Collaboration & Supply Agreement

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.


EXHIBIT 10.66


COLLABORATION AND SUPPLY AGREEMENT


dated as of


January 9, 2004


among


CALIPER TECHNOLOGIES CORP.,


ZYMARK CORPORATION


and


AFFYMETRIX, INC.


TABLE OF CONTENTS


Page
----
ARTICLE 1
DEFINITIONS


Section 1.01 Definitions....................................................................... 2


ARTICLE 2
SCOPE OF COLLABORATION


Section 2.01 Project Planning.................................................................. 8 Section 2.02 Steering Committee................................................................ 11 Section 2.03 Ownership of Intellectual Property................................................ 14 Section 2.04 Licenses.......................................................................... 15


ARTICLE 3
PROJECT FEES AND EXPENSES


Section 3.01 Project Fees and Expenses......................................................... 17


ARTICLE 4
ACCEPTANCE


Section 4.01 Delivery of Prototype............................................................. 17 Section 4.02 Prototype Evaluation and Acceptance............................................... 17


ARTICLE 5
SUPPLY ARRANGEMENT


Section 5.01 Effectiveness..................................................................... 19 Section 5.02 Supply Obligation................................................................. 19 Section 5.03 Branding and Packaging............................................................ 20 Section 5.04 Manufacturing and Distribution Rights and Licenses................................ 20 Section 5.05 Enhancements...................................................................... 21 Section 5.06 [ * ] ........................................................................... 21 Section 5.07 Shipping and Delivery; Invoicing and Payment Terms................................ 21 Section 5.08 [ * ] ........................................................................... 22 Section 5.09 Pricing........................................................................... 22 Section 5.10 Interest on Late Payments......................................................... 23 Section 5.11 Purchase Orders................................................................... 23 Section 5.12 Forecasts......................................................................... 24 Section 5.13 Cancellations..................................................................... 24 Section 5.14 Failure to Release[ * ] .......................................................... 25 Section 5.15 Delivery.......................................................................... 25 Section 5.16 Warranty.......................................................................... 25 Section 5.17 Return Material Authorization..................................................... 25 Section 5.18 Installation Training and Technical Support; Service and Repair................... 26


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Page
---- Section 5.19 Discontinuation (Service & Spares)................................................ 28 Section 5.20 [ * ] ............................................................................ 28 Section 5.21 Quality and Reliability Requirements.............................................. 28 Section 5.22 Product / Process Changes & Discontinuance........................................ 29 Section 5.23 Quarterly Status Review........................................................... 30 Section 5.24 Lead Generation; Trademarks; Marketing Materials.................................. 30


ARTICLE 6
CONFIDENTIALITY


Section 6.01 Confidential Information.......................................................... 32 Section 6.02 Restricted Use.................................................................... 32 Section 6.03 Publicity......................................................................... 33


ARTICLE 7
REPRESENTATIONS AND WARRANTIES


Section 7.01 Representations of the Parties.................................................... 33


ARTICLE 8
TERM AND TERMINATION


Section 8.01 Term.............................................................................. 35 Section 8.02 Termination....................................................................... 35 Section 8.03 Insolvency........................................................................ 35 Section 8.04 Remedies.......................................................................... 36 Section 8.05 Survival of Work Plans............................................................ 36 Section 8.06 Survival.......................................................................... 36


ARTICLE 9
INDEMNIFICATION


Section 9.01 Indemnification................................................................... 36 Section 9.02 Indemnification Procedures........................................................ 37


ARTICLE 10
MISCELLANEOUS


Section 10.01 LIMITATION OF LIABILITY.......................................................... 37 Section 10.02 Dispute Resolution............................................................... 38 Section 10.03 Non-solicitation................................................................. 39 Section 10.04 Assignment....................................................................... 40 Section 10.05 Independent Contractors.......................................................... 40 Section 10.06 Severability..................................................................... 41 Section 10.07 Entire Agreement................................................................. 41 Section 10.08 No Waiver........................................................................ 41 Section 10.09 Force Majeure.................................................................... 41 Section 10.10 Notices.......................................................................... 42


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Page
---- Section 10.11 Counterparts..................................................................... 42


List of Exhibits


Exhibit A Work Plan for Project 1 Exhibit B .Work Plan for Project 2 Exhibit C Consumable Products Exhibit D Installation Exhibit E Pricing Exhibit F Product Lead Times Exhibit G Form of Forecast Exhibit H Warranty Terms Exhibit I Installation Training, Technical Support, Service and Repair Exhibit J Industry Standards Exhibit K Product/Process Changes and Discontinuances, Epidemic Failure Exhibit L Marketing Materials


[ * ] = 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.


iii


[ * ] = 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.


COLLABORATION AND SUPPLY AGREEMENT


THIS COLLABORATION AND SUPPLY AGREEMENT (this "AGREEMENT") is made and entered into as of January 9, 2004 (the "EFFECTIVE DATE") by and among ZYMARK CORPORATION, a Delaware corporation ("ZYMARK") and CALIPER TECHNOLOGIES CORP., a Delaware corporation (together with Zymark, "CALIPER") having its principal offices located at Zymark Center, Hopkinton, MA 01748, and Affymetrix, Inc. a Delaware corporation ("AFFYMETRIX") having its principal offices located at 3380 Central Expressway, Santa Clara, CA 95051.


