-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, REL4x1qyoiDc0eBmIuMF24XE53HLD3iy11gQyfFgDPWfceNErRVqX6fmGhPGTsqm FtWdnURXX1OiLeQwrfXYZw== 0000936392-97-000319.txt : 19970317 0000936392-97-000319.hdr.sgml : 19970317 ACCESSION NUMBER: 0000936392-97-000319 CONFORMED SUBMISSION TYPE: S-1 PUBLIC DOCUMENT COUNT: 36 FILED AS OF DATE: 19970314 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AURORA BIOSCIENCES CORP CENTRAL INDEX KEY: 0001010919 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 330669859 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23407 FILM NUMBER: 97557165 BUSINESS ADDRESS: STREET 1: 11149 N TORREY PINES RD CITY: LA JOLLA STATE: CA ZIP: 92037 BUSINESS PHONE: 6194255000 MAIL ADDRESS: STREET 1: 11149 NORTH TORREY PINES ROAD CITY: LA JOLLA STATE: CA ZIP: 92037 S-1 1 FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 1997 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ AURORA BIOSCIENCES CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 8731 33-0669859 (STATE OR JURISDICTION (PRIMARY STANDARD INDUSTRIAL I.R.S. EMPLOYER OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER ORGANIZATION)
11149 NORTH TORREY PINES ROAD LA JOLLA, CALIFORNIA 92037 (619) 452-5000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ------------------------ TIMOTHY J. RINK CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER AURORA BIOSCIENCES CORPORATION 11149 NORTH TORREY PINES ROAD LA JOLLA, CALIFORNIA 92037 (619) 452-5000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------ COPIES TO: THOMAS A. COLL, ESQ. JEFFREY S. MARCUS, ESQ. ERIC J. LOUMEAU, ESQ. TAMARA POWELL TATE, ESQ. COOLEY GODWARD LLP MORRISON & FOERSTER LLP 4365 EXECUTIVE DRIVE, SUITE 1100 1290 AVENUE OF THE AMERICAS SAN DIEGO, CA 92121 NEW YORK, NY 10104 (619) 550-6000 (212) 468-8000
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] ________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] ________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------- PROPOSED TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM MAXIMUM AMOUNT OF OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE - --------------------------------------------------------------------------------------------------------------- Common Stock, $.001 par value............. 3,450,000 $11.00 $37,950,000 $11,500 ===============================================================================================================
(1) Includes 450,000 shares that the Underwriters have the option to purchase solely to cover over-allotments, if any. (2) Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(a) under the Securities Act of 1933. ------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ 2 INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION MARCH 14, 1997 3,000,000 SHARES (AURORA LOGO) COMMON STOCK ------------------------ All of the 3,000,000 shares of Common Stock offered hereby are being sold by Aurora Biosciences Corporation, a Delaware corporation ("Aurora" or the "Company"). Prior to this offering, there has been no public market for the Common Stock of the Company. It is currently estimated that the initial public offering price of the Common Stock will be between $9.00 and $11.00 per share. See "Underwriting" for the factors to be considered in determining the initial public offering price. Application has been made for quotation of the Common Stock on the Nasdaq National Market under the symbol ABSC. ------------------------ THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" COMMENCING ON PAGE 6. ------------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
PRICE UNDERWRITING PROCEEDS TO DISCOUNTS AND TO PUBLIC COMMISSIONS(1) COMPANY(2) - ------------------------------------------------------------------------------------------------- Per Share......................... $ $ $ - ------------------------------------------------------------------------------------------------- Total(3).......................... $ $ $ =================================================================================================
(1) See "Underwriting" for information relating to indemnification of the Underwriters. (2) Before deducting expenses of the offering estimated at $600,000. (3) The Company has granted the Underwriters a 30-day option to purchase up to 450,000 additional shares of Common Stock solely to cover over-allotments, if any. To the extent that the option is exercised, the Underwriters will offer the additional shares at the Price to Public shown above. If the option is exercised in full, the total Price to Public, Underwriting Discounts and Commissions and Proceeds to Company will be $ , $ and $ , respectively. See "Underwriting." ------------------------ The shares of Common Stock are offered by the several Underwriters, subject to prior sale, when, as and if delivered to and accepted by them, and subject to the right of the Underwriters to reject any order in whole or in part. It is expected that delivery of the shares of Common Stock will be made at the offices of Alex. Brown & Sons Incorporated, Baltimore, Maryland, on or about , 1997. ALEX. BROWN & SONS INCORPORATED HAMBRECHT & QUIST ROBERTSON, STEPHENS & COMPANY THE DATE OF THIS PROSPECTUS IS , 1997 3 [GRAPHIC DEPICTION OF UHTS SYSTEM] [Items depicted will be identified by the following labels:] Genomic Targets Combinatorial Chemistry Libraries Automated Storage and Retrieval System Miniaturized Fluorescent Assays NanoPlate(TM) Microfluidics Fluorescence Detector Lead Compounds Informatics Mammalian Cells Depicted above is a schematic representation of Aurora's integrated technology platform designed to take advantage of the great number of targets being identified through genomics and the large, diverse libraries of compounds being generated from combinatorial chemistry. Aurora's ultra-high throughput screening ("UHTS") system is designed to incorporate a store of over 1,000,000 compounds and is expected to screen in excess of 100,000 compounds per day in miniaturized assays. The UHTS system is expected to be operational in three to four years. CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK OF THE COMPANY, INCLUDING THE ENTRY OF STABILIZING BIDS, OR SYNDICATE COVERING TRANSACTIONS OR THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING." NanoPlate(TM) is a trademark of the Company and Packard Instrument Company. All other trade names or trademarks appearing in this Prospectus are the property of their respective holders. 2 4 PROSPECTUS SUMMARY The following summary is qualified in its entirety by the more detailed information and Financial Statements and Notes thereto appearing elsewhere in this Prospectus. This Prospectus contains certain statements of a forward-looking nature relating to future events or the future financial performance of the Company. Prospective investors are cautioned that such statements are only predictions and that actual events or results may differ materially. In evaluating such statements, prospective investors should specifically consider the various factors identified in this Prospectus, including the matters set forth under the caption "Risk Factors," which could cause actual results to differ materially from those indicated by such forward-looking statements. THE COMPANY Aurora Biosciences Corporation ("Aurora" or the "Company") designs and develops proprietary drug discovery systems, services and technologies to accelerate and enhance the discovery of new medicines. Aurora is developing an integrated technology platform comprised of a portfolio of proprietary fluorescent assay technologies and an ultra-high throughput screening ("UHTS") system designed to allow assay miniaturization and to overcome many of the limitations associated with the traditional drug discovery process. The Company believes that this platform will enable Aurora and its collaborators, which include Bristol-Myers Squibb ("BMS") and Eli Lilly and Company ("Lilly"), to take advantage of the opportunities created by recent advances in genomics and combinatorial chemistry that have generated many new therapeutic targets and an abundance of new small molecule compounds. Aurora believes its integrated platform will accelerate the drug discovery process by shortening the time required to identify high quality lead compounds and to optimize those compounds into drug development candidates. The discovery and development of new medicines historically has been an expensive, time-consuming and often unsuccessful process. Recent developments in molecular biology and genomics as well as combinatorial chemistry have created significant opportunities to discover greater numbers of high quality lead compounds for development into new medicines. The advances in molecular biology and genomics have resulted in a greater understanding of the molecular and genetic basis of disease and have led to the identification of many new genes as potential therapeutic targets for drug discovery. Many companies have used combinatorial chemistry to quickly create libraries of hundreds of thousands or even millions of small molecules for screening against established and novel targets. However, the increasing numbers of targets and compounds have created severe bottlenecks in the drug discovery process. These bottlenecks result from the difficulty of quickly analyzing the function and disease relevance of newly discovered targets, the complexity of incorporating the many different types of targets into screening assays, and the inability to screen extensive compound libraries quickly and at a reasonable cost. In order to address these issues, the Company is integrating advanced technologies to develop superior assays, to enable analysis of gene function in mammalian cells and to miniaturize and accelerate compound screening. Aurora's proprietary fluorescent assay technologies are being used today to facilitate drug discovery by the Company's collaborators and in the Company's existing high throughput screening system. Aurora's portfolio of fluorescent assay technologies is designed to enable screening of compounds against nearly all major classes of human drug targets, including receptors, ion channels and enzymes, in most therapeutic areas. The Company's fluorescent assay technologies are highly sensitive, and are designed to permit more rapid screen development and the development of miniaturized assays important for cost-effective high throughput screening. Additionally, many of the Company's screens are being designed to be performed with living mammalian cells to better model human disease processes. The second principal component of Aurora's integrated technology platform is its UHTS system, which is being designed to screen over 100,000 discrete compounds per day in miniaturized assays. 3 5 The UHTS system will combine an automated storage and retrieval system, microfluidic dispensing devices, and NanoPlates in which miniaturized assays are performed. Specialized fluorescence detectors are designed to record and process the signals from the NanoPlates, with advanced software and informatics to capture the resulting data. In developing the UHTS system, the Company is applying to the drug discovery process technological advances that have already been deployed successfully in other industrial processes, while adding its own proprietary innovations. In this regard, the Company has entered into strategic technology alliances with several technology leaders, including Packard Instrument Company and Carl Creative Systems, Inc. The Company expects the UHTS system to be fully integrated and operational within the next three to four years. Aurora's goal is to become the leader in the development and commercialization of technologies that will accelerate and enhance the discovery of new medicines. The Company seeks to diversify business risk by generating revenue from multiple collaborators seeking to exploit Aurora's fluorescent assay technologies and UHTS system in many different drug discovery programs. The Company expects to generate revenue by developing screens, providing screening services, developing and providing UHTS systems to syndicate members, licensing its proprietary technologies, and realizing royalty and milestone payments from the development and commercialization of drug candidates identified using Aurora's technologies. To date, the Company has entered into collaborative agreements with BMS and Lilly to license the Company's fluorescent assay technologies for their internal discovery research, to collaborate on screen development and as initial members of a syndicate to co-develop Aurora's UHTS system. In addition, Aurora has also entered into agreements to develop screens for or provide screening services to Sequana Therapeutics, Inc., Allelix Biopharmaceuticals, Inc. and Roche Bioscience. The Company has also entered into agreements with Alanex Corporation and ArQule, Inc. providing Aurora with non-exclusive access to certain of their combinatorial chemistry libraries. The Company was incorporated in California in May 1995 and reincorporated in Delaware in January 1996. Unless the context otherwise requires, references in this Prospectus to "Aurora" and the "Company" refer to Aurora Biosciences Corporation, a Delaware corporation, and, where applicable, to its California predecessor. The Company's executive offices are located at 11149 North Torrey Pines Road, La Jolla, California 92037, and its telephone number is (619) 452-5000. THE OFFERING Common Stock offered hereby........................... 3,000,000 shares Common Stock to be outstanding after the offering..... 15,893,814 shares(1) Use of proceeds....................................... Working capital and general corporate purposes, including facilities expansion and improvements, capital equipment purchases, enhancement of internal research and development capabilities and the acquisition of chemical libraries. See "Use of Proceeds." Proposed Nasdaq National Market symbol................ ABSC
- --------------- (1) Based on shares outstanding as of February 28, 1997. Includes an aggregate of 45,290 shares of Common Stock to be issued upon exercise of outstanding warrants upon the closing of this offering. Excludes 452,920 shares of Common Stock issuable upon exercise of outstanding stock options as of February 28, 1997 at a weighted average exercise price of $1.16 per share and 1,757,248 shares of Common Stock reserved for future grant under the Company's 1996 Stock Plan, Employee Stock Purchase Plan and Non-Employee Directors' Stock Option Plan. See "Capitalization," "Management," "Description of Capital Stock" and Notes 6 and 11 of Notes to Financial Statements. 4 6 SUMMARY FINANCIAL INFORMATION (IN THOUSANDS, EXCEPT PER SHARE DATA)
PERIOD FROM MAY 8, 1995 (INCEPTION) TO YEAR ENDED DECEMBER 31, 1995 DECEMBER 31, 1996 ----------------- ----------------- STATEMENT OF OPERATIONS DATA: Revenue under collaborative agreements............... $ -- $ 2,217 Expenses: Research and development.......................... 366 4,396 General and administrative........................ 46 1,275 Interest income, net................................. -- 521 Net loss............................................. (412) (2,933) Pro forma net loss per share(1)...................... $ (0.14) $ (0.26) Shares used in computing pro forma net loss per share(1).......................................... 2,880 11,260
DECEMBER 31, 1996 --------------------------------------- ACTUAL AS ADJUSTED(2) ----------------- ----------------- BALANCE SHEET DATA: Cash, cash equivalents and investment securities available for sale................................... $13,167 $40,467 Total assets........................................... 17,515 44,815 Capital lease obligations, less current portion........ 1,111 1,111 Accumulated deficit.................................... (3,345) (3,345) Total stockholders' equity............................. 15,184 42,484
- --------------- (1) See Note 1 of Notes to Financial Statements for a description of the computation of the pro forma net loss per share and the number of shares used in the pro forma net loss per share calculation. (2) As adjusted to give effect to the sale by the Company of 3,000,000 shares of Common Stock offered hereby at an assumed initial public offering price of $10.00 per share and the application of the estimated net proceeds therefrom and the exercise upon the closing of this offering of warrants to purchase a total of 45,290 shares of Common Stock. See "Use of Proceeds" and "Capitalization." Except as otherwise specified, all information contained in this Prospectus assumes no exercise of the Underwriters' over-allotment option. See "Underwriting." Except as otherwise noted, all information in this Prospectus has been adjusted to give effect to (i) the four-for-five reverse split of the Common Stock to be effected prior to the effective date of this offering and (ii) the conversion of all outstanding shares of Preferred Stock into Common Stock upon the completion of this offering. See "Capitalization" and "Description of Capital Stock." 5 7 RISK FACTORS In addition to the other information in this Prospectus, the following factors should be considered carefully in evaluating an investment in the shares of Common Stock offered by this Prospectus. This Prospectus contains certain statements of a forward-looking nature relating to future events or the future financial performance of the Company. Prospective investors are cautioned that such statements are only predictions and that actual events or results may differ materially. In evaluating such statements, prospective investors should specifically consider the various factors identified in this Prospectus, including the matters set forth below, which could cause actual results to differ materially from those indicated by such forward-looking statements. Limited Operating History; History of Operating Losses; Uncertainty of Future Profitability. The Company was formed in May 1995, has a limited operating history and is at an early stage of development. To date, the Company has not yet generated significant revenue from its systems, services or technologies. For the period ended December 31, 1995 and the year ended December 31, 1996, the Company had net losses of approximately $412,000 and $2.9 million, respectively. As of December 31, 1996, the Company had an accumulated deficit of $3.3 million. The Company's expansion of its operations and continued development of its ultra-high throughput screening ("UHTS") system and fluorescent assay technologies will require a substantial increase in expenditures for at least the next several years. The Company currently expects to continue to incur operating losses at least through 1998. The Company's ability to achieve profitability will depend in part on its ability to successfully develop and install its UHTS system, provide screen development and screening services to pharmaceutical and biotechnology companies, achieve acceptable performance specifications for its UHTS system and gain industry acceptance of its systems, services and technologies. Accordingly, the extent of future losses and the time required to achieve profitability is highly uncertain. The Company has completed less than two years of operations and is subject to the risks inherent in the operation of a new business, such as the difficulties and delays often encountered in the development and production of new, complex technologies. There can be no assurance that the Company will be able to address these risks. Payments from corporate collaborators and interest income are expected to be the only sources of revenue for the foreseeable future. The Company has not yet generated any revenue from milestones under its collaborative agreements. Royalties or other revenues from commercial sales of products based upon any compound identified by using the Company's technologies are not expected for at least several years, if at all. The time required to reach or sustain profitability is highly uncertain, and there can be no assurance that the Company will be able to achieve or maintain profitability. Moreover, if profitability is achieved, the level of such profitability cannot be predicted and may vary significantly from quarter to quarter. See "Selected Financial Data" and "Management's Discussion and Analysis of Financial Condition and Results of Operations." New and Uncertain Technology. The Company's UHTS technology and its methods of screening molecular targets are new and unproven approaches to the identification of lead compounds with therapeutic potential. The Company intends to use its UHTS system and fluorescent assay technologies to rapidly identify for itself and its collaborators as many compounds with commercial potential as possible. Historically, because of the highly proprietary nature of such activities, the importance of these activities to drug discovery and development efforts and the desire to obtain maximum patent and other proprietary protection on the results of their programs, pharmaceutical and biotechnology companies have conducted molecular target screening and lead compound identification within their own internal research departments. The Company's ability to succeed will be dependent, in part, upon the willingness of potential collaborators to use the Company's systems, services and technologies as a tool in the discovery and development of compounds with commercial potential. The Company's fluorescent assay technologies are novel for use in the drug discovery process and have never been utilized in the discovery of any compound that has been commercialized. The 6 8 Company has not yet completed the development of a screen for any collaborator. There can be no assurance that the Company's fluorescent assay technologies will result in the successful development of broadly applicable screens for collaborators or lead compounds that will be safe or efficacious. Furthermore, there can be no assurance that the Company can develop, validate or consistently reproduce its biochemical and cell-based assays or reagents or substrates required for their use in volumes sufficient to fulfill the requirements of its collaborative agreements or to meet the Company's needs for internal use. Development of new pharmaceutical products is highly uncertain, and no assurance can be given that the Company's drug discovery technology will result in any commercially successful compound. The Company's UHTS technology has never been implemented as a fully operational system. The Company's UHTS system is not expected to be fully integrated and operational for at least three to four years. The Company's UHTS system will require significant additional investment and research and development prior to commencement of full-scale commercial operation, including integration of complex instrumentation and software and testing to validate performance and cost effectiveness, and is subject to substantial risks. Complex instrumentation systems that appear to be promising at early stages of development may not become fully operational for a number of reasons. These systems may be found ineffective, be difficult or uneconomical to produce, fail to achieve expected performance levels or industry acceptance, or be precluded from commercialization by the proprietary rights of third parties. Much of the instrumentation and software expected to comprise the Company's UHTS system are not now and have not previously been used in commercial applications. Many of these technologies have not been validated or developed at levels necessary to screen miniaturized assays, and there can be no assurance that UHTS technologies, if developed, will achieve expected performance levels at these scales. The successful implementation and operation of the Company's UHTS system will be a complex process requiring integration and coordination of a number of factors, including integration of and successful interface between complex advanced robotics, microfluidics, automated storage and retrieval systems, fluorescence detector technologies and software and information systems. The liquid dispensing requirements for the NanoPlates being designed for the UHTS system are far beyond current high throughput screening practices for dispensing small volumes. The development of microfluidics to accurately and rapidly aspirate and dispense the microscopic volumes necessary for the UHTS system is particularly challenging. There can be no assurance that the Company will be able to successfully engineer and implement this microfluidics technology or all of the other instrumentation needed for the UHTS system. As the system is developed, integrated and used, it is possible that previously unanticipated limitations or defects may emerge. In addition, operators using the system may require substantial new technical skills and training. There can be no assurance that unforeseen complications will not arise in the development, delivery and operation of the UHTS system that could materially delay or limit its use by the Company and its corporate collaborators, substantially increase the anticipated cost of development of the system, result in the breach by the Company of its contractual obligations to its collaborators and others, or render the system unable to perform at the quality and capacity levels required for success. Such complications or delays could subject the Company to litigation and have other material adverse effects on the Company's business, financial condition and results of operations. There can be no assurance that the Company will be able to successfully develop its UHTS system, achieve anticipated throughputs, gain industry acceptance of the Company's approach to the identification of lead compounds or develop a sustainable profitable business. Dependence on Pharmaceutical and Biotechnology Collaborations. The Company's strategy for the development and commercialization of its integrated technology platform involves the formation of multiple corporate collaborations. To date, all revenue received by the Company has been from its collaborations and technology alliances. The Company expects that substantially all revenue for the foreseeable future will come from collaborators. Furthermore, the Company's ability to achieve profitability will be dependent upon the ability of the Company to enter into additional 7 9 corporate collaborations for co-development of the UHTS system as well as for development of screens and for screening services. Because pharmaceutical and biotechnology companies engaged in drug discovery activities have historically conducted drug discovery and screening activities through their own internal research departments, these companies must be convinced that the Company's UHTS technologies justify entering into collaborative agreements with the Company. There can be no assurance that the Company will be able to negotiate additional collaborative agreements in the future on acceptable terms, if at all, that such current or future collaborative agreements will be successful and provide the Company with expected benefits, or that current or future collaborators will not pursue or develop alternative technologies either on their own or in collaboration with others, including the Company's competitors, as a means for identifying lead compounds or targets. To the extent the Company chooses not to or is unable to enter into such agreements, it will require substantially greater capital to undertake the research, development and marketing of systems, services and technologies at its own expense. In the absence of such collaborative agreements, the Company may be required to delay or curtail its research and development activities to a significant extent. In addition, the amount and timing of resources that current and future collaborators, if any, devote to collaborations with the Company are not within the control of the Company. There can be no assurance that such collaborators will perform their obligations as expected or that the Company will derive any additional revenue from such agreements. Further, the Company's collaborations generally may be terminated by its collaborators without cause upon short notice, which terminations would result in loss of anticipated revenue. Termination of the Company's existing or future collaboration agreements, or the failure to enter into a sufficient number of additional collaborative agreements on favorable terms, could have a material adverse effect on the Company's business, financial condition and results of operations. The Company's strategy involves obtaining access to libraries of compounds from third parties to be screened against multiple targets. Because of the potential overlap of compounds and targets provided by the Company's collaborators, there can be no assurance that conflicts will not arise among collaborators as to rights to particular products developed as a result of being identified through the use of the Company's technologies. Failure to successfully manage existing and future collaborator relationships, maintain confidentiality among such relationships or prevent the occurrence of such conflicts could lead to disputes that result in, among other things, a significant strain on management resources, legal claims involving significant time and expense and loss of reputation, a loss of capital or a loss of collaborators, any of which could have a material adverse effect on the Company's business, financial condition and results of operations. See "-- Uncertainty of Milestone Payments on Pharmaceutical Products; Government Regulation." Management of Growth. The Company's success will depend on its ability to expand and manage its operations and facilities. To be cost-effective and timely in the development and installation of its systems, services and technologies, the Company must coordinate the integration of multiple technologies in complex systems, both internally and for its collaborators. The Company's officers and employees have been with the Company for only a limited period of time, and many of them came to the Company with limited or no experience integrating multiple technologies into complex systems. There can be no assurance that the Company will be able to manage its growth, to meet the staffing requirements of current or additional collaborative relationships or to successfully assimilate and train its new employees. In addition, to manage its growth effectively, the Company will be required to expand its management base and enhance its operating and financial systems. If the Company continues to grow, there can be no assurance that the management skills and systems currently in place will be adequate or that the Company will be able to manage any additional growth effectively. Failure to achieve any of these goals could have a material adverse effect on the Company's business, financial condition or results of operations. Dependence on Technology Alliances. In order to further the development of its UHTS system, the Company has formed and intends to continue to form technology alliances with certain 8 10 companies in the areas of informatics, robotics, automated storage and retrieval, liquid handling systems, microfluidics and detection devices. The Company relies on these companies, many of which are single-source vendors, for the development, manufacture and supply of certain components of the Company's UHTS system. Although the Company believes that alternative sources for UHTS system components could be made available, any interruption in the development, manufacture or supply of a sole-sourced component could have a material adverse effect on the Company's ability to develop its UHTS system until a new source of supply is qualified, could subject the Company to penalties for delays in delivery of the UHTS system and, as a result, could have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance the Company will be able to enter into additional technology alliances on commercially reasonable terms, if at all, or that the Company's current or future technology suppliers will meet the Company's requirements for quality, quantity or timeliness. Dependence on Patents and Proprietary Rights. The Company's success will depend in part on its ability to obtain patent protection for its systems, services and technologies, and to operate without infringing the proprietary rights of third parties. The Company has had no patents issued to date. The Company is dependent, in part, on the patent rights licensed from third parties with respect to its fluorescent assay technologies. There can be no assurance that patent applications filed by the Company or its licensors will result in patents being issued, that the claims of such patents will offer significant protection of the Company's technology, or that any patents issued to, or licensed by, the Company will not be challenged, narrowed, invalidated, or circumvented. The Company may also be subject to legal proceedings that result in the revocation of patent rights previously owned by or licensed to the Company, as a result of which the Company may be required to obtain licenses from others to continue to develop, test or commercialize its systems, services or technologies. There can be no assurance that the Company will be able to obtain such licenses on acceptable terms, if at all. The drug discovery industry, including screening technology companies, has a history of patent litigation and will likely continue to have patent litigation suits concerning drug discovery technologies. The patent positions of pharmaceutical, biotechnology and drug discovery companies, including the Company, are generally uncertain and involve complex legal and factual questions. A number of patents have issued and may issue on certain targets or their use in screening assays that could prevent the Company and its collaborators from developing screens using such targets, or relate to certain other aspects of technology utilized or expected to be utilized by the Company. The Company has received invitations from third parties to license patents owned or controlled by third parties. The Company evaluates these requests and intends to obtain licenses that are compatible with its business objectives. The Company's inability to obtain or maintain patent protection or necessary licenses could have a material adverse effect on the business, financial condition and results of operations of the Company. The Company is aware of a third party Patent Cooperation Treaty application that claims certain uses of green fluorescent protein including its use in protein kinase assays. If a patent were to issue from such application that relates to the Company's GFP kinase reporters, the Company believes that such patent would be unlikely to require the Company to obtain a license. However, the Company may need to obtain such a license and there can be no assurance that any such license would be available on commercially reasonable terms, if at all. The Company is also aware of third party patents and published patent applications that contain issued or issuable claims that may cover certain aspects of the Company's or its collaborators' technologies, including certain types of fluorescent assay methods, certain assays for ligands to certain classes of targets such as certain cell surface and intracellular receptors, and certain transcription based assays for chemicals that modulate transcription of a gene encoding a protein related to disease. There can be no assurance that the Company would not be required to take a license under any such patents to practice certain aspects of its fluorescent assay technologies or that such license would be available on commercially reasonable terms, if at all. Any action against the Company or its collaborators claiming damages and 9 11 seeking to enjoin commercial activities relating to the affected technologies could, in addition to subjecting the Company to potential liability for damages, require the Company or its collaborators to obtain a license in order to continue to develop, manufacture or market the affected technologies. The Company could incur substantial costs in defending patent infringement claims, obtaining patent licenses, engaging in interference and opposition proceedings or other challenges to its patent rights or intellectual property rights made by third parties, or in bringing such proceedings or enforcing any patent rights against third parties. In addition to patent protection, Aurora also relies on copyright protection, trade secrets, know-how, continuing technological innovation and licensing opportunities. In an effort to maintain the confidentiality and ownership of trade secrets and proprietary information, the Company requires employees, consultants and certain collaborators to execute confidentiality and invention assignment agreements upon commencement of a relationship with the Company. There can be no assurance, however, that these agreements will provide meaningful protection for the Company's trade secrets or other confidential information in the event of unauthorized use or disclosure of such information or that adequate remedies would exist in the event of such unauthorized use or disclosure. The loss or exposure of trade secrets possessed by the Company could adversely affect its business. Like many high technology companies, the Company may from time to time hire scientific personnel formerly employed by other companies involved in one or more areas similar to the activities conducted by the Company. Although the Company requires its employees to maintain the confidentiality of all confidential information of previous employers, there can be no assurance that the Company or these individuals will not be subject to allegations of trade secret misappropriation or other similar claims as a result of their prior affiliations. Competition and the Risk of Obsolescence of Technology. Competition among pharmaceutical and biotechnology companies which attempt to identify compounds for development is intense. Because the Company's UHTS system is being designed to integrate a number of different technologies, the Company competes in many areas, including assay development, high throughput screening and functional genomics. In the pharmaceutical industry, the Company competes with the research departments of pharmaceutical and biotechnology companies and other commercial enterprises, as well as numerous academic and research institutions. Pharmaceutical and biotechnology companies, academic institutions, governmental agencies and other research organizations are conducting research in various areas which constitute portions of the Company's technology platform, either on their own or in collaboration with others. There can be no assurance that pharmaceutical and biotechnology companies which currently compete with the Company in specific areas will not merge or enter into joint ventures or other alliances with one or more other such companies and become substantial multi-point competitors or that the Company's collaborators will not assemble their own ultra-high throughput screening systems by purchasing components from competitors. Genomics and combinatorial chemistry companies may also expand their business to include compound screening or screen development, either alone or pursuant to alliances with others. The Company anticipates that it will face increased competition in the future as new companies enter the market and advanced technologies, including more sophisticated information technologies, become available. The Company's technological approaches, in particular its UHTS system, may be rendered obsolete or uneconomical by advances in existing technological approaches or the development of different approaches by one or more of the Company's current or future competitors. Many of these competitors have greater financial and personnel resources, and more experience in research and development, than the Company. Historically, pharmaceutical and biotechnology companies have maintained close control over their research activities, including the synthesis, screening and optimization of chemical compounds. Many of these companies, which represent the greatest potential market for the Company's systems, services and technologies, have developed or are developing internal programs and other methodologies to improve productivity, including major investments in robotics technology to permit the automated screening of compounds. 10 12 Future Capital Needs; Uncertainty of Additional Funding. The Company may be required to raise substantial additional capital over a period of several years in order to conduct its operations. Such capital may be raised through additional public or private equity financings, as well as collaborative arrangements, borrowings and other available sources. The Company depends upon its corporate collaborators for research and development funding. As of December 31, 1996, the Company had received approximately $1.3 million from its collaborators. The Company believes that the net proceeds of this offering, expected revenue from collaborations, existing capital resources and interest income should be sufficient to fund its anticipated levels of operations at least through mid-1999. No assurance can be given that the Company's business or operations will not change in a manner that would consume available resources more rapidly than anticipated, or that substantial additional funding will not be required before the Company can achieve profitable operations. There can be no assurance that the Company will continue to receive funding under the existing collaborative agreements or that the Company's existing or potential future collaborative agreements will be adequate to fund the Company's operations. The Company's capital requirements depend on numerous factors, including the ability of the Company to enter into additional collaborative agreements, competing technological and market developments, changes in the Company's existing collaborative relationships, the cost of filing, prosecuting, defending and enforcing patent claims and other intellectual property rights, the purchase of additional capital equipment, the development of the Company's UHTS system and the progress of the Company's collaborators' drug development activities. There can be no assurance that additional funding, if necessary, will be available on favorable terms, if at all. If adequate funds are not available, the Company may be required to curtail operations significantly or to obtain funds by entering into arrangements with collaborators or others that may require the Company to relinquish rights to certain of its systems, services, technologies or potential markets that the Company would not otherwise relinquish, which would have a material adverse effect on the Company's business, financial condition and results of operations. To the extent that additional capital is raised through the sale of equity or securities convertible into equity, the issuance of such securities would result in dilution to the Company's stockholders. