Amended And Partially Restated Collaboration Agreement

AMENDED AND PARTIALLY RESTATED COLLABORATION AGREEMENT
BETWEEN


ACLARA BIOSCIENCES, INC.
AND


PE CORPORATION (NY)


Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information Subject to the confidentiality request. Omissions are designated as [*]. A complete version of this Exhibit has been filed separately with the Securities and Exchange Commission.


AMENDED AND RESTATED COLLABORATION AGREEMENT


THIS AMENDED AND RESTATED COLLABORATION AGREEMENT (this "AMENDED GA AGREEMENT") is signed as of March 22, 2002 ("AMENDMENT SIGNING DATE") and effective as of May 17, 2001 ("AMENDMENT EFFECTIVE DATE"), by and between ACLARA BIOSCIENCES, INC., a Delaware corporation having its principal place of business at 1288 Pear Avenue, Mountain View, California 94043 ("ACLARA"), and PE CORPORATION (NY), a New York corporation, through its Applied Biosystems Group, having its principal place of business at 850 Lincoln Center Drive, Foster City, California 94404 ("ABG"). ACLARA and ABG may be referred to herein individually as a "Party" or, collectively, as "Parties."


RECITALS


WHEREAS, ABG (as the successor-in-interest to The Perkin-Elmer Corporation) and ACLARA (as the successor-in-interest to Soane Biosciences, Inc.) entered a Collaboration Agreement, dated April 25, 1998 (the "GA AGREEMENT"), related to the development of genetic analysis systems incorporating microfluidic electrophoresis devices; and


WHEREAS, ABG and ACLARA each desire to be able to (i) independently develop products pursuant to the terms of this Amended GA Agreement that, if developed pursuant to the terms of the GA Agreement, would be Licensed Product, and (ii)


jointly develop products as Licensed Product pursuant to the terms of the GA Agreement if the Parties agree to do so as provided herein; and


WHEREAS, the GA Agreement incorporates certain provisions, including, without limitation, provisions relating to the Parties' wish to amend and restate as set forth below


Now, THEREFORE, in consideration of the foregoing premises and the promises and undertakings set forth herein, the Parties agree as follows:


ARTICLE 1


DEFINITIONS


Except as otherwise set forth below, terms with initial capitals shall be defined as set forth in the GA Agreement.


1.1 "JOINT DEVELOPMENT PROPOSAL" shall have the meaning assigned to it in Section 3.1.


1.2 "POST EXCLUSIVE PERIOD PRODUCT" means any product developed in accordance with the terms of this Amended GA Agreement that, if developed in accordance with the terms of the GA Agreement without amendment and restatement as provided herein, would be Licensed Product.


1.3 "PRODUCT NET SALES" means (i) with respect to sales by a Party, or an Affiliate of a Party, or a distributor of a Party to non-affiliated third party purchasers, the actual amount of gross sales of Post Exclusive Period Product to a third party, less: trade, cash and quantity discounts granted at the time of invoice, if any, actually allowed, amounts refunded for faulty or


defective product, returns, rejections, freight, insurance and other transportation costs (except income taxes), tariffs, duties and similar governmental charges paid, to the extent included in gross sales price, (ii) with respect to sales by a Party made to any Affiliate or to any person, firm or corporation enjoying a special course of dealing with a Party, the Product Net Sales will be determined based on the first resale in a bona fide arms-length transaction of Post Exclusive Period Product by such Affiliate, person, firm or corporation to third parties, and (iii) with respect to Post Exclusive Period Product which are used by a Party, or an Affiliate of a Party, to supply services or information to a third party for commercial purposes, or are otherwise disposed of, the Product Net Sales shall be determined as if such Post Exclusive Period Product had been sold at the average Product Net Sales for such Post Exclusive Period Product during the past one hundred and twenty days.


ARTICLE 2


THE GA AGREEMENT


2.1 PARTIES. ACLARA agrees to assume the rights and obligations of SBio under the GA Agreement. ABG agrees to assume the rights and obligations of Perkin-Elmer under the GA Agreement.


2.2 PURPOSE OF AMENDMENT. Notwithstanding the terms and conditions of the GA Agreement, subject to the terms and conditions provided herein, ABG and ACLARA each hereby agree that each Party may independently develop Post Exclusive Period Product. In addition, notwithstanding the previous sentence, ABG and ACLARA each hereby agree that the Parties may jointly develop Licensed Product pursuant to the terms of the GA Agreement; PROVIDED that the Parties agree to do so in accordance with the requirements of Article 3 of this Amended GA Agreement prior to initiation of such joint development.


2.3 PROVISIONS NO LONGER EFFECTIVE. ABG and ACLARA each hereby agree that, upon the Amendment Effective Date, the following sections of the GA Agreement are no longer in force or effect, except to the extent that the Parties may, in their discretion, mutually agree in writing, pursuant to Article 3, to jointly develop a Licensed Product: Sections 2, 3, 4, 5.2, 5.4, 5.5.1, and 10. ABG and ACLARA each hereby agree that all provisions of the GA Agreement, except as set forth in this Section 2.3, shall remain in full force and effect.


2.4 INTELLECTUAL PROPERTY. ABG and ACLARA each hereby agree that, unless the Parties agree to jointly develop a Licensed Product pursuant to Article 3, Collaboration SBio Intellectual Property, Collaboration Joint Intellectual Property, and Collaboration Perkin-Elmer Intellectual Property shall be limited to Intellectual Property Rights that were conceived and reduced to practice as a result of work performed under the GA Agreement before the Amendment Effective Date. In the event that the Parties agree to jointly develop a Licensed Product pursuant to Article 3, Collaboration SBio Intellectual Property, Collaboration Joint Intellectual Property, and Collaboration Perkin-Elmer Intellectual Property shall include additional Intellectual Property Rights that are conceived and reduced to practice as a result of the work thereafter performed to jointly develop such Licensed Product.


3


2.5 Release. ABG and ACLARA each hereby release the other Party from any and all obligations or liabilities arising from Sections 2, 3 or 4 of the GA Agreement prior to the Amendment Effective Date.


2.6 INTERPRETATION OF AMENDED GA AGREEMENT. In the event of any conflict, inconsistency, or incongruity between any provision of this Amended GA Agreement and any provision of the original GA Agreement, the provisions of this Amended GA Agreement will govern and control.


ARTICLE 3


JOINT DEVELOPMENT OPTION


3.1 PROPOSAL FOR JOINT DEVELOPMENT UNDER GA AGREEMENT. If ABG desires to develop any Post Exclusive Period Product, ABG first shall notify ACLARA in writing, which notice shall include, without limitation, a description of the proposed Post Exclusive Period Product ("Proposed Product") and a development and commercialization plan with respect thereto (a "JOINT DEVELOPMENT PROPOSAL").


3.2 JOINT DEVELOPMENT PLAN. If ABG submits a Joint Development Proposal to ACLARA as provided in Section 3.1 above, ACLARA will either notify ABG in writing within 15 days of Aclara's receipt of such submission that it does not desire to pursue the Joint Development Proposal or within 30 days of such submission, both Parties will meet in person to discuss in good faith such Joint Development Proposal. If ACLARA agrees to pursue such joint development for the Proposed Product, within 45 days of such meeting with ABG, ACLARA shall notify ABG in writing and, within 30 days of ABG's receipt of such written notice to ABG, the Parties shall draft a detailed joint development plan ("JOINT DEVELOPMENT PLAN"), which shall include, without limitation, a detailed de ...