Exhibit 10.1


 


CONFIDENTIAL TREATMENT REQUESTED UNDER 17
C.F.R. §§ 200.80(b)4, AND 240.24b-2


 


MANUFACTURING, COMMERCIALIZATION AND


DEVELOPMENT AGREEMENT


 


THIS MANUFACTURING, COMMERCIALIZATION AND DEVELOPMENT
AGREEMENT (this “Agreement”) is entered into as of July 31,
2006 (the “Effective Date”) between ISIS PHARMACEUTICALS, INC., a Delaware
corporation, through its IBIS BIOSCIENCES division (“Ibis”), and BRUKER
DALTONICS INC., a Delaware corporation (“Bruker”).


 


BACKGROUND


 


Bruker
has expertise in manufacturing, promoting, supplying, installing and servicing
analytical instruments (including mass spectrometers). Ibis has invented and
created a system to identify infectious agents, a component of which is a mass
spectrometer, and wishes to commercialize this system, referred to herein as
the T5000 System. Bruker and Ibis wish to establish a strategic alliance under
which Ibis will commit to deploying T5000 Systems incorporating Bruker’s mass
spectrometer, Bruker will manufacture, promote, supply, install and service
T5000 Systems and the parties will use Bruker’s contacts with government and
non-government entities in Europe and the Middle East, as well as its global
infrastructure and expertise in processing systems and consumables orders and
supporting customers.


 


Accordingly,
during the Term, Bruker will be the exclusive supplier of mass spectrometers
for use in T5000 Systems and the exclusive manufacturer of T5000 Systems. In
addition, Bruker will be the exclusive promoter and supplier of T5000 Systems
(and consumables used to operate T5000 Systems) to government entities in
Europe and the Middle East. Bruker will also be a non-exclusive promoter and
supplier of T5000 Systems and consumables to non-government entities in Europe
and the Middle East and will support Ibis’ promotion efforts in North America. Bruker
will be entitled to buy consumables for T5000 Systems from Ibis at a discount
and resell such consumables to its customers.


 


Bruker
will be responsible for processing and fulfilling orders for T5000 Systems
originating from, and delivering T5000 Systems to, customers in North America,
Europe and the Middle East. Bruker will be responsible for hardware-related
issues (as described herein) originating in North America, Europe and the
Middle East, and will be the point-of-contact for consumables- and
software-related issues (as described herein) originating in Europe and the
Middle East. Ibis will be responsible for consumables- and software-related
issues originating in North America. The parties will also have certain
training and other responsibilities as set forth herein.


 


In
consideration of the foregoing premises, the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:


 

















 


ARTICLE 1



DEFINITIONS


 


1.1                               Definitions.
For purposes of this Agreement (including its exhibits and schedules),
capitalized terms used herein not otherwise defined herein will have the
meanings set forth on Exhibit A.


 


ARTICLE 2



TECHNOLOGY TRANSFER PERIOD


 


2.1                               Overview.
To fulfill the commercialization objectives of this Agreement, Ibis will
need to train Bruker on the Ibis Technology, including manufacture of the Ibis
Amplicon Desalting Module and operation of the Ibis Analytical Systems. In
addition, prior to the Technology Transfer Date, Ibis may receive indications
of interest to purchase or may negotiate the sale of T5000 Systems. Ibis will
have sole discretion whether to supply any such T5000 Systems. If Ibis decides
to supply any such T5000 Systems, it will be on the terms set forth in this
Article 2.


 


2.2                               Technology
Transfer Plan. The parties will establish a Technology Transfer Management
Committee that will manage and ensure the successful transfer of the Ibis
Technology to Bruker. The TMC will make decisions by unanimous vote and will be
comprised of an equal number of individuals from each party with the background
necessary to transfer the Ibis Technology as quickly as possible. In
particular, the TMC will: (a) prepare and approve a plan setting forth the
parties’ respective rights and responsibilities with respect to transferring
the Ibis Technology to Bruker (the “Technology Transfer Plan”) and (b) set a
date by which Bruker will assume full responsibility for the manufacture of
T5000 Systems (including the Ibis Amplicon Desalting Module) and its other
responsibilities as set forth herein, which date will be within 6 months of the
Effective Date (the “Technology Transfer Date”).


 


2.3                               Technology
Transfer Purchase Order Plan. The TMC will prepare and approve a plan
setting forth the parties’ respective rights and responsibilities with respect
to orders for T5000 Systems and Ibis Consumables received prior to the Technology
Transfer Date (the “Technology Transfer Purchase Order Plan”). The Technology
Transfer Purchase Order Plan will address, among other things: (a) processing
of orders (which will be by Bruker and in a similar manner as it processes
orders for its own comparable products), (b) terms and conditions related to
Bruker’s delivery of MicrOTOFs and Ibis delivery of Ibis Amplicon Desalting
Modules to the customer site and (c) responsibility for assembly and
Installation of, training on, and service and support for, T5000 Systems
(including transition of responsibility, if any).


 


2.4                               Responsibilities.
Each party will use commercially reasonable efforts in performing its
obligations under the Technology Transfer Plan and the Technology Transfer Purchase
Order Plan. Without limiting the foregoing, (a) the parties will cooperate and
provide the data and assistance reasonably necessary to enable Bruker to assume
full responsibility for the manufacture of T5000 Systems by the Technology
Transfer Date,
(b) Ibis will provide Bruker with access to a full technical data package for
T5000 Systems, including drawings


 


2

















 


prepared by Omnica Corporation related to T5000 Systems, and (c) Ibis
will authorize the Omnica Corporation to sell the equipment related to the
T5000 to Bruker under the same terms and pricing provided to Ibis.


 


2.5                               Costs
and Expenses; Revenue Sharing. Each party will bear its own costs
(including those related to labor, materials and other expenses) associated
with performing under the Technology Transfer Plan and the Technology Transfer Purchase
Order Plan. System Revenues generated from the sale of any such T5000 Systems
will be subject to the revenue sharing provisions set forth in Section 5.2.


 


2.6                               Term.
The TMC will complete all of its tasks under this Article 2 prior to the Technology
Transfer Date.


 


ARTICLE 3



RIGHTS AND RESPONSIBILITIES;
COMMERCIALIZATION PLAN


 


3.1                               Rights.
Subject to the terms and conditions of this Agreement (including Section 3.3,
3.4, 3.5, 11.2 and 11.3), for the Term Ibis hereby appoints Bruker as, and
Bruker hereby accepts appointment as:


 


3.1.1                     As of the
Effective Date, exclusive supplier of mass spectrometers for use in T5000
Systems.


 


3.1.2                     As of the
Technology Transfer Date, exclusive manufacturer of T5000 Systems for all uses,
except IVD Use, throughout the world.


 


3.1.3                     As of the
Effective Date, exclusive promoter, seller/reseller and supplier of T5000
Systems and Ibis Consumables for Government Use in the countries comprising the
European/Middle East Territory.


 


3.1.4                     As of the Effective Date,
non-exclusive promoter, seller/reseller and supplier of T5000 Systems and Ibis
Consumables for Other Use by End Users located in the European/Middle East
Territory.


 


For clarification, Bruker will not have any rights to manufacture,
promote, sell/resell or supply T5000 Systems or Ibis Consumables nor any
responsibility to install and service any T5000 Systems, for any IVD Use.


 


3.2                               Commercialization
Plan.


 


3.2.1                     Overview. To
implement the general framework set forth in this Agreement, the parties must
define the specifics of each party’s rights and responsibilities with respect
to the various tasks contemplated herein. Exhibit B sets forth the scope
of each party’s responsibilities, specific responsibilities of each party and
topics that need to be addressed by the parties.


 


3.2.2                     Commercialization
Plan. Subject to the provisions described under


 


3

















 


“Scope of Responsibilities” and “Specific Responsibilities” in Exhibit
B, the parties will, prior to the Technology Transfer Date, mutually agree on a
more detailed commercialization plan (the “Commercialization Plan”) that is
consistent with the overall intent of this Agreement and the scope and specific
responsibilities set forth under “Scope of Responsibilities” and “Specific
Responsibilities” in Exhibit B and that addresses the items described under “Topics
to Address” in Exhibit B and such other items that are consistent with the
foregoing.


 


3.2.3                     Responsibilities.
Each party will use commercially reasonable efforts in performing its
obligations under the Commercialization Plan.


 


3.2.4                     Costs and
Expenses. Each party will bear its own costs (including those related to
labor, materials and other expenses) associated with performing under the
Commercialization Plan.


 


3.2.5                     Conflicts. For
clarification, in the event of any inconsistency between this Agreement and the
Commercialization Plan, the terms and conditions of this Agreement will govern
and control.