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." Uncertainty of Milestone Payments on Pharmaceutical Products; Government Regulation. The Company's future revenue will depend in part on the realization of milestone payments and royalties, if any, triggered by the successful development and commercialization of lead compounds identified through the use of the Company's technologies. The Company's screens may result in developed and commercialized pharmaceutical products generating milestone payments and royalties only after lengthy and costly preclinical and clinical development efforts, the receipt of requisite regulatory approvals, and the integration of manufacturing capabilities and successful marketing efforts, all of which must be performed by the Company's collaborators. The commercialization of any such products is highly uncertain due to the significant research, development, market, regulatory and other risks associated with the drug development process. With the exception of certain aspects of preclinical development, the Company does not currently intend to perform any of these activities. The Company's agreements with its collaborators do not obligate those parties to develop or commercialize lead compounds identified through the use of the Company's technologies. Development and commercialization of lead compounds will therefore depend not only on the achievement of research objectives by the Company and its collaborators, which cannot be assured, but also on each collaborator's own financial, competitive, marketing and strategic considerations, all of which are outside the Company's control. Such strategic considerations may include the relative advantages of alternative products being marketed or developed by others, including relevant patent and proprietary positions. There can be no assurance that the interests and motivations of the Company's collaborators are, or will remain, aligned with those of the Company, that current or future collaborators will not pursue alternative technology in preference to that of the Company or that such collaborators will successfully perform their development, regulatory, compliance, manufacturing or marketing functions. Should a collaborator fail to develop or 11 13 commercialize a lead compound identified through the use of the Company's technologies, or should such a compound be determined to be unsafe or of no therapeutic benefit, the Company will not receive any future milestone payments or royalties associated with such compound, and the Company may have only limited or no rights to independently develop and commercialize such compounds or products. In addition, there can be no assurance that any product will be developed and commercialized as a result of such collaborations, that any such development or commercialization would be successful or that disputes will not arise over the application of payment provisions to such drugs. Regulation by the U.S. Food and Drug Administration (the "FDA") and other governmental entities in the United States and other countries will be a significant factor in the production and marketing of any pharmaceutical products that may be developed by a collaborator. It is not currently anticipated that the Company will develop its own drugs through clinical trials. However, pharmaceutical products, if any, developed by the Company's collaborators will require lengthy and costly pre-clinical and clinical trials and regulatory approval by governmental agencies prior to commercialization. The process of obtaining these approvals and the subsequent compliance with appropriate federal, state and foreign statutes and regulations are time consuming and require the expenditure of substantial resources. Delays in obtaining regulatory approvals would adversely affect the marketing of any drugs developed by the Company's collaborators, diminish any competitive advantages that the Company's collaborators may attain and therefore adversely affect the Company's ability to receive royalties or milestone payments. If the product is classified as a new drug, a New Drug Application will be required to be filed with, and product approval must be obtained from, the FDA before commercial marketing of the drug. These testing and approval processes require substantial time and effort and there can be no assurance that any approval will be granted on a timely basis, if at all. Attraction and Retention of Key Employees and Consultants. The Company is highly dependent on the principal members of its scientific and management staff, as well as its scientific consultants, particularly Drs. Timothy J. Rink, J. Gordon Foulkes, Harry G. Stylli and Roger Y. Tsien. The loss of one or more members of its staff could have a material adverse effect on the Company's business, financial condition and results of operations. The Company does not maintain "key person" insurance on any of its employees. The Company's future success will also depend in part on its ability to identify, recruit and retain additional qualified personnel, including individuals holding doctoral degrees in the basic sciences. There is intense competition for such personnel in the areas of the Company's activities, and there can be no assurance that the Company will be able to continue to attract and retain personnel with the advanced technical qualifications necessary for the development of the Company's business. Failure to attract and retain key personnel could have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Scientific Advisors" and "Management." Significant Fluctuations in Quarterly Results. To date, all revenue received by the Company has been from the payment of license and up-front fees and research and co-development funding paid pursuant to collaborative agreements. The Company expects that a significant portion of its revenue for the foreseeable future will be comprised of such payments. The timing of such payments in the future will depend upon the completion of certain milestones as provided for in such collaborative agreements. In any one quarter the Company may receive multiple or no payments from its several collaborators. Operating results may therefore vary substantially from quarter to quarter and will not necessarily be indicative of results in subsequent periods. Hazardous Materials. The research and development processes of the Company involve the controlled use of hazardous materials, chemicals and various radioactive compounds, including microbial organisms and other biological materials. The Company is subject to federal, state and local laws and regulations governing the use, manufacture, storage, handling and disposal of such materials and certain waste products. The risk of accidental contamination or injury from these materials cannot be completely eliminated. In the event of such an accident, the Company could be 12 14 held liable for any damages that result and any such liability could exceed the resources of the Company. There can be no assurance that the Company will not be required to incur significant costs to comply with environmental laws and regulations in the future. Control By Management and Existing Stockholders. Upon completion of this offering, the Company's principal stockholders, executive officers, directors and affiliated individuals and entities together will beneficially own approximately 56.0% of the outstanding shares of Common Stock (54.5% if the Underwriters' over-allotment option is exercised in full). As a result, these stockholders, acting together, will be able to influence significantly and possibly control most matters requiring approval by the stockholders of the Company, including approvals of amendments to the Company's Certificate of Incorporation, mergers, a sale of all or substantially all of the assets of the Company, going private transactions and other fundamental transactions. In addition, the Company's Certificate of Incorporation, as it is proposed to be amended and restated concurrently with the closing of this offering (the "Restated Certificate"), does not provide for cumulative voting with respect to the election of directors. Consequently, the present directors and executive officers of the Company, together with the Company's principal stockholders, will be able to control the election of the members of the Board of Directors of the Company. Such a concentration of ownership could have an adverse effect on the price of the Common Stock, and may have the effect of delaying or preventing a change in control of the Company, including transactions in which stockholders might otherwise receive a premium for their shares over then current market prices. No Prior Public Market for Common Stock; Possible Volatility of Stock Price. Prior to this offering, there has been no public market for the Common Stock and there can be no assurance that an active public market for the Common Stock will develop or be sustained after this offering. The initial public offering price will be determined by negotiations between the Company and the Underwriters and is not necessarily indicative of the market price at which the Common Stock of the Company will trade after this offering. See "Underwriting" for a discussion of the factors considered in determining the initial public offering price. The market prices for securities of comparable companies have been highly volatile and the market has experienced significant price and volume fluctuations that are often unrelated to the operating performance of particular companies. Announcements of technological innovations or new commercial products by the Company or its competitors, disputes or other developments concerning proprietary rights, including patents and litigation matters, publicity regarding actual or potential results with respect to systems, services or technologies under development by the Company, its collaborative partners or its competitors, regulatory developments in both the United States and foreign countries, public concern as to the efficacy of new technologies, general market conditions, as well as quarterly fluctuations in the Company's revenues and financial results and other factors, may have a significant impact on the market price of the Common Stock. In particular, the realization of any of the risks described in these "Risk Factors" could have a dramatic and materially adverse impact on such market price. Availability of Preferred Stock for Issuance; Anti-Takeover Provisions. The Restated Certificate authorizes the Board of Directors of the Company, without stockholder approval, to issue additional shares of Common Stock and to fix the rights, preferences and privileges of and issue up to 7,500,000 shares of preferred stock with voting, conversion, dividend and other rights and preferences that could adversely affect the voting power or other rights of the holders of Common Stock. The issuance of preferred stock, rights to purchase preferred stock or additional shares of Common Stock may have the effect of delaying or preventing a change in control of the Company. In addition, the possible issuance of preferred stock or additional shares of Common Stock could discourage a proxy contest, make more difficult the acquisition of a substantial block of the Company's Common Stock or limit the price that investors might be willing to pay for shares of the Company's Common Stock. Further, the Restated Certificate provides that any action required or permitted to be taken by stockholders of the Company must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing. Special meetings of the stockholders of the Company may be called only by the Chairman of the Board of Directors, the President of 13 15 the Company, by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors, or by the holders of 50% of the outstanding voting stock of the Company. These and other provisions contained in the Restated Certificate and the Company's Bylaws, as well as certain provisions of Delaware law, could delay or make more difficult certain types of transactions involving an actual or potential change in control of the Company or its management (including transactions in which stockholders might otherwise receive a premium for their shares over then current market prices) and may limit the ability of stockholders to remove current management of the Company or approve transactions that stockholders may deem to be in their best interests and, therefore, could adversely affect the price of the Company's Common Stock. Shares Eligible for Future Sale and Potential Adverse Effect on Market Price. Sales of Common Stock in the public market following this offering could adversely affect the market price of the Common Stock. Upon completion of this offering, the Company will have 15,893,814 shares of Common Stock outstanding, assuming no exercise of currently outstanding options, but including warrants to purchase an aggregate of 45,290 shares of Common Stock to be exercised upon the closing of this offering. Of these shares, the 3,000,000 shares sold in this offering (plus any additional shares sold upon exercise of the Underwriters' over-allotment option) will be freely transferable without restriction under the Securities Act of 1933, as amended (the "Securities Act"), unless they are held by "affiliates" of the Company as that term is used under the Securities Act and the regulations promulgated thereunder. Approximately 10,826,367 shares of Common Stock will be fully vested and eligible for sale under Securities Act Rules 144 and 701 on the ninety-first day after the effectiveness of this offering. Stockholders of the Company, holding an aggregate of 10,762,778 of these 10,826,367 shares of Common Stock, have agreed pursuant to lock-up agreements with the Underwriters, subject to certain limited exceptions, not to sell or otherwise dispose of any of the shares held by them as of the date of this Prospectus for a period of 180 days after the date of this Prospectus without the prior written consent of Alex. Brown & Sons Incorporated. At the end of such 180-day period, an additional 217,722 shares of Common Stock (plus approximately 15,985 shares issuable upon exercise of vested options) will be eligible for immediate resale, subject to compliance with Rule 144 or Rule 701. The remainder of the approximately 1,849,725 shares of Common Stock held by existing stockholders will become eligible for sale at various times over a period of two years and could be sold earlier if the holders exercise any available registration rights. The holders of 9,915,977 shares of Common Stock have the right in certain circumstances to require the Company to register their shares under the Securities Act for resale to the public beginning at the end of the 180 day lock-up period. If such holders, by exercising their demand registration rights, cause a large number of shares to be registered and sold in the public market, such sales could have an adverse effect on the market price for the Company's Common Stock. If the Company were required to include in a Company-initiated registration shares held by such holders pursuant to the exercise of their piggyback registration rights, such sales may have an adverse effect on the Company's ability to raise needed capital. In addition, the Company expects to file a registration statement on Form S-8 registering a total of approximately 2,170,168 shares of Common Stock subject to outstanding stock options or reserved for issuance under the Company's stock option plans. Such registration statement is expected to be filed and to become effective as soon as practicable after the effective date of this offering. Shares registered under such registration statement will, subject to Rule 144 volume limitations applicable to affiliates, be available for sale in the open market, unless such shares are subject to vesting restrictions with the Company or the lock-up agreements described above. See "Management," "Description of Capital Stock -- Registration Rights," "Shares Eligible for Future Sale" and "Underwriting." Immediate and Substantial Dilution. Purchasers of the shares of Common Stock offered hereby will experience immediate and substantial dilution in the net tangible book value of their investment from the initial public offering price. Additional dilution will occur upon exercise of outstanding options. See "Dilution" and "Shares Eligible for Future Sale." 14 16 USE OF PROCEEDS The net proceeds to the Company from the sale of the 3,000,000 shares of Common Stock offered hereby at an assumed public offering price of $10.00 per share are estimated to be $27.3 million ($31.5 million if the Underwriters' over-allotment option is exercised in full) after deducting underwriting discounts and commissions and estimated offering expenses. The Company intends to use the net proceeds from this offering principally for working capital and general corporate purposes, including facilities expansion and improvements, capital equipment purchases, enhancement of internal research and development capabilities and the acquisition of chemical libraries. The amounts actually expended by the Company for working capital purposes will vary significantly depending on a number of factors, including future revenue growth, if any, and the amount of cash, if any, generated by the Company's operations. The Company's management will retain broad discretion in the allocation of the net proceeds of this offering. The Company may also use a portion of the net proceeds to fund acquisitions of complementary technologies, products or businesses, although the Company has no current agreements or commitments for any such acquisition. Pending such uses, the Company intends to invest the net proceeds of this offering in short-term, interest-bearing, investment-grade securities. DIVIDEND POLICY To date, the Company has never declared nor paid any cash dividends on its Common Stock. The Company currently intends to retain any earnings for funding growth and, therefore, does not intend to pay any cash dividends on its Common Stock in the foreseeable future. 15 17 CAPITALIZATION The following table sets forth the capitalization of the Company as of December 31, 1996 (i) on an actual basis after giving effect to the conversion of all outstanding Preferred Stock into 9,915,977 shares of Common Stock and (ii) as adjusted to give effect to the receipt by the Company of the estimated net proceeds from the sale of 3,000,000 shares of Common Stock offered hereby at an assumed initial public offering price of $10.00 per share, after deducting underwriting discounts and commissions and estimated offering expenses, and the exercise upon the closing of this offering of outstanding warrants to purchase an aggregate of 45,290 shares of Common Stock:
DECEMBER 31, 1996 ----------------------- ACTUAL AS ADJUSTED ------- ----------- (IN THOUSANDS) Capital lease obligations, less current portion(1)................... $ 1,111 $ 1,111 Stockholders' equity: Preferred stock, $.001 par value, 25,000,000 shares authorized, actual, and 7,500,000 shares authorized, as adjusted; no shares issued or outstanding, actual and as adjusted................... -- -- Common stock, $.001 par value, 50,000,000 shares authorized; 12,781,137 shares issued and outstanding, actual; 15,826,427 shares issued and outstanding, as adjusted (2).................. 13 16 Additional paid-in capital......................................... 18,888 46,185 Deferred compensation, net......................................... (372) (372) Accumulated deficit................................................ (3,345) (3,345) - ------- Total stockholders' equity...................................... 15,184 42,484 - ------- Total capitalization....................................... $16,295 $43,595 ======= =
- --------------- (1) See Note 5 of Notes to Financial Statements for a description of the Company's capital lease obligations. (2) Excludes 452,920 shares of Common Stock issuable upon exercise of outstanding stock options as of February 28, 1997 at a weighted average exercise price of $1.16 per share and 1,757,248 shares of Common Stock reserved for future grant under the Company's 1996 Stock Plan, Employee Stock Purchase Plan and Non-Employee Directors' Stock Option Plan (including shares reserved in 1997). See "Capitalization," "Management," "Description of Capital Stock" and Notes 6 and 11 of Notes to Financial Statements. 16 18 DILUTION The pro forma net tangible book value of the Company as of December 31, 1996 was approximately $15.1 million, or $1.17 per share. Pro forma net tangible book value per share represents the amount of the Company's total tangible assets less total liabilities divided by 12,826,427 shares of Common Stock outstanding after giving effect to the conversion of all outstanding shares of Preferred Stock into Common Stock and the exercise upon the closing of this offering of outstanding warrants to purchase an aggregate of 45,290 shares of Common Stock. Pro forma net tangible book value dilution per share represents the difference between the amount per share paid by purchasers of shares of Common Stock in the offering and the pro forma net tangible book value per share of Common Stock immediately after completion of the Offering. After giving effect to the sale of the 3,000,000 shares of Common Stock offered by the Company hereby at an assumed initial public offering price of $10.00 per share and the application of the net proceeds therefrom, the Company's pro forma net tangible book value at December 31, 1996 would have been approximately $42.4 million, or $2.68 per share. This represents an immediate increase in pro forma net tangible book value of $1.51 per share to existing stockholders and an immediate dilution in pro forma net tangible book value of $7.32 per share to new investors purchasing Common Stock in this offering, as illustrated in the following table: Assumed initial public offering price per share........................... $10.00 Pro forma net tangible book value per share as of December 31, 1996..... $1.17 Increase per share attributable to new investors........................ 1.51 ----- Pro forma net tangible book value per share after this offering........... 2.68 ------ Net tangible book value dilution per share to new investors............... $ 7.32 ======
The following table summarizes on a pro forma basis, as of December 31, 1996, the differences between the existing stockholders and the purchasers of shares in this offering (at an assumed price of $10.00 per share) with respect to the number of shares purchased from the Company, the total consideration paid and the average price per share paid.
SHARES PURCHASED TOTAL CONSIDERATION -------------------- --------------------- AVERAGE PRICE NUMBER PERCENT AMOUNT PERCENT PER SHARE ----------- ------- ----------- ------- ------------- Existing stockholders(1)............. 12,826,427 81.0% $18,836,000 38.6% $ 1.47 New investors........................ 3,000,000 19.0 30,000,000 61.4 $ 10.00 - ---------- ----- ----- Total.............................. 15,826,427 100.0% $48,836,000 100.0% ========== ===== = =====
- --------------- (1) Excludes 452,920 shares of Common Stock issuable upon exercise of outstanding stock options as of February 28, 1997 at a weighted average exercise price of $1.16 per share and 1,757,248 shares of Common Stock reserved for future grant under the Company's 1996 Stock Plan, Employee Stock Purchase Plan and Non-Employee Directors' Stock Option Plan (including shares reserved in 1997). See "Capitalization" and "Management," "Description of Capital Stock" and Notes 6 and 11 of Notes to Financial Statements. To the extent that outstanding options are exercised in the future, there may be further dilution to new stockholders. 17 19 SELECTED FINANCIAL DATA The selected financial data presented below for the period from May 8, 1995 (inception) to December 31, 1995 and the year ended December 31, 1996 and at December 31, 1995 and 1996 are derived from the Company's financial statements audited by Ernst & Young LLP, independent auditors, which are included elsewhere in this Prospectus. The data set forth below should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the financial statements and related notes thereto appearing elsewhere in this Prospectus.
PERIOD FROM MAY 8, 1995 (INCEPTION) TO YEAR ENDED DECEMBER 31, 1995 DECEMBER 31, 1996 ------------------- ----------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENTS OF OPERATIONS DATA: Revenue under collaborative agreements............. $ -- $ 2,217 Operating expenses: Research and development........................ 366 4,396 General and administrative...................... 46 1,275 ----- ------- Total operating expenses........................... 412 5,671 Interest income, net............................... -- 521 ----- ------- Net loss........................................... $(412) $(2,933) ===== ======= Pro forma net loss per share (1)................... $(0.14) $ (0.26) Shares used in computing pro forma net loss per share (1)....................................... 2,880 11,260
DECEMBER 31, ----------------------------------------- 1995 1996 ------------------- ----------------- (IN THOUSANDS) BALANCE SHEET DATA: Cash, cash equivalents and investment securities available for sale................................. $ 11 $13,167 Total assets......................................... 115 17,515 Capital lease obligations, less current portion...... -- 1,111 Accumulated deficit.................................. (412) (3,345) Total stockholders' equity........................... (412) 15,184
- --------------- (1) See Note 1 of Notes to Financial Statements for a description of the computation of the pro forma net loss per share and the number of shares used in the pro forma net loss per share calculation. 18 20 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS This Prospectus contains certain statements of a forward-looking nature relating to future events or the future financial performance of the Company. Prospective investors are cautioned that such statements are only predictions and that actual events or results may differ materially. In evaluating such statements, prospective investors should specifically consider the various factors identified in this Prospectus, including the matters set forth under the caption "Risk Factors," which could cause actual results to differ materially from those indicated by such forward-looking statements. OVERVIEW Aurora Biosciences Corporation ("Aurora" or the "Company") designs and develops proprietary drug discovery systems, services and technologies to accelerate and enhance the discovery of new medicines. From May 8, 1995 (inception) to December 31, 1995, the Company's operating activities related primarily to recruitment of personnel and raising capital. Operating activities since the beginning of 1996 have focused on the development of Aurora's portfolio of proprietary fluorescent assay technologies, as well as the development of its ultra-high throughput screening ("UHTS") system, designed to integrate advanced instrumentation and miniaturized assays. The Company has incurred losses since inception and, as of December 31, 1996, had an accumulated deficit of $3.3 million. The Company's ability to achieve profitability will depend in part on its ability to successfully develop the UHTS system, provide screen development and screening services to pharmaceutical and biotechnology companies, achieve acceptable performance specifications for its UHTS system, and gain industry acceptance of its systems, services and technologies. Payments from corporate collaborators and interest income are expected to be the only sources of revenue for the foreseeable future. The Company has not yet generated any revenue from milestones under its collaborative agreements. Royalties or other revenue from commercial sales of products developed from any compound identified by using the Company's technologies are not expected for at least several years, if at all. Payments under collaborative agreements will be subject to significant fluctuation in both timing and amount and therefore the Company's results of operations for any period may not be comparable to the results of operations for any other period. In November 1996 and December 1996, Aurora announced collaborative agreements with Bristol-Myers Squibb ("BMS") and Eli Lilly and Company ("Lilly"). Under the terms of each of the BMS and Lilly agreements, the Company is required to develop and separately install three components to be integrated into one complete UHTS system. The Company will also co-develop with each party high throughput screening assays for use by such party. Each party will also have the right to use the Company's fluorescent assay technologies for internal research and drug development, including the development of screening assays. Aurora has also entered into drug discovery collaborations with Sequana Therapeutics, Inc., Alanex Corporation and ArQule, Inc. and into strategic technology alliances for UHTS system development with several companies including Packard Instrument Company ("Packard") and Carl Creative Systems, Inc. Additionally, in December 1996 Aurora signed a collaborative agreement with Roche Bioscience Corporation ("Roche") to access one of the Company's fluorescent assay technologies and to develop specialized instrumentation. See "Business -- Corporate Collaborations" and "-- UHTS Technology Alliances." Revenue under collaborative agreements typically consists of non-refundable up-front fees, ongoing research and co-development payments, and milestone, royalty and other contingent payments. Revenue from non-refundable up-front fees is recognized upon signing of the agreement. Revenue from ongoing research and co-development payments is recognized ratably over the term of the agreement, and the Company believes such payments will approximate the research and 19 21 development expense being incurred associated with the agreement. Revenue from milestone, royalty and other contingent payments will be recognized as earned. Revenue from screen development and screening and other services is recognized as earned. Advance payments received under any agreements in excess of amounts earned are classified as unearned revenue. Revenue under cost reimbursement contracts is recognized as the related costs are incurred. The Company records and amortizes over the related vesting periods deferred compensation representing the difference between the price of stock issued or options granted and the deemed fair market value of the Common Stock at the time of issue or grant. Stock and options generally vest over a four-year period. RESULTS OF OPERATIONS Revenue under collaborative agreements totaled $2.2 million for the year ended December 31, 1996. The Company had no revenue during the period from May 8, 1995 (inception) through December 31, 1995 ("the 1995 Period"). The 1996 revenue resulted from the Company's collaborative agreements with BMS, Lilly and Roche and the technology alliance with Packard. Research and development expenses increased to $4.4 million in 1996 from $366,000 in the 1995 Period. The increase in research and development expenses was attributable to increased research and development personnel expenses, increased equipment and depreciation and facilities expenses in connection with the establishment of operations, payments under technology development and license agreements, purchase of laboratory supplies and increased expenses associated with the compensation paid to the Company's scientific advisors. General and administrative expenses increased to $1.3 million in 1996 from $46,000 in the 1995 Period. The increase was primarily attributable to increased management and administrative personnel expenses, increased depreciation expenses from the acquisition of equipment in connection with the establishment of operations and legal and professional fees incurred in connection with the overall scale-up of the Company's operations and business development efforts. Deferred compensation in the amount of approximately $374,000 was recorded as of December 31, 1996. Subsequent to December 31, 1996, the Company recorded an additional $3.2 million of deferred compensation in connection with stock issued and options granted. The Company had net interest income of $521,000 in 1996 resulting from interest earned on cash and investment securities derived from private placements of equity securities, partially offset by interest expense incurred on capital lease obligations entered into in 1996. The Company did not earn interest income or incur interest expense in the 1995 Period. LIQUIDITY AND CAPITAL RESOURCES At December 31, 1996, Aurora held cash, cash equivalents and investment securities of $13.2 million and working capital of $13.5 million. The Company has funded its operations to date primarily through private placements of equity securities with aggregate net proceeds of approximately $18.7 million, capital equipment lease financing totaling $1.6 million and interest income earned on the net proceeds of its private placements. Receipts from corporate collaborations and strategic technology alliances totaled $1.4 million through December 31, 1996 and an additional $2.9 million has been received subsequent to such date. To date, all revenue received by the Company has been from its collaborations and technology alliances. The Company expects that substantially all revenue for the foreseeable future will come from collaborators and interest income. Furthermore, the Company's ability to achieve profitability will be dependent upon the ability of the Company to enter into additional corporate collaborations. There can be no assurance that the Company will be able to negotiate additional collaborative agreements in the future on acceptable terms, if at all, or that such current or future collaborative agreements will be successful and provide the Company with expected benefits. 20 22 The Company believes that the net proceeds from this offering, expected revenue from collaborations, existing capital resources and interest income should be sufficient to fund its anticipated levels of operations at least through mid-1999. No assurance can be given that the Company's business or operations will not change in a manner that would consume available resources more rapidly than anticipated, or that substantial additional funding will not be required before the Company can achieve profitable operations. The Company's capital requirements depend on numerous factors, including the ability of the Company to enter into additional collaborative agreements, competing technological and market developments, changes in the Company's existing collaborative relationships, the cost of filing, prosecuting, defending and enforcing patent claims and other intellectual property rights, the purchase of additional capital equipment, the development of the Company's UHTS system and the progress of the Company's collaborators' milestone and royalty-producing activities. There can be no assurance that additional funding, if necessary, will be available on favorable terms, if at all. If adequate funds are not available, the Company may be required to curtail operations significantly or to obtain funds by entering into arrangements with collaborators or others that may require the Company to relinquish rights to certain of its systems, services, technologies or potential markets that the Company would not otherwise relinquish, which would have a material adverse effect on the Company's business, financial condition and results of operations. 21 23 BUSINESS OVERVIEW Aurora Biosciences Corporation ("Aurora" or the "Company") designs and develops proprietary drug discovery systems, services and technologies to accelerate and enhance the discovery of new medicines. Aurora is developing an integrated technology platform comprised of a portfolio of proprietary fluorescent assay technologies and an ultra-high throughput screening ("UHTS") system designed to allow assay miniaturization and to overcome many of the limitations associated with the traditional drug discovery process. The Company believes that this platform will enable Aurora and its collaborators, which include Bristol-Myers Squibb ("BMS") and Eli Lilly and Company ("Lilly"), to take advantage of the opportunities created by recent advances in genomics and combinatorial chemistry that have generated many new therapeutic targets and an abundance of new small molecule compounds. Aurora believes its integrated platform will accelerate the drug discovery process by shortening the time required to identify high quality lead compounds and to optimize those compounds into drug development candidates. Aurora's goal is to become the leader in the development and commercialization of technologies that will accelerate and enhance the discovery of new medicines. The Company seeks to diversify business risk by generating revenue from multiple collaborators seeking to exploit Aurora's fluorescent assay technologies and UHTS system in many different drug discovery programs. The Company expects to generate revenue by developing screens, providing screening services, developing and providing UHTS systems to syndicate members, licensing its proprietary technologies, and realizing royalty and milestone payments from the development and commercialization of drug candidates identified using Aurora's technologies. To date, the Company has entered into collaborative agreements with BMS and Lilly to license the Company's fluorescent assay technologies for their internal discovery research, to collaborate on screen development and as initial members of a syndicate to co-develop Aurora's UHTS system. In addition, Aurora has also entered into agreements to develop screens for or provide screening services to Sequana Therapeutics, Inc. ("Sequana"), Allelix Biopharmaceuticals, Inc. ("Allelix") and Roche Bioscience ("Roche"). The Company has also entered into agreements with Alanex Corporation ("Alanex") and ArQule, Inc. ("ArQule") providing Aurora with non-exclusive access to certain of their combinatorial chemistry libraries. THE DISCOVERY OF NEW MEDICINES Drug discovery methods generally involve the synthesis and testing of large libraries of different compounds in relatively simple assays, or tests, containing targets designed to mimic aspects of a disease process. Assays are employed to determine the effect of a compound upon a particular target. When applied methodically, assays can be used as screens to identify active chemicals, referred to as "hits," that may produce a desired effect upon a target's function. Lead compounds can be identified by additional screening of hits and may then be optimized to generate candidate compounds for development as potential medicines. - -------------------------------------------------------------------------------- ELEMENTS OF THE DRUG DISCOVERY PROCESS Targets Assays SCREENING - Libraries of Compounds Hits Lead Compounds Candidate Compounds Drug Development - -------------------------------------------------------------------------------- 22 24 TARGETS Targets are specific biological molecules, often proteins such as receptors, enzymes or ion channels, which are believed to play a role in the onset or progression of disease. Most drugs work by binding to a target and modulating the target's biological function or activity. Thus, most drugs are discovered by identifying compounds that modulate an established target's biological function. Until recently, pharmacologists and molecular biologists had identified only a few hundred targets using conventional methods. Recent developments in molecular biology and genomics have led to a dramatic increase in the number of potential therapeutic targets available for drug discovery. The chemical information required for cells to produce proteins is encoded in genes. It is currently estimated that several thousand of the roughly 100,000 different human genes encode potential targets. Industrial and academic researchers have already identified tens of thousands of new genes as they decipher the genomes of both humans and disease-causing organisms. Determining the function of these genes and the proteins they encode, including their evaluation as potential targets, is known as functional genomics and can be a rate-limiting step in the selection of novel targets for drug discovery. The large number of newly discovered targets has created the need for faster screen development and higher throughput screening. COMPOUNDS Traditionally, chemists laboriously synthesized new compounds one at a time, or painstakingly isolated them from natural sources, such as plants or microbial fermentation broths. Over decades, chemists in major pharmaceutical and chemical companies built up collections, or libraries, of hundreds of thousands of compounds. During the last few years, however, many industrial and academic groups have developed combinatorial chemistry techniques to greatly increase the supply and diversity of small molecules for screening. Already, many companies have used combinatorial chemistry to quickly create libraries of hundreds of thousands, or even millions, of small molecules, which are now available to be tested against both established and novel targets to yield potential lead compounds for new medicines. These vast numbers of compounds present a substantial challenge to the drug discovery process and create a need for faster and more efficient screening. ASSAYS Targets can be incorporated into either biochemical or cell-based assays. A biochemical assay consists of a target which is isolated from its natural cellular environment. If enough of the target can be isolated, such assays can be relatively simple to develop and perform. It is often desirable, however, to test compounds on targets functioning in the environment of living human or other mammalian cells. Such cell-based assays provide a number of advantages, including in many cases greater predictive value of therapeutic effect and potential toxicity. In addition, cell-based assays may be required to screen certain targets not readily amenable to biochemical assays. However, cell-based assays have typically been more difficult and time consuming both to develop and to perform due to difficulties in detecting the function of a target in a living cell and the inherent technical complexities of using human or other mammalian cells in drug screens. SCREENING Screening is the process of methodically testing libraries of compounds for potential therapeutic value by using assays to determine if any compounds affect a selected target. Primary screening determines if any of the compounds tested are hits. Re-testing confirms initial hits and secondary screening refines the initial evaluation of hits. For example, secondary screening may measure a hit's potency (the amount of the hit compound required to exert its effect) and specificity (the degree to which the hit does not affect unintended targets). These secondary screens help in selecting lead compounds for further discovery efforts to identify candidate compounds for development. 23 25 Until the last five to ten years, screening was a labor intensive manual process in which it was generally possible to test only tens of compounds per day. Today, pharmaceutical and biotechnology companies with advanced drug discovery programs use semi-automated or robotic high throughput screening systems with microtiter plates that contain 96 separate wells for assays. Certain current best practice screening systems can operate at throughputs of up to approximately 10,000 discrete compounds per day per system, but typically such systems operate at throughputs of less than 3,000 discrete compounds per day. THE NEED TO IMPROVE THE DRUG DISCOVERY PROCESS The discovery and development of new medicines remains an expensive, time-consuming and often unsuccessful process. Although many pharmaceutical, biotechnology and clinical research organizations have significantly improved the efficiency of the drug development phase, only about five to ten percent of candidate compounds entering development will ultimately be approved for marketing. Candidate compounds that are identified in discovery frequently fail in the development phase due to insufficient therapeutic benefit or unexpected side effects. To date, efforts to improve the initial discovery process have been inadequate. If the discovery process were sufficiently improved, pharmaceutical and biotechnology companies could more quickly and efficiently discover larger numbers of higher quality candidate compounds that have a greater chance of development into medicines that meet significant unmet needs. The dramatic increases in the number of potential targets and the size of compound libraries resulting from advances in genomics and combinatorial chemistry, respectively, have created a significant opportunity to discover greater numbers of higher quality lead compounds for development into medicines. However, the increasing numbers of targets and compounds have created severe bottlenecks in the drug discovery process. These bottlenecks result from the difficulty of quickly analyzing function and disease relevance of newly discovered targets, the complexity of incorporating the many different types of targets into screens, and the inability to screen extensive compound libraries quickly and at a reasonable cost. AURORA'S APPROACH TECHNOLOGY PLATFORM Aurora is developing an integrated technology platform designed to allow assay miniaturization and to overcome many of the limitations associated with traditional drug discovery and enable the Company and its collaborators to take advantage of the recent advances in genomics and combinatorial chemistry. The two principal components of Aurora's platform are its proprietary fluorescent assay technologies and its highly automated ultra-high throughput screening system that is being designed to screen over 100,000 discrete compounds per day per system in miniaturized assays. Aurora's fluorescent assay technologies are being used today to facilitate drug discovery by the Company's collaborators and in the Company's existing high throughput screening system. In addition, the Company is currently developing screens for collaborators which it expects to deliver in the next several months. To significantly advance current high throughput screening capabilities and to exploit the power of its fluorescent assay technologies, Aurora is developing an ultra-high throughput screening system over the next three to four years. Aurora believes that this integrated technology platform will allow Aurora and its collaborators to accelerate the drug discovery process by shortening the time required to identify higher quality lead compounds and to optimize those compounds into drug development candidates. 24 26 AURORA'S INTEGRATED TECHNOLOGY PLATFORM [FLUORESCENT ASSAY TECHNOLOGIES] POTENTIAL BENEFITS Applicable to most targets Reduced assay volumes Cell-based and biochemical assays Simplified screening process Faster assay development Versatile screening platform Functional genomics in mammalian cells Automated access to compound libraries Miniaturized assays Throughputs of 100,000 compounds per day
