exv10w36



 






Exhibit 10.36




AGREEMENT




     WHEREAS, BioVeris Corporation (“BioVeris”) has not yet filed its annual
report on Form 10-K for the fiscal year ending on March 31, 2004 (“Form 10-K”);



     WHEREAS, BioVeris will be able to complete its Form 10-K once its auditors
are able to issue their opinion on BioVeris’s consolidated financial results,
including the audited financial statements of Meso Scale Diagnostics, LLC.
(“MSD”), which were not yet available;



     WHEREAS, in connection with the Form 10-K, MSD is willing to prepare and
finalize audited financial statements of MSD for inclusion in the consolidated
financial statements of BioVeris, including responding to the best of its
ability to any issues raised by MSD’s auditors;



     WHEREAS, there is an action currently pending in the Court of Chancery of
the State of Delaware in and for New Castle County (the “Delaware Court”)
styled BioVeris Corp. v. Wohlstadter, C.A. No. 507-N (the “§18-110 Action”),
brought by BioVeris against Jacob N. Wohlstadter (“Wohlstadter”), Meso Scale
Technologies LLC. (“MST”), and MSD (collectively, the “Defendants”);



     WHEREAS, there is an action currently pending in the Delaware Court styled
BioVeris Corp. v. Wohlstadter, C.A. No. 572-N (the “Fiduciary Duty Action”;
collectively with the §18-110 Action, the “Actions”), brought by BioVeris
against Defendants;



     WHEREAS, the Actions, in part, arise out of the Joint Venture Agreement
(the “JVA”) dated November 30, 1995 (as amended August 15, 2001) by and among
MSD, MST and BioVeris (as successor in interest to IGEN International, Inc.),
and the MSD Limited Liability Company Agreement (“MSD LLC Agreement”) dated
November 30, 1995 (as amended August 15, 2001); and



     WHEREAS, the parties have reached an agreement, set forth herein (the
“Agreement”), providing for settlement of the Actions, on the terms and subject
to the conditions set forth below (the “Settlement”);



     NOW, THEREFORE, the parties have unanimously resolved and agreed as
follows:




	1.	 	The parties shall proceed with the buyout process that is set forth in
Sections 8.5.3 and 8.5.4 of the JVA, except as otherwise set forth or
modified in this Agreement (the “Buyout Process”), for the purchase of the
IGEN Interests (as defined in the JVA; herein the “BioVeris Interests”) by
MSD and/or MST (the “Purchaser”). Purchaser shall purchase, and BioVeris
shall sell, the BioVeris Interests pursuant to the Buyout Process,
irrespective of the ultimate Purchase Price (as defined in the JVA) or any
other factor. For purposes of determining the ultimate Purchase Price (as
defined in the JVA), the parties agree that the discount factor of 7.5% as
set forth in Section 8.5.4(e)(iv) of the JVA shall be applicable.




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	2.	 	All proceedings in the Actions shall be suspended and, within one
business day following execution of this Agreement, the parties shall file
with the Delaware Court stipulations dismissing the Actions with prejudice
in the forms attached as exhibits A and B.
	 
	3.	 	For purposes of the Buyout Process and this Agreement:






	 	(a)	 	BioVeris, MSD and MST agree that the First Appraiser (as
defined in the JVA) and Second Appraiser (as defined in the JVA)
shall have until 11:59 p.m. (eastern daylight time) on August 30,
2004, to provide their respective detailed written valuation reports
(as contemplated in the JVA) to each of BioVeris and the Purchaser;
	 
	 	(b)	 	BioVeris, MSD and MST agree that, if a Third Appraiser (as
defined in the JVA) is necessary pursuant to the terms of the JVA:






	 	i)	 	the Third Appraiser (as defined in the JVA) shall
be deemed to be appointed on August 31, 2004;
	 
	 	ii)	 	Donald Erickson of Erickson Partners LLC shall be
deemed to be appointed as the Third Appraiser (as defined in
the JVA);
	 
	 	iii)	 	if, for any reason, Donald Erickson of Erickson
Partners LLC is unable to serve as the Third Appraiser, then
Roger Grabowski, ASA of Standard & Poor’s Corporate Value
Consulting shall be deemed to be appointed as the Third
Appraiser (as defined in the JVA); and
	 
	 	iv)	 	if, for any reason, Donald Erickson of Erickson
Partners LLC and Roger Grabowski, ASA of Standard & Poor’s
Corporate Value Consulting are unable to serve as the Third
Appraiser, then Greg Range, of Duff & Phelps shall be deemed
to be appointed as the Third Appraiser (as defined in the
JVA);






	 	(c)	 	“Completion Date” shall mean the date upon which the BioVeris
Interests are transferred to the Purchaser in accordance with
Section 8.5.3 of the JVA;
	 