 


3.3                               Existing
Agreements; U.S. Government; Internal Use. Section 3.1 and anything in the
Commercialization Plan to the contrary notwithstanding, Ibis retains the right
to manufacture, promote, sell and supply, as well as process and fulfill orders
for and deliver and Install, T5000 Systems (with or without additional
components) (a) pursuant to any agreement initially entered into prior to the
Effective Date, (b) to the U.S. Government (or any contractor or subcontractor
thereof) pursuant to any agreement (including grants and subcontracts) (i)
initially entered into prior to the Effective Date, (ii) that result from
proposals or similar submissions submitted by Ibis prior to the Effective Date
or (iii) that do not permit Ibis to subcontract with Bruker or (c) for the
internal use of Ibis and its Affiliates; provided, however, that Ibis
has the option to require Bruker to manufacture, promote and sell, process and
fulfill orders for, supply, deliver, Install, provide training on, service and
support and provide Updates for such T5000 Systems on the terms and conditions
set forth herein. In the event Ibis exercises such option, Ibis will direct the
relevant party to submit an order directly to Bruker.


 


3.4                               Territorial
Limitation. Section 3.1 notwithstanding, Bruker will not promote, sell,
supply, deliver or Install (or cause to be promoted, sold, supplied, delivered
or Installed) any T5000 System or Ibis Consumables outside the North American
Territory and the European/Middle East Territory except in compliance with
Section 3.5. If Bruker receives an indication of interest or order from a
prospective purchaser for T5000 Systems or Ibis Consumables that would require
supplying, delivering or Installing T5000 Systems or Ibis Consumables, as
applicable, in a location outside the North American Territory or the
European/Middle East Territory, Bruker will immediately inform Ibis and,
subject to Section 3.5, the Ibis President and a vice president- or
president-level officer of Bruker will consider the potential transaction.


 


3.5                               Expansion
of Rights and Responsibilities. In the event either party wishes to expand
the scope of Bruker’s rights set forth in Section 3.1 (and correlative
obligations) or alter, expand or reduce the scope and specific responsibilities
set forth under “Scope of Responsibilities” or “Specific Responsibilities” in
Exhibit B, the Ibis President and a vice


 


4

















 


president- or president-level officer of Bruker will discuss such
expansion in good faith and any agreed upon expansion will be mutually agreed
to in writing.


 


ARTICLE 4



MICROTOFS AND MICROTOF PARTS


 


4.1                               Supply.


 


4.1.1                     In the event Ibis exercises its
right under Section 3.3 to manufacture, promote, sell and supply T5000 Systems,
Bruker will supply, deliver and sell to Ibis such quantities of MicrOTOFs for
integration into such T5000 Systems as set forth in Ibis’ purchase orders,
pursuant to the pricing in Section 5.6. Such purchase orders will set forth the
quantity and the desired delivery date and will otherwise be governed by
Exhibit D (other than with respect to the warranty relating to such MicrOTOFs,
which will be governed by Section 4.2).


 


4.1.2                     During the Term, the Transition
Term and for [***] years following the end of the Transition Term, in the event
Ibis desires to service and support T5000 Systems (including any predecessor or
similar systems that incorporate a MicrOTOF) supplied, delivered and/or
installed by Ibis prior to the Effective Date or supplied, delivered and/or
installed by Ibis after the Effective Date pursuant to its exercise of its
rights under Section 3.3 and requires parts that Bruker commonly sells (“Part(s)”),
Bruker will supply, deliver and sell to Ibis or its customers such kind and
quantity of Parts for use in servicing and supporting such T5000 Systems or
systems as set forth in Ibis’ purchase orders, pursuant to the pricing in
Section 5.6. Such purchase orders will set forth the quantity and the desired
delivery date and will otherwise be governed by Exhibit D (other than with
respect to the warranty relating to such Parts, which will be governed by
Section 4.2).


 


4.2                               Warranty.


 


4.2.1                     Bruker
will service and support the MicrOTOF integrated into each T5000 System
described in Section 4.1.1 pursuant to the warranty accompanying such MicrOTOF.
Anything in such warranty to the contrary notwithstanding, such warranty will (a)
inure to the benefit of and be valid and enforceable by Ibis and/or the end
user of each T5000 System described in Section 4.1.1 and (b) the warranty
period will be for a period of [***] year beginning upon demonstration by
Bruker that the MicrOTOF complies with its specification, but in any event not
more than (i) [***] months after delivery to such end user or (ii) [***] months
after delivery to Ibis.


 


4.2.2                     Bruker
will service and support the Parts supplied pursuant to Section 4.1.2 pursuant
to the warranty accompanying such Parts (the “Parts Warranty”). Anything in the
Parts Warranty to the contrary notwithstanding, the Parts Warranty will (a)
inure to the benefit of and be valid and enforceable by Ibis and/or the end
user of each T5000 System described in Section 4.1.2and (b) the warranty period
will be for a period of [***] year beginning upon demonstration by Bruker that
the applicable Part complies with its specification, but in any event not more
than (i) [***] months after delivery to such end user or (ii) [***] months
after delivery to Ibis.


 


5

















 


4.3                               Terms
of Purchase and Sale. The parties will prepare and approve a plan setting
forth the parties’ respective rights and responsibilities with respect to
supplying and delivering MicrOTOFs and Parts (the “MicrOTOF Delivery Plan”). The
MicrOTOF Delivery Plan will address, among other things: (a) lead-time required
by Bruker for timely delivery of MicrOTOFs and Parts, (b) terms of delivery of
MicrOTOFs and Parts (including packing, transportation and insurance requirements
as set forth in Exhibit D) and (c) other specific obligations and undertakings
of each party related to the foregoing.


 


ARTICLE 5



REVENUE SHARING; PRICING; PAYMENT


 


5.1                               Bruker
Negotiated Sales of T5000 Systems. With respect to each sale of a T5000
System the price of which is negotiated by Bruker and for which (a) Bruker
sells, delivers and Installs, trains End Users on, services and supports and
provides Updates for such T5000 System (all as contemplated by the
Commercialization Plan) and (b) Ibis fulfills its obligations as contemplated
by the Commercialization Plan with respect to such T5000 System, Bruker will
pay Ibis amounts based on the following percentages of System Revenues (subject
to the following minimums), which amounts will be cumulative and in addition to
any other payments to be made to Ibis under this Agreement:


 


5.1.1                     [***]% of
System Revenues for such T5000 System, but in no event less than $[***] per
such T5000 System (unless specifically authorized in writing by the Ibis President
for any particular End User); plus


 


5.1.2                     [***]% of
System Revenues for such T5000 System, but in no event less than $[***] per
such T5000 System, if Ibis supplies and delivers the Ibis Amplicon Desalting
Module; plus


 


5.1.3                     [***]% of
System Revenues for such T5000 System, but in no event less than $[***] per
such T5000 System, if Ibis services and supports the Ibis Amplicon Desalting
Module.


 


For
clarification, for purposes of Section 5.1(b), Ibis’ obligations under the
Commercialization Plan are not specific to particular sales or deployments of
T5000 Systems, but rather require Ibis to provide Bruker generally with the Ibis
Analytical Systems that will be integrated with each particular sale and
deployment of a T5000 System.


 


5.2                               Ibis
Negotiated Sales of T5000 Systems. With respect to each sale of a T5000
System (a) the price of which is negotiated by Ibis or an Ibis Partner and for
which (i) Bruker sells, delivers and Installs, trains End Users on, services
and supports and provides Updates for such T5000 System (all as contemplated by
the Commercialization Plan) and (ii) Ibis fulfills its obligations under the
Commercialization Plan with respect to such T5000 System or (b) under the
Technology Transfer Purchase Order Plan, Bruker is entitled to retain the
applicable percentage of System Revenues set forth below (subject to the applicable
minimum set forth below) and Bruker will pay Ibis any remaining amount
resulting from such sale, which amounts will be in addition to any other
payments to be made to Ibis under this Agreement:


 


6

















 


5.2.1                     If Ibis
did not supply and deliver the Ibis Amplicon Desalting Module and is not
servicing and supporting the Ibis Amplicon Desalting Module, [***]% of System
Revenues for such T5000 System, but in no event less than $[***] per such T5000
System (unless specifically authorized in writing by Bruker by an authorized
officer for any particular End User); or


 


5.2.2                     If Ibis
did supply and deliver the Ibis Amplicon Desalting Module but is not servicing
and supporting the Ibis Amplicon Desalting Module, [***]% of System Revenues
for such T5000 System, but in no event less than $[***] per such T5000 System
(unless specifically authorized in writing by Bruker by an authorized officer for
any particular End User); or


 


5.2.3                     If Ibis did supply and deliver the
Ibis Amplicon Desalting Module and is servicing and supporting the Ibis
Amplicon Desalting Module, [***]% of System Revenues for such T5000 System, but
in no event less than $[***] per such T5000 System (unless specifically
authorized in writing by Bruker by an authorized officer for any particular End
User).


 


For
clarification, for purposes of Section 5.2(a)(ii), Ibis’ obligations under the
Commercialization Plan are not specific to particular sales or deployments of
T5000 Systems, but rather require Ibis to provide Bruker generally with the Ibis
Analytical Systems that will be integrated with each particular sale and
deployment of a T5000 System.