The following are key features of Aurora's integrated technology platform: Ability to Design Assays for a Broad Range of Targets. Aurora's portfolio of novel fluorescent assay technologies is designed to enable screening against nearly all major classes of human drug targets, including receptors, ion channels and enzymes, in most therapeutic areas. Ability to Conduct Both Cell-based and Biochemical Assays. Aurora's fluorescent assay technologies include both cell-based and biochemical approaches. Many of the Company's screens are being designed to be performed with living mammalian cells to better model human disease processes. In addition a cell-based approach may be needed because certain important targets may not be amenable to biochemical assays. Reduction in Time and Investment Required to Develop Cell-based Assays. Aurora's fluorescent reporter technologies are highly sensitive. The b-lactamase reporter system, for example, enables the measurement of certain activation responses within a single living mammalian cell. For many drug targets, this feature permits the rapid genetic selection and multiplication of cells with optimal properties for particular screens, which can reduce the time required for screen development from months, with conventional methods, down to a few weeks. Ability to Analyze Gene Function in Living Mammalian Cells. Certain of the Company's fluorescent assay technologies may facilitate the understanding of gene function in human and other mammalian cells. The Company believes that this approach complements genetic approaches which employ fruit flies, worms or yeast, and allows the functional analysis of human genes in a more appropriate cellular context. This technology, if fully developed, could prove valuable to companies with significant involvement in the genomics area. Increased Throughput and Reduced Costs Through Miniaturization of Assays. The sensitivity and ratiometric readouts of Aurora's fluorescent reporter technologies permit development of miniaturized assays, important for cost-effective ultra-high throughput screening. The Company's scientists have miniaturized both cell-based and biochemical assays for certain applications. The Company believes that its assays will allow increased throughput with decreased costs. Advanced Instrumentation for Small Volumes. The Company is developing novel screening plates (NanoPlates) and innovative microfluidics to enable miniaturized assays in volumes approximately 100 times smaller than conventional screens. Smaller volumes reduce the amount of expensive or scarce reagents that may be required in a screen. Simplified Screening Process. Most conventional high throughput screens require special liquid handling devices to perform liquid dispensing and washing steps before the data can be 25 27 obtained from a screen. Liquid handling and washing often cause such long delays in screening that it may be impossible to measure certain events as they happen in real time. The Company's screens are designed to function with a significantly reduced number of liquid handling steps and without washing steps. Versatile Ultra-high Throughput Screening Platform. The Company is developing novel fluorescence instrumentation and NanoPlates to enable a wide variety of targets to be screened in cell-based or biochemical assays in the UHTS system. The Company believes that other systems being designed for ultra-high throughput screening may be more restricted to certain target classes and assay types. Automated Access to Compound Libraries. Ultra-high throughput screening requires automated rapid access both to organized collections of large compound libraries, as well as to individual compounds in the collection for re-testing. Aurora is unaware of any system currently available with such capabilities. The Company is developing a compound storage and retrieval system designed to allow fully automated access to over 1,000,000 compounds, for itself and each of its syndicate members. Ultra-high Throughput. Aurora's technology platform is designed to integrate the Company's proprietary fluorescent assays and automated miniaturized systems with advanced informatics to create an ultra-high throughput screening system capable of testing more than 100,000 discrete compounds per day per system. If realized, this throughput would be over ten times faster than current best practice high throughput screening systems and would test each compound at a fraction of current costs. BUSINESS STRATEGY Aurora's goal is to become the leader in the development and commercialization of technologies to accelerate and enhance the discovery of new medicines. The Company seeks to diversify business risk by generating revenue from multiple collaborators seeking to exploit Aurora's fluorescent assay technologies and ultra-high throughput screening system in many different drug discovery programs. To implement this strategy, the Company intends to: Generate Multiple Revenue Streams from Screen Development and Screening Services. Aurora generates revenue from multiple collaborators by developing screens, primarily on a non-exclusive basis, for diverse targets and providing screening services. To date, Aurora has entered into agreements for screen development with pharmaceutical and biotechnology companies, including BMS, Lilly, Roche and Allelix. The Company develops screens with respect to specific targets rather than for broad therapeutic areas. The developed screen is then either transferred to the collaborator for internal research or is utilized by Aurora to provide screening services. When Aurora provides such screening services, it will use a high throughput screening system to screen the compounds for and provide information and potential lead candidates to its collaborators. Additionally, the Company is entitled to receive milestone payments and royalties if any compound discovered through such screening is developed and commercialized. Aurora plans to greatly enhance such screening services once its own UHTS system is available for screening. Establish a Syndicate for the Co-development of Aurora's UHTS System. Aurora is currently establishing a syndicate consisting of up to six leading pharmaceutical companies to co-develop Aurora's UHTS system. Aurora has entered into collaborative agreements with BMS and Lilly as initial syndicate members. Each member is scheduled to receive its own UHTS system over a three- to four-year period for use in its internal drug discovery programs. Through the syndicate, Aurora is able to share the cost of the development of the UHTS system and offer to its syndicate members co-exclusive access to the system. The Company believes that the payments made by each syndicate member will be significantly lower than the cost for any one company to develop a similar system on its own. 26 28 Expand Compound Libraries. In providing screening services, Aurora will utilize compounds that are either supplied by its collaborators or from compound libraries to which Aurora has access. In order to provide additional opportunity for Aurora and its collaborators, the Company is obtaining access to libraries of compounds focused on small molecules, but also including selected natural product extracts, peptides and proteins. To gain access to these diverse sets of compounds, the Company plans to enter into collaborations with companies specializing in combinatorial chemistry and natural extract discovery and purification, and to purchase compounds from available commercial sources. To date, Aurora has entered into agreements with Alanex and ArQule, providing Aurora with non-exclusive access to certain of their combinatorial chemistry libraries. Form Biotechnology Collaborations. Aurora is seeking to collaborate with genomics companies that may have access to considerable numbers of potentially important new targets, and with therapeutically focused companies that have promising discovery programs with validated targets, for which Aurora's screening technology could substantially accelerate the identification of lead or candidate compounds. To date, Aurora has entered into such collaborations with Allelix and Sequana. Aurora is also considering providing screening services in three-party collaborations among Aurora, genomics companies or other companies that provide targets and specialized biologic expertise, and combinatorial chemistry companies that provide compounds and chemical optimization expertise. Develop Information Tools and Databases. Utilizing the fluorescent assay technologies and the UHTS system, the Company expects to have the ability to generate and analyze large amounts of complex information on molecular and genomic targets and large numbers of chemical structures. Aurora intends to exploit these applications of its technology either directly or in collaborations with leaders in the areas of informatics, genomics and drug discovery. Ultimately, the Company plans to leverage this information to create new revenue opportunities in the future. Maintain Technology Leadership. The Company has assembled a unique multi-disciplinary team of scientists from leading companies in the biology, chemistry, instrumentation, automation and computer science industries. Aurora intends to continue investing significantly in research and development in order to make advances in its core technologies and to maintain its technology leadership. The Company also intends to continue to form strategic technology alliances with leading companies from each of these industries and with leading academic institutions to provide the Company with access to those parties' technologies and expertise. AURORA'S TECHNOLOGY The two principal components of Aurora's integrated technology platform are its proprietary fluorescent assay technologies and its highly automated ultra-high throughput system that is being developed for screening miniaturized assays. This unique platform results from the Company's innovative integration of many different disciplines, including fluorescence chemistry, biophysics, molecular biology, protein engineering, automation, process control, optics, microfluidics, informatics and software development. AURORA'S PROPRIETARY FLUORESCENT ASSAY TECHNOLOGIES The Company has internally developed or licensed a broad range of proprietary fluorescent assay technologies which the Company believes exhibit significant advantages over existing screening assays. The Company's fluorescent assay technologies utilize light glowing from fluorescent molecules to reveal molecular and cellular activity with precision and sensitivity. Fluorescence is the property of certain molecules to absorb and be excited by light of one color (excitation wavelength) and to send, or emit, light of another color having a longer wavelength (emission wavelength). Aurora's fluorescent assay technologies allow monitoring of the function of tiny 27 29 amounts of biomolecules in a non-destructive manner, and therefore many aspects of cell function can now be observed in single living cells. Aurora's fluorescent assay technologies generally exploit certain special types of fluorescence measurements, including ratiometric and fluorescence resonance energy transfer measurements. These features enable highly accurate data to be obtained in high throughput screening, significantly reducing the number of replicates and the cost required to carry-out such screens. As used in the Company's fluorescent assay technologies, these approaches provide a change in color of the emitted light rather than just a change in the intensity of the emitted light. Ratiometric measurements, the ratio of the signal at two wavelengths, provide a measure that greatly reduces unwanted artifacts. These artifacts may result from a variable number of cells in an assay, instrumental fluctuation, photo-bleaching (light-induced degradation) of the probe molecules, or the presence of quenching substances. Fluorescence resonance energy transfer can occur when two fluorescent molecules interact as donor and acceptor over very short distances. When the donor is illuminated with light at its wavelength of excitation, instead of giving its usual color of emitted light, it transfers energy to the acceptor that now emits at the acceptor's characteristic wavelength. This transfer rapidly decreases if the two molecules move apart, for example if a chemical linker is cleaved, and the fluorescence emission now changes to the wavelength of the donor. The ratiometric signal change generated can give a highly sensitive and reliable readout of molecular proximity. Aurora's portfolio of fluorescent assay technologies is designed to enable screening of compounds against nearly all major classes of human drug targets, including receptors, ion channels and enzymes, in most therapeutic areas. The following chart summarizes several of Aurora's key fluorescent assay technologies, together with examples of the classes of targets and therapeutic areas to which they may be applicable: ------------------------------------------------------------------------------------------------- ASSAY TECHNOLOGY TARGET CLASSES THERAPEUTIC AREA ------------------------------------------------------------------------------------------------- BETA-LACTAMASE REPORTER GENE cell surface receptors, intra- most areas, including SYSTEM cellular receptors, and intra- cardiovascular diseases, (cell-based assays) cellular signaling proteins inflammation, cancer, central nervous system diseases and endocrine diseases ------------------------------------------------------------------------------------------------- PROMISCUOUS G-PROTEINS G-protein coupled receptors most areas, including (cell-based assays) cardiovascular diseases, inflammation, cancer, central nervous system diseases and endocrine diseases ------------------------------------------------------------------------------------------------- MEMBRANE VOLTAGE REPORTERS ion channels cardiac diseases, central (cell-based assays) nervous system conditions and gastro-intestinal diseases ------------------------------------------------------------------------------------------------- GFP PROTEASE REPORTERS proteases AIDS, cardiovascular diseases (biochemical and cell-based and degenerative brain diseases assays) ------------------------------------------------------------------------------------------------- GFP KINASE REPORTERS protein kinases cancer and autoimmune diseases (biochemical and cell-based assays) -------------------------------------------------------------------------------------------------
To date, only a limited number of targets have been incorporated into assays utilizing the Company's fluorescent assay technologies. There can be no assurance that the Company will be able to develop screening assays for each target selected by its collaborators in a timely and cost-effective manner, or if developed, that such assays will function as anticipated. 28 30 Beta-lactamase Reporter Gene System Reporter genes can be genetically engineered into cells to monitor the activation of a particular signaling pathway that alters the expression (the production of the protein coded by that gene) of the reporter gene. Reporter genes are chosen to code for proteins that can be readily measured under particular experimental conditions. Most reporter genes typically encode enzymes that can act on reporter substrates to give some form of optical signal, such as a colored product, or an enzyme-induced discharge of light. Reporter genes are now used by many pharmaceutical and biotechnology companies to facilitate drug discovery. Over recent years, it has been discovered that many natural ligands (such as hormones, growth factors and neurotransmitters) that act via receptors on the surface membrane of cells can increase, or sometimes decrease, the expression of particular genes. Thus, it is now possible to genetically engineer cell lines in which a wide range of receptor targets are functionally linked to an intracellular reporter gene. Such cells can then be used to screen for agonists and antagonists, compounds that, respectively, activate or inhibit the receptor. The Company utilizes an engineered bacterial enzyme, b-lactamase, as a reporter gene in mammalian cells. The Company believes that its b-lactamase reporter system is an important advance in reporter gene technology that can be used to design drug screens for a number of major classes of drug targets including growth factors, cytokine or G-protein coupled receptors, transcription factors and signal transduction pathways. Functional cell-based assays have a number of advantages over the commonly used binding assays that detect interaction of test compounds with targets isolated from their natural cellular environment. The Company's b-lactamase reporter system allows drug screens to be constructed in the more physiological environment of mammalian cells, does not require the use of radioactivity and can readily distinguish between agonists and antagonists. In addition, the b-lactamase reporter system can facilitate the search for compounds acting on newly discovered target receptors where no natural ligands have been identified, also known as orphan receptors. Certain aspects of the b-lactamase reporter system were exclusively licensed from the Regents of the University of California. The Company's b-lactamase reporter system was originally designed to measure gene expression, including measurement of genes of great interest that may be expressed only at very low levels, in single living cells and in real time. These stringent criteria are critical for both rapid assay development and ultra-high throughput miniaturized drug screens and call for the following features: - a reporter enzyme not naturally present in mammalian cells that can be expressed in those cells with high efficiency, and with well researched biochemical properties; - the substrate that actually reports the enzyme activity should provide extreme sensitivity and precision, coupled with advanced fluorescence properties providing a ratiometric readout; and - the substrate must be non-fluorescent when first added to the cells, be able to freely enter living cells and then be trapped inside a cell with a distinct fluorescence, and expression of the reporter must then change the substrate's fluorescent properties. The Company believes that these features have been demonstrated in its proprietary forms of b-lactamase reporter gene and the proprietary substrate, CCF2-AM. This reporter system signals activation by a green to blue ratio change that can be readily measured in single cells. The Company has now linked the b-lactamase reporter system to cell surface receptors in assays suitable for high throughput screening. The Company's b-lactamase reporter system has the potential to greatly reduce both the time and cost of developing cell-based screens. This feature derives from the ability to measure activation responses in single living cells. Even with modern techniques for making genetically engineered 29 31 cells, cell line development is an unpredictable process. Making cell lines for reporter gene assays with current methods usually takes many months and involves testing hundreds or even thousands of individual cell "clones" to generate a usable screening assay. In contrast, the b-lactamase reporter system employs the power of fluorescence-activated cell sorting, which can rapidly isolate the living cells in which the reporter gene is connected to the right signaling elements. Thus, with the Company's b-lactamase reporter system, incorporation of a target into a cell-based assay can be reduced to weeks instead of months. Promiscuous G-proteins Cell surface receptors are important targets because they transfer information from the surface to the inside of the cell. One major class of cell surface receptors is termed G-protein coupled receptors because G-proteins, attached to the inner face of the cell membrane, transmit the information from these receptors into the cell interior. These receptors are the targets of numerous valuable medicines such as Zantac and Inderal, and many are the targets of current drug discovery programs. It is believed that there are over 1,000 G-protein coupled receptors. Many new members of this class of receptor have been cloned in recent years. However, for many of these receptors, the natural activator and the biological function are not known. These are the so-called orphan receptors, which could prove to be important targets. Normally each receptor must couple to a specific type of G-protein to have a biological effect. In order to engineer a cell-based assay for a G-protein coupled receptor, it is necessary for that receptor to couple via its specific sub-type of G-protein to a signaling pathway that provides a robust signal for screening. For example, activation of many G-protein coupled receptors can be measured with the b-lactamase reporter system. However, for many G-protein coupled receptors, it is not yet known with which G-protein they communicate. Even when this is known, many G-proteins produce signals that are difficult to incorporate into assays in current practice. The Company has an exclusive license from the California Institute of Technology to the use of novel "promiscuous" G-proteins, which are "universal adapters" that couple to a wide range of receptors of this family of targets to a signaling pathway that is well suited to certain of the Company's fluorescent assays. Thus, the Company believes that its proprietary promiscuous G-protein methods can be helpful in developing screens containing G-protein coupled receptors previously difficult to incorporate into mammalian cell-based assays. The promiscuous G-proteins may also be useful in constructing screens for orphan receptors that can be used to search for compounds that activate such receptors as tools to help analyze the function of these newly discovered genes. To date, the Company has limited experience developing G-protein coupled receptor assays based on its proprietary promiscuous G-protein methods. Membrane Voltage Reporters Membrane voltage, a fundamental property of cells, is controlled by membrane proteins. Unregulated membrane voltage can cause serious medical conditions. Thus membrane proteins, particularly ion channels, help regulate membrane voltage and can be targets for drug discovery in major disease areas such as neurology and cardiology. Important medicines acting on ion channels include certain anti-epileptic and anti-arrhythmic medicines. However, screening in this area is typically limited to testing compounds with an electrical measuring apparatus, which requires skilled scientists and has a low throughput of only tens of compounds per day. There has been some success in adapting an existing type of fluorescent probe of membrane voltage for semi-automated screening. The Company believes that this approach is likely to have too slow of a response to report on many relevant ion channel targets, and can be highly susceptible to severe artifacts which limit assay performance. Aurora's proprietary membrane voltage reporters incorporate fluorescence resonance energy transfer and ratiometric readout to permit more reliable detection of changes in membrane voltage. With Aurora's approach, two different fluorescent probes are confined to the surface membrane of the cells in the assay. When the membrane voltage changes due to cell stimulation, the two probes 30 32 move further apart, or closer together, depending on whether the stimulation increases or decreases the voltage. Thus the degree of fluorescence energy transfer between the probes varies and a ratiometric readout may be obtained. These key features and other aspects of the Company's membrane voltage reporters should provide faster responses, which should be less susceptible to the artifacts that can defeat the older methods. The Company believes that assays incorporating its membrane voltage reporters will be adaptable for sub-types of ion channels, several of which are currently the targets of screening programs in pharmaceutical company research departments and in certain specialized biotechnology companies. The Company is currently developing a screen for an ion channel subtype for one of its corporate collaborators. Proprietary Variants of Green Fluorescent Protein Green Fluorescent Protein ("GFP") is a naturally fluorescent protein discovered in light-producing jellyfish. The fluorescence of GFP is an intrinsic property of the protein and, therefore, the protein requires no additional chemicals to make it fluoresce. This feature of GFP allows it to be expressed within genetically engineered mammalian cells and to provide an intracellular reporter with its own intrinsic fluorescence. Using various techniques of protein engineering, Aurora has developed several mutants, or variants, of the naturally occurring type of GFP, which are readily expressed in mammalian cells and provide much brighter fluorescence than that of the naturally occurring GFP protein. The Company has also engineered variants that have significantly different excitation and emission wavelengths and hence they fluoresce with different colors. This provides the basis for GFP-based reporters that use fluorescence resonance energy transfer to give ratiometric signals. At present, the Company utilizes three main proprietary GFP variants: blue, green and yellow. The Company believes that the main application for GFP in drug discovery requires the further engineering of GFP variants to produce reporters of important biologic modifications to proteins, such as protein cleavage by proteases and protein phosphorylation by protein kinases. Accordingly, the Company is developing GFP protease assays and GFP kinase assays as summarized below. Certain aspects of Aurora's technology related to GFP reporters are exclusively licensed from the Regents of the University of California and from the University of Oregon. GFP Protease Reporters. Proteases are enzymes that break proteins into smaller pieces, sometimes to create a functional product and sometimes to degrade the protein. A number of diseases involve proteases, such as infectious diseases and cardiovascular disorders. For example, several HIV medicines target HIV protease. Aurora's proprietary protease reporters are designed to detect protease activity in cell-based or biochemical assays. Aurora's protease substrates change their color of fluorescence when they are cleaved by a protease. Such changes can be detected with current high throughput screening systems. While there are currently several approaches to developing screens for proteases, these are nearly all biochemical. However, because some proteases operate in the interior of the cell, the ability to screen for protease inhibitors in a cell-based assay could be an important advance. To date, in addition to research into this class of reporters, the Company has made prototype biochemical assays for two different proteases. GFP Kinase Reporters. Protein kinases are a family of enzymes that can add phosphate groups to proteins and can thereby modulate the protein's biological function. Aurora's ultra-bright variants of GFP may be engineered to provide fluorescent assays for protein kinase activity. A number of companies have targeted protein kinases to discover therapeutics to treat a wide range of diseases, including cancer and autoimmune disease. These companies typically use kinase screens involving biochemical assays that often require washing steps or radioactivity. These types of assays can be difficult to adapt to high throughput screening and may be less predictive than cell-based assays, because kinases are often regulated by intra-cellular modulators, which are missing in a biochemical assay. Aurora's fluorescent kinase reporters are designed to detect kinase activity in cell-based or biochemical assays. These reporters use novel fluorescent substrates that are designed to measure kinase activity through changes in the fluorescence readout, without washing steps or radioactivity. To date, Aurora has developed a prototype biochemical kinase assay, is researching the incorpora- 31 33 tion of this reporter into cell-based assays and is developing reporters for other types of protein kinases. AURORA'S ULTRA-HIGH THROUGHPUT SCREENING SYSTEM Over the last five years, many of the major pharmaceutical companies and some biotechnology companies have assembled high throughput screening systems that incorporate varying degrees of robotics and automation to facilitate their drug discovery efforts. These current systems, however, are unable to accommodate miniaturized assays that are critical for screening at increasing rates against the large number of new targets identified through genomics and the growing libraries of test compounds being generated by combinatorial chemistry. The Company believes that because most current systems have been developed without an adequately integrated design concept, it can be challenging to improve performance at certain rate-limiting steps without creating almost equally limiting bottlenecks elsewhere in the process. In addition, the Company believes that many of these systems are designed to screen only one class of target or one type of assay. To overcome limitations of present high throughput screening and to exploit the power of its fluorescent assay technologies, Aurora is developing an ultra-high throughput screening system over the next three to four years. Using a fully integrated approach, the Company has combined a wide array of expertise and technologies to develop its UHTS system. The Company is combining key internally developed advances with the technologies accessed through its strategic technology alliances, such as those with Packard and Carl Creative. 32 34 The following diagram summarizes the currently planned features of the UHTS system: MASTER STORE OF COMPOUNDS
NATURAL PRODUCT COMBINATORIAL "HISTORIC" FILE EXTRACTS LIBRARIES COMPOUNDS --------------- ------------- -------------- [ AUTOMATED STORAGE - STORE 1 MILLION COMPOUNDS [ AND RETRIEVAL - ACCESS 100,000 PER DAY [ [ [ MICROFLUIDICS - ASPIRATE AND DISPENSE [ NANOLITER VOLUMES [ UHTS --[ NANOPLATES - 3,456 ASSAY WELLS PER PLATE [ - - 1 MICROLITER VOLUME PER WELL [ [ [ FLUORESCENCE DETECTOR - HIGHLY SENSITIVE [ RATIOMETRIC READOUT [ [ [ SCREENING DATA INFORMATICS - CAPTURE DATA FROM [ SCREENING RESULTS DRUG DISCOVERY DATABASE
33 35 Automated Storage and Retrieval System The UHTS system's automated storage and retrieval system is designed to house over 1,000,000 compounds in solution for immediate access. The robotic systems for storage and retrieval of compounds are being adapted from other industrial settings where automated, rapid access to very large stores of small items have been reliably deployed. Aurora is customizing the system for ultra- high throughput screening. This approach exemplifies the Company's strategy of bringing to the drug discovery process technological advances that have already been deployed successfully in other industrial processes, while adding Aurora's own proprietary innovations to adapt these advanced technologies to the UHTS system. The system is designed to allow ready replenishment of the compound store from libraries in the master store. The robot that operates between the racks of compound storage plates is designed to deliver (and once sampled, return to the store for further use) over 100,000 selected compounds per day for primary screening and over 2,000 hits for re-test and potency determination. This capability should relieve a significant bottleneck in current screening operations which have largely failed to automate these steps. The ability to deliver selected compounds to the screen at ultra-high rates under computer control is a key advance expected to be offered by the Aurora platform. The automated storage and retrieval system is also being designed to facilitate high throughput screening in conventional 96-well plates. The Company's automated storage and retrieval system is expected to be available in 1998. Microfluidics: Compound and Assay Component Dispensing Current technologies for dispensing small volumes of liquid cannot meet the requirements for screening in NanoPlates. The Company, together with Packard, is developing microfluidic technologies to accurately and rapidly transfer microscopic volumes of the compounds into the miniature assay wells of the NanoPlates at rates of up to 10,000 wells per hour. While current screening systems can dispense volumes down to a microliter (one millionth of a liter), Aurora is developing miniaturized screening dispensers capable of accurately dispensing sub-nanoliter volumes (less than one billionth of a liter) required for the UHTS system. These sample dispensing devices are designed to remove small amounts of the compounds from the storage plates and dispense at high speed precise sub-nanoliter volumes into the appropriate wells of the NanoPlates. The Company intends to incorporate these devices into proprietary robotic platforms that are being co-developed with Carl Creative. These platforms are designed to enable the precise location of the various components in a manner superior to available compound dispensing technology. To date, the Company has used prototype nanoliter dispensing devices to perform test assays in prototype NanoPlates. The Company believes that its microfluidic systems suitable for ultra-high throughput screening will be operational in 1999. NanoPlates for Miniaturized Screening Assays Another key component of Aurora's UHTS system is the NanoPlate, which has 3,456 miniaturized wells in which fluorescent assay screens may be performed. The Company, in collaboration with Packard Instrument Company and specialized manufacturers, has developed prototype proprietary NanoPlates. The diagram below compares the new design with a conventional 96-well plate currently used in almost all high throughput screening. A key feature is the small assay volume (approximately 100 times smaller than conventional screening assays), which is critical for reducing cost per test and conserving compounds made by combinatorial methods that produce only very small amounts of each test compound. In addition, the Company is developing technologies to reduce evaporation that might occur in such small assay volumes. The Company is developing its NanoPlates to be compatible with most of Aurora's fluorescent assay technologies. Certain cell-based 34 36 and biochemical assays, based on the Company's fluorescent reporters, have already been shown to work in a prototype NanoPlate. [ASSAY PLATES GRAPHIC]
Conventional Aurora's 96 Well-Plate NanoPlate ------------- --------- Wells per Plate: 96 3,456 Assay Volume: 150uL 1ul
Fluorescence Detector for NanoPlates There are a number of fluorescence plate readers presently available which enable the use of Aurora's proprietary fluorescent assays for high throughput screening in 96-well plates. However, none of these provide the necessary sensitivity and precision to enable ultra-high throughput miniaturized screens. Aurora is collaborating with Packard to develop highly sensitive fluorescence detectors capable of measuring miniaturized fluorescent assays in NanoPlates. The detector is designed to record and process, in real time, data from more than 100,000 assays in 24 hours. Aurora's detector is designed to measure the signals generated from the various fluorescent assays over the range of different wavelengths that the Company's various reporters require and to rapidly acquire ratiometric data. The Company believes that the resulting quality of the fluorescent assays should minimize the number of replicates required compared to traditional screening, thereby increasing throughput and decreasing costs. Currently the Company is finalizing the design of its detector and believes that detectors operational with a NanoPlate can be developed within a two-year time frame. Informatics and System Integration Successful overall integration of the UHTS system will require a strategy for user-friendly computer control. The Company will be required to link the operation of the automated storage and retrieval system to existing chemistry information databases and master compound store inventories in the discovery operations of its syndicate members. The integration of the entire system will need to ensure that the large amount of screening data from the UHTS system is efficiently captured, processed and deposited in a centralized database. The Company plans to integrate advanced software tools and systems from leading providers. While the basic building blocks are being 35 37 acquired from leading suppliers, the supervisory control systems, the subsystem controllers for the instruments, the data analysis tools and overall system architecture and database structure for the UHTS system are being developed by the Company's in-house informatics team. The Company's UHTS system is not expected to be fully integrated and operational for at least three to four years. The Company's UHTS system will require significant additional investment and research and development prior to commencement of full-scale commercial operation, including integration of complex instrumentation and software and testing to validate performance and cost effectiveness, and is subject to substantial risks. Much of the instrumentation and software that will comprise the Company's UHTS system are not now and have not previously been used in commercial applications. Many of these technologies have not been developed or validated at levels necessary to screen miniaturized assays, and there can be no assurance that UHTS technologies will achieve expected performance levels at these scales. The successful implementation and operation of the Company's UHTS system will be a complex process requiring integration and coordination of a number of factors, including integration of and successful interfacing among complex advanced robotics, microfluidics, automated storage and retrieval systems, fluorescence detector technologies and software and information systems. CORPORATE COLLABORATIONS Aurora has entered into corporate collaborations with a number of companies relating to screen development, functional genomics, screening services, access to compound libraries and the co-development with its syndicate members of the Company's UHTS system. The Company's significant collaborations and their major features are summarized below: ---------------------------------------------------------------------------------------- BRISTOL-MYERS SQUIBB Member of UHTS system syndicate Screen development License to fluorescent assay technologies ---------------------------------------------------------------------------------------- ELI LILLY AND COMPANY Member of UHTS system syndicate Screen development License to fluorescent assay technologies ---------------------------------------------------------------------------------------- ROCHE BIOSCIENCE Screen development Specialized instrumentation ---------------------------------------------------------------------------------------- SEQUANA THERAPEUTICS Screen development Functional genomics Screening services ---------------------------------------------------------------------------------------- ALLELIX BIOPHARMACEUTICALS Screen development Screening services ---------------------------------------------------------------------------------------- ARQULE Screening of combinatorial chemistry libraries ---------------------------------------------------------------------------------------- ALANEX CORPORATION Screening of combinatorial chemistry libraries ----------------------------------------------------------------------------------------
Bristol-Myers Squibb. In November 1996, the Company and Bristol-Myers Squibb Pharmaceutical Research Institute entered into a Collaborative Research and License Agreement (the "BMS Agreement") regarding the development of the Company's UHTS system and the installation of a UHTS system at BMS. Under the terms of the BMS Agreement, the Company is required to develop and separately install three components to be integrated into one complete UHTS system. In return, BMS is obligated to make certain payments to the Company in the form of non-refundable up-front fees, installation payments and ongoing research and co-development funding. The Company is obligated to provide service and support for the UHTS system installed at BMS for a limited period of time. 36 38 The Company and BMS will also co-develop high throughput screening assays for use by BMS. In connection with such screen development, BMS is required to pay Aurora certain fees. Certain target screens developed by the Company for BMS will be exclusive for a limited period of time. In exchange for certain payments to Aurora, BMS will also have the right to use the Company's fluorescent assay technologies for internal research and drug development, including the development of screening assays. BMS will also make certain milestone and royalty payments to Aurora if BMS develops and commercializes any compound identified using a screen based on Aurora's fluorescent assay technologies. Under the terms of the BMS Agreement, subject to certain conditions, the UHTS syndicate is restricted to six members for a limited period. BMS may withdraw from the development of the UHTS system at any time without cause, provided that certain withdrawal payments have been made. BMS may also withdraw from the development of the UHTS system for "good cause," as defined in the agreement, without obligation to make further payments relating to development of the UHTS system. Each party also has the right to terminate the agreement upon the material breach by the other party of its obligations under the agreement. The BMS Agreement also provides for penalties payable by the Company if it fails to deliver the completed UHTS system by a specified time. Eli Lilly and Company. In December 1996, the Company and Lilly entered into a Collaborative Research and License Agreement (the "Lilly Agreement") regarding the development of the Company's UHTS system and the installation of a UHTS system at Lilly. Under the terms of the Lilly Agreement, the Company is required to develop and separately install three components to be integrated into one complete UHTS system. In return, Lilly is obligated to make certain payments to the Company in the form of non-refundable up-front fees, delivery payments and ongoing co-development funding. The Company is obligated to provide service and support for the UHTS system installed at Lilly for a limited period. The Company and Lilly will also co-develop high throughput screening assays for use by Lilly. In connection with such development, Lilly is required to pay Aurora certain fees. In exchange for certain payments to Aurora, Lilly will also have the right to use the Company's fluorescent assay technologies for internal research and drug development, including the development of screening assays. Lilly will also make certain milestone and royalty payments to Aurora if Lilly develops and commercializes any compound identified using a screen based on Aurora's fluorescent assay technologies, subject to certain limitations on the royalties payable to Aurora. Under the terms of the Lilly Agreement, subject to certain conditions, the UHTS syndicate is restricted to six members for a limited period of time. Lilly may terminate the agreement at any time without cause upon 45 days written notice to Aurora, provided that certain withdrawal payments are made. Each party has the right to terminate the agreement upon the material breach by the other party of its obligations under the agreement. The Lilly Agreement also provides for penalties payable by the Company if it fails to deliver the completed UHTS system by a specified time. Roche Bioscience. In December 1996, the Company and Roche entered into a Collaborative Research and License Agreement ("Roche Agreement") regarding the development and delivery of a certain screening instrument by Aurora. Roche is obligated to make certain payments to the Company in the form of non-refundable up-front fees and delivery payments. For a limited period of time specified in the agreement, the Company is obligated to provide service and support for any instrument delivered to Roche. The Company and Roche will also co-develop a screening assay for use with a target identified in the Roche Agreement. In connection with such development, Roche is obligated to make certain payments to the Company in the form of non-refundable up-front fees and ongoing research and co-development funding. Aurora is prohibited, for a period of time specified in the agreement, from entering into any third-party collaboration with respect to the specific target set forth in the Roche Agreement. Roche may elect to terminate the agreement at any time without cause upon 30 days written notice to Aurora, provided that certain payments are made. 37 39 Sequana Therapeutics, Inc. In April 1996, the Company and Sequana entered into a Research Agreement (the "Sequana Agreement") regarding the screening of certain targets to be selected by Sequana. Under the terms of the Sequana Agreement, Sequana may require the Company to provide functional analysis, assay development and screening for such targets, and Sequana would then be obligated to make certain payments to the Company in the form of non-refundable up-front fees, delivery payments and ongoing research funding. Sequana will also be obligated to make certain milestone and royalty payments to the Company if any pharmaceutical product is developed and commercialized as a result of work performed by the Company pursuant to the agreement. During the term of the agreement, and subject to certain provisions, Aurora is prohibited from performing services for third parties related to a limited number of targets selected by Sequana and discovered as a result of positional cloning or statistical genetics. Unless terminated earlier in accordance with its provisions, the Sequana Agreement will terminate on June 17, 1999, subject to Sequana's right to extend such term for up to two one-year periods. Each party has the right to terminate the agreement in the event of a material breach of the agreement by the other party by giving the other party notice of its intention to terminate if within 90 days of such notice such party does not cure the breach. In connection with the execution of the Sequana Agreement, Sequana made a $1.5 million equity investment in Aurora. See "Certain Transactions." Allelix Biopharmaceuticals, Inc. In February 1997, the Company and Allelix entered into a Collaboration Agreement (the "Allelix Agreement") regarding the development over a three-year period of screening assays for use with targets identified by Allelix and agreed to by Aurora. Under the terms of the Allelix Agreement, the Company is required to develop such screening assays and to perform screening services, and Allelix is obligated to make certain payments to the Company in the form of up-front fees, development payments and fees for screening services. Allelix is also required to make certain milestone and royalty payments to Aurora in the event of development and commercialization of a compound identified using a screen based on Aurora's fluorescent assay technologies. ArQule, Inc. In September 1996, the Company and ArQule entered into a Material Transfer and Screening Agreement (the "ArQule Agreement") regarding the screening of up to 20,000 small organic compounds ("ArQule Compounds"). Should the Company detect activity in one or more of the ArQule Compounds, the Company and ArQule under certain conditions may enter into negotiations to establish a research collaboration agreement. Unless terminated earlier in accordance with its provisions, the ArQule Agreement is in effect for a period of six months following the effective date of the agreement. Thereafter, the ArQule Agreement will automatically extend for successive additional six-month periods unless the Company or ArQule provides 30 days written notice of termination prior to the expiration of any such period. Neither party delivered such a notice prior to the initial expiration date of March 10, 1997. Alanex Corporation. In November 1996, the Company and Alanex entered into a Material Transfer and Screening Agreement (the "Alanex Agreement") regarding the screening of the Alanex compound library consisting of 150,000 compounds ("Alanex Compounds"). Should the Company detect activity in one or more of the Alanex Compounds during the term of the Alanex Agreement, the Company and Alanex under certain conditions may enter into negotiations to establish a research collaboration agreement. Unless terminated earlier in accordance with its provisions, the Alanex Agreement shall be in effect for a period of six months following the effective date of the agreement. Thereafter, the Alanex Agreement will automatically extend for successive additional six- month periods unless the Company or Alanex provides 30 days written notice prior to the expiration of any such period. To date, all revenue received by the Company has been from its collaborations and technology alliances. The Company expects that substantially all revenue for the foreseeable future will come from collaborators. Furthermore, the Company's ability to achieve profitability will be dependent upon the ability of the Company to enter into additional corporate collaborations. Because 38 40 pharmaceutical and biotechnology companies engaged in drug discovery activities have historically conducted drug discovery and screening activities through their own internal research departments, these companies must be convinced that the Company's UHTS technologies justify entering into collaborative agreements with the Company. There can be no assurance that