

















 


 


1.23                        “Drug Approval Application” means an application for
Regulatory Approval required before clinical trials or commercial sale or use
of an Assigned Product as a drug or to treat a particular indication in a
regulatory jurisdiction, including without limitation applications to expand
the label of an approved drug.


 


1.24                        “Effective Date” means the date set forth above in the first
paragraph of this Agreement.


 


1.25                        “EMEA” means
the European Medicines Evaluation Agency or any successor agency thereof.


 


1.26                        “EU” means the European Union as constituted on the
Effective Date.


 


1.27                        “Factor VIIa Compound” means [***],[***], any other Factor
VIIa inhibitor compounds identified by Celera during its Factor VIIa Program
and any other small molecule that acts as a Factor VIIa inhibitor.


 


1.28                        “Factor VIIa Product” means any product


 


(a)                                  that comprises


 


(i) [***]


 


(ii) [***]


 


and


 


(b)                                  that


 


(i) [***]


 


(ii) [***]


 


(iii) [***]


 


1.29                        “Factor VIIa Program” means the research activities
conducted by Celera prior to the Effective Date directed to the discovery and
development of small molecule Factor VIIa inhibitors as therapeutic agents,
including without limitation, compounds [***] and [***].


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


5

















 


 


1.30                        “FDA” means
the United States Food and Drug Administration, or any successor thereto.


 


1.31                        “Force Majeure” means any occurrence beyond the reasonable
control of a Party that prevents or substantially interferes with the
performance by the Party of any of its obligations hereunder, if such occurs by
reason of any act of God, flood, fire, explosion, breakdown of plant,
earthquake, strike, lockout, labor dispute, casualty or accident, or war,
revolution, civil commotion, acts of public enemies, blockage or embargo, or
any injunction, law, order, proclamation, regulation, ordinance, demand or
requirement of any government or of any subdivision, authority or
representative or any such government, inability to procure or use materials,
labor, equipment, transportation, or energy sufficient to meet manufacturing
needs without the necessity of allocation, or any other cause whatsoever,
whether similar or dissimilar to those above enumerated, beyond the reasonable
control of such Party, if and only if the Party affected used reasonable
efforts to avoid such occurrence and to remedy it promptly if it occurred.


 


1.32                        “FTC” means
the United States Federal Trade Commission.


 


1.33                        “GAAP” means
United States generally accepted accounting principles.


 


1.34                        “HDAC Compound” means [***], [***], any other HDAC inhibitor
compounds identified by Celera during its HDAC Program and any other small
molecule that acts as an HDAC inhibitor.


 


1.35                        “HDAC Product” means any product


 


(a)                                  that comprises


 


(i)                                    [***]


 


(ii)                                [***]


 


and


 


(b)                                  that


 


(i)                                    [***]


 


(ii)                                [***]


 


(iii)                            [***]


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


6

















 


 


1.36                        “HDAC
Program” means the research activities conducted by Celera prior to the
Effective Date directed to the discovery and development of small molecule HDAC
inhibitors as therapeutic agents, including without limitation, compounds [***]
and [***], HDAC-8 inhibitors and the Clinical Trial.


 


1.37                        “IND” means a “Notice of Claimed Investigational Exemption
for a New Drug” filed with the FDA, as defined in 21 C.F.R. Part 312, or
an equivalent application filed with a Regulatory Authority outside of the
United States.


 


1.38                        “Licensee” means any Third Party to whom Pharmacyclics
grants a license under rights conveyed to Pharmacyclics pursuant to this
Agreement.


 


1.39                        “Losses” means suits, claims, actions, demands, liabilities,
expenses and/or losses, including without limitation reasonable legal expenses
and attorneys’ fees.


 


1.40                        “Major Market Country” means (a) the United States, (b) any
of United Kingdom, France, Germany, Spain or Italy, (c) Japan, or (d) Canada.


 


1.41                        “Net Sales”
means


 


(a)                                  all revenues recognized in
accordance with GAAP from the arms-length sale or other disposition of Assigned
Products by Pharmacyclics, its Affiliates or Licensees to a Third Party (“Revenues”),
less the following items:


 


(i)                                    [***]


 


(ii)                                [***]


 


(iii)                            [***]


 


(iv)                               [***]


 


(v)                                   [***].


 


The deductions set forth in
clauses (i) through (v) above will be determined in accordance with
GAAP, as consistently applied by Pharmacyclics across all of its products.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


7

















 


 


(b)                                 A “sale” will include the transfer
or other disposition of an Assigned Product for consideration other than cash,
in which case such consideration will be valued at the fair market value
thereof. In the event that an Assigned Product is sold either for consideration
other than cash or as part of a bundled product, the Net Sales of such Assigned
Product will be the greater of (i) the recognized amount attributable to
the Assigned Product, or (ii) the average unit price of such Assigned
Product in Dosage Form when sold (other than as part of a bundle) in cash
transactions in such country. If Pharmacyclics, its Affiliates or Licensees do
not separately sell such Assigned Product in such country, the Net Sales for
such Assigned Product will be calculated based on the average unit price of
such Assigned Product when sold (other than as part of a bundle) in cash
transactions in Major Market Countries collectively.


 


(c)                                 Amounts received by Pharmacyclics,
its Affiliates or Licensees for the sale of Assigned Products among Pharmacyclics,
its Affiliates and Licensees for resale will not be included in the computation
of Net Sales hereunder. Distributors of Pharmacyclics selling Assigned Products
will not be deemed to be Licensees of Pharmacyclics.


 


(d)                                 If Pharmacyclics, its Affiliates or
Licensees sell an Assigned Product in Bulk Form to a Third Party for
resale, then the amount to be included in the calculation of Net Sales arising
from such sale will be the amount that would have been recognized if such
Assigned Product had been sold in Dosage Form, to be determined using the
average units of Assigned Product in Dosage Form expected from the
quantity of subject product in Bulk Form sold and the average amount
recognized by Pharmacyclics, its Affiliates or Licensees for the same Assigned
Product in Dosage Form sold in the same country during the preceding three
calendar months. If there have been no sales of the same Assigned Product
during the preceding three calendar months, the Parties will agree upon an
amount for such Bulk Form sale which will not be less than a good faith
determination of the amount invoiced by the Third Party upon resale of Assigned
Product in Dosage Form obtained from the quantity of Assigned Products
purchased in Bulk Form.


 


(e)                                 In the event that, on a country-by-country
basis, an Assigned Product is sold in the form of a Combination Product, the
Net Sales for such Combination Product will be calculated as follows:


 


(i)                                   If Pharmacyclics, its Affiliates or
Licensees separately sells, in such country, (x) Assigned Products as
contained in such Combination Product and (y) other products containing as
their sole active ingredient(s) the other Active Components in such
Combination Product, the Net Sales attributable to such Combination Product
will be calculated by multiplying actual Net Sales of the Combination Product
(calculated in accordance with


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


8

















 


 


Section 1.41(a)-(d))
by the fraction A/(A+B) where: A is Pharmacyclics’ (or its Affiliates or
Licensees, as applicable) average wholesale price during the period to which
the Net Sales calculation applies to its three (3) largest distributors of
the Assigned Product in such country, and B is Pharmacyclics’ (or its Affiliate’s
or Licensee’s, as applicable) average wholesale price during the period to
which the Net Sales calculation applies to its three (3) largest
distributors in such country of products which contain as their sole active
ingredient(s) the other Active Components in the Combination Product.


 


(ii)                               If Pharmacyclics, its Affiliates or
Licensees separately sell, in such country, Assigned Products as contained in
such Combination Product but do not separately sell, in such country, other
products containing as their sole active ingredient(s) the other Active
Components in such Combination Product, the Net Sales attributable to such
Combination Product will be calculated by multiplying the Net Sales of such
Combination Product (calculated in accordance with Section 1.41(a)-(d)) by
the fraction A/C where: A is Pharmacyclics’ (or its Affiliate’s or Licensee’s,
as applicable) average wholesale price for the Assigned Product(s) as
contained in such Combination Product during the period to which the Net Sales
calculation applies to its three (3) largest distributors of a Assigned
Product in such country, and C is Pharmacyclics’ (or its Affiliate’s or
Licensee’s, as applicable) average wholesale price for the Combination Product
during the period to which the Net Sales calculation applies to its three (3) largest
distributors of the Combination Product in such country.


 


(iii)                           If Pharmacyclics, its Affiliates or
Licensees do not separately sell, in such country, Assigned Products, the Net
Sales attributable to such Combination Product will be calculated by
multiplying the Net Sales of such Combination Product (calculated in accordance
with Section 1.41(a)-(d)) by the fraction D/(D+E) where D is the actual
total cost of the Assigned Product(s) at the point of formulation into the
Combination Product and E is the actual total cost of the other Active
Component(s) in the Combination Product.


 


1.42                        “New Drug Application” or “NDA”
means (a) a FDA new drug application, biologics license
application or its equivalent in the United States, or (b) any
corresponding application to a Regulatory Authority in a Major Market Country.


 


1.43                        “Patent” means (a) an issued, unexpired patent (with
the term “patent” being deemed to encompass, without limitation, an inventor’s
certificate) in any country which has not been held invalid or unenforceable by
a court of competent jurisdiction from which no appeal can be taken or has been
taken within the required time period, including without limitation any
substitution, extension, registration, confirmation, reissue, re-examination,
renewal or any like


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


9

















 


 


filing thereof
or (b) an application for a patent pending in any country, including
without limitation any provisional, converted provisional, continued
prosecution application, continuation, divisional or continuation-in-part
thereof; any patents issuing therefrom; and any substitution, extension,
registration, confirmation, reissue, reexamination, renewal or like filing
thereof, provided that if such an application for a patent has not issued as an
issued patent within [***] years after the filing date from which such
application takes priority, such application for a patent shall not be a Patent
for purposes of this Agreement unless such application for a patent later
issues as an issued patent at which time such application for a patent shall be
reinstated as a Patent hereunder.


 


1.44                        “Phase 3 Clinical Trial” means a pivotal human clinical
trial in any Major Market Country the results of which could be used to
establish safety and efficacy of an Assigned Product as a basis for a
regulatory filing or that would otherwise satisfy requirements of 21 C.F.R.
§312.21(c), or its foreign equivalent.


 


1.45                        “Regulatory Approval” means, with respect to a national,
supra-national, regional, state or local regulatory agency, department, bureau,
commission, council or other governmental entity, (a) any approvals,
licenses, registrations or authorizations necessary for the manufacture (where
relevant), marketing and commercial sale of Assigned Product in such nation or
within jurisdiction of such authority, and (b) where relevant, pricing
approvals necessary to obtain reimbursement from a governmental authority.


 


1.46                        “Regulatory Authority” means any national (e.g., the FDA),
supra-national (e.g., the EMEA) or other regulatory agency or governmental
entity involved in the granting of Regulatory Approval for, or in the
regulation of human clinical studies of, an Assigned Product.


 


1.47                        “Royalty” or Royalties” means those amounts payable as
royalties by Pharmacyclics to Celera pursuant to Section 6.4 of this
Agreement.


 


1.48                     “Technology” means any technical, scientific and business
information, including all biological, chemical, pharmacological,
toxicological, clinical, and assay information, data, analyses, discoveries,
inventions, methods, techniques, improvements, concepts, designs, processes,
formulae (including, for example, names for compounds or products whether
proposed or planned to be proposed as an United States Adopted Name (USAN)),
specifications and trade secrets, whether or not patentable, including
documents (which include paper, notebooks, books, files, ledgers, records,
tapes, discs, diskettes, CD-ROM and any other media on which the foregoing
information can be stored) containing any of the foregoing information.


 


1.49                        “Term” means the term of this Agreement as provided in Section 11.1.


 


1.50                        “Third Party” means any entity other than Celera or
Phainacyclics or an Affiliate of either of them.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


10

















 


 


ARTICLE 2


 


ASSIGNMENT AND
DELIVERY


 


2.1                               Assignment.  Subject to the terms and conditions of this
Agreement, Celera hereby irrevocably sells, assigns, delivers, conveys,
transfers and sets over to Pharmacyclics, its successors and assigns, the
entire right, title and interest in and to the Celera Technology and the entire
right, title and interest in, to and under the Celera Patents.