 


5.3                               Ibis
Sales of T5000 Systems (Other than Full Bruker Participation). For each
sale of a T5000 System the price of which is negotiated by Ibis or an Ibis
Partner but not covered by Section 5.2 (that is, Bruker does not perform all of
the tasks assumable by Bruker as set forth in the Commercialization Plan), Ibis
and Bruker, in accordance with Section 15.10, will determine an equitable
allocation of System Revenues based on obligations assumed by Ibis (either
directly or through a Third Party, including an Ibis Partner).


 


5.4                               Bruker
Purchase of Ibis Consumables. Solely in connection with satisfying its
obligations under the Commercialization Plan, beginning on the Effective Date
Bruker may purchase, and Ibis will sell, Ibis Consumables at [***]% of Ibis’
then current list price for such Ibis Consumables in the United States.
However, if Ibis discounts particular Ibis Consumables by more than [***]% from
its current list price in the United States for purchases of the same or
similar Ibis Consumables in the same or similar volume, then Bruker may
purchase, and Ibis will sell, Ibis Consumables at [***]% of Ibis average selling
price in the United States for purchases of the same or similar Ibis
Consumables in the same or similar volume. Notwithstanding the foregoing, the
parties understand and agree that Ibis may, from time to time, provide
discounted Ibis Consumables to customers who will be supplying data to Ibis for
marketing, regulatory or other valuable purposes or in connection with a
significant relationship. Such discounted Ibis Consumables will not be included
in calculating such average price; provided, however, that in any case
not more than [***]% of Ibis Consumables sales will be excluded from the
calculation of such average price.


 


5.5                               Extended
Warranty. (a) For each Extended Warranty sold to an End User located in the
North American Territory, Bruker will pay Ibis [***]% of Extended Warranty
Revenues (provided Ibis fulfills its obligations under the Commercialization
Plan with respect to


 


7

















 


providing Bruker with Renewal Updates), but in no event less than
$[***] for each year of coverage under such Extended Warranty (unless
specifically authorized in writing by the Ibis President for any particular End
User or any particular defined business incentive) and (b) for each Extended
Warranty sold to an End User located outside the North American Territory,
Bruker will pay Ibis [***]% of Extended Warranty Revenues (provided Ibis
fulfills its obligations under the Commercialization Plan with respect to
providing Bruker with Renewal Updates), but in no event less than $[***] for
each year of coverage under such Extended Warranty (unless specifically
authorized in writing by the Ibis President for any particular End User or any
particular defined business incentive). Bruker acknowledges and agrees that
these payments are tied to each Extended Warranty sold to an End User for each
T5000 System purchased by such End User for each year of coverage under such
Extended Warranty. For clarification, (c) for purposes of Section 5.5(a), Ibis’
obligations under the Commercialization Plan with respect to providing Bruker
with Renewal Updates are not specific to particular sales of Extended
Warranties, but rather require Ibis to provide Bruker generally with Renewal
Updates that will be integrated with each particular sale of an Extended Warranty
and (d) Bruker has no obligation to compensate Ibis for providing Renewal
Updates other than as set forth in Section 5.5(a) and (b).


 


5.6                               MicrOTOFs;
Parts. Bruker will sell MicrOTOFs to Ibis pursuant to Section 4.1.1 at a
fixed price of $[***] per MicrOTOF and, during the Term, the Transition Term
and for [***] years following the end of the Transition Term, will sell Parts
to Ibis pursuant to Section 4.1.2 at [***]% of Bruker’s then-current list price
for such Parts in the United States.


 


5.7                               Payment
Terms.


 


5.7.1                     All
payments by Bruker under Section 5.1, 5.2, 5.3 and 5.5 will be calculated based
on System Revenues and Extended Warranty Revenues, as applicable. Ibis’ share
of System Revenues  are due and payable
within 30 days of the end of the calendar month in which the initial
Installation is complete. Ibis’ share of Extended Warranty Revenues are due and
payable within 30 days of the end of the each calendar month in which Bruker
receives payment.


 


5.7.2                     All
payments by Bruker under Section 5.4 (for Ibis Consumables) and all payments by
Ibis under Section 5.6 (for MicrOTOFs and Parts) are due and payable within [***]
days of the invoice date.


 


5.7.3                     All
payments hereunder will be by check or wire transfer to a bank account
designated by the party to whom such payment is due pursuant to instructions
provided by such party.


 


5.7.4                     All
payments hereunder and System Revenues calculations and Extended Warranty
Revenues calculations will be reflected in United States dollars. If any
currency conversion is required to reflect System Revenues or Extended Warranty
Revenues in United States dollars, such conversion will be made by using the
average of the exchange rates for the purchase and sale of United States
dollars as published in The Wall Street
Journal, Eastern Edition, on the last business day of the calendar
month to which a payment relates.


 


8

















 


5.7.5                     Any
payments under this Agreement that are not paid when due will bear interest to
the extent permitted by applicable law at the prime rate as reported by the
Bank of America, New York, New York, on the date such payment is due, plus an
additional 12% simple interest per annum, calculated on the number of days such
payment is delinquent and a 365 day year; provided, however, that in no
event will such rate exceed the maximum legal interest rate allowed by law. The
party from whom the payment is due will pay all costs and expenses incurred by
the party to whom payment is due in collecting delinquent amounts (including
late charges), including attorneys’ fees and costs. The party to whom the
payment is due may accept partial payment by the party from whom the payment is
due, which will not constitute a waiver of the right of the party to whom the
payment is due to collect the balance. This Section 5.7.5 will in no way limit
any other remedies available to any party.


 


5.8                               Reports.
Each payment under Section 5.1, 5.2 and 5.5 will be accompanied by a report
of System Revenues and Extended Warranty Revenues during the calendar month
related to such payment. Such report will be in sufficient detail so as to
permit confirmation of the accuracy of payments made, including (as applicable)
amounts invoiced/purchase orders received, initial Installations completed, gross
receipts, applicable deductions, the applicable percentage applied and the
aggregate payment due to Ibis for such calendar month.


 


5.9                               Taxes.
The party making payment hereunder will pay any and all taxes levied on
account of such payment. If laws or regulations require that taxes be withheld,
the party making such payment will (a) timely pay the taxes to the proper
taxing authority, and (b) send proof of payment to the party receiving such
payment and certify its receipt by the tax authorities within 60 days following
that payment.


 


5.10                        Records;
Audits.


 


5.10.1              Records. Bruker
will keep, and will require its Affiliates to keep, complete, true and accurate
books and records (a) pertaining to the sale or other disposition of T5000
Systems, Ibis Consumables and Extended Warranties in sufficient detail to
permit confirmation of the accuracy of all payments due hereunder and (b) of
Systems Revenues and Extended Warranty Revenues in accordance with United
States generally accepted accounting principles in sufficient detail to permit
confirmation of the accuracy of all payments due hereunder. Bruker will keep
such books and records for at least three years following the end of the
calendar year to which they pertain.


 


5.10.2              Audit. Upon the
written request of Ibis and not more than once in any 12-month period, Bruker
will, and will require its Affiliates to, permit an independent certified
public accounting firm of nationally recognized standing selected by Ibis to
have access during normal business hours to such books and records of Bruker
and its Affiliates as may be reasonably necessary to verify the accuracy of the
reports under Section 5.8. The accounting firm will disclose to Ibis only
whether the royalty reports are correct or incorrect and the specific details
concerning any discrepancies. No other information will be provided to Ibis. If
such accounting firm identifies a discrepancy made during such period, Bruker
will pay Ibis the amount of the discrepancy within 30 days of the date that the
Ibis delivers to Bruker such accounting firm’s written report so concluding, or
as otherwise agreed upon by the parties. The fees charged by such accounting
firm will be paid by Ibis; provided, however, that if an audit


 


9

















 


uncovers an underpayment of amounts due by Bruker under this Article 5
by more than 5% then (a) the fees of such accounting firm will be paid by
Bruker and (b) such audit will not count as an audit for purposes of the
frequency by which Ibis may audit Bruker’s records under this Section 5.10.2.


 


5.10.3              Confidential
Information. All financial information subject to review under this Section
5.10 will be treated as Confidential Information of Bruker and Ibis will cause
its accounting firm to enter into an acceptable confidentiality agreement with
Bruker obligating it to retain all such information in confidence (subject to
reasonable exceptions).


 


ARTICLE 6



TRADEMARKS


 


6.1                               Trademark
Use.


 


6.1.1                     Ibis’ Marks. Subject
to the terms and conditions of this Agreement and during the Term and the
Transition Term, Ibis hereby grants Bruker a non-exclusive, non-transferable,
royalty-free limited license to use Ibis’ Marks in the North American Territory
and the European/Middle East Territory solely in connection with the performance
of its obligations under the Commercialization Plan. Ibis grants no rights
other than those expressly granted hereunder, and Bruker hereby agrees to and
recognizes Ibis’ exclusive ownership of Ibis’ Marks. Any use of Ibis’ Marks
will be in conformity with the trademark policy and other written instructions
of Ibis.


