Exhibit
10.17


 


* = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY ASTERISKS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.


 


Alliance,
Technology Transfer, Research and License Agreement


The Dow Chemical
Company - Symyx Technologies, Inc. – Symyx Discovery Tools, Inc.


 


This ALLIANCE, TECHNOLOGY
TRANSFER, RESEARCH AND LICENSE AGREEMENT (the “Agreement”), effective as of January 1,
2005 (the “Effective Date”), is made by and between Symyx Technologies, Inc., a
Delaware corporation having a principal place of business at 3100 Central
Expressway, Santa Clara, California 95051 (“Symyx Tech”), Symyx Discovery
Tools, Inc., a California corporation having a principal place of business at
3100 Central Expressway, Santa Clara, California 95051 (“Symyx Dtools”) (Symyx
Tech and Symyx Dtools referred to collectively as “Symyx”) and The Dow Chemical
Company, a Delaware corporation, having a principal place of business at 2030
Willard H. Dow Center, Midland, Michigan 48674 (“TDCC”).


 


BACKGROUND


 


A.                                   Symyx
Tech owns and is developing novel, proprietary methods for the combinatorial
preparation and screening of novel materials; and


 


B.                                     Symyx
DTools is a wholly-owned subsidiary of Symyx Tech and sells and licenses
equipment, instruments, workflows, and software for engaging in high throughput
materials research;


 


C.                                     TDCC
owns and is developing proprietary process technology related to manufacture of
various products, which technology includes*;


 


D.                                    TDCC
and Symyx Tech have previously entered into a Collaborative Research and
License Agreement effective as of January 1, 1999, as amended by Amendment
No. 1 to Collaborative Research and License Agreement effective as of January 1,
2002, Amendment No. 2 to Collaborative Research and License Agreement effective
as of April 1, 2002, and Amendment No. 3 to Collaborative Research and
License Agreement effective as of July 1, 2004 (collectively, as amended,
the “CRLA”); and


 


E.                                      TDCC
and Symyx desire to extend and expand the scope of the activities formerly
conducted pursuant to the CRLA on the terms and conditions set forth below.


 


NOW, THEREFORE, for and
in consideration of the covenants, conditions and undertakings set forth
herein, it is agreed by and between the parties as follows:


 


Article 1


DEFINITIONS


 


1.1                                 “Affiliate”
shall mean any entity directly or indirectly controlling, controlled by or
under common control with, a party to this Agreement.  For purposes of this Agreement, the direct or
indirect ownership of *or more of the equity interest (or other equivalent
controlling interest) of an


 


Confidential


 





















 


entity, shall be
deemed to constitute control, unless expressly excluded by mutual agreement of
TDCC and Symyx Tech.  Joint ventures in
which a party owns no more than a *equity interest shall not be deemed an
Affiliate without the consent of the other parties hereto.


 


1.2                                 “Agreement
Compound” shall mean any Lead Compound or Derivative Compound.


 


1.3                                 “Alliance Managers” shall have
the meaning set forth in Section 3.1.


 


1.4                                 “Annual Program Goals” shall
have the meaning set forth in Section 3.5.


 


1.5                                 “Anticipated
Program Goals” shall mean (1) transfer
and implementation of Discovery Tools® Systems to TDCC, including*; (2)
deployment, and utilization of Symyx Renaissance® Software across TDCC research
and development as a standard automation, data handling, and informatics
platform with approximately * TDCC researchers contemplated as users by the end
of the Program Term, exclusive of users under Section 7.7; (3) execution
of approximately * research programs within the Fields with the goal of (i)
discovering commercially viable materials for use in such Fields, and (ii)
developing high-throughput workflows, equipment or instruments prior to the
purchase and transfer of a related Discovery Tools System (e.g.,*); and (4)
provision of know-how transfer, training, and high-throughput intellectual
property licenses to enable TDCC to conduct high throughput research and development.


 


1.6                                 “Combinatorial
Chemistry Technology” shall mean Combinatorial Chemistry Patent Rights and
Combinatorial Chemistry Know-How.


 


1.6.1                        “Combinatorial
Chemistry Patent Rights” shall mean (i) all patent applications (U.S.
and other) claiming any inventions or discoveries related to Combinatorial
Chemistry, (ii) all divisions, substitutions, continuations,
continuation-in-part applications, patents of addition, and reissues,
re-examinations and extensions of (i) above, and (iii) patents,
utility models or similar grants of rights issuing from any of the preceding of
(i) or (ii) above.


 


1.6.2                        “Combinatorial
Chemistry Know-How” shall mean inventions, information, data, or materials
related to Combinatorial Chemistry, excluding any inventions claimed in the
Combinatorial Chemistry Patent Rights.


 


1.6.3                        “Combinatorial
Chemistry” shall mean techniques, methodologies, processes, synthetic
routes or instrumentation useful for the simultaneous, parallel or rapid
serial: (i) synthesis, (ii) processing, (iii) analysis, or
(iv) characterization of more than * compounds, compositions or mixtures
in quantities of less than * for purposes of research and development
experimentation (i.e., not production processes or the process control, the
quality control or the monitoring of such operations.), but shall not refer to
particular compositions of matter, materials, compounds or formulations (e.g.*,
etc.) or processes to make or use such particular compositions of matter,
materials, compounds or formulations.


 


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1.7                                 “Confidential
Information” shall mean any information disclosed by one party (or by an
Affiliate of a party on behalf of that party) to the other party or its
representatives in connection with this Agreement which is in written, graphic,
machine readable or other tangible form and is marked “Confidential” or “Proprietary”
or in some other manner to indicate its confidential nature.  Confidential Information may also include
information that is disclosed orally or by observation, provided that such
information is designated as confidential at the time of disclosure and
confirmed in writing as confidential within thirty (30) days after such
disclosure.


 


1.8                                 *


 


1.9                                 “Designated
Compound” shall have the meaning set forth in Section 4.1.3.


 


1.10                           “Designated
Product” shall have the meaning set forth in Section 4.1.3.


 


1.11                           “Derivative
Compound” shall mean any compound or mixture or composition of matter that
is derived by or under authority of TDCC or its Affiliates from a Library
Compound.  As used in this Agreement, a
compound, mixture or composition of matter shall be deemed to have been “derived
from” a Library Compound if it*. 
Derivative Compound shall also include a compound, mixture or composition
of matter that is derived, as described *above, from another Derivative
Compound.  Notwithstanding the foregoing,
a compound, mixture or composition of matter other than a Library Compound that
is first identified * shall not be deemed a Derivative Compound.  It is understood that compounds developed
independently by TDCC or its Affiliates without the use of Library Compounds,
Confidential Information of Symyx, or Program Technology, shall not be deemed
to be a Derivative Compound.


 


1.12                           “Developer’s
Kit Software” shall mean machine readable, object code versions, provided
pursuant to Article 5, of Symyx Developer’s Kit Software, and related
documentation.


 


1.13                           “Direct
Modification” shall have the meaning set forth in Section 4.1.3.


 


1.14                           “Discovery
Tools System” shall mean a system of hardware and related software for
conducting Combinatorial Chemistry, which system has been developed and is
ready for commercialization by Symyx in the sense of meeting its
specifications, having appropriate documentation and being deliverable to and
operable by a Third Party, in each case consistent with Symyx’s usual business
practices for commercialization of tools.


 


1.15                           “Executive
Committee” shall have the meaning set forth in Section 3.4.


 


1.16                           “Field”
shall have the meaning set forth in Exhibit A.


 


1.17                           “FTE”
shall mean a full-time employee or independent contractor utilized for the
conduct of the Research Program or Software Deployment Plan or, in the case of
less than full-time dedication, a full-time equivalent person-year, based on a
total of*, of work on or directly related to the Research Program or in
implementation of the Software Deployment Plan.


 


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1.18                           “Independent
TDCC Research” shall have the meaning set forth in Section 2.3.3.


 


1.19                           “IntelliChem”
shall mean IntelliChem, Inc., an Oregon corporation.


 


1.20                           “IntelliChem
Named User” means an individual that uses the IntelliChem Products, or any
part of such IntelliChem Products, or any software authored by TDCC or its
Affiliates incorporating any of such IntelliChem Products, or any part of such
IntelliChem Products, including the indirect use of such IntelliChem Products,
or any part of such IntelliChem Products. 
IntelliChem Named Users may be changed or replaced according to
reasonable business practices, program or project changes, and/or changes in
job function.


 


1.21                           “IntelliChem
Products” shall mean the machine readable, object code versions of*, and
related documentation, and shall also include updates and upgrades to such
products of the same scope as Software Updates and Software Upgrades as defined
herein with respect to the Software.


 


1.22                           “Joint
Invention” shall have the meaning set forth in Section 10.1.


 


1.23                           “Lead
Compound” shall mean a Library Compound which meets the specific physical,
chemical and/or catalytic properties established either in the Research Plan or
by the Research Committee for identifying a Lead Compound.  The procedure for identifying a Lead Compound
is set forth on Exhibit C hereto. It is understood and agreed that any
Library Compound that is transferred from Symyx to TDCC and subsequently
commercialized by or under authority of TDCC or its Affiliates shall be deemed
a Lead Compound.


 


1.24                           “Library
Compound” shall mean any compound or mixture or composition of matter
screened or prepared by or on behalf of Symyx Tech in the course of the
Research Program in order to determine its usefulness in connection with a
Research Program in the Field.


 


1.25                           “Named
User” means an individual that uses the software delivered with a Discovery
Tools System, or any part of such software, or any software authored by TDCC or
its Affiliates incorporating any of such software, or any part of such
software, including the indirect use of such software, or any part of such
software.  Named Users may be changed or
replaced according to reasonable business practices, program or project
changes, and/or changes in job function.


 


1.26                           “Net
Sales” shall have the meaning set forth in Exhibit J.


 


1.27                           “Newly
Developed Discovery Tools Systems” shall mean Discovery Tools Systems or
modular units of Discovery Tool Systems that are substantially developed in the
Research Program, where such development is fully funded by TDCC
hereunder.  As set forth in Section 2.1,
the Research Committee at the time a Research Plan is established shall
determine whether Discovery Tool Systems to be developed pursuant to such
Research Plan, if any, in whole or part shall be Newly Developed Discovery Tool
Systems.  If there is disagreement on
whether or not a Discovery Tools System is in whole or part Newly Developed
Discovery Tools System, the issue shall be elevated by the Research or Tools
Committee, as applicable, first to the Advisory


 


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Committee, and if still
not resolved, then to the Executive Committee. 
Newly Developed Discovery Tool Systems do not include “later generation”
versions of equipment, instruments or workflows that were developed outside of
the Research Program.


 


1.28                           “Outside
Technology” shall have the meaning set forth in Section 2.3.3.


 


1.29                           “Product”
shall mean any product that (i) contains an Agreement Compound,
(ii) contains a reaction product or other chemical derivative of an
Agreement Compound, (iii) utilizes in its manufacture any method or process
within the Program Technology developed by Symyx or developed jointly by Symyx
and TDCC, or (iv) utilizes an Agreement Compound in its manufacture, e.g.,
as a catalyst.


 


1.30                           “Program
Technology” shall mean Program Patents and Program Know-How.


 


1.30.1                  “Program
Know-How” shall mean inventions, information, data, or materials developed
by Symyx or TDCC or jointly by Symyx and TDCC in each case in the course of the
Research Program that are useful for the manufacture, use or sale of Agreement
Compounds or Products; provided, however, that Program Know-How shall not
include any Combinatorial Chemistry Technology, Outside Technology, any
invention claimed in the Program Patents or results of Independent TDCC
Research.


 


1.30.2                  “Program
Patents” shall mean (i) all patent applications (U.S. and other),
whether filed during the Program Term or after its completion, claiming any
inventions or discoveries conceived and reduced to practice in the course of
the Research Program by Symyx or TDCC or jointly by Symyx and TDCC, or
conceived by Symyx before the Research Program and reduced to practice in the
Research Program, which claim an Agreement Compound or a Product, or method or
process for the manufacture of an Agreement Compound or Product, or a
composition-of-matter containing an Agreement Compound or Product, or a method
or process for the use of an Agreement Compound in or for the manufacture of a
Product, in each case that are necessary or materially useful for the
manufacture, use or sale of Agreement Compounds or Products in the Field,
(ii) all divisions, substitutions, continuations, continuation-in-part
applications, patents of addition, and reissues, re-examinations and extensions
of (i) above, , and (iii) patents, utility models or similar grants
of rights issuing on any of the preceding of (i) or(ii) above.  For purposes of this definition, “reduced to
practice” shall be construed to include an actual reduction to practice or a
constructive reduction to practice where the concept is defined in sufficient
detail that it may have been reduced to practice by one skilled in the art
without excessive efforts beyond those efforts that one skilled in the art
would reasonably employ.  It is
understood and agreed that Program Patents shall not include any Combinatorial
Chemistry Technology or results of Independent TDCC Research.


 


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1.31                           “Program
Term” shall mean the meaning set forth in Section 2.2.


 


1.32                           “Research
Committee” shall have the meaning set forth in Section 3.2.


 


1.33                           “Research
Plan” shall have the meaning set forth in Section 2.1.


 


1.34                           “Research
Program” shall mean the program of research conducted by Symyx Tech and/or
TDCC on a collaborative basis under this Agreement for the purpose of
identifying and optimizing Agreement Compounds in the Field or for making
Products for use in the Field.


 


1.35                           “Secondary
Field” shall have the meaning set forth in Section 2.4 and in Exhibit
B.


 


1.36                           “Software”
shall mean the machine readable, object code versions of Symyx Renaissance®
Software Suite provided pursuant to Article 5, consisting of: * and
related documentation.


 


1.37                           “Software
Customizations” shall mean any and all improvements, additions,
enhancements, extensions, interfaces, resources, actions, changes, or
modifications made by TDCC or its Affiliates to the Software through use of the
documented customization capabilities of the Developer’s Kit Software.


 


1.38                           “Software
Deployment Plan” shall have the meaning set forth in Section 5.1 and
in Exhibit G.


 


1.39                           “Software
Updates” shall mean error corrections, bug fixes, or workarounds to the
Software or the Developer’s Kit Software that are developed by or on behalf of
Symyx (which typically are indicated by a change in the numeric identifier for
the Software in the digit to the right of the decimal) solely to ensure the
Software performs according to its specifications and generally released to its
customers during the Program Term.


 


1.40                           “Software
Upgrades” shall mean all revisions to the Software or the Developer’s Kit
Software that are developed by or on behalf of Symyx (which typically are
indicated by a change in the numeric identifier for the Software in the digit
to the left of the decimal) and generally released to its customers during the
Program Term, including any Developer’s Kit versions of the Software.  In the event a Developer’s Kit version of the
Software is delivered as a Software Upgrade, it shall be treated as Developer’s
Kit Software under this Agreement.  *


 


1.41                           “Sublicensee”
shall mean, with respect to a particular Product, a Third Party to whom TDCC or
its Affiliate has granted a license or sublicense to make, use and sell such
Product.


 


1.42                           “Symyx
Combinatorial Know-How” shall mean know-how owned or controlled in the
sense of having the right to grant licenses without accounting to others by
Symyx with respect to the practice of Combinatorial Chemistry that is disclosed
or provided by Symyx to TDCC or its Affiliates in connection with the
performance of this Agreement.


 


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1.43                           “Symyx
Combinatorial Patent Rights” shall mean all patent rights based on claims
in patents owned or controlled in the sense of having the right to grant
licenses without accounting to a Third Party by Symyx as of the Effective Date
or during the Program Term (or during any extension of the license granted in Section 6.1
pursuant to Section 6.5), covering Combinatorial Chemistry. Symyx
Combinatorial Patent Rights also shall exclude certain rights that have been
exclusively licensed to instrument manufacturers (i.e.,*) as set forth in
Exhibit I. Symyx Combinatorial Patent Rights also shall exclude all rights
within the field of *


 


1.44                           “Symyx
Inventions” shall have the meaning set forth in Section 10.1.


 


1.45                           “Symyx
Patents” shall mean all patent applications (U.S. and other) filed on or
before or claiming priority on or before the date * after the end of the
Program Term claiming any inventions or discoveries owned or controlled by
Symyx (or by any wholly-owned subsidiary of Symyx) which claim an Agreement
Compound or a Product, or method or process for the manufacture of an Agreement
Compound or Product, or a composition-of-matter containing an Agreement
Compound or Product, or a method or process for the use of an Agreement
Compound in or for the manufacture of a Product, in each case that are
necessary or materially useful for the manufacture, use or sale of Agreement
Compounds, or Products in the Field, (ii) all divisions, substitutions,
continuations, continuation-in-part applications, patents of addition, and
reissues, re-examinations and extensions of (i) above, and
(iii) patents, utility models or similar grants of rights issuing on any
of the preceding of (i) or (ii) above. Notwithstanding the foregoing, it is
understood and agreed that “Symyx Patents” shall not include patent
applications or patents claiming inventions made by Symyx or its wholly-owned
subsidiary (solely or jointly) in collaboration with, or as part of a research
program funded by, a Third Party if such collaboration or research program is
not directed to the screening, discovery, or optimization of materials or
capabilities (including but not limited to catalysts, catalyst supports,
activators and scavenging agents) in the Field for the purpose of making
Products or the discovery or development of Products using such materials or
capabilities in the Field.


 


1.46                           “TDCC
Improvements” means enhancements, changes or modifications to a Discovery
Tools System delivered to TDCC or its Affiliates under this Agreement, that
TDCC or its Affiliates, conceive, reduce to practice or otherwise develop after
the delivery of such Discovery Tools System. TDCC Improvements shall not be
deemed Program Technology or Combinatorial Chemistry Technology hereunder.


 


1.47                           “TDCC’s
Internal Research and Development Activities” shall mean only research and/or development by TDCC and/or
its Affiliates, including research and development undertaken by TDCC jointly
with Third Parties that are involved with TDCC or its Affiliates in
developing*, and/or licensees of TDCC’s chemical manufacturing technology, each
as consistent with TDCC’s usual and customary business practices.  However, such term shall not include TDCC
providing direct access to Discovery Tools Systems or Software or conducting
research services or development activities on behalf of Third Parties for a
fee other than sharing of expenses incurred in connection with joint activities
with Third Parties as described in the prior sentence.


 


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1.48                           “TDCC
Joint Venture” shall mean an entity in which TDCC, directly or indirectly,
has an equity ownership interest (or other equivalent interest) of less than *
but not less than *, because applicable law or business conditions at the time
and place where the Joint Venture was formed made it impractical for TDCC to
own an interest of*.


 


1.49                           “Third
Party” shall mean any party other than Symyx and its Affiliates, TDCC and
its Affiliates, and their permitted assignees.


 


1.50                           “Tools
Cost Basis” shall mean *


 


1.51                           “Tools
Price” shall have the meaning set forth in Section 7.4.


 


Article 2

RESEARCH PROGRAM


 


2.1                                 Research
Program.  Subject to the terms and
conditions set forth herein, Symyx Tech and TDCC shall, in a collaborative
effort, (i) conduct research activities within the Fields, and (ii) conduct
research and development activities with respect to the development and use of
high throughput tools and workflows. 
Prior to commencing a research project, the parties shall agree upon a
written plan describing the research activities to be conducted by each party
(the “Research Plan”).  The initial
Research Plan for each project will be agreed upon by the parties in
writing.  A template for preparing the
Research Plan is attached as Schedule 2.1. 
Research Plans for projects that are directed to Fields where it is
contemplated that a Product may result should include: the Field, criteria for
identifying a Lead Compound, key FTEs, initial Annual Program Goals (see Section 3.5),
how the Royalty Rate for a Product is to be determined (see Exhibit J) and how
the Limited Immunity in Section 4.1.3 may be adapted for this Field, where
necessary.  Research Plans for projects
in Fields where it is contemplated that a work flow or capabilities will be
developed should include: the Field, key FTEs, initial Annual Program Goals
(see Section 3.5), and how the Limited Immunity in Section 4.1.3 may
be adapted for this Field, where necessary.  
Each Research Plan shall also indicate (a) whether it involves the
development of a Discovery Tools System, and if so, (b) whether it is intended
that such Discovery Tools System be transferred to TDCC after its development and
hardening, and (c) the mutual expectation of the parties as to whether such
Discovery Tools System or a modular portion of the Discovery Tools System is
intended to be a Newly Developed Discovery Tools System.  In the event that during the conduct of a
Research Plan, either party believes that the mutual expectation set forth in
any Research Plan pursuant to (c) above is no longer correct, such party shall
provide written notice to the other party, and the other party shall respond as
to whether it agrees that the initially expressed mutual expectation is no
longer correct.  In the event the parties
do not agree, the matter will be resolved by the Advisory Committee.  If the Advisory Committee is unable to
resolve such matter, it will be resolved as set forth in Article 3.


 


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2.1.1                        Responsibility
– Symyx Tech.  During the Program
Term, Symyx Tech shall use efforts that are reasonable in the circumstances and
consistent with professional standards applicable to research in the Field as
well as relevant standards applied by Symyx Tech in conducting research outside
the Research Program, to conduct research activities in accordance with the
Research Plan to identify, discover or synthesize catalysts or Agreement
Compounds or Products in the Fields by preparing and screening Library
Compounds as set forth in the Research Plan and/or to develop workflows,
capabilities or Discovery Tools Systems.