 


2.2                               Delivery.


 


(a)                                 Promptly after the Effective Date,
and thereafter as reasonably required upon reasonable notice, except as
otherwise set forth in Section 3.1 with respect to clinical trial
contracts covering the Clinical Trial, Celera shall deliver to Pharmacyclics
the Celera Material and all data, documentation, and other physical embodiments
of the Celera Technology together with all cooperation, assistance and access
to data reasonably requested by Pharmacyclics to effect transfer of the Celera
Technology, including without limitation all notebooks and related materials, invention
disclosures, patent applications and other documents that would be necessary or
useful in prosecuting, maintaining and enforcing the Celera Patents.


 


(b)                                 In particular, but without limiting
the scope of Celera’s obligations under Section 2.2(a), within five (5) days
after the Effective Date, Celera shall execute, as owner of the patents and
patent applications within the Celera Patents, an assignment with respect to
each patent and patent application within the Celera Patents as reasonably
necessary and required by Pharmacyclics for submission to the United States
Patent and Trademark Office in a form substantially as set forth on Exhibit 2.2(b).


 


(c)                                 In addition, Celera shall provide to
Pharmacyclics:


 


(i)                                   the information set forth on Exhibit 2.2(c)(i) relating to
the Btk Program;


 


(ii)                               the information set forth on Exhibit 2.2(c)(ii) relating to
the Factor VIIa Program; and


 


(iii)                           the information set forth on Exhibit 2.2(c)(iii) relating to
the HDAC Program.


 


2.3                               License.  Subject to the terms and conditions of this
Agreement, Celera hereby grants to Pharmacyclics a non-exclusive, royalty-free
right and license under any and all (a) Patents owned or Controlled by
Celera to the extent that without such right and license Pharmacyclics cannot
otherwise make, use, sell, offer for sale or import an Assigned Product without
infringing a claim of such Patents, and (b) Technology, other than Celera
Technology, owned or Controlled by Celera that would be necessary in the
making, using, selling, offering for


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


11

















 


 


sale or
importing of an Assigned Product. Such right and license shall include a right
to grant sublicense rights but only to the extent that, in addition to the
grant of a sublicense under such Patents owned or Controlled by Celera and such
Technology owned or Controlled by Celera, Pharmacyclics grants a license under
the Celera Intellectual Property for the purpose of exercising Celera
Intellectual Property to develop, make, use, sell, offer for sale, import and
export any or all Assigned Products.


 


ARTICLE 3


 


DEVELOPMENT


 


3.1                               Material Agreements.  Within ten (10) days after the Effective
Date, Celera and Pharmacyclics will determine which agreements, and other
contracts, of Celera are material to the development of Assigned Products.
Thereafter, Celera will assign and transfer, and Pharmacyclics will assume, all
material agreements, and other material contracts, of Celera relating to the
development of Assigned Products deemed by Pharmacyclics, in Pharmacyclics’
discretion, as necessary or useful for continuing development activities,
including for example, manufacturing agreements, contract research service
agreements, and clinical trial agreements such as the clinical trial contracts
covering the Clinical Trial. Celera will use commercially reasonable efforts to
complete the assignment and transfer of all such material agreements and such
material contracts within twenty-five (25) days after the Effective Date, but
in no event shall such assignment and transfer be completed later than
forty-five (45) days after the Effective Date.


 


3.2                               Development Efforts.  Beginning promptly after the Effective Date,
Pharmacyclics will use Commercially Reasonable Efforts to develop and seek
Regulatory Approval for Assigned Products in the Major Market Countries.
Pharmacyclics will use Commercially Reasonable Efforts to hire key Celera
employees associated with Celera Programs, provided,
however, that the failure to hire any such employees will not
relieve Pharmacyclics from its obligations under this Agreement to use
Commercially Reasonable Efforts to develop and seek Regulatory Approval for
Assigned Products in the Major Market Countries.


 


3.3                               Celera Assistance and Cooperation.  At Pharmacyclics’
request, Celera will provide reasonable assistance in understanding and
assimilating the Celera Technology and Celera Material, such assistance to be
provided without cost to Pharmacyclics for a period of up to thirty (30) days
after the Effective Date, but in any event not beyond May 30, 2006. After
such period, Celera will have no obligation to provide Pharmacyclics with
assistance, but will use reasonable efforts to locate personnel who may be able
to provide further assistance in understanding and assimilating the Celera
Technology and Celera Material.


 


3.4                               Development Summaries.
 Each
year on the anniversary of the Effective Date, Pharmacyclics will provide a
written summary to Celera outlining Pharmacyclics’ efforts in connection with
development, clinical and regulatory activities relating to Assigned Products (“Development
Summaries”). Such Development Summaries are intended only to demonstrate
Pharmacyclics’ continued interest in the development and commercialization of
Assigned


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


12

















 


 


Products, and
will not provide detailed information regarding Pharmacyclics’ activities. All
such Development Summaries will be Confidential Information of Pharmacyclics.


 


ARTICLE 4


 


REGULATORY


 


4.1                               General.  Subject to the terms and conditions of this
Agreement, Celera hereby irrevocably sells, assigns, delivers, conveys,
transfers and sets over to Pharmacyclics the entire right, title and interest
in and to any and all Regulatory Approvals and Drug Approval Applications for
compound [***] and any and all Assigned Products. No later than ten (10) days
after the Effective Date, Celera will notify Regulatory Authorities of, and as
soon as is reasonably practicable thereafter take all actions necessary to
effect or evidence, the transfer of any and all such Regulatory Approvals to
Pharmacyclics.


 


4.2                               Regulatory Reports and Additional Regulatory Filings.  No
later than ten (10) days after the Effective Date, Celera will deliver to
Pharmacyclics any and all files, reports and other similar documents and
information concerning communications with any Regulatory Authority relating to
Assigned Products. As of the Effective Date, Pharmacyclics will have the
exclusive right to file, in its own name, and will own any and all Drug
Approval Applications for Assigned Products.


 


4.3                               Applications for Regulatory Exclusivity.  The Parties recognize that exclusivity rights
granted or provided for under regulatory laws of any country may be
commercially significant to Assigned Products. To the extent permitted by law,
as between the Parties, Pharmacyclics has the exclusive right to file for,
request and maintain any regulatory exclusivity rights for any and all Assigned
Products, including without limitation, regulatory exclusivity rights based
upon an orphan drug designation of an Assigned Product, and to conduct and
prosecute any proceedings or actions to enforce such regulatory exclusivity
rights.


 


ARTICLE 5


 


COMMERCIALIZATION


 


5.1                               Pricing. 
Pharmacyclics may determine in its sole discretion the pricing,
discounting policy and other commercial terms relating to Assigned Products.


 


5.2                               Diligence.


 


(a)                                 Pharmacyclics will use Commercially
Reasonable Efforts to Commercialize Assigned Products during the Term.


 


(b)                                 Beginning promptly after the receipt
of Regulatory Approval for a first Assigned Product in each country of the
world, Pharmacyclics will use Commercially Reasonable Efforts to Commercialize
such Assigned Product in such country.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


13

















 


 


5.3                               Reports.  Each year on the anniversary of the Effective
Date, after Pharmacyclics or a Licensee of Pharmacyclics has received
Regulatory Approval for distribution, use or sale of an Assigned Product,
Pharmacyclics will provide a written summary to Celera outlining Pharmacyclics’
efforts in connection with Commercialization activities relating to such
Assigned Product (“Commercialization Summaries”). Such Commercialization
Summaries are intended only to demonstrate Pharmacyclics’ continued interest in
the Commercialization of such Assigned Product, and will not provide detailed
information regarding Pharmacyclics’ activities. All such Commercialization
Summaries will be Confidential Information of Pharmacyclics.


 


ARTICLE 6


 


CONSIDERATION


 


6.1                               Fee.  Within thirty (30) days after the Effective
Date, Pharmacyclics will pay Celera a fee of two million Dollars ($2,000,000)
by wire transfer of immediately available funds into an account designated by
Celera. The fees paid pursuant to this Section 6.1 will be nonrefundable
and non-creditable against Royalties due Celera pursuant to this Agreement or
against any other fees, milestone payments or other payments due Celera under
this Agreement.


 


6.2                               Stock.  As additional consideration, on the Effective
Date, Pharmacyclics and Celera will execute the Stock Purchase Agreement
substantially in the form attached as Exhibit 6.2 hereto, pursuant to which Pharmacyclics shall issue to
Celera between five hundred thousand (500,000) and one million (1,000,000)
shares of Pharmacyclics common stock.


 


6.3                               Product Milestones.  Pharmacyclics will pay to Celera milestone
payments as set forth in this Section 6.3 within thirty (30) days after
the first achievement of the corresponding milestone for an Assigned Product
which is an [***] or which is a [***]. Such payments shall be made in Dollars
by wire transfer of immediately available funds into an account designated by
Celera. No milestone payment will be payable more than once, no matter how many
times achieved by a single Assigned Product or by multiple Assigned Products in
each of such two product categories. Such milestone payments will be
nonrefundable and non-creditable against Royalties payable pursuant to Sections
6.4, and any other fees, milestone payments or other payments due Celera under
this Agreement.


 


	
  Milestone Event

  	
   

  	
  Milestone Payment Amount (Dollars)

  	
   

  
	
   

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  1.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  



 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


14














 


 


	
  Milestone Event

  	
   

  	
  Milestone Payment Amount (Dollars)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Total

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  



 


6.4          Royalties.


 


(a)                                 Subject to the terms and conditions
of this Agreement, Pharmacyclics will pay Celera a tiered Royalty in accordance
with the following table on worldwide Net Sales:


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


15

















 


 


	
  Total Net Sales of an

  Assigned Product in

  a Calendar Year

  	
   

  	
  Percent of Net Sales

  	
   

  
	
   

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]    

  	
   

  
	
  [***]to $[***]

  	
   

  	
  [***]

  	
  %

  	
  [***]

  	
  %

  	
  [***]%

  	
   

  
	
  $ [***] to
  $[***]

  	
   

  	
  [***]

  	
  %

  	
  [***]

  	
  %

  	
  [***]%

  	
   

  
	
  Above $[***]

  	
   

  	
  [***]

  	
  %

  	
  [***]

  	
  %

  	
  [***]%

  	
   

  



 


	
  (b)

  	
  Pharmacyclics may deduct from Royalties
  payable to Celera pursuant to Section 6.4(a) up to [***] percent ([***]%) of any amounts paid to Third
  Parties to obtain licenses or other rights under any Patents to the extent
  that, without such licenses or rights, Pharmacyclics cannot otherwise make,
  use, sell, offer for sale, or import an Assigned Product without infringing a
  claim of such Patent, provided that, after such deduction, the amount paid to
  Celera is not less than [***] percent
  ([***]%) of the amount that
  would otherwise have been paid to Celera pursuant to Section 6.4(a). As
  a condition to benefiting from this Section 6.4(b), Pharmacyclics must
  deliver to Celera a true copy of each agreement with a Third Party that
  Pharmacyclics contends is subject to this Section 6.4(b). Each such
  agreement shall be treated by Celera as Pharmacyclics’ Confidential
  Information

  



 


6.5          Term of Royalties Payments.  Pharmacyclics’ obligation to pay Royalties
under Section 6.4 will continue, on an Assigned Product-by-Assigned
Product basis, in each country of the world:


 


	
  (a)

  	
  In the case of any Assigned Product
  described in Section 1.5, Section 1.28 (except in the case of
  Assigned Products described in Section 1.28(b)(iii)) and Section 1.35
  (except in the case of Assigned Products described in Section l.35(b)(iii)),
  for as long as the manufacture, use, sale, offer for sale or import of such
  Assigned Product is covered by a Celera Patent.

  
	
   

  	
   

  
	
  (b)

  	
  In the case of any Assigned Product
  described in Section 1.28(b)(iii) or Section 1.35(b)(iii), for
  a period of ten (10) years beginning on the date of first commercial
  sale of such Assigned Product.