 


6.1.2                     Bruker Marks.
Subject to the terms and conditions of this Agreement, during the Term and
the Transition Term, Bruker hereby grants Ibis a non-exclusive,
non-transferable, royalty-free limited license to use Bruker’s Marks solely in
connection with the performance of its obligations under the Commercialization
Plan. Bruker grants no rights other than those expressly granted hereunder, and
Ibis hereby agrees to and recognizes Bruker’s exclusive ownership of Bruker’s
Marks. Any use of Bruker’s Marks will be in conformity with the trademark
policy and other written instructions of Bruker.


 


6.2                               Maintenance
of Marks. Each party will use the other party’s Marks in compliance with
all applicable laws, rules and regulations and in a manner that reflects
favorably upon and preserves the integrity of such other party’s Marks. Each
party agrees not to (a) adopt or use any trademarks, brand names, words, logos,
symbols, letters, designs or marks that would be confusingly similar to the
other party’s Marks, (b) modify any of the other party’s Marks in any way, (c)
use any of the other party’s Marks on or in connection with any goods or
services other than the T5000 Systems or (d) take any other action that could
diminish the value of the other party’s Marks or damage the goodwill and/or
reputation for quality associated with such other party’s Marks. Any goodwill
arising out of the use by a party of the other party’s Marks hereunder will
inure to the benefit of the owner thereof. Each party agrees to provide the
other party with a sample of all proposed marketing materials and any other
materials utilizing the other party’s Marks at least 30 days prior to use
thereof.


 


10

















 


ARTICLE 7



CONFIDENTIALITY


 


7.1                               Confidentiality.
Each party agrees during the Term, the Transition Term and for a period of four
years after the end of the Transition Term that it will protect and hold the
other party’s Confidential Information in trust and confidence, that it will
not use such Confidential Information in any manner or for any purpose not
expressly set forth in this Agreement, and will not disclose any such
Confidential Information to any Third Party without first obtaining the other
party’s express written consent on a case-by-case basis. A party may disclose
Confidential Information of the other party to its own employees, consultants,
agents and contractors (and only such employees, consultants, agents and
contractors) having a “need to know” in connection with such party’s proper
performance hereunder.


 


7.2                               Exceptions.
Confidential Information of a disclosing party will not include information
which the receiving party can demonstrate by competent written proof: (a) is now,
or hereafter becomes, through no act or failure to act on the part of the
receiving party, generally known or available, (b) is known by the receiving
party at the time of receiving such information, as evidenced by its written
records, (c) is hereafter furnished to the receiving party by a Third Party, as
a matter of right and without restriction on disclosure or (d) is independently
developed by the receiving party without the use of or reference to the
disclosing party’s Confidential Information.


 


7.3                               Authorized
Disclosure. Each party may disclose Confidential Information belonging to
the other party to the extent such disclosure is reasonably necessary in the
following instances: (a) complying with applicable court orders or governmental
regulations and (b) disclosure to Affiliates, consultants, agents or other
Third Parties in connection with due diligence or similar investigations by
such parties, provided that any such person or entity agrees in writing to be
bound by terms of confidentiality and non-use comparable in scope to those set
forth in this Article 7. Notwithstanding the foregoing, in the event a party is
required to make a disclosure of the other party’s Confidential Information
pursuant to Section 7.3(a), it will, except where impracticable, give
reasonable advance notice to the other party of such disclosure and cooperate
with the other party’s efforts to secure confidential treatment of such
information.


 


7.4                               Return
of Confidential Information. After termination or expiration of this Agreement,
upon request, each party will return to the other party, or destroy, within 30
days of such request all Confidential Information received from the other
party.


 


7.5                               Remedies.
In the event of any breach of this Article 7 by the receiving party, including,
without limitation, the actual or threatened disclosure or unauthorized use of
the disclosing party’s Confidential Information without the prior express
written consent of the disclosing party, the parties agree that the disclosing
party would suffer an irreparable injury such that no remedy at law would
adequately protect or appropriately compensate the disclosing party for such
injury. Accordingly, the receiving party agrees that the disclosing party will
have the right to enforce this Article 7 and any of its provisions by
injunction, specific performance or other equitable relief, without bond and
without prejudice to any other rights and remedies that the disclosing party
may have for a breach of this Agreement.


 


11

















 


7.6                               Public
Announcements. All publicity, press releases and other announcements
relating to this Agreement will be reviewed in advance by, and subject to the
approval of, both parties (which approval will not be unreasonably withheld); provided,
however, that upon full execution of this Agreement either party may issue the
press release set forth in Exhibit C; provided, further, that
either party may disclose the terms of this Agreement insofar as required to
comply with applicable securities laws.


 


ARTICLE 8



INTELLECTUAL PROPERTY


 


8.1                               Ownership
of Inventions. Except as otherwise set forth herein, ownership of any
Invention will track inventorship, and the inventorship of any Invention will
be determined in accordance with United States laws of inventorship. If any
Invention is not patentable, inventorship will be determined as if it were
patentable.


 


8.2                               License
to Ibis Technology Improvements. To the extent that any Improvements to the
Ibis Technology are made by employees or agents of Bruker or its Affiliates
that Bruker controls, Bruker hereby grants to Ibis a non-exclusive, fully-paid,
royalty-free, worldwide, sublicensable and transferable, irrevocable and
perpetual license under all right title and interest to exploit such Improvements
for any purpose whatsoever (including commercial activities). For purposes of
clarification, the foregoing license includes the right to (directly or through
a third party) make, use, offer to sell, sell, import, reproduce, prepare
derivative works, distribute copies, perform and/or display.


 


8.3                               License
to MicrOTOF Technology Improvements. To the extent that any Improvements to
the MicrOTOF Technology are made by employees or agents of Ibis or its
Affiliates that Ibis controls, Ibis hereby grants to Bruker a non-exclusive,
fully-paid, royalty-free, worldwide, sublicensable and transferable,
irrevocable and perpetual license under all right title and interest to exploit
such Improvements for any purpose whatsoever (including commercial activities).
For purposes of clarification, the foregoing license includes the right to
(directly or through a third party) make, use, offer to sell, sell, import,
reproduce, prepare derivative works, distribute copies, perform and/or display.


 


8.4                               Pursuit
of Joint Intellectual Property Rights. With respect to Inventions jointly
conceived as a result of performing under this Agreement (“Joint Inventions”),
the parties will negotiate in good faith regarding which party will be
responsible for preparing, filing and prosecuting any patent applications or
other appropriate filings and maintaining, enforcing and defending any patents,
copyrights or other similar rights issued thereon (including the allocation of
costs and awards related thereto).


 


8.5                               Infringement
by Third Parties. Each party will promptly notify the other in writing of
any alleged or threatened infringement of any MicrOTOF Technology or Ibis
Technology of which such party becomes aware. Both parties will use
commercially reasonable efforts in cooperating with each other to terminate
such infringement without litigation, if appropriate. Other than any action or
proceeding with respect to infringement of solely MicrOTOF Technology (which
Bruker will have the sole right to bring and control at its own


 


12

















 


expense and by counsel of its own choice; provided, however, that with respect to infringement of any
MicrOTOF Technology that is likely to have a material and adverse effect on any
T5000 System being developed or commercialized pursuant to this Agreement, Ibis
will have the right to receive appropriate information relating to such action
and to provide input to Bruker), Ibis will have the sole right to bring and
control any action or proceeding with respect to infringement of T5000 Systems
or Ibis Consumables at its own expense and by counsel of its own choice.


 


8.6                               Infringement
of Third Party Rights. Each party will promptly notify the other in writing
of any allegation by a Third Party that the MicrOTOF Technology, the Ibis
Technology, T5000 Systems, Ibis Consumables or the activity of either of the
parties pursuant to this Agreement infringes or may infringe the intellectual
property rights of such Third Party. Other than any such claim involving
alleged infringement of Third Party rights solely by MicrOTOF Technology (which
Bruker will have the sole right to control any defense of at its own expense
and by counsel of its own choice; provided, however, that with respect to infringement of any
MicrOTOF Technology that is likely to have a material and adverse effect on any
T5000 System being developed or commercialized pursuant to this Agreement, Ibis
will have the right to receive appropriate information relating to such action
and to provide input to Bruker), Ibis will have the sole right to control the
defense of any such claim involving alleged infringement of Third Party rights
by T5000 Systems, Ibis Consumables or the activity of either of the parties
pursuant to this Agreement.


 


8.7                               Limited
Rights; No Challenge. Neither party will have the right to acquire any
rights in or is entitled to use, sell, copy, license or otherwise exploit the
other party’s Intellectual Property Rights other than as expressly set forth
herein. Under no circumstances will either party challenge or assist a Third
Party to challenge the other party’s rights in MicrOTOF Technology or Ibis
Technology.


