Exhibit
10.12


 


EXECUTION
COPY


 


*Confidential Treatment Requested by Celera Corporation*


 


ASSIGNMENT AGREEMENT


 


BY AND BETWEEN


 


PHARMACYCLICS, INC.


 


AND


 


APPLERA CORPORATION


 


April 7,
2006


 

















 


*Confidential Treatment
Requested by Celera Corporation*


 


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

  



 


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*Confidential Treatment
Requested by Celera Corporation*


 


	
  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

  



 


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*Confidential Treatment
Requested by Celera Corporation*


 


	
  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

  



 


iii














 


*Confidential Treatment
Requested by Celera Corporation*


 


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


 


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*Confidential Treatment
Requested by Celera Corporation*


 


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.


 


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*Confidential Treatment
Requested by Celera Corporation*


 


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;


 


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*Confidential Treatment
Requested by Celera Corporation*


 


(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.


 


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*Confidential Treatment
Requested by Celera Corporation*


 


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 [***].


 


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*Confidential Treatment
Requested by Celera Corporation*


 


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)                            [***]


 


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*Confidential Treatment
Requested by Celera Corporation*


 


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.


 


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(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


 


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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


 


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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.


 


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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


 


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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


 


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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.


 


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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.

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  



 


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  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:


 


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  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 [***] 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



 


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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,


 


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Requested by Celera Corporation*


 


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 

  



 


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  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

  



 


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  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:

  



 


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  (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

  



 


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  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

  



 


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  (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


 


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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 


 


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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.


 


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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.


 


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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:


 


27














 


*Confidential Treatment
Requested by Celera Corporation*


 


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


 


28

















 


*Confidential Treatment
Requested by Celera Corporation*


 


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


 


29

















 


*Confidential Treatment
Requested by Celera Corporation*


 


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.


 


30

















 


*Confidential Treatment
Requested by Celera Corporation*


 


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

  
									



 


31

















 


*Confidential Treatment
Requested by Celera Corporation*


 


EXECUTION COPY


 


EXHIBIT 1.10


 


CELERA PATENTS


 


	
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32

















 


*Confidential Treatment
Requested by Celera Corporation*


 


	
  TTC’s Ref. No.

  	
   

  	
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  Country

  	
   

  	
  Serial No.

  	
   

  	
  File Date

  	
   

  
	
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33

















 


*Confidential Treatment
Requested by Celera Corporation*


 


	
  TTC’s Ref. No.

  	
   

  	
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  Country

  	
   

  	
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34

















 


*Confidential Treatment
Requested by Celera Corporation*


 


	
  TTC’s Ref. No.

  	
   

  	
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35

















 


*Confidential Treatment
Requested by Celera Corporation*


 


	
  TTC’s Ref. No.

  	
   

  	
  Celera’s Ref. No.

  	
   

  	
  Country

  	
   

  	
  Serial No.

  	
   

  	
  File Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
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[***]


36

















 


*Confidential Treatment
Requested by Celera Corporation*


 


EXHIBIT 1.13


 


CLINICAL TRIAL


 


CLINICAL STUDY PROTOCOL #[***]


 


Study Entitled:
[***]


 


	
  PRINCIPAL INVESTIGATOR:

  	
  [***]

  
	
   

  	
   

  
	
  STUDY LOCATION:

  	
  [***]

  
	
   

  	
   

  
	
  ORIGINAL PROTOCOL:

  	
  [***]

  
	
   

  	
   

  
	
  AMENDMENT NUMBER:

  	
  [***]

  
	
   

  	
   

  
	
  AMENDMENT DATE:

  	
  [***]

  



 


37

















 


*Confidential Treatment
Requested by Celera Corporation*


 


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:

  	
  [***]

  



 


38

















 


*Confidential Treatment
Requested by Celera Corporation*


 


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


 


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*Confidential Treatment
Requested by Celera Corporation*


 


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

  



 


40

















 


*Confidential Treatment
Requested by Celera Corporation*


 


EXHIBIT 2.2(c)(i)


 


Btk Program Information


 


[***]


 


41

















 


*Confidential Treatment
Requested by Celera Corporation*


 


EXHIBIT 2.2(c)(ii)


 


FACTOR VIIA PROGRAM
INFORMATION


 


[***]


 


42

















 


*Confidential Treatment
Requested by Celera Corporation*


 


EXHIBIT 2.2(c)(iii)


 


HDAC PROGRAM INFORMATION


 


[***]


 


43

















 


*Confidential Treatment
Requested by Celera Corporation*


 


EXHIBIT 6.2


 


STOCK PURCHASE AGREEMENT


 


SEE ATTACHED


 


44