 


(a)                                  Compounds
Already Identified.  Symyx Tech shall
make available for evaluation in the Research Program any compound, mixture or
composition of matter that was screened or prepared by or on behalf of Symyx
prior to the Effective Date or during the Program Term and is both
(i) owned or controlled by Symyx to the extent that no obligations to any
Third Party will be violated by use of the compound, mixture or composition in
the Research Program and (ii) believed by Symyx Tech to be potentially
useful as a Lead Compound or a precursor of a Lead Compound.


 


(b)                                 FTEs.  Symyx Tech shall utilize a minimum of an
average of * FTEs per year to conduct the Research Program in * of the Program
Term and an average of * FTEs per year to conduct the Research Program in * of
the Program Term. Such number of FTEs may be adjusted by mutual consent.  An average of at least * FTEs per year in *
of the Program Term will be devoted
to  *. Each FTE utilized by Symyx
Tech shall be qualified for the activities assigned to him or her under the
Research Program in accordance with work to be done under the Research
Plan.  The FTEs may include FTEs with
expertise in Chemistry, Engineering, Database and Software services.  The initial FTEs for Chemistry for * will be
selected from the list set forth in Exhibit F, and may include fractions
of the time of one or more of the listed persons, provided that individuals
with special skills or expertise identified as “Key Personnel” in Exhibit F
shall be available for minimum fractions of their work time during each
calendar year quarter of the Program Term as may be reasonably required
consistent with the Research Plan. 
Exhibit F shall be supplemented and amended in accordance with Research
Plans. Each Research Plan also may designate “Key Personnel” as set forth in Schedule 2.1.
It is understood and agreed that in the event one or more “Key Personnel” are
not available due to circumstances beyond the reasonable control of Symyx Tech,
Symyx Tech shall use commercially reasonable efforts to maintain the overall
level of skills and expertise by replacing one or more of the “Key Personnel”.  The Key Personnel may also be amended by
mutual agreement of Symyx Tech and TDCC. TDCC shall not unreasonably withhold
approval of changes in Key Personnel. 
Symyx shall not unreasonably withhold approval of changes to FTEs
assigned to Research Plans or other activities under this Agreement requested
by TDCC.


 


(c)                                  Other
Responsibilities.  Symyx Tech shall
use reasonable efforts to ensure that the most efficient and effective
Combinatorial Chemistry Technology reasonably


 


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available to Symyx is
timely made available for conducting the Research Program.  At TDCC’s request, Symyx Tech will use
commercially reasonable efforts to provide samples of up to * of any Lead
Compound; however, if such sample cannot be provided at a commercially
reasonable cost, Symyx Tech will so notify TDCC and the parties shall meet to
discuss how to proceed.  Symyx Tech will
also use commercially reasonable efforts to provide workflows and capabilities,
but if these cannot be provided at a commercially reasonable cost, Symyx Tech
will so notify TDCC and the parties shall meet to discuss how to proceed.  Symyx shall use reasonable commercial efforts
to timely deliver to TDCC all Program Know-How and to ensure protection of the
Program Know-How against loss or corruption. Notwithstanding any other
provision of this Agreement, Symyx shall not, without its consent, be required
to perform research activities other than in accordance with the Research Plan,
or utilize more FTEs in any given calendar year during the Program Term than
set forth in Section 2.1.1(b).


 


2.1.2                        Responsibility
– TDCC.  During the Program Term,
TDCC shall (i) conduct research activities in accordance with the Research Plan
to identify, discover or synthesize * or Agreement Compounds or Products in the
Fields and evaluate and develop work flows and capabilities, and (ii) to
provide Symyx technical information and technical support reasonably necessary
to conduct of the Research Program in accordance with the Research Plan. TDCC’s
efforts in conduct of the Research Program shall be reasonable in the
circumstances and consistent with professional standards applicable to research
in the Field as well as relevant standards applied by TDCC in conducting
research outside the Research Program. Notwithstanding any other provision of
this Agreement, TDCC shall not, without its consent, be required to disclose
proprietary information to Symyx that is not essential to conduct of the
Research Program or to provide equipment or materials.


 


2.2                                 Program
Term. The Program Term shall commence on the Effective Date and, unless
earlier terminated in accordance with Article 15, continue thereafter for
a period of*, or such other period as the parties may mutually agree in
writing. No later than * prior to the end of the Program Term, the parties will
inform one another of their respective interest in a further extension of the
Program Term.  In the event both parties
are interested in a further extension, the parties will negotiate in good faith
the terms of such extension, with the goal of completing such negotiation by *
prior to the end of the Program Term. In the event one or both parties are not
interested in a further extension, the parties will work together in good faith
to provide for a wind-down and completion of activities under this Agreement
during*.  Symyx shall use reasonable
commercial efforts during any wind-down to complete activities in accordance
with Research Plans and deliver Agreement Compounds and all Program Know-How
and related information with the objective of enabling TDCC to continue
evaluation and development of Agreement Compounds for potential
commercialization pursuant to Article 11 and complete transfer of workflows,
capabilities and delivery of any Discovery Tool Systems pursuant to Article 7
with the objective of enabling TDCC


 


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to apply Combinatorial
Chemistry Technology through the use of such Discovery Tools Systems after the
Research Program ends. In the event that either party is no longer interested
in a further extension, it will promptly give notice to the other party.


 


2.3                                 Exclusivity
and Independent Research.


 


2.3.1                        In the
Field.  During the Program Term,
Symyx shall not conduct any research activities outside the Research Program,
on its own behalf or on behalf of any Third Party, directed to*, for the
purpose of making Products within the scope of the Field applicable at that
time, provided that Symyx shall not be precluded from conducting any research
activities outside the Research Program, on its own behalf or on behalf of any
Third Party, directed to*.  In addition, during the Program Term, Symyx
shall not knowingly provide Library Compounds for screening in a particular
Field to a Third Party for use in * for the purpose of making Products within
the scope of such particular Field. Symyx shall be permitted to engage in
optimization projects on its own behalf or on behalf of a Third Party, within
the Field applicable at that time, provided that work for or on behalf of the
Third Party shall be limited to*.


 


2.3.2                        Other
Research by Symyx.  It is understood
that Symyx will conduct research activities outside the Research Program (“Other
Research”) during the Program Term for itself and/or Third Parties for the
purpose of * other than in the Field. In the event some Symyx employees work on
both the Research Program and the Other Research, Symyx shall use good faith
commercially reasonable efforts to avoid potential conflicts or overlaps
between the Research Program and Other Research and misappropriation of any
Confidential Information. It is understood that the Library Compounds are
regularly used by Symyx and that Symyx can use and screen the Library Compounds
for any use on its own behalf or for Third Parties, including without
limitation for Other Research.  In the
event that Symyx becomes aware of information, data, materials or inventions
that Symyx believes may advance the Research Program, in the course of
conducting research outside of the Research Program at its own expense or in
collaboration with a Third Party, Symyx will make available these information,
data, materials and inventions for use in the Research Program to the extent it
is free to do so without violating obligations to any Third Party; provided,
however, it is understood that this provision shall not impose, or be construed
to impose, any obligation on Symyx to identify or make itself aware of any such
information, data, materials and inventions.


 


2.3.3                        Independent
TDCC Research. It is understood that this Agreement shall not prohibit TDCC
from conducting research activities outside of and independent from the
Research Program (“Independent TDCC Research”) during the Program Term for
itself and/or with Third Parties for the purpose of*.  In the event some TDCC employees work on both
the Research Program and the Independent TDCC


 


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Research, TDCC shall use
good faith commercially reasonable efforts to avoid potential conflicts or
overlaps between the Research Program and Independent TDCC Research and
misappropriation of any Confidential Information of Symyx.  In the event that TDCC in the course of
conducting research outside of and independent from the Research Program
discovers information, data, materials or inventions (“Outside Technology”)
that TDCC believes may advance the Research Program, TDCC may make such Outside
Technology available for use in the Research Program to the extent it is free
to do so without violating obligations to any Third Party, and it is understood
that such Outside Technology shall not be deemed to be Program Technology;
provided, however, that information, data, materials or inventions made in the
Research Program shall be deemed to be Program Technology whether or not such
information, data, materials or inventions were made using Outside
Technology.   Notwithstanding the above,
TDCC will not knowingly in collaboration with any Third Party conduct research
activities using Combinatorial Chemistry methods with respect to the active
projects being conducted with Symyx in the Field applicable at that time,
provided, however, that TDCC shall not be precluded from engaging in optimization
projects in collaboration with any Third Party, and provided that this sentence
shall not restrict the use by TDCC of Discovery Tools Systems purchased and
licensed hereunder or previously purchased and licensed from Symyx.  Notwithstanding anything herein to the
contrary, a TDCC Affiliate shall not be limited in its research activities,
unless TDCC directs the research or owns the research results.


 


2.3.4                        *


 


2.3.5                        *


 


2.4                                 Changes
to Fields.  The initial Fields
activated in the Research Plan shall be those identified in Exhibit A.  During the Program Term, TDCC and Symyx Tech
may agree to conduct research in one or more additional Fields (including one
or more of the Secondary Field), or to amend Exhibit A to create a new Field or
to delete Fields that are not contemplated to be activated. Those Fields that
are not currently active but which may be included in a Research Plan upon
request of TDCC are Secondary Fields as set forth in Exhibit B.  In the event that TDCC and Symyx Tech agree
to a new Field, or a new project within the Fields, this will be documented by
appropriate written modifications to the Research Plan, including the criteria
in Schedule 2.1, and appropriate modifications in writing to the staffing
plan of the Research Program activities in connection with such Field.  TDCC and Symyx Tech may also agree to
discontinue activity in one or more Fields by written modifications to the
Research Plan.  In the event the parties
determine to discontinue research activities in any particular Field in which
research was active during the Program Term, such Field shall no longer be
within the Field in Exhibit A as of the date research activities are
discontinued, but may revert to a Secondary Field only if the parties mutually
agree in writing that this Field may be reactivated at a future date.*  Appropriate
modifications or adjustments to staffing of the Research Program will be agreed
to reflect any changes in activity of the Fields.  The Advisory


 


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Committee
described in Section 3.3 shall in general provide direction for any
changes in Fields and make formal recommendations to the Executive
Committee.  Symyx Tech shall not
unreasonably refuse to agree to changes proposed by TDCC to change activity in
the Fields.  TDCC shall not unreasonably
refuse to agree to adjustments in staffing of the Research Program proposed by
Symyx Tech as a consequence of any changes in the activity of the Fields.  TDCC may add to the Fields in connection with
projects to be activated, with the consent of Symyx Tech, such consent not to
be unreasonably withheld.  Symyx Tech may
delete from the Fields in connection with projects not planned to be activated,
with the consent of TDCC, such consent not to be unreasonably withheld.


 


2.5                                 Secondary
Fields.  Symyx may engage in
discussions with Third Parties regarding possible collaboration in any
Secondary Field.  Prior to making a
formal proposal to a Third Party to collaborate in an Secondary Field, Symyx
will notify TDCC and TDCC shall give written notice to Symyx within * informing
Symyx whether TDCC is interested in negotiating with Symyx to activate a
project in such Secondary Field.  In the
event TDCC notifies Symyx that it is interested, good faith negotiations shall
commence promptly and continue for a period not to exceed * from the giving of
such notice by TDCC to activate a collaboration in such Secondary Field.  If TDCC and Symyx agree to establish such a
collaboration, then such Secondary Field shall become part of the Fields (and
shall no longer be a Secondary Field). 
If the parties have not agreed to establish such a collaboration within
such * period, Symyx shall be free to engage in a collaboration in such
Secondary Field with a Third Party, and in such event, such Secondary Field
shall thereafter be excluded from both the Secondary Fields and the
Fields.  Notwithstanding the above, in
the event that TDCC, during the Program Term, knowingly in collaboration with
any Third Party conduct research activities using Combinatorial Chemistry
methods with respect to any of the Secondary Fields, TDCC shall promptly notify
Symyx in writing and such Secondary Field shall thereafter be excluded from
both the Secondary Fields and the Fields, provided that this sentence shall not
apply to the use by TDCC of Discovery Tools Systems purchased and licensed
hereunder or previously purchased and licensed from Symyx.


 


2.6                                 Research
Records.  Symyx Tech and TDCC shall
maintain records of the Research Program (or cause such records to be
maintained) in sufficient detail and in good scientific manner as will properly
reflect the work done and results achieved in the performance of the Research
Program (including information sufficient to establish dates of conception and
reduction to practice of inventions). 
Access to such records shall be granted as provided in Sections 8.9 and
10.2.


 


2.7                                 Development
and Commercialization of Agreement Compounds and Products.  TDCC and its Affiliates shall be responsible
for all expenses incurred for the development and commercialization of
Agreement Compounds and Products by TDCC and its Affiliates under the terms of
this Agreement.


 


2.8                                 Third
Party Claims.  In the event that TDCC
or Symyx receives a written notice from any Third Party alleging patent infringement,
misappropriation of trade secrets, or other violation of intellectual property
rights, based on research activities in the Research Program or potential
commercialization of results of the Research Program, such party shall promptly
notify the other.  Symyx and TDCC shall
use commercially reasonable efforts to determine how the objectives of any


 


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Research Program
involved may be achieved without excessive risks or costs, including potential
settlement with the Third Party.  Symyx
and TDCC, upon advice of counsel, shall each have the right, in its discretion,
to cease to conduct any research activities that are the subject of such claim
without liability to the other party; provided, however, that if TDCC or Symyx
acquires a license to permit the conduct of such activities, and/or if TDCC and
Symyx mutually agree in writing upon terms of indemnification for conduct of
such activities, then the parties will resume or continue, as appropriate, such
activities in accordance with the Research Plan and the terms and conditions of
this Agreement.  In the event a party
decides to cease to conduct any research activities pursuant to this Section 2.8,
Symyx and TDCC shall endeavor to change or modify the Fields as provided in Section 2.4
in a manner that maintains the value of the Research Program to TDCC. In the
event Symyx or TDCC decides to cease to conduct any research activities
pursuant to this Section 2.8, such cessation is a material portion of the
Research Program (at least*) and the parties are unable to agree upon changes
or modifications of the Fields as provided in Section 2.4 in a manner that
maintains the value of the Research Program to TDCC, TDCC may elect by written
notice to Symyx to limit the number of FTEs in the Research Program (and its
corresponding payment obligation pursuant to Section 8.1) to those FTEs
whose work was not subject to the cessation.


 


Article 3

MANAGEMENT


 


3.1                                 Alliance
Managers.  Symyx and TDCC each shall
designate an alliance manager on or
before the Effective Date (“Alliance Managers”) who will be responsible for the
day to day coordination of all activities under this Agreement, will act as a
single point of contact for all matters, and will be responsible for organizing
and presenting matters to the advisory and executive committees for review and
approval. Either party may replace their designated alliance manager at
any time, upon written notice to the other party, but each party shall use
reasonable efforts to maintain continuity. 
The responsibilities of the Alliance Managers may include, but are not
limited to, communication plans and notifications pursuant to this Agreement,
handling of invoices and payment issues and contacts for initial efforts to
resolve any disputes.


 


3.2                                 Research
Committees.


 


3.2.1                        Establishment.  Symyx Tech and TDCC shall establish a
committee  for each active project (the “Research
Committee”), for each Discovery Tools System deliverable hereunder as set forth
in Section 7.16 (a “Tools Committee”) and for the Software Deployment Plan
to (i) monitor technical progress and report progress to the Advisory
Committee, (ii) establish and modify the Research Plan for such project as
needed, (iii) recommend modifications to the Advisory Committee of the criteria
to define Lead Compounds for research projects within each Field, (iv)
recommend to the Advisory Committee changes in the Fields in accordance with Section 2.4,
(v) recommend to the Advisory Committee metrics for each project to be used to
assess progress against the Annual Program Goals, and (v) ensure open
communications between the parties.


 


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3.2.2                        Membership.  The Research Committee shall be comprised of
* representatives designated by each of Symyx Tech and TDCC, or such other
equal number of representatives as the parties may from time to time agree in
writing, with each party’s representatives selected by that party.  Either party may replace one or more of their
respective Research Committee members at any time, upon written notice to the
other party.  The chairperson of the
Research Committee shall be selected by TDCC. 
The secretary of the Research Committee shall be selected by Symyx Tech.


 


3.2.3                        Meetings.  During the Program Term, each Research
Committee shall meet at regular intervals at least four times per year (unless
otherwise agreed) at locations and times agreed by the parties.  Special meetings of the Research Committee
may be called by either party on ten (10) days written notice to the other
party.  All meetings shall alternate
between offices of TDCC and Symyx unless members of the Research Committee
otherwise agree.  Upon consent of the
parties, other representatives of Symyx or TDCC may attend Research Committee
meetings as nonvoting observers. 
Research Committee members may participate in any such meeting in
person, by telephone, or by video conference. 
Symyx Tech shall prepare minutes of each Research Committee meeting,
which minutes shall be subject to review and approval by TDCC.  The reviewed and approved minutes shall be
signed by Research Committee representatives of each party.


 


3.2.4                        Decision
Making.  A quorum of the Research
Committee shall be present at any meeting where at least one member of each
party participates in all decisions. 
Decisions of the Research Committee shall be made by unanimous
approval.  In the event the Research
Committee is unable to decide an issue, it may be referred by either party to
the Advisory Committee for resolution.


 


3.3                                 Advisory
Committee.


 


3.3.1                        Establishment.
Symyx and TDCC shall establish an advisory committee to (i) oversee the
direction of the overall relationship between TDCC and Symyx and the progress
toward achieving the Annual Program Goals and Key Program Goals, (ii) approve
or establish metrics used to assess progress against the Annual Program Goals,
(iii) organize quarterly progress and status reports to the Executive
Committee, (iv) resolve any issues referred to it by the Research Committees or
the Alliance Managers, (v) set the direction of the Research Program, Software
Deployment Plan and Discovery Tools System within the bounds set forth in this
Agreement, and resolve disputes or negotiate changes concerning same, and (vi)
decide upon any other changes in projects or Research Plans recommended by the
appropriate Research Committee.


 


3.3.2                        Membership.  The Advisory Committee shall be comprised of
* representatives designated by each of Symyx and TDCC (“Advisory Committee”)
with each


 


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party’s representatives
selected by that party, and with representatives having expertise in tools,
informatics and research areas.  The
initial representatives to serve on the Advisory Committee shall be selected
and communicated by each party to the other on or before the Effective
Date.  Either party may replace one or
more of their respective Advisory Committee members at any time, upon written
notice to the other party.  The
chairperson of the Advisory Committee shall be selected by TDCC.  The secretary of the Advisory Committee shall
be selected by Symyx.


 


3.3.3                        Meetings.  During the Program Term, the Advisory
Committee shall meet at regular intervals at least four times per year (unless
otherwise agreed) at locations and times agreed by the parties.  Special meetings of the Advisory Committee
may be called by either party on ten (10) days written notice to the other
party.  All meetings shall alternate
between offices of TDCC and Symyx unless members of the Advisory Committee
otherwise agree.  Upon consent of the
parties, other representatives of Symyx or TDCC may attend Advisory Committee
meetings as nonvoting observers. 
Advisory Committee members may participate in any such meeting in person,
by telephone, or by video conference. 
Symyx shall prepare minutes of each Advisory Committee meeting, which
minutes shall be subject to review and approval by TDCC.  The reviewed and approved minutes shall be
signed by Advisory Committee representatives of each party.


 


3.3.4                        Decision
Making.  A quorum of the Advisory
Committee shall be present at any meeting where at least one member of each
party participates in all decisions. 
Decisions of the Advisory Committee shall be made by unanimous approval.  In the event the Advisory Committee is unable
to decide an issue, it may be referred by either party to the Executive
Committee for resolution.


 


3.4                                 Executive
Committee. Symyx and TDCC shall establish a committee comprised of *
representative each from Symyx and TDCC (the “Executive Committee”).  Each party’s representative on the Executive
Committee shall be selected by that party, and either party may replace its
Executive Committee representative at any time, upon written notice to the
other party.  The initial members of the
Executive Committee shall be selected and communicated by each party to the
other on or before the Effective Date. 
The Executive Committee shall meet at least twice per year (unless
otherwise agreed) at locations and times agreed by the parties, and members of
the Executive Committee may participate in any such meeting in person, by
telephone, or by video conference. 
Special meetings of the Executive Committee may be called by either
party on fifteen (15) days written notice to the other party.  Upon consent of the parties, other
representatives of Symyx or TDCC may attend Executive Committee meetings as
nonvoting observers.  Symyx shall prepare
minutes of each Executive Committee meeting, which minutes shall be subject to
approval by TDCC and after approval will be signed by Executive Committee
representatives of each party.  The
Executive Committee shall be ultimately responsible for (i) overseeing the
successful execution of this Agreement, (ii) resolving any disputes not resolved
by the Advisory Committee, and (iii)


 


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approving the
Annual Program Goals.  The Executive
Committee also shall monitor progress against the Annual Program Goals and
document such monitoring and its results in the minutes of the Executive
Committee.


 


3.5                                 Annual
Program Goals.  The Advisory
Committee, in consultation with the Research Committees and Tools Committees
(as described in 7.16) and subject to the final approval of the Executive Committee,
shall set annual goals (“Annual Program Goals”) for each twelve (12) month
period commencing on January 1st of each year during the Program
Term.  Such Annual Program Goals shall
specify the activities to be carried out under this Agreement during such
twelve-month period including, without limitation (i) the Software Deployment
Plan and implementation activities to be carried out during such twelve-month
period, (ii) the Discovery Tools Systems to be fabricated and transferred to
TDCC during such twelve-month period, (iii) the research projects and Research
Plans that will be active during such twelve-month period, including
anticipated completion dates for active projects and proposed start dates for
new projects, and (iv) any other activities to be carried out during such
twelve-month period in support of achieving the Annual Program Goals and
wind-down of activities at the end of the Program Term.