 


ARTICLE 9



REPRESENTATIONS AND WARRANTIES; DISCLAIMER


 


9.1                               Mutual
Representations and Warranties. Each party represents and warrants to the
other party that (a) such party is duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its establishment or
incorporation, (b) such party has taken all action necessary to authorize it to
enter into this Agreement and perform its obligations under this Agreement, (c)
this Agreement will constitute the legal, valid and binding obligation of such
party, (d) neither the execution of this Agreement nor the performance of such
party’s obligations hereunder will conflict with, result in a breach of, or
constitute a default under any provision of the organizational documents of
such party, or of any law, rule, regulation, authorization or approval of any
government entity, or of any agreement to which it is a party or by which it is
bound and (e) it has and will maintain all government permits, including
without limitation health, safety and environmental permits, necessary for the
conduct of the actions and procedures that it undertakes pursuant to this
Agreement.


 


9.2                               Disclaimer.
Except as expressly set forth herein, EACH PARTY EXPRESSLY DISCLAIMS ANY
AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,


 


13

















 


INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THE INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
PRACTICES.


 


9.3                               Limitation
of Liability. EXCEPT FOR LIABILITY FOR BREACH OF ARTICLE 7, NEITHER PARTY
SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS
AGREEMENT; PROVIDED, HOWEVER, THAT THIS SECTION 9.3 SHALL NOT BE
CONSTRUED TO LIMIT EITHER PARTY’S INDEMNIFICATION RIGHTS OR OBLIGATIONS UNDER
ARTICLE 12. THE PARTIES AGREE THAT PAYMENTS ACCRUED AND PAYABLE UNDER ARTICLE
5, TO THE EXTENT NOT PAID AS AND WHEN REQUIRED PURSUANT TO THIS AGREEMENT, ARE
DIRECT DAMAGES (NOT INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE).


 


ARTICLE 10



CERTAIN COVENANTS


 


10.1                        Non-Solicitation.
During the Term, the Transition Term and for [***] following the end of the
Transition Term, neither party nor any of its Affiliates will solicit or seek
to employ any person who is an employee of the other party or its Affiliates as
of the Effective Date or becomes an employee of the other party or its
Affiliates during the Term or the Transition Term; provided, however,
that the foregoing provision will not prevent either party or its Affiliates from
hiring employees of the other party or its Affiliates who respond to general
employment advertising or similar public solicitations or employing any such
person who contacts such party or its Affiliates on his or her own initiative
without any direct or indirect solicitation by or encouragement from such party
or its Affiliates.


 


10.2                        Non-Compete.
During the Term and the Transition Term, neither Bruker nor any of its
Affiliates will (whether internally or in active collaboration with any Third
Party(ies)), develop, manufacture, promote, sell or supply any complete system
that is designed to perform electrospray ionization orthogonal-TOF analysis of
PCR products substantially as a T5000 System without the express written
consent of Ibis; provided, however, that Bruker has no restriction
whatsoever in developing, selling and servicing its general purpose
electrospray orthogonal-TOF mass spectrometer to any customer.


 


10.3                        Exclusive
Source. During the Term, the Transition Term and for two years following
the end of the Transition Term, neither Bruker nor any of its Affiliates will
directly or indirectly sell any (a) primers and related reagent solutions or
(b) analysis software or databases for use with the T5000 System other than
those purchased from Ibis.


 


10.4                        Treatment
of End Users. In terms of priority in internal processes and/or in terms of
customer support and service, each party will treat all End Users equally and
will not favor any particular End User over another. For clarification, this
Section 10.4 will not prevent


 


14

















 


either party from providing quantity discounts, preferred T5000 Systems
pricing or other similar arrangements to End Users.


 


10.5                        Assurances.
Neither party will structure transactions with Third Parties in an attempt
to avoid payment obligations to the other party. For clarification, neither
party will offer Third Parties terms that encourage such Third Party to
purchase T5000 Systems or Ibis Consumables at reduced prices in exchange for
consideration that does not ratably benefit both parties as set forth herein. Such
terms include financial and non-financial terms, including incentives,
discounts, rebates, perquisites, extended warranties (whether in scope,
duration or otherwise), enhanced service, more favorable return policies and
most favored pricing.


 


ARTICLE 11



TERM AND TERMINATION


 


11.1                        Term.
Unless earlier terminated pursuant to this Article 11 and subject to Sections
11.2 and 11.3, the term of this Agreement will commence on the Effective Date
and continue until the fourth anniversary of the Effective Date (the “Initial
Term”). After the Initial Term, this Agreement will automatically renew for
additional [***] year periods (the “Extension Terms”) unless either party gives
written notice of termination at least [***] months prior to the expiration of
the Initial Term or of one of the Extension Terms. The foregoing
notwithstanding, Bruker and Ibis each will continue to satisfy its obligations
under each Extended Warranty (as set forth in the Commercialization Plan) until
the expiration or termination of such Extended Warranty pursuant to its terms.


 


11.2                        Transition
Term. Subject to Section 11.3, following the end of the Term, Bruker may,
until the [***] anniversary of the end of the Term (the “Transition Term”) and
on the same terms and conditions as applied during the Term, continue to (a)
purchase, resell and deliver Ibis Consumables (as set forth in the
Commercialization Plan) to parties in both the Government Use market and the
Non-Exclusive Market with whom it consummated the sale of a T5000 System prior
to the end of the Term and (ii) sell Extended Warranties and service and
support for T5000 Systems (as set forth in the Commercialization Plan) to
parties in both the Government Use market and the Non-Exclusive Market with
whom it consummated the sale of a T5000 System prior to the end of the Term,
and, during the Transition Term, Ibis will continue to fulfill its correlative
obligations under the Commercialization Plan.


 


11.3                        Partnering
Transaction. Section 11.2 notwithstanding, in the event Ibis consummates a
Partnering Transaction, Bruker may, at its election, transition its on-going
rights and obligations in the Non-Exclusive Market to Ibis (or its designee)
pursuant to a timeline and plan approved by the parties in accordance with
Section 15.10; provided, however, that Bruker may not transition its
obligations under Section 3.1.1 and 3.1.2 and correlative obligations under the
Commercialization Plan or its obligations under any Extended Warranty without
the prior written consent of Ibis (or its successor). If Bruker does not elect
to transition such obligations, Isis may, at its election, terminate Bruker’s
rights under Section 11.2 in the Non-Exclusive Market after the later of (a)
the [***] anniversary of the effective date of the Partnering Transaction and
(b) the [***] anniversary of the Effective Date. For clarification, during the
Term, even if Ibis consummates a Partnering Transaction, Bruker will remain the
exclusive


 


15

















 


supplier of mass spectrometers for use in T5000 Systems, the exclusive
manufacturer of T5000 Systems for all uses, except IVD Use, throughout the
world and the exclusive marketer of T5000 Systems, Ibis Consumables for
Government Use.


 


11.4                        Termination
for Cause. A party will have the right to terminate this Agreement by
providing written notice to the other party upon the occurrence of any of the
following:


 


11.4.1              the other party
(i) admits its inability to pay its debts as they come due, (ii) has a receiver
appointed for all or of any part of its property, (iii) makes any assignment
for the benefit of creditors or (iv) files a petition under any bankruptcy,
insolvency or similar law, or any such petition is filed against such party and
is not dismissed within 75 days; or


 


11.4.2              upon or after
the breach of any material provision of this Agreement by the other party if
the breaching party has not cured such breach within the 60 day (10 day with
regard to any payment breach) period following written notice of breach by the
non-breaching party.


 


11.5                        Effect of
Expiration or Termination.


 


11.5.1              Except as expressly set forth in this
Section 11, upon the effectiveness of the expiration or termination of this
Agreement for any reason, all rights and licenses granted under this Agreement
will immediately terminate and any purchase orders not yet completely fulfilled
may be canceled at the option of the party that received such order.


 


11.5.2              After the Term and/or the Transition
Term, as applicable, Bruker will not represent or hold itself out as being an
authorized distributor or otherwise having any rights to commercialize the
T5000 Systems or Ibis Consumables or engage in any practices that might make it
appear that Bruker has any such rights. After the Term and/or the Transition
Term, as applicable, Ibis will not represent or hold itself out as being an
authorized distributor or otherwise having any rights to commercialize the
MicrOTOF or MicrOTOF II or engage in any practices that might make it appear
that Ibis has any such rights.


 


11.5.3              In the event this Agreement is terminated
pursuant to Section 11.4.2 due to Bruker’s breach of its obligations hereunder
to perform service and support for End Users of T5000 Systems, Bruker will, if
requested by Ibis, assign to Ibis Bruker’s rights to perform service and
support with respect to T5000 Systems for such End Users and will transfer to
Ibis any prepayment Bruker has received therefor. The rights of Ibis and
obligations of Bruker in this Section 11.5.3 will apply only to the extent the
applicable service and support agreement between Bruker and the End User
pertains solely to T5000 Systems and not other products distributed by Bruker.