  



 


6.6          Royalty Payments and
Reports. All Royalties
payable to Celera under this Agreement will be paid in Dollars by wire transfer
of immediately available funds into an account designated by Celera within
sixty (60) days after the end of each calendar quarter, except as otherwise
specifically provided herein. Each payment of Royalties owing to Celera will be



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


16

















 


 


accompanied by a statement, certified by an executive officer of
Pharmacyclics as accurate to the best of its ability consistent with
Pharmacyclics’ standard practices in performing such computations and in
accordance with GAAP, on a country-by-country basis, setting forth (a) the
amount of gross sales of Assigned Products and, if applicable, Combination
Products in such quarter, (b) any deductions from such amount of gross
sales as permitted pursuant to Section 1.41(a), (c) a calculation of
Net Sales of each Assigned Product and, if applicable, Combination Product for
such quarter, (d) the amount of aggregate worldwide Net Sales of each
Assigned Product and, if applicable, Combination Product on a cumulative per
year basis for the current year, and (e) the amount of Royalty due on Net
Sales during such quarter.


 


6.7          Records;
Royalty Audit.


 


	
  (a)

  	
  Pharmacyclics shall keep, and will use
  commercially reasonable efforts to cause its Licensees to keep, such records
  as necessary to determine, in a manner consistent with GAAP, the accuracy of
  calculations of all amounts due to Celera under this Agreement. Such records
  will be retained for no less than three (3) years following the year in
  which a payment was made hereunder. Once per calendar year, Celera may
  engage, at its own expense, an independent certified public accountant appointed
  by Celera and reasonably acceptable to Pharmacyclics, to examine, in
  confidence, the records of Pharmacyclics as may be necessary to determine,
  with respect to any calendar year for which Pharmacyclics retains records in
  accordance with the previous sentence, the correctness of any payment
  required to be made under this Agreement. The report of such accountant will
  be limited to a certificate verifying the correctness or incorrectness of any
  payment made by Pharmacyclics. All information contained in any such
  certificate will be Confidential Information of Pharmacyclics hereunder.

  
	
   

  	
   

  
	
  (b)

  	
  If such examination results in a
  determination that any payment actually paid has been overstated or
  understated, any amount overstated or understated, as the case may be, shall
  be refunded or paid promptly to the appropriate Party, as applicable.

  
	
   

  	
   

  
	
  (c)

  	
  If any audit performed under this Section 6.7
  discloses an underpayment or an overpayment, any amount underpaid or
  overpaid, as the case may be, shall be paid or refunded promptly remit to the
  appropriate Party, as applicable, plus interest as provided in Section 6.11.
  If any underpayment is more than [***]
  percent ([***]%) from
  the amount of the original payment calculation, Pharmacyclics shall reimburse
  Celera for the reasonable cost of the performance of the audit.

  



 


6.8          Taxes.  Celera will be responsible for any and all
taxes levied on account of amounts it receives under this Agreement. If
Pharmacyclics is required by law, rule or regulation to withhold taxes from
such types of payments due Celera hereunder, Pharmacyclics will (a) deduct
those taxes from the remittable amount, (b) pay the taxes to the proper
taxing authority, and (c) send original copies of all official receipts
evidencing such tax obligation,


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


17

















 


 


together with written
evidence of payment, to Celera within fifteen (15) business days following such
payment. In the event of any such withholding, the Parties agree to confer
regarding other reasonable, lawful measures to minimize such withholding.


 


6.9          Blocked Currency.  In
any country where conversion of the local currency is blocked and such currency
cannot be removed from the country, Pharmacyclics shall make payments of any
Royalties due hereunder in respect of Net Sales in such country in local
currency by depositing such amount to an interest-bearing account in the name
of Celera, in a bank within such country designated by Celera.


 


6.10        Foreign Exchange.  For the purpose of computing the Net Sales for
sale or other distribution of Assigned Products and, if applicable, Combination
Products in a currency other than Dollars, such currency will be converted into
Dollars at the average rate of exchange for buying Dollars as available from
the on-line edition of the Wall Street Journal (at http://www.interactive.wsj.com)
for the calendar quarter in which such sales or other distributions were made.


 


6.11        Late Payments.   Any amounts not paid by
Pharmacyclics when due under this Agreement will be subject to interest from
and including the date payment is due through and including the date upon which
Pharmacyclics has made payment at a rate equal to the then-current prime rate
of interest quoted in the Money Rates section of the on-line edition of the
Wall Street Journal (at http://www.interactive.wsj.com) plus two percent (2%).


 


ARTICLE 7



INTELLECTUAL PROPERTY


 


7.1          Prosecution of Patents.  After the Effective Date, Phaimacyclics will
bear the sole responsibility and costs for prosecuting and maintaining all
Celera Patents, using patent counsel of Pharmacyclics’ choice. Celera, upon
request, will provide reasonable assistance to Pharmacyclics in the prosecution
and maintenance of any Celera Patents. In the event that Pharnacyclics elects
not to continue to prosecute or maintain any patent application or patent
within the Celera Patents, Pharmacyclics will give timely notice to Celera and
Celera, at its sole discretion and expense, may elect to continue the
prosecution and maintenance of such patent application or patent and, in such
an event, Pharmacyclics will assign to Celera all right, title and interest in
and to such patent application or patent, as applicable (hereinafter a “Reverted
Patent”). Celera will not enforce any Reverted Patent against Pharmacyclics as
long as Celera is receiving a royalty payment under Section 6.4 of this
Agreement with respect to any Assigned Product within the scope of such
Reverted Patent.


 


7.2          Infringement
of Patents by Third Parties.


 


	
  (a)

  	
  Pharmacyclics has the sole right to enforce
  the Celera Patents against Third Parties and to defend the Celera Patents
  against any challenge. Celera will reasonably assist and cooperate in any
  such enforcement or defense of a challenge. Pharmacyclics will bear all costs
  and expenses (including attorneys’ fees) incurred by either Party after the
  Effective Date 

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


18

















 


 


	
   

  	
  to carry out the activities described in
  this Section 7.2. Recoveries in any actions under this Section 7.2(a) will
  first be used to reimburse Pharmacyclics’ for any and all costs and expenses
  (including attorneys’ fees) incurred in connection with enforcement of the
  Celera Patents or defense of the Celera Patents against challenge. After
  reimbursement of costs and expenses as provided in the previous sentence, [***].

  
	
   

  	
   

  
	
  (b)

  	
  Pharmacyclics agrees to use commercially
  reasonable efforts in enforcing Celera Patents; provided that, in the event
  that Pharmacyclics and Celera disagree, the Parties each acknowledge and
  agree that Pharmacyclics shall have the right to make the final decision with
  respect to any aspect of enforcement or defense of the Celera Patents.

  



 


7.3          Infringement
of Third Party Rights.


 


	
  (a)

  	
  Defense. Pharmacyclics will defend any
  action which names Pharmacyclics and/or Celera and which claims the
  infringement, after the Effective Date, of any Third Party Patent through the
  making, using, selling, offer for sale or importing an Assigned Product. If
  necessary and at Pharmacyclics’ expense, Celera will assist and cooperate
  with Pharmacyclics in any such defense. Pharmacyclics will bear all costs and
  expenses (including attorneys’ fees) and pay all damages and settlement
  amounts arising out of or in connection with any such action.

  
	
   

  	
   

  
	
  (b)

  	
  Notice. Each Party will promptly notify
  the other upon becoming aware of any Third Party claim or action against
  Pharmacyclics and/or Celera for infringement of any Third Party Patent based
  on Assigned Products.

  
	
   

  	
   

  
	
  (c)

  	
  Settlement. Neither Party may enter into any
  settlement that affects the other Party’s rights or interests without such
  other Party’s written consent, which consent will not be unreasonably
  withheld or delayed.

  



 


ARTICLE 8



REPRESENTATIONS AND WARRANTIES


 


8.1          Mutual Representations and
Warranties.  Each Party hereby represents and warrants to
the other Party as follows:


 


	
  (a)

  	
  Corporate Existence
  and Power. As of the Effective Date, it is a corporation duly organized,
  validly existing and in good standing under the laws of the state of
  Delaware, and has full corporate power and authority and the legal right to
  own and operate its property and assets and to carry on its business as it is
  now being conducted and as contemplated

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


19

















 


 


	
   

  	
  in this Agreement, including, without
  limitation, the right to make the assignments hereunder.

  
	
   

  	
   

  
	
  (b)

  	
  Authority and
  Binding Agreement. As of the Effective Date, (a) it has the
  corporate power and authority and the legal right to enter into this Agreement
  and perform its obligations hereunder; (b) it has taken all necessary
  corporate action on its part required to authorize the execution and delivery
  of the Agreement and the performance of its obligations hereunder; and (c) the
  Agreement has been duly executed and delivered on behalf of such Party, and
  constitutes a legal, valid and binding obligation of such Party that is
  enforceable against it in accordance with its terms.

  
	
   

  	
   

  
	
  (c)

  	
  No Conflict. As of the Effective Date, the
  execution, delivery and performance of this Agreement by such Party does not
  conflict with, and would not result in a breach of any agreement, instrument
  or understanding, oral or written, to which it is a party or by which it may
  be bound, nor violate any material law or regulation of any court,
  governmental body or administrative or other agency having jurisdiction over
  it.

  
	
   

  	
   

  
	
  (d)

  	
  Validity. As of the Effective Date, it is
  aware of no action, suit, inquiry or investigation instituted by any Third
  Party which questions or threatens the validity of this Agreement.

  



 


8.2          Mutual Covenants. Each Party hereby covenants to the other
Party as follows:


 


	
  (a)

  	
  No
  Misappropriation. It will not knowingly misappropriate the trade
  secret of a Third Party in its activities to develop or Commercialize Assigned
  Products.

  
	
   

  	
   

  
	
  (b)

  	
  No Debarment. In the course of the development
  and manufacture of Assigned Products and during the Term, such Party will not
  knowingly use and will not have knowingly used any employee or consultant who
  is or has been debarred by the FDA or Regulatory Authorities, or, to the best
  of such Party’s knowledge, is or has been the subject of debarment
  proceedings by the FDA or Regulatory Authorities.

  
	
   

  	
   

  
	
  (c)

  	
  No Conflict. It will not enter into any
  agreement with any Third Party that is in conflict with this Agreement, and
  will not take any action that would in any way prevent it from assuming its
  obligations or granting the rights granted to the other Party under this
  Agreement, or that would otherwise materially conflict with or adversely
  affect its obligations or assuming the rights granted to the other Party
  under this Agreement.

  



 


8.3          Representations
and Warranties of Celera.


 


	
  (a)

  	
  Celera Intellectual
  Property. With
  respect to the Celera Intellectual Property, Celera represents and warrants
  that:

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


20

















 


 


	
  (i)

  	
  Celera owns all right, title and interest
  in and to all of the Celera Intellectual Property;

  
	
   

  	
   

  
	
  (ii)

  	
  The execution of this Agreement, including
  applicable assignments attached as exhibits hereto, is sufficient to transfer
  all right, title and interest in and to the Celera Intellectual Property to
  Pharmacyclics.