 


3.6                                 Annual
Reviews.  Beginning on or about *,
and each year thereafter during the Program Term, a joint TDCC-Symyx team shall
present to the Advisory Committee and the Executive Committee an evaluation of
progress made against the Annual Program Goals during the previous calendar
year.


 


Article 4

LICENSES


 


4.1                                 License
to TDCC.


 


4.1.1                        License
in the Fields.  Subject to the terms
and conditions of this Agreement, Symyx agrees to grant, and hereby grants, to
TDCC, and TDCC hereby accepts an exclusive (even as to Symyx), worldwide,
royalty-bearing license under Symyx’s interest in the Program Technology to make,
have made, import and use Agreement Compounds to develop, make, have made, use,
sell, offer for sale, and import Products within the scope of the corresponding
Fields.  For purposes of clarification,
it is understood that for so long as TDCC retains this license, TDCC shall have
the non-exclusive right to use Library Compounds and Confidential Information
received from Symyx in the course of the Research Program, as well as Program
Technology, to develop Agreement Compounds both during and after the Program
Term and to make, have made, import and use such Agreement Compounds to
develop, make, have made, use, sell, offer for sale, and import Products within
the scope of the corresponding Fields. 
It is further understood and agreed that the licenses set forth in this Section 4.1.1
shall apply only to the Fields as such Fields exist at the time any particular
Program Know How is developed or any particular Program Patent is conceived and
reduced to practice (as defined in Section 1.30.2). A license arising with
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applicable to the
then-existing Field shall continue to apply to such Field even if the scope of
the Field is subsequently amended such that it no longer includes the Field
that was in place at the time the license initially arose. It is understood and
agreed that no license is granted to TDCC under Symyx Patents or other patents
owned or controlled by Symyx that are not Program Patents, except as provided
in Section 4.1.2 or 4.1.3.


 


4.1.2                        *


 


4.1.3                        Limited
Immunity with Respect to Symyx Patents.


 


*


 


4.2                                 Sublicenses.  Subject to the terms and conditions of this
Agreement, TDCC shall have the right to grant sublicenses under the rights
granted in Section 4.1 above to Affiliates of TDCC and TDCC Joint
Ventures; provided that the terms of each such sublicense shall be consistent
with the terms of this Agreement. It is understood that any such sublicense
shall be subject and subordinate to the terms and conditions of this Agreement,
and that TDCC shall remain responsible for all applicable financial and other
obligations under this Agreement for each such Affiliate sublicensed, including
without limitation milestone and royalty payments due to Symyx hereunder with
respect to development and sales of Products. Subject to the terms and
conditions of this Agreement, TDCC or an Affiliate of TDCC shall also have the
right to grant sublicenses under the rights granted in Sections 4.1.1 and 4.1.2
above to one or more Third Parties (other than TDCC Joint Ventures); provided
that any revenue received from such a Sublicensee for such grant shall be
shared in accordance with Section J2.1(iv) or J3.1 of Exhibit J, as
applicable.   TDCC shall provide to Symyx
Tech at least the following information with respect to each Sublicensee or
Affiliate or TDCC Joint Venture sublicensed: (i) the identity of each
Sublicensee or Affiliate or TDCC Joint Venture sublicensed, (ii) a summary
of the rights granted as to both subject matter and territory; and (iii) a
summary of the Confidential Information of Symyx and Program Technology
furnished to each Sublicensee or Affiliate or TDCC Joint Venture. No sublicense
granted by TDCC or an Affiliate to a Third Party may be further assigned or
further transferred by any Sublicensee without the prior written consent of
Symyx Tech, which consent shall not be unreasonably withheld; provided, any
such a sublicense may be further assigned by a Sublicensee without the consent
of Symyx Tech in connection with a transfer of substantially all the business
of such Sublicensee to which such sublicense relates.


 


4.3                                 Third
Party Rights.  It is understood that
Symyx is in the business of conducting materials discovery, research and
development with Third Parties, and that Symyx will continue to grant Third
Parties rights to acquire licenses related to compounds and materials derived
from such research.  It is possible that
a Third Party may acquire rights from Symyx with respect to one or more
compounds or materials that are solely owned by Symyx or jointly owned by Symyx
and a Third Party and which were made and designed independently of Symyx’s
activities in the Research Program. 
Accordingly, Symyx’s grant of rights to TDCC under Section 4.1 does
not include (i) rights that are covered by a patent application with
respect to such a compound or material that was made and designed independently
of activities in the Research Program and is solely owned by Symyx or a Third
Party


 


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or jointly owned
by Symyx and a Third Party, where such patent application was filed by a Third
Party (either alone or jointly with Symyx) prior to the filing by TDCC (either
alone or jointly with Symyx) of a patent application with respect to such a
compound or material, or (ii) rights which are subject to a license,
option, or other rights that Symyx has granted to a Third Party prior to the
Effective Date.  It is understood and
agreed that, even if Symyx complies with its obligations under this Agreement,
research for Third Parties in the course of Symyx’s other business activities
may result in patent applications and patents owned by Third Parties, or owned
jointly by Symyx and such Third Parties, which could conflict with patent
applications and patents owned by TDCC, or jointly owned by TDCC and Symyx,
under this Agreement.  Symyx shall use
its good faith commercially reasonable efforts to avoid such conflicts.  In the event that conflicts arise between
rights granted to TDCC in the Field and rights granted by Symyx outside the
Field, Symyx agrees to use commercially reasonable efforts to promote a
resolution of the conflict between TDCC and the Third Party via a cross-license
or other arrangement acceptable to the parties involved.  It is understood that, except to the extent
that TDCC is damaged as a proximate result of a material breach by Symyx of
Sections 2.3, 4.1.1, 4.1.2 or 13.2 of this Agreement, then Symyx shall have
no liability under this Agreement with respect to any such conflict.


 


4.4                                 Joint
Inventions*. TDCC, TDCC’s Affiliates, Symyx, and Symyx’s Affiliates shall
each have the right to use Joint Inventions for internal research purposes *;
provided, however, that, subject to Section 4.1.2 and prior obligations
arising under the CRLA, Symyx shall have the sole right to commercially exploit
such Joint Inventions *.  It is further
understood and agreed that Symyx shall have the right to grant Third Parties
licenses under Joint Inventions * that are exclusive even as to TDCC and
Symyx.  If Symyx grants such a license
that is exclusive even as to TDCC and Symyx, Symyx shall promptly notify TDCC
in writing.  Symyx and TDCC shall negotiate
in good faith to determine the added value attributable to TDCC and the Research
Program.  *  It is understood and agreed that Confidential
Information received by Symyx from TDCC or developed by Symyx for TDCC shall be
subject to all applicable provisions of Article 12 of this Agreement.


 


4.5                                 Retained
Rights.


 


4.5.1                        Sole
Inventions Outside the Fields. 
Subject to the license to Combinatorial Chemistry Technology in Section 4.6,
rights under Section 4.1.2 and any prior obligations under the CRLA, TDCC
and Symyx shall each retain all rights * in and to inventions and discoveries
invented or made solely by such party in the course of the Research Program,
provided that nothing contained herein shall limit TDCC’s use of Discovery
Tools Systems purchased and licensed hereunder or previously purchased and
licensed from Symyx.


 


4.5.2                        Symyx
Research.  Notwithstanding the
licenses and rights granted by Symyx in this Article 4, Symyx shall retain
the right to make, have made, and use any Library Compounds or Agreement
Compounds, and use or practice any processes or methods developed by or on
behalf of Symyx in the course of performing the Research Program, for its own
internal research to develop, improve and validate its tools and Combinatorial
Chemistry Technology.


 


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4.6                                 Combinatorial
Chemistry.  TDCC agrees to grant, and
hereby grants, to Symyx an irrevocable, royalty-free non-exclusive license,
with the right to grant and authorize sublicenses, under TDCC’s interest in
Combinatorial Chemistry Technology made or invented solely by TDCC in the
course of the Research Program, to conduct activities using Combinatorial
Chemistry.  TDCC, TDCC’s Affiliates,
Symyx and Symyx’s Affiliates shall each have the right to use Combinatorial
Chemistry Technology made or invented jointly by TDCC and Symyx in the course
of the Research Program for internal research purposes; provided, however, that
Symyx shall have the sole right to grant and authorize licenses and sublicenses
to Third Parties under such Combinatorial Chemistry Technology.  It is understood that this Section 4.6
shall not apply to any inventions conceived and reduced to practice by TDCC
independent of the Research Program and without use of, or reference to,
Combinatorial Chemistry Technology owned by Symyx, other than the use of and
reference to the Discovery Tools Systems, if any, licensed or sold to TDCC as
set forth in Article 7 or under prior agreements.  Nothing herein shall be construed to obligate
TDCC to grant to Symyx the right to use or sublicense background rights in technology
of TDCC that existed prior to the Effective Date or results of Independent TDCC
Research.


 


4.7                                 Limited
Use Outside of Field.  Except as the
parties may otherwise expressly agree in writing, TDCC shall not use or sell,
or authorize the use or sale of, Program Technology developed solely or jointly
by Symyx, or any Agreement Compound or Library Compound, except (i) in
relation to the manufacture, use or sale of Products within the corresponding
Field or Fields in accordance with the license granted by Symyx in
Sections 4.1.1, or (ii) in accordance with Section 4.1.2.  It is understood that this Section 4.7
does not preclude TDCC from the use or sale or authorizing the use or sale of
compounds developed independently by TDCC without the use of Library Compounds,
Confidential Information of Symyx, or Program Technology, or limit TDCC’s use
of Discovery Tools Systems purchased and licensed hereunder or previously
purchased and licensed from Symyx or limit the use of workflows, instruments
and equipment developed in the normal course of business of TDCC and its
Affiliates and TDCC Joint Ventures (provided that the use of such workflows,
instruments and equipment shall be licensed by Symyx only as expressly set
forth in this Agreement).


 


4.8                                 *


 


4.9                                 *


 


4.10                           General
Provisions with respect to Rights and Fields.  For the avoidance of doubt, it is understood
that as a general proposition, all licenses and rights that arise under this
Agreement, including without limitation, Sections 4.1, 4.2, and 4.4, with
respect to Program Technology with respect to any particular Field continue
even though the scope of the Field as subsequently amended does not include
such particular Field or includes other Fields. It is the intent of the parties
that this Agreement be construed such that the rights and licenses hereunder
are consistent with the scope of the Fields at the time any particular Program
Know How is developed, any particular Lead Compound is identified, or any
particular Program Patent is conceived and reduced to practice (as defined in Section 1.30.2).  By way of illustration, the above principles
shall apply such that TDCC’s rights with respect to a particular Agreement
Compound, applicable to a particular Field as of the


 


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time such
Agreement Compound arose, apply equally to any modifications TDCC might make to
such Agreement Compound, even if such modifications are made after the Field
definition has been changed.


 


Article 5

SOFTWARE


 


5.1                                 Deployment.  Symyx DTools shall provide a minimum of * and
up to * FTE years of personnel to deploy the Software during the Program Term
within TDCC and its Affiliates in accordance with a Software Deployment Plan
attached hereto as Exhibit G (“Software Deployment Plan”), as follows:  *. 
TDCC shall provide Symyx with at least twelve (12) months notice a
forecast of the staffing levels for the Software Deployment Plan (other than
staffing for 2005 and 2006, which shall be as set forth above)(e.g., if there
are expected to be less than * as of January 1, 2007, TDCC shall so notify
Symyx no later than January 1, 2006) and at least six (6) months notice
with respect to actual staffing levels for the Software Deployment Plan.   Notwithstanding any other provision of this
Agreement, Symyx shall not, without its consent, be required to perform
activities other than in accordance with the Software Deployment Plan or
utilize a number of FTEs in excess of the number of FTEs specified above. Symyx
DTools shall use efforts that are reasonable in the circumstances and
consistent with professional standards applicable to the research and
development software business to conduct activities in accordance with the
Software Deployment Plan.  TDCC contemplates
that it will provide an average of * FTEs per year during the Program Term in
support of the Software Deployment Plan, but such number may be adjusted by
mutual consent, such consent not to be unreasonably withheld.  Annual Program Goals for each twelve (12)
month period commencing on January 1st of the Program Term for
the Software Deployment Plan will be established pursuant to Section 3.5.  Symyx shall for the duration of the Program
Term and any extension thereof use commercially reasonable efforts to provide
such support services for the Software as it generally provides to its
customers, as further described in Exhibit G. 
Such support services shall be without additional charge to TDCC (other
than the payments set forth in Sections 8.2 and 8.4 hereunder).  Symyx will take reasonable steps to
facilitate the organization and operation of user groups (Renaissance user
groups for all interested Symyx customers consistent with Symyx’s practices as
of the Effective Date) for Software during the Program Term, if TDCC requests.


 


5.2                                 Software
License.  Symyx Dtools shall provide
the Software to TDCC (and to Affiliates designated by TDCC) on or before the
beginning of the Program Term and shall provide documentation for same in
accordance with the Software Deployment Plan and Annual Program Goals.   Symyx Dtools hereby grants to TDCC a
worldwide, nonexclusive, nontransferable, nonsublicensable (except as provided
in Section 5.10) right to install and use * copies of the Software, in
object code format, during the Program Term, solely for TDCC’s Internal
Research and Development Activities. Symyx does not provide, and TDCC and its
Affiliates shall be responsible to secure or use their own Oracle database[s]
and operating system[s] and appropriate licenses thereto, as well as licenses
for any Third Party software TDCC wishes to use (e.g., Spotfire).  TDCC will report to Symyx the number of users
of the Software, within * at the request of Symyx, but not more frequently than
*.


 


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5.3                                 Developer’s
Kit Software License.  Symyx Dtools
shall provide the Developer’s Kit Software to TDCC (and to Affiliates
designated by TDCC) on or before the beginning of the Program Term and shall
provide documentation for same in accordance with the Software Deployment Plan
and Annual Program Goals, and Symyx hereby grants to TDCC a worldwide,
nonexclusive, nontransferable, nonsublicensable (except as provided in Section 5.10)
right to install and use * copies of the Developer’s Kit Software, in object
code format, during the Program Term, to create Software Customizations solely
for TDCC’s Internal Research and Development Activities.  Symyx and TDCC agree that TDCC will retain
ownership of the Software Customizations (and the intellectual property rights therein)
it creates using the Developers Kit Software hereunder.  With respect to any such Software
Customizations, TDCC will either (i) rely solely on trade secret protection, or
(ii) agrees to grant and hereby grants to Symyx a nonexclusive, worldwide, perpetual,
irrevocable, paid-up, transferable, sublicenseable right to make, have made,
modify, copy, create derivative works based on, use, offer to sell, sell,
export and import any Software Customizations to the extent these are claimed
in any patent application filed by TDCC to the extent TDCC may grant rights to
Symyx. In the event TDCC elects (ii) above with respect to any Software
Customization, TDCC will provide Symyx the opportunity to review and comment on
associated patent application drafts at least * days prior to filing or
prosecuting any application for a patent with respect to any Software
Customization, and shall promptly notify Symyx in the event any patent
publishes or is issued with claims covering any Software Customization.  Notwithstanding the preceding, it is
understood and agreed that U.S. provisional patent applications (filed
under 35 U.S.C.§111(b)) may be filed by TDCC without review and comment in
order to obtain the earliest possible filing date, but TDCC will use
commercially reasonable efforts to seek review and comment from the other party
prior to filing such provisional patent applications.  Furthermore, for clarification, it is
understood that the license to Symyx under this Section shall not apply to
any inventions conceived and reduced to practice by TDCC independent of the
Developer’s Kit Software and without use of confidential information owned by
Symyx.  In addition, nothing herein shall
be construed to obligate TDCC to grant to Symyx the right to use or sublicense
background rights in technology of TDCC that existed prior to the Effective
Date.  TDCC also is not obligated to
disclose to Symyx Software Customizations kept as a trade secret. TDCC
will report to Symyx the number of users of the Developer’s Kit Software, within
* at the request of Symyx, but not more frequently than *.


 


5.4                                 Sample
Code.  TDCC may use and modify the
source code version of those portions of the Software and the Developer’s Kit
Software that are identified in the documentation as sample code (“Sample Code”).  TDCC may not distribute the Sample Code, or
any modified version of the Sample Code, in source code form, except as
provided in Section 5.10, but may provide it on a confidential basis to
third parties providing services to TDCC for the sole purpose of exercising
rights as set forth in this Article 5.


 


5.5                                 Software
Upgrades and Software Updates. 
Subject to payment by TDCC of the applicable payments pursuant to Article 8,
TDCC and its Affiliates to which rights have been extended pursuant to Section 5.10
will have the right to install and use all Software Upgrades and Software
Updates during the Program Term. 
Software Upgrades and Software Updates shall be provided promptly after
release.


 


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5.6                                 Limited
License.  By virtue of this Article,
TDCC acquires only the nonexclusive rights to operate the Software and
Developer’s Kit Software, and ownership of Software Customizations as specified
in this Article 5 and to make copies of the Software and the Developer’s
Kit Software as necessary in connection with TDCC’s and its Affiliates’ use
thereof.  All other rights in the
Software and the Developer’s Kit Software, and all title and interest in the
Software and the Developer’s Kit Software, or rights in patents, copyrights,
and trade secrets in the Software and the Developer’s Kit Software, including
the copies of the Software and the Developer’s Kit Software delivered to TDCC
and Affiliates, shall at all times remain the property of Symyx.  In particular, TDCC shall not acquire by
virtue of this Article 5 any rights in or license to, express or implied,
patents or intellectual property owned or controlled by Symyx with respect to
methods of conducting combinatorial or high throughput research other than as
expressly described in the first sentence of this Section 5.6 and as
expressly set forth in Articles 6 and 7. TDCC
acknowledges and agrees that the features of the graphical user interface of
the Software (the “User Interface”), including, without limitation, icons, menu
and screen designs, screen layouts, and command and screen sequence, are
proprietary to Symyx and are only disclosed to TDCC under a condition of
confidentiality, provided that TDCC shall not be required to take actions outside
its normal business practices with respect to the visibility of screens in its
facilities or restrictions on access that are more stringent than TDCC takes
with regard to similar licensed software. TDCC agrees that it will not create
software programs incorporating the User Interface or any part thereof, except
in accordance with Sections 5.2, 5.3 or 5.4. 
TDCC further acknowledges that the User Interface is a copyrighted work
of Symyx.


 


5.7                                 Disclaimer.
The Software and the Developer’s Kit Software (including the Sample Code) are
provided “AS IS” and without warranty of any kind, except that the Software and
the Developer’s Kit Software shall be suitable for use as set forth in Exhibit
G.  If any Software or the Developer’s
Kit Software is not suitable for such use, Symyx shall, at its option, repair
or replace at no cost to TDCC any defective or nonconforming Software (or
component thereof). The foregoing warranties and remedies will be void as to
any Software damaged or rendered unserviceable by: (a) the acts or
omissions of personnel other than Symyx employees and Symyx contractors;
(b) misuse, abuse, neglect, theft, vandalism, fire, water, or other peril;
(c) modification of, alteration of, or additions to any Software performed
by non-Symyx personnel; or (d) non-conformities arising from use of the
Software with any other hardware, software, firmware, devices, or other
products, including Software Customizations. 
Symyx does not warrant that the Software or the Developer’s Kit Software
(including the Sample Code) will meet TDCC’s or its Affiliates’ requirements or
that the operation of the Software or the Developer’s Kit Software (including
the Sample Code) will be uninterrupted or error free or that the Software or
the Developer’s Kit Software (including the Sample Code) will be compatible
with other hardware or software that TDCC or its Affiliates may elect to
operate. SYMYX MAKES AND TDCC RECEIVES NO OTHER WARRANTIES OR CONDITIONS,
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN ANY PROVISION OF THIS AGREEMENT OR
OTHER COMMUNICATION WITH TDCC, AND SYMYX SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE.


 


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5.8                                 Source
Code.  The parties on or before the
Effective Date shall enter into a source code escrow agreement that will
provide that, in the event Symyx is liquidated, dissolved or ceases to carry on
its business, or otherwise becomes unwilling or unable to support TDCC’s use of
the Software or the Developer’s Kit Software, on commercially reasonable terms,
where TDCC can demonstrate that access to the source code is reasonably
necessary for TDCC’s continued use of the Software and/or the Developer’s Kit
Software as provided in the Software Deployment Plan, and provided that TDCC is
not in default under this Agreement, a copy of the Software source code shall
be provided to TDCC solely for the purpose of the Software Development
Plan.  Such agreement shall contain
provisions for periodic verification that the escrowed source code corresponds
to Symyx’s then-current version.  Such
source code escrow agreement shall be in substantially the form entered into
between TDCC and Symyx Tech in connection with the Sale and License Agreement
entered into between TDCC and Symyx Tech as of October 22, 1999, and may
be an amendment of such agreement.