 


11.6                        Survival.
Notwithstanding anything to the contrary herein, the following provisions will
survive the expiration or termination of this Agreement for any reason: Article
4, Sections 5.4, 5.6, 5.7, 5.8, 5.9 and 5.10, Article 7, Sections 8.1, 8.2,
8.3, 8.7, 9.2, 9.3, 10.1, 10.3, 11.1, 11.5 and 11.6 and Articles 12, 13 and 15.
In addition, Sections 10.2 and 11.2 will survive until the end of the
Transition Term and Section 11.3 will survive until the later of (a) the second
anniversary of the effective date of the Partnering Transaction or (b) the
fourth anniversary of the Effective Date. It is expressly understood and agreed
that, notwithstanding anything to the


 


16

















 


contrary herein, any payment rights and obligations accruing under
Article 5 prior to expiration or termination will continue unaffected and
survive expiration or termination of this Agreement for any reason.


 


ARTICLE 12



INDEMNIFICATION


 


12.1                        Indemnification
by Bruker. Bruker hereby agrees to save, defend and hold Ibis and its Affiliates
and their respective directors, officers, employees and agents (each, an “Ibis
Indemnitee”) harmless from and against any and all claims, suits, actions,
demands, liabilities, expenses and/or loss, including reasonable legal expense
and attorneys’ fees, with respect to subparts (a) and (b) below solely with
respect to personal injury and property damage (collectively, “Losses”), to
which any Ibis Indemnitee may become subject as a result of any claim, demand,
action or other proceeding by any Third Party to the extent such Losses arise
directly out of (a) the breach by Bruker of any warranty, representation,
covenant or agreement made by Bruker in this Agreement, (b) any act or omission
pursuant to this Agreement by Bruker; except, in each case, to the extent such
Losses result from the gross negligence or willful misconduct of any Ibis
Indemnitee or the breach by Ibis of any warranty, representation, covenant or
agreement made by Ibis in this Agreement or (c) a claim that any product or
service provided by Bruker (including the MicrOTOF) infringes the intellectual
property of a Third Party (unless such claim is based on use of a product
provided by Bruker in combination with other hardware, software, firmware or
materials not provided by Bruker where, without such combination, there would
be no infringing activity).


 


12.2                        Indemnification
by Ibis. Ibis hereby agrees to save, defend and hold Bruker and its
Affiliates and their respective directors, officers, employees and agents
(each, a “Bruker Indemnitee”) harmless from and against any and all Losses to
which any Bruker Indemnitee may become subject as a result of any claim,
demand, action or other proceeding by any Third Party to the extent such Losses
arise directly out of (a) the breach by Ibis of any warranty, representation,
covenant or agreement made by Ibis in this Agreement, (b) any act or omission
pursuant to this Agreement by Ibis; except, in each case, to the extent such
Losses result from the gross negligence or willful misconduct of any Bruker
Indemnitee or the breach by Bruker of any warranty, representation, covenant or
agreement made by Bruker in this Agreement or (c) a claim that any product or
service provided by Ibis (including the Ibis Amplicon Desalting Module)
infringes the intellectual property of a Third Party (unless such claim is
based on use of a product provided by Ibis in combination with other hardware,
software, firmware or materials not provided by Ibis where, without such
combination, there would be no infringing activity).


 


12.3                        Control of
Defense. Any entity entitled to indemnification under this Article 12 will
give notice to the indemnifying party of any Losses that may be subject to
indemnification, promptly after learning of such Losses, and the indemnifying
party may assume the defense of such Losses with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed by the
indemnifying party with counsel so selected, the indemnifying party will not be
subject to any liability for any settlement of such Losses made by the
indemnified party without the indemnifying party’s consent (but such consent
will not be unreasonably withheld,


 


17

















 


conditioned or delayed), and will not be obligated to pay the fees and
expenses of any separate counsel retained by the indemnified party with respect
to such Losses.


 


12.4                        Insurance.
Each party, at its own expense, will maintain product liability insurance
in an amount consistent with industry standards during the Term, the Transition
Term and for 2 years following the end of the Transition Term with respect to
T5000 Systems and Ibis Consumables it delivers to End Users. Each party will
provide a certificate of insurance evidencing such coverage to the other party
upon request and will provide the other party with written notice at least 15
days prior to the cancellation, non-renewal or material change in such
insurance. The amounts of any insurance coverage obtained pursuant to this
Section 12.4 will not be construed to create a limit on any party’s liability
with respect to its indemnification obligations hereunder.


 


ARTICLE 13



DISPUTE RESOLUTION


 


13.1                        Dispute
Resolution. The parties recognize that disputes as to certain matters may
arise from time-to-time. It is the objective of the parties to seek to resolve
any disputes arising under this Agreement in an expedient manner and, if at all
possible, without resort to litigation, and to that end the parties agree to
abide by the following procedures set forth in this Article 13 to resolve any
such disputes. The parties initially will attempt to settle any such dispute
through good faith negotiations in the spirit of mutual cooperation between
business executives with authority to resolve the dispute.


 


13.2                        Escalation.
Prior to taking action as provided in Section 13.3 or 13.4 of this Agreement,
if the parties cannot resolve a dispute within 20 days of written request by
either party to the other, the parties will first submit such dispute to the
Executive Vice President of Isis Pharmaceuticals, Inc. or the Ibis President
and a vice-president- or president-level officer of Bruker with authority to
settle the applicable dispute, for resolution. Such officers will meet promptly
thereafter and will negotiate in good faith to resolve such dispute. If they
cannot resolve such dispute within 30 days of commencing such negotiations,
then the matter will be submitted to mediation in accordance with Section 13.3.
All negotiations pursuant to this Section 13.2 will be confidential and will be
treated as compromise and settlement negotiations for purposes of applicable
rules of evidence.


 


13.3                        Mediation.
If the parties cannot resolve the dispute pursuant to Section 13.2, then
upon the expiration of the 30 day period for negotiation between the officers
of the parties pursuant to Section 13.2, the parties will jointly commence
mediation by providing to the American Arbitration Association (“AAA”) a joint
written request for mediation, setting forth the subject matter of the dispute
and the relief requested by each party. The parties will cooperate with the AAA
and with one another in selecting a mediator from AAA’s panel of neutral
mediators and in scheduling the mediation proceedings which must, in any event,
occur within 30 days after the submission of the parties’ joint written request
for mediation. The parties covenant that they will participate in at least one
full day of mediation in good faith and that they will share equally in its
costs. If mediation fails to resolve such dispute, either party may submit such
dispute to a court having competent jurisdiction.


 


18

















 


13.4                        Court
Actions. Notwithstanding the above, to the full extent allowed by law,
either party may bring an action in any court of competent jurisdiction for
injunctive relief (or any other provisional remedy) to protect the parties’
rights or enforce the parties’ obligations under this Agreement pending final
resolution of any claims related thereto in a mediation as provided above. In
addition, either party may bring an action in any court of competent
jurisdiction to resolve disputes pertaining to the validity, construction,
scope, enforceability, infringement or other violations of patents or other
proprietary or intellectual property rights. The parties will use their
reasonable efforts to conduct all dispute resolution procedures under this
Agreement as expeditiously, efficiently and cost-effectively as possible.


 


ARTICLE 14



EXPORT COMPLIANCE


 


14.1                        Export
Regulations. The parties acknowledge and agree that all Ibis deliveries
under this Agreement will be to a location within the United States. Bruker
will be solely responsible for complying with and will ensure compliance with
any and all export laws, rules and regulations; provided, however, that
Ibis will be solely responsible for classifying the T5000 System (including the
Ibis Analytical Systems and whether as an assembled instrument or in its
component parts), including whether the T5000 Systems is a “defense article” (under
the Arms Export Contract Act, its implementing regulations and regulations
promulgated thereunder) and the appropriate export control classification
number(s) (under the Export Administration Act, its implementing regulations
and regulations promulgated thereunder), and Bruker will reasonably assist Ibis
in determining such classification. Bruker understands that Ibis is subject to
regulation by agencies of the Government, including the United States
Department of Commerce, Office of Foreign Assets Control of the United States
Treasury and the United States Department of Defense, which prohibit export or
diversion of certain technical products and services to certain countries, even
if such products or services were not manufactured or assembled in the United
States. Bruker warrants that it will comply in all respects with the Export
Administration Regulations, International Traffic in Arms Regulation and all
other export and re-export restrictions applicable hereto.


 


ARTICLE 15



GENERAL PROVISIONS


 


15.1                        Assignment.
Neither party may assign this Agreement or any rights or obligations
hereunder, by operation of law or otherwise, without the prior written approval
of the other party; provided, however that a party may make such an
assignment without consent to Affiliates or to a successor to all of or
substantially all of the business or assets of such party to which this
Agreement relates, whether in a merger, sale of stock, sale of assets or other
transaction. The rights and obligations of the parties under this Agreement
will be binding upon and inure to the benefit of the successors and permitted
assigns of the parties. Any assignment not in accordance with this Agreement
will be void.