	 	(d)	 	each of the parties hereby covenant and represent that such
party and their respective Affiliates (as defined in the JVA):






	 	i)	 	have not engaged, retained, consulted with or
otherwise employed any of the appraisers (or their firms)
listed in paragraph 3(b) above within the preceding eighteen
(18) months; and
	 
	 	ii)	 	except as otherwise provided in the immediately
following proviso, have not had within the preceding eighteen
(18) months and shall not have until after the Completion Date
any negotiations, discussions, or




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	 	 	 	communications with any of the appraisers (or their firms)
listed in paragraph 3(b) above regarding a potential
engagement with respect to any matter other than potential
service as the Third Appraiser, provided that representatives
of BioVeris met with representatives of Duff & Phelps in
August 2003 about a potential engagement, but BioVeris never
engaged Duff & Phelps.






	4.	 	The parties agree that for all purposes, including without limitation
income tax purposes, BioVeris shall be treated as a member of MSD through
the Completion Date.
	 
	5.	 	Prior to the Completion Date, the parties and their Affiliates (as
defined in the JVA), agents and representatives, shall not, other than to
enforce the terms of this Agreement, directly or indirectly, or induce any
third party to, commence, prosecute, instigate or in any way participate
in the commencement, prosecution or instigation of any action or
proceeding of any sort whatsoever against another party or their
respective Affiliates (as defined in the JVA), agents or representatives
related in any way to the Settled Claims (defined below), this Agreement,
the Buyout Process, the BioVeris Interests, the Settlement, the Actions,
the MSD LLC Agreement, the JVA and documents referred to in the JVA.
	 
	6.	 	The parties and their Affiliates (as defined in the JVA) shall not,
directly or indirectly, or induce any third party to, take any actions,
make any elections, or assert any rights, the effect of which would be to
modify, delay, prevent, bypass, avoid or circumvent the Buyout Process or
the transfer of the BioVeris Interests to Purchaser. Additionally, with
respect to the transfer of the BioVeris Interests to Purchaser, the
parties hereby irrevocably waive the requirements of Sections 9.1.4 and
8.1.2 of the LLC Agreement.
	 
	7.	 	It is the current intent of MSD that it shall operate and do business in
technology related fields including without limitation the healthcare
field, the software field, and detection and measurement technologies.
	 
	8.	 	From the date of the execution of this Agreement and until the second
anniversary of the Completion Date, MSD shall not purchase a Restricted
Asset (as defined below) unless: (i) BioVeris consents to such purchase of
a Restricted Asset or (ii) BioVeris fails to submit a written objection to
MSD within ten business days after receiving written notice of MSD’s
intent to purchase a Restricted Asset. If BioVeris believes that MSD has
failed to comply with this paragraph in purchasing a Restricted Asset,
then BioVeris shall have the right to seek judicial action to challenge
such unauthorized purchase if, and only if: (y) BioVeris provides written
notice to MSD of BioVeris’s good faith belief regarding MSD’s failure to
comply with this paragraph, of the reasons for such belief of BioVeris
(including reasonable detail supporting why BioVeris believes the asset at
issue constitutes a Restricted Asset) and of BioVeris’s intent to seek
judicial relief with respect to MSD’s failure to comply with this
paragraph; and (z) MSD fails to cure the alleged failure to comply with
this paragraph within thirty days of receiving the written notice




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	 	 	from BioVeris described in clause (y) above. MSD shall be deemed for all
purposes to have fully, wholly and completely cured any alleged failure
to comply with this paragraph with respect to a purchase of a Restricted
Asset if MSD exchanges, contributes, disposes of or otherwise transfers
the Restricted Asset and receives consideration in return equal to the
full net purchase price of such Restricted Asset. The parties agree that
if BioVeris prevails in a judicial action challenging an unauthorized
purchase by MSD of a Restricted Asset, and such unauthorized purchase has
not been cured (at any time prior to execution on a final judgment), then
the remedy shall be limited, in all instances, to monetary damages in an
amount less than or equal to the purchase price of the Restricted Asset
at issue. In no event shall BioVeris seek injunctive or declaratory
relief. For purposes of this paragraph, “purchase” shall mean the
acquisition of title to a Restricted Asset. For purposes of this
paragraph, “Restricted Asset” shall mean (i) real property that is used
or contemplated to be used primarily for residential purposes, (ii) any
automobile with a value, at the time of purchase, equal to or in excess
of $75,000, and (iii) airplanes.
	 