  
	
   

  	
   

  
	
  (iii)

  	
  the Celera Intellectual Property is free
  and clear of all liens, encumbrances, pledges, security interests, licenses,
  charges of any nature and restrictions on transfer;

  
	
   

  	
   

  
	
  (iv)

  	
  no person has any license to, rights to, or
  proprietary interest in or with respect to the Celera Intellectual Property;

  
	
   

  	
   

  
	
  (v)

  	
  as of the Effective Date, Pharmacyclics
  shall succeed to all of Celera’s right, title and standing to
  (i) receive all rights and benefits pertaining to the Celera
  Intellectual Property, (ii) institute and prosecute all suits and
  proceedings, (iii) take all actions that Pharmacyclics, in its sole
  discretion, may deem necessary or proper to collect, assert, or enforce any
  claim, right or title of any kind under any and all of the Celera
  Intellectual Property, whether arising before or after the Effective Date,
  (iv) defend and compromise any and all such actions, suits, or
  proceedings relating to such transferred and assigned rights, title,
  interest, and benefits, and (v) do all such acts and things in relation
  thereto as Pharmacyclics, in its sole discretion, deems advisable;

  
	
   

  	
   

  
	
  (vi)

  	
  no consents of any other parties are
  required under any agreements concerning any of the Celera Intellectual
  Property in order for the transfer and assignment of any of the Celera
  Intellectual Property under this Agreement to be legally effective;

  
	
   

  	
   

  
	
  (vii)

  	
  to the best of Celera’s knowledge, use of
  the Celera Intellectual Property does not infringe any existing United States
  of America or foreign patent, trademark, trade secret, copyright or other
  intellectual property right of any third party, rights or other intellectual
  property rights of any third party, and the manufacture, use or sale of
  compositions of matter and use of methods disclosed in or covered by the
  Celera Intellectual Property will not cause or result in any such
  infringement;

  
	
   

  	
   

  
	
  (viii)

  	
  to the best of Celera’s knowledge after
  diligent inquiry, the manufacture, use, sale, offer for sale or import of [***], the clinical lead compound in
  the HDAC Program, and [***],
  the preclinical lead compound in the Factor VIIa Program, does not infringe
  any existing United States of America or foreign

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


21

















 


 


	
   

  	
  patent, trademark, trade secret, copyright
  or other intellectual property right of any third party, rights or other
  intellectual property rights of any third party, and the manufacture, use,
  sale, offer for sale or import of such compounds and use of methods disclosed
  in or covered by the Celera Intellectual Property will not cause or result in
  any such infringement; and

  
	
   

  	
   

  
	
  (ix)

  	
  to the best of Celera’s knowledge after
  diligent inquiry, there are no actions, suits, investigations, claims or
  proceedings, or threats thereof, pending or threatened against Celera in any
  way relating to the Celera Program or the Celera Intellectual Property.

  



 


(b)                                  Celera
Programs.  Celera represents and warrants that:


 


	
  (i)

  	
  as of the Effective Date, all research and
  development activity at Celera and all Affiliates of Celera with respect to
  Celera Programs has terminated;

  
	
   

  	
   

  
	
  (ii)

  	
  all Celera Material and all data,
  documentation and other physical embodiments of the Celera Technology have
  been delivered to Pharmacyclics in accordance with Section 2.2; and

  
	
   

  	
   

  
	
  (iii)

  	
  neither Celera nor any Affiliate of Celera
  has any intention to initiate any research or development activity with
  respect to small molecules directed toward treatment of human disease by
  means of Btk inhibition,
  Factor VIIa inhibition or HDAC inhibition.

  



 


8.4          Representations,
Warranties and Covenants of Pharmacyclics.


 


	
  (a)

  	
  Expertise. In entering into this Agreement,
  Pharmacyclics has relied solely on its scientific and commercial experience
  and its analysis and evaluation of both the scientific and commercial value
  of the Assigned Products.

  
	
   

  	
   

  
	
  (b)

  	
  Diligence. Pharmacyclics covenants to use
  Commercially Reasonable Efforts to develop, obtain Regulatory Approval,
  Commercialize and promote the Assigned Products.

  
	
   

  	
   

  
	
  (c)

  	
  Compliance by
  Pharmacyclics. Pharmacyclics covenants to comply with all applicable
  laws, statutes, regulations and guidance of Regulatory Authorities relating
  to the development, manufacture and Commercialization of the Assigned
  Products in each country.

  



 


8.5          Disclaimer.  Except as otherwise set forth in this Article 8,
nothing in this Agreement will be construed as:


 


	
  (a)

  	
  a warranty or representation by Celera as
  to the validity, enforceability or scope of any Celera Patent; or

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


22

















 


 


	
  (b)

  	
  a warranty or representation that anything
  made, used, sold, or otherwise disposed of pursuant to this Agreement is or
  will be free from infringement of Patents or other intangible rights of Third
  Parties; or

  
	
   

  	
   

  
	
  (c)

  	
  a requirement that Celera or Pharmacyclics
  must file any patent application, secure any Patent, or maintain any Patent
  in force; or

  
	
   

  	
   

  
	
  (d)

  	
  an obligation on Celera or Pharmacyclics to
  bring or prosecute actions or suits against Third Parties for infringement of
  the Celera Patents; or

  
	
   

  	
   

  
	
  (e)

  	
  an obligation to furnish any manufacturing
  or technical information; or

  
	
   

  	
   

  
	
  (f)

  	
  granting by implication, estoppel, or
  otherwise, any license or rights under patents, trade secrets, know-how,
  copyrights, or other intangible rights of Celera other than the Celera
  Intellectual Property.

  



 


8.6          Limitation.


 


	
  (a)

  	
  Celera makes no representations, extends no
  warranties of any kind, either express or implied, and assumes no
  responsibilities whatever with respect to manufacture, use, sale or other
  disposition by Pharmacyclics, its Affiliates, its Licensees, or their
  customers or transferees, of products incorporating or made by use of
  inventions assigned under this Agreement.

  
	
   

  	
   

  
	
  (b)

  	
  Each Party and its Affiliates hereby waive,
  release, and renounce any and all warranties, guarantees, obligations,
  liabilities, rights and remedies, express or implied, arising by law or
  otherwise, with respect to the usefulness or freedom from defects of the
  Assigned Products, including, but not limited to, (a) any implied
  warranty of merchantability or fitness, (b) any implied warranty arising
  from course of performance, course of dealing or usage in the trade, and (c) any
  obligation, right, liability, claim or remedy for (i) loss of use,
  revenue or profit, or any other damages, (ii) infringement of third
  party intangible property rights, or (iii) incidental or consequential
  damages.

  



 


ARTICLE 9



INDEMNIFICATION


 


9.1          Indemnification by Celera.   Celera hereby agrees to defend,
hold harmless and indemnify (collectively “Indemnify”) Pharmacyclics and its
Affiliates, agents, directors, officers and employees (the “Pharmacyclics
Indemnitees”) from and against any and all Losses arising out of (a) any
making, having made, using, selling, having sold, offering for sale, or import
and/or otherwise distributing Assigned Products by, on behalf of, or under the
authority of Celera, its Affiliates or any Third Party prior to the Effective
Date, (b) any exploitation of the Celera Intellectual Property by or under
the authority of Celera prior to the Effective Date, and (c) any Third
Party claim resulting directly or indirectly out of any of Celera’s
representations


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


23

















 


 


and warranties
set forth in this Agreement being untrue in any material respect when made or
any material breach or material default by Celera of its material covenants and
material obligations under this Agreement. To be eligible to be so Indemnified,
the Pharmacyclics Indemnitees will provide Celera with prompt notice of any
claim giving rise to the indemnification obligation pursuant to this Section 9.1
and the exclusive ability to defend (with the reasonable cooperation of
Pharmacyclics Indemnitees) and subject to Pharmacyclics’ right to participate
in and have counsel selected by it participate, at Pharmacyclics’ expense, in
any action for which Pharmacyclics seeks to be Indemnified by Celera).
Pharmacyclics may not settle any claim for the Loss associated with which any
Pharmacyclics Indemnitee seeks to be Indemnified by Celera, without Celera’s
prior written consent, provided that
Celera will be relieved of its obligations only if the failure by the
Pharmacyclics Indemnitee to deliver prompt notice is prejudicial to its ability
to defend such action. Celera’s obligation to Indemnify the Pharmacyclics
Indemnitees pursuant to this Section 9.1 will not apply to the extent of
any Losses (i) that arise from the negligence or intentional misconduct of
any Pharmacyclics Indemnitee; (ii) that arise from Pharmacyclics’ material
breach of this Agreement; or (iii) for which Pharmacyclics is obligated to
Indemnify the Celera Indemnitees pursuant to Section 9.2 of this
Agreement.


 


9.2          Indemnification by
Pharmacyclics.  Pharmacyclics hereby agrees to
Indemnify Celera and its Affiliates, agents, directors, officers and employees
(the “Celera Indemnitees”) from and against any and all Losses arising from
Third Party claims resulting directly or indirectly from (a) any of
Pharmacyclics’ representations and warranties set forth in this Agreement being
untrue in any material respect when made or any material breach or material
default by Pharmacyclics of its material covenants or material obligations
under this Agreement; or (b) the making, having made, using, selling,
having sold, offering for sale, or import and/or otherwise distributing of
Assigned Products by, on behalf of, or under the authority of Pharmacyclics,
its Affiliates or any of its Licensees after the Effective Date. Without
limiting the foregoing, Pharmacyclics agrees to Indemnify the Celera
Indemnitees from any Losses arising from, relating to, or based upon any claim
by a Third Party after the Effective Date that an Assigned Product made, used,
sold or distributed by, on behalf of, or under the authority of Pharmacyclics,
its Affiliates or any of its Licensees after the Effective Date was or is
unsafe, unfit or otherwise deficient in quality or condition, or an Assigned
Product made, used, sold or distributed by, on behalf of, or under the
authority of Pharmacyclics, its Affiliates or any of its Licensees after the
Effective Date caused any death or personal injury of any kind, including but
not limited to any death or personal injury occurring during the conduct of any
clinical trial by, on behalf of, or under the authority of Pharmacyclics, its
Affiliates or any of its Licensees. To be eligible to be Indemnified as
described above in this Section 9.2, the Celera Indemnitees will provide
Pharmacyclics with prompt notice of any claim giving rise to the
indemnification obligation pursuant to this Section 9.2 and the exclusive
ability to defend (with the reasonable cooperation of Celera Indemnitees and
subject to Celera’s right to participate in and have counsel selected by it
participate, at Celera’s expense, in any action for which Celera seeks to be
Indemnified by Pharmacyclics). Celera will not settle any claim for the Loss
associated with which any Celera Indemnitee seeks to be Indemnified by
Pharmacyclics, without Pharmacyclics’ prior written consent, provided that
Pharmacyclics will be relieved of its obligations only if the failure by the
Celera Indemnitee to deliver prompt notice is prejudicial to its ability to
defend such action. Pharmacyclics’ obligation to Indemnify the Celera
Indemnitees pursuant to this Section 9.2 will not apply to the extent of
any Losses (i) that arise from the negligence or 


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


24

















 


 


intentional misconduct of any Celera Indemnitee, (ii) for which
Celera is obligated to Indemnify the Pharmacyclics Indemnitees pursuant to Section 9.1
of this Agreement, or (iii) that arise from any material breach by Celera
of this Agreement.


 


9.3          Insurance.  Within thirty (30) days after the Effective
Date, each Party, at its own expense, will procure and maintain during the
Term, insurance policy or policies, including in the case of Pharmacyclics
product liability insurance, adequate to cover its obligations hereunder and
which are consistent with normal business practices of prudent companies
similarly situated. As of the Effective Date, Pharmacyclics will carry
comprehensive general liability, property damage, and product liability
insurance with an insurance limit of $10,000,000 and, thereafter, will maintain
coverage that is reasonable and customary for a similarly situated biopharmaceutical
company. Celera may self-insure all or part of any such obligation consistent
with pharmaceutical industry practices. Each insurance policy required by, and
procured under, this Section 9.3 by a Party will name the other Party as
an additional insured. The existence of such insurance will not limit the
insuring Party’s liability with respect to its indemnification obligations
under this Article 9. Each Party will provide the other Party with written
evidence of such insurance upon request, and will provide the other Party with
written notice at least thirty (30) days prior to the cancellation, non-renewal
or material change in such insurance or self-insurance which materially
adversely affects the rights of such other Party hereunder.


 


9.4          Limitation of Liability.  Neither Party nor its respective Affiliates
and licensees will be liable for special, exemplary, consequential or punitive
damages, whether in contract, warranty, tort, strict liability or otherwise
incurred by the other party in connection with this Agreement, including but
not limited to damages measuring lost profits or business opportunities.
Notwithstanding the foregoing, amounts paid by a Party to a Third Party as
special, exemplary, consequential or punitive damages, whether in contract,
warranty, tort, strict liability or otherwise will be reimbursed by the other
Party to the extent such other Party is required to Indemnify such first Party
pursuant to the Indemnifications of Section 9.1 or of Section 9.2.