 


15.2                        Notices. Any
notices required or permitted hereunder will be given to the appropriate party
at the address specified below or at such other address as such party will


 


19

















 


specify in writing. Such notice will be deemed given upon personal
delivery, one day after the date such notice is provided by overnight delivery
service, three days after the date of mailing when sent by certified or
registered mail, postage prepaid, or upon the date such notice is transmitted
by facsimile. All notices will be addressed as follows:


 


	
  If to Bruker:

  	
   

  	
  Bruker Daltonics Inc.

  
	
   

  	
   

  	
  40 Manning Road

  
	
   

  	
   

  	
  Billerica, MA 01821

  
	
   

  	
   

  	
  Attention:  Vice President of
  Finance

  
	
   

  	
   

  	
  Facsimile:  (978) 667-5993

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Bruker Daltonics Inc.

  
	
   

  	
   

  	
  40 Manning Road

  
	
   

  	
   

  	
  Billerica, MA 01821

  
	
   

  	
   

  	
  Attention:  John Wronka, Ph.D.

  
	
   

  	
   

  	
  Facsimile:  (978) 667-5993

  
	
   

  	
   

  	
   

  
	
  If to Ibis:

  	
   

  	
  Isis Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  1896 Rutherford Road

  
	
   

  	
   

  	
  Carlsbad, CA 92008-7208

  
	
   

  	
   

  	
  Attention:  Executive Vice
  President

  
	
   

  	
   

  	
  Fax:  (760) 268-4989

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Isis Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  1896 Rutherford Road

  
	
   

  	
   

  	
  Carlsbad, CA 92008-7208

  
	
   

  	
   

  	
  Attention:  General Counsel

  
	
   

  	
   

  	
  Fax:  (760) 268-4922

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Isis Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  1896 Rutherford Road

  
	
   

  	
   

  	
  Carlsbad, CA 92008-7208

  
	
   

  	
   

  	
  Attention:    President, Ibis Biosciences
  division of Isis Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  Fax:  (760) 603-4653

  



 


Either
party may by like notice specify or change an address to which notices and
communications will thereafter be sent.


 


15.3                        Governing
Law. This Agreement will be governed by and construed in accordance with
the laws of the State of Delaware, without regard to conflicts of laws
principles.


 


15.4                        Relationship
of the Parties. Nothing in this Agreement will constitute, nor will any
party represent that there is any relationship of employer and employee,
principal and agent, partnership, joint venture or agency of any kind between
the parties as a result of this Agreement. Neither party will have the
authority to make any statements, representations or commitments of any kind,
or to take any action, which will be binding on the other party, without the
prior written consent of the other party.


 


20

















 


15.5                        Compliance
with Laws. Ibis and Bruker each agree that it will comply with all
applicable laws, rules and regulations in performing its obligations hereunder.


 


15.6                        Severability.
Any term or provision of this Agreement held to be illegal or unenforceable
will, if possible, be interpreted so as to be construed as valid, but in any
event the validity or enforceability of the remainder hereof will not be
affected.


 


15.7                        Waiver. Except
as specifically provided for herein, the waiver from time to time by either
party of any right or failure to exercise any remedy will not operate or be
construed as a continuing waiver of the same right or remedy or of any other of
such party’s rights or remedies provided under this Agreement.


 


15.8                        Headings. The
section headings appearing in this Agreement are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
extent of such section.


 


15.9                        Mutually
Drafted Agreement. This Agreement has been negotiated by both parties and
their counsel, and no presumption will be drawn against either party based on
its drafting of any particular provision hereof.


 


15.10                 Entire Agreement;
Amendment. This Agreement (including its exhibits and schedules, which are
incorporated by reference herein) sets forth all of the agreements and
understandings between the parties hereto with respect to the subject matter
hereof, and supersedes and terminates all prior agreements and understandings
between the parties with respect to the subject matter hereof. There are no
agreements or understandings with respect to the subject matter hereof, either
oral or written, between the parties other than as set forth herein. Except as
expressly set forth in this Agreement, no subsequent amendment, modification or
addition to this Agreement will be binding upon the parties hereto unless
reduced to writing and signed by the respective authorized officers of the
parties.


 


15.11                 Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which will be considered an original, but all of which together will constitute
one and the same instrument. A party may evidence its execution and delivery of
this Agreement by signing and faxing this Agreement to the other party and
promptly thereafter mailing the signed original copy of this Agreement to the
other party.


 


15.12                 Force Majeure. No
party will be liable for any delay or failure of performance (other than
payment obligations) to the extent such delay or failure is caused by
circumstances beyond its reasonable control (including without limitation,
fire, floods, earthquakes, natural disasters, embargoes, war, acts of war
(whether war be declared or not), acts of terrorism, insurrections, riots,
civil commotions, strikes, lockouts or other labor disturbances, acts of God or
acts, omissions or delays in acting by any governmental authority or the other
party) and that by the exercise of due diligence it is unable to prevent,
provided that the party claiming
excuse uses its commercially reasonable efforts to overcome the same.


 


15.13                 U.S. Government
Rights. Bruker acknowledges and agrees that certain Ibis Technology was
developed in part with funds furnished by the U.S. Government and that the U.S.
Government has certain rights relative thereto. This Agreement is explicitly
made subject


 


21

















 


to the U.S. Government’s rights under any applicable law or regulation.
To the extent that there is a conflict between any such applicable law or
regulation and this Agreement, the terms of such applicable law or regulation
will prevail.


 


[THIS SPACE INTENTIONALLY LEFT BLANK]


 


22

















 


IN WITNESS WHEREOF, the parties have caused
this Manufacturing, Commercialization and Development Agreement to be executed
by their duly authorized representatives as of the Effective Date.


 


	
  ISIS PHARMACEUTICALS, INC.

  	
  BRUKER DALTONICS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ B. Lynne Parshall

  	
   

  	
  By:

  	
  /s/ Frank H. Lavuien

  
	
  Name:

  	
  B. Lynne Parshall

  	
   

  	
  Name:

  	
  Frank H. Lavuien

  
	
  Title:

  	
  EVP & CFO

  	
   

  	
  Title:

  	
  President

  
									



 


 


[COUNTERPART SIGNATURE PAGE TO MANUFACTURING,
COMMERCIALIZATION AND DEVELOPMENT AGREEMENT]


 

















 


Exhibit A


 


DEFINITIONS


 


“Affiliate” means a Person that, directly or
indirectly, is controlled by Bruker or Ibis, as applicable; provided,
however that, for Bruker, an Affiliate will include only entities that are
controlled by Bruker BioSciences Corporation. For the purposes of this
definition, the term “control” means the possession, directly or indirectly, of
the power to govern the financial and the operating policies or to appoint the
management of Bruker or Isis, as applicable.


 


“Calendar Quarter”
means each respective period of three consecutive calendar months ending on
March 31, June 30, September 30 and December 31.


 


“Confidential Information”
means any confidential or proprietary information of a party, including,
without limitation, any information relating to any research project, work in
process, future development, scientific, engineering, manufacturing, marketing,
business plan, financial or personnel matter relating to either party, its
present or future products, sales, suppliers, customers, employees, investors
or business, whether in oral, written, graphic or electronic form; provided,
however, that such information is in writing and marked “confidential” (or with
another similar designation) or, if disclosed orally, visually or through other
non-written communication, such information is reduced to writing and so marked.
Without limiting the generality of the foregoing, the parties agree that the
Ibis Technology is Confidential Information of Ibis, the financial terms of
this Agreement are Confidential Information of both parties and the MicrOTOF
Technology is Confidential Information of Bruker.


 


“Effective Date” has the meaning provided in
the opening clause.


 


“End User” means,
with respect to Ibis Consumables or T5000 Systems, a Person who obtains such
Ibis Consumables or T5000 System for its own use.


 


“European/Middle East Territory”
means the following countries: 
Afghanistan, Albania, Andorra, Austria, Bahrain, Belarus, Belgium,
Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus (including the Republic of Cyprus
and the Republic of Northern Cyprus), Czech Republic, Denmark, Egypt, Estonia,
Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece,
Hungary, Iceland, Iran (presently not sold to), Iraq, Ireland, Israel, Italy,
Jordan, Kuwait, Kyrgyzstan, Latvia, Lebanon, Liechtenstein, Lithuania,
Luxembourg, Malta, Moldova, Monaco, Norway, Oman, Pakistan, Poland, Portugal,
Qatar, Romania, Russia, San Marino, Saudi Arabia, Serbia and Montenegro,
Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria (presently not sold to),
Tajikistan, The Netherlands, Turkey, Turkmenistan, Ukraine, United Arab
Emirates, United Kingdom, Uzbekistan and Vatican City.


 


“Extended Warranty(ies)” has the meaning set
forth in Exhibit B.


 


“Extended Warranty Revenues”
means the gross receipts received by Bruker and its Affiliates for sales of
Extended Warranties to End Users.


 


“Extension Term” has the meaning
provided in Section 11.1.


 

















 


“Government Use” means use primarily in
connection with (a) defense, including homeland security, (b) food testing, (c)
human forensics and (d) veterinary care and treatment by departments and
agencies of national, state or local governments (or their respective
contractors acting in their capacity as contractors to such entities) of
countries comprising the European/Middle East Territory, but not including any
IVD Use.