 


5.9                                 Restrictions.  TDCC will not itself, nor through any parent,
Affiliate, agent or other Third Party, except for purposes of exercising licensed
rights set forth in this Article 5: (a) reproduce, distribute, copy, sell,
lease, license or sublicense the Software, Developer’s Kit Software, or any
Software Customization; (b) use the Software, Developer’s Kit Software, or any
Software Customization; (c) attempt to, or permit any party to, through any
means, reverse engineer, disassemble, decompile, or otherwise attempt to derive
source code from the Software or the Developer’s Kit Software; (d) modify,
translate, enhance, or create derivative works based on the Software or the
Developer’s Kit Software (except as permitted in Sections 5.3 and 5.4); or (e)
remove any copyright, trademark or patent notices that appear on the Software
or the Developer’s Kit Software as delivered to TDCC. TDCC shall take
reasonable steps to limit access to the Software, Developer’s Kit Software, or
any Software Customization to employees of TDCC and Affiliates to which rights
have been extended pursuant to Section 5.10 and independent contractors
notified to Symyx in writing to whom Symyx has no reasonable objection.


 


5.10                           Right
to Extend Licenses to Affiliates. 
TDCC shall have the right to extend the licenses and other rights
granted to TDCC in this Article 5 to any of its Affiliates (but such
Affiliates shall have no right to grant any further extensions), provided that
TDCC shall not then be in default with respect to any of its obligations to
Symyx under this Article 5 or related payment obligations under Sections
8.2 or 8.4.  Any such extension shall be
in writing and shall be accepted in writing by such Affiliate.  A copy of such writing shall be provided to
Symyx upon request.  All of the
obligations and restrictions imposed on TDCC in this Agreement with respect to
the Software and the Developer’s Kit Software shall apply to such Affiliate to
the same extent as they apply to TDCC and the operations of such Affiliate
shall be deemed to be the operations of TDCC for purposes of these
obligations.  TDCC shall account
therefore and be primarily responsible for the performance by such Affiliate of
all of its obligations hereunder, if the Affiliate fails to comply.  A license extended under this Section shall
terminate for a given entity at the time such entity ceases to be an Affiliate
if not expiring or terminated sooner under the terms of this Agreement, but
TDCC shall have the right to end such use over a reasonable time period after
the entity ceases to be an Affiliate, not to exceed *, in order to transition
the former Affiliate to other software.


 


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5.11                           After
Program Term.  At the end of the
Program Term, all rights granted to TDCC and its Affiliates pursuant to this Article 5
shall terminate and revert to Symyx and TDCC and its Affiliates shall
discontinue all use of the Software and the Developer’s Kit Software, remove
such Software and Developer’s Kit Software from all workstations, except as
permitted by Article 7, and deliver to Symyx all portions and copies of
the Software and Developer’s Kit Software and any proprietary materials of
Symyx related thereto that may be in its possession. Notwithstanding the prior
sentence, TDCC may elect by written notice to Symyx prior to the end of the
Program Term to continue the provisions of this Article 5 (with the
exception of Section 5.1) for an additional period of * (“Software
Extension Term”), in which event the payment obligations set forth in Section 8.4
also shall continue and extend during such Software Extension Term.  TDCC will use reasonable efforts to notify
Symyx at least * prior to the end of the Program Term, if it desires to
continue during the Software Extension Term. 
*  Symyx will take reasonable
steps to facilitate the organization and operation of user groups (Renaissance
user groups for all interested Symyx customers consistent with Symyx’s
practices as of the Effective Date) for Software during the Software Extension
Term, if TDCC requests.


 


5.12                           Third
Party Claims.  In the event that TDCC
or Symyx receives a written notice from any Third Party alleging patent
infringement, misappropriation of trade secrets, or other violation of
intellectual property rights, based on use of Software or the Developer’s Kit
Software, such party shall promptly notify the other.  Symyx and TDCC shall use commercially
reasonable efforts to determine how the objectives of the Software Deployment
Plan may be achieved without excessive risks or costs, including potential
settlement with the Third Party.  Symyx
and TDCC, upon advice of counsel, shall each have the right, in its discretion,
to cease to use any Software or the Developer’s Kit Software that are the
subject of such claim without liability to the other party; provided, however,
that if TDCC or Symyx acquires a license to permit the conduct of such
activities, and/or if TDCC and Symyx mutually agree in writing upon terms of
indemnification for conduct of such activities, then the parties will resume or
continue, as appropriate, such activities in accordance with the Software
Deployment Plan and the terms and conditions of this Agreement.  In the event a party decides to cease to
conduct any activities pursuant to this Section 5.12, Symyx and TDCC shall
endeavor to change or modify the Software in a manner that maintains the value
of the Software Deployment Plan to TDCC. In the event Symyx or TDCC decides to
cease to conduct any activities pursuant to this Section 5.12 and such
cessation is a material portion of the Software Deployment Plan and the parties
are unable to reasonably agree upon changes or modifications that maintains the
value to TDCC, TDCC may elect by written notice to Symyx to limit the number of
FTEs or otherwise reduce the scope of the Software Deployment Plan and its
corresponding payment obligations pursuant to Section 8.2 and 8.4.


 


5.13                           IntelliChem
Products.  In the event Symyx
completes the acquisition of ownership of IntelliChem, Symyx agrees, upon the
request of TDCC, to grant, or to cause IntelliChem to grant, to TDCC a
worldwide, nonexclusive, nontransferable, nonsublicensable (except as provided
in Section 5.10) right to install and use the IntelliChem Products, in
object code format, during the Program Term, solely for TDCC’s Internal
Research and Development Activities, *. 
Such license shall be subject to the terms, conditions, restrictions,
limitations and disclaimers set forth in this Article 5,


 


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Section 10.4
and Article 15 as are applicable to the Software to the same extent as if
the IntelliChem Products are part of the Software, except:  (i) it is not expected that the IntelliChem
Products could be deployed and the Software Deployment Plan executed utilizing
the resources set forth in Section 5.1 and the parties will discuss in
good faith at TDCC’s request resources reasonably required to deploy the
IntelliChem Products, (ii) use of the IntelliChem Products by TDCC and its
Affiliates shall be limited to * Named Users, and (iii) the * software
maintenance fee set forth in Section 5.11(i) does not include
support/upgrades/updates of the IntelliChem Products and the parties will
discuss in good faith at TDCC’s request support/upgrades/updates of the
IntelliChem Products.


 


Article 6

COMBINATORIAL CHEMISTRY LICENSE


 


6.1                                 Combinatorial
Chemistry License.  Symyx hereby
grants to TDCC a * license under the Symyx Combinatorial Patent Rights, and the
Symyx Combinatorial Know How, solely to use and make Combinatorial Chemistry
for TDCC’s Internal Research and Development Activities during the Program Term
and thereafter solely as set forth in Sections 6.6 and 6.7. The license set forth in this Section specifically
excludes the right to copy or reverse engineer Symyx designed instruments, equipment, components, parts or
software.  Exhibit K sets forth how Symyx
Combinatorial Patent Rights and Symyx Combinatorial Know-How are to be
disclosed.


 


6.2                                 Non-Opposition.  The license set forth in Section 6.1
shall terminate with respect to any specified Symyx Combinatorial Patent
Rights, if, during the term thereof, TDCC or an Affiliate to which rights have
been extended pursuant to Section 6.4, directly or indirectly, provokes,
requests, or otherwise attempts to initiate a reexamination proceeding in the
United States Patent and Trademark Office with respect to any claim in such
specified Symyx Combinatorial Patent Rights as to which TDCC has license rights
under Section 6.1, or files a notice of opposition or participates in any
opposition against any claim in any Symyx Combinatorial Patent Rights as to
which TDCC has license rights under Section 6.1.  TDCC or the Affiliate shall have thirty (30)
days to withdraw such reexamination or opposition after notice from Symyx to
avoid termination of the license.


 


6.3                                 Disclaimer.  SYMYX MAKES NO OTHER REPRESENTATIONS AND
EXTENDS NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE SYMYX COMBINATORIAL PATENT RIGHTS, OR SYMYX COMBINATORIAL
KNOW HOW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, VALIDITY OF ANY SYMYX COMBINATORIAL PATENT RIGHTS OR
NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.


 


6.4                                 Right
to Extend Licenses to Affiliates. 
TDCC shall have the right to extend the licenses and rights set forth in
this Article 6 to any of its Affiliates (but such Affiliates shall have no
right to grant any further extensions), provided that TDCC shall not then be in
default with respect to any of its obligations to Symyx under this Article 6
or Section 8.5.  Any such extension
shall be in writing and shall be accepted in writing by such Affiliate.  A copy of such writing shall be provided to
Symyx upon request.  All of the
restrictions set forth in this Agreement with respect to the


 


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Combinatorial
Chemistry License shall apply to such Affiliate to the same extent as they
apply to TDCC and the operations of such Affiliate shall be deemed to be
subject to the same obligations as the operations of TDCC.  TDCC shall account therefore and be primarily
responsible for the performance by such Affiliate of all of its obligations
hereunder, if the Affiliate fails to comply. 
A license extended under this Section 6.4 shall terminate for a
given entity at the time such entity ceases to be an Affiliate if not expiring
or terminated sooner under the terms of this Agreement.


 


6.5                                 After
Program Term.  TDCC may extend the
term of the license granted pursuant to Section 6.1 on an annual basis by
written notice to Symyx at least * prior to the expiration of the Program Term
and each anniversary thereof that the license remains in force.  If TDCC elects to extend the term of such
license, TDCC shall pay Symyx * for each year the license extension is in
place, for a license of the same scope as set forth in this Article 6.  In the event TDCC desires a license of
reduced scope, the parties shall negotiate in good faith the terms and
conditions of such reduced license.


 


6.6                                 Workflows,
Instruments and Equipment Created Pursuant to License. The license provided
in this Article 6 (and related provisions) shall continue in effect after
the Program Term (and any extension pursuant to Section 6.5) or after an
earlier termination of Article 6, as applicable, solely with respect to
any specific workflow, instrument or equipment within the license in Section 6.1
that is built (or assembled) and validated during the Program Term (or an
extension thereof pursuant to Section 6.5 or as set forth in Section 6.7),
or prior to any earlier termination of Article 6, as applicable, for the
life of such workflow, instrument or equipment. 
For purposes of clarification, the prior sentence is applicable only
with respect to actual workflows, instruments or equipment built (or assembled)
and validated during the Program Term (or an extension thereof pursuant to Section 6.5
or as set forth in Section 6.7), ), or prior to any earlier termination of
Article 6, as applicable, and not to duplicates, copies or replacements
thereof (provided that during the Program Term, TDCC may request information
from Symyx as to the expected cost of a license under Symyx intellectual
property, if any, for TDCC to duplicate any particular workflow, instrument or
equipment, and Symyx shall provide such information and a binding offer on
reasonable terms upon request). A workflow, instrument or equipment shall be
validated when it is demonstrated to be capable of performing the experiments
for which it was designed in a repeatable manner with a demonstrated,
significant correlation to conventional (non-Combinatorial) experiments.  At the end of the Program Term, TDCC upon
request shall notify Symyx of the workflows, instruments and equipment subject
to this license (such information to be deemed Confidential Information and may
be subject to enhanced protection reasonably requested by TDCC).


 


6.7                                 Work in Process.  In
the event TDCC undertakes the development of a workflow, instrument or
equipment at least * prior to the end of the Program Term, such workflow,
instrument or equipment is reasonably intended to be completed by the end of
the Program Term (or any extension pursuant to Section 6.5), and such
workflow, instrument or equipment is substantially complete by the end of the
Program Term, TDCC shall be licensed under this Article 6 to complete the
development of such workflow, instrument or equipment for an additional *.  If such workflow, instrument or equipment is
validated (as described in Section 6.6) by the end of such * period, such


 


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workflow,
instrument or equipment shall be within the license set forth in Section 6.6.
At the end of the Program Term, TDCC upon request shall notify Symyx of the
workflows, instruments and equipment subject to this Section 6.7 (such
information to be deemed Confidential Information and may be subject to enhanced
protection reasonably requested by TDCC).


 


6.8                                 Results of Research.  TDCC and its Affiliates to whom rights are
extended pursuant to Section 6.4 shall have the right during the Program
Term and thereafter to sell or otherwise transfer
to Third Parties products resulting from conducting research pursuant to the
license provided in this Article 6 and to license technology resulting
from conducting research pursuant to the license provided in this Article 6
without additional consideration due Symyx, except for royalties otherwise due
if the underlying product was subject to royalty provisions under this
Agreement or the CRLA.  Notwithstanding
the above, TDCC shall not have the right to transfer Discovery Tool Systems or
components thereof to parties other than Affiliates.


 


6.9                                 Third
Party Patents.  Upon request of TDCC
or Symyx during the Program Term, but not more frequently than four (4) times
per calendar year, representatives of each party shall meet to discuss Third
Party patents and pending patent applications that may impact the use of
Combinatorial Chemistry Technology.  The
purpose of the discussion is to share information concerning prior art, the
scope and interpretation of patent claims and methods of avoiding
infringement.  Neither party shall be
obligated to share information that it deems may compromise attorney-client
privilege.


 


Article 7

DISCOVERY TOOLS


 


7.1                                 General Principles.  It is the expectation of TDCC and Symyx
DTools that at TDCC’s request and in accordance with a mutually agreed upon
schedule, Symyx DTools shall deliver to TDCC Discovery Tools Systems during the
Program Term.  TDCC commits to purchase an average of * in Tools Price of Symyx
Discovery Tools per year during the Program Term for a total of at least * of
Symyx Discovery Tools during the Program Term, including at least * in
aggregate Tools Price of Symyx Discovery Tools in * (including at least *on
or before *) and at least * in
aggregate Tools Price of Symyx Discovery Tools in *, provided Symyx DTools is
able to deliver within such time periods the Discovery Tools Systems as set
forth in Exhibit H. In the event TDCC purchases a greater amount of Symyx
Discovery Tools during the Program Term than described in the previous
sentence, the pricing provisions set forth in this Article 7 shall apply
to such additional purchases.  Attached
hereto as Exhibit H is the parties’ determination of the deliverables for the
first year and a tentative plan with respect to deliverables for one or more
subsequent years.  Subject to the terms of
this Agreement, TDCC will have flexibility to select the Discovery Tools it
wishes to acquire during the Program Term. 
TDCC will provide to Symyx annually during the Program Term a two-year
estimate of projected Discovery Tool purchases. TDCC and Symyx will consult and
take commercially reasonable actions to address each others interests in making
reasonable adjustments in scheduling and delivery of Discovery Tool Systems.
TDCC shall provide Symyx with at least * notice prior to the desired delivery of
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and Symyx will inform TDCC of estimated lead times required for
Discovery Tool Systems to assist TDCC in planning.


 


7.2                                 Eligible Tools
Systems.  Symyx DTools shall transfer
and make available for delivery to TDCC pursuant to this Article 7 during
the Program Term the following categories of Discovery Tools Systems: *.


 


7.3                                 Procedure.  TDCC shall notify Symyx DTools at such time
as it (or an Affiliate to which TDCC has extended rights pursuant to Section 7.15)
is interested in acquiring a Discovery Tools System hereunder.  At such time as the specifications for a
Discovery Tools System are finalized, Symyx DTools will provide to TDCC or such
Affiliate a mutually-acceptable detailed estimate of the Tools Cost Basis for
such Discovery Tools System (as agreed upon by the parties, a “Detailed Cost
Estimate”).  If the parties do not agree
on the estimate for the Tools Cost Basis, Symyx shall upon request make
available for review documentation reasonably in its possession concerning the
basis for such Tools Cost Basis.  If the
parties still do not agree on the estimate, the matter will be elevated by the
Tools Committee to the Advisory Committee and then to the Executive
Committee.  If TDCC or such Affiliate
elects to proceed with acquisition of such Discovery Tools System, TDCC or such
Affiliate and Symyx DTools will enter into a definitive agreement that
specifies the description and specifications of the Discovery Tools System, the
anticipated Tools Price for such system based on the Detailed Cost Estimate,
the provisions that will apply with respect to validation, delivery and payment
for such system, the training and documentation to be delivered in connection
with the Discovery Tools System, whether such Discovery Tools System will
include TDCC Supplied Components as described in Section 7.5, the warranty
coverage applicable to such Discovery Tools System and any other relevant terms
and conditions not otherwise specified herein. Symyx DTools shall use
commercially reasonable efforts to deliver each Discovery Tools System within *
following the effective date of the definitive agreement for such system,
unless otherwise agreed.  During fabrication
of a Discovery Tools System, Symyx DTools shall provide periodic (at least
quarterly) revised estimates of the anticipated Tools Cost Basis of such
system.  In the event that Symyx DTools
believes that the Tools Cost Basis of a Discovery Tools System is likely to
exceed the Detailed Cost Estimate provided pursuant to this Section 7.3 by
more than * (excluding increases based on change orders or agreed upon changes
in the design or components of the Discovery Tools System), Symyx DTools shall
provide prompt written notice thereof to TDCC, together with an estimate of the
anticipated amount of the cost overrun and an explanation of the reasons
therefore.  Symyx DTools shall cooperate
fully with TDCC to mitigate any such cost overrun.  In the event Symyx DTools notifies TDCC that
the actual Tools Cost Basis for a Discovery Tools System is likely to exceed *
of the Detailed Cost Estimate (excluding increases based on change orders or
agreed upon changes in the design or components of the Discovery Tools System),
or if the periodic revised estimates of the anticipated Tools Cost Basis of a
Discovery Tools System provided by Symyx DTools demonstrate that the actual
Tools Cost Basis for a Discovery Tools System is likely to exceed * of the
Detailed Cost Estimate provided to TDCC hereunder (excluding change orders or
agreed upon changes in the design or components of the Discovery Tools System),
TDCC may elect to terminate the relevant definitive agreement for such
Discovery Tools System by written notice to Symyx.  Upon such termination, TDCC will notify Symyx
it will either: (i) pay to Symyx DTools the


 


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Tools Price, based
on the Tools Costs Basis incurred through the date written notice of termination
is received by Symyx, and Symyx shall provide to TDCC all materials
constituting work in progress or completed paid for by TDCC in accordance
therewith, or (ii) authorize Symyx to continue work only to a defined point
where the materials constituting the work in progress shall then be delivered
to TDCC with payment then due as in (i) above. 
In the event any particular Discovery Tools System is completed and
delivered hereunder and the actual Tools Cost Basis for such Discovery Tools
System exceeds * of the Detailed Cost Estimate provided to TDCC hereunder
(excluding change orders or agreed upon changes in the design or components of
the Discovery Tools System), TDCC may elect by written notice to Symyx to
reduce its total commitment to purchase Discovery Tools System under this
Agreement (as set forth in Section 7.1) by *. In the event of change
orders or changes in the design or components of the Discovery Tools System
that TDCC or such Affiliate requests and that the parties mutually approve, the
parties will negotiate appropriate adjustments to the applicable cost estimate
and pricing of the Discovery Tools System based on such changes.


 


7.4                                 Tools
Price.  TDCC shall pay Symyx DTools
for Discovery Tools Systems transferred during the Program Term the Tools Price
as follows:  (1) for Newly Developed
Discovery Tools Systems or modules of Discovery Tools Systems that are
designated Newly Developed Discovery Tools System, the Tools Price shall be *;
and (2) for all other Discovery Tools Systems (excluding modules that are
designated a Newly Developed Discovery Tools System), the Tools Price shall be
*.  In addition to the Tools Price, TDCC
also shall pay Symyx DTools the cost of any additional warranty beyond the Warranty
Period as provided for in the agreement for any particular Discovery Tools
System as set forth in Section 7.11. The Tools Price described in this Section 7.4
is exclusive of federal, state, and local excise, sales, use, value added/ad
volorem taxes, surtax and personal property taxes, fees export/import charges
and other governmental assessments and similar taxes.  TDCC shall be liable for and shall pay all
applicable taxes and duties (other than taxes imposed on or measured by net
income) appropriately invoiced by Symyx DTools, except to the extent TDCC
provides Symyx DTools with a properly executed tax exemption certificate prior
to delivery of an invoice setting forth any such taxes.  TDCC shall
not be liable for any federal, state, or local income tax, franchise tax, or
similar tax based upon Symyx’s income. 
In addition to the Tools Price, TDCC shall bear all costs for
transportation, shipping, and insurance expenses in respect of shipment to a
delivery point designated by TDCC.  The
Tools Price shall be payable upon delivery and completion of validation of the
Discovery Tools System as set forth in the agreement for each Discovery Tools
System, unless otherwise mutually agreed by the parties, except that the
definitive agreement for each Discovery Tools System described in Section 7.3
will provide for some level of advance payments to fund the development and
construction of the Discovery Tools System. 
The total Tools Price paid by TDCC and its Affiliates for any and all
Discovery Tools System and Newly Developed Discovery Tools System shall be
included in determining whether TDCC has satisfied its commitments under Section 7.1.


 


7.5                                 TDCC
Supplied Components.  The parties may
agree, on a case by case basis, to include TDCC Supplied Components within a
Discovery Tools System, which agreement will not unreasonably be withheld. For
example, commercial analytical equipment may be TDCC Supplied Components by
mutual agreement.  TDCC Supplied
Components should not necessitate additional


 


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software,
engineering or chemistry work on the part of Symyx. It is understood, however,
that Symyx routinely incorporates Third Party components in its Discovery Tools
Systems, and that the integration, software control, validation, warranty and
support of these items within the context of an integrated workflow constitutes
part of the value of a Discovery Tools System. 
Accordingly, the parties expect that Symyx will continue to incorporate
Third Party components in its Discovery Tools Systems consistent with its
current business practices and that such Third Party components will be
included within the Tools Cost Basis, absent an agreement that they shall be
TDCC Supplied Components.