the Company will be able to negotiate additional collaborative agreements in the future on acceptable terms, if at all, that such current or future collaborative agreements will be successful and provide the Company with expected benefits, or that current or future collaborators will not pursue or develop alternative technologies either on their own or in collaboration with others, including the Company's competitors, as a means for identifying lead compounds or targets. To the extent the Company chooses not to or is unable to enter into such agreements, it will require substantially greater capital to undertake the research, development and marketing of its systems, services and technologies at its own expense. In the absence of such collaborative agreements, the Company may be required to delay or curtail its research and development activities to a significant extent. In addition, the amount and timing of resources that current and future collaborators, if any, devote to collaborations with the Company are not within the control of the Company. There can be no assurance that such collaborators will perform their obligations as expected or that the Company will derive any additional revenue from such agreements. Termination of the Company's existing or future collaboration agreements, or the failure to enter into a sufficient number of additional collaborative agreements on favorable terms, could have a material adverse effect on the Company's business, financial condition and results of operations. UHTS TECHNOLOGY ALLIANCES Aurora has entered into strategic technology alliances to design, develop and implement its UHTS system with leading companies in the areas of instrumentation, storage and retrieval systems and microfluidics, including the alliances with Packard, Carl Creative and Universal Technologies, Inc. ("UTI") summarized below. Packard Instrument Company. In April 1996, the Company entered into a Collaboration and License Agreement with Packard (the "Packard Agreement") regarding the joint development of microfluidic components, NanoPlates and fluorescence detectors for use, among other things, in the Company's UHTS system. Under the terms of the Packard Agreement, Packard is required to develop and deliver such components, and Aurora is obligated to make certain payments to Packard in the form of non-refundable up-front fees and delivery payments. Aurora was granted, for a period of two to three years from Aurora's acceptance of an operational component, an exclusive right to use, market, lease and sell, for use in certain applications defined in the agreement, the components developed under the agreement. Packard was granted a worldwide, exclusive sublicense under the Company's license with the University of California Regents to make, have made and sell certain fluorescent reagents covered by such license to non-profit organizations for their internal, non-commercial research. In connection with the execution of the Packard Agreement, Packard made a $1.0 million equity investment in Aurora. Packard is also providing the Company with research funding for the development of certain instrumentation. The Packard Agreement, unless terminated earlier in accordance with its terms, has an initial term of ten years. If either party fails to satisfy certain milestones applicable to it under the agreement, and the parties fail to reach a mutually satisfactory resolution within 90 days after such failure, the other party shall have the right to terminate the agreement, unless the party who failed to satisfy such milestone used reasonable good faith efforts to accomplish such milestone, in which case the other party shall only have the right to modify the agreement as specified therein. Each party has the right to terminate the agreement, upon 90 days written notice, for a material breach by the other party of its obligations under the agreement which is not cured within such 90-day period. Carl Creative Systems, Inc. In November 1996, the Company entered into a Development Agreement with Carl Creative (the "CCS Agreement") regarding the development and sale of, 39 41 among other things, liquid handling components and robotics for use with the Company's UHTS system. Under the terms of the CCS Agreement, Carl Creative is required to develop and deliver such components, and the Company is obligated to make certain development payments to Carl Creative in accordance with the payment schedule set forth in the CCS Agreement. A portion of such development payments will be credited towards any purchases by Aurora of components or services from Carl Creative. During the term of the CCS Agreement, provided certain price and supply criteria are satisfied, the Company is obligated to utilize Carl Creative as the primary manufacturer of certain components. The Company was granted, for a period of time specified in the agreement, an exclusive right to such components. The CCS Agreement, unless terminated earlier in accordance with its terms, has an initial term of two years, which shall automatically renew for successive six-month periods unless either party provides at least 30 days written notice of its intent to terminate at the end of the then-current term. Each party has the right to terminate the agreement if the other party breaches or defaults in the performance of any of its material obligation under the agreement, and such breach or default continues for 60 days after written notice thereof. Universal Technology, Inc. In December 1996, the Company entered into a Development Agreement with UTI (the "UTI Agreement") regarding the development and sale of storage and retrieval systems for use with the Company's UHTS system. Under the terms of the UTI Agreement, UTI is required to develop and deliver a storage and retrieval system for use with the Company's UHTS system, and Aurora is obligated to make certain payments to UTI. Aurora was granted, for a period of time specified in the agreement, an exclusive right to make, use, and sell certain UTI technology, including the storage and retrieval system developed under the agreement. The UTI Agreement, unless terminated earlier in accordance with its terms, has an initial term of two years, which shall automatically renew for successive six-month periods unless either party provides at least 30 days written notice of its intent to terminate at the end of the then-current term. Each party has the right to terminate the agreement if the other party breaches or defaults in the performance of any material obligation under the agreement, and such breach or default continues for 60 days after written notice thereof. The Company relies on these companies, many of which are single-source vendors, for the development, manufacture and supply of certain components of the Company's UHTS system. Although the Company believes these technology alliances should provide the Company with a competitive advantage, the Company's competitive advantage could be substantially weakened or displaced by other technologies that supplant those made available to the Company through its alliances. To the extent possible and commercially reasonable, the Company has, and will continue to seek, alternative sources for various components of its UHTS system, and may also develop various components of its UHTS system utilizing its internal engineering capabilities. Although the Company believes that alternative sources for UHTS system components could be made available, any interruption in the development, manufacture or supply of a sole-sourced component could have a material adverse effect on the Company's ability to develop its UHTS system until a new source of supply is qualified, could subject the Company to penalties for delays in delivery of the UHTS system and, as a result, could have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance the Company will be able to enter into additional technology alliances on commercially reasonable terms, if at all, or that the Company's current or future allies or suppliers will meet the Company's requirements for quality, quantity or timeliness. PATENTS AND PROPRIETARY RIGHTS The Company's patent portfolio includes 29 patent applications filed in the United States and foreign patent jurisdictions. Two of the United States applications relating to the Company's fluorescent assay technology have recently been allowed. The Company is either the assignee or exclusive licensee of these patent applications. Certain aspects of the Company's technology related to GFP reporters, b-lactamase based reporters, protease reporters, kinase reporters, and membrane 40 42 voltage reporters are exclusively licensed from The Regents of the University of California. Certain aspects of the Company's technology related to GFP reporters are exclusively licensed from the University of Oregon. Certain aspects of the Company's technology related to G-protein coupled receptor reporters are exclusively licensed from the California Institute of Technology. Additionally, the Company has obtained a non-exclusive license from SIBIA Neurosciences, Inc., with limited rights to sublicense, under patent rights covering certain transcription-based assay technology (which relates to certain uses of reporter genes) for screening. The Company is dependent on the rights licensed from such institutions. Any challenge to, invalidation or loss of such rights could have a material adverse effect on the business, financial condition and results of operation of the Company. The Company's success will depend in part on its ability to obtain patent protection for its systems, services and technologies, and to operate without infringing the proprietary rights of third parties. The Company has had no patents issued to date. The Company is dependent, in part, on the patent rights licensed from third parties with respect to its fluorescent assay technologies. There can be no assurance that patent applications filed by the Company or its licensors will result in patents being issued, that the claims of such patents will offer significant protection of the Company's technology, or that any patents issued to, or licensed by, the Company will not be challenged, narrowed, invalidated, or circumvented. The Company may also be subject to legal proceedings that result in the revocation of patent rights previously owned by or licensed to the Company, as a result of which the Company may be required to obtain licenses from others to continue to develop, test or commercialize its systems, services or technologies. There can be no assurance that the Company will be able to obtain such licenses on acceptable terms, if at all. The drug discovery industry, including screening technology companies, has a history of patent litigation and will likely continue to have patent litigation suits concerning drug discovery technologies. The patent positions of pharmaceutical, biotechnology and drug discovery companies, including the Company, are generally uncertain and involve complex legal and factual questions. A number of patents have issued and may issue on certain targets or their use in screening assays that could prevent the Company and its collaborators from developing screens using such targets, or relate to certain other aspects of technology utilized or expected to be utilized by the Company. The Company has received invitations from third parties to license patents owned or controlled by third parties. The Company evaluates these requests and intends to obtain licenses that are compatible with its business objectives. The Company's inability to obtain or maintain patent protection or necessary licenses could have a material adverse effect on the business, financial condition and results of operations of the Company. The Company is aware of a third party Patent Cooperation Treaty application that claims certain uses of green fluorescent protein including its use in protein kinase assays. If a patent were to issue from such application that relates to the Company's GFP kinase reporters, the Company believes that such patent would be unlikely to require the Company to obtain a license. However, the Company may need to obtain such a license and there can be no assurance that any such license would be available on commercially reasonable terms, if at all. The Company is also aware of third party patents and published patent applications that contain issued or issuable claims that may cover certain aspects of the Company's or its collaborators' technologies, including certain types of fluorescent assay methods, certain assays for ligands to certain classes of targets such as certain cell surface and intracellular receptors, and certain transcription based assays for chemicals that modulate transcription of a gene encoding a protein related to disease. There can be no assurance that the Company would not be required to take a license under any such patents to practice certain aspects of its fluorescent assay technologies or that such license would be available on commercially reasonable terms, if at all. Any action against the Company or its collaborators claiming damages and seeking to enjoin commercial activities relating to the affected technologies could, in addition to 41 43 subjecting the Company to potential liability for damages, require the Company or its collaborators to obtain a license in order to continue to develop, manufacture or market the affected technologies. The Company could incur substantial costs in defending patent infringement claims, obtaining patent licenses, engaging in interference and opposition proceedings or other challenges to its patent rights or intellectual property rights made by third parties, or in bringing such proceedings or enforcing any patent rights against third parties. In addition to patent protection, Aurora also relies on copyright protection, trade secrets, know-how, continuing technological innovation and licensing opportunities. In an effort to maintain the confidentiality and ownership of trade secrets and proprietary information, the Company requires employees, consultants and certain collaborators to execute confidentiality and invention assignment agreements upon commencement of a relationship with the Company. There can be no assurance, however, that these agreements will provide meaningful protection for the Company's trade secrets or other confidential information in the event of unauthorized use or disclosure of such information or that adequate remedies would exist in the event of such unauthorized use or disclosure. The loss or exposure of trade secrets possessed by the Company could adversely affect its business. Like many high technology companies, the Company may from time to time hire scientific personnel formerly employed by other companies involved in one or more areas similar to the activities conducted by the Company. Although the Company requires its employees to maintain the confidentiality of all confidential information of previous employers, there can be no assurance that the Company or these individuals will not be subject to allegations of trade secret misappropriation or other similar claims as a result of their prior affiliations. COMPETITION Competition among pharmaceutical and biotechnology companies which attempt to identify compounds for development is intense. Because the Company's UHTS system is being designed to integrate a number of different technologies, the Company competes in many areas, including assay development, high throughput screening and functional genomics. In the pharmaceutical industry, the Company competes with the research departments of pharmaceutical and biotechnology companies and other commercial enterprises, as well as numerous academic and research institutions. Pharmaceutical and biotechnology companies, academic institutions, governmental agencies and other research organizations are conducting research in various areas which constitute portions of the Company's technology platform, either on their own or in collaboration with others. There can be no assurance that pharmaceutical and biotechnology companies which currently compete with the Company in specific areas will not merge or enter into joint ventures or other alliances with one or more other such companies and become substantial multi-point competitors or that the Company's collaborators will not assemble their own ultra-high throughput screening systems by purchasing components from competitors. Genomics and combinatorial chemistry companies may also expand their business to include compound screening or screen development, either alone or pursuant to alliances with others. The Company anticipates that it will face increased competition in the future as new companies enter the market and advanced technologies, including more sophisticated information technologies, become available. The Company's technological approaches, in particular its UHTS system, may be rendered obsolete or uneconomical by advances in existing technological approaches or the development of different approaches by one or more of the Company's current or future competitors. Many of these competitors have greater financial and personnel resources, and more experience in research and development, than the Company. Historically, pharmaceutical and biotechnology companies have maintained close control over their research activities, including the synthesis, screening and optimization of chemical compounds. Many of these companies, which represent the greatest potential market for the Company's systems, services and technologies, have developed or are developing internal programs and other methodologies to improve productivity, including major investments in robotics technology to permit the automated screening of compounds. 42 44 GOVERNMENT REGULATION Regulation by the U.S. Food and Drug Administration ("FDA") and other governmental entities in the United States and other countries will be a significant factor in the production and marketing of any pharmaceutical products that may be developed by a collaborator. It is not currently anticipated that the Company will develop its own drugs through clinical trials and marketing. However, pharmaceutical products, if any, developed by the Company's collaborators will require lengthy and costly pre-clinical and clinical trials and regulatory approval by governmental agencies prior to commercialization. The process of obtaining these approvals and the subsequent compliance with appropriate federal, state and foreign statutes and regulations are time consuming and require the expenditure of substantial resources. Delays in obtaining regulatory approvals would adversely affect the marketing of any drugs developed by the Company's collaborators, diminish any competitive advantages that the Company's collaborators may attain and therefore adversely affect the Company's ability to receive royalties or milestone payments. If the product is classified as a new drug, a New Drug Application will be required to be filed with, and product approval must be obtained from, the FDA before commercial marketing of the drug. These testing and approval processes require substantial time and effort and there can be no assurance that any approval will be granted on a timely basis, if at all. The Company is subject to federal, state and local laws and regulations governing the use, manufacture, storage, handling and disposal of certain materials and waste products used and produced by the Company. The risk of accidental contamination or injury from these materials cannot be eliminated and in the event of such an accident, the Company could be held liable for any damages that result and any liability could exceed the resources of the Company and, in addition, there can be no assurance that the Company will not be required to incur significant costs to comply with environmental laws and regulations in the future. EMPLOYEES As of February 28, 1997, the Company had a total of 50 employees, 18 of whom hold M.D. or Ph.D. degrees and 10 of whom hold other advanced degrees. Of these, 36 were engaged in research, screen development, screening services and UHTS system development. The remainder were engaged in legal, business development, general administration and finance. The Company's future success depends in significant part upon the continued service of its key scientific, technical and senior management personnel and its continuing ability to attract and retain highly qualified technical and managerial personnel. None of the Company's employees is represented by a labor union or covered by a collective bargaining agreement. The Company has not experienced any work stoppages and considers its relations with its employees to be good. FACILITIES The company's facilities are located in La Jolla, California. The Company leases approximately 22,245 square feet of space used for laboratory and administrative purposes. These facilities are leased through October 15, 1999. The Company is currently negotiating the terms of an 11-year lease for approximately 54,000 square feet of laboratory and office space and plans to relocate its operations in the fourth quarter of 1997. The Company believes that, upon such relocation, the Company's facilities will be adequate for its current and projected needs and that additional space at a nearby location will be available as needed. LEGAL PROCEEDINGS Aurora is not a party to any legal proceedings. SCIENTIFIC ADVISORS The Company's scientific advisors, who have demonstrated expertise in various fields, advise the Company from time to time concerning long-term scientific planning, research and development. The scientific advisors also evaluate the Company's research programs, recommend personnel to the 43 45 Company, and advise the Company on specific scientific and technical issues. The scientific advisors are compensated by retainer and on a time and expenses basis and have received shares of Common Stock of the Company. The Company has entered into consulting agreements with a number of the scientific advisors. None of the scientific advisors is employed by the Company, and they may have other commitments to or consulting or advisory contracts with their employers or other entities that may conflict or compete with their obligations to the Company. Accordingly, such persons are expected to devote only a small portion of their time to the Company. The Company's scientific advisors are: Roger Y. Tsien, Ph.D. -- Investigator, Howard Hughes Medical Institute; Professor, Department of Pharmacology, School of Medicine, University of California, San Diego; Professor, Department of Chemistry and Biochemistry, University of California, San Diego Charles S. Zuker, Ph.D. -- Investigator, Howard Hughes Medical Institute; Professor, Departments of Biology and Neurosciences, School of Medicine, University of California, San Diego Lubert Stryer, M.D. -- Winzer Professor in the School of Medicine and Professor of Neurobiology, Stanford University Michael Geoffrey Rosenfeld, M.D. -- Investigator, Howard Hughes Medical Institute; Professor of Medicine, University of California, San Diego Burton G. Christensen, Ph.D. -- former Senior Vice President for Chemistry, Merck Sharp & Dohme Tom Curran, Ph.D. -- Chairman, Department of Developmental Neurobiology, St. Jude's Hospital Medical Center, Memphis; formerly Associate Director, Roche Institute of Molecular Biology Melvin I. Simon, Ph.D. -- Professor of Biological Sciences and Chairman of the Biology Division, California Institute of Technology 44 46 MANAGEMENT DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES The following table sets forth certain information regarding the Company's directors, executive officers and key employees as of February 28, 1997:
NAME AGE POSITION - ------------------------------------------ --- ------------------------------------------ Timothy J. Rink, M.D., Sc.D............... 50 Chairman of the Board, President and Chief Executive Officer J. Gordon Foulkes, Ph.D................... 43 Chief Technical Officer, Director Paul A. Grayson........................... 32 Vice President, Corporate Development Harry G. Stylli, Ph.D..................... 35 Vice President, Screen Technology Frank F. Craig, Ph.D...................... 35 Senior Director, Screen Development Deborah J. Tower.......................... 35 Senior Director, Finance and Administration, Secretary and Treasurer John D. Mendlein, Ph.D.................... 37 Senior Legal Counsel and Director, Intellectual Property James C. Blair, Ph.D. (1)................. 57 Director Kevin J. Kinsella (1)..................... 51 Director, Co-founder Hugh Y. Rienhoff, Jr., M.D.(1)(2)......... 44 Director Lubert Stryer, M.D........................ 59 Director Timothy J. Wollaeger (2).................. 53 Director
- --------------- (1) Member of the Compensation Committee (2) Member of the Audit Committee All directors hold office until the next annual meeting of stockholders of the Company and until their successors have been elected and qualified. Directors do not receive any fees for services on the Board. Board members are reimbursed for their expenses for each meeting attended. Officers serve at the discretion of the Board of Directors. There are no family relationships between any directors or executive officers of the Company. Timothy J. Rink has served as Chairman of the Board, President and Chief Executive Officer of the Company since January 1996. From 1990 through 1995, Dr. Rink served as President and Chief Technical Officer of Amylin Pharmaceuticals, Inc., a publicly held biopharmaceutical company. Dr. Rink was Vice President, Research at SmithKline Beecham in the U.K. from 1984 to 1989, and previously was Lecturer in Physiology at the University of Cambridge. Dr. Rink currently serves on the Scientific Advisory Board of Amylin, and he is a director of CoCensys, Inc. and NPS Pharmaceuticals, Inc., all publicly held biopharmaceutical companies. Dr. Rink received his M.A., M.D. and Sc.D. in Medical Sciences from the University of Cambridge, England. J. Gordon Foulkes has been Chief Technical Officer and a director of the Company since December 1996. From 1987 to 1996, Dr. Foulkes served in several capacities at Oncogene Science, Inc., where he was a director and most recently held the position of Chief Scientific Officer. Prior to joining Oncogene Science, Dr. Foulkes led a research group at National Institute for Medical Research in the U.K., and was previously a post-doctoral fellow in Dr. David Baltimore's laboratory at the Massachusetts Institute of Technology. Dr. Foulkes obtained his B.Sc. in Biochemistry at the University College, Cardiff, U.K. and his Ph.D. in Biochemistry at the University of Dundee, Scotland. Paul A. Grayson joined the Company in April 1996 and currently serves as Vice President, Corporate Development. From 1994 to 1996, Mr. Grayson served as Director of Business Development for Advanced Tissue Sciences, Inc. From 1987 to 1994, Mr. Grayson held various research, marketing and business development positions at Allergan Pharmaceuticals and Gensia Inc. Mr. 45 47 Grayson received his B.S. in Biochemistry and Computer Science from the University of California, Los Angeles, and his M.B.A. from the University of California, Irvine. Harry G. Stylli joined the Company in November 1995 and currently serves as Vice President, Screen Technology. From 1987 to 1995, Dr. Stylli held several positions at Glaxo Wellcome plc, where he was integrally involved in the International Screening and Technology Program. Dr. Stylli obtained a Ph.D. in Pharmaceutical Chemistry from Kings College London University, an M.B.A. from Open University, Milton Keynes, U.K. and a B.Sc. in Biochemical Pharmacology, with honors, from the University of East London. Frank F. Craig joined the Company in November 1995 and currently serves as Senior Director, Screen Development since November 1995. From 1993 to 1995, Dr. Craig worked in the Lead Discovery Division of Glaxo Wellcome plc. From 1989 to 1992 he worked in the Life Sciences Division of Amersham International plc. Dr. Craig received B.Sc. and Ph.D. degrees in Microbiology from the University of Glasgow, U.K., and a Diploma in Business Studies and Political Economy from the University of Westminster, U.K. Deborah J. Tower joined the Company in May 1996 and currently serves as Senior Director, Finance and Administration, Secretary and Treasurer. From 1994 to 1996, Ms. Tower served as Director of Finance and Accounting of Sequana Therapeutics, Inc. From 1989 to 1993, she served as Controller of Vical Inc. Ms. Tower received a B.S. in Accounting, with honors, from San Diego State University and is a Certified Public Accountant. John D. Mendlein has been Senior Legal Counsel and Director, Intellectual Property since August 1996. From 1990 to 1996, Dr. Mendlein worked at Cooley Godward LLP, Palo Alto, California, where he specialized in intellectual property law. Dr. Mendlein received his Ph.D. in Physiology from the University of California, Los Angeles, his J.D. from the University of California, Hastings College of Law and his B.S. in Biology from the University of Miami, Florida. James C. Blair has been a director of the Company since March 1996. Dr. Blair has been a general partner of Domain Associates, a venture capital investment firm, since 1985. Domain Associates manages Domain Partners III, L.P. and DP III Associates, L.P. and is the U.S. venture capital advisor to Biotechnology Investments Limited. From 1969 to 1985, Dr. Blair was an officer of three investment banking and venture capital firms. Dr. Blair is a director of Amylin Pharmaceuticals, Inc., CoCensys, Inc., Dura Pharmaceuticals, Inc., Gensia, Inc., Houghten Pharmaceuticals, Inc. and Vista Medical Technologies, Inc. Dr. Blair received a B.S.E. from Princeton University and M.S.E. and Ph.D. degrees in Electrical Engineering from the University of Pennsylvania. Kevin J. Kinsella, a co-founder of the Company, has been a director of the Company since its inception in May 1995. Mr. Kinsella was the founder of Sequana Therapeutics, Inc. in February 1993, where he currently serves as President, Chief Executive Officer and a director. He was the Managing General Partner of Avalon Ventures, a venture capital firm. Avalon Ventures has financed over thirty companies, many of which are in the biopharmaceutical field, including Pharmacopeia, Inc., Athena Neurosciences Inc., ONYX Pharmaceuticals and Vertex Pharmaceuticals Inc. He is also a director of ONYX Pharmaceuticals. He received a B.S. from the Massachusetts Institute of Technology and an M.A. from the Johns Hopkins School of Advanced International Studies. Hugh Y. Rienhoff, Jr. has been a director of the Company since March 1996. Dr. Rienhoff is a director of Abingworth Management Limited, a venture capital investment firm. From 1992 to 1997, Dr. Rienhoff held various positions at New Enterprise Associates Development Corporation, where he most recently served as Partner. He is a director of Healtheon, Hexagen plc., Microcide Pharmaceuticals, Inc., VacTex and Sensors for Medicine and Science. Dr. Rienhoff received an M.D. degree from The John Hopkins University and a B.A. degree in English Literature and Biology, with honors, from Williams College. Lubert Stryer has been a director of the Company since March 1996, and currently serves as a scientific advisor of the Company. He is a Winzer Professor in the School of Medicine and Professor 46 48 of Neurobiology at Stanford University. He is a director of Affymetrix, Inc. From 1989 to 1990, Dr. Stryer served as President and Director of Affymax Research Institute. He is co-inventor of Affymetrix's light-directed synthesis technology. Dr. Stryer has pioneered the development of novel fluorescence detection techniques and holds ten patents involving fluorescence and light-activated chemical syntheses. Dr. Stryer is the author of Biochemistry, a major text used widely in colleges and universities around the world. Dr. Stryer received the American Chemical Society Award in Biological Chemistry (the Eli Lilly Award) and is a member of the National Academy of Sciences and received an honorary Doctor of Science from The University of Chicago. Dr. Stryer received his M.D. degree from Harvard University and his B.S. degree from the University of Chicago. Timothy J. Wollaeger has been a director of the Company since March 1996. He has been the general partner of Kingsbury Associates and the general partner of Kingsbury Capital Partners, L.P. and Kingsbury Capital Partners, L.P. II venture capital investment partnerships since 1993. From 1990 to 1993, Mr. Wollaeger served as Senior Vice President and was a director of Columbia Hospital Corporation, a hospital management company now known as Columbia/HCA Healthcare Corporation. From 1986 until 1993, he was a general partner of the general partner of Biovest Associates, a venture capital investment firm. He is Chairman and a director of Amylin Pharmaceuticals, Inc., Chairman and a director of Biosite Diagnostics, Inc. and a director of Phamis, Inc. He received an M.B.A. from Stanford University and a B.A. in Economics from Yale University. The Company and certain of its stockholders are party to a Voting Agreement dated March 8, 1996 (the "Voting Agreement"). Pursuant to the terms of the Voting Agreement, subject to certain conditions, each of Avalon Bioventures II, L.P. ("Avalon"), Kingsbury Capital Partners, L.P. II ("Kingsbury"), Abingworth Bioventures SICAV ("Abingworth"), New Enterprise Associates VI, L.P. ("NEA") and Domain Partners III, L.P. ("Domain III") are entitled to designate a nominee for election as one of the directors of the Company (collectively, the "Venture Nominees"). Each party to the Voting Agreement has agreed to vote, at each meeting (or action by written consent in lieu thereof) of stockholders of the Company at or by which directors were to be elected, all or their respective shares of the Company's capital stock to elect, as directors of the Company, (i) the Venture Nominees, (ii) the Chief Executive Officer of the Company and (iii) an individual designated jointly by Roger Y. Tsien and Charles S. Zuker. Venture Nominees currently serving on the Board of Directors include Kevin J. Kinsella, nominee of Avalon, Timothy J. Wollaeger, nominee of Kingsbury, Hugh Y. Rienhoff, Jr., nominee of Abingworth, and James C. Blair, nominee of Domain III. Lubert Stryer currently serves as the nominee of Roger Y. Tsien and Charles S. Zuker. Timothy J. Rink, as Chief Executive Officer of the Company, was elected as a director pursuant to the Voting Agreement. In accordance with its terms, the Voting Agreement will terminate upon the conversion of the outstanding shares of Preferred Stock into Common Stock upon the completion of the Offering. COMMITTEES OF THE BOARD OF DIRECTORS The Compensation Committee consists of Dr. Blair, Mr. Kinsella and Dr. Rienhoff. The Compensation Committee makes recommendations regarding the Company's 1996 Stock Plan, Non-Employee Directors' Stock Option Plan and Employee Stock Purchase Plan and makes decisions concerning salaries and incentive compensation for employees and consultants of the Company. The Audit Committee consists of Dr. Rienhoff and Mr. Wollaeger. The Audit Committee makes recommendations to the Board of Directors regarding the selection of independent auditors, reviews the results and scope of the audit and other services provided by the Company's independent auditors and reviews and evaluates the Company's audit and control functions. DIRECTOR COMPENSATION The Company's directors do not currently receive any cash compensation for services on the Board of Directors or any committee thereof, but directors may be reimbursed for certain expenses 47 49 in connection with attendance at Board and committee meetings. All directors are eligible to participate in the Company's 1996 Stock Plan. Non-employee directors receive automatic grants of options under the Company's Non-Employee Directors' Stock Option Plan as described below. See "-- Equity Incentive Plan" and "-- Non-Employee Directors' Stock Option Plan." COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION No executive officer of the Company serves as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of the Company's Board of Directors or Compensation Committee. See "Certain Transactions" for a description of transactions between the Company and entities affiliated with members of the Compensation Committee. EXECUTIVE COMPENSATION The following table sets forth summary information concerning compensation paid by, or accrued for services rendered to, the Company during the fiscal year ended December 31, 1996 to the Company's Chief Executive Officer. No other executive officer of the Company earned in excess of $100,000 in salary and bonus during the fiscal year ended December 31, 1996. SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION(1) ------------------- ALL OTHER NAME AND PRINCIPAL POSITION SALARY BONUS COMPENSATION(2) - ------------------------------------------------------- -------- ------- --------------- Timothy J. Rink, M.D., Sc.D. President, Chief Executive Officer and Chairman of the Board............................................ $229,649 $50,000 $27,188
- --------------- (1) In accordance with the rules of the Securities and Exchange Commission (the "Commission"), the compensation described in this table does not include medical, group life insurance or other benefits received by the Chief Executive Officer which are available generally to all salaried employees of the Company and certain perquisites and other personal benefits received by the Chief Executive Officer which do not exceed the lesser of $50,000 or 10% of any such officer's salary and bonus disclosed in this table. There were no long-term compensation awards granted to the Chief Executive Officer during the year ended December 31, 1996. As of December 31, 1996, the Chief Executive Officer held 222,000 shares of restricted common stock having an aggregate value of $83,250. (2) Represents fees paid for consulting services rendered prior to employment with the Company from January to March 1996. EMPLOYMENT AGREEMENTS AND SEVERANCE ARRANGEMENTS The Company has entered into employment agreements with Drs. Rink and Foulkes dated as of January 23, 1996 (as amended on March 8, 1996) and August 6, 1996, respectively. Dr. Rink's employment agreement provides for the payment of an annual base salary of $250,000. In the event that Dr. Rink's employment is terminated, other than "for cause" (as defined in his employment agreement), prior to March 1, 1999, Dr. Rink will be entitled to severance payments equal to six times his then-current monthly base salary. Dr. Foulkes' employment agreement provides for the payment of an annual base salary of $250,000. In the event that Dr. Foulkes' employment is terminated, other than "for cause" (as defined in his employment agreement), prior to the second anniversary of his commencement of employment with the Company, Dr. Foulkes will be entitled to severance payments equal to 12 times his then-current monthly base salary, plus $100,000. In the event that Dr. Foulkes' employment is terminated, other than "for cause," after the second anniversary of his commencement of employment with the Company, but prior to the third anniversary of such commencement, Dr. Foulkes will be entitled to severance payments equal to nine times his then-current monthly base salary. Pursuant to his employment agreement, Dr. Foulkes 48 50 was reimbursed for relocation expenses aggregating approximately $19,000. He was also paid a mortgage allowance of $7,500, and was loaned, on an interest-free basis, $150,000 for use in connection with the purchase of a home in San Diego, California. Such loan is payable on the earlier of one year following termination of employment or four years following the loan date. So long as Dr. Foulkes is then employed with the Company, he will receive a bonus in the amount of $150,000 from the Company upon such four-year anniversary. See "Certain Transactions." EQUITY INCENTIVE PLAN The Company adopted its 1996 Stock Plan in January 1996 and amended and restated the 1996 Stock Plan in February 1997 (as amended and restated, the "Stock Plan"). An aggregate of 2,000,000 shares of the Company's Common Stock have been reserved for issuance pursuant to the exercise of stock awards granted to employees, directors and consultants under the Stock Plan. The Stock Plan will terminate in January 2006, unless sooner terminated by the Board. The Stock Plan permits the granting of options intended to qualify as incentive stock options ("Incentive Stock Options") within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), to employees (including officers and employee directors), and options that do not so qualify ("Nonstatutory Stock Options," and, together with Incentive Stock Options, the "Options") to employees (including officers and employee directors), directors and consultants (including non-employee directors). In addition, the Stock Plan permits the granting of stock appreciation rights ("SARs") appurtenant to or independently of Options, as well as stock bonuses and rights to purchase restricted stock (Options, SARs, stock bonuses and rights to purchase restricted stock are hereinafter referred to as "Stock Awards"). No person is eligible to be granted Options and SARs covering more than 200,000 shares of the Company's Common Stock in any 12-month period. The Stock Plan is administered by the Board or a committee appointed by the Board. Subject to the limitations set forth in the Stock Plan, the Board has the authority to select the persons to whom grants are to be made, to designate the number of shares to be covered by each Stock Award, to determine whether an Option is to be an Incentive Stock Option or a Nonstatutory Stock Option, to establish vesting schedules, to specify the Option exercise price and the type of consideration to be paid to the Company upon exercise and, subject to certain restrictions, to specify other terms of Stock Awards. In addition, the Board has delegated to Timothy J. Rink the authority to grant Stock Awards to certain non-executive officer employees of the Company. The maximum term of Options granted under the Stock Plan is ten years. The aggregate fair market value, determined at the time of grant, of the shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by an optionee during any calendar year (under all such plans of the Company and its affiliates) may not exceed $100,000. Options granted under the Stock Plan generally are non-transferable and expire three months after the termination of an optionee's service to the Company. In general, if an optionee is permanently disabled or dies during his or her service to the Company, such person's Options may be exercised up to 12 months following such disability and up to 18 months following such death. The exercise price of Options granted under the Stock Plan is determined by the Board of Directors in accordance with the guidelines set forth in the Stock Plan. The exercise price of an Incentive Stock Option cannot be less than 100% of the fair market value of the Common Stock on the date of the grant. The exercise price of a Nonstatutory Stock Option cannot be less than 85% of the fair market value of the Common Stock on the date of grant. Options granted under the Stock Plan vest at the rate specified in the option agreement. The exercise price of Incentive Stock Options granted to any person who at the time of grant owns stock representing more than 10% of the total combined voting power of all classes of the Company's capital stock must be at least 110% of the fair market value of such stock on the date of grant and the term of such Incentive Stock Options cannot exceed five years. 