WITNESSETH:


WHEREAS, Affymetrix is a leading supplier of microarray technology for gene expression and genotyping applications and has a large installed base of instruments and is actively developing new instruments with increased throughput and functionality for current and new markets, including research and diagnostics;


WHEREAS, Affymetrix has a goal of providing more complete system solutions that leverage automation from automation partners to provide customers with systems that produce higher quality data at a lower cost, that remove bottlenecks from workflows based on new, higher-throughput Affymetrix platforms, and that can readily be operated in new environments where operator skills may not be as advanced;


WHEREAS, Caliper is a leading automation and fluidics company with a business channel that broadly deploys its innovative and enabling technology through complementary, value-added collaborations;


WHEREAS, Caliper has particular expertise in integration and automation of processes on both a macrofluidic and microfluidic scale, and has an array of products, technologies and capabilities that are suitable for automating microarray target preparation and related microarray workflow processing applications;


WHEREAS, the Parties hereto desire to collaborate in certain respects to develop and market one or more integrated system solutions designed to support the Affymetrix GeneChip(R) platform and related Affymetrix protocols (the "COLLABORATION"), so that Caliper will become an Affymetrix approved supplier of, and approved developer for, new automated target preparation and related applications;


D-1


NOW, THEREFORE, in consideration of the promises and the respective representations, warranties, covenants, and agreements set forth herein, the Parties hereto agree as follows:


ARTICLE 1
DEFINITIONS


Section 1.01 Definitions.


(a) The following terms shall be used in this Agreement with the following meanings:


"AFFYMETRIX TECHNOLOGY" means Affymetrix' Sole Inventions and Background Technology.


"AREA OF RESPONSIBILITY" means each area of the Collaboration in which one Party has primary responsibility for directing and carrying out research and development.


"BACKGROUND TECHNOLOGY" means any inventions, discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulae, techniques, trade secrets, graphics or images, audio or visual works, and other works of authorship, whether or not patentable or copyrightable, that are (a) necessary to perform the Parties' obligations in the Collaboration according to a Work Plan; and (b) owned or Controlled by a Party as of the Effective Date, or generated or acquired by a Party independently of the work in the Collaboration under this Agreement.


"CALIPER TECHNOLOGY" means Caliper's Sole Inventions and Background Technology.


"CONFIDENTIAL INFORMATION" means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the "disclosing party") that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) calendar days of disclosure to the other party (the "receiving party"); provided, however, that reports and/or information related to or regarding any work performed under a Work Plan, and/or a disclosing party's business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified, unless such information is subject to any of exceptions set forth in the following sentence. Information will not be deemed "Confidential Information" hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the


disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party.


"CONTROL" or "CONTROLLED" shall mean possession of the ability to grant a license or sublicense as provided for herein under valid and subsisting Intellectual Property Rights without violating the terms of any agreement or other arrangement with any Third Party or applicable law.


"DELIVERABLE" means work product, materials or other works or deliverables of any type (in tangible and intangible form and including works in process) to be developed or delivered by a Party during the course of a Project.


"DEVELOPED PRODUCT" means a Prototype that has been accepted by Affymetrix pursuant to Section 4.02 of this Agreement, and any subsequent commercially produced product based upon such accepted Prototype.


"END USERS" shall mean an existing or potential end user customer of a Developed Product or an Affymetrix product configured for use with a Developed Product.


"INITIAL DEVELOPED PRODUCTS" means (i) a Stacatto-based HTA system for gene expression developed from Project 1 that has been accepted by Affymetrix as a "Developed Product" pursuant to Section 4.02 of this Agreement; (ii) a Sciclone-based automated target preparation system for gene expression that has been developed from Project 2 that has been accepted by Affymetrix as a "Developed Product" pursuant to Section 4.02 of this Agreement; and (iii) a Sciclone-based automated target preparation system for genotyping that has been developed from Project 3 that has been accepted by Affymetrix as a "Developed Product" pursuant to Section 4.02 of this Agreement, in each case for clauses (i) through (iii) above, together with any and all changes, modifications, alterations, amendments, supplements or revisions that may be made to any such Developed Product from time to time by the Steering Committee in accordance with this Agreement.


"INTELLECTUAL PROPERTY RIGHTS" means, collectively, all rights in, to and under Patents, trade secret rights, copyrights, trademarks, service marks, trade dress and similar rights of any type under the laws of any governmental authority, including without limitation, all applications and registrations relating to the foregoing.


"INVENTION" means any inventions, discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulae, techniques, trade secrets, graphics or images, audio or visual works, and other works of authorship, whether or not patentable or


copyrightable, which is invented, discovered, generated, conceived or reduced to practice by a Party, or by the Parties jointly, pursuant to a Work Plan.


"PARTY" means Caliper and Affymetrix respectively and the term "PARTIES" shall have a corresponding meaning.