	9.	 	BioVeris hereby irrevocably consents pursuant to Section 2.3 of the
IGEN/MSD License Agreement dated November 30, 1995, as amended (the
“License Agreement”), to the sublicensing by MSD of the licenses granted
pursuant to the License Agreement to any Affiliate (as defined in the JVA)
of MSD. Any such MSD sublicensee sublicensed hereunder shall make
payments to BioVeris according to Section 8.5.3(b) of the JVA and shall
pay royalties to BioVeris according to Section 5 of the License Agreement,
and for the purpose of determining the sublicensee’s obligations under
such Sections, the sublicensee shall be subject to the same terms as MSD.
The payment and royalty terms shall be the same as those set forth in the
JVA and the License Agreement, respectively, as amended hereby. Any
sublicense granted hereunder shall specifically exclude manufacturing,
marketing or selling in the Diagnostic Field (as defined in the JVA)
readers which perform the electrochemiluminescent measurement on a
permanently installed electrode in a permanently installed flow cell
contained in the reader. Any such MSD sublicensee sublicensed hereunder
shall be bound by the terms of this Agreement.
	 
	10.	 	The parties agree that, prior to the Completion Date, MST may sell,
contribute, convey, assign, pledge or otherwise transfer any or all of its
interest in MSD to an entity or entities wholly owned by Wohlstadter or
any entity organized for the benefit of Wohlstadter or his immediate
family (which for purposes of this paragraph shall mean Wohlstadter’s
spouse and children) and such transferee shall be admitted as a member of
MSD; provided, however, that any such transferee must first agree to be
subject to any contractual or other obligations to which MST is subject
with respect to its MSD interests. Additionally, with respect to transfers
pursuant to this paragraph, the parties hereby irrevocably waive the
requirements of Sections 9.1.4 and 8.1.2 of the LLC Agreement.
	 
	11.	 	In consideration for the prior receipt by MSD of $2,862,655.00 from
Wohlstadter and for no additional consideration, MSD: (i) shall
contribute, convey, assign, pledge or




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	 	 	otherwise transfer the assets listed in exhibit C to MSVE, LLC (an entity
which currently has no assets) and immediately thereafter (ii) shall
contribute, convey, assign, pledge or otherwise transfer all of MSD’s
limited liability company interests in MSVE, LLC and MS RE, LLC to
Wohlstadter or an entity or entities wholly owned by Wohlstadter. The
parties agree that the transfers described in clause (i) and (ii) above
will be made pursuant to the documents attached hereto as exhibits D and
E. Defendants hereby covenant and represent that at the time of the
transfer described in clause (ii) above, the only assets of MSVE, LLC
shall be the assets listed on exhibit C and that the only assets of MS
RE, LLC shall be the assets listed on exhibit F.
	 
	12.	 	Concurrently with the execution of this Agreement, Dr. Richard Massey
shall resign from the MSD board of managers (the “MSD Board”), and
BioVeris shall execute an amendment to the MSD LLC Agreement in the form
attached hereto as exhibit G for the purpose of amending the MSD LLC
Agreement so that the number of managers constituting the entire MSD Board
shall be one, and MST shall designate such manager.
	 
	13.	 	Concurrently with the execution of this Agreement, MSD shall deliver
executed copies of the representation letters (the “Representation
Letters”) attached hereto as exhibits H and I that have been requested by
Deloitte & Touche LLP (“D&T”) and PricewaterhouseCoopers (“PwC”),
respectively. Upon receipt by MSD of audited financial statements for MSD
for calendar year 2003, MSD shall provide a copy of such audited financial
statements to BioVeris. In addition, until such time as BioVeris is no
longer required by law as is reasonably determined by BioVeris’s auditors
to consolidate or include the audited financial results of MSD in BioVeris
filings with the Securities and Exchange Commission (“SEC”), BioVeris may
request and MSD shall deliver (i) representation letters substantially
similar to the Representation Letters, and (ii) copies of audited
financial statements of MSD. Until such time as BioVeris is no longer
required by law as is reasonably determined by BioVeris’s auditors to
consolidate or include unaudited quarterly financial results of MSD in
BioVeris filings with the SEC, BioVeris may request and MSD shall deliver
to BioVeris unaudited quarterly financial statements of MSD by the date
that is the later of (i) ten days prior to the date that BioVeris is
required to file its quarterly report on Form 10-Q with the SEC, or (ii)
twenty-five days after BioVeris has delivered to MSD a written request
that MSD prepare such unaudited quarterly financial statements, such
request to be delivered no earlier than five days prior to the end of the
quarter for which such request is being made. BioVeris shall promptly
notify MSD of the determination by BioVeris’s auditors that BioVeris is no
longer required by law to consolidate or include unaudited quarterly
financial results of MSD in BioVeris filings with the SEC.
	 