 


7.6                                 Tools
License. Subject to the terms and conditions of this Agreement, Symyx
hereby grants to TDCC the following licenses in connection with any Discovery
Tools System delivered hereunder, in each case for the life of such Discovery
Tools System (without regard for any expiration or termination of this
Agreement or of the Program Term):


 


7.6.1                        a *
license, without the right to sublicense, under the Symyx Combinatorial Patent
Rights, to use, maintain or have maintained and repair each Discovery Tools
System as delivered hereunder solely for TDCC’s Internal Research and
Development Activities;


 


7.6.2                        a *
license, without the right to sublicense, to install and use the software
delivered with each Discovery Tools System as delivered hereunder, on the
computer workstations delivered in connection therewith (and any replacements
thereof) solely in connection with TDCC’s operation of such Discovery Tools
System for TDCC’s Internal Research and Development Activities, provided that
Symyx does not provide, and TDCC shall be responsible to secure or use, its own
Oracle database and operating system and appropriate licenses thereto, as well
as licenses for any Third Party software TDCC wishes to use (e.g., Spotfire);
and


 


7.6.3                        a *
license, without the right to sublicense, to use the Symyx Combinatorial Know
How in connection solely with the operation, maintenance and repair of each
Discovery Tools System as delivered hereunder, solely for TDCC’s Internal
Research and Development Activities.


 


The licenses granted to
TDCC in this Section 7.6 shall be transferable to any TDCC Affiliate to
which the Discovery Tools System has been transferred, but only for use in the
research, development, and commercialization activities of such Affiliate
(consistent with the provisions of Section 1.47 if such Affiliate is
substituted for TDCC in such definition). 
The licenses granted to TDCC in this Section 7.6 shall be paid up
upon payment by TDCC of the Tools Price as set forth in Section 7.4 and Section 8.3.  For purposes only of this Section 7.6, “Symyx
Combinatorial Patent Rights” shall include patent rights based on claims in
patents owned or controlled in the sense of having the right to grant licenses
without accounting to a Third Party by Symyx after the Program Term.


 


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7.7                                 Named Users.  While the Software license set
forth in Article 5 remains in force, TDCC shall not be limited in the
number of users.  During any period of
time that the Software license set forth in Article 5 is not in force, the
license set forth in Section 7.6.2 shall be limited to *.  The Named Users may install * software, as
well as Software Updates and Software Upgrades thereto, on separate laboratory,
office, home, or notebook computers, or on replacements of these computers, but
use of such software is limited solely to the Named Users. During any period of
time that the Software license set forth in Article 5 is not in force,
TDCC agrees to establish and maintain records of Named Users and changes to
Named Users.


 


7.8                                 TDCC
Improvements.  TDCC may at its option
notify Symyx of any TDCC Improvements during the term of this Agreement;
provided that TDCC shall promptly notify Symyx in the event any patent
publishes or is issued with respect to any TDCC Improvements. TDCC is not
required to license or offer TDCC Improvements for license to Symyx or anyone
else, and any license of TDCC Improvements to an Affiliate of TDCC shall not be
deemed a license that triggers the provisions of this Section.  During the Program Term and for * thereafter,
TDCC hereby grants Symyx *.  Nothing
contained herein shall be deemed to provide a license to TDCC to Symyx’s
intellectual property rights with respect to any license agreement TDCC may
enter into with a Third Party pursuant to the provisions of this Section.


 


7.9                                 Consumables.  TDCC may purchase consumables for the
operation of Discovery Tools Systems delivered hereunder or have consumables
made for such use by TDCC or its Affiliates, without compensation to Symyx,
provided that Symyx patents are not infringed by article claims directed
to such consumables.   TDCC may purchase
or otherwise acquire consumables for the operation of the Discovery Tools
Systems delivered hereunder from Symyx Dtools at Symyx Dtools’ then-current
fees.  Symyx DTools agrees to negotiate
in good faith with respect to quantity discounts for Consumables purchases
consistent with its practices for similar transactions.  Symyx Dtools will make good faith and
commercially reasonable efforts to satisfy TDCC’s requirements for such
consumables as necessary for the operation of the Discovery Tools Systems,
provided TDCC has given Symyx Dtools adequate lead time for the delivery of
such consumables.  Prior to the beginning
of each calendar quarter, TDCC shall provide to Symyx Dtools a forecast of TDCC’s
anticipated requirements for consumables for the next * and Symyx shall confirm
the price at which these are available to TDCC. 
Each forecast shall be non-binding on TDCC; provided, however, that TDCC
shall use commercially reasonable efforts to make such forecasts as accurate as
possible. TDCC may initiate purchases of such consumables by fax or by e-mail
(at an address to be designated by Symyx Dtools) or by submitting written
purchase orders to Symyx Dtools. In the event Symyx Dtools is unwilling or
unable, either itself or through a designated licensee or third party, to
satisfy TDCC’s requirements for consumables, and such consumables are alone, or
in combination with a Discovery Tools System or component thereof, covered by a
claim of an issued patent owned or controlled by Symyx, which claim has not
expired or been held to be invalid or unenforceable by a court of competent
jurisdiction, Symyx agrees to grant, and hereby grants, to TDCC a nonexclusive,
royalty bearing, limited license to make or have made such consumables solely
for TDCC’s Internal Research and Development Activities only in connection with
the operation of the Discovery Tools System. 
In the event TDCC elects to have such consumables made for it by a Third
Party under such


 


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license, the
contract with the Third Party to supply consumables will specify that the
license is only to make and sell these licensed consumables for the use and
benefit of TDCC and TDCC Affiliates.  The
parties agree to document the terms of such a license in good faith, with such royalty not exceeding *.


 


7.10                           Legend.  All copies of the Discovery Tools Systems
delivered hereunder and any accompanying software and related documentation
shall include Symyx’s copyright, trademarks, patent numbers and other
proprietary notices in the manner in which such notices were placed by Symyx on
such Software and documentation. Further, Symyx may label the Discovery Tools
Systems with a permanent non-erasable identification label including but not
limited to Symyx’s name, Symyx’s model number, a sequential serial number in
Symyx’s standard format, lot code identifier, date of manufacture, location
manufactured and specification version to which the Discovery Tools System was
manufactured. TDCC shall not knowingly remove, obscure, or alter Symyx’s
copyright notices, trademarks, patent numbers or other proprietary rights
notices affixed to or contained within the Discovery Tools Systems and any
accompanying software and related documentation.


 


7.11                                     Limited
System Warranty.  Symyx DTools
warrants to TDCC that that each Discovery Tools System sold and licensed by
Symyx DTools hereunder shall conform in all material respects with the
specifications for such System for a * Warranty Period (“Warranty Period”).  The Warranty Period shall not commence until
the completion of re-assembly of the Discovery Tools System at the site of TDCC
or the TDCC Affiliate taking delivery. Symyx does not warrant that any
Discovery Tools System will meet TDCC’s requirements or that the operation of
any Discovery Tools System will be uninterrupted or error free or that any
Discovery Tools System will be compatible with other hardware or software that
TDCC may elect to operate with any Discovery Tools System.  If any Discovery Tools System does not meet
the warranty specified above during the Warranty Period, Symyx Dtools shall, at
its option, repair or replace at no cost to TDCC any defective or nonconforming
Discovery Tools System (or component thereof). The foregoing warranties and
remedies will be void as to any Discovery Tools System, components, or
associated software damaged or rendered unserviceable by: (a) the acts or
omissions of personnel other than Symyx employees and Symyx contractors; (b) misuse,
abuse, neglect, theft, vandalism, fire, water, or other peril;
(c) modification of, alteration of, or additions to any Discovery Tools
System or associated software performed by non-Symyx personnel; or (d)
non-conformities arising from use of any Discovery Tools System with any other
hardware, software, firmware, devices, or other products, including TDCC
Improvements.  During the Warranty
Period, TDCC will be entitled to rights consistent with Symyx DTools’ standard
warranty support terms and conditions, including web site access, phone
support, periodic maintenance calls for warranty related items and ability to
attend user group meetings.  The
agreement for any particular Discovery Tools System shall specify whether the
Warranty Period will be extended beyond that provided for in this Section 7.11,
on the terms and conditions set forth herein, or whether any services following
the Warranty Period will be on a time and materials basis.  Extended warranty coverage beyond the
Warranty Period may be provided for in the agreement for any particular
Discovery Tools System at a cost of *.
After the Warranty Period, additional support may be provided as set forth in Section 7.19.


 


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7.12                                     Disclaimer.  EXCEPT FOR THE LIMITED WARRANTIES SET FORTH
IN SECTION 7.11, SYMYX MAKES AND TDCC RECEIVES NO OTHER WARRANTIES OR
CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN ANY PROVISION OF THIS
AGREEMENT OR OTHER COMMUNICATION WITH TDCC WITH RESPECT TO ANY DISCOVERY TOOLS
SYSTEM DELIVERED UNDER THIS AGREEMENT, AND SYMYX SPECIFICALLY DISCLAIMS ANY
IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE.


 


7.13                                     Source
Code.  The parties shall enter into a
source code escrow agreement that will provide that, in the event Symyx is
liquidated, dissolved or ceases to carry on its business, or otherwise becomes
unwilling or unable to support TDCC, on commercially reasonable terms, in its
use of the Discovery Tools Systems delivered hereunder, where TDCC can
demonstrate that access to the source code for the software delivered with such
Discovery Tools Systems is reasonably necessary for TDCC’s continued use of the
Discovery Tools Systems, and provided that TDCC is not in default under a term
of this Agreement related to Discovery Tools Systems, a copy of such software
source code shall be provided to TDCC solely for the purpose of operating,
repairing,  and maintaining the Discovery
Tools Systems.  Such agreement shall
contain provisions for periodic verification that the escrowed source code
corresponds to Symyx’ then-current version. Such source code escrow agreement
shall be in substantially the form entered into between TDCC and Symyx Tech in
connection with the Sale and License Agreement entered into between TDCC and
Symyx Tech as of October 22, 1999, and may be an amendment thereto.


 


7.14                                     Restrictions.  TDCC agrees that it will not itself, nor
through any parent, subsidiary, Affiliate, agent or other Third Party: (i)
reproduce, distribute, copy, sell, lease, license or sublicense any Discovery
Tools System delivered hereunder or components thereof or accompanying software
(other than for back-up purposes), or any documentation directly related
thereto (other than as reasonably required in connection with the use,
maintenance, repair or operation of any Discovery Tools System); (ii) use any
Discovery Tools System delivered hereunder, components thereof or accompanying
software other than as licensed in Section 7.6 above; (iii) use the
software delivered with any Discovery Tools System delivered hereunder in
connection with any system or equipment other than the Discovery Tools System
(other than in connection with TDCC Improvements to a Discovery Tools System
that do not change the basic functionality of such Discovery Tools System and
other than as permitted under Article 5); (iv) attempt to, or permit a
Third Party to, through any means, reverse engineer, disassemble, decompile or
otherwise attempt to derive source code from the software delivered with any
Discovery Tools System delivered hereunder; or (v) use such software in
connection with any time-sharing or other multi-user network or service
bureau.  Further, TDCC agrees that access
to such software shall be limited to employees of TDCC and Affiliates to which
rights have been extended pursuant to Section 7.15 (and those independent
contractors approved by Symyx in writing) working directly with a Discovery
Tools System, or as permitted under Article 5 or Section 16.5.  Additionally,
following the Program Term, or at anytime when Symyx is unwilling or unable to
provide technical support to TDCC for its operation of the System, TDCC may
provide access to a Discovery Tools System in confidence to one or more Third
Parties that TDCC may retain to provide such technical support.


 


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7.15                           Right
to Extend Licenses to Affiliates. 
TDCC shall have the right to extend the licenses and rights set forth in
this Article 7 to any of its Affiliates (but such Affiliates shall have no
right to grant any further extensions) consistent with the provisions of Section 1.47
if such Affiliate is substituted for TDCC in such definition, provided that
TDCC shall not then be in default with respect to any of its obligations to
Symyx under this Article 7 or Section 8.3.  Any such extension shall be in writing and
shall be accepted in writing by such Affiliate. 
A copy of such writing shall be provided to Symyx upon request.  All of the restrictions set forth in this
Agreement with respect to the Discovery Tools Systems shall apply to such
Affiliate to the same extent as they apply to TDCC and the operations of such
Affiliate shall be deemed to be the operations of TDCC for purposes of this
Agreement only.  TDCC shall account
therefore and be primarily responsible for the performance by such Affiliate of
all of its obligations hereunder, if the Affiliate is not in compliance. A
license extended under this Section shall terminate for a given entity at
the time such entity ceases to be an Affiliate if not expiring or terminated
sooner under the terms of this Agreement, except as provided in Section 16.5.


 


7.16                           Committees.  A manufacturing and operating committee shall
be formed to oversee and monitor the manufacture and validation of each
Discovery Tool System and the implementation of this Agreement (a “Tools
Committee”).  Each Tools Committee shall
have at least *, but no more than *, members and shall be comprised of an equal
number of representatives designated by Symyx DTools and designated by
TDCC.  Symyx Dtools and TDCC may replace
their respective Tools Committee representatives at any time, upon written
notice to the other party.  Each Tools
Committee shall be responsible to oversee and monitor material aspects of Symyx
DTools’ assembly and manufacture of a Discovery Tools System and issues
pertaining to cost estimates and overruns as set forth in Section 7.3 and
Tools Price in Section 7.5; review conformance of the Discovery Tools
System to the corresponding specifications; review and coordinate delivery
scheduling; coordinate and facilitate purchase and supply of consumables; and
otherwise facilitate an effective flow of information between TDCC and Symyx
Dtools in respect of each Discovery Tools System and its manufacture, delivery,
operation, maintenance and repair.


 


7.17                           Results
of Research.  TDCC and its Affiliates
to whom rights are extended pursuant to Section 7.15 and successors under Section 16.5
shall have the right during the Program Term and thereafter to sell or
otherwise transfer to Third Parties
products resulting from conducting research using Discovery Tools purchased and
licensed pursuant to this Article 7 and to license technology resulting
from conducting research pursuant to the license provided in this Article 7
without additional consideration due Symyx, except for royalties otherwise due
if the underlying product was subject to royalty provisions under this
Agreement or the CRLA.  Research
independent of the Research Program conducted by TDCC and its Affiliates to whom rights are extended pursuant
to Section 7.15 using Discovery
Tools purchased and licensed pursuant to this Article 7 will not result in
Program Technology.


 


7.18                           Indemnification
Against Claims of Infringement.  In
the event any claim, action, suit or proceeding is brought in * against TDCC
claiming that a Discovery Tools System or any component thereof infringes a
claim of a Third Party’s * patent or * copyright or misappropriates a


 


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trade secret
right, Symyx shall defend the same at its expense and pay any costs, damages
and attorney fees finally awarded or negotiated as a result of settlement or
judgment against TDCC, provided that TDCC gives Symyx prompt written notice
within * of such claim against it and cooperates reasonably with Symyx in
providing all authority, information and reasonable assistance to enable Symyx
at its option to settle or defend such claim. 
Any settlement that * shall require prior written consent from TDCC,
which shall not be unreasonably withheld. Symyx shall have no liability for any
claim hereunder based on the incorporation into a Discovery Tools System of any
TDCC Improvement or any other hardware or software if such claim would have
been avoided had such TDCC Improvement or other hardware or software not been
incorporated into the Discovery Tools System. 
In the event any such legal proceeding is brought, Symyx may, at its
option and expense, replace or modify the Discovery Tools System or parts
thereof to render it non-infringing, or procure for TDCC the right to continue
using the Discovery Tools System, provided in each case *.  THE FOREGOING PROVISIONS OF THIS SECTION 7.18
STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF THE PARTIES WITH RESPECT TO ANY
ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF PATENTS, COPYRIGHTS, MASK
WORK RIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY
A DISCOVERY TOOLS SYSTEM OR ANY PART THEREOF DELIVERED TO TDCC.   SYMYX’S LIABILITY UNDER ANY CAUSE OF ACTION
ARISING UNDER THIS SECTION IS LIMITED TO * WITH RESPECT TO THE PARTICULAR
DISCOVERY TOOLS SYSTEM OR SYSTEMS SUBJECT TO SUCH CAUSE OF ACTION.


 


7.19                           Technical
Support Outside of Warranty.  Symyx
will, at TDCC’s request, negotiate in good faith to provide to TDCC technical
and maintenance support for Discovery Tools Systems after the Warranty Period
on terms competitive with those offered to Third Parties, including phone
support, maintenance services and the ability to participate in user
groups.  Symyx will take reasonable steps
to facilitate the organization and operation of user groups (Renaissance user
groups for all interested Symyx customers consistent with Symyx’s practices as
of the Effective Date), if TDCC requests. 
Symyx’s current rate as of the execution of this Agreement for out of
warranty service is .  Symyx will from
time to time provide TDCC with updated information with respect to Symyx’s
current policies and rates for such service. 
Symyx will use commercially reasonable efforts to respond within  in the event of a “critical” support request
from TDCC.  A “critical” problem is one rendering a system inoperable, with significant
business impact to TDCC and no viable workaround, where TDCC requires an
immediate fix or workaround in order to resume operation of the Discovery Tools
System.


 


7.20                           Disposal
of Discovery Tools Systems.  If a
Discovery Tools System is no longer required by TDCC or an Affiliate, TDCC
shall notify Symyx, and if Symyx so elects, Symyx may purchase such Discovery
Tools System from TDCC at *.  In the
event Symyx does not elect to purchase such Discovery Tools System from TDCC,
TDCC may sell the Discovery Tools System to a Third Party at *, with the prior
consent of Symyx, such consent not to be unreasonably withheld.  If Symyx is notified by TDCC of a proposed
sale of a particular Discovery Tools System, Symyx shall notify TDCC within *
whether or not it will consent to such sale.   
TDCC also may pursue either a donation or sale for salvage of the
Discovery Tools System on terms that protect Symyx confidential


 


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information while
providing fair return for TDCC, with the prior consent of Symyx, such consent
not to be unreasonably withheld.  If
Symyx is notified by TDCC of a proposed donation or sale for salvage of a
particular Discovery Tools System, Symyx shall notify TDCC within * days
whether or not it will consent to such donation or sale for salvage.  Any disagreement between the parties with
respect to the unreasonableness of a failure to consent under this Section 7.20
shall be resolved pursuant to Section 16.18.


 


Article 8

PAYMENTS


 


8.1                                 Research
Program Funding. TDCC shall pay Symyx Tech for FTE time spent on Research
Program at a rate per FTE of * per year during the Program Term, adjusted
pursuant to Section 8.7.  Payment
shall be made in each quarter according to the staffing for the quarter as set
forth in Section 2.1.1(b), at the funding rate set forth above. In the
event actual staffing for a particular quarter does not equal the staffing as
paid, appropriate adjustments shall be made as part of the subsequent quarter’s
invoice.


 


8.2                                 Software
Support, Integration and Implementation. 
TDCC shall pay Symyx DTools for FTE time spent by the informatics FTEs
described in Section 5.1 at a rate per FTE of * per year during the
Program Term, adjusted pursuant to Section 8.7.  Payment shall be made in each quarter
according to the staffing for the quarter as set forth in Section 5.1, at
the funding rate set forth above.  In the
event actual staffing for a particular quarter does not equal the staffing as
paid, appropriate adjustments shall be made as part of the subsequent quarter’s
invoice.  It is understood that TDCC
shall not pay the informatics FTEs for any time spent on preparing or
delivering documentation with respect to Symyx’s standard Software products, as
consideration for same is included in the payments set forth in Section 8.4,
provided that TDCC shall pay the informatics FTEs for time spent on preparing
or delivering documentation with respect to Software customized for TDCC.  *


 


8.3                                 Discovery
Tools.  TDCC will make payments to
Symyx DTools for Discovery Tools Systems purchased as set forth in Article 7,
with * of the anticipated Tools Price due within * after execution of a
definitive agreement for a particular Discovery Tools System as described in Section 7.3,
and the remainder of the actual Tools Price due within * after the delivery and
validation of such Discovery Tools System as described in Section 7.3,
unless otherwise agreed.


 


8.4                                 Software
License Fees.  In consideration for
the Software licenses as set forth in Article 5, TDCC shall pay to Symyx
DTools an annual software license fee in the amount of * during the Program
Term and Software Extension Term, if any, and other payments, if any, as set
forth in Section 5.11.  Such annual
payments shall be due and payable in equal quarterly installments.


 


8.5                                 Technology
License and Transfer Alliance Payments. 
* TDCC shall pay to Symyx Tech an annual technology license and transfer
alliance payment in the amount of * each year during the Program Term.  Such annual payments shall be due and payable
in equal quarterly installments.


 


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8.6                                 Quarterly
Payments.  The amounts set forth in
Sections 8.1, 8.2, 8.4 and 8.5 shall be paid in quarterly installments during
each year of the Research Program, beginning on * and each three months
thereafter.  All such payments are
nonrefundable and noncreditable, except as provided in Article 15.  Symyx shall provide invoices to TDCC thirty
(30) days in advance of the date a payment is due.  Each invoice shall provide reasonable
supporting documentation consistent with the terms of this Agreement with the
details that TDCC requires to authorize such payments consistent with its
business practices.


 


8.7                                 FTE
Rate Adjustments.  The FTE rates set
forth in Sections 8.1 and 8.2 shall be subject to adjustment as follows:  *.