"PATENTS" mean all foreign and domestic patents and patent applications (including, without limitation, all provisional, divisional, substitution, continuation and continuation in-part applications, and all foreign counterparts thereof).


"SOFTWARE" means any of the following, in both source and object code form, constituting a component or other part of a Developed Product: computer programs, instruction sequences, procedures, data, logic, and/or rules, scripts and related materials, and any modifications to any of the foregoing, in any form or media including, without limitation, magnetic tape, disc, semiconductor device, firmware, or other memory device or system memory.


(i) [ * ]


"WORK PLAN" means a mutually agreed written schedule or supplement to this Agreement setting forth a description of a Project to be performed under this Agreement.


(b) Each of the following terms is defined in the Section set forth opposite such term:


TERM SECTION ---- ------- Acceptance Date 4.02(a)


Affymetrix Preamble


Affymetrix Disqualified Assignee 10.04


Affymetrix Indemnitees 9.01(a)


Affymetrix Reevaluation Period 4.02(a)


Affymetrix Trademarks 5.24(b)(i)


[ * ] 5.08(d)


Agreement Preamble


Branding and Packaging Requirements 5.03


Caliper Preamble


TERM SECTION ---- ------- Caliper Deficiency Correction Period 4.02(a)


Caliper Disqualified Assignee 10.04


Caliper Indemnitees 9.01(b)


Caliper Trademarks 5.24(b)(iii)


Collaboration Preamble


Collaboration Records 2.02(e)(i)


Consumable Product 5.02(e)


Cure Period 8.02


Effective Date Preamble


[ * ] 5.22(c)


[ * ] 5.20(a)


[ * ] 5.20(a)


[ * ] 5.06


Final Acceptance Date 4.02(b)


Force Majeure Event 10.09


Forecast 5.12


Infringement 2.04(d)(i)


Initial Acceptance Date 4.02(b)


Initial Collaboration Period 2.01(e)


Initial Dispute Resolution Period 2.02(c)


Initial Term 8.01


Installation Services 5.07(b)(iii)


Installation Training and Technical Support Services 5.18(a)


Joint Inventions 2.03(c)


TERM SECTION ---- ------- Joint Patent 2.03(c)(iv)


Last Shipment Date 5.19


Level 1 Support 5.18(b)


Licensor Marks 5.24(b)(iii)


Manufacturing Materials 5.20(a)


[ * ] 5.08(a)


[ * ] 5.08(a)


[ * ] 5.08(a)


Production Report 5.02(c)


Project 2.01(b)


Project 1 2.01(b)


Project 2 2.01(b)


Project 3 2.01(b)


[ * ] 2.01(b)


[ * ] 2.01(b)


[ * ] 2.01(b)


Project Acceptance Date 4.02(b)


Project 1 Acceptance Date 4.02(b)


Project 2 Acceptance Date 4.02(b)


Project Fees 3.01


Project Manager 2.02(b)


Project Termination 4.02(a)


Prosecution Party 2.03(c)(iv)


Prototype 4.01


TERM SECTION ---- ------- Purchase Orders 5.11(a)(i)


Renewal Notice 8.01


Renewal Term 8.01


Repair Services 5.18(c)


Second Collaboration Commencement Date 2.01(b)


Second Collaboration Period 2.01(f)


Second Target Acceptance Date 5.08(a)


Sole Inventions 2.03(b)


Specifications 4.01


Steering Committee 2.02(a)


Steering Committee Dispute Resolution Period 2.02(c)


Term 8.01


Trademark Licensee 5.24(b)(iii)


Trademark Licensor 5.24(b)(iii)


Warranty Period 5.16(a)


[ * ] 5.08(b)(i)


[ * ] 5.08(b)(ii)


[ * ] 5.08(b)(iii)


Zymark Preamble


ARTICLE 2
SCOPE OF COLLABORATION


Section 2.01 Project Planning.


(a) Areas of Responsibility:


Caliper shall have principal engineering responsibility for target preparation automation and microfluidics and Affymetrix shall have principal engineering responsibility for array and assay methods development, software integration with respect to scanning, and system validation. Subject to the foregoing, the initial Areas of Responsibility shall be set forth in the Work Plan for any Project. Further specification of the initial Affymetrix Areas of Responsibility and Caliper Areas of Responsibility shall be agreed as necessary during the Term by the Parties. Prior to the commencement of any additional Area of Responsibility, the Parties shall amend or supplement the Work Plan for a Project in a mutually agreed to writing that specifies, among other things, whether such Area of Responsibility is an Affymetrix Area of Responsibility or a Caliper Area of Responsibility or both, and the related research objectives, work plans and budgets.


(b) Work Plans:


Subject to the next paragraph, the Parties shall execute a mutually acceptable written Work Plan with respect to each distinct area of inquiry (each, a "PROJECT") to be included in the Collaboration. Each such Work Plan shall be binding, and shall deemed to be incorporated herein in its entirety. As of the Effective Date, the initial Projects are the following (each of which shall be documented with its own mutually acceptable Work Plan which shall be attached to this Agreement when completed):


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