	14.	 	BioVeris shall pay the fees and costs incurred by D&T in connection with
D&T’s audit of MSD as requested by BioVeris. BioVeris shall indemnify
Defendants and their respective directors, officers, employees and agents
for any losses, costs, fees and expenses arising out of or related in any
way to past, current or future audits of MSD or preparation of MSD audited
or unaudited financial statements requested by BioVeris. In




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	 	 	addition, BioVeris shall indemnify Defendants and their respective
directors, officers, employees and agents for any losses, costs, fees and
expenses with respect to regulatory (SEC or otherwise) or legal
proceedings and investigations resulting from or related to the fact that
BioVeris is (or BioVeris’s predecessor IGEN International, Inc., was) an
issuer of publicly traded securities. Defendants hereby represent that,
as of this date, Defendants are not aware of any losses (as opposed to
costs, fees and expenses) incurred by Defendants related to the current
audit, past audits, or the current SEC investigations resulting from or
related to the fact that BioVeris is (or BioVeris’s former parent IGEN
International, Inc., was) an issuer of publicly traded securities. With
respect to any audit of MSD that is requested by BioVeris, MSD shall
permit BioVeris to negotiate directly with the auditor to ensure that the
fees and expenses relating to such audit are reasonable; provided,
however, that irrespective of whether the ultimate fees and costs
relating to any such MSD audit are reasonable, BioVeris shall be solely
responsible for all such fees and costs. Nothing in this paragraph shall
require BioVeris to indemnify a Defendant for acts either resulting in a
criminal conviction or finally adjudged by a court of competent
jurisdiction to constitute fraud or intentional misrepresentations.
	 
	15.	 	Within one business day of the execution of this Agreement, BioVeris
shall pay to MSD in immediately available funds the amount of
$3,045,879.50, which payments shall be treated as a Class C capital
contribution. This aggregate net amount reflects the following payments:
(i) a payment by BioVeris to MSD in full and complete satisfaction of
amounts which have been due to MSD pursuant to Section 3.2 of the License
Agreement dated as of November 30, 1995 among MSD, MST and BioVeris (as
successor in interest to IGEN International, Inc.), as amended; (ii) a
payment by BioVeris to MSD in full and complete satisfaction of the
outstanding dispute regarding unsatisfied committed funding obligations in
which MSD claims that BioVeris is required to pay MSD an additional amount
pursuant to Section 2.8.3 of the Joint Venture Agreement; (iii) a payment
by BioVeris to MSD in full and complete satisfaction of the outstanding
dispute regarding the payment of certain legal fees and expenses incurred
by Defendants in connection with Defendants’ participation and involvement
in the negotiation and settlement of litigation involving IGEN
International, Inc. and Roche Holding Ltd.; and (iv) a pre-payment by MSD
to BioVeris in the form of a credit by BioVeris for the benefit of
Purchaser (as described below) in the amount of $2,000,000.00 for future
amounts payable to BioVeris pursuant to Section 8.5.3 of the JVA.
	 
	16.	 	The parties agree that BioVeris shall credit MSD, effective as of the
date of this Agreement, in the amount of $2,000,000.00 as a non-refundable
prepayment for future amounts payable to BioVeris pursuant to Section
8.5.3 of the JVA (the “Prepayment Credit”), which payments shall be
treated as a Class C capital contribution. The amount of the Prepayment
Credit outstanding from time to time shall bear simple interest
(cumulated, not compounded) at the fixed annual rate equal to the Prime
Rate (as defined in the MSD LLC Agreement) in effect as of the date of the
Purchase Election Notice (as defined in the JVA), plus one-half of one
percent (0.5%). The amount of the outstanding credit balance of the
Prepayment Credit, including accrued interest, shall be reduced for




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	 	 	amounts due and payable to BioVeris pursuant to Section 8.5.3 of the JVA.
Until the outstanding credit balance of the Prepayment Credit and all
accrued interest has been depleted to zero, any amounts payable to
BioVeris pursuant to Section 8.5.3 of the JVA will be satisfied solely
from the Prepayment Credit.
	 
	17.	 	The parties agree that the aggregate Pro Rata Rent Share (as defined in
the subleases between BioVeris and MSD) through August 31, 2005, including
any accrued but unpaid payment obligation for Pro Rata Rent Share (as
defined in the subleases between BioVeris and MSD) as of the date hereof,
shall be added into the Purchase Price (as defined in the JVA) and shall
thereby be deemed to be paid in full. In light of the fact that a portion
of the Pro Rata Rent Share consists of variable costs, and therefore will
be unable to be predicted with certainty, on or before the Completion Date
the parties shall in good faith agree upon an estimate of the aggregate
Pro Rata Rent Share (as defined in the subleases) from the Completion Date
through August 31, 2005. The parties shall then reconcile the actual
accrued Pro Rata Rent Share (as defined in the subleases) against the
agreed upon estimate of the accrued Pro Rata Rent Share (as defined in the
subleases) and make any necessary adjustments to the Purchase Price (as
defined in the JVA) arising from such reconciliations. The parties will
effect such reconciliations as of and within 30 days after each of
December 31, 2004, March 31, 2005 and August 31, 2005. In addition, MSD
shall sublease certain warehouse space to Wohlstadter for the period from
August 1, 2004 through August 31, 2005 in exchange for an upfront payment
by Wohlstadter to MSD of $23,994.75, which constitutes a prepayment of the
rent for such subleased space for the remaining term of the sub-lease.
	 