 


8.8                                 *


 


8.9                                 Program
Records.  Symyx shall keep complete,
true and accurate books of account and records sufficient to determine the
number/hours of FTE’s utilized in each quarter during the Program Term in
connection with the performance of the Research Program, the Software
deployment and the effort to construct and deliver Discovery Tools
hereunder.  Symyx shall also make
available other books and records as may be necessary to confirm *.  Such books and records shall be kept at the
principal place of business of Symyx for at least * following the end of the
calendar year quarter to which they pertain. 
Such records will be open for inspection during normal business hours
upon * prior notice during such * period, by an independent auditor of TDCC, for
the purpose of verifying the number of Symyx FTE’s used in the Research
Program, the Software deployment and the effort to construct and deliver
Discovery Tools hereunder during the Program Term as well as other information
relevant to determination of *.  Such
inspections may be made no more than once each calendar year, at reasonable
times mutually agreed by Symyx and TDCC. 
It is understood and agreed that TDCC’s auditor will be obliged to
execute a reasonable confidentiality agreement prior to commencing any such
inspection.   Inspections conducted under
this Section 8.9 shall be at the expense of TDCC, unless a variation or
error producing an increase in the payment due exceeding the * for any period
covered by the inspection is established in the course of any such inspection,
whereupon all reasonable costs relating to the inspection for such period and
any unpaid amounts that are discovered will be paid promptly by Symyx together
with interest thereon from the date such payments were due at the lesser of
(i)  or (ii) the maximum rate permitted by law.


 


8.10                           Royalties.  TDCC shall pay to Symyx Tech (a) a
royalty on Net Sales of Products by TDCC and its Affiliates and TDCC Joint
Ventures as set forth in Exhibit J, and (b) a share of any payments from Sublicensees
as set forth in Exhibit J.


 


8.11                           Payments
in Lieu of Royalties.  Royalties due
on Net Sales of Products or classes of Products may be burdensome to calculate
and report.  TDCC and Symyx Tech in such
cases will seek to negotiate an alternative basis for calculation of
consideration payable in lieu of running royalties on such classes of Products,
which both parties deem will result in a payment to Symyx Tech of an amount
commensurate with the royalties otherwise payable under Section 8.10.


 


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8.12                           Third
Party Royalties.  Symyx shall not be
responsible for payments due to Third Parties for the manufacture, sale, or use
of Products by TDCC or its Affiliates or Sublicensees, unless Symyx has entered
into a specific written contract to pay same.


 


8.13                           Convenience
of the Parties.  The parties
acknowledge that Symyx may not own or control patent applications or patents
covering the manufacture, sale or use of a particular Product; however, that
parties agree that substantial value is expected to be contributed by Symyx in
accelerated identification, time to market, enhanced probability of success,
and the potential for multiple leads and, for the convenience of the parties,
TDCC agrees to pay royalties as specified herein during the applicable royalty
period, regardless of whether a Product is covered by a patent application or
patent owned or controlled by Symyx.


 


Article 9

PAYMENTS; BOOKS AND RECORDS


 


9.1                                 Royalty
Reports and Payments.  Except as
otherwise provided in Exhibit J, after the first commercial sale of a Product
on which royalties are payable by TDCC or its Affiliates hereunder, TDCC shall
make quarterly written reports to Symyx Tech within * after the end of each
calendar year quarter, stating in each such report, separately for TDCC and
each Affiliate, the number, description, and aggregate Net Sales, of each
Product or class of Products sold during the calendar year quarter upon which a
royalty is payable under Section 8.10. 
Concurrently with the making of such reports, TDCC shall pay to Symyx
Tech all royalties due in respect of such Net Sales at the rate determined in
accordance with Section 8.10.


 


9.2                                 Payment
Method.  All payments due Symyx under
this Agreement shall be made by bank wire transfer in immediately available
funds to a bank account designated by Symyx Tech or Symyx Dtools.  All payments hereunder shall be made in U.S.
dollars.  All payments due TDCC under
this Agreement shall be made by bank wire transfer in immediately available
funds to a bank account designated by TDCC. 
Any payments that are not paid by the end of the calendar quarter when
such payments are due under this Agreement shall bear interest at the lesser of
(i) * or (ii) the maximum rate permitted by law, in each case
calculated on the number of days such payment is delinquent.  Nothing in this Section 9.2 shall
prejudice any other rights or remedies available to either party hereunder or
at law or equity.


 


9.3                                 Place
of Royalty Payment and Currency Conversions.  Royalties shall be deemed payable by the
entity making the Net Sales of the Product from the country in which earned in
local currency and subject to foreign exchange regulations then prevailing.  Royalty payments to Symyx Tech shall be made
in United States dollars to the extent that free conversion to United States
dollars is permitted.  Any such
conversion to U.S. dollars from the currency in the country where such Net
Sales occurs shall be made using the exchange rate for conversion of the foreign
currency into U.S. Dollars employed by TDCC in the normal course of its
business for other commercial transactions on the last business day of the
calendar year quarter to which such payment pertains.  If, due to restrictions or prohibitions
imposed by national or international authority, payments cannot be made as
aforesaid, the parties shall consult with a view to finding a prompt and
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such royalties due
Symyx Tech in any country cannot be remitted to Symyx Tech within * after the
end of the calendar year quarter during which they are earned, then TDCC or its
Affiliate shall upon request of Symyx Tech deposit the full amount of such
unpaid royalties in a bank account in such country in the name of Symyx Tech,
provided that if, due to restrictions or prohibitions imposed by national or
international authority, TDCC has not received payment for the Products
generating the royalty payment obligation, the parties shall consult with a
view to finding a timely and acceptable solution.


 


9.4                                 Records;
Inspection.  TDCC and its Affiliates
and Symyx shall keep complete, true and accurate books of account and records
for the purpose of determining the royalty amounts (and revenues received from
Sublicensees) which are payable by the party under this Agreement.  Such books and records shall be kept at a
principal place of business of such party, as the case may be, for at least *
following the end of the calendar year quarter to which they pertain.  Such records will be open for inspection
during such * period by a public accounting firm to whom the party having the
books and records has no reasonable objection, solely for the purpose of verifying
royalty reports provided pursuant to Section 9.1.  Such inspections may be made no more than
once each calendar year, at reasonable times and on reasonable notice.  Inspections conducted under this Section 9.4
shall be at the expense of party initiating the audit, unless a variation or
error producing an increase in the payment due exceeding * of the amount stated
for any period covered by the inspection is established in the course of any
such inspection, whereupon all reasonable costs relating to the inspection for
such period and any unpaid amounts that are discovered will be paid promptly by
the party audited together with interest thereon from the date such payments
were due at the lesser of (i) * or (ii) the maximum rate permitted by
law. The public accounting firm employees shall sign a reasonable
confidentiality agreement as a condition precedent to their inspection, and
shall report to the party initiating the audit only that information which
would be contained in a properly prepared royalty report. The party initiating
the audit shall hold in strict confidence all information received concerning
royalty payments and reports, and all information learned in the course of any
audit or inspection, except to the extent necessary to reveal such information
in order to enforce its rights under this Agreement or if disclosure is
required by law.


 


9.5                                 Tax
Matters.  All royalty amounts and
other payments required to be paid to a party pursuant to this Agreement may be
paid with deduction for withholding for or on account of any taxes (other than
taxes imposed on or measured by net income) or similar governmental charge
imposed by applicable law (“Withholding Taxes”).  Any Withholding Taxes will be paid to the
proper tax authorities and receipts for such payment or other proof of payment
will be made available by the paying party to the other party.  The parties will exercise diligent efforts to
ensure that any withholding taxes imposed are reduced as far as possible under
provisions of any treaties applicable.


 


Article 10

INTELLECTUAL PROPERTY


 


10.1                           Ownership.  TDCC shall own any inventions or discoveries
conceived and reduced to practice and other intellectual property otherwise
developed solely by personnel of TDCC or


 


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TDCC’s Affiliates
in the course of the Research Program and shall also own inventions and
discoveries fully conceived (with sufficient specificity that it can be reduced
to practice without efforts beyond those efforts that one skilled on the art
would reasonably employ) by personnel of TDCC or TDCC’s Affiliates and reduced
to practice in the course of the Research Program by Symyx and TDCC consistent
with such conception, which pertain to Products (collectively, “TDCC Inventions”).  Symyx shall own any inventions or discoveries
conceived and reduced to practice and other intellectual property otherwise
developed solely by Symyx personnel in the course of the Research Program (“Symyx
Inventions”).  Except as provided above,
TDCC and Symyx shall jointly own any inventions or discoveries conceived and/or
reduced to practice in the course of the Research Program where personnel of
Symyx and of TDCC have each made inventive contributions to such inventions
which would result in them being determined to be joint inventors in accordance
with United States patent law (“Joint Inventions”).  Program Know-How which is jointly developed
but is not deemed to be patentable will be jointly owned.  For purposes of this Article 10, “reduced
to practice” shall be construed to include an actual reduction to practice or a
constructive reduction to practice where the concept is defined in sufficient
detail that it may have been reduced to practice by one skilled in the art
without excessive efforts beyond those efforts that one skilled in the art
would reasonably employ.


 


10.2                           Notice
of Inventions and Access to Records of the Research Program.  Symyx and TDCC shall report to the relevant
Research Committee all inventions relating to Lead Compounds, Derivative
Compounds, or Program Technology made in the course of performing the Research
Program. During the Program Term and for * thereafter, each of TDCC and Symyx
shall make available to the other party upon request research records
pertaining to such inventions as may be reasonably required to exercise any
rights of a party arising pursuant to this Agreement.  Such records and the information disclosed
therein shall be deemed Confidential Information of the party providing such
records for inspection subject to the obligations and conditions in Article 12.  Upon request and tender of payment for the
actual cost in providing copies, Symyx and/or TDCC, as appropriate, shall
provide to the requesting party legible copies of such records as are
reasonably required.


 


10.3                           Jointly
Owned IP.  Except as otherwise
expressly provided in this Agreement, both TDCC and Symyx may use, sublicense,
commercialize, or otherwise exploit all jointly-owned Program Technology
without the consent of, or obligation to account to, the other party.


 


10.4                           Software;
Discovery Tools.  Notwithstanding
anything herein to the contrary, Symyx shall own (i) all software developed in
connection with the Research Program, the development of Discovery Tools
System, or the deployment of the Software hereunder during the Program Term,
provided that the provisions of Section 5.3 shall govern with respect to
Software Customizations, and (ii) all inventions made in connection with the
development, manufacture and construction of Discovery Tools Systems
hereunder.  It is agreed that (i) and
(ii) above in this Section 10.4 shall not be Program Technology.  The above provisions in this Section 10.4
shall not be applicable to TDCC Improvements or Independent TDCC Research.


 


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10.5                           Patent
Prosecution.


 


10.5.1                  Solely-Owned
Patents.  Each party will be
responsible, in its discretion and at its sole expense, for preparing, filing,
prosecuting and maintaining patent applications and patents that are owned
solely by that party as described in Section 10.1 and 10.4, and conducting
any interferences, re-examinations, reissues, oppositions or requests for
patent term extension or governmental equivalents thereto.


 


10.5.2                  Jointly-Owned
Patents.


 


(a)                                  Combinatorial
Chemistry.  Symyx shall have the sole
right, in its discretion and at its sole expense, to prepare, file, prosecute
and maintain patent applications and patents relating to Joint Inventions owned
by TDCC and Symyx which claim Combinatorial Chemistry Technology and to conduct
any interferences, re-examinations, reissues, oppositions or requests for
patent term extension or governmental equivalents thereto.


 


(b)                                 Jointly-Owned
Patents Related to Fields.  Except as
provided in Section 10.5.2 (a), TDCC shall have the first right, in
its discretion and at its sole expense, to prepare, file, prosecute and
maintain, in consultation with Symyx, patent applications and patents relating
to Joint Inventions within the Program Technology in the Fields or pursuant to Section 4.1.2
that (i) relate to the use of Agreement Compounds to make Products in one
or more of such Fields or pursuant to Section 4.1.2, or (ii) relate
to Products in (or used in) one or more such Fields or pursuant to Section 4.1.2
or (iii) relate to processes for making Products in one or more such
Fields or pursuant to Section 4.1.2, in each case that are jointly-owned
by TDCC and Symyx, and to conduct any interferences, re-examinations, reissues,
oppositions or requests for patent term extension or governmental equivalents
thereto.  In the event that TDCC does not
file, prosecute or maintain, or conduct such other activities described above,
with respect to any such patent or patent application that claims the
composition or method of use of any Agreement Compound in the Field or pursuant
to Section 4.1.2, Symyx will have the right, in its discretion, to assume
such activities at its own expense.


 


(c)                                  Jointly-Owned
Patents Outside of the Fields. Except as provided in Section 10.5.2 (a)
and (b), Symyx shall have the first right, in its discretion and at its sole
expense, to prepare, file, prosecute and maintain, in consultation with TDCC,
patent applications and patents relating to Joint Inventions within the Program
Technology that are jointly-owned by TDCC and Symyx, and to conduct any
interferences, re-examinations, reissues, oppositions or requests for patent
term extension or governmental equivalents thereto.  In the event that Symyx does not file,
prosecute or maintain, or conduct such other activities described above, with
respect to any such patent or patent application, TDCC will have the right, in
its discretion, to assume such activities at its own expense.


 


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10.6                           Cooperation
in Patent Filing.  During the Program
Term and for * thereafter, TDCC and Symyx shall use reasonable efforts to keep
each other informed as to the status of patent matters described in this Article 10
(other than Section 10.4), including without limitation, by providing the
other the opportunity to review and comment on patent application drafts
providing the basis for Program Patents claiming inventions made in the course
of the Research Program a reasonable time in advance of applicable filing
dates, and providing the other party with copies of any substantive documents
that such party receives from applicable patent offices regarding applications
for any Program Patent, and/or applications claiming any Joint Inventions,
promptly after receipt, including notice of all official actions, interferences,
reissues, re-examinations, oppositions, potential litigation, or requests for
patent term extensions.  TDCC and Symyx
shall each reasonably cooperate with and assist the other at its own expense in
connection with such activities, at the other party’s request.  The relevant Research Committee, either
directly or through a patent committee designated by the Research Committee,
will (i) facilitate communication between the parties regarding patents
and patent applications arising from inventions made in the course of the
Research Program, and (ii) discuss and provide advice on patent strategy
related to such patent applications.  It
is understood and agreed that provisional patent applications may be filed by a
party without review and comment in order to obtain the earliest possible
filing date, but each party will use commercially reasonable efforts to seek
review and comment from the other party prior to filing such provisional patent
applications.


 


10.7                           Enforcement.


 


10.7.1                  Notice.  Each party shall promptly notify the other
party in writing if it becomes aware of any actual or threatened commercially
material infringement of the Program Patents by a Third Party.


 


10.7.2                  Inside the
Fields.  TDCC shall have the initial
right, but not the obligation, to take appropriate legal action to enforce any
Program Patents against any infringement within * by any Third Party, at its
sole cost and expense.  If, within *
following receipt of notice from Symyx of any such infringement of a
jointly-owned, issued patent, TDCC does not take such action to halt such
infringement or notify Symyx of action it proposes to take to abate patent
infringement in a commercially reasonable period, Symyx shall, in its sole
discretion, have the right, but not the obligation to take such action at its
sole expense.


 


10.7.3                  Other
Infringement.  In the event of an
actual or threatened infringement by a Third Party of a Program Patent that is
solely owned by TDCC, TDCC shall have the sole right, but not the obligation,
to take appropriate legal action to enforce such Program Patent against
infringements by Third Parties, as TDCC determines and at its expense. Except
as otherwise provided in Section 10.7.2, in the event of an actual or
threatened infringement by a Third Party of a Program Patent that is solely
owned by Symyx, or jointly by TDCC and Symyx, Symyx shall have the sole right,
but not the obligation, to take appropriate legal action to enforce such
Program Patent against infringement by Third Parties, as Symyx determines in
its


 


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discretion and at its
expense.  It is understood that Symyx may
authorize one or more Third Parties to enforce patents against infringements
outside of the Fields.


 


10.7.4                  Cooperation;
Costs and Recoveries; Settlements. 
Each party agrees to use commercially reasonable efforts to render such
assistance in the enforcement activities described in Sections 10.7.2 and
10.7.3 as the enforcing party may reasonably request.  Costs of maintaining any such action and
damages recovered therefrom shall be paid by and belong to the party bringing
the action; provided, however, that any recovery by TDCC under Section 10.7.2
in excess of * shall be divided * to TDCC and * to Symyx.  If TDCC consents to a sublicense to any Third
Party, which consent it shall not be required to give, who, but for the
sublicense, would be infringing a claim of an issued patent in the Program
Technology, TDCC shall be entitled to receive all running royalties payable by such
Third Party but such revenue received in excess * shall be included as a part
of revenues received from Sublicensees as set forth in Section J2.1(iv) or
J3.1  of Exhibit J.  Neither Symyx nor TDCC shall settle without
the consent of the other party a dispute with a Third Party regarding
infringement of a Program Patent except to the extent that such rights could
have been granted as a permitted license or sublicense without the consent of
the other party.


 


10.8                           Third
Party Claims of Infringement.  If the
manufacture, use or sale of any Product pursuant to this Agreement because of
the practice of the Program Technology results in any claim, suit or proceeding
alleging patent infringement against Symyx or TDCC (or its Affiliates or
Sublicensees), such party shall promptly notify the other party hereto in
writing setting forth the facts of such claims in reasonable detail. Each party
agrees to use commercially reasonable efforts to render assistance to the other
party in defending such claims of infringement as the defendant may reasonably
request.  The defendant shall have the *
right and obligation to defend and control the defense of any such claim, suit
or proceeding, at its own expense, using counsel of its own choice; provided,
however, it shall not enter into any settlement which admits or concedes that
any Program Patent is invalid or unenforceable, without the prior written
consent of the other party, which shall not be unreasonably withheld.  The defendant shall keep the other party
hereto reasonably informed of all material developments in connection with any
such claim, suit or proceeding.


 


Article 11

COMMERCIALIZATION


 


11.1                           Due
Diligence.  TDCC shall use
commercially reasonable efforts to develop and commercialize Agreement
Compounds and Products which in TDCC’s sound business judgment can be
profitably implemented.  It is understood
and agreed that such “commercially reasonable efforts” shall mean efforts
generally equivalent to the efforts TDCC uses with regard to its other similar
products (lower case) of comparable value, risk
and patent protection to develop and commercialize Products.  Specific diligence parameters will include
TDCC utilizing its knowledge of chemical and polymer markets to identify
suitable concepts for Products and market opportunities.


 


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11.2                           Acquisition
of Rights by Symyx Tech.  In the
event that TDCC determines it will not commercialize on its own or by license
to Third Parties or Affiliates of TDCC one or more discrete, specified chemical
entities that were identified as Lead Compounds to manufacture one or more
specified Products with respect to one or more Fields, TDCC shall notify Symyx
Tech in writing.   Symyx Tech shall for a
period of * from the receipt of such notification have the option, on written
notice to TDCC, to obtain an exclusive, worldwide right under TDCC’s interest
in Program Technology and at TDCC’s discretion, improvements or modifications
made by TDCC to such Program Technology for such Lead Compounds to be used to
manufacture, use and sell the specified Products, on * terms *.  Symyx Tech’s option rights under this Section 11.2
will not be applicable to the extent that, and only for so long as, TDCC’s
decision not to commercialize a particular Lead Compound is a result of its
active pursuit of the commercialization of another Agreement Compound under
this Agreement or the CRLA with respect to either the same Product or a Product
that would compete commercially with such Product.


 


11.3                           Reports.  During the term of this Agreement, TDCC
shall, at the written request of Symyx Tech, provide Symyx Tech with written *
reports within * of * providing a summary of the status of the research and
development activities conducted with respect to Products and Agreement
Compounds.  In addition, * times during
the term that royalties may be payable, Symyx Tech may request special reports
that provide a summary of the status of the research and development activities
conducted with respect to Products and Agreement Compounds.  TDCC will provide these special reports
within * of notification.  The reports as
described in this Section 11.3 shall contain sufficient information to
allow Symyx Tech to monitor TDCC’s compliance with this Agreement. In addition,
the parties shall at Symyx’s request engage in quarterly confidential
consultations with respect to the status of TDCC’s efforts to develop and
commercialize Agreement Compounds and Products during the Program Term and for
* thereafter, and at Symyx’s request, * during the remaining period that
royalty payments may be due to Symyx Tech. 
Any information to be provided to Symyx Tech may be subject to enhanced
secrecy obligations to be negotiated. All reports and information provided
under this Section 11.3 shall be deemed Confidential Information of TDCC.


 


Article 12

CONFIDENTIALITY


 


12.1                           Confidentiality.  Except as otherwise expressly provided
herein, the parties agree that, until the later of: (i) * from the Effective
Date of the Agreement, or (ii* from the end of the Program Term, the receiving
party shall not, except as expressly provided in this Article 12, disclose
to any Third Party or use for any purpose, any Confidential Information
furnished to it by the disclosing party pursuant to this Agreement, except in
each case to the extent that it can be established by the receiving party by
competent proof that such information:


 


(a)                                  was
already known to the receiving party, other than under an obligation of
confidentiality, at the time of disclosure;


 


(b)                                 was
generally available to the public or otherwise part of the public domain at the
time of its disclosure to the receiving party;


 


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(c)                                  became
generally available to the public or otherwise part of the public domain after
it disclosure and other than through any act or omission of the receiving party
in breach of this agreement;


 


(d)                                 was
independently developed by the receiving party without use of, or reference to,
the other party’s confidential information, as demonstrated by documented
evidence; or


 


(e)                                  was
disclosed to the receiving party, other than under an obligation of
confidentiality, by a Third Party authorized and entitled to disclose such
information to others.


