MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. "[ * ]" BRACKETED ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
MANUFACTURE OR HAVE MANUFACTURED [ * ]. FOR ADDITIONAL CLARITY, EXCEPT AS
EXPLAINED IN THE PREVIOUS SENTENCE, THE LICENSE IN THIS SECTION 3.2 PERMITS
ILLUMINA AND ITS AFFILIATES TO MAKE, HAVE MADE, SELL, HAVE SOLD, OFFER FOR SALE,
HAVE OFFERED FOR SALE, USE, HAVE USED, IMPORT, AND HAVE IMPORTED ILLUMINA
PRODUCTS, AND NOTHING IN THIS SUPPLY AGREEMENT WILL LIMIT THE RIGHTS OF ILLUMINA
AND ITS AFFILIATES TO CONFER RIGHTS OF USE AND RESALE UPON ANY PARTY THAT
PURCHASES OR OTHERWISE RECEIVES AN ILLUMINA PRODUCT FROM ILLUMINA OR AN
AFFILIATE THEREOF. FOR FURTHER CLARITY, ANY ADDITIONAL RIGHTS WITH RESPECT TO
PATENT RIGHTS AND KNOW HOW RIGHTS THAT COMBIMATRIX MAY GRANT TO ILLUMINA AND ITS
AFFILIATES ARE IN SEPARATE AGREEMENTS BETWEEN THE PARTIES IF AND WHEN SUCH
AGREEMENTS ARE EXECUTED.
3.3
PRICING UPDATES. COMBIMATRIX AGREES THAT, UPON
ILLUMINA'S REQUEST, IT WILL ENTER INTO GOOD-FAITH NEGOTIATIONS WITH ILLUMINA TO
UPDATE THE PRICING IN EXHIBIT A TO INCLUDE PRICING FOR [ * ].
3.4
QC TEST. IF A [ * ] PASSES THE QC TEST LISTED
IN EXHIBIT B, THEN IT IS JUDGED TO BE ACCEPTABLE AND MAY NOT BE RETURNED TO
COMBIMATRIX FOR REFUND.
3.5
PURCHASE ORDER COMMITMENT. ILLUMINA AGREES TO
SUBMIT PURCHASE ORDERS ITSELF OR BY ITS AFFILIATES FOR [ * ] THAT, IN THE
AGGREGATE OVER THE PERIOD BEGINNING ON THE EFFECTIVE DATE AND ENDING ON [ * ],
TOTAL [ * ]. FOR CLARITY, ILLUMINA MAY SUBMIT PURCHASE ORDERS THAT EXCEED THE [
* ] MINIMUM. UPON TERMINATION OF THE SUPPLY AGREEMENT BEFORE [ * ] UNDER
SECTIONS 2.1, 2.2 (IF COMBIMATRIX IS THE TERMINATING PARTY), 2.3, OR 19.2,
ILLUMINA SHALL PAY TO COMBIMATRIX A NON-REFUNDABLE AMOUNT THAT IS EQUAL TO [ * ]
MINUS THE SUM OF ALL AMOUNTS ALREADY PAID BY ILLUMINA OR ITS AFFILIATES, OR
ALREADY COMMITTED TO BE PAID, TO COMBIMATRIX UP TO THE END DATE, FOR THE SUPPLY
OF [ * ] UNDER THIS SUPPLY AGREEMENT. FOR CLARITY, TERMINATION OF THIS SUPPLY
AGREEMENT AT ANY TIME AFTER ILLUMINA HAS PAID TO COMBIMATRIX THE SUM OF [ * ] OR
MORE FOR PURCHASE OF [ * ] UNDER THIS SUPPLY AGREEMENT SHALL NOT REQUIRE ANY
ADDITIONAL PAYMENT BY ILLUMINA, OTHER THAN AMOUNTS OWED UNDER OUTSTANDING
PURCHASE ORDERS. ANY POST-TERMINATION PAYMENT DUE PURSUANT TO THIS SECTION 3.5
SHALL BE MADE WITHIN THIRTY (30) DAYS AFTER THE END DATE.
3.6
[ * ] AND CUSTOM KIT. ILLUMINA AGREES THAT A [
* ] CAN BE USED TO CREATE ONE OR MORE CUSTOM KITS OF [ * ] (I.E., USES INCLUDED
IN ALL CUSTOM KITS MADE FROM THAT [ * ]).
IF ILLUMINA SELLS MORE THAN ONE
CUSTOM KIT MADE FROM A PARTICULAR [ * ], FOR EACH CUSTOM KIT SOLD BEYOND THE
FIRST CUSTOM KIT (I.E, FOR THE 2ND AND EACH HIGHER CUSTOM KIT SOLD), ILLUMINA
WILL PAY AN "EXTRA-KIT AMOUNT" TO COMBIMATRIX.
IN THE FIRST 12 MONTH