Exhibit 10.35


 


 


THIRD AMENDMENT TO THE JOINT VENTURE
AGREEMENT


 


This Third Amendment Agreement made and entered into as of
November 15, 2002 by and among:


 


Ciphergen Biosystems, Inc., a
Delaware corporation located at 6611 Dumbarton Circle, Fremont, CA 94555,
U.S.A. (“CBI”);


Sumitomo Corporation, a
Japanese corporation located at 1-8-11 Harumi, Chuo-ku, Tokyo 104-8610, Japan
(“SC”);


SC Biosciences Corporation, a
Japanese corporation located at 2-2-11 Shiba-Diamon, Minato-ku, Tokyo 105-0012,
Japan (“SCB”); and


Ciphergen Biosystems K.K., a
Japanese corporation located at 2-2-11 Shiba-Daimon, Minato-ku, Tokyo 105-0012,
Japan (“CBKK”).


 


Recitals:


 


A.                                   CBI
and SC entered into a Joint Venture Agreement dated January 25, 1999
(hereinafter the “Original Agreement”);


B.                                     CBKK
agreed to be bound by the Original Agreement;


C.                                     The
Original Agreement was amended by the First Amendment to the Joint Venture
Agreement dated March 15, 2002 (hereinafter the “First Amendment”), by
which CBI and CBKK confirmed their approvals on transfer of Shares from SC to
SCB and assignment and delegation of SC’s rights and duties under the Original
Agreement to SCB and further by which SCB agreed to be bound by the Original
Agreement;


D.                                    The
Original Agreement was also amended by The Second Amendment to the Joint
Venture Agreement dated November 15, 2002 (hereinafter the “Second
Agreement”), by which CBI and SCB amended certain purchase procedures in the
Original Agreement to reflect the value added to CBKK as a result of the
execution of the Research Services Agreement dated November 15, 2002 by
and between CBI and CBKK and the Distribution and Marketing Agreement dated
November 15, 2002 by and between BioSepra, S.A. (a wholly-owned subsidiary
of CBI) and CBKK;


E.                                      SCB
desires to use CBI’s Products to conduct research and/or development on its
behalf of itself or in cooperation with any third party; and


F.                                      The
parties hereto desire to further amend certain provisions to define the terms
of the Original Agreement as amended by the First Amendment and the Second
Amendment more precisely among the parties.


 


 

















 


NOW, THEREFORE, CBI, SC, SCB and CBKK hereby agree as follows:


 


1.                                       CBI,
SC, SCB and CBKK agree that Section 7.2 shall be amended in its entirety
to read as follows:


7.2           Research Using CBI Products.


(a) Except
after receiving CBI’s prior consent in each instance, SCB and its Affiliates
shall not use, for fees or any other remuneration, any of CBI’s Products for
the purpose of rendering research and/or development services to or for the
benefit of any third party. Notwithstanding the above, SCB and its Affiliates
may, without CBI’s consent, use any of CBI’s Products for the purpose of
conducting its own research and/or development activities solely or jointly
with any third party provided that any and all inventions and all intellectual
property derived from and relating to such research and/or development
activities made by SCB and/or its Affiliates, solely or jointly with any third
party shall be the sole or joint property of SCB, its Affiliates or such third
party. In each case, SCB and its Affiliates intend to use any of CBI’s Products
for any purposes other than those specified in this Section 7.2(a), they
shall consult with CBI so as to determine whether such use is acceptable to CBI
or not.


(b) Except
after receiving CBI’s prior consent in each instance, JVC and its Affiliates
shall not use any of CBI’s Products to conduct research and/or development on
behalf of any third party.


2.                                       CBI,
SC, SCB and CBKK agree that Section 7.4 shall be amended in its entirety
to read as follows:


7.4           Applications for
Rights.


During the
term of this Agreement, neither JVC nor its Affiliates shall file any patent,
copyright or other similar applications with respect to any intellectual
property right on improvements or modifications derived from and related to any
of CBI’s Products or modifications thereof or products which may compete
therewith. If new knowledge or experience relating to such improvements or
modifications is gained from the use of any of CBI’s Products, such knowledge
or experience shall be fully disclosed and assigned to CBI, at no charge to
CBI, at the time of discovery of the knowledge or experience.


3.             All capitalized
terms already defined in the Original Agreement is amended by the First


 

















 


Amendment and the Second
Amendment and not otherwise defined in this Third Amendment Agreement shall
have the meanings as defined in the Original Agreement as amended by the First
Amendment and the Second Amendment.


4.                                       This
Third Amendment Agreement shall be an integral part of the Original Agreement
as amended by the First Amendment and the Second Amendment. Except as provided
for herein, the Original Agreement as amended by the First Amendment and the
Second Amendment shall remain unaffected and in full force and effect.


5.                                       This
Third Amendment Agreement shall become effective as of November 15, 2002.


IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.


 


	
   

  	
  Ciphergen
  Biosystems, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  E. Rich

  
	
   

  	
  Name:

  	
  William E.
  Rich

  
	
   

  	
  Title:

  	
  President
  & CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Sumitomo
  Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michio
  Ogimura

  
	
   

  	
  Name:

  	
  Michio
  Ogimura

  
	
   

  	
  Title:

  	
  General
  Manager, Machinery & Electric Systems Division

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SC
  Biosciences Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Toru
  Umehara

  
	
   

  	
  Name:

  	
  Toru Umehara

  
	
   

  	
  Title:

  	
  C.E.O. &
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Ciphergen
  Biosystems K.K.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Toru
  Umehara

  
	
   

  	
  Name:

  	
  Toru Umehara

  
	
   

  	
  Title:

  	
  President