 


Confidential Information shall not be considered within
the above exceptions merely because the Confidential Information is embraced by more general
information within the exceptions.  Any
combination of features of Confidential Information shall not be considered within the above exceptions merely
because individual features, as opposed to the combination itself and its
principles of operation, are within the exception.  Program Know-How to the extent that it is
exclusively licensed to TDCC pursuant to Section 4.1 shall be treated by
Symyx as if it were Confidential Information disclosed to it by TDCC for
purposes of Sections 12.1, 12.2, 12.4 and 12.5.


 


12.2                           Permitted
Use and Disclosures.  Each party
hereto may (i) use Confidential Information disclosed to it by the other
party in conducting the Research Program or otherwise performing their
obligations hereunder, and (ii) use or disclose Confidential Information
disclosed to it by the other party to the extent such use and disclosure is
reasonably necessary in (A) exercising the rights and licenses granted
hereunder, (B) prosecuting or defending litigation, (C) complying
with applicable stock market rules, laws, governmental regulations or court
orders or submitting mandatory information to tax or other governmental authorities,
(D) filing and prosecuting patent applications, subject to consultation with
the disclosing party as to the content of such patent applications prior to
filing other than as set forth in Section 10.6, or (E) making a
permitted sublicense or otherwise exercising license rights expressly granted
pursuant to this Agreement. TDCC and Symyx shall not (and agree that their
Affiliates shall not) disclose Confidential Information received from the other
party under this Agreement as permitted by 12.2(ii)(A) or (E), except pursuant
to an agreement of confidentiality with terms reasonably equivalent to those
applicable to the party to this Agreement that received the information from
the other. If a party to this Agreement is required to make any disclosure
pursuant to 12.2(ii)(B), (C) or (D) of Confidential Information received, it
will give reasonable advance notice to the other party to this Agreement and
will use reasonable efforts to secure confidential treatment of such
information (whether through protective order or otherwise), except to the
extent inappropriate in the case of patent applications.


 


12.3                           Nondisclosure
of Terms.  Each of the parties hereto
agrees not to disclose the terms of this Agreement to any Third Party without
the prior written consent of the other party hereto, which consent shall not be
unreasonably withheld, except to such party’s attorneys, advisors, investors
and others on a need to know basis under circumstances that reasonably ensure
the confidentiality thereof either: (i) in connection with exercising the
rights and licenses granted hereunder, or prosecuting or


 


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defending
litigation, (ii) in connection with negotiation of a sublicense, manufacture or
sale of a Product or an Agreement Compound, or (iii) to the extent required by
law.  Notwithstanding the foregoing, the
parties shall agree upon a press release to announce the execution of this
Agreement or developments under this Agreement, and Symyx and TDCC may each
thereafter disclose to Third Parties the information contained in such press
release without the need for further approval by the other.


 


12.4                           Publication
of Results.  Any manuscript or other
public disclosure by Symyx or TDCC describing the scientific results of the
Research Program to be published within the Program Term, or within * after the
end of the Program Term, shall be provided to the other party for review at
least * prior to its submission, except that patent applications which may be
published shall be subject only to the review described in Section 10.6.  Further, to avoid the loss of patent rights
as a result of premature public disclosure of patentable information, the
reviewing party may, within * of receiving such a proposed disclosure, notify
the publishing party in writing that the reviewing party desires to file a
patent application on any invention disclosed in such scientific results, in
which case the publishing party shall withhold publication or disclosure of
such scientific results until the earlier of (i) the time the patent
application is filed thereon, (ii) the time the parties both determine,
after consultation, that no patentable invention exists, or (iii) * after
the publishing party received notice of the reviewing party’s desire to file
such patent application.  Further, if
such scientific results contain Confidential Information of the reviewing party
that is subject to the use and nondisclosure restrictions under this Article 12,
the publishing party agrees to remove such Confidential Information from the
proposed publication or disclosure.


 


12.5                           Procedure.  Upon request of the party disclosing the
Confidential Information, providing Software or having an exclusive license of
Program Know-How, the other party will provide reasonable information
concerning practices and procedures it has established to avoid breach of
obligations in this Article 12 or under the exclusive licenses granted by
this Agreement.


 


Article 13

REPRESENTATIONS AND WARRANTIES


 


13.1                           TDCC’s
Representations.  TDCC represents and
warrants that:  (i) it has the right and
authority to enter into this Agreement and to fully perform its obligations
hereunder; (ii) this Agreement is a legal and valid obligation binding upon it
and enforceable in accordance with its terms, (iii) it has not previously
granted, and during the term of this Agreement will not knowingly make any
commitment or grant any rights that conflict in any material way with the
rights and obligations set forth herein and (iv) it has the right to extend the
rights granted by it in this Agreement.


 


13.2                           Symyx
Tech’s Representations.  Symyx Tech
represents and warrants that: (i) it has the right and authority to enter into
this Agreement, and to fully perform its obligations hereunder; (ii) this
Agreement is a legal and valid obligation binding upon it and enforceable in
accordance with its terms; (iii) it has not previously granted, and during the
term of this Agreement will not knowingly make any commitment or grant any
rights that conflict in any material way with the rights


 


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and obligations
set forth herein; (iv) it has the right to extend the rights granted by it in
this Agreement; and (v) to the best of its knowledge as of the Effective Date,
there are no existing or threatened actions, suits or claims pending against it
with respect to the Confidential Information, Combinatorial Chemistry
Technology or Library Compounds to be used in the Research Program, or Symyx
Combinatorial Patent Rights, Software or Discovery Tools Systems set forth on
Exhibit H.


 


13.3                           Symyx
DTools Representations.  Symyx DTools
represents and warrants that: (i) it has the right and authority to enter into
this Agreement, and to fully perform its obligations hereunder; (ii) this
Agreement is a legal and valid obligation binding upon it and enforceable in
accordance with its terms; (iii) it has not previously granted, and during the
term of this Agreement will not knowingly make any commitment or grant any
rights that conflict in any material way with the rights and obligations set
forth herein; (iv) it has the right to extend the rights granted by it in this
Agreement; and (v) to the best of its knowledge as of the Effective Date, there
are no existing or threatened actions, suits or claims pending against it with
respect to the Software or Discovery Tools Systems set forth on Exhibit H.


 


13.4                           Disclaimer.  TDCC and Symyx specifically disclaim any
representation, warranty or guarantee that the Research Program will be successful,
in whole or in part.  It is understood
that the failure of the parties to successfully synthesize, discover, identify
or optimize Agreement Compounds in the course of the Research Program or
develop Discovery Tools Systems shall not by itself constitute a breach of any
representation or warranty or other obligation under this Agreement or a
failure to meet Annual Program Goals; provided, however, it is understood and
agreed that the foregoing shall not be construed so as to relieve either party
from its obligation under this Agreement to perform research activities in the
Research Program.  EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS AGREEMENT, SYMYX AND TDCC MAKE NO REPRESENTATIONS
AND EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE PROGRAM TECHNOLOGY, INFORMATION DISCLOSED HEREUNDER,
LIBRARY COMPOUNDS, AGREEMENT COMPOUNDS, OR PRODUCTS, AND HEREBY EXPRESSLY
DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE, OR VALIDITY OF ANY PROGRAM TECHNOLOGY, PATENTED OR UNPATENTED, OR
NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.


 


Article 14

INDEMNIFICATION


 


14.1                           TDCC.  TDCC agrees to indemnify, defend and hold
harmless Symyx and its Affiliates and their respective directors, officers,
employees, agents and their respective successors, heirs and assigns (the “Symyx
Indemnitees”) from and against any losses, costs, reasonable expense from lost
time of Symyx employees, claims, damages, liabilities or expense (including
reasonable attorneys’ and professional fees and other expenses of litigation)
(collectively, “Liabilities”) arising, directly or indirectly out of or in
connection with Third Party (including TDCC employees and TDCC independent
contractors) claims, suits, actions, demands or judgments, including without
limitation, personal injury, product liability, patent infringement and trade
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matters, suits,
actions or demands relating to *, except, in each case, to the extent such
Liabilities result from *. The obligation to indemnify as set forth in this Section 14.1:
(a) shall apply regardless of any insurance coverage of the indemnifying party
and (b) shall apply when the Third Party asserting the claim, suit, action,
demand or judgment under this Section 14.1 is a party providing insurance
to the indemnifying party.


 


14.2                           Symyx.  Symyx agrees to indemnify, defend and hold
harmless TDCC, its Affiliates and Sublicensees and their respective directors,
officers, employees, agents and their respective heirs and assigns (the “TDCC
Indemnitees”) from and against any losses, costs, claims, damages, liabilities
or expense (including reasonable attorneys’ and professional fees and other
expenses of litigation) (collectively, “Liabilities”) arising, directly or
indirectly out of or in connection with Third Party (including Symyx employees
and Symyx independent contractors) claims, suits, actions, demands or
judgments, including without limitation, personal injury, product liability,
patent infringement and trade secret misappropriation matters, suits, actions,
or demands relating to*; and except, in each case, to the extent such
Liabilities result from *. The obligation to indemnify as set forth in this Section 14.2:
(a) shall apply regardless of any insurance coverage of the indemnifying party
and (b) shall apply when the Third Party asserting the claim, suit, action,
demand or judgment under this Section 14.2 is a party providing insurance
to the indemnifying party.


 


14.3                           Procedure.  In the event that any “Indemnitee” (either a
TDCC Indemnitee as described in Section 14.2 or a Symyx Indemnitee as
described in Section 14.1) intends to claim indemnification under this Article 14
it shall promptly notify the other party in writing of such alleged
Liability.  The indemnifying party shall
have the right to control the defense thereof with counsel of its choice that
is reasonably acceptable to Indemnitee; provided, however, that any Indemnitee
shall have the right to retain its own counsel at its own expense for any
reason.  The affected Indemnitee shall
give reasonable cooperation to the indemnifying party and its legal
representatives in the investigation of any action, claim or liability covered
by this Article 14.  The
indemnification under this Article 14 shall not apply to amounts paid by
an Indemnitee in settlement of any Liabilities if such settlement is effected
without the consent of the indemnifying party, which consent shall not be
withheld unreasonably.  The failure of
the Indemnitee to deliver notice to the indemnifying party within a reasonable
time after commencement of a claim or action, if prejudicial to the ability to
defend such claim or action, shall relieve the indemnifying party of any
liability under this Article 14 to the extent of such prejudice.  The indemnifying party will not be liable to
pay legal costs and attorney’s fees incurred by the Indemnitee in establishing
its claim for indemnification.


 


Article 15

TERM AND TERMINATION


 


15.1                           Term
of Agreement.  The term of this
Agreement shall commence on the Effective Date, and shall continue in full
force and effect through the end of the Program Term, subject to survival of
rights as provided in Section 15.7 and rights that may continue under Section 5.11,
Section 6.6 or Section 15.6.


 


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15.2                           Breach.


 


15.2.1                  Termination
for Breach.  In the event that either
party shall have materially breached or defaulted in the performance of any of
its material obligations hereunder, and such default shall have continued for *
after written notice thereof was provided by the non-breaching party, the
non-breaching party may elect to terminate only that portion of the Agreement
to which the breach pertains, if the breach relates only to one of the Research
Program, the Discovery Tools Systems or the Software, upon written notice to
the other party clearly stating the non-breaching party’s election. Termination
shall have the effects set forth in Section 15.6.  Termination of the portion of the Agreement
involved in the breach shall become effective at the end of such * period
unless the breaching party (or any other party on its behalf) has cured any
such breach or default prior to the expiration of the * period or the
non-breaching party elects not to terminate the Research Program, work on the
Discovery Tools Systems or the Software Deployment Plan, as applicable. In the
event that TDCC has materially breached this Agreement solely with respect to
an Agreement Compound or Product within a specific Field, Symyx shall only be
entitled to terminate this Agreement with respect to such Field as a result of
such breach and the remaining licenses granted to TDCC and to Symyx hereunder shall
remain in effect, subject to all the terms and conditions of this Agreement.
Any dispute as to whether or not a material breach or default has occurred or
has been timely cured or the scope of such breach shall be subject to dispute
resolution in accordance with Section 16.18.


 


15.2.2                  Other
Remedies for Breach. It is understood that in the event that a party has
breached or defaulted in performance of any of its obligations hereunder and
such breach or default shall have continued for * after written notice thereof
was provided to the breaching party by the non-breaching party, the
non-breaching party may elect to seek such specific performance and/or monetary
damages or rescission as the non-breaching party may be entitled at law or
equity, if any, pursuant to Section 16.18.


 


15.3                           Termination
for Insolvency.  If voluntary or
involuntary proceedings by or against a party are instituted in bankruptcy
under any insolvency law, or a receiver or custodian is appointed for such
party, or proceedings are instituted by or against such party for corporate
reorganization, dissolution, liquidation or winding-up of such party, which
proceedings, if involuntary, shall not have been dismissed within * after the
date of filing, or if such party makes an assignment for the benefit of
creditors, or substantially all of the assets of such party are seized or
attached and not released within * thereafter, the other party may immediately
terminate this Agreement effective upon notice of such termination or in the
event Symyx is involved in insolvency proceedings during the Program Term, TDCC
may elect to terminate the Research Program, work on Discovery Tools Systems
and/or the Software Deployment Plan, but not the Agreement upon notice to
Symyx.  Termination shall have the effects
set forth in Section 15.6.


 


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15.4                           Symyx
Tech or Symyx DTools Change of Control. 
In the event that during the Program Term, a company listed in Part 2 of
Exhibit D or a successor in interest or Affiliate of a company listed in Part 2
of Exhibit D enters into substantive negotiations with Symyx Tech or an
Affiliate to acquire ownership of Symyx Tech or Symyx DTools or substantially
all of the assets of Symyx Tech related to either the Research Program or
manufacture of Discovery Tools Systems, Symyx Tech shall promptly give TDCC
notice in writing. Notwithstanding anything to the contrary herein, Symyx Tech
shall not be obligated to give TDCC notice in violation of any applicable law
or regulations.  In the event that
greater than * of the outstanding shares of Symyx Tech’s or Symyx DTools’
voting stock is acquired, directly or through its subsidiaries, by a company
listed in Part 1 of Exhibit D (or a successor in interest to or Affiliate of a
company listed in Part 1 of Exhibit D), TDCC shall have the right to terminate
the Research Program, the Discovery Tool Systems work and/or the Software
Deployment Plan immediately upon written notice to Symyx Tech, provided that
the above shall not be applicable with respect to an acquisition of the voting
stock of Symyx DTools in the event Symyx Tech assumes in writing all of the
obligations of Symyx DTools under this Agreement and owns or controls the
assets sufficient to fully perform these obligations to the same extent as
Symyx DTools. Termination shall have the effects set forth in Section 15.6.  In addition, in such event, TDCC’s
obligations pursuant to Sections 11.2 and 11.3 shall terminate.


 


15.5                           Performance.  In the event Symyx has failed to achieve more
than * of the Annual Program Goals, as established pursuant to Section 3.5,
for * of the Program Term for one or more of either the Research Program,
Software Deployment Plan or the Discovery Tools Systems, as evidenced by the
written documentation generated during the normal course of this Agreement,
TDCC shall notify Symyx no later than *, provided that TDCC’s actions up to
that point in time are not a substantial cause of Symyx’s failure to achieve
more than * of the Annual Program Goals for * of the Research Program.  TDCC and Symyx shall both use reasonable
commercial efforts to determine how to remedy the failure for * from such
notice, and then Symyx shall have the option of adding personnel and other
resources, at its own expense, to cure such failure within * thereafter.  If Symyx does not cure within this additional
period, but substantial progress has been made, TDCC may at its sole option,
grant to Symyx by written notice an additional period of * to cure such
failure.  If after the period to cure,
including any extension granted by TDCC, there continue to be material parts of
the Annual Program Goals that have not been achieved, TDCC may elect to (a)
negotiate a mutually agreeable, narrower, more limited scope for the Research
Program, Software Deployment Plan and Discovery Tools Systems for the remainder
of the Program Term (provided that neither party shall be obligated to agree to
such a more limited scope); or (b) terminate those portions, including payment
obligations, of the Research Program, Discovery Tools Systems efforts, and
Software Deployment Plan that have not been timely remedied, upon * notice,
provided that TDCC’s actions up to that point in time are not a substantial
cause of Symyx’s failure to achieve the Annual Program Goals for * of the
Research Program. Termination shall have the effects set forth in Section 15.6,
provided that the parties shall agree in writing within * as to the additional
effects of such termination, based on the portion of the Research Program,
related Discovery Tools Systems efforts, and Software Deployment Plan that is
terminated, consistent with the general principles of Section 15.6.


 


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15.6                           Effect
of Termination.


 


15.6.1                  Accrued
Rights and Obligations.  Termination
of this Agreement for any reason shall not release either party hereto from any
liability or obligation that, at the time of such termination, has already
accrued to the other party or that is attributable to a period prior to such
termination nor preclude either party from pursuing any rights and remedies it
may have hereunder or at law or in equity with respect to any breach of this
Agreement.


 


15.6.2                  Return of
Confidential Information.  Upon any
termination of this Agreement, TDCC and Symyx shall promptly return to the
other all Confidential Information received from the other party (except one
copy of which may be retained for archival purposes and ensuring compliance
with the provisions of Article 12), and further except Confidential
Information including Program Technology that the party may have a license to continue
to use after termination.


 


15.6.3                  Termination
of the Research Program, Work on Discovery Tools Systems and/or Software
Deployment Plan. In the event the Research Program, work on Discovery Tools
Systems and/or the Software Deployment Plan is properly terminated as provided
in Sections 15.2.1, 15.2, 15.3, 15.4 or 15.5, TDCC shall have no further
obligation to make the payments otherwise due to Symyx under Sections 8.1,
8.2,  and/or 8.3, as applicable to the
portion terminated, following the effective date of such termination, provided
that TDCC shall pay all costs of the Research Program and/or the Software
Deployment Plan through the date of termination (i.e., if the date of
termination is prior to a quarterly payment date, TDCC shall pay the prorated
amount due for such quarter through the date of termination), and provided
further, upon proper termination of work on Discovery Tools Systems, TDCC will
notify Symyx it will either: (i) authorize the completion of delivery of any
Discovery Tools System in progress pursuant to Article 7 subject to the
provisions of this Agreement and the agreement with respect to such Discovery
Tools System, (ii) stop any further work on any Discovery Tools System in
progress and pay to Symyx DTools *, in which case Symyx shall provide to TDCC
all materials constituting work in progress or completed paid for by TDCC in
accordance therewith, or (iii) authorize Symyx to continue work only to a
defined point where the materials constituting the work in progress shall then
be delivered to TDCC with payment then due as in (ii) above.   In the event of termination of the Research
Program, the related provisions in this Agreement, including without limitation
Section 2.3.1, the second to the last sentence of Section 2.3.3 and Section 2.5,
shall terminate.  On request from TDCC,
Symyx Tech shall engage in an orderly transfer to TDCC of information and data
from the Program Technology developed before the effective date of a
termination of the Research Program.  It
is understood and agreed that Symyx shall have the right, in its discretion, to
continue research activities in the Field, either on its own or with a Third
Party, following


 


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any such termination,
subject to the licenses TDCC retains under Article 4. In the event of a
proper termination of the Software Deployment Plan, TDCC may elect to retain
for * the rights as provided in Article 5 (other than Section 5.1) to
the Software and the Developer’s Kit Software and the IntelliChem Products (if
the license provided in Section 5.12 has been granted) as they exist on
the date of the termination of the Research Program, without further Software
Upgrades or Software Updates or support, provided TDCC continues to be responsible
for all payments set forth in Section 8.4; if TDCC does not so elect or at
the end of such election, the Software licenses pursuant to Article 5
shall terminate and TDCC and its Affiliates shall immediately discontinue all
use of the Software, the Developer’s Kit Software, the IntelliChem Products and
all Software Customizations, remove the Software, the Developer’s Kit Software,
the IntelliChem Products and all Software Customizations from all workstations,
and deliver to Symyx all portions and copies of the Software, the Developer’s
Kit Software, the IntelliChem Products and any Software documentation provided
by Symyx that may be in their possession. TDCC’s obligations to make payments
under Section 8.4 shall end with the termination of the rights under Article 5
to use Software and IntelliChem Products.  
TDCC’s rights to use Software with Discovery Tools Systems shall not be
terminated by termination of the Software Deployment Plan.


 


15.6.4                  Refund of
Certain Payments.  In the event that
the Research Program and/or the Software Deployment Plan is properly terminated
pursuant to Section 15.2.1, 15.2, 15.3, 15.4 or 15.5, Symyx will refund to
TDCC a pro rata amount of funding paid in advance by TDCC pursuant to Sections
8.1 and/or 8.2, if any, as applicable, for periods after the effective date of
termination of the related part of the Agreement.


 


15.6.5                  Licenses.
In the event of any termination or expiration of this Agreement or portions
thereof as set forth in this Article 15, the licenses and rights set forth
in Articles 4 and 10 shall continue in accordance with the terms of this
Agreement (including the royalty obligations of this Agreement), except as
expressly set forth in Section 15.2.1. 
Any termination of the Research Program will terminate further work on
the Research Program, but does not terminate rights or licenses under Section 4.1,
sublicenses in Section 4.2 and rights in Joint Inventions under Section 4.4
with respect to all Program Technology as of or prior to the effective date of
such termination.  Termination with
respect to Discovery Tools Systems terminates work on materials not yet
delivered (subject to Section 15.6.3), but TDCC will retain rights under Article 7
with respect to any Discovery Tools Systems delivered prior to termination (or
after termination as set forth in Section 15.6.3).