 


ARTICLE 10



CONFIDENTIALITY


 


10.1        Treatment of Confidential
Information.  The Parties agree that during the Term, and
for a period of [***] years
after this Agreement expires or terminates, a Receiving Party must (a) maintain
in confidence the Disclosing Party’s Confidential Information to the same
extent the Receiving Party maintains its own proprietary information of similar
kind and value (but at a minimum each Party will use commercially reasonable
efforts to maintain Confidential Information in confidence); (b) not
disclose such Confidential Information to any Third Party without prior written
consent of the Disclosing Party, except for disclosures to its licensees and
commercial partners for Assigned Products who agree to be bound by obligations
of non-disclosure and non-use at least as stringent as those contained in this Article 10;
and (c) not use such Confidential Information for any purpose except those
purposes permitted by this Agreement.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


25

















 


 


10.2        Authorized Disclosure. 
Notwithstanding any other provision of this Agreement, each Party may
disclose Confidential Information of the other Party:


 


(a)                               to the extent and to the persons and
entities as required by an applicable law, rule, regulation, legal process,
court order or the rules of the National Association of Securities Dealers
or of a Regulatory Authority; or


 


(b)                               as necessary to file or prosecute
those patent applications for which either Party has the right to assume
prosecution or maintenance, pursuant to Section 7.1 of this Agreement (in
the case of Celera’s Confidential Information), prosecute or defend litigation
or otherwise establish rights or enforce obligations under this Agreement, but
only to the extent that any such disclosure is necessary;


 


 provided,
however, that the Receiving Party required or intending to disclose the
Disclosing Party’s Confidential Information under Section 10.2(a) or Section 10.2(b) will
first give prompt notice to the Disclosing Party to enable it to seek any
available exemptions from or limitations on such disclosure requirement and
will reasonably cooperate in such efforts by the Disclosing Party.


 


10.3        Publicity; Terms of
Agreement. The Parties
agree that the existence of and the material terms of this Agreement are
Confidential Information of both Parties, subject to the special authorized disclosure
provisions set forth below in this Section 10.3 (in lieu of the authorized
disclosure provisions set forth in Section 10.2, to the extent of any
conflict) and without limiting the generality of the definition of Confidential
Information set forth in Section 1.17. The Parties will mutually agree the
text of a press release announcing the execution of this Agreement. Thereafter,
if either Party desires to make a public announcement concerning this Agreement
or the terms hereof, such Party will give reasonable prior advance notice of
the proposed text of such announcement to the other Party for its prior review
and approval, such approval not to be unreasonably withheld. A Party will not
be required to seek the permission of the other Party to repeat any information
as to the terms of this Agreement that have already been publicly disclosed by
such Party in accordance with the foregoing or by the other Party. Either Party
may disclose the terms of this Agreement to potential investors who agree to be
bound by obligations of non-disclosure and non-use at least as stringent as
those contained in this Article 10. The Parties acknowledge that Celera
and/or Pharmacyclics may be obligated to file a copy of this Agreement with the
U.S. Securities and Exchange Commission with its next quarterly report on Form 10-Q,
annual report on Form 10-K or current report on Form 8-K or with any
registration statement filed with the U.S. Securities and Exchange Commission
(the “SEC”) pursuant to the Securities Act of 1933, as amended and each such
Party will be entitled to make such filing, provided
that it requests confidential treatment of the more sensitive terms
hereof to the extent such confidential treatment reasonably available to the
filing Party under the circumstances then prevailing. In the event of any such
filing, the filing Party will provide the non-filing Party with an advance copy
of the Agreement marked to show provisions for which the filing Party intends
to seek confidential treatment and will reasonably consider the non-filing
Party’s timely comments thereon.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


26

















 


 


ARTICLE 11



TERM AND TERMINATION


 


11.1        Term.   This Agreement will become
effective on the Effective Date and will remain in effect, unless earlier
terminated pursuant to this Article 11, until expiration of Pharmacyclics’
obligation to pay Royalties pursuant to Section 6.5.


 


11.2        Termination for Default.   This Agreement may be terminated
effective immediately by written notice by either Party at any time during the
Term for Default by the other Party, which Default remains uncured for [***] days, measured from the date
written notice of such Default is given to the Defaulting Party, provided, however, that if such Default is
not susceptible of cure within the stated period and the Defaulting Party uses
diligent good faith efforts to cure such Default, the stated period will be
extended by an additional [***]
days.


 


11.3        Reversion.   In the event of termination of this
Agreement before expiration of the Term, Pharmacyclics will assign to Celera
all right, title and interest in and to all Celera Intellectual Property.


 


11.4        Survival.  The following provisions will survive any
expiration or termination of this Agreement for the period of time specified:
Articles 9, 10, 12 and 13, and Sections 8.6 and 11.4. Termination of this
Agreement will not relieve the Parties of any liability which accrued hereunder
prior to the effective date of such termination nor preclude either Party from
pursuing all rights and remedies it may have hereunder or at law or in equity
with respect to any breach of this Agreement nor prejudice either Party’s right
to obtain performance of any obligation. The remedies provided in this Article 11
are not exclusive of any other remedies a Party may have in law or equity.


 


ARTICLE 12



DISPUTE RESOLUTION


 


12.1        Disputes. The Parties recognize that disputes as to
certain matters may from time to time arise during the Term which relate to
either Party’s rights or obligations hereunder. It is the objective of the
Parties to establish procedures to facilitate the resolution of disputes
arising from, concerning or in any way relating to this Agreement in an
expedient manner by mutual cooperation and without resort to litigation. To
accomplish this objective, the Parties agree to follow the procedures set forth
in this Section 12.1 if and when a dispute arises under this Agreement.
The Parties will undertake good faith efforts to resolve any such dispute in
good faith. In the event the Parties are unable to resolve such dispute, either
Party may, by written notice to the other Party, have any dispute between the
Parties remaining unresolved after [***]
days referred to their respective executive officers designated below or their
designees or successors for attempted resolution by good faith negotiations
within [***] days after such
notice is received. Such designated officers are as follows:


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


27














 


 


For
Pharmacyclics:   Richard
A. Miller, M.D., President and Chief Executive Officer


 


For
Celera:   President,
the Celera Genomics Group of Applera Corporation


 


If the
designated officers are not able to resolve such dispute within such [***] day period, either Party may at
any time thereafter pursue any legal or equitable remedy available to it.
Notwithstanding the above, either Party will be entitled at all times and
without delay to seek equitable relief The Parties agree that all discussions
and negotiations conducted pursuant to this Section 12.1, and any
documents exchanged during any such discussions or negotiations, will be
treated as if subject to Rule 408, Federal Rules of Evidence.


 


12.2        Governing Law; Judicial
Resolution. Resolution
of all disputes arising out of or related to this Agreement or the performance,
enforcement, breach or termination of this Agreement and any remedies relating
thereto, will be governed by and construed under the substantive laws of the
State of California, as applied to agreements executed and performed entirely
in the State of California by residents of the State of California, without
regard to conflicts of law rules. The exclusive jurisdiction for any dispute
arising under this Agreement will be a state or federal court of competent
jurisdiction in California.


 


12.3        Patent Dispute Resolution. Any dispute, controversy or claim
relating to the scope, validity, enforceability or infringement of any patent
rights claiming the use or sale of any Assigned Product will be submitted to a
court of competent jurisdiction in which such patent rights were granted or
arose. Notwithstanding the foregoing, any dispute, controversy or claim
relating to the scope, validity, enforceability or infringement of any United
States patent rights covering the use or sale of any Assigned Product will be
submitted to a court of competent jurisdiction in the State of California.


 


ARTICLE 13


 


MISCELLANEOUS


 


13.1        Entire Agreement;
Amendment. This
Agreement (including all exhibits) and the Confidential Disclosure Agreement
dated February 3, 2006 and the Confidential Disclosure Agreement dated March 9,
2006, set forth the complete, final and exclusive agreement and all the
covenants, promises, agreements, warranties, representations, conditions and understandings
between the Parties hereto and supersedes and terminates all prior and
contemporaneous agreements and understandings between the Parties. There are no
covenants, promises, agreements, warranties, representations, conditions or
understandings, either oral or written, between the Parties other than as are
set forth herein and therein. No subsequent alteration, amendment, change or
addition to this Agreement will be binding upon the Parties unless reduced to
writing and signed by an authorized officer of each Party.


 


13.2        Force Majeure. Both Parties will be excused from the
performance of their obligations under this Agreement to the extent that such
performance is prevented by Force Majeure and the nonperforming Party promptly
provides notice of the prevention to the other


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


28

















 


 


Party. Such
excuse will be continued so long as the condition constituting Force Majeure
continues and the nonperforming Party uses reasonable efforts to remove the
condition. Incidents of Force Majeure will not excuse the mere payment of
money. If Pharmacyclics is excused from performance under this Agreement by
Force Majeure for a continuous period of six (6) months or more, Celera
may terminate this Agreement by thirty (30) days advance written notice.


 


13.3        Notices. Any notice required or permitted to be
given under this Agreement must be in writing, must specifically refer to this
Agreement and will be deemed to have been sufficiently given for all purposes
if mailed by first class certified or registered mail, postage prepaid, express
delivery service or personally delivered, or if sent by facsimile, electronic
transmission confirmed. Unless otherwise specified in writing, the mailing
addresses of the Parties are as described below.


 


	
   

  	
  For Celera:

  	
  Celera Genomics

  
	
   

  	
   

  	
  45 West Gude Drive

  
	
   

  	
   

  	
  Rockville, Maryland 20850

  
	
   

  	
   

  	
  Fax: 240-453-3781

  
	
   

  	
   

  	
  Attn: Legal Department

  
	
   

  	
   

  	
   

  
	
   

  	
  With a Copy to:

  	
  Applera Corporation

  
	
   

  	
   

  	
  301 Merritt 7

  
	
   

  	
   

  	
  Norwalk, Connecticut 06851

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
  Fax: 203-840-2902

  
	
   

  	
   

  	
   

  
	
   

  	
  For Pharmacyclics:

  	
  Pharmacyclics, Inc.

  
	
   

  	
   

  	
  995 E. Arques Avenue

  
	
   

  	
   

  	
  Sunnyvale, California 94085-4521

  
	
   

  	
   

  	
  Fax: 408-774-4594

  
	
   

  	
   

  	
  Attention: Vice President, Business Development

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a Copy to: Chief Financial Officer

  



 


13.4        Maintenance of Records. Each Party will keep and maintain all
records required by law or regulation with respect to Assigned Products and
will make copies of such records available to the other Party upon request.


 


13.5        No Strict Construction. This Agreement has been prepared jointly
and will not be strictly construed against either Party.


 


13.6        Counterparts. This Agreement may be executed in two (2) or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.


 


13.7        Severability. If any one or more of the provisions of
this Agreement is held to be invalid or unenforceable by any court of competent
jurisdiction from which no appeal can be


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


29

















 


 


or is taken,
the provision will be considered severed from this Agreement and will not serve
to invalidate any remaining provisions hereof. The Parties must make a good
faith effort to replace any invalid or unenforceable provision with a valid and
enforceable one such that the objectives contemplated by the Parties when
entering this Agreement may be realized.


 


13.8        Headings. The headings for each article and section
in this Agreement have been inserted for convenience of reference only and are
not intended to limit or expand on the meaning of the language contained in the
particular article or section.


 


13.9        Further Actions. Each Party agrees to execute, acknowledge
and deliver such further instruments, and to do all such other acts, as may be
necessary or appropriate in order to carry out the purposes and intent of the
Agreement.


 


13.10      Independent Contractors. The relationship between Pharmacyclics
and Celera created by this Agreement is one of independent contractors and
neither Party will have the power or authority to bind or obligate the other
except as expressly set forth in this Agreement.


 


13.11      Use of Name. No right, express or implied, is granted
to either Party by this Agreement to use in any manner any trademark, trade
name or logo of the other Party, including the names “Celera” and “Pharmacyclics”,
without the prior written consent of the owning Party.


 


13.12      No Waiver. Any delay in enforcing a Party’s rights
under this Agreement or any waiver as to a particular default or other matter
will not constitute a waiver of such Party’s rights to the future enforcement
of its rights under this Agreement, except with respect to an express written
and signed waiver relating to a particular matter for a particular period of
time.