49 51 Any stock bonuses or restricted stock purchase awards granted under the Stock Plan shall be in such form and will contain such terms and conditions as the Board deems appropriate. The purchase price under any restricted stock purchase agreement will not be less than 85% of the fair market value of the Company's Common Stock on the date of grant. Stock bonuses and restricted stock purchase agreements awarded under the Stock Plan are generally non-transferable. Pursuant to the Stock Plan, shares subject to Stock Awards that have expired or otherwise terminated without having been exercised in full again become available for grant, but shares subject to exercised stock appreciation rights will not again become available for grant. The Board of Directors has the authority to reprice outstanding Options and SARs and to offer optionees and holders of SARs the opportunity to replace outstanding options and SARs with new options or SARs for the same or a different number of shares. Upon certain changes in control of the Company, all outstanding Stock Awards under the Stock Plan must either be assumed or substituted by the surviving entity. In the event the surviving entity determines not to assume or substitute such Stock Awards, with respect to persons then performing services as employees, directors or consultants, the time during which such Stock Awards may be exercised will be accelerated and such Stock Awards will be terminated if not exercised prior to such change in control. As of February 28, 1997, the Company had issued 429,832 shares of Common Stock pursuant to the exercise of purchase rights granted under the Stock Plan, and had granted Incentive Stock Options to purchase an aggregate of 372,920 shares of Common Stock. As of February 28, 1997, 1,197,248 shares of Common Stock remained available for future grants under the Stock Plan. NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN In February 1997, the Company adopted its Non-Employee Directors' Stock Option Plan (the "Directors' Plan") to provide for the automatic grant of options to purchase shares of Common Stock to non-employee directors of the Company. The Directors' Plan is administered by the Board, unless the Board delegates administration to a committee of at least two disinterested directors. The maximum number of shares of Common Stock that may be issued pursuant to options granted under the Directors' Plan is 240,000. Pursuant to the terms of the Directors' Plan: (i) each person who upon the effective date of the Directors' Plan was a Non-Employee Director automatically was granted a one-time option to purchase 16,000 shares of Common Stock; (ii) each person who, after the effective date of this offering, for the first time becomes a Non-Employee Director automatically will be granted, upon the date of his or her initial appointment or election to be a Non-Employee Director, a one-time option to purchase 16,000 shares of Common Stock; and (iii) on the date of each annual meeting of the stockholders of the Company after the effective date of this offering (other than any such annual meeting held in 1997), each person who is elected at such annual meeting to serve as a Non-Employee Director (other than a person who receives a grant in accordance with (ii) above on or during the three-month period preceding such date) automatically will be granted an option to purchase 4,000 shares of Common Stock. No options granted under the Directors' Plan may be exercised after the expiration of ten years from the date it was granted. Options granted under the Directors' Plan vest monthly over a four-year period. The exercise price of options under the Directors' Plan will equal 100% of the fair market value of the Common Stock on the date of grant. Options granted under the Directors' Plan are generally non-transferable. Unless otherwise terminated by the Board of Directors, the Directors' Plan automatically terminates on the tenth anniversary of the date of this offering. As of the date hereof, options to purchase an aggregate of 80,000 shares of Common Stock have been granted under the Directors' Plan. 50 52 EMPLOYEE STOCK PURCHASE PLAN In February 1997, the Company adopted the Employee Stock Purchase Plan (the "Purchase Plan") covering an aggregate of 400,000 shares of Common Stock. The Purchase Plan is intended to qualify as an employee stock purchase plan within the meaning of Section 423 of the Code. Under the Purchase Plan, the Board may authorize participation by eligible employees, including officers, in periodic offerings following the commencement of the Purchase Plan. The initial offering under the Purchase Plan will commence on the date of this Prospectus and terminate on April 30, 1999. Unless otherwise determined by the Board, employees are eligible to participate in the Purchase Plan only if they are employed by the Company or a subsidiary of the Company designated by the Board for at least 20 hours per week and are customarily employed by the Company or a subsidiary of the Company designated by the Board for at least five months per calendar year. Employees who participate in an offering may have up to 15% of their earnings withheld pursuant to the Purchase Plan. The amount withheld is then used to purchase shares of the Common Stock on specified dates determined by the Board. The price of Common Stock purchased under the Purchase Plan will be equal to 85% of the lower of the fair market value of the Common Stock at the commencement date of each offering period or the relevant purchase date. Employees may end their participation in the offering at any time during the offering period, and participation ends automatically on termination of employment with the Company. In the event of a merger, reorganization, consolidation or liquidation involving the Company, the Board has discretion to provide that each right to purchase Common Stock will be assumed or an equivalent right substituted by the successor corporation, or the Board may shorten the offering period and provide for all sums collected by payroll deductions to be applied to purchase stock immediately prior to such merger or other transaction. The Board has the authority to amend or terminate the Purchase Plan, provided, however, that no such action may adversely affect any outstanding rights to purchase Common Stock. 401(K) PLAN In January 1996, the Board adopted an employee retirement savings plan (the "401(k) Plan") covering certain of the Company's employees who have at least 30 days of service with the Company and work a minimum of 1,000 hours during the plan year. Pursuant to the 401(k) Plan, eligible employees may elect to reduce their current compensation by up to the statutorily prescribed annual limit ($9,500 in 1996) and have the amount of such reduction contributed to the 401(k) Plan. In addition, eligible employees may make roll-over contributions to the 401(k) Plan from a tax-qualified retirement plan. The 401(k) Plan allows for the Company to make discretionary matching and additional profit sharing contributions, each as determined by a committee of the Board of Directors. No discretionary or profit sharing contributions were made by the Company in 1996 and the Company has no intention of making such contributions in the near future. Company contributions, if any, become 20% vested after two years of service, with an additional 20% becoming vested for each year of service thereafter. The 401(k) Plan is intended to qualify under Section 401 of the Code, so that contributions by employees and the Company to the 401(k) Plan, and income earned on the 401(k) Plan contributions, are not taxable to employees until withdrawn from the 401(k) Plan, and so that contributions by the Company, if any, will be deductible by the Company when made. The trustee under the 401(k) Plan, at the direction of each participant, invests the 401(k) Plan employee salary deferrals in selected investment options. LIMITATIONS ON DIRECTORS' AND EXECUTIVE OFFICERS' LIABILITY AND INDEMNIFICATION The Company's Amended and Restated Bylaws provide that the Company will indemnify its directors and executive officers and may indemnify its other officers, employees and other agents to the fullest extent permitted by Delaware law. The Company is also empowered under its Amended and Restated Bylaws to enter into indemnification contracts with its directors and officers and to 51 53 purchase insurance on behalf of any person it is required or permitted to indemnify. Pursuant to this provision, the Company has entered into indemnification agreements with each of its directors and executive officers and certain of its key employees. In addition, the Company's Restated Certificate of Incorporation provides that directors of the Company will not be personally liable to the Company or its stockholders for monetary damages for any breach of fiduciary duty as a director, except for liability (i) for any breach of the directors' duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derives any improper personal benefit. The Restated Certificate of Incorporation also provides that if the Delaware General Corporation Law is amended after the approval by the Company's stockholders of the Restated Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Company's directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. 52 54 CERTAIN TRANSACTIONS The Company was incorporated in California in May 1995 and reincorporated in Delaware in January 1996. In connection with its reincorporation, the Company issued 100 shares of Common Stock to Avalon Medical Partners L.P. ("AMP"). From May 1995 to March 1996, AMP and Avalon Bioventures II L.P. ("ABV") loaned the Company an aggregate of $425,000 and $500,000, respectively, pursuant to Convertible Promissory Notes issued by the Company to AMP and ABV. Such Convertible Promissory Notes were canceled, and the interest thereon forgiven, in connection with the sale and issuance of shares of Series A Preferred Stock to AMP and ABV in March 1996. Kevin J. Kinsella, a member of the Board of Directors of the Company and its Chairman of the Board and Acting Chief Executive Officer at the time of these transactions, was a general partner of AMP and ABV until their dissolution in February 1997. Subsequent to its reincorporation in Delaware in January 1996 and through February 28, 1997, the Company sold the following shares of its Common Stock and Preferred Stock in private placement transactions: 1,926,303 shares of Common Stock at a price of $.00125 per share; 215,720 shares of Common Stock at a price of $.0875 per share; 501,840 shares of Common Stock at a price of $.125 per share; 284,672 shares of Common Stock at a price of $.375 per share; 4,000 shares of Common Stock at a price of $1.50 per share; 8,191,282 shares of Series A Preferred Stock at a price of $1.6625 per share; 666,665 shares of Series B Preferred Stock at a price of $2.25 per share; 600,000 shares of Series C Preferred Stock at a price of $2.50 per share; and 458,028 shares of Series D Preferred Stock at a price of $4.50 per share. Upon the closing of this offering, each share of Series A, Series B, Series C and Series D Preferred Stock will automatically convert into one share of Common Stock. The purchasers of Common and Preferred Stock described above included, among others, the following officers and directors of the Company, entities affiliated with certain of the Company's directors, and holders of more than 5% of the Company's voting securities:
SHARES OF PREFERRED STOCK(1) COMMON ------------------------------------------ PURCHASER STOCK SERIES A SERIES B SERIES C SERIES D - -------------------------------------------- ------- --------- -------- -------- -------- Abingworth Bioventures SICAV(2)............. -- 2,105,262 -- -- -- Avalon Medical Partners L.P.(3)............. 348,000 255,638 -- -- -- Avalon Bioventures II L.P.(3)............... -- 300,751 -- -- -- Biotechnology Investments Limited(4)........ -- 1,142,856 -- -- -- DP III Associates, L.P.(4).................. -- 57,324 -- -- -- Domain Partners III, L.P.(4)................ -- 1,656,961 -- -- -- J. Gordon Foulkes, Ph.D..................... 208,000 -- -- -- -- Kingsbury Capital Partners, L.P. II(5)...... -- 601,503 -- -- -- Kevin J. Kinsella(3)........................ -- 30,074 -- -- -- NEA Ventures 1996, L.P.(6).................. -- 6,014 -- -- -- New Enterprise Associates VI Limited Partnership(6).................... -- 1,654,135 -- -- -- Timothy J. Rink, M.D., Sc.D................. 492,000 15,036 -- -- -- Sequana Therapeutics, Inc.(3)............... -- -- -- 600,000 -- Lubert Stryer, M.D.......................... 60,000 45,112 -- -- --
- --------------- (1) Certain of these entities are parties to a voting agreement. See "Management." The Purchasers of these securities are entitled to registration rights after this offering. See "Description of Capital Stock -- Registration Rights." (2) Dr. Stephen W. Bunting, a Director of the Company from March 1996 until February 1997, is a director of Abingworth Management Limited, the investment adviser to Abingworth Bioventures SICAV. 53 55 (3) Kevin J. Kinsella, a director of the Company and its Chairman of the Board and Acting Chief Executive Officer until March 1996, was a general partner of Avalon Medical Partners L.P. and Avalon Bioventures II L.P. until such partnerships dissolved in February 1997. Mr. Kinsella is also the President, Chief Executive Officer and a director of Sequana Therapeutics, Inc. ("Sequana"). (4) Dr. James C. Blair, a director of the Company, is a general partner of Domain Associates, a venture capital investment firm. Domain Associates manages Domain Partners III, L.P. and DP III Associates, L.P. and is the U.S. venture capital advisor to Biotechnology Investments Limited. (5) Timothy J. Wollaeger, a director of the Company, is the general partner of Kingsbury Capital Partners, L.P. II. (6) Dr. Hugh Y. Rienhoff, Jr., a director of the Company, was a partner of New Enterprise Associates Development Corporation at the time of the transactions listed above. New Enterprise Associates Development Corporation manages NEA Ventures 1996, L.P. and New Enterprise Associates VI Limited Partnership. In connection with Sequana's purchase of Series C Preferred Stock, the Company and Sequana entered into a Research Agreement dated April 2, 1996. See "Business -- Corporate Collaborations." As noted above, Kevin J. Kinsella, a director of the Company and its Chairman of the Board and Acting Chief Executive Officer until February 1996, is the President and Chief Executive Officer of Sequana. The Company has employment agreements with Timothy J. Rink, its Chief Executive Officer and President, and J. Gordon Foulkes, its Chief Technical Officer. See "Management -- Employment Agreements and Severance Arrangements." In October 1996, the Company loaned $150,000 to J. Gordon Foulkes, the Company's Chief Technical Officer and a director of the Company, to assist with the purchase of a residence in connection with Dr. Foulkes' relocation to San Diego, California from Long Island, New York. The loan is interest-free and is secured by a second deed of trust on the property purchased in part by such funds. Such loan is payable on the earlier of one year following termination of employment or four years following the loan date. So long as Dr. Foulkes is then employed with the Company, he will receive a bonus in the amount of $150,000 from the Company upon such four-year anniversary. See "Management." The Company has granted options to certain of its directors and executive officers. The Company has also entered into an Indemnification Agreement with each of its directors and executive officers. The Company believes that all of the transactions set forth above were made on terms no less favorable to the Company than could have been obtained from unaffiliated third parties. All future transactions between the Company and its officers, directors, principal stockholders and their affiliates will be approved by a majority of the Board of Directors, including a majority of the disinterested directors, and will continue to be on terms no less favorable to the Company than could be obtained from unaffiliated third parties. 54 56 PRINCIPAL STOCKHOLDERS The following table sets forth certain information with respect to the beneficial ownership of the Company's Common Stock as of February 28, 1997, and as adjusted to reflect the sale of the shares of Common Stock offered hereby, by (i) the Company's Chief Executive Officer, (ii) each of the Company's directors, (iii) each holder of more than 5% of the Company's Common Stock and (iv) all current directors and executive officers as a group.
PERCENTAGE OF SHARES BENEFICIALLY OWNED (1) SHARES -------------------------------- 5% STOCKHOLDERS, DIRECTORS BENEFICIALLY BEFORE AFTER AND NAMED EXECUTIVE OFFICERS OWNED(1) OFFERING OFFERING - ----------------------------------------------------- ------------ --------------- -------------- Abingworth Bioventures SICAV......................... 2,105,262 16.4% 13.2% c/o Sanne & Cie Boite Postale 566 L-2015 Luxemberg Biotechnology Investments Limited.................... 1,142,856 8.9% 7.2% St. Peter Port House Saus Marez Street St. Peter Port, Guernsey GY1 3PH Entities affiliated with Domain Partners III, L.P.(2)............................................ 1,714,285 13.3% 10.8% One Palmer Square, Suite 515 Princeton, NJ 08542 Entities affiliated with New Enterprise Associates Development Corporation(3)......................... 1,660,149 12.9% 10.4% 1119 St. Paul Street Baltimore, MD 21202 Timothy J. Rink, M.A., M.D., Sc.D.(4)................ 491,036 3.8% 3.1% J. Gordon Foulkes, Ph.D.............................. 208,000 1.6% 1.3% James C. Blair, Ph.D.(5)............................. 1,714,951 13.3% 10.8% Kevin J. Kinsella(6)................................. 778,888 6.1% 4.9% Hugh Y. Rienhoff, Jr., M.D.(7)....................... 2,108,935 16.4% 13.3% Lubert Stryer, M.D.(8)............................... 105,778 * * Timothy J. Wollaeger(9).............................. 602,169 4.7% 3.8% All directors and executive officers as a group (10 persons)........................................... 6,104,957 47.5% 38.4%
- --------------- * Represents beneficial ownership of less than 1%. (1) Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting or investment power with respect to securities. Except as indicated by footnote, and subject to community property laws where applicable, the persons named in the table above have sole voting and investment power with respect to all shares of Common Stock shown as beneficially owned by them. Percentage of beneficial ownership is based on 12,848,524 shares of Common Stock outstanding as of February 28, 1997 and 15,893,814 shares of Common Stock outstanding after completion of this offering. (2) Represents 57,324 shares held by DP III Associates, L.P. ("DP III") and 1,656,961 shares held by Domain Partners III., L.P. ("Domain III"). One Palmer Square Associates III, L.P. is the general partner of DP III and Domain III. (3) Represents 1,654,135 shares held by New Enterprise Associates VI Limited Partnership and 6,014 shares held by NEA Ventures 1996, L.P. New Enterprise Associates Development Corporation manages New Enterprise Associates VI Limited Partnership and NEA Ventures 1996, L.P. 55 57 (4) Includes 222,000 shares held by Dr. Rink's spouse, Norma J. Rink, as her separate property. Also includes 32,000 shares held by Dr. Rink as custodian for two of his minor children. Dr. Rink disclaims beneficial ownership of all of such shares. (5) Represents 57,324 shares held by DP III and 1,656,961 shares held by Domain III. Dr. Blair is a general partner of One Palmer Square Associates III, L.P., the general partner of DP III and Domain III. Dr. Blair disclaims beneficial ownership of such shares except to the extent of his partnership interest therein. Also includes 666 shares subject to stock options granted to Dr. Blair which are exercisable within 60 days of the date of this Prospectus. (6) Includes 600,000 shares held by Sequana Therapeutics, Inc., of which Mr. Kinsella is the President and Chief Executive Officer and a member of the board of directors. Mr. Kinsella disclaims beneficial ownership of such shares. Also includes 666 shares subject to stock options granted to Mr. Kinsella which are exercisable within 60 days of the date of this Prospectus. (7) Includes 2,105,262 shares held by Abingworth Bioventures SICAV. Dr. Rienhoff is a director of Abingworth Management Limited, the investment adviser to Abingworth Bioventures SICAV. Dr. Rienhoff disclaims beneficial ownership of such shares except to the extent of his partnership interest therein. Also includes 666 shares subject to stock options granted to Dr. Rienhoff which are exercisable within 60 days of the date of this Prospectus. (8) Includes 22,556 shares held by Dr. Stryer's spouse, Andrea S. Stryer. Also includes 666 shares subject to stock options granted to Dr. Stryer which are exercisable within 60 days of the date of this Prospectus. (9) Includes 601,503 shares held by Kingsbury Capital Partners, L.P. II ("Kingsbury"). Mr. Wollaeger is the general partner of Kingsbury. Mr. Wollaeger disclaims beneficial ownership of such shares except to the extent of his partnership interest therein. Also includes 666 shares subject to stock options granted to Mr. Wollaeger which are exercisable within 60 days of the date of this Prospectus. DESCRIPTION OF CAPITAL STOCK The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, $.001 par value, and, effective upon the closing of this offering, 7,500,000 shares of Preferred Stock, $.001 par value. COMMON STOCK As of February 28, 1997, there were 12,848,524 shares of Common Stock outstanding, after giving effect to the conversion of all outstanding shares of Preferred Stock into 9,915,977 shares of Common Stock. The holders of Common Stock are entitled to one vote per share on all matters to be voted on by the stockholders. Subject to preferences that may be applicable to any outstanding shares of Preferred Stock, holders of Common Stock are entitled to receive ratably such dividends as may be declared by the Board of Directors out of funds legally available therefor. In the event of a liquidation, dissolution or winding up of the Company, holders of Common Stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of Preferred Stock. Holders of Common Stock have no preemptive, conversion, subscription or other rights. There are no redemption or sinking fund provisions applicable to the Common Stock. All outstanding shares of Common Stock are, and all shares of Common Stock to be outstanding upon completion of this offering will be, fully paid and nonassessable. PREFERRED STOCK Upon the closing of this offering, all outstanding shares of Preferred Stock will be converted into 9,915,977 shares of Common Stock. See Notes 6 and 11 of Notes to Financial Statements for a 56 58 description of the currently outstanding Preferred Stock. Following the conversion, the Company's Restated Certificate of Incorporation will be amended and restated to delete all references to such shares of Preferred Stock. Under the Certificate of Incorporation, as amended and restated upon the closing of this offering (the "Restated Certificate"), the Board has the authority, without further action by stockholders, to issue up to 7,500,000 shares of Preferred Stock in one or more series and to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon such Preferred Stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation preference and sinking fund terms, any or all of which may be greater than the rights of the Common Stock. The issuance of Preferred Stock could adversely affect the voting power of holders of Common Stock and reduce the likelihood that such holders will receive dividend payments and payments upon liquidation. Such issuance could have the effect of decreasing the market price of the Common Stock. The issuance of Preferred Stock could have the effect of delaying, deterring or preventing a change in control of the Company. The Company has no present plans to issue any shares of Preferred Stock. REGISTRATION RIGHTS After this offering, the holders of 9,915,977 shares of Common Stock will be entitled to certain rights with respect to the registration of such shares under the Securities Act, pursuant to that certain Amended and Restated Investor Rights Agreement dated December 27, 1996 (the "Investors' Rights Agreement"). Under the terms of the Investors' Rights Agreement, if the Company proposes to register any of its securities under the Securities Act, either for its own account or for the account of other security holders exercising registration rights, such holders are entitled to notice of such registration and are entitled, subject to certain limitations, to include shares therein. Commencing with the date that is one year after this offering, the holders may also require the Company to file a registration statement under the Securities Act with respect to their shares, and the Company is required to use its best efforts to effect to such registration. Furthermore, the holders may require the Company to register their shares on Form S-3 when such form becomes available to the Company. Generally, the Company is required to bear all registration and selling expenses incurred in connection with any such registrations. These rights are subject to certain conditions and limitations, among them the right of the underwriters of an offering to limit the number of shares included in such registration. Such registration rights terminate on the seventh anniversary of the effective date of the Offering. DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS The Company is governed by the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a public Delaware corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A "business combination" includes mergers, asset sales or other transactions resulting in a financial benefit to the stockholder. An "interested stockholder" is a person who, together with affiliates and associates, owns (or within three years, did own) 15% or more of the corporation's voting stock. The existence of this provision would be expected to have anti-takeover effects with respect to transactions not approved in advance by the Board of Directors, such as discouraging takeover attempts that might result in a premium over the market price of the Common Stock. The Company's Restated Certificate provides that any action required or permitted to be taken by stockholders of the Company must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing. In addition, special meetings of the stockholders of the Company may be called only by the Chairman of the Board, the President of the Company, by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors, or by the holders of 50% of the outstanding voting stock of the 57 59 Company. The Company's Restated Certificate also specifies that the authorized number of directors may be changed only by resolution of the Board of Directors. These and other provisions contained in the Restated Certificate and the Company's Amended and Restated Bylaws could delay or make more difficult certain types of transactions involving an actual or potential change in control of the Company or its management (including transactions in which stockholders might otherwise receive a premium for their shares over then current prices) and may limit the ability of stockholders to remove current management of the Company or approve transactions that stockholders may deem to be in their best interests and, therefore, could adversely affect the price of the Company's Common Stock. TRANSFER AGENT AND REGISTRAR The transfer agent and registrar for the Company's Common Stock is Harris Trust Company of California. SHARES ELIGIBLE FOR FUTURE SALE Prior to the Offering, there has been no public market for the Common Stock of the Company. Future sales of substantial amounts of Common Stock in the public market could adversely affect prevailing market prices. Furthermore, since only a limited number of shares will be available for sale shortly after the Offering because of certain contractual and legal restrictions on resale described below, sales of substantial amounts of Common Stock of the Company in the public market after the restrictions lapse could adversely affect the prevailing market price and the ability of the Company to raise equity capital in the future. Upon completion of the Offering, the Company will have 15,893,814 shares of Common Stock outstanding, assuming no exercise of currently outstanding options, but including warrants to purchase an aggregate of 45,290 shares of Common Stock to be exercised upon the closing of this offering. Of these shares, the 3,000,000 shares sold in this offering (plus any additional shares sold upon exercise of the Underwriters' over-allotment option) will be freely transferable without restriction under the Securities Act of 1933, as amended (the "Securities Act"), unless they are held by "affiliates" of the Company as that term is used under the Securities Act and the regulations promulgated thereunder ("Affiliates"). Approximately 10,826,367 shares of Common Stock will be fully vested and eligible for sale under Securities Act Rules 144 and 701 on the ninety-first day after the effectiveness of this offering. Stockholders of the Company holding an aggregate of 10,762,778 of these 10,826,367 shares have agreed pursuant to lock-up agreements with the Underwriters, subject to certain limited exceptions, not to sell or otherwise dispose of any of the shares held by them for a period of 180 days after the effective date of this offering without the prior written consent of Alex. Brown & Sons Incorporated. At the end of such 180-day period, an additional 217,722 shares of Common Stock (plus approximately 15,985 shares issuable upon exercise of vested options) will be eligible for immediate resale, subject to compliance with Rule 144 and Rule 701. The remainder of the approximately 1,849,725 shares of Common Stock held by existing stockholders will become eligible for sale at various times over a period of two years and could be sold earlier if the holders exercise any available registration rights. The holders of 9,915,977 shares of Common Stock have the right in certain circumstances to require the Company to register their shares under the Securities Act for resale to the public beginning one year from the effective date of this offering. If such holders, by exercising their demand registration rights, cause a large number of shares to be registered and sold in the public market, such sales could have an adverse effect on the market price for the Company's Common Stock. If the Company were required to include in a Company-initiated registration shares held by such holders pursuant to the exercise of their piggyback registration rights, such sales may have an adverse effect on the Company's ability to raise needed capital. In addition, the Company expects to file a registration statement on Form S-8 registering a total of approximately 2,170,168 shares of Common Stock subject to outstanding stock options or reserved for issuance under the Company's stock option plans. Such registration statement is expected to be 58 60 filed and to become effective as soon as practicable after the effective date of this offering. Shares registered under such registration statement will, subject to Rule 144 volume limitations applicable to Affiliates, be available for sale in the open market, unless such shares are subject to vesting restrictions with the Company or the lock-up agreements described above. In general, under Rule 144 as in effect on the date of this Prospectus, beginning 90 days after the effective date of the Offering, an Affiliate of the Company, or a person (or persons whose shares are aggregated) who has beneficially owned Restricted Shares (as defined under Rule 144) for at least one year is entitled to sell within any three-month period a number of shares that does not exceed greater of (i) one percent of the then outstanding shares of the Company's Common Stock or (ii) the average weekly trading volume of the Company's Common Stock in the Nasdaq National Market during the four calendar weeks immediately preceding the date on which notice of the sale is filed with the Commission. Sales pursuant to Rule 144 are subject to certain requirements relating to the manner of sale, notice, and the availability of current public information about the Company. A person (or persons whose shares are aggregated) who was not an Affiliate of the Company at any time during the 90 days immediately preceding the sale and who has beneficially owned Restricted Shares for at least two years is entitled to sell such shares under Rule 144(k) without regard to the limitations described above. An employee, officer or director of or consultant to the Company who purchased or was awarded shares or options to purchase shares pursuant to a written compensatory plan or contract is entitled to rely on the resale provisions of Rule 701 under the Securities Act, which permits Affiliates and non-Affiliates to sell their Rule 701 shares without having to comply with Rule 144's holding period restrictions, in each case commencing 90 days after the date of this Prospectus. In addition, non-Affiliates may sell Rule 701 shares without complying with the public information, volume and notice provisions of Rule 144. 59 61 UNDERWRITING Subject to the terms and conditions of the Underwriting Agreement, the Underwriters named below (the "Underwriters"), through their Representatives, Alex. Brown & Sons Incorporated, Hambrecht & Quist LLC and Robertson, Stephens & Company LLC, have severally agreed to purchase from the Company the following respective numbers of shares of Common Stock at the initial public offering price less the underwriting discounts and commissions set forth on the cover page of this Prospectus:
NUMBER OF UNDERWRITER SHARES --------- Alex. Brown & Sons Incorporated................................................. Hambrecht & Quist LLC........................................................... Robertson, Stephens & Company LLC............................................... --------- Total................................................................. 3,000,000 =========
The Underwriting Agreement provides that the obligations of the Underwriters are subject to certain conditions precedent and that the Underwriters will purchase all the shares of the Common Stock offered hereby if any of such shares are purchased. The Company has been advised by the Representatives that the Underwriters propose to offer the shares of Common Stock to the public at the initial public offering price set forth on the cover page of this Prospectus and to certain dealers at such price less a concession not in excess of $ per share. The Underwriters may allow, and such dealers may reallow, a concession not in excess of $ per share to certain other dealers. After the initial public offering, the offering price and other selling terms may be changed by the Representatives of the Underwriters. The Company has granted to the Underwriters an option, exercisable not later than 30 days after the date of this Prospectus, to purchase up to 450,000 additional shares of Common Stock at the initial public offering price less the underwriting discounts and commissions set forth on the cover page of this Prospectus. To the extent that the Underwriters exercise such option, each of the Underwriters will have a firm commitment to purchase approximately the same percentage thereof that the number of shares of Common Stock to be purchased by it in the above table bears to 3,000,000, and the Company will be obligated, pursuant to the option, to sell such shares to the Underwriters. The Underwriters may exercise such option only to cover over-allotments made in connection with the sale of Common Stock offered hereby. If purchased, the Underwriters will offer such additional shares on the same terms as those on which the 3,000,000 shares are being offered. The Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended. 60 62 Stockholders of the Company, holding in the aggregate 10,681,219 shares of Common Stock, have agreed not to offer, sell, contract to sell or otherwise dispose of (or enter into any transaction which is designed to, or could be expected to, result in the disposition of any portion of) any Common Stock for a period of 180 days after the date of this Prospectus without the prior written consent of Alex. Brown & Sons Incorporated. The Company has entered into a similar agreement, except that it may issue, and grant options to purchase, shares of Common Stock under its 1996 Stock Plan, Employee Stock Purchase Plan and Non-Employee Directors' Stock Option Plan and pursuant to currently outstanding warrants. See "Shares Eligible for Future Sale." In May 1996, Hambrecht & Quist Group, an entity affiliated with Hambrecht & Quist LLC, purchased 222,221 shares of the Company's Series B Preferred Stock for a purchase price of $2.25 per share, or an aggregate of $500,000. Such shares will convert into 222,221 shares of Common Stock upon the closing of this offering. The Representatives have advised the Company that the Underwriters do not intend to confirm sales to any account over which they exercise discretionary authority. Prior to this offering, there has been no public market for the Common Stock of the Company. Consequently, the initial public offering price for the Common Stock will be determined by negotiation among the Company and the Representatives. The factors to be considered in such negotiations include prevailing market conditions, the results of operations of the Company in recent periods, the market capitalizations and stages of development of other companies which the Company and the Representatives believe to be comparable to the Company, estimates of the business potential of the Company, the present stage of the Company's development and other factors deemed relevant. In order to facilitate the offering of the Common Stock, the Underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the Common Stock. Specifically, the Underwriters may over-allot in connection with the offering, creating a short position in the Common Stock for their own account. In addition, to cover over-allotments or to stabilize the price of the Common Stock, the Underwriters may bid for, and purchase, shares of the Common Stock in the open market. The Underwriters may also reclaim selling concessions allowed to an underwriter or a dealer for distributing the Common Stock in the offering, if the Underwriters repurchase previously distributed Common Stock in transactions to cover their short positions, in stabilization transactions or otherwise. Finally, the Underwriters may bid for, and purchase, shares of the Common Stock in market making transactions and impose penalty bids. These activities may stabilize or maintain the market price of the Common Stock above market levels that may otherwise prevail. The Underwriters are not required to engage in these activities, and may end any of these activities at any time. LEGAL MATTERS The validity of the shares of Common Stock offered hereby will be passed upon for the Company by Cooley Godward LLP, San Diego, California. As of the date of this Prospectus, certain members and associates of Cooley Godward own an aggregate of 30,074 shares of Common Stock through an investment partnership. Certain legal matters will be passed upon for the Underwriters by Morrison & Foerster LLP, New York, New York. 61 63 EXPERTS The financial statements of the Company as of December 31, 1995 and 1996 and for the period from May 8, 1995 (inception) through December 31, 1995 and for the year ended December 31, 1996 included in this Prospectus and elsewhere in the Registration Statement have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The statements in this Prospectus under the captions "Risk Factors -- Dependence on Patents and Proprietary Rights," "Business -- Patents and Proprietary Rights," and other references herein to intellectual property of the Company have been reviewed and approved by Fish & Richardson, PC, San Diego, California, patent counsel for the Company, as experts on such matters, and are included herein in reliance upon that review and approval. ADDITIONAL INFORMATION The Company has filed with the Commission a Registration Statement on Form S-1 under the Securities Act, with respect to the Common Stock offered hereby. As permitted by the rules and regulations of the Commission, this Prospectus, which is a part of the Registration Statement, omits certain information, exhibits, schedules and undertakings set forth in the Registration Statement. For further information pertaining to the Company and the Common Stock offered hereby, reference is made to such Registration Statement and the exhibits and schedules thereto. Statements contained in this Prospectus as to the contents or provisions of any contract or other document referred to herein are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. A copy of the Registration Statement may be inspected without charge at the office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices located at the Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of all or any part of the Registration Statement may be obtained from such offices upon the payment of the fees prescribed by the Commission. In addition, registration statements and certain other filings made with the Commission through its Electronic Data Gathering, Analysis and Retrieval ("EDGAR") system are publicly available through the Commission's web site on the Internet's World Wide Web, located at http://www.sec.gov. The Registration Statement, including all exhibits thereto and amendments thereof, has been filed with the Commission through EDGAR. 62 64 AURORA BIOSCIENCES CORPORATION INDEX TO FINANCIAL STATEMENTS
PAGE ---- Report of Ernst & Young LLP, Independent Auditors..................................... F-2 Balance Sheets as of December 31, 1995 and 1996....................................... F-3 Statements of Operations for the period from May 8, 1995 (inception) to December 31, 1995 and the year ended December 31, 1996........................................... F-4 Statements of Stockholders' Equity for the period from May 8, 1995 (inception) to December 31, 1995 and the year ended December 31, 1996.............................. F-5 Statements of Cash Flows for the period from May 8, 1995 (inception) to December 31, 1995 and the year ended December 31, 1996........................................... F-6 Notes to Financial Statements......................................................... F-7
F-1 65 REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS The Board of Directors and Stockholders Aurora Biosciences Corporation We have audited the accompanying balance sheets of Aurora Biosciences Corporation as of December 31, 1995 and 1996, and the related statements of operations, stockholders' equity, and cash flows for the period from May 8, 1995 (inception) to December 31, 1995 and for the year ended December 31, 1996. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Aurora Biosciences Corporation at December 31, 1995 and 1996, and the results of its operations and its cash flows for the period from May 8, 1995 (inception) to December 31, 1995 and for the year ended December 31, 1996, in conformity with generally accepted accounting principles. ERNST & YOUNG LLP San Diego, California March 13, 1997, except as to Note 11, as to which the date is - -------------------------------------------------------------------------------- The foregoing report is in the form that will be signed upon the completion of the four-for-five reverse stock split discussed in Note 11 to the financial statements. ERNST & YOUNG LLP San Diego, California March 13, 1997 F-2 66 AURORA BIOSCIENCES CORPORATION BALANCE SHEETS
DECEMBER 31, PRO FORMA ------------------------- STOCKHOLDERS' EQUITY 1995 1996 AT DECEMBER 31, 1996 --------- ----------- -------------------- (UNAUDITED) ASSETS Current assets: Cash and cash equivalents................. $ 11,119 $ 3,914,038 Investment securities, available-for-sale..................... -- 9,252,870 Accounts receivable under collaborative agreements............................. -- 1,116,523 Notes receivable from officers and employees.............................. 69,798 -- Prepaid expenses.......................... 18,333 228,029 Other current assets...................... -- 169,175 ---------- ----------- Total current assets.............. 99,250 14,680,635 Equipment, furniture and leaseholds, net.... 9,110 1,901,515 Notes receivable from officers and employees................................. -- 200,000 Other assets................................ 6,440 732,374 ---------- ----------- $ 114,800 $17,514,524 ========== =========== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable.......................... $ 41,589 $ 299,819 Accrued compensation...................... 9,938 319,770 Notes payable............................. 475,000 -- Unearned revenue.......................... -- 250,000 Capital lease obligations, current portion................................ -- 350,247 ---------- ----------- Total current liabilities......... 526,527 1,219,836 Capital lease obligations, less current portion................................... -- 1,110,897 Commitments Stockholders' equity: Convertible preferred stock, $.001 par value, 25,000,000 shares authorized, no shares and 9,915,977 shares issued and outstanding at December 31, 1995 and 1996, respectively (7,500,000 shares authorized and no shares issued and outstanding pro forma); aggregate liquidation preference of $18,679,151 at December 31, 1996................... -- 9,916 $ -- Common stock, $.001 par value, 50,000,000 shares authorized, 80 and 2,865,160 shares issued and outstanding at December 31, 1995 and 1996, respectively (12,781,137 shares pro forma)................................. -- 2,865 12,781 Additional paid-in capital................ -- 18,887,790 18,887,790 Deferred compensation..................... -- (371,573) (371,573) Accumulated deficit....................... (411,727) (3,345,207) (3,345,207) ---------- ----------- ----------- Total stockholders' equity........ (411,727) 15,183,791 $ 15,183,791 =========== ---------- ----------- $ 114,800 $17,514,524 ========== ===========
See accompanying notes. F-3 67 AURORA BIOSCIENCES CORPORATION STATEMENTS OF OPERATIONS
PERIOD FROM MAY 8, 1995 (INCEPTION) TO YEAR ENDED DECEMBER 31, 1995 DECEMBER 31, 1996 ----------------- ----------------- Revenue under collaborative agreements (Note 9)........ $ -- $ 2,216,523 Operating expenses: Research and development............................. 365,548 4,395,914 General and administrative........................... 46,179 1,275,032 ---------- ----------- Total operating expenses..................... 411,727 5,670,946 ---------- ----------- Loss from operations................................... (411,727) (3,454,423) Interest income........................................ -- 580,382 Interest expense....................................... -- (59,439) ---------- ----------- Net loss............................................... $ (411,727) $(2,933,480) ========== =========== Pro forma net loss per share........................... $ (0.14) $ (0.26) ========== =========== Shares used in computing pro forma net loss per share................................................ 2,880,269 11,260,196 ========== ===========
See accompanying notes. F-4 68 AURORA BIOSCIENCES CORPORATION STATEMENTS OF STOCKHOLDERS' EQUITY
CONVERTIBLE PREFERRED STOCK COMMON STOCK ADDITIONAL TOTAL ------------------ ------------------- PAID-IN DEFERRED ACCUMULATED STOCKHOLDERS' SHARES AMOUNT SHARES AMOUNT CAPITAL COMPENSATION DEFICIT EQUITY ---------- ------ ----------- ------ ----------- ------------ ----------- ------------- Issuance of common stock... -- $ -- 80 $ -- $ -- $ -- $ -- $ -- Net loss................... -- -- -- -- -- -- (411,727) (411,727) ---------- ------- --------- ------ ----------- --------- ----------- ----------- Balance at December 31, 1995................... -- -- 80 -- -- -- (411,727) (411,727) Issuance of Series A preferred stock, net..... 7,634,895 7,635 -- -- 12,617,058 -- -- 12,624,693 Issuance of Series A preferred stock for cancellation of notes payable.................. 556,389 556 -- -- 924,441 -- -- 924,997 Issuance of Series B preferred stock, net..... 666,665 667 -- -- 1,494,889 -- -- 1,495,556 Issuance of Series C preferred stock, net..... 600,000 600 -- -- 1,496,800 -- -- 1,497,400 Issuance of Series D preferred stock, net..... 458,028 458 -- -- 2,054,943 -- -- 2,055,401 Issuance of common stock, net...................... -- -- 2,677,080 2,677 90,847 -- -- 93,524 Issuance of common stock for acquired technology............... -- -- 188,000 188 63,312 -- -- 63,500 Deferred compensation related to stock and stock options............ -- -- -- -- 145,500 (373,742) -- (228,242) Amortization of deferred compensation............. -- -- -- -- -- 2,169 -- 2,169 Net loss................... -- -- -- -- -- -- (2,933,480) (2,933,480) ---------- ------- --------- ------ ----------- --------- ----------- ----------- Balance at December 31, 1996................... 9,915,977 $9,916 2,865,160 $2,865 $18,887,790 $ (371,573) $(3,345,207) $15,183,791 ========== ======= ========= ====== =========== ========= =========== ===========
See accompanying notes. F-5 69 AURORA BIOSCIENCES CORPORATION STATEMENTS OF CASH FLOWS