	18.	 	For purposes of the MSD audits, the Representation Letters (and future
representation letters) and the Settlement, Kenneth T. Mills shall be
deemed to be an officer of MSD, and shall thereby be entitled to the
benefits of Section 12.3 of the MSD LLC Agreement. Mr. Mills shall be
deemed to be an intended third party beneficiary of this paragraph of this
Agreement.
	 
	19.	 	BioVeris’s indemnification obligations pursuant to Section 12.3 of the
MSD LLC Agreement shall only apply to acts, events or inactions, actual or
alleged, occurring on or before the Completion Date without regard to
whether the legal proceeding or other event triggering the indemnification
obligation is initiated prior to or after the Completion Date. Nothing in
this paragraph limits or affects BioVeris’s obligations under paragraph 14
above.
	 
	20.	 	The parties agree that BioVeris shall pay when due the costs and expenses
associated with the First Appraiser (as defined in the JVA) and with the
Third Appraiser (as defined in the JVA). In addition, on or before the
Completion Date, BioVeris shall reimburse Defendants with respect to any
payments made by Defendants to the First Appraiser prior to the date
hereof.




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	21.	 	The parties agree that the cost and expenses associated with the First
Appraiser (as defined in the JVA) and half of the costs and expenses
associated with the Third Appraiser (as defined in the JVA) shall be added
to the Purchase Price, as contemplated by the JVA.
	 
	22.	 	Commencing with the first quarter following the Completion Date and until
such time as there are no further payment obligations under the License
Agreement or Section 8.5.3 of the JVA, MSD shall provide written reports
to BioVeris within 60 days after the end of each fiscal quarter during the
term of the License Agreement, and each such report shall state (i) the
aggregate MSD Net Sales (as defined in the JVA), (ii) the aggregate Net
Sales Price (as defined in the License Agreement) of products commercially
sold by MSD during such fiscal quarter, and (iii) the net proceeds, if
any, realized by MSD during such quarter from the sale of MSD debt or
equity securities in any third party financings (including debt financings
through term loans or sale leaseback transactions in either case having a
term of greater than one year, but excluding debt financings through
revolving credit facilities, lines of credit and lease financing
transactions) as described in Section 8.5.3(b) of the JVA (“Net Third
Party Financing Proceeds”), in each case upon which payment is due and
payable as provided in Section 8.5.3 of the JVA and/or Section 5 of the
License Agreement; and be accompanied by a remittance of the amount
payable, if any. This provision for quarterly payment of a percentage of
MSD Net Sales (as defined in the JVA) amends and supersedes the
obligations under Section 8.5.3 of the JVA to provide payment within 30
days after receipt of MSD Net Sales proceeds.
	 
	23.	 	The parties agree that BioVeris may cause to be conducted an MSD audit
focused solely upon the payments under Section 8.5.3 of the JVA and/or
Section 5 of the License Agreement, in order to verify the amount of
payments made by MSD to BioVeris under such agreements prior to the date
of such audit (“License Audit”), and adjustment shall be made thereafter
to reconcile any underpayments or overpayments to BioVeris disclosed by
such License Audit, provided that:






	 	(a)	 	such License Audit shall be conducted by an independent
certified public accounting firm reasonably acceptable to both
parties (the “Auditor”);






	 	i)	 	the parties agree that KPMG, Grant Thornton,
Reznick, Fedder & Silverman, and Aronson & Company
(collectively “Pre-Approved Auditors”) are independent
certified public accounting firms reasonably acceptable to
both parties;
	 
	 	ii)	 	BioVeris may engage, retain, consult with or
otherwise employ any of the Pre-Approved Auditors for purposes
of conducting a License Audit, if and only if prior to such
engagement, retention, consultation or employment, BioVeris
provides MSD with:






	 	(a)	 	written notice of the intent to
engage, retain, consult with or




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	 	 	 	otherwise employ the Pre-Approved Auditor;
	 
	 	(b)	 	a written representation that
BioVeris or its Affiliates (as defined in the JVA) have
not engaged, retained, consulted with or otherwise
employed such Pre-Approved Auditor within the preceding
eighteen (18) months;
	 