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


30

















 


 


IN WITNESS
WHEREOF, the Parties have executed this Agreement in
duplicate originals by their duly authorized representatives.


 


	
  APPLERA CORPORATION

  THROUGH THE CELERA GENOMICS GROUP

  	
   

  	
  PHARMACYCLICS, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kathy Ordoñez

  	
   

  	
  By:

  	
  /s/ Richard H. Miller

  
	
  Print Name:

  	
  Kathy Ordoñez

  	
   

  	
  Print Name: 

  	
  Richard H. Miller

  
	
  Title:

  	
  Senior Vice President

  	
   

  	
  Title: 

  	
  Pres + CEO

  
									



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


31

















 


 


EXECUTION COPY


 


EXHIBIT 1.10


 


CELERA PATENTS


 


	
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[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


32

















 


 


	
  TTC’s Ref. No.

  	
   

  	
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[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


33

















 


 


	
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  ]

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


34

















 


 


	
  TTC’s Ref. No.

  	
   

  	
  Celera’s Ref. No.

  	
   

  	
  Country

  	
   

  	
  Serial No.

  	
   

  	
  File Date

  	
   

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


35

















 


 


	
  TTC’s Ref. No.

  	
   

  	
  Celera’s Ref. No.

  	
   

  	
  Country

  	
   

  	
  Serial No.

  	
   

  	
  File Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  
	
  [***]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
  [***

  	
  ]

  	
   

  	
   

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


36

















 


 


EXHIBIT 1.13


 


CLINICAL TRIAL


 


CLINICAL STUDY PROTOCOL #[***]


 


Study
Entitled: [***]


 


	
  PRINCIPAL INVESTIGATOR:

  	
  [***]

  
	
   

  	
   

  
	
  STUDY LOCATION:

  	
  [***]

  
	
   

  	
   

  
	
  ORIGINAL PROTOCOL:

  	
  [***]

  
	
   

  	
   

  
	
  AMENDMENT NUMBER:

  	
  [***]

  
	
   

  	
   

  
	
  AMENDMENT DATE:

  	
  [***]

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


37

















 


 


PROTOCOL SUMMARY


 


	
  TITLE:

  	
  [***]

  
	
  PRINCIPAL INVESTIGATOR:

  	
  [***]

  
	
  STUDY CENTER:

  	
  [***]

  
	
  CLINICAL PHASE:

  	
  [***]

  
	
  OBJECTIVE:

  	
  [***]

  
	
   

  	
  [***]

  
	
  METHODOLOGY:

  	
  [***]

  
	
  NUMBER OF TREATED PATIENTS 

  PLANNED:

  	
  [***]

  
	
  DIAGNOSIS AND CRITERIA FOR 

  INCLUSION:

  	
  [***]

  
	
  TEST PRODUCT:

  	
  [***]

  
	
  DOSE(S):

  	
  [***]

  
	
   

  	
  [***]

  
	
   

  	
  [***]

  
	
   

  	
  [***]

  
	
   

  	
  [***]

  
	
   

  	
  [***]

  
	
  ROUTE OF ADMINISTRATION:

  	
  [***]

  
	
  MAXIMUM DURATION OF 

  TREATMENT:

  	
  [***]

  
	
  REFERENCE THERAPY:

  	
  [***]

  
	
  CRITERIA FOR EVALUATION:

  	
  [***]

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


38

















 


 


EXHIBIT 2.2(b)


 


FORM OF ASSIGNMENT


 


ASSIGNMENT


 


WHEREAS,
APPLERA CORPORATION[, by and through the CELERA GENOMICS GROUP], ASSIGNOR, a
corporation organized and existing under the laws of the State of Delaware,
United States of America, and having a place of business at 45 West Gude Drive,
Rockville, Maryland 20850, is the owner of the entire right, title and interest
in, and to the United States Letters Patent No.                     ,
which issued from United States Letters Patent Application Serial No.               
entitled  “                                                         
        ,” and of the invention
therein described; and


 


WHEREAS,
PHARMACYCLICS, INC., ASSIGNEE, a corporation organized and existing under the
laws of the State of Delaware, United States of America, and having a place of
business at 995 East Arques Avenue, Sunnyvale, California 94085, is desirous of
obtaining the entire right, title and interest in, to and under such patent and
such invention.


 


NOW,
THEREFORE, in consideration of the sum of One Dollar ($1.00) to ASSIGNOR in
hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, ASSIGNOR has sold, assigned, transferred and set over, and
by these presents does hereby sell, assign, transfer and set over, unto
ASSIGNEE, its successors, legal representatives and assigns, the entire right,
title and interest in, to and under the invention, including the right to sue
for past infringement, and the patent and all divisions, renewals and
continuations thereof, and all patents of the United States which may be
granted thereon and all reissues and extensions thereof; and all applications
for industrial property protection, including, without limitation, all
applications for patents, utility models, and designs which may hereafter be
filed for the invention in any country or countries foreign to the United
States, together with the right to file such applications and the right to
claim for the same the priority rights derived from the patent under the patent
laws of the United States, the International Convention for the Protection of
Industrial Property, or any other international agreement or the domestic laws
of the country in which any such application is filed, as may be applicable;
and all forms of industrial property protection, including, without limitation,
patents, utility models, inventors’ certificates and designs which may be
granted for said invention in any country or countries foreign to the United
States and all extensions, renewals and reissues thereof; and


 


ASSIGNOR
HEREBY authorizes and requests the Commissioner of Patents and Trademarks of
the United States, and any official of any country or countries foreign to the
United States, whose duty it is to issue patents or other evidence or forms of
industrial property protection on applications as aforesaid, to issue the same
to ASSIGNEE, its successors, legal representatives and assigns, in accordance
with the terms of this instrument; and


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


39

















 


 


ASSIGNOR
HEREBY covenants and agrees that it has the full right to convey the entire
interest herein assigned, and that ASSIGNOR has not executed, and will not
execute, any agreement in conflict herewith; and


 


ASSIGNOR
HEREBY further covenants and agrees that ASSIGNOR will communicate to ASSIGNEE,
its successors, legal representatives and assigns, any material facts known to
ASSIGNOR respecting the invention, and testify in any legal proceeding, sign
all lawful papers, execute all divisional, continuing, reissue and foreign
applications, make all rightful oaths, and generally do everything possible to
aid ASSIGNEE, its successors, legal representatives and assigns, to obtain and
enforce proper protection for the invention in all countries.


 


IN WITNESS AND
IN TESTIMONY WHEREOF, I, as a duly authorized representative of ASSIGNOR,
hereunto set my hand and seal this
         day of April 1999.


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
				



 


	
  State of

  	
  )

  
	
   

  	
  ) SS.:

  
	
   

  	
  )

  



 


 


On this           day
of
                        ,
before me, a Notary Public in and for the State and County aforesaid,
personally appeared                             ,
to me known and known to me to be the person of that name, who signed and
sealed the foregoing instrument, and he acknowledged the same to be his free
act and deed.


 


	
   

  	
   

  	
  ,

  
	
   

  	
  Notary
  Public

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


40

















 


 


EXHIBIT 2.2(c)(i)


 


Btk Program Information


 


[***]


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


41

















 


 


EXHIBIT 2.2(c)(ii)


 


FACTOR VIIA PROGRAM
INFORMATION


 


[***]


 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


42

















 


 


EXHIBIT 2.2(c)(iii)


 


HDAC PROGRAM INFORMATION


 


[***]


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


43

















 


 


EXHIBIT 6.2


 


STOCK PURCHASE AGREEMENT


 


This Stock
Purchase Agreement (this “Agreement”) is entered into by and between
Pharmacyclics, Inc., a Delaware corporation (the “Company”), and
Applera Corporation, a Delaware corporation, by and through the Celera Genomics
Group (“Celera”), as of April 7, 2006.


 


RECITALS


 


WHEREAS, the
Company and Celera have entered into that certain Assignment Agreement dated April 7,
2006 (the “Assignment Agreement”), pursuant to which the Company has
agreed to issue to Celera, subject to the terms and conditions hereof, between
five hundred thousand (500,000) and one million (1,000,000) shares (the “Shares”)
of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), in consideration of the assignment by Celera to the Company of
certain therapeutic products, methods, compounds and related information,
patents and other proprietary technology (the “Celera Assets”), as
described in the Assignment Agreement.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the mutual covenants and obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Celera agree as
follows:


 


1.     Issuance
of Common Stock .


 


1.     At
the Closing (as defined below), the Company will issue to Celera, and Celera
will acquire from the Company, upon the terms and conditions hereinafter set
forth, the Shares, which shall be registered in the name of Applera
Corporation.


 


2.     The
execution of the Assignment Agreement and the assignment of the Celera Assets
described therein shall constitute full payment of the purchase price for the
Shares by Celera. Celera shall not be obligated to pay any other consideration
to the Company in respect of the Shares. The number of Shares to be issued at
the Closing shall be calculated as follows:


 


(a) If the Average Trading Price (as defined below) is less than [***],
then the number of Shares issued at the Closing shall be equal to one million
(1,000,000); and


 


(b) If the Average Trading Price is [***]  or more, then the number of shares issued
at the Closing shall be an amount equal to  [***]  divided by the Average Trading Price;


 


provided , however , that in no event
shall the number of Shares issued at the Closing be less than five hundred
thousand (500,000) shares. “Average Trading Price” shall mean the price
equal to the average of the closing per share price of


 


[***]
indicates material that has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.


 


44

















 


 


the Common Stock as reported on The Nasdaq National Market over the [***] trading period ending on [***].


 


2.     Closing,
Delivery.


 


1.     The
closing of the issuance of the Shares shall take place at the offices of Latham &
Watkins LLP, 135 Commonwealth Drive, Menlo Park, California, at 10:00 a.m.,
no later than five (5) business days after June 30, 2006, or at such
other time and place as the parties shall agree upon (which time and place are
designated as the “Closing”).


 


2.     At
the Closing, the Company will deliver to Celera a certificate registered in the
name of Applera Corporation for the Shares.


 


3.     The
Company’s Representations and Warranties . The Company represents and
warrants to Celera as follows:


 


1.     Organization,
Good Standing and Qualification . The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as presently proposed to be conducted. The
Company is duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties.


 


2.     Authorization
. The Company has full right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. All corporate
action on the part of Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement, the
performance of all obligations of Company hereunder and the authorization,
issuance and delivery of the Shares has been taken or will be taken prior to
the Closing. This Agreement constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditor’s rights and
remedies or by other equitable principals of general application from time to
time in effect, or with respect to indemnity, as may be limited by state or
federal securities laws or the public policy underlying such laws.


 


3.     Valid
Issuance of Securities; Private Offering . The Shares, when issued, sold
and delivered in accordance with the terms hereof for the consideration
expressed herein, will be duly and validly authorized and issued, fully paid
and nonassessable and free of restrictions on transfer and all other liens and
encumbrances, other than restrictions on transfer under this Agreement and
applicable state and federal securities laws. Subject to the accuracy of
Celera’s representations set forth in Section 4, the offer, sale and
issuance of the Shares in accordance with the terms of this Agreement is exempt
from (i) the registration requirements of the 


 


[***] indicates material that has been
omitted pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.


 


 


45

















 


Securities Act of 1933 (the “Securities Act”) and (ii) applicable
state registration or qualification requirements, in each case, other than
those with which the Company has complied or will comply prior to the
applicable compliance deadline (the “Securities Law Requirements”). The
Company has not engaged in any “general solicitation”, as defined in Regulation
D promulgated under the Securities Act, with respect to the Shares.


 


4.     Legal
Proceedings and Orders; No Conflicts . There is no action, suit, proceeding
or investigation pending or threatened against the Company that questions the
validity of this Agreement or the right of the Company to enter into this
Agreement or to consummate the transactions contemplated hereby, nor is the Company
aware of any basis for any of the forgoing. The Company is neither a party nor
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality that would affect the ability
of the Company to enter into this Agreement or to consummate the transactions
contemplated hereby. The performance by the Company of this Agreement and the
transactions contemplated herein do not violate or constitute a default under
any contract or other agreement or instrument to which the Company is a party.