PERIOD FROM MAY 8, 1995 (INCEPTION) TO YEAR ENDED DECEMBER 31, 1995 DECEMBER 31, 1996 ----------------- ----------------- OPERATING ACTIVITIES: Net loss............................................... $(411,727) $ (2,933,480) Adjustments to reconcile net loss to net cash used in operating activities: Depreciation and amortization........................ 1,822 156,861 Forgiveness of notes receivable from officers and employees......................................... -- 93,129 Issuance of common stock in exchange for acquired technology........................................ -- 63,500 Amortization of deferred compensation................ -- 2,169 Changes in operating assets and liabilities: Accounts receivable under collaborative agreements................................... -- (1,116,523) Prepaid expenses and other current assets....... (18,333) (378,871) Accounts payable and accrued expenses........... 51,527 339,820 Unearned revenue................................ -- 250,000 --------- ------------ Net cash used in operating activities.................. (376,711) (3,523,395) --------- ------------ INVESTING ACTIVITIES: Purchases of investment securities..................... -- (12,147,818) Sales and maturities of investment securities.......... -- 2,894,948 Purchases of equipment, furniture and leaseholds....... (10,932) (458,657) Notes receivable from officers and employees........... (69,798) (223,331) Other assets........................................... (6,440) (725,934) --------- ------------ Net cash used in investing activities.................. (87,170) (10,660,792) --------- ------------ FINANCING ACTIVITIES: Issuance of convertible preferred stock, net........... -- 17,673,050 Issuance of common stock, net of repurchases........... -- 93,524 Issuance of notes payable.............................. 475,000 449,997 Principal payments on capital lease obligations........ -- (129,465) --------- ------------ Net cash provided by financing activities.............. 475,000 18,087,106 --------- ------------ Net increase in cash and cash equivalents.............. 11,119 3,902,919 Cash and cash equivalents at beginning of period....... -- 11,119 --------- ------------ Cash and cash equivalents at end of period............. $ 11,119 $ 3,914,038 ========= ============ SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: Equipment acquired under capital leases................ $ -- $ 1,590,609 ========= ============ Conversion of notes payable to convertible preferred stock................................................ $ -- $ 924,997 ========= ============
See accompanying notes. F-6 70 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS 1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Organization and Business Activity Aurora Biosciences Corporation (the "Company" or "Aurora") was incorporated in California on May 8, 1995 and subsequently re-incorporated in Delaware on January 22, 1996. The Company designs and develops proprietary drug discovery systems, services and technologies to accelerate and enhance the discovery of new medicines. Aurora is developing an integrated technology platform comprised of a portfolio of proprietary fluorescent assay technologies and an ultra-high throughput screening ("UHTS") system designed to allow assay miniaturization and to overcome many of the limitations associated with the traditional drug discovery process. This integrated technology platform will support functional genomics in mammalian cells, facile assay development and extremely rapid screening of molecular targets to identify lead compounds with novel therapeutic potential. Cash, Cash Equivalents and Investment Securities The Company considers all highly-liquid investments with maturities of three months or less from the date of purchase to be cash equivalents. Management determines the appropriate classification of its cash equivalents and investment securities at the time of purchase and re-evaluates such determination as of each balance sheet date. Management has classified the Company's cash equivalents and investment securities as available-for-sale securities in the accompanying financial statements. Available-for-sale securities are carried at fair value, with unrealized gains and losses reported in a separate component of stockholders' equity. The cost of debt securities classified as available-for-sale is adjusted for amortization of premiums and accretion of discounts to maturity. Such amortization and accretion, as well as interest and dividends, are included in interest income. Realized gains and losses are also included in interest income. The cost of securities sold is based on the specific identification method. The Company invests its excess cash in U.S. Government and agency securities and debt instruments of financial institutions and corporations with strong credit ratings. The Company has established guidelines regarding diversification of its investments and their maturities which should maintain safety and liquidity. Equipment, Furniture and Leaseholds Equipment, including capitalized leased equipment, furniture and leaseholds is stated at cost less accumulated depreciation and amortization. Depreciation and amortization is calculated using the straight-line method over the shorter of the estimated useful lives of the respective assets (generally three to five years) or the term of the applicable lease. Revenue Recognition Revenue under collaborative agreements typically consists of non-refundable up-front fees, ongoing research and co-development payments, and milestone, royalty and other contingent payments. Revenue from non-refundable up-front fees is recognized upon signing of the agreement. Revenue from ongoing research and co-development payments is recognized ratably over the term of the agreement, and the Company believes such payments will approximate the research and development expense being incurred associated with the agreement. Revenue from milestone, royalty and other contingent payments will be recognized as earned. Revenue from screen development and screening and other services is recognized as earned. F-7 71 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) Advance payments received under any agreements in excess of amounts earned are classified as unearned revenue. Revenue under cost reimbursement contracts is recognized as the related costs are incurred. Substantially all of the revenue recorded to date has been derived from agreements with two collaborators (Note 9). Research and Development Expense All research and development costs are expensed in the period incurred. Pro Forma Net Loss Per Share Pro forma net loss per share is computed using the weighted average number of common shares outstanding during the period. Pursuant to certain requirements of the Securities and Exchange Commission, ("SEC"), common and common equivalent shares issued by the Company during the twelve months immediately preceding the initial filing of the Company's Registration Statement, including common and common equivalent shares issued after December 31, 1996, have been included in the calculation of the shares used in computing pro forma net loss per share as if these shares were outstanding for all periods presented, using the treasury stock method and assumed public offering price of $10 per share. In addition, the calculation of the shares used in computing pro forma net loss per share includes convertible preferred stock not included above that will automatically convert into common stock upon completion of an initial public offering, as if they were converted into common stock as of the original date of issuance. Accounting Standard on Impairment of Long-Lived Assets Effective January 1, 1996, the Company adopted Statement of Financial Accounting Standards No. 121, "Accounting for Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of," regarding the impairment of long-lived assets, identifiable intangibles and goodwill related to those assets when there are indications that the carrying values of those assets may not be recoverable. The adoption of this standard had no impact on the Company's financial position. Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. 2. CASH EQUIVALENTS AND INVESTMENT SECURITIES A summary of the estimated fair value of cash equivalents and investment securities as of December 31, 1996 is shown below: Money market funds....................................................... $ 3,141,747 U.S. government securities............................................... 3,738,755 U.S. corporate securities................................................ 5,012,834 Other debt securities.................................................... 1,000,241 ----------- Total debt securities.......................................... 12,893,577 Less amounts classified as cash equivalents.............................. (3,640,707) ----------- Total investment securities.................................... $ 9,252,870 ===========
F-8 72 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) The estimated fair value of cash equivalents and investment securities approximates cost and no unrealized gains or losses were reported as of December 31, 1996. Realized gains or losses on sales of available-for-sale securities in 1996 were not significant. There were no realized gains or losses in the period from May 8, 1995 (inception) to December 31, 1995. The estimated fair value of available-for-sale debt securities as of December 31, 1996 by contractual maturity is as follows: $9.7 million due within one year and $3.2 million due in one to two years. 3. NOTES RECEIVABLE FROM OFFICERS AND EMPLOYEES Notes receivable from officers and employees generally consist of relocation and housing loans to assist in the relocation of new employees. These notes are generally secured by all shares of the Company's common stock owned by the individual or by a deed of trust on the individual's principal residence. During 1996, the notes were forgiven. Notes receivable as of December 31, 1996 include an interest-free $150,000 loan to an officer and director of the Company which is secured by a deed of trust on the individual's principal residence. 4. EQUIPMENT, FURNITURE AND LEASEHOLDS Equipment, furniture and leaseholds consists of the following:
DECEMBER 31, ---------------------- 1995 1996 ------- ---------- Scientific equipment........................................... $ -- $1,255,749 Office furniture, computers and equipment...................... 10,932 731,423 Leasehold improvements......................................... -- 73,026 ------- ---------- 10,932 2,060,198 Less accumulated depreciation and amortization................. (1,822) (158,683) ------- ---------- $ 9,110 $1,901,515 ======= ==========
Equipment, furniture and leaseholds at December 31, 1996 included scientific equipment acquired under capital leases of $1,065,173 and office furniture, computers and equipment acquired under capital leases of $525,436. The amount of related amortization included in accumulated depreciation and amortization at December 31, 1996 was $120,550. 5. COMMITMENTS Consulting Agreements The Company has entered into various consulting agreements with its Scientific advisors and others for aggregate minimum annual fees of approximately $215,000. The agreements generally provide for four or five-year terms and are cancelable by either party upon 60 or 90 days written notice. During the period from May 8, 1995 (inception) through December 31, 1995 and the year ended December 31, 1996, the Company expensed approximately $95,000 and $332,000, respectively, of fees and expense reimbursements related to these agreements. In 1996, in connection with the various consulting agreements, the Company issued 48,000 shares of common stock for $.001 per share pursuant to restricted stock purchase agreements, excluding shares issued to founders and directors of the Company who also serve as consultants as the Scientific advisors. F-9 73 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) Technology and Licensing Agreements The Company has entered into various strategic technology agreements with third parties regarding the development of instrumentation technology. These agreements contain varying terms and provisions which require the Company to make payments to the third parties. Pursuant to these agreements, the Company paid approximately $550,000 in 1996 and is obligated to make future payments totaling approximately $1.4 million in 1997 and 1998 if all milestones are met. The Company has also entered into various license agreements with academic institutions regarding certain inventions and technologies. Most such agreements may be terminated by the Company with 60 days written notice without significant financial penalty. Pursuant to these agreements, the Company paid approximately $120,000 in 1996 and is obligated to make future payments totaling approximately $850,000 over the next seven years. In addition, the Company is required to make royalty payments upon the sale of products incorporating inventions or technologies covered under these agreements. Leases The Company leases its facilities and certain equipment under operating lease agreements which expire in October 1999. Lease payments are subject to future increases based upon increases in the Consumer Price Index, taxes and insurance. Rent expense totaled approximately $462,000 in the year ended December 31, 1996. The Company leases certain equipment under a $3.5 million capital lease line which expires in June 1997. At December 31, 1996, the Company had $1.9 million available under the capital lease line for future equipment acquisitions. Annual future minimum lease payments for operating and capital leases as of December 31, 1996 are as follows:
OPERATING LEASES CAPITAL LEASES ---------------- -------------- Years ended December 31, 1997..................................................... $ 683,665 $ 542,652 1998..................................................... 703,686 542,652 1999..................................................... 632,205 548,469 2000..................................................... -- 237,413 ---------- ---------- Total minimum lease payments............................. $2,019,556 1,871,186 ========== Less amounts representing interest....................... (410,042) ---------- Present value of capital lease payments.................. 1,461,144 Less current portion..................................... (350,247) ---------- Capital lease obligations, noncurrent.................... $1,110,897 ==========
F-10 74 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) 6. STOCKHOLDERS' EQUITY Convertible Preferred Stock Convertible preferred stock issued and outstanding at December 31, 1996 is as follows:
SHARES ISSUED AND PREFERENCE IN AUTHORIZED OUTSTANDING PAR VALUE LIQUIDATION ---------- ----------- --------- ------------- Series A......................... 10,500,000 8,191,284 $ 8,191 $ 13,618,023 Series B......................... 833,332 666,665 667 1,499,998 Series C......................... 800,000 600,000 600 1,500,000 Series D......................... 572,536 458,028 458 2,061,130 --------- ------ ----------- 9,915,977 $ 9,916 $ 18,679,151 ========= ====== ===========
The Company issued shares of Series A, B and C preferred stock at $1.66, $2.25 and $2.50 per share, respectively, pursuant to March 1996 preferred stock purchase agreements. The Company issued Series D preferred stock at $4.50 per share pursuant to a December 1996 preferred stock purchase agreement. The preferred stock is convertible into equal shares of common stock, subject to certain anti-dilution provisions, at any time at the option of the holder or automatically upon (i) the consent of not less than 67% of the preferred stockholders, or (ii) the closing of an underwritten public offering of common stock with gross proceeds of not less than $10,000,000 at not less than $7.50 per common share. The holder of each share of preferred stock is currently entitled to one vote for each share of common stock into which it would convert. Holders of Series A, B, C and D preferred stock are entitled to noncumulative annual dividends of $.133, $.18, $.20 and $.36 per share, respectively. These dividends are payable prior and in preference to any declaration or payment of any dividend or other distribution on common stock payable other than in common stock, when and if declared by the Board of Directors. The Company has never declared or paid dividends on its capital stock and does not intend to pay dividends in the foreseeable future. In March 1996, the Company issued 556,389 shares of Series A preferred stock in exchange for the cancellation of promissory notes payable totaling approximately $925,000 (see Note 10). Common Stock The majority of the outstanding shares of common stock have been issued to founders, directors and employees of, and consultants to, the Company. In connection with certain stock purchase agreements, the Company has the option to repurchase, at the original issuance price, the unvested shares in the event of termination of employment or engagement. Shares issued under these agreements generally vest over four years. At December 31, 1996, 1,652,853 shares of common stock were subject to repurchase by the Company. During 1996, the Company issued 188,000 shares of common stock in exchange for certain licenses and rights. Research and development expense of $63,500 was recorded related to such issuances. At December 31, 1996, the Company had committed to issue 71,072 shares of common stock under stock purchase agreements. The Company is also obligated to issue 4,000 shares of common stock upon the completion of a milestone in connection with a license agreement. F-11 75 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) Warrants In May 1996, the Company issued warrants to purchase 54,320 shares of Series A preferred stock at $1.66 per share to a leasing company in connection with the execution of a $3.5 million capital lease agreement (Note 5). The warrants expire in May 2002, subject to certain extensions based on the utilization of the capital lease line. Deferred Compensation The Company records and amortizes over the related vesting periods deferred compensation representing the difference between the price per share of restricted stock issued or the exercise price of stock options granted and the deemed fair value (for SEC purposes) of the Company's common stock at the date of issuance or grant. Shares included in the computation of deferred compensation at December 31, 1996 include restricted stock issued or committed and stock options granted or committed from April 1996 through December 1996. Gross deferred compensation at December 31, 1996 totaled $373,742 and related amortization expense in 1996 totaled $2,169. Stock Plan In January 1996, the Company adopted the 1996 Stock Plan (the "Plan"), under which 800,000 shares of the Company's common stock were reserved for future issuance. The Plan provides for the grant of incentive stock options and stock appreciation rights to employees and nonstatutory stock options and stock purchase rights to employees, directors and consultants. All options and stock appreciation rights granted under the Plan expire not later than ten years from the date of grant and vest and become fully exercisable after not more than five years of continued employment or engagement. Options generally vest either monthly over four years or with one-fourth of the shares vesting after one year and the remainder vesting ratably over the next three years. The exercise price of incentive stock options must be equal to at least the fair market value on the date of grant, and the exercise price of nonstatutory options may be no less than 85% of the fair market value on the date of grant. Stock option activity under the Plan in 1996 consisted of grants of options to purchase 4,000 shares of common stock at an exercise price of $.09 per share. No options were exercised or forfeited during 1996. At December 31, 1996, options to purchase 500 shares of common stock were exercisable at a weighted average exercise price of $.09 per share. The weighted average remaining contractual life of the 4,000 options outstanding at December 31, 1996 was 9.5 years. At December 31, 1996, the Company had committed to grant options to purchase 36,336 shares of common stock at an exercise price of $.38 per share. During 1996, the Company issued 393,960 shares of restricted common stock at prices ranging from $.09 to $.40 per share. Of the 393,960 shares issued, 353,960 shares were issued under the Plan and 52,800 shares were issued at prices below fair value on the date of issuance. The weighted average fair value of these issuances was $2.75 per share and the total fair value has been included in deferred compensation as of December 31, 1996. F-12 76 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) Effective January 1, 1996, the Company adopted Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123"). In accordance with the provisions of SFAS 123, the Company has elected to follow Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25") and related Interpretations in accounting for its employee stock options. Under APB 25, when the purchase price of restricted stock or the exercise price of the Company's employee stock options equals or exceeds the fair value of the underlying stock on the date of issuance or grant, no compensation expense is recognized. Pro forma information regarding net loss and loss per share is required by SFAS 123, and has been determined as if the Company had accounted for its employee stock options under the fair value method of that Statement. The fair value of these options was estimated at the date of grant using the minimum value method with the following weighted average assumptions for 1996: risk-free interest rate of 6.22%; no annual dividends; and an expected option life of five years. The effect of applying the minimum value method of SFAS 123 to options granted in 1996 did not result in pro forma net loss and loss per share amounts that are materially different from amounts reported. Accordingly, such pro forma information is not presented herein. Should the Company successfully complete an initial public offering, it would no longer be able to utilize the minimum value method and, therefore, the pro forma effect determined in 1996 may not be representative of the pro forma effect to be reported in future years. Common Stock Reserved for Future Issuance At December 31, 1996, common stock reserved for future issuance is as follows: Conversion of Series A, B, C and D convertible preferred stock.............. 9,915,977 Warrants to purchase Series A convertible preferred stock................... 54,320 Common stock and stock options under 1996 Stock Plan........................ 446,040 Other obligations........................................................... 4,000 ---------- 10,420,337 ==========
7. INCOME TAXES At December 31, 1996, the Company had federal and California income tax net operating loss carryforwards of approximately $3,210,000 and $3,286,000, respectively. Federal and California tax loss carryforwards will begin to expire in 2010 and 2003, respectively, unless previously utilized. The Company also had federal and California research tax credit carryforwards of approximately $165,000 and $89,000, respectively, which will begin to expire in 2010 unless previously utilized. Pursuant to Sections 382 and 383 of the Internal Revenue Code, use of these net operating loss and credit carryforwards may be substantially limited because of cumulative changes in the Company's ownership of more that 50%. However, the Company does not believe such limitations will have a material impact upon the utilization of these carryforwards. F-13 77 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) Significant components of the Company's net deferred tax assets as of December 31, 1995 and 1996 are shown below. A valuation allowance of $1,548,000 at December 31, 1996 has been recognized to offset the net deferred tax assets as realization of such assets is uncertain.
DECEMBER 31, ---------------------- 1995 1996 ------- ---------- Deferred tax assets: Net operating loss carryforwards.......................... $86,000 $1,321,000 Tax credit carryforwards.................................. -- 223,000 Other..................................................... -- 114,000 ------- ---------- Total deferred tax assets................................... 86,000 1,658,000 Deferred tax liability: Depreciation.............................................. -- (110,000) ------- ---------- Net deferred tax assets..................................... 86,000 1,548,000 Valuation allowance for deferred tax assets................. (86,000) (1,548,000) ------- ---------- Net deferred taxes.......................................... $ -- $ -- ======= ==========
8. 401(K) RETIREMENT SAVINGS PLAN In January 1996, the Company adopted a 401(k) Retirement Savings Plan covering substantially all employees who have completed certain service requirements. Participants may contribute a portion of their compensation to the Plan through payroll deductions. Company matching contributions, if any, are determined by the Company at its sole discretion. To date, there have been no Company contributions under the Plan. 9. COLLABORATIVE AGREEMENTS The Company entered into the following collaborative agreements in 1996: Ultra-High-Throughput Screening System and Screen Development Agreements The Company entered into collaborative agreements ("the Agreements") in November and December 1996 with Bristol-Myers Squibb Pharmaceutical Research Institute and Eli Lilly and Company, respectively (collectively, "the Collaborators"), regarding the development and installation of the Company's UHTS system at each of the Collaborators. Under the terms of the Agreements, the Company is required to develop and separately install three components to be integrated into one complete UHTS system. In return, the Collaborators are obligated to make certain payments to the Company in the form of non-refundable up-front fees, delivery or installation payments and ongoing research and co-development funding. The Company is obligated to provide service and support for the installed UHTS systems for a limited period of time. The Company and the Collaborators will also co-develop high throughput screening assays for use by the Collaborators. In addition to certain payments to be made by the Collaborators for the use of these assays and assay technologies, the Collaborators will also make certain milestone and royalty payments to the Company if the Collaborators develop and commercialize any compound identified using a screen based on the Company's fluorescent assay technologies. The Collaborators may terminate the agreement at any time without cause upon written notice, provided that certain withdrawal payments are made. The Agreements also provide for penalties payable by the Company if it fails to deliver the completed UHTS system by a specified time. F-14 78 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) Screen Development and Specialized Instrumentation Agreement In December 1996, the Company and Roche Bioscience ("Roche") entered into a Collaborative Research and License Agreement ("Roche Agreement") regarding the development and delivery of a certain screening instrument by the Company. Roche is obligated to make certain payments to the Company in the form of non-refundable up-front fees and delivery payments. For a limited period of time specified in the agreement, the Company is obligated to provide service and support for any instrument delivered to Roche. The Company and Roche will also co-develop a screening assay for use with a target identified in the Roche Agreement. In connection with such development, Roche is obligated to make certain payments to the Company in the form of non-refundable up-front fees and ongoing research and co-development funding. Screen Development Agreement, Functional Genomics, and Screening Services Agreement In April 1996, the Company and Sequana Therapeutics, Inc. ("Sequana") entered into a Research Agreement (the "Sequana Agreement") regarding the screening of certain targets to be selected by Sequana. Under the terms of the Sequana Agreement, Sequana may require the Company to provide functional analysis, assay development and screening for such targets, and Sequana would then be obligated to make certain payments to the Company in the form of non-refundable up-front fees, delivery payments and ongoing research funding. Sequana will also be obligated to make certain milestone and royalty payments to the Company if any pharmaceutical product is developed and commercialized as a result of work performed by the Company pursuant to the agreement. Concurrent with the execution of the agreement, Sequana purchased $1.5 million of the Company's Series C preferred stock (Note 10). Screening Services Agreements The Company has entered into collaborative agreements with ArQule, Inc. and Alanex Corporation to screen compounds provided by these companies. Should the Company detect activity in one or more of the compounds, the Company and the collaborative partner under certain conditions may enter into negotiations to establish a research collaboration agreement. Strategic Technology Alliances The Company has entered into strategic technology alliances with Packard Instrument Company ("Packard"), Carl Creative Systems, Inc. and Universal Technologies, Inc. to design, develop and implement certain instrumentation, storage and retrieval systems and microfluidics. The alliances require the Company to make certain payments for development work performed by these companies (Note 5). Pursuant to the agreement with Packard, Aurora receives certain payments for development work it performs and Packard receives certain sublicense rights. In addition, Packard purchased $1 million of the Company's Series B preferred stock in May 1996 in connection with the collaboration. 10. RELATED PARTY TRANSACTIONS During the period from May 8, 1995 (inception) to December 31, 1995 and the year ended December 31, 1996, one of the Company's founding stockholders and an affiliated venture fund F-15 79 AURORA BIOSCIENCES CORPORATION NOTES TO FINANCIAL STATEMENTS (CONTINUED) loaned the Company $475,000 and $449,997, respectively. The notes were converted into 556,389 shares of Series A preferred stock in March 1996. The general partner of the venture funds which made these loans was the Company's Chairman of the Board and Acting Chief Executive Officer at the time of these transactions. This individual and stockholder continues to serve on the Company's Board of Directors and is also the President, Chief Executive Officer and member of the Board of Directors of Sequana, a company which is both a stockholder of and a party to a collaboration agreement with Aurora (see Note 9). 11. SUBSEQUENT EVENTS Screen Development and Screening Services Agreement In February 1997, the Company and Allelix Biopharmaceuticals, Inc. ("Allelix") entered into a collaborative agreement (the "Allelix Agreement") regarding the development over a three-year period of screening assays for use with targets identified by Allelix and agreed to by Aurora. Under the terms of the Allelix Agreement, the Company is required to develop such screening assays and to perform screening services, and Allelix is obligated to make certain payments to the Company in the form of up-front fees, development payments and fees for screening services. Allelix is also required to make certain milestone and royalty payments to Aurora in the event of development and commercialization of a compound identified using a screen based on Aurora's fluorescent assay technologies. Stockholders' Equity In February 1997, the Board of Directors (i) authorized an increase in the number of shares of common stock reserved for issuance under the Company's 1996 Stock Plan to 2,000,000 shares, (ii) adopted an Employee Stock Purchase Plan which reserves 400,000 shares of common stock for issuance thereunder, and (iii) adopted its Non-Employee Directors' Stock Option Plan which reserves 240,000 shares of common stock for issuance thereunder. Such actions are subject to stockholder approval. In February 1997, the Board of Directors also authorized management of the Company to file a registration statement with the Securities and Exchange Commission permitting the Company to sell shares of its common stock to the public. If the initial public offering is consummated under the terms presently anticipated, all of the preferred stock outstanding at December 31, 1996 will automatically convert into 9,915,977 shares of common stock. Unaudited pro forma stockholders' equity, as adjusted for the assumed conversion of the preferred stock, is set forth on the accompanying balance sheet. From January 1, 1997 through March 6, 1997, the Company issued 106,272 shares of common stock at prices ranging from $.38 to $1.50 per share and granted stock options to purchase 573,720 shares of common stock at exercise prices ranging from $.38 to $3.00 per share. The Company will record approximately $3.2 million of additional deferred compensation related to these issuances. In March 1997, the Board of Directors approved a four-for-five reverse split of the Company's outstanding common stock and amended the post-split number of authorized shares of preferred stock to 7,500,000. All share and per share amounts, including those relating to preferred stock, in the accompanying financial statements have been retroactively restated to reflect the reverse stock split. F-16 80 AURORA BIOSCIENCES CORPORATION [COMPANY LOGO] SELECTED FEATURES OF AURORA'S INTEGRATED TECHNOLOGY PLATFORM FLUORESCENT ASSAY TECHNOLOGIES POTENTIAL BENEFITS - Applicable to most targets - Cell-based and biochemical assays - Faster assay development - Functional genomics in mammalian cells - Miniaturized assays GREEN FLUORESCENT PROTEIN (GFP) COMPUTER MODEL OF THREE DIMENSIONAL STRUCTURE [DEPICTED IS A COMPUTER MODEL OF THE THREE DIMENSIONAL STRUCTURE OF GFP] BETA-LACTAMASE CELL-BASED ASSAY GREEN TO BLUE CHANGE IDENTIFIES HIT COMPOUND [DEPICTED ARE PHOTOGRAPHS OF CELLS UNDERGOING A GREEN TO BLUE COLOR CHANGE] MINIATURIZATION TECHNOLOGIES - Photograph of drops, one billionth of a liter, being dispensed through the eye of a needle (Right) - Assays in volumes of one millionth of a liter, in each well of the 3,456 well NanoPlate(TM) (Far Right) MICROFLUIDICS NANOPLATE(TM) [DEPICTED IS A PHOTOGRAPH OF FLUID DROPLETS PASSING THROUGH THE EYE OF A NEEDLE, AND A NANOPLATE(TM)] ADVANCED AUTOMATION - Automated store designed to hold in excess of 1,000,000 compounds - Expected throughput in excess of 100,000 compounds per day AUTOMATED STORAGE AND RETRIEVAL SYSTEM [DEPICTED IS AURORA'S AUTOMATED STORAGE AND RETRIEVAL SYSTEM] 81 ====================================================== NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSON OR BY ANYONE IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF. ------------------------ TABLE OF CONTENTS
PAGE ---- Prospectus Summary.................... 3 Risk Factors.......................... 6 Use of Proceeds....................... 15 Dividend Policy....................... 15 Capitalization........................ 16 Dilution.............................. 17 Selected Financial Data............... 18 Management's Discussion and Analysis of Financial Condition and Results of Operations....................... 19 Business.............................. 22 Management............................ 45 Certain Transactions.................. 53 Principal Stockholders................ 55 Description of Capital Stock.......... 56 Shares Eligible for Future Sale....... 58 Underwriting.......................... 60 Legal Matters......................... 61 Experts............................... 62 Additional Information................ 62 Index to Financial Statements......... F-1
------------------------ UNTIL , 1997 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS EFFECTING TRANSACTIONS IN THE COMMON STOCK OFFERED HEREBY, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. ====================================================== ====================================================== 3,000,000 SHARES (AURORA LOGO) COMMON STOCK ------------------- PROSPECTUS ------------------- ALEX. BROWN & SONS INCORPORATED HAMBRECHT & QUIST ROBERTSON, STEPHENS & COMPANY April , 1997 ====================================================== 82 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth all expenses payable by the Registrant in connection with the sale of the Common Stock being registered. All the amounts shown are estimates except for the SEC registration fee and the NASD filing fee. SEC Registration fee............................................. $ 11,500 NASD filing fee.................................................. 4,300 Nasdaq Stock Market Listing Application fee...................... 50,000 Blue sky qualification fees and expenses......................... 10,000 Printing and engraving expenses.................................. 150,000 Legal fees and expenses.......................................... 250,000 Accounting fees and expenses..................................... 100,000 Transfer agent and registrar fees................................ 10,000 Miscellaneous.................................................... 14,200 -------- Total.................................................. $600,000 =========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Section 145 of the Delaware General Corporation Law, the Registrant has broad powers to indemnify its Directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. The Registrant's Restated Certificate of Incorporation and Amended and Restated Bylaws include provisions to (i) eliminate the personal liability of its directors for monetary damages resulting from breaches of their fiduciary duty to the extent permitted by Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware Law") and (ii) require the Registrant to indemnify its Directors and officers to the fullest extent permitted by Section 145 of the Delaware Law, including circumstances in which indemnification is otherwise discretionary. Pursuant to Section 145 of the Delaware Law, a corporation generally has the power to indemnify its present and former directors, officers, employees and agents against expenses incurred by them in connection with any suit to which they are or are threatened to be made, a party by reason of their serving in such positions so long as they acted in good faith and in a manner they reasonably believed to be in or not opposed to, the best interests of the corporation and with respect to any criminal action, they had no reasonable cause to believe their conduct was unlawful. The Registrant believes that these provisions are necessary to attract and retain qualified persons as Directors and officers. These provisions do not eliminate the Directors' duty of care, and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware Law. In addition, each Director will continue to be subject to liability for breach of the Director's duty of loyalty to the Registrant, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for acts or omissions that the Director believes to be contrary to the best interests of the Registrant or its stockholders, for any transaction from which the Director derived an improper personal benefit, for acts or omissions involving a reckless disregard for the Director's duty to the Registrant or its stockholders when the Director was aware or should have been aware of a risk of serious injury to the Registrant or its stockholders, for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the Director's duty to the Registrant or its stockholders, for improper transactions between the Director and the Registrant and for improper distributions to stockholders and loans to Directors and officers. The provision also does not affect a Director's responsibilities under any other law, such as the federal securities law or state or federal environmental laws. II-1 83 The Registrant has entered into indemnity agreements with each of its Directors and executive officers that require the Registrant to indemnify such persons against expenses, judgments, fines, settlements and other amounts incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a Director or an executive officer of the Registrant or any of its affiliated enterprises, provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. The Registrant has entered into similar indemnity agreements with certain of its key employees. At present, there is no pending litigation or proceeding involving a Director, officer or key employee of the Registrant as to which indemnification is being sought nor is the Registrant aware of any threatened litigation that may result in claims for indemnification by any officer or Director. The Registrant has an insurance policy covering the officers and Directors of the Registrant with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES. Since its inception in May 1995, the Registrant has sold and issued the following unregistered securities: (a) From May 1995 to March 1996, Avalon Medical Partners, L.P. ("AMP") and Avalon Bioventures II L.P. ("ABV") loaned the Registrant an aggregate of $425,000 and $500,000, respectively, pursuant to Convertible Promissory Notes issued by the Registrant to AMP and ABV. Such Convertible Promissory Notes were canceled, and the interest thereon forgiven, in connection with the sale and issuance of shares of Series A Preferred Stock to AMP and ABV in March 1996. The Registrant issued such Convertible Promissory Notes in reliance on the exemption provided by Section 4(2) of the Act. (b) In connection with its reincorporation in Delaware in January 1996, the Registrant issued 100 shares of Common Stock to AMP. The Registrant issued such shares in reliance on the exemption provided by Section 4(2) of the Act. (c) Subsequent to its reincorporation in Delaware and on various dates through February 28, 1997, the Registrant sold an aggregate of 2,744,535 shares of its Common Stock to 56 directors, officers, employees and consultants pursuant to restricted stock purchase agreements. The purchase price for such sales ranged from $.00125 to $1.50 per share. The Registrant issued such shares of Common Stock in reliance upon the exemption provided by Rule 701 under the Act. (d) Subsequent to its reincorporation in Delaware and on various dates through February 28, 1997, the Registrant issued incentive and nonstatutory stock options to purchase an aggregate of 452,920 shares of Common Stock to 55 directors, officers, employees and consultants. The exercise price for such options ranges from $.0875 to $1.50 per share. The Registrant issued such options in reliance upon the exemption provided by Rule 701 under the Act. (e) On March 8, 1996, the Registrant sold 8,191,282 shares of Series A Preferred Stock at a price of $1.6625 per share. On April 2, 1996, the Registrant sold 600,000 shares of Series C Preferred Stock at a price of $2.50 per share. On May 6, 1996, the Registrant sold 666,665 shares of Series B Preferred Stock at a price of $2.25 per share. Upon the closing of this offering, the shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock will automatically convert into 8,191,282, 600,000 and 666,665 shares of Common Stock, respectively. The Registrant issued such shares of Preferred Stock in reliance upon the exemption provided by Rule 506 promulgated under Regulation D under the Act. II-2 84 (f) On August 13, 1996, the Registrant issued 28,000 shares of Common Stock, valued at $3,500.00, to California Institute of Technology in connection with the execution of a license agreement. The Registrant issued such shares of Common Stock in reliance upon the exemption provided by Section 4(2) under the Act. (g) On December 20, 1996, the Registrant issued 160,000 shares of Common Stock, valued at $60,000.00, to SIBIA Neurosciences, Inc. in connection with the execution of a license agreement. The Registrant issued such shares of Common Stock in reliance upon the exemption provided by Section 4(2) under the Act. (h) On December 27, 1996, the Registrant sold 458,028 shares of Series D Preferred Stock at a price of $4.50 per share. Upon the closing of this offering, the shares of Series D Preferred Stock will automatically convert into 458,028 shares of Common Stock. The Registrant issued such shares of Preferred Stock in reliance upon the exemption provided by Rule 506 promulgated under Regulation D under the Act. The recipients of the above-described securities represented their intention to acquire the securities for investment only and not with a view to distribution thereof. Appropriate legends were affixed to the stock certificates issued in such transactions. All recipients had adequate access, through employment or other relationships, to information about the Registrant. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (A) EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT ------ ------------------------------------------------------------------------- 1.1+ Form of Underwriting Agreement. 3.1 Restated Certificate of Incorporation. 3.2 Amended and Restated Bylaws. 3.3 Form of Certificate of Amendment of Restated Certificate of Incorporation, to be filed and become effective prior to the effectiveness of this Registration Statement. 3.4 Form of Restated Certificate of Incorporation, to be filed and become effective upon completion of the offering. 3.5 Form of Restated Bylaws to become effective upon completion of the offering. 4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5. 4.2+ Form of Common Stock Certificate. 4.3 Amended and Restated Investors' Rights Agreement dated as of December 27, 1996 between the Registrant and the individuals and entities listed in the signature pages thereto. 5.1 Opinion of Cooley Godward LLP. 10.1 Form of Indemnity Agreement entered into between Registrant and its directors and officers. 10.2 Registrant's 1996 Stock Plan, as amended and restated (the "1996 Stock Plan"). 10.3 Form of Incentive Stock Option Agreement under the 1996 Stock Plan. 10.4 Form of Nonstatutory Stock Option Agreement under the 1996 Stock Plan. 10.5 Form of Restricted Stock Purchase Agreement under the 1996 Stock Plan. 10.6 Registrant's Employee Stock Purchase Plan and related offering document. 10.7 Registrant's Non-Employee Directors' Stock Option Plan. 10.8 Form of Nonstatutory Stock Option under Registrant's Non-Employee Directors' Stock Option Plan. 10.9 Employment Agreement dated January 23, 1996 between the Registrant and Timothy J. Rink, as subsequently amended on March 8, 1996.