	 	(c)	 	a written representation that
BioVeris or its Affiliates (as defined in the JVA) shall
not engage, retain, consult with or otherwise employ
such Pre-Approved Auditor until at least six (6) months
following the completion of the License Audit for any
matter other than the License Audit; and
	 
	 	(d)	 	a written representation that
BioVeris or its Affiliates (as defined in the JVA) have
not had within the preceding eighteen (18) months and
shall not have until the completion of the License Audit
any negotiations, discussions, or communications
regarding a potential engagement of such Auditor by
BioVeris or any of its Affiliates (as defined in the
JVA) with respect to any matter other than the License
Audit; and






	 	iii)	 	within 10 business days of receiving the written
notices and representations set forth in (ii) above, MSD may
object in writing to the engagement, retention, consultation
or employment of any such identified Pre-Approved Auditors for
purposes of a given License Audit. If MSD timely objects,
such identified Pre-Approved Auditors shall not be deemed
reasonably acceptable to both parties as set forth in (i)
above; provided, however, that with respect to a License Audit
for any given fiscal year, MSD shall not object to more than
two of the Pre-Approved Auditors.






	 	(b)	 	such License Audit shall be conducted during regular business
hours at MSD’s offices so as not to interfere with MSD’s normal
business activities and upon reasonable written notice to MSD;
	 
	 	(c)	 	such License Audit shall be conducted by the Auditor in a
reasonable and efficient manner and shall be focused solely on
determining the appropriate amounts owed and payable to BioVeris
pursuant to Section 8.5.3 of the JVA and/or Section 5 of the License
Agreement for the period in question;
	 
	 	(d)	 	before any such License Audit is conducted, the Auditor shall
enter into a non-disclosure agreement reasonably acceptable to MSD
that protects the proprietary and confidential information of MSD
(including a restriction on disclosure of such information to
BioVeris) and states that the Auditor shall report to BioVeris only
the amount of any payment adjustment to be made;




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	 	(e)	 	the expenses related to any such License Audit will be paid
for by BioVeris, provided however, that if MSD has paid to BioVeris
less than seventy-five percent (75%) of the aggregate amount
determined as a result of the License Audit to be owed and payable
to BioVeris for the MSD fiscal year in question, then the reasonable
expenses related to the License Audit with respect to such specific
MSD fiscal year will be paid for by MSD; and
	 
	 	(f)	 	in no event shall License Audits be made more frequently than
once annually or, with respect to any specific MSD fiscal year, more
than one year after the report for such fiscal year has been
submitted.






	24.	 	The parties agree that: (i) the above-described License Audit process
shall be the exclusive remedy of the parties for resolving disputes as to
the appropriate amount of payments under Section 8.5.3 of the JVA and/or
Section 5 of the License Agreement; and (ii) the determination of the
Auditor for a given License Audit shall be final and binding on all
parties.
	 
	25.	 	The parties agree that the term “make, use and sell” in Paragraph 4.3.1
of the JVA; Paragraphs 2.1, 2.2, and 2.8 of the License Agreement and
Paragraphs 1.1 and 1.2 of the MSD/MST Sublicense Agreement dated November
30, 1995, as amended, is hereby amended to read “make, have made, use and
sell”. With respect to the License Agreement and the Sublicense
Agreement, the parties shall execute formal amendments in the form
attached hereto as exhibit J.
	 
	26.	 	Except as expressly provided for in this Agreement, BioVeris will bear
its own costs, expenses, and attorneys’ fees, whether taxable or
otherwise, incurred in or arising out of or in any way related to the
Actions or the Settlement.
	 
	27.	 	Except as expressly provided for in this Agreement, Defendants will bear
their own costs, expenses, and attorneys’ fees, whether taxable or
otherwise, incurred in or arising out of or in any way related to the
defense of the Actions or the negotiation of the Settlement;
provided however, that this Agreement shall not affect: (i)
the allocation of costs, expenses, and attorneys’ fees among the
Defendants; or (ii) any indemnification, reimbursement, advancement or
contribution rights among Defendants.
	 
	28.	 	Upon execution of this Agreement, the parties shall issue a joint press
release announcing the settlement in the form of exhibit K. After the
date of this Agreement, the Parties and their Affiliates (as defined in
the JVA) shall consult with each other before issuing, and provide each
other the opportunity to review and comment upon any press release or
other public statements with respect to or referring to the relationship
between the parties on or prior to the Completion Date, this Settlement,
this Agreement, or the Actions, and shall not issue any such press release
or make any such public statement prior to such consultation, except to
the extent required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
In




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	 	 	the event a party objects to any such press release or public statement
within two business days of being consulted, said press release or public
statement shall not be issued or made, except to the extent required by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange.
	 