 


15.6.6                        Article 6.  The termination of the Research Program, work
on Discovery Tools Systems and/or the Software Deployment Plan will not
terminate the provisions of Article 6 or the payment obligations of Section 8.5,
provided that if the Research Program, work on Discovery Tools Systems and the
Software Deployment Plan are


 


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all properly terminated
by TDCC, TDCC also can elect by written notice to Symyx to terminate the
provisions of Article 6 and the payment obligations of Section 8.5,
subject to the provisions of Section 15.7. In the event the license to the
Software continues pursuant to Article 5 after the termination of the provisions
of Article 6, it is understood that such license is only for the use of
the Software as expressly set forth in Section 5.2, and does not include
any other rights in or license to, express or implied, any patents or
intellectual property owned or controlled by Symyx (including patents and
intellectual property with respect to methods of conducting combinatorial or
high throughput research), provided that nothing contained in this Section shall
limit the provisions of Section 6.6. Except as set
forth in Section 15.7, the provisions of Article 6 and the payment
obligations of Section 8.5 shall terminate upon the expiration or proper
termination of this Agreement.


 


15.7                           Survival.   Sections 2.6, 2.7, 5.7, 5.9, 6.3, 6.6, 6.7,
6.8, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.17, 7.18, 7.19,
7.20, 8.4 (only in accordance with the provisions of Section 5.11), 8.9,
8.10, 8.11, 8.12, 8.13, 13.4, 15.2, 15.3, 15.6, and 15.7 of this Agreement, and
Articles 1, 4, 5 (only in accordance with the provisions of Section 5.11),
6 (only in accordance with the provisions of Section 6.5), 9, 10, 11, 12,
14 and 16 (with the exception of Section 16.9), shall survive the
expiration or termination of this Agreement.


 


Article 16

MISCELLANEOUS


 


16.1                           Governing
Laws.  This Agreement and any dispute
arising from the construction, performance or breach hereof shall be governed
by and construed and enforced in accordance with, the laws of the state of
Delaware, without reference to conflicts of laws principles.


 


16.2                           No
Implied Licenses.  Only the licenses
granted pursuant to the express terms of this Agreement shall be of any legal
force or effect.  No other license rights
shall be created by implication, estoppel or otherwise.


 


16.3                           Waiver.  It is agreed that no waiver by either party
hereto of any breach or default of any of the covenants or agreements herein
set forth shall be deemed a waiver as to any subsequent and/or similar breach
or default.


 


16.4                           Assignment.  This Agreement shall not be assignable by
either party to any Third Party without the written consent of the other party
hereto, except either party may assign this Agreement, without such consent, to
an Affiliate (provided that in the event of such assignment, the assigning
party shall remain liable for its obligations hereunder) or to an entity that
acquires all or substantially all of the business or assets of the assigning
party relating to the subject matter of this Agreement, whether by merger,
reorganization, acquisition, sale, or otherwise, subject to Section 15.4.  Any purported assignment not permitted by
this Section 16.4 shall be void. This Agreement shall be binding upon and
accrue to the benefit any permitted assignee, and any such assignee shall agree
to perform the obligation of the assignor.


 


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16.5                           Sale
of Business Unit.  In the event of
bona fide arm’s length sale by TDCC to a Third Party of a division or business
unit (a “Business Unit Transaction”), the following provisions shall apply:  (i) 
TDCC may, in connection with the Business Unit Transaction, assign to
such division or business unit TDCC’s rights in Program Technology in the
Field[s] applicable to the business of such division or business unit, subject
to the royalty obligations and other provisions set forth herein; (ii) any
then-existing Field or Secondary Field applicable to the business of such
division or business unit shall no longer be within the Field or Secondary
Field and any then-existing research project under this Agreement applicable to
such division or business unit shall cease promptly, provided that all Program
Technology pre-dating the effective date of such transaction shall remain  subject to the applicable licenses set forth
in this Agreement; (iii) TDCC may, in connection with the Business Unit
Transaction, transfer to such division or business unit any Discovery Tools
System that previously had been purchased and licensed by TDCC hereunder,
subject to such division or business unit’s agreement to abide by the
provisions of Article 7 of this Agreement and any definitive agreement
with respect to such Discovery Tools System, and such division or business unit
shall be licensed to use such Discovery Tools System to the same extent as TDCC
would be so licensed absent the Business Unit Transaction; (iv) TDCC may, in
connection with the Business Unit Transaction, transfer to such division or
business unit any workflow, instrument or equipment described as set forth in Section 6.6,
subject to the division or business unit’s agreement to abide by the provisions
of Article 6 of this Agreement, and such division or business unit shall
be licensed to use such workflow, instrument or equipment to the same extent as
TDCC would be so licensed absent the Business Unit Transaction; (v) other than
as set forth in (iv) above, the division or business unit shall have no rights
under Article 6 herein absent a separate written agreement between Symyx
and the division or business unit; (vi) TDCC may, in connection with the Business
Unit Transaction, transfer to such division or business unit a right to use the
Software pursuant to Article 5, subject to such division or business unit’s
agreement to abide by the provisions of Article 5 of this Agreement, and
such division or business unit shall be licensed to use such Software to the
same extent as TDCC would be so licensed absent the Business Unit Transaction
during the period of time in which TDCC would be so licensed, provided that (1)
such right shall only apply to the then-current version of the Software at the
time of the Business Unit Transaction (the division or business unit shall have
no rights to Software Upgrades, Software Updates, or support from Symyx absent
a separate written agreement between Symyx and the division or business unit),
(2) such right shall only apply with respect to *, and (3) such right shall
apply only to the Software and not to the IntelliChem Products.


 


16.6                           Independent
contractors.  The relationship of the
parties hereto is that of independent contractors.  The parties hereto are not deemed to be
agents, partners or joint ventures of the others for any purpose as a result of
this Agreement or the transactions contemplated thereby.


 


16.7                           Limitation
of Liability.  IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER IN ANY WAY FOR ANY INDIRECT, SPECIAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING IN ANY WAY OUT OF THIS
AGREEMENT UNDER ANY CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, LOST
BUSINESS, LOST PROFITS, LOSS OF DATA, WORK DELAYS, OR COSTS OF


 


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PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


16.8                           Representation
by Legal Counsel.  Each party hereto
represents that it has been represented by legal counsel in connection with
this Agreement and acknowledges that it has participated in the drafting
hereof.  In interpreting and applying the
terms and provisions of this Agreement, the parties agree that no presumption
shall exist or be implied against the party that initially drafted such terms
and provisions.


 


16.9                           Solicitation
of Employees.  TDCC and Symyx both
agree that they will not, during the Program Term, actively recruit or solicit
employment of any scientific or technical personnel of the other party involved
in the Research Program or development of catalysts for synthesis of
polyolefins.  It is understood that the
foregoing restriction shall not apply to, or be breached by:
(i) advertising open positions, participating in job fairs, and conducting
comparable activities to recruit skilled or unskilled help from the general
public, or responding to individuals contacted through such methods,
(ii) responding to unsolicited inquiries about employment opportunities or
possibilities from job placement agencies or other agents acting for
unidentified principals, or (iii) responding to unsolicited inquiries
about employment opportunities from any individual.


 


16.10                     TDCC
Affiliates.  It is understood and
agreed that TDCC may at its sole discretion fulfill some or all of its
obligations by or through its Affiliates, and that TDCC may grant sublicenses
under the Program Technology to its Affiliates subject to the terms and
conditions of this Agreement.  TDCC
hereby warrants and guarantees the performance by its sublicensed Affiliates
of, and shall remain jointly and severally liable for, all applicable
obligations of its Affiliates sublicensed under this Agreement, including
without limitation, the payment of applicable royalties.


 


16.11                     Compliance
with Laws.  In exercising their
rights under this license, the parties shall fully comply in all material
respects with the requirements of any and all applicable laws, regulations,
rules and orders of any governmental body having jurisdiction over the exercise
of rights under this license including, without limitation, those applicable to
the discovery, development, manufacture, distribution, import, use, export and
sale of Products or Agreement Compounds pursuant to this Agreement.


 


16.12                     Export
Control Regulations.  The rights and
obligations of the parties under this Agreement, shall be subject in all
respects to United States laws and regulations as shall from time to time govern
the license and delivery of technology and products abroad, including the
United States Foreign Assets Control Regulations, Transaction Control
Regulations and Export Control Regulations, as amended, and any successor
legislation issued by the Department of Commerce, International Trade
Administration, or Office of Export Licensing. 
Without in any way limiting the provisions of this Agreement, each party
hereto agrees that, unless prior authorization is obtained from the Office of
Export Licensing, it shall not export, reexport, or transship, directly or
indirectly, to any country, any of the technical data disclosed to it by the
other party, or any equipment or software, if such export would violate the
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department or agency of
the United States Government.  This
provision shall survive termination of this Agreement.


 


16.13                     Headings.  The captions to the several Sections hereof
are not part of this Agreement, but are included merely for convenience of
reference and shall not affect its meaning or interpretation.


 


16.14                     Notices.  All notices, requests and other
communications hereunder shall be in writing and shall be hand delivered, or
sent by express delivery service with confirmation of receipt, or sent by
registered or certified mail, return receipt requested, postage prepaid, or by
facsimile transmission (with written confirmation copy by registered
first-class mail), in each case to the respective address or facsimile number
indicated below.


 


	
  Symyx:

  	
   

  	
  Symyx Tech or Symyx
  DTools

  
	
   

  	
   

  	
  3100 Central Expressway

  
	
   

  	
   

  	
  Santa Clara, CA 95051

  
	
   

  	
   

  	
  Attn: President &
  COO

  
	
   

  	
   

  	
  Fax: (408) 748-0175

  
	
   

  	
   

  	
  w/copy to: Legal Dept.
  at fax # (408) 773-4029

  
	
   

  	
   

  	
   

  
	
  TDCC:

  	
   

  	
  The Dow Chemical
  Company

  
	
   

  	
   

  	
  IP Law, 1790 Building

  
	
   

  	
   

  	
  Midland, MI 48674

  
	
   

  	
   

  	
  Attn: Assistant General
  Counsel, IP

  
	
   

  	
   

  	
  Fax: (989) 636-7592

  



 


Any such notice shall be
deemed to have been given when received. 
Either party may change its address or facsimile number by giving the
other party written notice, delivered in accordance with this Section.


 


16.15                     Severability.  In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect to the fullest extent permitted by law without said provision, and the
parties shall amend the Agreement to the extent feasible to lawfully include
the substance of the excluded term to as fully as possible realize the intent
of the parties and their commercial bargain.


 


16.16                     Force
Majeure.  Neither party shall lose
any rights hereunder or be liable to the other party for damages or losses
(except for payment obligations) on account of failure of performance by the
defaulting party if the failure is occasioned by war, strike, fire, Act of God,
act of terrorism, earthquake, flood, lockout, embargo, governmental acts or
orders or restrictions, failure of suppliers, or any other reason where failure
to perform is beyond the reasonable control and not caused by the negligence,
intentional conduct or misconduct of the non-performing party and such party
has exerted all reasonable efforts to avoid or remedy such force majeure;
provided, however, that in no event shall a party be required to settle any
labor dispute or disturbance.


 


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16.17                     Complete
Agreement.  This Agreement with its
Exhibits, constitutes the entire agreement, both written and oral, between the
parties with respect to the subject matter hereof, and all prior agreements
respecting the subject matter hereof, either written or oral, express or
implied, shall be abrogated, canceled, and are null and void and of no effect.  No amendment or change hereof or addition
hereto shall be effective or binding on either of the parties hereto unless
reduced to writing and executed by the respective duly authorized
representatives of Symyx and TDCC.


 


16.18                     Dispute
Resolution.  Any dispute under this
Agreement that is not settled by mutual consent shall be finally settled by
binding arbitration, conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association by three (3) neutral arbitrators
appointed in accordance with said rules, unless the parties agree to conduct
such arbitration with a single arbitrator. 
The arbitration shall be held in Wilmington, Delaware, and the
arbitrators shall be independent experts with a background suitable for the
matters in dispute.  The arbitrators
shall determine what discovery will be permitted, consistent with the goal of
limiting the cost and time which the parties must expend for discovery;
provided the arbitrators shall permit such discovery as they deem necessary to
permit an equitable resolution of the dispute. 
Any written evidence originally in a language other than English shall
be submitted in English translation accompanied by the original and a true copy
thereof.  The costs of arbitration,
including administrative and arbitrators’ fees, shall be shared equally by the
parties.  Each party shall bear its own
costs and attorneys’ and witness’ fees. 
A disputed performance or suspended performances pending the resolution
of the arbitration must be completed within * following the final decision of
the arbitrators or such other reasonable period as the arbitrators determine in
a written opinion.  Any arbitration
subject to this Section 16.18 shall be completed within * from the filing
of notice of a request for such arbitration. 
The award shall be final and binding upon the parties hereto.  Judgment upon any decision rendered by the
arbitrators may be entered by any court having jurisdiction. Within * of the
commencement of an arbitration proceeding, the parties shall agree upon a
timetable to conduct and complete such proceeding within the * period as
specified above.


 


16.19                     TDCC Site
Access.  Symyx accepts the terms and
conditions in Schedule 16.19 and shall obligate its employees and contractors
that will provide services under this Agreement, including FTEs and personnel
delivering or providing services for Discovery Tools Systems, to agree to
comply with the terms of Schedule 16.19 while on the premises of TDCC or
its Affiliates.


 


16.20                     Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same agreement.


 


16.21                     Continuation
of Rights in Collaboration Agreement. 
The CRLA, including the rights, licenses and obligations set forth
therein, shall continue in full force and effect in accordance with its terms,
except as expressly modified by this Agreement.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
authorized representatives and delivered in duplicate originals as of the
Effective Date.


 


 


	
  THE DOW CHEMICAL
  COMPANY

  	
  SYMYX TECHNOLOGIES,
  INC.

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SYMYX DISCOVERY TOOLS,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
								



 


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LIST OF
EXHIBITS AND SCHEDULES


 


	
  Exhibit A:  Fields

  	
   

  
	
  Exhibit B:  Secondary Fields

  	
   

  
	
  Exhibit C: Procedure
  for Lead Compound Identification

  	
   

  
	
  Exhibit D:  Company List

  	
   

  
	
  Exhibit E:  Direct Chemical Modification

  	
   

  
	
  Exhibit F:  List for Initial Chemistry FTEs for *

  	
   

  
	
  Exhibit G: Software
  Deployment Plan

  	
   

  
	
  Exhibit H: Discovery
  Tools Systems

  	
   

  
	
  Exhibit I: Exclusions
  from Symyx Combinatorial Patents

  	
   

  
	
  Exhibit J: Royalties

  	
   

  
	
  Exhibit K:  Procedure for Transfer of Symyx
  Combinatorial Know-How

  	
   

  
	
  Exhibit L: Selected
  Definitions

  	
   

  
	
   

  	
   

  
	
  Schedule 2.1   Template
  for Research Plan

  	
   

  
	
  Schedule 16.19  Access
  to TDCC Property

  	
   

  



 


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EXHIBIT A


FIELDS


 


*


 


 


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EXHIBIT B


SECONDARY FIELDS


 


*


 


 


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EXHIBIT C


PROCEDURE
FOR LEAD COMPOUND IDENTIFICATION


 


1.                                       At
such time as Symyx Tech has identified a Library Compound which it believes may
meet the established criteria for a Lead Compound in a particular activated
Field or Research Plan it shall provide the data and results supporting such
conclusion to the Research Committee. 
Examples of target criteria for Lead Compounds are set forth in the Lead
Compound Criteria Section of the Research Plan.


 


2.                                       Following
the identification of any potential Lead Compound, at TDCC’s request, Symyx
Tech shall prepare and deliver to TDCC reasonable * quantities of such
potential Lead Compound, which TDCC shall use in confirming whether such
potential Lead Compound meets the applicable lead criteria.  Symyx Tech will use commercially reasonable
efforts to provide quantities in such amounts as the Research Committee may
determine is reasonably required by TDCC for testing, and will notify TDCC if
it is not commercially reasonable to provide such quantities to TDCC, in which
case the parties agree to meet and discuss how to proceed with respect to such
Lead Compound.


 


3.                                       The
Research Committee shall review the results provided by TDCC with respect to a
potential Lead Compound, and if the Research Committee determines that such
results indicate that the applicable lead criteria have been satisfied, then
such Library Compound shall be deemed to be a Lead Compound for all purposes of
this Agreement.


 


4.                                       In
the event that the Research Committee requests further information or the
conduct of further studies to confirm whether a potential Lead Compound meets
the applicable lead criteria, Symyx Tech and TDCC shall use commercially
reasonable efforts to prepare any such information and conduct such studies.


 


 


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EXHIBIT D


COMPANY
LIST


 


*


 


 


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EXHIBIT E


 


DIRECT
CHEMICAL MODIFICATION*


 


 


Confidential


 


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EXHIBIT F


 


FTE List
for *


 


 


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EXHIBIT G


Software
Deployment Plan


 


*


 


 


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1





















 


EXHIBIT H


Discovery
Tools Systems


 


*


 


 


Confidential


 


1





















 


EXHIBIT I


Exclusions
from Symyx Combinatorial Patent Rights


 


*


 


 


Confidential


 


1





















 


EXHIBIT J


Royalties


 


*


 


 


Confidential


 


1





















 


EXHIBIT K


Procedure
for Transfer of Symyx Combinatorial Know-How


 


*


 


 


Confidential


 


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EXHIBIT L


Selected
Definitions


 


*


 


 


Confidential


 


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*


 


 


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SCHEDULE 2.1


TEMPLATE
FOR RESEARCH PLAN


 


1.               Project Name:


 


2.               Research Plan
Effective Date:


 


3.               Project Description
and Scope:


 


a.               Anticipated
duration of Research Plan


 


b.              Description and
Objectives:


 


c.               Project
Scope/Technical Background


 


d.              Key Personnel


 


e.               Anticipated Number
of Symyx FTEs


 


f.                 Criteria for
identifying a Lead Compound (if applicable):


 


4.               Research Committee
members:


 


a.               Symyx:


 


b.              TDCC:


 


5.               Symyx
responsibilities:


 


6.               Dow
responsibilities:


 


7.               Initial Annual
Program Goals:


 


8.               How Royalty Rate is
to be determined (if applicable):


 


9.               Scope of “Limited
Immunity” under Section 4.1.3 (if applicable):


 


10.         Will Discovery Tools
System be developed?


 


a.               If yes, is it
expected this Discovery Tools System will be delivered to TDCC


 


b.              If Discovery Tools
System will be delivered, will all or a defined module of this be a Newly
Developed Discovery Tools System?  If
yes, describe that portion


 


 


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Schedule 16.19


 


TDCC
PROPERTY ACCESS TERMS AND CONDITIONS


 


SAFETY AND SECURITY:  In the event that under this Agreement
consultations, Software deployment, Discovery Tools System services, or other
services (“Services”) are provided on property of TDCC or its Affiliates (“TDCC
or Affiliate Property”), Symyx agrees that any and all Services provided on
TDCC or Affiliate Property shall be performed in accordance with the terms and
conditions of the applicable TDCC or Affiliate Property’s  rules and procedures, provided that such
rules and procedures are provided to Symyx in advance. Symyx shall comply with
any other plant site or office rules and procedures for the locations at which
Symyx will provide Services, provided that such rules and procedures are
provided to Symyx in advance.  In event
of any changes in applicable rules and procedures for TDCC or Affiliate
Property or TDCC or its Affiliate offices, TDCC shall notify Symyx.  In addition, Symyx shall establish reasonable
procedures to monitor and maintain records of all recordable injuries or
illnesses (as defined by any government entity) occurring to Symyx employees
and independent contractors (“Symyx Personnel”) while performing Services that
are made known to Symyx.  Symyx shall
provide copies of such records to TDCC upon request.


 


*


 


SYMYX EMPLOYEE AGREEMENT:  Symyx shall take all reasonable steps to
inform its personnel and independent contractors of Symyx’s obligations under
this Agreement.  Symyx shall require
Symyx Personnel given access to TDCC Confidential Information to sign an
agreement in the same form as Symyx regularly requires its employees to sign to
insure confidentiality of information.


 


COMPUTER ACCESS:  Symyx Personnel to be given
access to a TDCC computer system will comply with TDCC’s reasonable terms and
conditions for such access as provided to Symyx and shall confirm compliance in
writing, if requested by TDCC.


 


RIGHT OF INSPECTION:  TDCC reserves the right to
inspect any documents, vehicle or container entering or leaving its premises,
and the right to conduct on its property unannounced inspections and searches
of, including but not limited to, the work place, lunchrooms, offices, control
rooms, lockers, briefcases, baggage, purses, desks, toolboxes, clothing and
vehicles for the purpose of discovering violations of any applicable TDCC policies.


 


INDEMNIFICATION:  The indemnification
obligations of Symyx to TDCC in Section 14.2 shall apply to claims, suits,
actions, demands or judgments of Symyx Personnel arising under this Agreement.


 


*


 










* = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY ASTERISKS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.


 


Confidential


 


 


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