 


5.     Consents
. Except for Permits (as defined below), the absence of which either
individually or in the aggregate would not have a material adverse effect on
the Company, and except for compliance with the Securities Laws Requirements as
described above, all permits, consents, approvals, orders, authorizations of,
or declarations to (collectively, “Permits”) or filings with any
federal, state, local or foreign court, governmental or regulatory authority,
or other person (including third party consents) required on the part of the
Company in connection with the execution, delivery or performance of this
Agreement and the consummation of the transactions contemplated herein have
been obtained or will be obtained prior to the Closing, and will be effective
as of the Closing.


 


6.     Disclosure
. The information contained in each of the documents filed or furnished by
the Company with the Securities and Exchange Commission (the “SEC”)
pursuant to the reporting requirements of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) since June 30, 2005, as of the
respective filing date of each such document, did not contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading. Since June 30,
2005, the Company has filed or furnished with the SEC all reports, statements,
and documents as and when required to be filed or furnished with the SEC
pursuant to the requirements of the Exchange Act.


 


4.     Representation
and Warranties of Celera . Celera represents and warrants to the Company as
follows:


 


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


46

















 


1.     Power
and Authority . This Agreement constitutes a valid and binding obligation
of Celera, enforceable against Celera in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditor’s rights and
remedies or by other equitable principals of general application from time to
time in effect, or with respect to indemnity, as may be limited by state or
federal securities laws or the public policy underlying such laws. Celera
further represents and warrants to the Company that Celera has full right,
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement.


 


2.     Accredited
Investor . Celera: (i) is an “accredited investor” as defined in
Regulation D under the Securities Act and Celera has the knowledge,
sophistication and experience necessary to make, and is qualified to make
decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including
investments in securities issued by the Company and investments in comparable
companies, and has requested, received, reviewed and considered all information
it deemed relevant in making an informed decision to purchase the Shares; (ii) is
acquiring the Shares for its own account for investment only and with no
present intention of distributing any of such Shares or any arrangement or
understanding with any other persons regarding the distribution, sale or
transfer of such Shares; (iii) will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any Shares except in
compliance with the Securities Act, applicable state securities laws and the
respective rules and regulations promulgated thereunder; (iv) (A) has
had no position, office or other material relationship within the past three
years with the Company and (B) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company; and (v) has, in connection
with its decision to acquire the Shares, had access to the Company’s reports,
forms and other documents filed with the SEC pursuant to the Exchange Act.
Celera understands that its acquisition of the Shares has not been registered
under the Securities Act or registered or qualified under any state securities
law in reliance on specific exemptions therefrom, which exemptions may depend
upon, among other things, the bona fide nature of Celera’s investment intent as
expressed herein. Celera further understands that the Shares are “restricted
securities” under applicable federal and state securities laws and that,
pursuant to these laws, Celera must hold the Shares indefinitely unless they
are registered under the Securities Act, or an exemption from such registration
requirements is available. Celera acknowledges that, except as specifically
provided for in this Agreement, the Company has no 


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


47

















 


obligation to register or qualify the Shares
for resale. Celera further acknowledges that if an exemption from registration
or qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Shares, and requirements relating to the Company which are outside of
Celera’s control, and which the Company is under no obligation and may not be
able to satisfy.


 


3.     Short
Position . Celera represents and warrants that, as of the date of this
Agreement it does not have a Short Position with respect to the Shares. A “Short
Position” shall mean a position resulting from a “short sale” as such
transaction is described in Rule 200 of Regulation SHO promulgated under
the Securities Exchange Act of 1934, as amended.


 


4.     Agreement
to Vote Shares . In all stockholder actions for so long as Celera holds any
of the Shares, Celera agrees to vote the Shares in the manner recommended by
the Company’s Board of Directors.


 


5.     Taxes
. Celera understands that nothing in this Agreement or any other materials
presented to Celera in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. Celera has consulted such legal,
tax and investment advisors as it, in its sole discretion, has deemed necessary
or appropriate in connection with its purchase of Shares. Celera further agrees
that it will be solely responsible for the withholding and/or payment of any
federal, state, or local taxes with respect to its acquisition and holding of
the Shares issued to it hereunder, and it will indemnify and hold the Company
harmless from all liability related to its tax treatment as a holder of the
Shares.


 


5.     Lock-Up;
Limitations on Transfer . Celera agrees that, for a period beginning on the
date of hereof and ending on June 30, 2007, Celera shall not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any of the Shares or grant any option or other rights to
any person to acquire the Shares without the prior written consent of the
Company. Celera covenants that, subject to other restrictions on transfer set
forth elsewhere in this Agreement, in no event shall it dispose of any of the
Shares (other than pursuant to Rule 144 under the Securities Act or any
similar or analogous rule or pursuant to the registration rights provisions
set forth in Section 7 hereof), unless and until (a) Celera shall
have notified the Company of the proposed disposition, and (b) if
requested by the Company, Celera shall have furnished the Company with an
opinion of counsel (which may be Celera’s in-house counsel who is also an
officer of Celera and who is experienced and knowledgeable in securities laws
transactions (“Celera’s In-House Counsel”)) reasonably satisfactory in
form and substance to the Company and its counsel to the effect that (i) such
disposition shall not require registration under the Securities Act and (ii) appropriate
action necessary for compliance with the Securities Act and any applicable
state, local or foreign law has been taken.


 


6.     Legends
.


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


48

















 


1.     Celera
acknowledges that until the Shares have been registered on an effective
registration statement or meet the condition specified in Section 6.1(b) below,
the certificate or certificates representing the Shares shall bear legends in
substantially the following form (as well as any legends required by applicable
state and federal corporate and securities laws):


 


THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933.


 


The Company shall promptly reissue a certificate or certificates
without the legend set forth above at the request of Celera if (a) the
Shares have been registered on an effective registration statement, or (b) Celera
shall have obtained an opinion of counsel (which may be Celera’s In-House
Counsel) reasonably satisfactory in form and substance to the Company and its
counsel to the effect that (i) the securities proposed to be disposed of
may lawfully be so disposed of without registration, qualification, or legend,
and (ii) any appropriate action necessary to be taken by Celera for
compliance with the Securities Act and any applicable state, local or foreign
law has been taken.


 


2.     Celera
acknowledges that until the restrictions set forth in Section 5 above have
lapsed with respect to any Shares, the certificate or certificates representing
those Shares shall bear legends in substantially the following form:


 


THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP AGREEMENT
AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED OTHER THAN IN ACCORDANCE WITH
THE TERMS OF THAT CERTAIN STOCK PURCHASE AGREEMENT, DATED APRIL 7, 2006 WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMPANY.


 


At Celera’s request, the Company shall promptly reissue a certificate
or certificates without the legend set forth above for any Shares as to which
the restrictions set forth in Section 5 above have lapsed.


 


7.     Registration
Rights .


 


1.     Resale
Registration Statement . The Company agrees to file with the SEC a
registration statement (the “Registration Statement”), on Form S-3
or any successor form, so as to permit a non-underwritten public offering and
resale of the Shares by Celera on a delayed or continuous basis under Rule 415
of the Securities Act. The Company will use its commercially 


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


49

















 


reasonable efforts to cause the Registration
Statement to be filed and declared effective under the Securities Act no later
than June 30, 2007. The Company will prepare and file with the SEC such
amendments and supplements to the Registration Statement and take all such
other actions as may be necessary to keep the Registration Statement effective
for a period (the “Registration Period”) ending on the earliest of (a) the
first date on which all of the Shares held by Celera could be sold by Celera
either (i) pursuant to Rule 144(k) under the Securities Act (or
any successor rule thereto) or (ii) in any three month period
pursuant to Rule 144 under the Securities Act (or any successor rule thereto);
(b) the date that all Shares held by Celera have been sold (I) pursuant
to the Registration Statement, (II) to or through a broker, dealer or
underwriter in a public distribution or a public securities transaction, and/or
(III) in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that
all transfer restrictions and restrictive legends with respect thereto, if any,
are removed upon the consummation of such sale; and (c) the second
anniversary of the effective date of the Registration Statement.


 


2.     Company
Obligations . During the Registration Period, the Company shall:


 


(a) at least five (5) business days before filing the
Registration Statement or prospectus and at least three (3) business days
before filing any amendment thereto, the Company shall furnish to Celera’s
counsel copies of all documents proposed to be filed for that counsel’s review
and approval, which approval shall not be unreasonably withheld or delayed.


 


(b) furnish to Celera such reasonable number of copies of the
Registration Statement, each amendment and supplement thereto (including all
exhibits), the corresponding prospectus and preliminary prospectus, and such
other documents as Celera may reasonably request to facilitate the public sale
or other disposition of all or any of the Shares by Celera; provided , however
, that the obligation of the Company to deliver copies of prospectuses or
preliminary prospectuses to Celera shall be subject to Celera’s compliance with
its covenants contained in Section 7.4(c) below;


 


(c) promptly notify Celera of any stop order threatened or issued
by the SEC and shall use its commercially reasonable efforts to prevent the
entry of a stop order or if entered, to have it rescinded or otherwise removed;


 


(d) use its commercially reasonable efforts to register or qualify
the Shares under such securities or blue sky laws of jurisdictions in the
United States as Celera reasonably requests and do any and all other reasonable
acts and things that may be necessary or advisable to enable Celera to
consummate the disposition of its Shares pursuant to the Registration Statement
in such jurisdiction; provided , however , that the Company shall
not be obligated to qualify as a foreign corporation to do business under the
laws of any jurisdiction in which it is not then qualified or to file any
general consent to service of process in any jurisdiction where it is not now
so subject;


 


[***]
indicates material that has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.


 


 


50

















 


(e) promptly notify (in writing) Celera, at any time when a
prospectus is required to be delivered under the Securities Act, of the
occurrence of any event as a result of which the prospectus, as amended or
supplemented, or any document incorporated therein by reference contains an
untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which such statements were made and, except as permitted
pursuant to the “blackout” provisions of Section 7.5 hereof, prepare a
supplement or amendment to the prospectus or any such document incorporated
therein so that thereafter the prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
such statements were made;


 


(e) use its commercially reasonable efforts to otherwise comply
with all applicable provisions of the Securities Act, the Exchange Act and
related rules and regulations of the SEC, and state securities or blue sky
laws and regulations;


 


(f) use its commercially reasonable efforts to cause the Shares to
be listed on each securities exchange, if any, on which similar securities
issued by the Company are then listed, or cause the Shares to be authorized for
trading on NASDAQ, as the case may be; and


 


(g) take all other steps reasonably necessary to effect the
registration and resale of the Shares contemplated hereby in accordance with
the terms of this Agreement.


 


3.     Registration
Expenses . All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of the
Registration Statement pursuant to this Section 7 (including, without
limitation, all fees of the Company’s counsel and independent auditors) shall
be borne by the Company. All such fees and expenses incurred by Celera
(including fees of counsel to Celera) shall be borne by Celera.


 


4.     Celera’s
Obligations . Celera shall:


 


(a) promptly furnish to the Company in writing such information as
the Company reasonably requests regarding Celera and the Shares for use in
connection with such Registration Statement or the prospectus included therein,
including any amendment or supplement thereto; Celera shall promptly notify the
Company if any fact occurs with respect to the such information furnished to
the Company for inclusion in the Registration Statement and the prospectus, as
amended or supplemented, which results in the Registration Statement or the
prospectus, as amended or supplemented, containing an untrue statement of
material fact with respect to such information or omitting to state a material
fact with respect to such information required to be stated therein or
necessary to make the statements therein with respect to such information not
misleading, and 


 


[***]
indicates material that has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.