	29.	 	In consideration of the foregoing commitments, and subject to the terms
and conditions of this Agreement, the parties agree, without limiting or
being limited by the foregoing, that: (i) all Claims against Defendants
or any of their Affiliates are hereby fully, finally and forever
compromised, extinguished, dismissed, discharged and released with
prejudice by BioVeris; and (ii) all Claims against BioVeris or any of its
Affiliates are hereby fully, finally and forever compromised,
extinguished, dismissed, discharged and released with prejudice by
Defendants (collectively, the “Settled Claims”).






	 	(a)	 	For purposes of paragraphs 29 and 30 of this Agreement,
“Affiliates” means parent entities, associates, affiliates or
subsidiaries, and each and all of their respective past, present or
future officers, directors, stockholders, representatives,
employees, attorneys, investment bankers, commercial bankers,
engineers, advisors or agents, heirs, executors, trustees, general
or limited partners or partnerships, personal representatives,
estates, administrators, predecessors, successors and assigns;
provided, however, that BioVeris, on the one hand, and
Defendants, on the other hand, shall not constitute Affiliates of
each other.
	 
	 	(b)	 	For purposes of this Agreement, “Claims” means all claims,
demands, rights, actions or causes of action, liabilities, damages,
losses, obligations, judgments, suits, matters and issues of any
kind or nature whatsoever, contingent or absolute, known or unknown,
suspected or unsuspected, matured or unmatured, asserted or
unasserted, alleged or unalleged, disclosed or undisclosed, material
or immaterial, including but not limited to those which have been,
or could have been, or in the future can or might be asserted in any
court, tribunal, arbitration or other proceeding (including, without
limitation, those arising under state law or federal law (including
federal securities law) or administrative law), in existence from
the beginning of time to the date of the execution of this
Agreement, including but not limited to those arising from or
relating to any acts, facts, transactions, matters or occurrences,
conduct, representations or omissions, allegations, or any series
thereof, involved, set forth or referred to in any way in the
Actions or arising out of the Actions, whether individual, class,
derivative, representative, legal, equitable or any other type or in
any other capacity; provided, however, that “Claims”
does not include the right of BioVeris and Defendants to enforce the
terms of this Agreement, the Settlement, and the parties’ respective
indemnity (except with respect to indemnity rights relating to known
costs, expenses and attorneys’ fees incurred in or arising out of or
in any way related to the defense of the Actions or the negotiation
of the Settlement), personal property, real property and
intellectual property rights.




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	30.	 	The parties shall not, directly or indirectly, or induce any third party
to, commence, prosecute, instigate or in any way participate in the
commencement, prosecution or instigation of any Settled Claims against
another party or their respective Affiliates.
	 
	31.	 	The releases contemplated by this Agreement extend to claims that any
person granting a release (the “Releasing Person”) does not know or
suspect to exist at the time of the release, which if known, might have
affected the Releasing Person’s decision to enter into this release. The
Releasing Person will be deemed to relinquish, to the extent it is
applicable, and to the full extent permitted by law, the provisions,
rights and benefits of §1542 of the California Civil Code. In addition,
the Releasing Person will be deemed to relinquish, to the extent they are
applicable, and to the full extent permitted by law, the provisions,
rights and benefits of any law of any state or territory of the United
States, federal law, or principle of common law, which is similar,
comparable or equivalent to §1542 of the California Civil Code. The
Releasing Person acknowledges that the Releasing Person may discover facts
in addition to or different from those now known or believed to be true
with respect to the Settled Claims, but that it is the intention of the
Releasing Person to hereby completely, fully, finally and forever
compromise, settle, release, discharge and extinguish any and all Settled
Claims known or unknown, suspected or unsuspected, which now exist, or
heretofore existed, or may hereafter exist, and without regard to the
subsequent discovery or existence of additional or different facts. The
Releasing Person warrants that the Releasing Person has read and
understands §1542 of the California Civil Code and has had the opportunity
to consult with and be advised by counsel regarding its meaning and
effect. The Releasing Person hereby voluntarily waives the provisions,
rights and benefits of §1542 of the California Civil Code and the
provisions, rights and benefits of any law of any state or territory of
the United States, federal law, or principle of common law, which is
similar, comparable or equivalent to §1542 of the California Civil Code.
	 
	32.	 	The parties: (i) have denied, and continue to deny, that any of them
have committed or have threatened to commit any violations of law or
breaches of duty to any other party or anyone else; and (ii) are entering
into the Settlement solely because it will eliminate the uncertainty,
distraction, burden and expense of further litigation.
	 