 


“Ibis” has the
meaning provided in the opening clause.


 


“Ibis Amplicon Desalting Module”
means an automated instrument for performing sample injection and clean-up
procedures.


 


“Ibis Analytical Systems” means Ibis’
proprietary analysis software and databases, as more fully described in
Schedule 2, as updated from time to time by written agreement of the parties,
as well as third-party software that is a part of the T5000 System.


 


“Ibis Consumables” means primers, reagent
solutions and other consumables for use with the T5000 System, as more fully
described in Schedule 1, as such may be amended from time to time by the
parties.


 


“Ibis Partner” means
any Third Party with whom Ibis has entered into an agreement for the sale and
delivery of T5000 Systems.


 


“Ibis President” means the President of the Ibis Biosciences
division of Isis Pharmaceuticals, Inc.


 


“Ibis Technology”
means the Intellectual Property Rights owned or licensed by Ibis that are
reasonably related to the T5000 System (including, without limitation, the
patents and patent applications set forth on Schedule 4).


 


“Improvement” means
any enhancement or modification (whether or not patentable) to the Ibis Technology
or the Bruker Technology, as applicable, that is conceived or reduced to
practice by either party or by the parties jointly during the Term or the
Transition Term in the course of performing under this Agreement.


 


“Initial Period” means,
with respect to a particular T5000 System, the 365 day period immediately
following Installation of such T5000 System.


 


“Initial Term” has the meaning provided in
Section 11.1.


 


“Installation” means unpacking and physically
placing and securing a T5000 System at an End User’s facility, making all
necessary electrical and fluidic connections, installing the Ibis Analytical
Systems on the T5000 System (to the extent not already installed), running
diagnostic routines (to the extent not already performed at Bruker’s facilities),
making necessary adjustments and demonstrating to appropriate personnel of the
End User that, upon completion of the foregoing activities, the T5000 System
functions in accordance with the customer acceptance specifications found in
Schedule 3. “Install,” “Installed” and related terms will have correlative
meanings.


 

















 


“Intellectual Property Rights”
means any and all Patent Rights, business processes, data rights, copyrights,
moral rights, trade names, trademarks, mask works, trade secrets, know-how,
knowledge, techniques, technology, practices, methods, test data and results,
analytical and quality control data, results or descriptions, software and
algorithms and other intellectual property rights, whether registered or
unregistered, arising or enforceable under United States law or the law of any
other jurisdiction or international treaty regime.


 


“Invention” means
any invention or discovery, whether or not patentable, that is conceived or
reduced to practice by either party or by the parties jointly in the course of
performing under this Agreement.


 


“IVD Use” means use primarily in connection
with (a) human in vitro diagnostics and (b)
“homebrew” applications, including “analyte specific reagent” (ASR) use under
the Clinical Laboratory Improvement Act of 1988 (CLIA) and comparable
legislation and regulations in other jurisdictions.


 


“Marks” means, as to
each party, those trademarks, trade names and logos set forth under such party’s
name on Schedule 5, as such may be amended from time to time by the parties.


 


“MicrOTOF” means
Bruker’s mass spectrometer (not including the FOCUSTM option), as more fully
described in Schedule 6, as updated from time to time by written agreement of
the parties.


 


“MicrOTOF II” means
a second-generalation MicrOTOF that incorporates Bruker’s Apollo II Dual Ion
Funnel Source and is designed to be compatible for use with T5000 Systems
developed for Regulated Uses (including uses in connection with the diagnosis
or treatment of humans or animals).


 


MicrOTOF Technology”
means the Intellectual Property Rights owned or licensed by Bruker or any of
its Affiliates that are reasonably related to the MicrOTOF (including, without
limitation, the patents and patent applications set forth on Schedule 7).


 


“Non-Exclusive Market” means that market
consisting of End Users located in the European/Middle East Territory using
Ibis Systems for Other Use.


 


“North American Territory”
means Canada, Mexico and the United States and its territories and possessions.


 


“Other Use” means any use other than
Government Use and IVD Use.


 


“Partnering Transaction” means an agreement
providing a Third Party with the right, among other things, to promote, sell
and supply T5000 Systems and/or Ibis Consumables in the European/Middle East
Territory other than an agreement relating solely to IVD Use.


 


“Patent Rights” means
all rights associated with United States and foreign patents (including all
reissues, extensions, confirmations, registrations, re-examinations, and
inventor’s


 

















 


certificates) and patent
applications (including, without limitation, all substitutions, continuations,
continuations-in-part, provisionals and divisionals thereof).


 


“Person” means any
corporation, natural person, firm, joint venture, partnership, trust,
unincorporated organization, government or any department or agency of such
government.


 


“Renewal Update(s)”
means Updates that Ibis may, from time to time, develop and make generally
available to the public after the Initial Period.


 


“Specifications” means the specifications to
be prepared and approved by the parties prior to the Technology Transfer Date.


 


“System Revenues”
means the amounts invoiced, or reflected in purchase orders received, by Bruker
and its Affiliates for sales of T5000 Systems to End Users, less (a)
transportation, customs, duties, delivery and similar charges, including
insurance premiums, actually incurred by Bruker or its Affiliates or paid by an
End User and reimbursed by Bruker and (b) taxes (other than franchise or income
taxes on the income of Bruker or its Affiliates) actually paid by or withheld from
Bruker or its Affiliates or paid by an End User and reimbursed by Bruker,
provided that upon the refund of any such tax or reimbursement to Bruker, such
refund or reimbursement will be included in the amount invoiced or the purchase
order received.


 


“T5000 Systems” means the fully integrated
system comprising a MicrOTOF, an Ibis Amplicon Desalting Module, the Ibis
Analytical Systems and other computers and hardware, as more fully described in
Schedule 3, as updated from time to time by written agreement of the parties.
“T5000 Systems” does not include Ibis Consumables. “T5000 Systems” includes new
versions of the T5000 System as it exists as of the Effective Date, as well as
successor products designed to perform mass spectrometry analysis of PCR products,
but excluding any systems exclusively used for IVD Use.


 


“Technology Transfer Date”
has the meaning provided in Section 2.2.


 


“Technology Transfer Management Committee”
or “TMC” means the committee
described in Article 2.


 


“Term” means the Initial Term and the
Extension Terms, if any.


 


“Third Party” means
an entity other than Ibis, Bruker and their respective Affiliates.


 


“Transition Term” has the meaning provided in
Section 11.2.


 


“Updates” means
modifications, corrections, fixes, patches, enhancements, updates, upgrades or
extensions to the Ibis Analytical Systems that Ibis may, from time to time,
develop and make generally available to the public during the Initial Period.


 


“U.S. Government” means
the federal, state and local governments of the U.S. or any regulatory
authority or department, agency, branch, arm or similar division (including
procurement arms) of such governments.


 

















 


Exhibits and Schedules


 


	
  Exhibit
  A

  	
   

  	
  Definitions

  
	
   

  	
   

  	
   

  
	
  Exhibit
  B

  	
   

  	
  Commercialization
  Plan

  
	
   

  	
   

  	
   

  
	
  Exhibit
  C

  	
   

  	
  Press
  Release

  
	
   

  	
   

  	
   

  
	
  Exhibit
  D

  	
   

  	
  Bruker
  Terms and Conditions

  
	
   

  	
   

  	
   

  
	
  Schedule
  1

  	
   

  	
  Ibis
  Consumables

  
	
   

  	
   

  	
   

  
	
  Schedule
  2

  	
   

  	
  Ibis
  Analytical Systems (including Ibis databases)

  
	
   

  	
   

  	
   

  
	
  Schedule
  3

  	
   

  	
  T5000
  System

  
	
   

  	
   

  	
   

  
	
  Schedule
  4

  	
   

  	
  Ibis
  Technology

  
	
   

  	
   

  	
   

  
	
  Schedule
  5

  	
   

  	
  Marks

  
	
   

  	
   

  	
   

  
	
  Schedule
  6

  	
   

  	
  MicrOTOF

  
	
   

  	
   

  	
   

  
	
  Schedule
  7

  	
   

  	
  MicrOTOF
  Technology

  



 

















 


Exhibit B


 


Commercialization Plan


 


[***]


 

















 


Exhibit C


 


Press Release


 


[***]


 

















 


Exhibit D


 


Bruker Terms and Conditions


 


[***]


 

















 


Schedule  1


 


Ibis Consumables


 


[***]


 

















 


Schedule  2


 


Ibis Analytical Systems (including Ibis databases)


 


[***]


 

















 


Schedule  3


 


T5000 System


 


[***]


 

















 


Schedule  4


 


Ibis Technology


 


[***]


 

















 


Schedule  5


 


Marks


 


[***]


 

















 


Schedule  6


 


MicrOTOF


 


[***]


 

















 


Schedule  7


 


MicrOTOF Technology


 


[***]