 


 


51

















 


shall provide to the Company such information as shall be necessary to
enable the Company to prepare a supplement or post-effective amendment to such
Registration Statement and prospectus or any document incorporated therein by
reference or file any other document required so that the Registration
Statement and prospectus, as amended or supplemented, will not contain an
untrue statement of a material fact with respect to such information or omit to
state a material fact with respect to such information required to be stated
therein or necessary to make the statements therein with respect to such
information not misleading;


 


(b) upon receipt of any notice from the Company of any event of
the kind described in Section 7.2(e), will discontinue disposition of
Shares pursuant to the Registration Statement until it receives copies of the
supplemented or amended prospectus contemplated by Section 7.2(e). In
addition, if the Company requests, Celera will deliver to the Company or
destroy all copies, other than permanent file copies then in Celera’s
possession, of the prospectus covering the Shares current at the time of
receipt of the notice; and


 


(c) (i) comply with all prospectus delivery requirements of
the Securities Act and applicable state securities or blue sky laws, and with all
anti-stabilization, anti-manipulation and similar provisions of Section 10
of the Exchange Act and any rules issued thereunder by the SEC, (ii) sell
or dispose of the Shares in the manner described in the plan of distribution
section of the prospectus, as amended or supplemented, (iii) furnish to
the Company information about sales made in such public offering, and (iv) at
the end of the Registration Period, discontinue sales of shares pursuant to the
Registration Statement and advise the Company of the number of Shares remaining
unsold.


 


5.     Blackout
Period . If (a) there is material non-public information regarding the
Company which the Company’s Board of Directors (the “Board”) reasonably
determines not to be in the Company’s best interest to disclose at such time,
or (b) there is a significant business opportunity (including, but not
limited to, the acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
other similar transaction) available to the Company which the Board reasonably
determines not to be in the Company’s best interest to disclose at such time
and which the Company would be required to disclose under the Registration
Statement, then the Company may suspend effectiveness of the Registration
Statement and suspend the sale of Shares under the Registration Statement for a
period not to exceed thirty (30) consecutive days, provided that the
Company may not suspend such obligations under this Section 7.5 for more
than ninety (90) days in the aggregate during any twelve (12) month period; and
provided, further, that no such suspension shall be permitted for consecutive
thirty (30) day periods, arising out of the same set of facts, circumstances or
transactions. In addition to the foregoing, the Company may suspend
effectiveness of the Registration 


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


52

















 


Statement and suspend the sale of Shares
under the Registration Statement upon written notice to Celera for a period not
to exceed ninety (90) consecutive days following the date of the final prospectus
used in an underwritten public offering of the Company’s Common Stock; provided
that the Company may not provide more than one notice of such suspension in
any twelve (12) month period.


 


6.     Indemnification
. (a) The Company agrees to indemnify and hold harmless Celera, its
officers, directors, employees, and agents, and each person that controls
Celera within the meaning of the Securities Act and the Exchange Act, against
all losses, claims, damages, liabilities and expenses caused by any untrue or
allegedly untrue statement of material fact contained in the Registration
Statement, any prospectus or preliminary prospectus contained therein, or any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which such statements were made; except to the
extent the untrue or allegedly untrue statement or omission or alleged omission
resulted from information submitted by or on behalf of Celera in writing to the
Company expressly for use in the Registration Statement; and provided,
that with respect to any amended or supplemented prospectus, the foregoing
agreement to indemnify shall not apply or inure to the benefit of Celera from
whom the person asserting any loss, claim, damage, liability or expense
purchased Shares, if copies of an amended or supplemented prospectus were
delivered in a timely manner to the Celera pursuant to this Agreement and a
copy of the prospectus (as then amended or supplemented if the Company shall
have furnished any amendment or supplements thereto) was not sent or given by
or on behalf of Celera to such person, if required by law so to have been
delivered, and if the prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability or expense.


 


(b) Celera agrees to indemnify the Company, its officers,
directors, employees, and agents, and each person that controls the Company
within the meaning of the Securities Act and the Exchange Act, against all
losses, claims, damages, liabilities and expenses resulting from (i) any
failure to comply with the covenants and agreements contained in Section 7.5
hereof, or (ii) any untrue or allegedly untrue statement of a material
fact or any omission or alleged omission to state a material fact required to
be stated in the registration statement or prospectus or any amendment thereof
or supplement thereto necessary to make the statements therein not misleading
in light of the circumstances under which such statements were made, but only
to the extent that the untrue or allegedly untrue statement or omission or
alleged omission is contained in or omitted from any information submitted by
or on behalf of Celera in writing to the Company expressly for use in the
Registration Statement, prospectus, or any prospectus supplement, and (b) only
in an amount not exceeding the proceeds actually received by Celera with
respect to Shares sold pursuant to the Registration Statement, unless such
liability resulted from gross negligence or willful misconduct by Celera.


 


[***]
indicates material that has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.


 


 


53

















 


(c) Any person entitled to indemnification under this Agreement
shall (i) give prompt notice to the indemnifying party of any claim with
respect to which it seeks indemnification, and (ii) unless the indemnified
party shall have been advised by counsel that a conflict of interest is likely
to exist between the indemnified and indemnifying parties with respect to the
claim, permit the indemnifying party to assume the defense of the claim with
counsel reasonably satisfactory to the indemnified party (in which event the
indemnifying party shall not be responsible for the fees and expenses of any
separate counsel employed by the indemnified party). If the indemnifying party
does not assume the defense, the indemnifying party will not be liable for any
settlement made without its consent (but that consent may not be unreasonably
withheld). No indemnifying party will consent to entry of any judgment or will
enter into any settlement (I) that does not include as an unconditional
term thereof the claimant’s or plaintiff’s release of the indemnified party
from all liability concerning the claim or litigation, or (II) that
contains any admission of guilt on the part of any indemnified party. An indemnifying
party who is not entitled to or elects not to assume the defense of a claim
will not be under an obligation to pay the fees and expenses of more than one
counsel in each applicable jurisdiction for all parties indemnified by the
indemnifying party with respect to the claim, unless the indemnified party
shall have been advised by counsel that a conflict of interest is likely to
exist between the indemnified party and any other indemnified party with
respect to the claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of no more than one additional counsel for the
indemnified parties.


 


(d) If the indemnification provided for in this Section 7.6
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each indemnifying
party thereunder shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Company and Celera in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
and Celera shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by Celera and the parties’ relative intent, knowledge, and
opportunity to correct the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities, and expenses referred to in this Section 7.6 will be
deemed to include, subject to the limitations set forth in Section 7.6(c),
any reasonable legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.


 


The parties hereto agree that it would not be just and equitable if
contribution pursuant this Section 7.6(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. 


 


[***]
indicates material that has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.


 


 


54

















 


Notwithstanding anything herein to the contrary, Celera shall not be
required to contribute any amount in excess of the amount by which the proceeds
actually received by Celera from the sale of the Shares pursuant to the
Registration Statement exceeds the amount of any damages that Celera has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.


 


(e) The indemnification and contribution provided for in this Section 7.6
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified parties or any officer, director, employee, agent
or controlling person of the indemnified parties.


 


8.     Conditions
to Closing of Celera. Celera’s obligations to acquire the Shares at the
Closing are, at the option of Celera, subject to the truthfulness of the
Company’s representations and warranties set forth in Section 3 hereof as
of the date of execution and delivery of this Agreement, and also as of the
Closing as if made on and as of the Closing date. In addition, the Company
shall deliver to Celera a certificate executed by its Chief Executive Officer
confirming the matters set forth in the preceding sentence without
qualification or exception.


 


9.     Conditions
to Closing of the Company. The Company’s obligations to issue the Shares at
the Closing are, at the option of the Company, subject to the truthfulness of
the Celera’s representations and warranties set forth in Section 4 hereof
as of the date of execution and delivery of this Agreement, and also as of the
Closing as if made on and as of the Closing date. In addition, Celera shall
deliver to the Company a certificate executed by its Chief Executive Officer
confirming the matters set forth in the preceding sentence without
qualification or exception.


 


10.   Miscellaneous.


 


1.     Further
Assurances. Consistent with the terms and conditions hereof, each party
hereto will cooperate with each other and execute and deliver any and all
instruments and take any and all other actions, either before or after the
Closing, which may be necessary, proper, or advisable to effect or evidence the
provisions of this Agreement and to consummate the transactions contemplated
hereby.


 


2.     Governing
Law. This Agreement and all acts and transactions pursuant hereto and the
rights and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
giving effect to its principles of conflicts of law or choice of law.


 


3.     Survival.
The representations and warranties contained herein shall survive the execution
and delivery of this Agreement and the sale of the Shares.


 


4.     Successors
and Assigns. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties as are permitted by this Agreement, provided that in 


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


55

















 


the event of any permitted sale or other
transfer or disposition of shares under this Agreement, the party acquiring
such Shares shall hold such Shares free and clear of the restrictions and
without any of the rights contained in this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and permitted assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.


 


5.     Entire
Agreement. This Agreement and the Assignment Agreement embody the entire
understanding and agreement between Celera and the Company regarding the
subject matter hereto and thereto, and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof.


 


6.     Counterparts.
This Agreement may be executed in any number of counterparts and signatures and
may be delivered by facsimile, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one instrument.


 


7.     Expenses
. The Company and Celera shall each bear their own legal and other expenses
in connection with the transactions contemplated hereby.


 


8.     Notices,
Etc. All notices and other communications required or permitted hereunder
shall be effective upon receipt and shall be in writing and may be delivered in
person, by telecopy, electronic mail, overnight delivery service or U.S. mail,
addressed (a) if to Celera, at its address set forth on the signature page of
this Agreement, or at such other address as Celera shall have furnished the
Company in writing, or (b) if to the Company, at the address of its
principal office, or at such other address as the Company shall have furnished
to Celera in writing.


 


9.     California
Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT
OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS
OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT
OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO
EXEMPT.


 


10.   Titles
and Subtitles . The titles of the paragraphs and subparagraphs of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


 


56

















 


11.   Amendments
and Waivers . Any term of this Agreement may be amended or waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and Celera. Any
amendment or waiver effected in accordance with this Section 10.11 shall
be binding upon Celera, each transferee or future holder of the Shares and the
Company.


 


12.   Severability
. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the parties agree to renegotiate such provision in good
faith. In the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (a) such provision shall
be excluded from this Agreement, (b) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (c) the balance of
the Agreement shall be enforceable in accordance with its terms.


 


13.   Adjustment
of the Shares For Stock Splits, etc . For purposes of this Agreement, the
term “ Shares “ shall include (a) any and all shares of capital
stock of the Company into which Shares are converted, exchanged or substituted
in any recapitalization or other capital reorganization by the Company and (b) any
and all equity securities of the Company or any successor or assign of the
Company which may be issued in respect of the Shares, whether by conversion of,
in exchange for or in substitution of, or as a dividend on or distribution in
respect of, such Shares. The Shares shall be deemed appropriately adjusted for
any stock dividends, stock splits, reverse stock splits, combinations,
recapitalization and the like occurring after the date of the Closing.


 


[***] indicates material that has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the Securities and Exchange Commission.


 


( Signature Page Follows )


 


57

















 


The parties
have executed this Stock Purchase Agreement as of the date first written above.


 


	
  COMPANY:

  	
   

  	
  CELERA:

  
	
   

  	
   

  	
   

  
	
  PHARMACYCLICS,
  INC.

  	
   

  	
  APPLERA
  CORPORATION

  THROUGH THE CELERA GENOMICS

  GROUP

  
	
   

  	
   

  	
   

  
	
  /s/ RICHARD
  A. MILLER, M.D.

  	
   

  	
  /s/ KATHY P.
  ORDOÑEZ

  
	
  Name:
  Richard A. Miller, M.D.

  	
   

  	
  Name: Kathy
  P. Ordoñez

  
	
  Title:
  President and Chief Executive Officer

  	
   

  	
  Title:
  Senior Vice President and President,

  Celera Genomics Group

  
	
   

  	
   

  	
   

  
	
  Address: 995
  E. Arques Avenue

  Sunnyvale, CA 94085-4521

  	
   

  	
  Address:
  1401 Harbor Bay Parkway

  Alameda, CA 94502

  
	
   

  	
   

  	
   

  
	
  With a copy
  of notices to:

  Chief Financial Officer

  Pharmacyclics, Inc.

  995 E. Arques Avenue

  Sunnyvale, CA 94085-4521

  	
   

  	
  With a copy
  of notices to:

  Secretary

  Applera Corporation

  301 Merritt 7

  Norwalk, Ct 06851

  



 


[***] indicates material that
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.


 


58