	33.	 	BioVeris represents and warrants that BioVeris is the only holder and
owner of the claims and causes of action asserted in the Actions, and that
none of BioVeris’s claims or causes of action referred to in any complaint
or amended complaint in the Actions or this Agreement have been assigned,
encumbered or in any manner transferred in whole or in part.
	 
	34.	 	This Agreement and the Settlement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to
Delaware’s principles governing choice of law. The parties agree that any
dispute arising out of or relating in any way to this Agreement or the
Settlement shall not be litigated or otherwise pursued in any forum




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	 	 	or venue other than the courts of Delaware, and the parties expressly
waive any right to demand a jury trial as to any such dispute.
	 
	35.	 	This Agreement may be modified or amended only by a writing, signed by
all of the signatories hereto, that refers specifically to this Agreement.
	 
	36.	 	The provisions contained in this Agreement shall not be deemed a
presumption, concession or admission by any Defendant of any fault,
liability or wrongdoing as to any facts or claims that have been or might
be alleged or asserted in the Actions, or any other action or proceeding,
and shall not be interpreted, construed, deemed, invoked, offered, or
received in evidence or otherwise used by any party in the Actions, or in
any other action or proceeding, whether civil, criminal or administrative,
for any purpose other than as provided expressly herein.
	 
	37.	 	This Agreement shall be binding upon and inure to the benefit of the
parties and their respective agents, executors, heirs, successors and
assigns.
	 
	38.	 	The parties acknowledge and agree that: (i) money damages would not be a
sufficient remedy for any breach of this Agreement and it would be
impracticable or extremely difficult to fix the amount of such harm; (ii)
a breach or default of this Agreement will result in irreparable harm to
the non-breaching party; and (iii) in the event of any breach or default
of this Agreement, the non-breaching party shall be entitled to all
remedies provided by law and equity (including without limitation an award
for damages, specific performance or injunctive relief) for any material
breach or to prevent any material breach of this Agreement. The parties
agree that paragraph 7 of this Agreement confers no rights enforceable in
a court or otherwise on any party (whether by way of an action for
equitable relief, money damages, or for any other relief) and that no
party shall contend that paragraph 7 limits in any way the future actions
of any party.
	 
	39.	 	In addition to the actions specifically provided for in this Agreement,
the parties will use their reasonable best efforts from the date hereof to
take, or cause to be taken, all actions, and to do, or cause to be done,
all things, reasonably necessary, proper or advisable under applicable
laws, regulations and agreements to consummate and make effective this
Agreement.
	 
	40.	 	The prevailing party in any action to enforce this Agreement shall be
entitled to recover, in addition to any other relief awarded, court costs
and reasonable attorney fees and costs incurred in connection with such
action.
	 
	41.	 	The waiver by any party of any breach of this Agreement will not be
deemed or construed as a waiver of any other breach of this Agreement,
whether prior, subsequent, or contemporaneous.
	 
	42.	 	Each party represents and warrants that the party, or a responsible
officer or partner or other fiduciary thereof, has read this Agreement and
understands the contents hereof.




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	43.	 	Each party represents and warrants that the party has made such
investigation of the facts pertaining to the Settlement provided for in
this Agreement, and of all of the matters pertaining thereto, as the party
deems necessary and advisable.
	 
	44.	 	Each term of this Agreement is contractual and not merely a recital.
	 
	45.	 	This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof, and supersedes all prior or
contemporaneous oral or written agreements, understandings or
representations. Unless expressly modified herein, the written agreements
between or among the parties, including without limitation, the JVA, the
MSD LLC Agreement and the License Agreement, shall remain in full force
and effect.
	 
	46.	 	This Agreement will be deemed to have been mutually prepared by the
parties and will not be construed against any of them by reason of
authorship.
	 
	47.	 	If any provision of this Agreement is held to be illegal, invalid, or
unenforceable (i) such provision will be fully severable, (ii) this
Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement, and
(iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
	 
	48.	 	This Agreement may be executed in any number of actual or telecopied
counterparts and by each of the different parties on several counterparts,
each of which when so executed and delivered will be an original. The
executed signature page(s) from each actual or telecopied counterpart may
be joined together and attached and will constitute one and the same
instrument.





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Ex. 10.36
Signature
Page


     IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of August 12, 2004.



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	/s/ Richard J. Massey, PhD
	/s/ Jacob N. Wohlstadter
	 
	Richard J. Massey, PhD	 	Jacob N. Wohlstadter	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	/s/ Jacob N. Wohlstadter
	 
	BioVeris Corporation	 	Meso Scale Technologies, LLC.	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	

	 	
 
	 	 	 	
 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	/s/ Jacob N. Wohlstadter
	 
	 	 	 	 	Meso Scale Diagnostics, LLC.	 	 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	By:	 	 	 	 
	

	 	 	 	 	 	
 	 	 






 


 


 


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