Technology Access And Applications Development Agreement

EXHIBIT 10.43 December 19, 2001


Craig Muir Vice President, Platform Technology Millennium Pharmaceuticals, Inc. 75 Sidney Street Cambridge, MA 02139


RE: Technology Access and Applications Development Agreement between
Millennium Pharmaceuticals, Inc. and Caliper Technologies Corp.
effective March 24, 2000


Dear Craig:


Reference is made to the Technology Access and Applications Development Agreement by and between Millennium Pharmaceuticals, Inc. ("MPI") and Caliper Technologies Corp. ("Caliper") effective as of March 24, 2000 ("Agreement"). Capitalized terms used in this amendment ("Amendment") but not defined shall have the meaning ascribed to such terms in the Agreement.


The purpose of this Amendment is to evidence the agreement of MPI and Caliper to amend the terms of the Agreement and to memorialize the mutual agreement of the parties to negotiate in good faith, a new agreement that shall include, without limitation, terms related to development projects of microfluidic systems to be conducted jointly by the parties and the financial terms described herein (the "Definitive Agreement"). The parties agree to use good faith efforts to conclude such negotiations and execute a definitive agreement pertaining to such joint development projects by January 31, 2002.


1. Credits for Certain Fees Due under the Agreement.


a. General. Caliper affirms that all technology development fees set forth in Section 4.1 of the Agreement have been paid in full by MPI except for the non-refundable payment of [ * ], which MPI shall pay to Caliper by January 24, 2002. This fee shall constitute a credit which may be used by MPI and its Affiliates pursuant to the terms set forth in Section 1(c).


b. Purchase Credits for Paid Fees. Effective as of December 18, 2001, Caliper grants to MPI a one-time credit in the amount of [ * ] which may be used by MPI


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


1.


and its Affiliates to purchase Caliper's Commercially Released Products and any services Caliper offers generally or to MPI pursuant to the Agreement or any amendment thereof as follows:


i. [ * ] of such credit shall be used by MPI to purchase one Caliper 250 Mobility Shift and Fluorogenic High Throughput Screening System described in Schedule I of this Amendment, pursuant to a purchase order placed with Caliper on or before December 19, 2001. Caliper agrees to arrange for the delivery of such instrument to MPI's Cambridge, MA facility by December 31, 2001 and MPI agrees to accept delivery thereof;


ii. [ * ] of the credit set forth in 1(b)(i) may be used by MPI to purchase Commercially Released Products and any services Caliper offers generally or to MPI under the terms set forth in Sections 2 and 3, by placing purchase order(s) with Caliper up to such amount on or before [ * ]. Subject to Section 3, all such purchase orders shall provide for delivery of such products and services by a date mutually agreed to by MPI and Caliper which in no event shall be later than [ * ].


For the avoidance of doubt, "Commercially Released Products" as used in this Amendment shall mean products which are commercially released and generally available to Caliper's customers.


c. Conversion of Future Fees to Credits. The fee paid by MPI to Caliper pursuant to Section 1(a) of this Amendment shall constitute a credit which may be used by MPI and its Affiliates to place purchase order(s) with Caliper on or before [ * ] to purchase Caliper's Commercially Released Products and any services Caliper offers generally or to MPI pursuant to the Agreement or any amendment thereof, including, but not limited to, Caliper FTEs applied to NAPs. Subject to Section 3, all such purchase orders shall provide for delivery of such products and services by a date mutually agreed to by MPI and Caliper which in no event shall be later than [ * ].


2. Purchase Terms for Commercially Released Products. As of December 18, 2001 and until [ * ], Caliper agrees to provide the following discounts or prices to MPI and its Affiliates for all products and services listed in Schedule II of this Amendment and any modified or upgraded version of such products, and any Commercially Released Products with applicability to high throughput screening ("HTS"):


a. [ * ] off the list price of Instruments set forth in Caliper's product catalog then current at the time of purchase;


b. All services including, but not limited to, HTS assay development services and custom project development services will be provided to MPI at a rate of [ * ] per Caliper FTE per year or [ * ] per hour if such services are provided on an hourly basis.


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


2.


Notwithstanding the preceding sentence, standard field services (i.e. service contracts on Instruments) shall be provided at Caliper's then current rate;


c. Chips with data point pricing, other than the Chips set forth in Schedule III, will be provided at the list price set forth in Caliper's product catalog then current at the time of purchase and data points will be provided at [ * ] off the list price of data points corresponding to such Chips, as set forth in Caliper's product catalog then current at the time of purchase and without regard to any discounting for volume purchases of data points.


d. The Chips listed in Schedule III will be available to MPI and its Affiliates at the prices set forth therein.


e. In the event Caliper offers Chips to any Person without data point pricing associated with such Chips, Caliper agrees to offer such Chips to MPI and its Affiliates at a discount that shall be at least equivalent to the discount set forth in subsection 2(c).


f. For any proposed purchase by MPI or any of its Affiliates of a substantial volume of the same commercially released product or service offered by Caliper generally or to MPI, Caliper agrees to negotiate in good faith with MPI and its Affiliates regarding a discount on the purchase price of such item based on the quantity of such items purchased by MPI and its Affiliates.


g. If MPI or its Affiliates desires to purchase Chips with data point pricing under the terms set forth in this Section 2, then MPI and Caliper shall mutually agree upon the terms of a separate written agreement between the parties which sets forth the definition of a "datapoint" and matters related to Caliper's access to the number of datapoints generated by MPI for payment purposes.


h. [ * ]. Until [ * ] MPI and its Affiliates shall have the right to purchase the following products and services [ * ]:


i. "Applications Developer Program", "NAP" or any other
service of a similar type to the foregoing (i.e. Caliper
FTE rates); and


ii. Commercially Released sTAP Products offered by Caliper
prior to March 23, 2002 (including the products set
forth on Schedule II).


For purposes of applying this provision, [ * ].


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


3.


i. In the event that more than one discount may apply to a particular item under this Amendment, other agreements between the parties or pursuant to Caliper's standard commercial practices, MPI at its sole option may choose which discount to apply but may not combine discounts.


3. Availability of Products. Caliper agrees to provide the type and quantity of commercially released Chips, which are identified in a firm order made by MPI or its Affiliates to Caliper within [ * ] of Caliper's receipt of such firm order; provided, however, such Chips were identified in both type and quantity in a non-binding product purchase forecast provided by MPI or its Affiliates to Caliper at least three months prior to the placement of such firm order by MPI or its Affiliates. In the event Caliper is unable to provide such Chips to MPI or its Affiliates within such [ * ], then the parties will discuss in good faith a commercially reasonable remedy to compensate MPI for the late delivery of such Chips.


4. Payment and Reconciliation of FTE Fees. Notwithstanding Section 4.2.4 of the Agreement, MPI and Caliper agree to the following with respect to payments made by MPI to Caliper under the Agreement to support Caliper FTE activities under the Program:


...