II-3 85
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT ------ ------------------------------------------------------------------------- 10.10 Employment Agreement dated August 6, 1996 between the Registrant and J. Gordon Foulkes. 10.11 Preferred Stock Purchase Agreement dated as of March 8, 1996 between the Registrant and the individuals and entities listed in the signature pages thereto. 10.12 Series D Preferred Stock Purchase Agreement dated as of December 27, 1996 between the Registrant and the individual and entities listed in the signature pages thereto. 10.13 SubLease dated May 29, 1996 between the Registrant and Torrey Pines Science Center Limited Partnership, as subsequently amended on August 31, 1996. 10.14 Master Lease Agreement dated May 17, 1996 between the Registrant and Lease Management Services Incorporated. 10.15 Equipment Financing Agreement dated May 17, 1996 between the Registrant and Lease Management Services Incorporated. 10.16 Security Deposit Pledge Agreement dated May 17, 1996 between the Registrant and Lease Management Services Incorporated. 10.17* Exclusive License Agreement for Fluorescent Assay Technologies dated June 17, 1996 between the Registrant and The Regents of the University of California. 10.18* License Agreement dated August 2, 1996 between the Registrant and California Institute of Technology. 10.19* License Agreement dated October 4, 1996 between the Registrant and the State of Oregon, acting by and through the State Board of Higher Education on behalf of the University of Oregon. 10.20* Research Agreement dated April 2, 1996 between the Registrant and Sequana Therapeutics, Inc. 10.21* Collaboration and License Agreement effective as of April 24, 1996 between the Registrant and Packard Instrument Company, Inc. 10.22* Collaborative Research and License Agreement dated November 26, 1996 between the Registrant and Bristol-Myers Squibb Pharmaceutical Research Institute. 10.23* Collaborative Research and License Agreement dated December 18, 1996 between the Registrant and Eli Lilly and Company. 10.24* Collaboration Agreement effective as of February 1, 1997 between the Registrant and Allelix Biopharmaceuticals Inc. 11.1 Computation of Net Loss per Share. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. 23.3 Consent of Fish & Richardson P.C. 24.1 Power of Attorney. Reference is made to page II-5.
- --------------- * Confidential Treatment has been requested with respect to certain portions of this exhibit. Omitted portions will be filed separately with the Securities and Exchange Commission. + To be filed by amendment. (B) SCHEDULES. All schedules are omitted because they are not required, are not applicable or the information is included in the consolidated financial statements or notes thereto. II-4 86 ITEM 17. UNDERTAKINGS. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to provisions described in Item 15 or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes: (1) That, for purposes of determining any liability under the Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (2) That, for purposes of determining any liability under the Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (3) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-5 87 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-1 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, County of San Diego, State of California, on the 14th day of March, 1997. By: /s/ TIMOTHY J. RINK ------------------------------------ Timothy J. Rink President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Timothy J. Rink, J. Gordon Foulkes and Paul A. Grayson and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act of 1933, as amended, which relates to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - --------------------------------------------- ----------------------------- ---------------- /s/ TIMOTHY J. RINK Chairman of the Board, March 14, 1997 - --------------------------------------------- President and Chief Executive Timothy J. Rink, M.A., M.D., Sc.D. Officer (Principal Executive Officer) /s/ DEBORAH J. TOWER Senior Director of Finance March 14, 1997 - --------------------------------------------- and Administration Deborah J. Tower (Principal Financial and Accounting Officer) /s/ J. GORDON FOULKES Director March 14, 1997 - --------------------------------------------- J. Gordon Foulkes, Ph.D. /s/ JAMES C. BLAIR Director March 14, 1997 - --------------------------------------------- James C. Blair, Ph.D. /s/ KEVIN J. KINSELLA Director March 14, 1997 - --------------------------------------------- Kevin J. Kinsella /s/ HUGH Y. RIENHOFF, JR. Director March 14, 1997 - --------------------------------------------- Hugh Y. Rienhoff, Jr., M.D. /s/ LUBERT STRYER, M.D. Director March 14, 1997 - --------------------------------------------- Lubert Stryer /s/ TIMOTHY J. WOLLAEGER Director March 14, 1997 - --------------------------------------------- Timothy J. Wollaeger
II-6 88 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT PAGE - ------ ----------------------------------------------------------------------------- ---- 1.1+ Form of Underwriting Agreement. ............................................. 3.1 Restated Certificate of Incorporation. ...................................... 3.2 Amended and Restated Bylaws. ................................................ 3.3 Form of Certificate of Amendment of Restated Certificate of Incorporation, to be filed and become effective prior to the effectiveness of this Registration Statement. .................................................................. 3.4 Form of Restated Certificate of Incorporation, to be filed and become effective upon completion of the offering. .................................. 3.5 Form of Restated Bylaws to become effective upon completion of the offering. ................................................................... 4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5. ................... 4.2+ Form of Common Stock Certificate. ........................................... 4.3 Amended and Restated Investors' Rights Agreement dated as of December 27, 1996 between the Registrant and the individuals and entities listed in the signature pages thereto. .................................................... 5.1 Opinion of Cooley Godward LLP. .............................................. 10.1 Form of Indemnity Agreement entered into between Registrant and its directors and officers. ............................................................... 10.2 Registrant's 1996 Stock Plan, as amended and restated (the "1996 Stock Plan"). ..................................................................... 10.3 Form of Incentive Stock Option Agreement under the 1996 Stock Plan. ......... 10.4 Form of Nonstatutory Stock Option Agreement under the 1996 Stock Plan. ...... 10.5 Form of Restricted Stock Purchase Agreement under the 1996 Stock Plan. ...... 10.6 Registrant's Employee Stock Purchase Plan and related offering document. .... 10.7 Registrant's Non-Employee Directors' Stock Option Plan. ..................... 10.8 Form of Nonstatutory Stock Option under Registrant's Non-Employee Directors' Stock Option Plan. .......................................................... 10.9 Employment Agreement dated January 23, 1996 between the Registrant and Timothy J. Rink, as subsequently amended on March 8, 1996. .................. 10.10 Employment Agreement dated August 6, 1996 between the Registrant and J. Gordon Foulkes. ............................................................. 10.11 Preferred Stock Purchase Agreement dated as of March 8, 1996 between the Registrant and the individuals and entities listed in the signature pages thereto. .................................................................... 10.12 Series D Preferred Stock Purchase Agreement dated as of December 27, 1996 between the Registrant and the individual and entities listed in the signature pages thereto. .................................................... 10.13 SubLease dated May 29, 1996 between the Registrant and Torrey Pines Science Center Limited Partnership, as subsequently amended on August 31, 1996. ..... 10.14 Master Lease Agreement dated May 17, 1996 between the Registrant and Lease Management Services Incorporated. ........................................... 10.15 Equipment Financing Agreement dated May 17, 1996 between the Registrant and Lease Management Services Incorporated. ..................................... 10.16 Security Deposit Pledge Agreement dated May 17, 1996 between the Registrant and Lease Management Services Incorporated. .................................
89
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT PAGE - ------ ----------------------------------------------------------------------------- ---- 10.17* Exclusive License Agreement for Fluorescent Assay Technologies dated June 17, 1996 between the Registrant and The Regents of the University of California. ................................................................. 10.18* License Agreement dated August 2, 1996 between the Registrant and California Institute of Technology. .................................................... 10.19* License Agreement dated October 4, 1996 between the Registrant and the State of Oregon, acting by and through the State Board of Higher Education on behalf of the University of Oregon. ......................................... 10.20* Research Agreement dated April 2, 1996 between the Registrant and Sequana Therapeutics, Inc. .......................................................... 10.21* Collaboration and License Agreement effective as of April 24, 1996 between the Registrant and Packard Instrument Company, Inc. ......................... 10.22* Collaborative Research and License Agreement dated November 26, 1996 between the Registrant and Bristol-Myers Squibb Pharmaceutical Research Institute. .................................................................. 10.23* Collaborative Research and License Agreement dated December 18, 1996 between the Registrant and Eli Lilly and Company. ................................... 10.24* Collaboration Agreement effective as of February 1, 1997 between the Registrant and Allelix Biopharmaceuticals Inc. .............................. 11.1 Computation of Net Loss per Share. .......................................... 23.1 Consent of Ernst & Young LLP, Independent Auditors. ......................... 23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. ............ 23.3 Consent of Fish & Richardson P.C. ........................................... 24.1 Power of Attorney. Reference is made to page II-5. ..........................
- --------------- * Confidential Treatment has been requested with respect to certain portions of this exhibit. Omitted portions will be filed separately with the Securities and Exchange Commission. + To be filed by amendment. EX-3.1 2 EXHIBIT 3.1 1 EXHIBIT 3.1 RESTATED CERTIFICATE OF INCORPORATION OF AURORA BIOSCIENCES CORPORATION AURORA BIOSCIENCES CORPORATION, a corporation organized and existing under the laws of the state of Delaware, hereby certifies as follows: FIRST. The name of the corporation is Aurora Biosciences Corporation. SECOND. The date of the filing of the corporation's original Certificate of Incorporation with the Secretary of State of Delaware was January 22, 1996. THIRD. This Restated Certificate of Incorporation was duly adopted by the corporation in accordance with Section 245 of the General Corporation Law of the State of Delaware. FOURTH. The Certificate of Incorporation of the corporation shall be amended and restated to read in full as follows. I. The name of this corporation is AURORA BIOSCIENCES CORPORATION. 2 II. The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 30 Old Rudnick Lane, City of Dover, County of Kent; and the name of the registered agent of the corporation in the State of Delaware at such address is CorpAmerica Inc. III. The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law. IV. A. CLASSES OF STOCK. This corporation is authorized to issue two classes of stock to be designated, respectively, "COMMON STOCK" and "PREFERRED STOCK." The total number of shares which the corporation is authorized to issue is seventy-five million (75,000,000) shares. Fifty million (50,000,000) shares shall be Common Stock, each having a par value of one-tenth of one cent ($0.001). Twenty-five million (25,000,000) shares shall be Preferred Stock, each having a par value of one-tenth of one cent ($0.001). Notwithstanding Section 242 of the General Corporation Law of the State of Delaware, the number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of holders of a majority of the outstanding shares of capital stock of the corporation, with each such share being entitled to such number of votes per share as is provided in this Article IV. The Preferred Stock may be issued from time to time in one or more series. Subject to compliance with applicable voting rights, if any, which may have been granted to the 2 3 Preferred Stock or any series thereof, the Board of Directors is hereby authorized, by filing a certificate pursuant to the Delaware General Corporation Law, to fix or alter from time to time the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof, including without limitation the dividend rights, dividend rate, conversion rights, voting rights and the liquidation preferences of any wholly unissued series of Preferred Stock, and to establish from time to time the number of shares constituting any such series and the designation thereof, or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. Of the Preferred Stock, ten million five hundred thousand (10,500,000) shares shall be designated "SERIES A PREFERRED STOCK," eight hundred thirty-three thousand three hundred thirty-two (833,332) shares shall be designated "SERIES B PREFERRED STOCK", eight hundred thousand (800,000) shares shall be designated "SERIES C PREFERRED STOCK" and five hundred seventy-two thousand five hundred thirty-six (572,536) shares shall be DESIGNATED "SERIES D PREFERRED STOCK." The Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock is hereinafter sometimes collectively referred to as the "DESIGNATED PREFERRED." 3 4 B. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF THE SERIES A, SERIES B, SERIES C AND SERIES D PREFERRED STOCK. SECTION 1. DIVIDENDS. The holders of the Designated Preferred shall be entitled to receive dividends at the rate per annum of $0.1064 per share of Series A Preferred Stock, $0.1440 per share of Series B Preferred Stock, $0.1600 per share of Series C Preferred Stock and $0.288 per share of Series D Preferred Stock, when, as and if declared by the Board of Directors out of any funds legally available therefor, prior and in preference to any declaration or payment of any dividend on the Common Stock of this corporation ("COMMON") payable other than in Common. Such dividends shall not be cumulative. Such dividends shall be distributed ratably among the holders of each Series of Designated Preferred based on the full dividend to which such holder is entitled. No dividends or other distributions shall be made with respect to the Common in any year, other than dividends payable solely in Common, unless and until (i) the full amount of the dividend provided for above with respect to the Designated Preferred for such year has been paid or declared and set apart for payment, and (ii) an equal dividend per share shall have been paid or declared and set apart for payment to the holders of the Designated Preferred (in addition to the dividend provided for above) for each share of Common which the holders of the Designated Preferred then have the right to acquire upon conversion of their respective shares under this Certificate. SECTION 2. LIQUIDATION PREFERENCE. A. In the event of any liquidation, dissolution or winding up of the corporation, either voluntary or involuntary, the holders of the Designated Preferred shall be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the corporation to the holders of the Common by reason of their ownership thereof: 4 5 (i) the sum of $1.33 per share of Series A Preferred Stock, $1.80 per share of Series B Preferred Stock, $2.00 per share of Series C Preferred Stock and $3.60 per share of Series D Preferred Stock then held by them (such amounts per share with respect to each such Series are hereinafter referred to as the "Original Issue Price"), and (ii) an amount equal to all declared but unpaid dividends on the Designated Preferred then held by them. If, upon the occurrence of such event, the assets and funds thus distributed among the holders of the Designated Preferred shall be insufficient to permit the payment to such holders of the full aforesaid preferential amount, then the entire assets and funds of the corporation legally available for distribution shall be distributed ratably among the holders of the Designated Preferred in proportion to the preferential amount each such holder would have been entitled to receive pursuant to this Section 2a. if such distribution had been sufficient to permit the full payment of such preferential amount. b. Upon the completion of the distribution provided for in Section 2a., all of the assets remaining in the corporation, if any, shall be distributed pro rata among the holders of the Common, based upon the number of shares of Common held by each such holder. c. For purposes of this Section 2, a merger or consolidation of this corporation with or into any other corporation or corporations where the stockholders of this corporation immediately prior to such merger or consolidation do not beneficially own more than 50% of the outstanding voting stock of the surviving entity immediately following such merger or consolidation and in which the stockholders of this corporation receive distributions in cash or in securities of another corporation as a result of such merger or consolidation, or a sale or other disposition of all or substantially all of the assets of the corporation, shall be treated as a liquidation, dissolution or winding up of the corporation. 5 6 SECTION 3. CONVERSION. The holders of the Designated Preferred shall have conversion rights as follows (the "CONVERSION RIGHTS"): a. OPTIONAL CONVERSION. Each share of Designated Preferred shall be convertible at the option of the holder thereof, without payment of additional consideration, at any time, at the office of the corporation or any transfer agent for the Designated Preferred, into one share of Common, subject to adjustment as provided in Sections 3.d. and 3.e. below. b. AUTOMATIC CONVERSION. Each share of Designated Preferred shall automatically be converted into the number of shares of Common into which such share of Designated Preferred is then convertible pursuant to Section 3a (i) in the event that the holders of not less than sixty-seven percent (67%) of the outstanding Designated Preferred consent to such conversion, or (ii) upon the closing of a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "ACT"), covering the offer and sale by the corporation of Common to the public at an aggregate offering price of not less than $10,000,000 (prior to underwriters' discounts and expenses), and at a public offering price not less than $6.00 per share, subject to adjustment for stock splits, stock dividends, reorganizations and the like with respect to the Common. c. MECHANICS OF CONVERSION. (1) No fractional shares of Common shall be issued upon conversion of the Designated Preferred. In lieu of any fractional share, the corporation shall pay cash equal to such fraction multiplied by the then current fair market value of a share of Common as determined in good faith by the Board of Directors of the corporation. Before any 6 7 holder of Designated Preferred shall be entitled to convert the same into shares of Common, it shall surrender the certificate or certificates therefor, duly endorsed, at the office of the corporation or of any transfer agent for the Designated Preferred, and shall give written notice to the corporation at such office that it elects to convert the same (except that no such written notice of election to convert shall be necessary in the event of an automatic conversion pursuant to Section 3b.). The corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Designation Preferred a certificate or certificates, registered in such names as specified by the holder, for the number of shares of Common to which such holder shall be entitled as aforesaid, and a check payable to the holder in the amount of any amounts payable for fractional shares and any declared and unpaid dividends on the converted Designated Preferred. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of the Designated Preferred to be converted, and the person or persons entitled to receive the shares of Common issuable upon such 7 8 conversion shall be treated for all purposes as the record holder or holders of such shares of Common on such date (except that in the event of an automatic conversion pursuant to Section 3b.(i), such conversion shall be deemed to have been made at the close of business on the date fixed in the vote approving such automatic conversion and in the event of automatic conversion pursuant to Section 3b.(ii), such conversion shall be deemed to have been made immediately prior to the closing of the offering referred to in Section 3b.(ii)). If the conversion is in connection with an underwritten offer of securities registered pursuant to the Act, the conversion may, at the option of any holder tendering Designated Preferred for conversion, be conditioned upon the closing with the underwriter of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common issuable upon such conversion of Designated Preferred shall not be deemed to have converted such Designated Preferred until immediately prior to the closing of such sale of securities. If such conversion is in connection with a merger, consolidation or sale of assets which would be treated as a liquidation, dissolution or winding up of the corporation in accordance with and for purposes of Section 2, the conversion may, at the option of the holder tendering Designated Preferred for conversion, be conditioned upon the consummation of such transaction, in which event the person(s) entitled to receive the Common issuable upon such conversion of Designated Preferred shall not be deemed to have converted such Designated Preferred until immediately prior to the consummation of such transaction. d. ADJUSTMENTS FOR SUBDIVISIONS, DIVIDENDS, COMBINATIONS OR CONSOLIDATIONS OF COMMON. (1) In the event the outstanding shares of Common shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common, the number of shares of Common into which the Designated Preferred is convertible immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately decreased. (2) In the event the corporation shall declare or pay any dividend on the Common payable in Common or in the event the outstanding shares of Common shall be subdivided, by reclassification or otherwise than by payment of a dividend in Common, into a greater number of shares of Common, the number of shares of Common into which the Designated Preferred is convertible immediately prior to such dividend or subdivision shall be proportionately increased: 8 9 (a) in the case of any such dividend, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend, or (b) in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective. (3) If such record date shall have been fixed and such dividend shall not have been fully paid on the date fixed therefor, the adjustment previously made in accordance with this Subsection d. shall be canceled (to the extent such dividend was not paid) as of the close of business on the date so fixed, and thereafter the number of shares of Common into which the Designated Preferred is convertible shall be adjusted as of the time of actual payment of such dividend. e. ADJUSTMENTS FOR OTHER RECLASSIFICATIONS, DIVIDENDS AND DISTRIBUTIONS. If there occurs any capital reorganization or any reclassification of the capital stock of the corporation (other than any subdivision, dividend, combination, consolidation or other transaction provided for in Section 3d), each share of Designated Preferred shall thereafter be convertible into the same kind and amounts of securities or other assets, or both, that were issuable or distributable to the holders of shares of outstanding Common Stock of the corporation upon such reorganization or reclassification, in proportion to that number of shares of Common Stock into which such shares of Designated Preferred might have been converted immediately prior to such reorganization or reclassification; and in any such case, appropriate adjustments (as determined by the Board of Directors) shall be made in the application of the provisions herein 9 10 set forth with respect to the rights and interests thereafter of the holders of Designated Preferred to the end that the provisions of this Certificate shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other assets thereafter deliverable upon the conversion of the Designated Preferred. f. NO IMPAIRMENT. The Corporation will not, by amendment of its Certificate of Incorporation, by filing a Certificate of Designation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of Designated Preferred against impairment. g. CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each adjustment or readjustment, pursuant to this Section 3, of the number of shares of Common into which any shares of Designated Preferred are convertible, the corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of such shares of Designated Preferred a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The corporation shall, upon the written request at any time of any holder of Designated Preferred, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the number of shares of Common into which the Designated Preferred is then convertible, and (iii) the number of shares of Common and the 10 11 amount, if any, of other property which at the time would be received upon the conversion of Designated Preferred. h. NOTICES OF RECORD DATE. In the event that this Corporation shall propose at any time: (1) to declare any dividend or distribution upon the Common, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus; (2) to offer for subscription pro rata to the holders of any class or series of its stock any additional shares of stock of any class or series or other rights; (3) to effect any reclassification or recapitalization of its Common shares outstanding involving a change in the Common shares; or (4) to merge or consolidate with or into any other corporation, or sell, lease or convey all or substantially all its property or business, or to liquidate, dissolve or wind up; then, in connection with each such event, this corporation shall send to the holders of the Designated Preferred: (a) at least 10 days' prior written notice of the date on which a record shall be taken for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common shares shall be entitled thereto) or for determining rights to vote in respect of the matters referred to in (1) and (2) above; and (b) in the case of the matters referred to in (3) and (4) above, at least 10 days' prior written notice of the date when the same shall take place (and 11 12 specifying, if practicable, or estimating the date on which the holders of Common shares shall be entitled to exchange their Common shares for securities or other property deliverable upon the occurrence of such event). (c) Each such written notice shall be given by first class mail, postage prepaid, addressed to the holders of the Designated Preferred at the address for each such holder as shown on the books of this Corporation; provided that any such notice to an address outside the United States shall be given by facsimile and confirmed in writing contemporaneously sent by two-day guaranteed international courier. i. COMMON STOCK RESERVED. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of Designated Preferred, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Designated Preferred, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then-outstanding shares of Designated Preferred, the Corporation shall take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. j. ISSUE TAX. The issuance of certificates for shares of Common upon conversion of Designated Preferred shall be made without charge to the holders thereof for any issuance tax in respect thereof, provided that the corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any 12 13 certificate in a name other than that of the holder of the Designated Preferred which is being converted. k. CLOSING OF BOOKS. The corporation will at no time close its transfer books against the transfer of any Designated Preferred or of any shares of Common issued or issuable upon the conversion of any shares of Designated Preferred in any manner which interferes with the timely conversion of such Designated Preferred, except as may otherwise be required to comply with applicable securities laws. SECTION 4. VOTING RIGHTS. a. GENERAL. Except as otherwise required by law or this Certificate of Incorporation, (i) each share of Common issued and outstanding shall have one vote; (ii) each share of Designated Preferred issued and outstanding shall have a number of votes equal to the number of Common shares (including fractions of a share) into which such share of Designated Preferred is then convertible as adjusted from time to time pursuant to Section 3 hereof; and (iii) the Common and the Designated Preferred and any other class and series of Stock of the corporation shall vote together as a single class. b. BOARD SIZE. The corporation shall not, without the written consent or affirmative vote of the holders of at least sixty-seven percent (67%) of the then outstanding shares of Designated Preferred, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, increase the maximum number of directors constituting the Board of Directors to a number of excess of nine (9). 13 14 c. BOARD SEATS. The holders of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (collectively, the "VOTING PREFERRED"), voting together as a separate class, shall be entitled to elect five (5) directors of the corporation. The holders of Common, voting as a separate class, shall be entitled to elect two (2) directors of the corporation. The holders of Series D Preferred Stock shall not be entitled to vote for the election of directors of the corporation. At any meeting (or in a written consent in lieu thereof) held for the purpose of electing directors, the presence in person or by proxy (or the written consent) of the holders of a majority of the shares of Voting Preferred then outstanding shall constitute a quorum of the Voting Preferred for the election of directors to be elected solely by the holders of the Voting Preferred. A vacancy in any directorship elected by the holders of the Voting Preferred shall be filled only by vote or written consent of the holders of the Voting Preferred and a vacancy in any directorship elected by the holders of Common shall be filled only by vote or written consent of the holders of Common. A director elected by the holders of Voting Preferred may be removed without cause only by vote of holders of a majority of the outstanding shares of Voting Preferred and a director elected by the holders of Common may be removed without cause only by vote of holders of a majority of the outstanding shares of Common. 14 15 SECTION 5. COVENANTS. a. In addition to any other rights provided by law, this corporation shall not, without first obtaining the affirmative vote or written consent of the holders of not less than sixty-seven percent (67%) of all outstanding shares of Designated Preferred, voting together as a class: (1) make any amendment to the corporation's Certificate of Incorporation or Bylaws that would materially and adversely alter or change the rights, preferences, or privileges of the outstanding Designated Preferred; (2) increase or decrease the authorized number of shares of Preferred Stock or any Series thereof; (3) create (by reclassification, Certificate of Designation or otherwise) any new class or series of shares of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with respect to voting rights, liquidation preferences, or dividends; increase the authorized amount of any class or series of shares of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with respect to voting rights, liquidation preferences or dividends; or create or authorize (by reclassification, Certificate of Designation or otherwise) any obligation or security convertible into shares of any class or series of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with respect to voting rights, liquidation preferences or dividends; or 15 16 (4) take any action that results in any liquidation, dissolution or winding up of the corporation or any merger, consolidation, or other corporate reorganization, or effect any transaction in which all or substantially all of the assets of the corporation are sold or otherwise disposed of. b. In addition to any other rights provided by law, this corporation shall not, without first obtaining the affirmative vote or written consent of the holders of a majority of the outstanding shares of a particular Series of Designated Preferred, take any action that would (i) materially and adversely alter or change the rights, preferences, or privileges of such Series in a manner different than the other Series, (ii) increase or decrease the authorized number of shares of such Series or (iii) amend the terms of another Series of Designated Preferred which, when established, was pari pasu with such Series with respect to voting rights, liquidation preferences or dividends, if such amendment results in the other Series having a preference over such Series with respect to voting rights, liquidation preferences or dividends.. SECTION 6. STATUS OF CONVERTED STOCK. In case any shares of Designated Preferred shall be converted pursuant to Section 3 hereof, the shares so converted shall resume the status of authorized but unissued and undesignated shares of Preferred Stock. SECTION 7. RESIDUAL RIGHTS. All rights accruing to the outstanding shares of this corporation not expressly provided for to the contrary herein shall be vested in the Common. 16 17 V. For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that: a. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. Subject to Section 4b of Article IV, the number of directors which shall constitute the whole Board of Directors shall be fixed by the Board of Directors in the manner provided in the Bylaws, provided that such number shall not be less than the number of directors provided for in Section 4 of Article IV. b. Subject to Section 5 of Article IV, the Board of Directors may from time to time make, amend, supplement or repeal the Bylaws; provided, however, that (subject to such Section 5) the stockholders may change or repeal any Bylaw adopted by the Board of Directors by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the corporation (considered for this purpose as one class); and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with any amendment or supplement thus adopted by the stockholders. c. The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. 17 18 d. Following the effectiveness of the registration of any class of securities of the corporation pursuant to the requirements of the Securities Exchange Act of 1934, as amended, no action shall be taken by the stockholders of the corporation except at an annual or special meeting of stockholders called in accordance with the Bylaws and no action shall be taken by the stockholders by written consent. e. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation. VI. A director of the corporation shall, to the full extent not prohibited by the Delaware General Corporation Law, as the same exists or may hereafter be amended, not be liable to the corporation or its stockholders for monetary damages for breach of his fiduciary duty as a director. VII. The corporation is to have perpetual existence. 18 19 VIII. Subject to the provisions of this Certificate of Incorporation, the corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this right. IN WITNESS WHEREOF,said Aurora Biosciences Corporation has caused this Certificate to be signed by its President and Chief Executive Officer, Timothy J. Rink, and attested to by its Secretary, Deborah J. Tower, this __th day of December, 1996. ------------------------------------ TIMOTHY J. RINK PRESIDENT AND CHIEF EXECUTIVE OFFICER ATTEST: - ------------------------------------ DEBORAH J. TOWER SECRETARY 19 EX-3.2 3 EXHIBIT 3.2 1 EXHIBITS 3.2 AMENDED AND RESTATED BYLAWS OF AURORA BIOSCIENCES CORPORATION (A DELAWARE CORPORATION) ARTICLE I OFFICES SECTION 1. REGISTERED OFFICE. The registered office of the corporation in the State of Delaware shall be in the City of Dover, County of Kent. SECTION 2. OTHER OFFICES. The corporation shall also have and maintain an office or principal place of business in San Diego, California, at such place as may be fixed by the Board of Directors, and may also have offices at such other places, both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II CORPORATE SEAL SECTION 3. CORPORATE SEAL. The corporate seal shall consist of a die bearing the name of the corporation and the inscription, "Corporate Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE III STOCKHOLDERS' MEETINGS SECTION 4. PLACE OF MEETINGS. Meetings of the stockholders of the corporation shall be held at such place, either within or without the State of Delaware, as may be designated from time to time by the Board of Directors, or, if not so designated, then at the office of the corporation required to be maintained pursuant to Section 2 hereof. 1. 2 SECTION 5. ANNUAL MEETING. (a) The annual meeting of the stockholders of the corporation, for the purpose of election of Directors and for such other business as may lawfully come before it, shall be held on such date and at such time as may be designated from time to time by the Board of Directors. (b) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be: (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of the date of the corporation's proxy statement released to stockholders in connection with the previous year's annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from the date contemplated at the time of the previous year's proxy statement, notice by the stockholder to be timely must be so received a reasonable time before the solicitation is made. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the stockholder, (iv) any material interest of the stockholder in such business and (v) any other information that is required to be provided by the stockholder pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, in his capacity as a proponent to a stockholder proposal. Notwithstanding the foregoing, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholder's meeting, stockholders must provide notice as required by the regulations promulgated under the Securities and Exchange Act of 1934, as amended. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (b). The chairman of the annual meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions of this paragraph (b), and, if he should so determine, he shall so declare at the meeting that any such business not properly brought before the meeting shall not be transacted. (c) Only persons who are nominated in accordance with the procedures set forth in this paragraph (c) shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any stockholder of the corporation entitled to vote in the 2. 3 election of Directors at the meeting who complies with the notice procedures set forth in this paragraph (c). Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation in accordance with the provisions of paragraph (b) of this Section 5. Such stockholder's notice shall set forth (i) as to each person, if any, whom the stockholder proposes to nominate for election or re-election as a Director: (a) the name, age, business address and residence address of such person, (b) the principal occupation or employment of such person, (c) the class and number of shares of the corporation which are beneficially owned by such person, (d) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, and (e) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including without limitation such person's written consent to being named in the proxy statement, if any, as a nominee and to serving as a Director if elected); and (ii) as to such stockholder giving notice, the information required to be provided pursuant to paragraph (b) of this Section 5. At the request of the Board of Directors, any person nominated by a stockholder for election as a Director shall furnish to the Secretary of the corporation that information required to be set forth in the stockholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the corporation unless nominated in accordance with the procedures set forth in this paragraph (c). The chairman of the meeting shall, if the facts warrant, determine and declare at the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws, and if he should so determine, he shall so declare at the meeting and the defective nomination shall be disregarded. SECTION 6. SPECIAL MEETINGS. (a) Special meetings of the stockholders of the corporation may be called, for any purpose or purposes, by (i) the Chairman of the Board, (ii) the President, (iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption)or (iv) by the holders of shares entitled to cast not less than ten percent (10%) of the votes at the meeting, and shall be held at such place, on such date, and at such time as they or he shall fix; provided, however, that following registration of any of the classes of equity securities of the corporation pursuant to the provisions of the Securities Exchange Act of 1934, as amended, special meetings of the stockholders may only be called by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized Directors. (b) If a special meeting is called by any person or persons other than the Board of Directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the Chairman of the Board, the 3. 4 President, any Vice President, or the Secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Section 7 of these Bylaws, that a meeting will be held not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after the receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph (b) shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held. SECTION 7. NOTICE OF MEETINGS. Except as otherwise provided by law or the Certificate of Incorporation, written notice of each meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, such notice to specify the place, date and hour and purpose or purposes of the meeting. Notice of the time, place and purpose of any meeting of stockholders may be waived in writing, signed by the person entitled to notice thereof, either before or after such meeting, and will be waived by any stockholder by his attendance thereat in person or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given. SECTION 8. QUORUM. At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of Incorporation, or by these Bylaws, the presence, in person or by proxy duly authorized, of the holders of a majority of the voting power of shares of stock entitled to vote shall constitute a quorum for the transaction of business. Any shares, the voting of which at said meeting has been enjoined, or which for any reason cannot be lawfully voted at such meeting, shall not be counted to determine a quorum at such meeting. In the absence of a quorum any meeting of stockholders may be adjourned, from time to time, either by the Chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, all action taken by the holders of a majority of the voting power represented at any meeting at which a quorum is present shall be valid and binding upon the corporation; provided, however, that Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of Directors. Where a separate vote by a class or classes is required, a majority of the voting power of shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority (plurality, in the case of the election of Directors) of the voting power of shares of such class or classes present in person or represented by proxy at the meeting 4. 5 shall be the act of such class, except where a greater vote is required by law or the Certificate of Incorporation. SECTION 9. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting of stockholders, whether annual or special, may be adjourned from time to time either by the Chairman of the meeting or by the vote of a majority of the shares represented thereat. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. SECTION 10. VOTING RIGHTS. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders, except as otherwise provided by law, only persons in whose names shares stand on the stock records of the corporation on the record date, as provided in Section 12 of these Bylaws, shall be entitled to vote at any meeting of stockholders. Except as may be otherwise provided in the Certificate of Incorporation or these Bylaws, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder. Every person entitled to vote or execute consents shall have the right to do so either in person or by an agent or agents authorized by a written proxy executed by such person or his duly authorized agent, which proxy shall be filed with the Secretary at or before the meeting at which it is to be used. An agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years from its date of creation unless the proxy provides for a longer period. All elections of Directors shall be by written ballot, unless otherwise provided in the Certificate of Incorporation. SECTION 11. BENEFICIAL OWNERS OF STOCK. (a) If shares or other securities having voting power stand of record in the names of two (2) or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (a) if only one (1) votes, his act binds all; (b) if more than one (1) votes, the act of the majority so voting binds all; (c) if more than one (1) votes, but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionally, or may apply to the Delaware Court of Chancery for relief as provided in the General Corporation Law of Delaware, Section 217(b). If the instrument filed with the Secretary shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of this subsection (c) shall be a majority or even-split in interest. 5. 6 (b) Persons holding stock in a fiduciary capacity shall be entitled to vote the shares so held. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the corporation he has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock and vote thereon. SECTION 12. LIST OF STOCKHOLDERS. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall be produced and kept at the time and place of meeting during the whole time thereof, and may be inspected by any stockholder who is present. SECTION 13. ACTION WITHOUT MEETING. (a) Any action required by statute to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. (b) Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the Corporation in the manner herein required, written consents signed by a sufficient number of stockholders to take action are delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (c) Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. If the action which is consented to is such as would have required the filing of a certificate under any section of the General corporation Law of Delaware if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written notice and written consent have been given as provided in Section 228 of the General Corporation Law of Delaware. 6. 7 (d) Not withstanding the foregoing, no such action by written consent may be taken following the effectiveness of the registration of any class of securities of the corporation under the Securities Exchange Act of 1934, as amended. SECTION 14. ORGANIZATION. (e) At every meeting of stockholders, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or is absent, the President, or, if the President is absent, the most senior Vice President present, or in the absence of any such officer, a chairman of the meeting chosen by a majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act as chairman. The Secretary, or, in his absence, an Assistant Secretary directed to do so by the President, shall act as secretary of the meeting. (f) The Board of Directors of the corporation shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and constituted proxies, and such other persons as the chairman shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. Unless, and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure. 7. 8 ARTICLE IV DIRECTORS SECTION 15. NUMBER AND TERM OF OFFICE. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. The number of authorized Directors may be modified from time to time by amendment of this Section 15 in accordance with the provisions of Section 44 hereof. Notwithstanding anything in the foregoing to the contrary, the number of directors shall not be less than the number provided for in the Certificate of Incorporation. Except as provided in Section 17, the Directors shall be elected by the stockholders at their annual meeting in each year and shall hold office until the next annual meeting and until their successors shall be duly elected and qualified. Directors need not be stockholders unless so required by the Certificate of Incorporation. If for any cause, the Directors shall not have been elected at an annual meeting, they may be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner provided in these Bylaws. No reduction of the authorized number of Directors shall have the effect of removing any Director before the Director's term of office expires, unless such removal is made pursuant to the provisions of Section 19 hereof. SECTION 16. POWERS. The powers of the corporation shall be exercised, its business conducted and its property controlled by the Board of Directors, except as may be otherwise provided by statute or by the Certificate of Incorporation. SECTION 17. VACANCIES. Unless otherwise provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office for the unexpired portion of the term of the Director whose place shall be vacant and until his successor shall have been duly elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under this Section 17 in the case of the death, removal or resignation of any Director, or if the stockholders fail at any meeting of stockholders at which Directors are to be elected (including any meeting referred to in Section 19 below) to elect the number of Directors then constituting the whole Board of Directors. SECTION 18. RESIGNATION. Any Director may resign at any time by delivering his written resignation to the Secretary, such resignation to specify whether it will be effective at a particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors. If no such specification is made, it shall be deemed effective at the pleasure of the Board of Directors. Except as otherwise provided in the Certificate of Incorporation with respect to the filling of vacancies on the Board, when one or more Directors shall resign from the Board of Directors, effective at a future date, a majority of the Directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Director so chosen shall hold 8. 9 office for the unexpired portion of the term of the Director whose place shall be vacated and until his successor shall have been duly elected and qualified. SECTION 19. REMOVAL. At a special meeting of stockholders called for the purpose in the manner hereinabove provided, subject to any limitations imposed by law or the Certificate of Incorporation, the Board of Directors, or any individual Director, may be removed from office, with or without cause, and a new Director or Directors elected by a vote of stockholders holding a majority of the voting power of shares entitled to vote at an election of Directors. SECTION 20. MEETINGS. (a) ANNUAL MEETINGS. The annual meeting of the Board of Directors shall be held immediately after the annual meeting of stockholders and at the place where such meeting is held. No notice of an annual meeting of the Board of Directors shall be necessary and such meeting shall be held for the purpose of electing officers and transacting such other business as may lawfully come before it. (b) REGULAR MEETINGS. Except as hereinafter otherwise provided, regular meetings of the Board of Directors shall be held in the office of the corporation required to be maintained pursuant to Section 2 hereof. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of Directors may also be held at any place within or without the State of Delaware which has been determined by the Board of Directors. (c) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of Directors may be held at any time and place within or without the State of Delaware whenever called by the President or any three of the Directors. (d) TELEPHONE MEETINGS. Any member of the Board of Directors, or of any committee thereof, may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (e) NOTICE OF MEETINGS. Written notice of the time and place of all special meetings of the Board of Directors shall be given at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing at any time before or after the meeting and will be waived by any Director by attendance thereat, except when the Director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. (f) WAIVER OF NOTICE. The transaction of all business at any meeting of the Board of Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present 9. 10 and if, either before or after the meeting, each of the Directors not present shall sign a written waiver of notice, or a consent to holding such meeting, or an approval of the minutes thereof. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in any written waiver of notice or consent unless so required by the Certificate of Incorporation or these Bylaws. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. SECTION 21. QUORUM AND VOTING. (a) Unless the Certificate of Incorporation requires a greater number and except with respect to indemnification questions arising under Section 42 hereof, for which a quorum shall be one-third of the exact number of Directors fixed from time to time in accordance with Section 15 hereof, but not less than one (1), a quorum of the Board of Directors shall consist of a majority of the exact number of Directors fixed from time to time in accordance with Section 15 of these Bylaws, but not less than one (1); provided, however, at any meeting whether a quorum be present or otherwise, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board of Directors, without notice other than by announcement at the meeting. (b) At each meeting of the Board of Directors at which a quorum is present all questions and business shall be determined by a vote of a majority of the Directors present, unless a different vote be required by law, the Certificate of Incorporation or these Bylaws. SECTION 22. ACTION WITHOUT MEETING. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and such writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. 10. 11 SECTION 23. FEES AND COMPENSATION. Directors shall be entitled to such compensation for their services as may be approved by the Board of Directors, including, if so approved, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of the Board of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor. SECTION 24. COMMITTEES. (a) EXECUTIVE COMMITTEE. The Board of Directors may by resolution passed by a majority of the whole Board of Directors, appoint an Executive Committee to consist of one (1) or more members of the Board of Directors. The Executive Committee, to the extent permitted by law and specifically granted by the Board of Directors, shall have and may exercise when the Board of Directors is not in session all powers of the Board of Directors in the management of the business and affairs of the corporation, including, without limitation, the power and authority to declare a dividend or to authorize the issuance of stock, except such committee shall not have the power or authority to amend the Certificate of Incorporation, to adopt an agreement of merger or consolidation, to recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, to recommend to the stockholders of the corporation a dissolution of the corporation or a revocation of a dissolution or to amend these Bylaws. (b) OTHER COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, from time to time appoint such other committees as may be permitted by law. Such other committees appointed by the Board of Directors shall consist of one (1) or more members of the Board of Directors, and shall have such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees, but in no event shall such committee have the powers denied to the Executive Committee in these Bylaws. (c) TERM. The members of all committees of the Board of Directors shall serve a term coexistent with that of the Board of Directors which shall have appointed such committee. The Board of Directors, subject to the provisions of subsections (a) or (b) of this Section 24, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of a committee member shall terminate on the date of his death or voluntary resignation from the committee or from the Board of Directors. The Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum but provided that if the committee includes one or more directors elected by the holders of Series A, Series B and Series C 11. 12 Preferred Stock at least one of such members present and not disqualified is a director so elected, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. (d) MEETINGS. Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any other committee appointed pursuant to this Section 24 shall be held at such times and places as are determined by the Board of Directors, or by any such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may be held at any place which has been determined from time to time by such committee, and may be called by any Director who is a member of such committee, upon written notice to the members of such committee of the time and place of such special meeting given in the manner provided for the giving of written notice to members of the Board of Directors of the time and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing at any time before or after the meeting and will be waived by any Director by attendance thereat, except when the Director attends such special meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A majority of the authorized number of members of any such committee shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is present shall be the act of such committee. SECTION 25. ORGANIZATION. At every meeting of the Directors, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or is absent, the President, or if the President is absent, the most senior Vice President, or, in the absence of any such officer, a chairman of the meeting chosen by a majority of the Directors present, shall preside over the meeting. The Secretary, or in his absence, an Assistant Secretary directed to do so by the President, shall act as secretary of the meeting. 12. 13 ARTICLE V OFFICERS SECTION 26. OFFICERS DESIGNATED. The officers of the corporation shall be the Chairman of the Board of Directors, the President, one or more Vice Presidents, the Secretary and the Chief Financial Officer or Treasurer, all of whom shall be elected at the annual organizational meeting of the Board of Directors. The order of the seniority of the Vice Presidents shall be in the order of their nomination, unless otherwise determined by the Board of Directors. The Board of Directors may also appoint one or more Assistant Secretaries, Assistant Treasurers, and such other officers and agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one time unless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall be fixed by or in the manner designated by the Board of Directors. SECTION 27. TENURE AND DUTIES OF OFFICERS. (a) GENERAL. All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly elected and qualified, unless sooner removed. Any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors. (b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of Directors, when present, shall preside at all meetings of the stockholders and the Board of Directors. The Chairman of the Board of Directors shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. If there is no President, then the Chairman of the Board of Directors shall also serve as the Chief Executive Officer of the corporation and shall have the powers and duties prescribed in paragraph (c) of this Section 27. (c) DUTIES OF PRESIDENT. The President shall preside at all meetings of the stockholders and at all meetings of the Board of Directors, unless the Chairman of the Board of Directors has been appointed and is present. The President shall be the Chief Executive Officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. The President shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. (d) DUTIES OF VICE PRESIDENTS. The Vice Presidents, in the order of their seniority, may assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. The Vice Presidents shall perform other 13. 14 duties commonly incident to their office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. (e) DUTIES OF SECRETARY. The Secretary shall attend all meetings of the stockholders and of the Board of Directors, and shall record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the stockholders, and of all meetings of the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties given him in these Bylaws and other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. The President may direct any Assistant Secretary to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. (f) DUTIES OF CHIEF FINANCIAL OFFICER OR TREASURER. The Chief Financial Officer or Treasurer shall keep or cause to be kept the books of account of the corporation in a thorough and proper manner, and shall render statements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or the President. The Chief Financial Officer or Treasurer, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the corporation. The Chief Financial Officer or Treasurer shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. The President may direct any Assistant Treasurer to assume and perform the duties of the Chief Financial Officer or Treasurer in the absence or disability of the Chief Financial Officer or Treasurer, and each Assistant Treasurer shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. SECTION 28. DELEGATION OF AUTHORITY. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof. SECTION 29. RESIGNATIONS. Any officer may resign at any time by giving written notice to the Board of Directors or to the President or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract with the resigning officer. SECTION 30. REMOVAL. Any officer may be removed from office at any time, either with or without cause, by the vote or written consent of a majority of the Directors in office at the time, 14. 15 or by any committee or superior officers upon whom such power of removal may have been conferred by the Board of Directors. ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION SECTION 31. EXECUTION OF CORPORATE INSTRUMENTS. The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute on behalf of the corporation any corporate instrument or document, or to sign on behalf of the corporation the corporate name without limitation, or to enter into contracts on behalf of the corporation, except where otherwise provided by law or these Bylaws, and such execution or signature shall be binding upon the corporation. Unless otherwise specifically determined by the Board of Directors or otherwise required by law, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, and other corporate instruments or documents requiring the corporate seal, and certificates of shares of stock owned by the corporation, shall be executed, signed or endorsed by the Chairman of the Board of Directors, or the President or any Vice President, and by the Secretary or Chief Financial Officer or Treasurer or any Assistant Secretary or Assistant Treasurer. All other instruments and documents requiring the corporate signature, but not requiring the corporate seal, may be executed as aforesaid or in such other manner as may be directed by the Board of Directors. All checks and drafts drawn on banks or other depositaries on funds to the credit of the corporation or in special accounts of the corporation shall be signed by such person or persons as the Board of Directors shall authorize so to do. Unless authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount. 15. 16 SECTION 32. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and other securities of other corporations owned or held by the corporation for itself, or for other parties in any capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by resolution of the Board of Directors, or, in the absence of such authorization, by the Chairman of the Board of Directors, the President, or any Vice President. ARTICLE VII SHARES OF STOCK SECTION 33. FORM AND EXECUTION OF CERTIFICATES. Certificates for the shares of stock of the corporation shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock in the corporation shall be entitled to have a certificate signed by or in the name of the corporation by the Chairman of the Board of Directors, or the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number of shares owned by him in the corporation. Where such certificate is countersigned by a transfer agent other than the corporation or its employee, or by a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Each certificate shall state upon the face or back thereof, in full or in summary, all of the designations, preferences, limitations, restrictions on transfer and relative rights of the shares authorized to be issued. SECTION 34. LOST CERTIFICATES. A new certificate or certificates shall be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require or to give the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen, or destroyed. SECTION 35. TRANSFERS. (a) Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, and upon the surrender of a properly endorsed certificate or certificates for a like number of shares. (b) The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict 16. 17 the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the General Corporation Law of Delaware. SECTION 36. FIXING RECORD DATES. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. (b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. (c) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date 17. 18 is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. SECTION 37. REGISTERED STOCKHOLDERS. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VIII OTHER SECURITIES OF THE CORPORATION SECTION 38. EXECUTION OF OTHER SECURITIES. All bonds, debentures and other corporate securities of the corporation, other than stock certificates (covered in Section 33), may be signed by the Chairman of the Board of Directors, the President or any Vice President, or such other person as may be authorized by the Board of Directors, and the corporate seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an Assistant Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided, however, that where any such bond, debenture or other corporate security shall be authenticated by the manual signature of a trustee under an indenture pursuant to which such bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the corporation or such other person as may be authorized by the Board of Directors, or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be such officer before the bond, debenture or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless may be adopted by the corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer of the corporation. 18. 19 ARTICLE IX DIVIDENDS SECTION 39. DECLARATION OF DIVIDENDS. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. SECTION 40. DIVIDEND RESERVE. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. ARTICLE X FISCAL YEAR SECTION 41. FISCAL YEAR. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. ARTICLE XI INDEMNIFICATION SECTION 42. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS. (a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall indemnify its Directors and executive officers to the fullest extent not prohibited by the Delaware General Corporation Law; provided, however, that the corporation may limit the extent of such indemnification by individual contracts with its Directors and executive officers; and, provided, further, that the corporation shall not be required to indemnify any Director or executive officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its Directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation or (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the Delaware General Corporation Law. 19. 20 (b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The corporation shall have power to indemnify its other officers, employees and other agents as set forth in the Delaware General Corporation Law. (c) GOOD FAITH. (1) For purposes of any determination under this Bylaw, a Director or executive officer shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, to have had no reasonable cause to believe that his conduct was unlawful, if his action is based on information, opinions, reports and statements, including financial statements and other financial data, in each case prepared or presented by: (i) one or more officers or employees of the corporation whom the Director or executive officer believed to be reliable and competent in the matters presented; (ii) counsel, independent accountants or other persons as to matters which the Director or executive officer believed to be within such person's professional competence; and (iii) with respect to a Director, a committee of the Board upon which such Director does not serve, as to matters within such Committee's designated authority, which committee the Director believes to merit confidence; so long as, in each case, the Director or executive officer acts without knowledge that would cause such reliance to be unwarranted. (2) The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal proceeding, that he had reasonable cause to believe that his conduct was unlawful. (3) The provisions of this paragraph (c) shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth by the Delaware General Corporation Law. (d) EXPENSES. The corporation shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by any Director or executive officer in connection with such proceeding upon receipt of an undertaking by or on behalf of such person to repay said amounts if it should be determined ultimately that such person is not entitled to be indemnified under this Bylaw or otherwise. 20. 21 Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this Bylaw, no advance shall be made by the corporation if a determination is reasonably and promptly made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to the proceeding, or (2) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation. (e) ENFORCEMENT. Without the necessity of entering into an express contract, all rights to indemnification and advances to Directors and executive officers under this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation and the Director or executive officer. Any right to indemnification or advances granted by this Bylaw to a Director or executive officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. The corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the Delaware General Corporation Law for the corporation to indemnify the claimant for the amount claimed. Neither the failure of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. (f) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of its Directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the Delaware General Corporation Law. (g) SURVIVAL OF RIGHTS. The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a Director, officer, employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 21. 22 (h) INSURANCE. To the fullest extent permitted by the Delaware General Corporation Law, the corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Bylaw. (i) AMENDMENTS. Any repeal or modification of this Bylaw shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any director, officer, employee or agent of the corporation. (j) SAVING CLAUSE. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each Director and executive officer to the full extent not prohibited by any applicable portion of this Bylaw that shall not have been invalidated, or by any other applicable law. (k) CERTAIN DEFINITIONS. For the purposes of this Bylaw, the following definitions shall apply: (1) The term "PROCEEDING" shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative. (2) The term "EXPENSES" shall be broadly construed and shall include, without limitation, court costs, attorneys' fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding. (3) The term the "CORPORATION" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Bylaw with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (4) References to a "DIRECTOR," "OFFICER," "EMPLOYEE," or "AGENT" of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise. 22. 23 (5) References to "OTHER ENTERPRISES" shall include employee benefit plans; references to "FINES" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "SERVING AT THE REQUEST OF THE CORPORATION" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "NOT OPPOSED TO THE BEST INTERESTS OF THE CORPORATION" as referred to in this Bylaw. ARTICLE XII NOTICES SECTION 43. NOTICES. (a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions of these Bylaws, notice is required to be given to any stockholder, it shall be given in writing, timely and duly deposited in the United States mail, postage prepaid, and addressed to his last known post office address as shown by the stock record of the corporation or its transfer agent. (b) NOTICE TO DIRECTORS. Any notice required to be given to any Director may be given by the method stated in subsection (a), or by facsimile, telex or telegram, except that such notice other than one which is delivered personally shall be sent to such address as such Director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known post office address of such Director. Notwithstanding the foregoing (i) any notice of a special meeting of the Board of Directors or a Committee thereof to be held less than ten (10) business days after the giving of such notice shall, in addition to any other method, be given by facsimile or personal delivery and (ii) any notice to be sent to an address outside of the United States shall be sent by two-day guaranteed courier rather than by United States mail. (c) ADDRESS UNKNOWN. If no address of a stockholder or Director be known, notice may be sent to the office of the corporation required to be maintained pursuant to Section 2 hereof. (d) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by a duly authorized and competent employee of the corporation or its transfer agent appointed with respect to the class of stock affected, specifying the name and address or the names and addresses of the stockholder or stockholders, or Director or Directors, to whom any such notice or notices was or were given, and the time and method of giving the same, shall be conclusive evidence of the statements therein contained. 23. 24 (e) TIME NOTICES DEEMED GIVEN. All notices given by mail, as above provided, shall be deemed to have been given as at the time of mailing and all notices given by facsimile, telex or telegram shall be deemed to have been given as of the sending time recorded at time of transmission. (f) METHODS OF NOTICE. It shall not be necessary that the same method of giving notice be employed in respect of all Directors, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in respect of any other or others. (g) FAILURE TO RECEIVE NOTICE. The period or limitation of time within which any stockholder may exercise any option or right, or enjoy any privilege or benefit, or be required to act, or within which any Director may exercise any power or right, or enjoy any privilege, pursuant to any notice sent him in the manner above provided, shall not be affected or extended in any manner by the failure of such stockholder or such Director to receive such notice. (h) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever notice is required to be given, under any provision of law or of the Certificate of Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the Delaware General Corporation Law, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful. (i) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever notice is required to be given, under any provision of law or the Certificate of Incorporation or Bylaws of the corporation, to any stockholder to whom (i) notice of two consecutive annual meetings, and all notices of meetings or of the taking of action by written consent without a meeting to such person during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities during a twelve month period, have been mailed addressed to such person at his address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall be taken or held without notice to such person shall have the same force and effect as if such notice had been duly given. If any such person shall deliver to the corporation a written notice setting forth his then current address, the requirement that notice be given to such person shall be reinstated. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the Delaware General Corporation Law, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to this paragraph. 24. 25 ARTICLE XIII AMENDMENTS SECTION 44. AMENDMENTS. Except as otherwise set forth in paragraph (i) of Section 42 of these Bylaws, these Bylaws may be amended or repealed and new Bylaws adopted by the stockholders entitled to vote. The Board of Directors shall also have the power, if such power is conferred upon the Board of Directors by the Certificate of Incorporation, to adopt, amend or repeal Bylaws (including, without limitation, the amendment of any Bylaw setting forth the number of Directors who shall constitute the whole Board of Directors). ARTICLE XIV RIGHT OF FIRST REFUSAL SECTION 45. RIGHT OF FIRST REFUSAL. No stockholder shall sell, assign, pledge, or in any manner transfer any of the shares of stock of the corporation or any right or interest therein, whether voluntarily or by operation of law, or by gift or otherwise, except by a transfer which meets the requirements hereinafter set forth in this Bylaw: (a) If the stockholder receives from anyone a bona fide offer acceptable to the stockholder to purchase any of his shares of stock, or if the stockholder desires to otherwise transfer any of his shares of stock, then the stockholder shall first give written notice thereof to the corporation. The notice shall name the proposed transferee and state the number of shares to be transferred, the price per share and all other terms and conditions of the offer or proposed transfer. In the event of a gift, property settlement or other transfer in which the proposed transferee is not paying the full price for the shares, and that is not otherwise exempted from the provisions of this Section 45, the price shall be deemed to be the fair market value of the stock at such time as determined in good faith by the Board of Directors. (b) The Secretary of the corporation shall, within fifteen (15) days of receipt of said selling stockholder's notice, give written notice thereof to the stockholders of the corporation other than the selling stockholder. Said written notice shall state the number of shares available for purchase (which shall be the same as the number contained in said selling stockholder's notice). Each of the other stockholders shall have the option to purchase that proportion of the shares available for purchase as the number of shares of Common Stock owned by each of said other stockholders (treating all shares of stock convertible into or exchangeable for Common Stock as having been so converted or exchanged) bears to the total issued and outstanding shares of Common Stock of the corporation (calculated as aforesaid), excepting those shares owned by the selling stockholder. A stockholder electing to exercise such option shall, within ten (10) days after mailing of the corporation's notice, give notice to the corporation specifying the number of shares such stockholder will purchase. Within such ten-day period, each of said other stockholders shall give written notice stating how many additional shares such stockholder will purchase if additional 25. 26 shares are made available. Failure to respond in writing within said ten-day period to the notice given by the Secretary of the corporation shall be deemed a rejection of such stockholder's right to acquire a proportionate part of the shares of the selling stockholder. In the event one or more stockholders do not elect to acquire the shares available to them, said shares shall be allocated on a pro rata basis to the stockholders who requested shares in addition to their pro rata allotment. (c) In the event the stockholders, other than the selling stockholder, elect to acquire any of the shares of the selling stockholder as specified in said selling stockholder's notice, the Secretary of the corporation shall so notify the selling stockholder and settlement thereof shall be made in cash within thirty (30) days after the Secretary of the corporation receives said selling stockholder's notice; provided that if the terms of payment set forth in said selling stockholder's notice were other than cash against delivery, the other stockholders shall pay for said shares on the same terms and conditions set forth in said selling stockholder's notice. (d) In the event the other stockholders do not elect to acquire all of the shares specified in the selling stockholder's notice, said selling stockholder may, within the sixty-day period following the expiration of the option rights granted to the other stockholders herein, sell elsewhere those shares specified in said selling stockholder's notice which were not acquired by the other stockholders in accordance with the provisions of paragraph (c) of this Bylaw, provided that said sale shall not be on terms and conditions more favorable to the purchaser than those contained in the bona fide offer set forth in said selling stockholder's notice. All shares so sold by said selling stockholder shall continue to be subject to the provisions of this Bylaw in the same manner as before said transfer. (e) Anything to the contrary contained herein notwithstanding, the following transactions shall be exempt from the provisions of this Bylaw: (1) A stockholder's transfer of any or all shares held either during such stockholder's lifetime or on death by will or intestacy to such stockholder's immediate family. "Immediate family" as used herein shall mean spouse, lineal descendant, father, mother, brother, or sister of the stockholder making such transfer and shall include any trust established primarily for the benefit of the stockholder or his immediate family. (2) A stockholder's bona fide pledge or mortgage of any shares with a commercial lending institution, provided that any subsequent transfer of said shares by said institution shall be conducted in the manner set forth in this Section 45. (3) A stockholder's transfer of any or all of such stockholder's shares to the corporation or to any other stockholder of the corporation. (4) A stockholder's transfer of any or all of such stockholder's shares to a person who, at the time of such transfer, is an officer or director of the corporation. 26. 27 (5) A corporate stockholder's transfer of any or all of its shares pursuant to and in accordance with the terms of any merger, consolidation, reclassification of shares or capital reorganization of the corporate stockholder, or pursuant to a sale of all or substantially all of the stock or assets of a corporate stockholder. (6) A corporate stockholder's transfer of any or all of its shares to any or all of its stockholders. (7) A transfer by a stockholder which is a limited or general partnership to any or all of its partners. (8) A transfer by a stockholder which is a corporation or a partnership to another entity which, directly or indirectly, controls, is controlled by or is under common control with such stockholder. In any such case, the transferee, assignee, or other recipient shall receive and hold such stock subject to the provisions of this Bylaw, and there shall be no further transfer of such stock except in accordance with this Bylaw. (f) The provisions of this Section 45 may be waived with respect to any transfer by the stockholders, upon the express written consent of the owners of a majority of the voting power of the corporation (excluding the votes represented by those shares to be sold by the selling stockholder). This Section 45 may be amended or repealed by the stockholders, upon the express vote or written consent of the owners of a majority of the voting power of the corporation. (g) Any sale or transfer, or purported sale or transfer, of securities of the corporation shall be null and void unless the terms, conditions, and provisions of this Bylaw are strictly observed and followed. (h) The foregoing right of first refusal shall terminate on either of the following dates, whichever shall first occur: (1) On January 1, 2006; or (2) Upon the date any class of securities of the corporation are first offered to the public pursuant to a registration statement filed with, and declared effective by, the United States Securities and Exchange Commission under the Securities Act of 1933, as amended. (i) The certificates representing shares of stock of the corporation shall bear on their face the following legend so long as the foregoing right of first refusal remains in effect: 27. 28 "The shares represented by this certificate are subject to a right of first refusal option in favor of the corporation's stockholders, as provided in the bylaws of the corporation." ARTICLE XV LOANS TO OFFICERS SECTION 46. LOANS TO OFFICERS. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiaries, including any officer or employee who is a Director of the corporation or its subsidiaries, whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without interest and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this Section 46 shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute. ARTICLE XVI MISCELLANEOUS SECTION 47 ANNUAL REPORT. (a) Subject to the provisions of Section 47(b) below, the Board of Directors shall cause an annual report to be sent to each stockholder of the corporation not later than one hundred twenty (120) days after the close of the corporation's fiscal year. Such report shall include a balance sheet as of the end of such fiscal year and an income statement and statement of changes in financial position for such fiscal year, accompanied by any report thereon of independent accounts or, if there is no such report, the certificate of an authorized officer of the corporation that such statements were prepared without audit from the books and records of the corporation. When there are more than 100 stockholders of record of the corporation's shares, as determined by Section 605 of the California Corporations Code, additional information as required by Section 1501(b) of the California Corporations Code shall also be contained in such report, provided that if the corporation has a class of securities registered under Section 12 of the United States Securities Exchange Act of 1934, that Act shall take precedence. Such report shall be sent to stockholders at least fifteen (15) days prior to the next annual meeting of stockholders after the end of the fiscal year to which it relates. (b) If and so long as there are fewer than 100 holders of record of the corporation's shares, the requirement of sending of an annual report to the stockholders of the corporation is hereby expressly waived. 28. 29 TABLE OF CONTENTS ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE II - CORPORATE SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 3. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE III STOCKHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 4. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 5. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 7. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 8. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 9. Adjournment and Notice of Adjourned Meetings . . . . . . . . . . . . . . . . 5 Section 10. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 11. Beneficial Owners of Stock . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 12. List of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 13. Action without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 14. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARTICLE IV DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 15. Number and Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 16. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 16. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 17. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 18. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 19. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 20. Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
i. 30 TABLE OF CONTENTS (CONTINUED) Section 21. Quorum and Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 22. Action without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 23. Fees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 24. Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 25. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE V OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 26. Officers Designated . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 27. Tenure and Duties of Officers . . . . . . . . . . . . . . . . . . . . . . . 13 Section 28. Delegation of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 29. Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 30. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION . 15 Section 31. Execution of Corporate Instruments . . . . . . . . . . . . . . . . . . . . . 15 Section 32. Voting of Securities Owned by the Corporation . . . . . . . . . . . . . . . 16 ARTICLE VII SHARES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 33. Form and Execution of Certificates . . . . . . . . . . . . . . . . . . . . . 16 Section 34. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 35. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 36. Fixing Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 37. Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ARTICLE VIII OTHER SECURITIES OF THE CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 38. Execution of Other Securities . . . . . . . . . . . . . . . . . . . . . . . 18 ARTICLE IX DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 39. Declaration of Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 40. Dividend Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ii. 31 TABLE OF CONTENTS (CONTENTS) ARTICLE X FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 41. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE XI INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 42. Indemnification of Directors, Officers, Employees and Other Agents . . . . . 19 ARTICLE XII NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Section 43. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARTICLE XIII AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 44. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ARTICLE XIV RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 45. Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ARTICLE XV LOANS TO OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 46. Loans to Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ARTICLE XVI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 47. Annual Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
EX-3.3 4 EXHIBIT 3.3 1 EXHIBIT 3.3 CERTIFICATE OF AMENDMENT OF RESTATED CERTIFICATE OF INCORPORATION OF AURORA BIOSCIENCES CORPORATION AURORA BIOSCIENCES CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY: FIRST: The name of the Corporation is Aurora Biosciences Corporation. SECOND: The date on which the Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of the State of Delaware is January 22, 1996. THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware, adopted resolutions amending its Certificate of Incorporation as follows: The first paragraph of Article IV A. shall be amended to add two sentences thereto, such sentences to read as follows: "Effective at the time of filing with the Secretary of State of the State of Delaware of this Certificate of Amendment of Restated Certificate of Incorporation (the "Effective Time"), each share of the Corporation's Common Stock, par value $0.001 per share, issued and outstanding or held in treasury at the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be subdivided and converted into .8 shares of Common Stock, par value $0.001 per share, of the Corporation. No fractional shares will be issued and, in lieu thereof, any holder of less than one share of Common Stock shall be entitled to receive cash for such holder's fractional share based on the fair market value per share as of the Effective Time as determined in good faith by the Board of Directors." FOURTH: Thereafter, pursuant to a resolution of the Board of Directors this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval, and was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. 1. 2 IN WITNESS WHEREOF, Aurora Biosciences Corporation has caused this Certificate of Amendment to be signed by its President and attested to by its Secretary this day of March, 1997. AURORA BIOSCIENCES CORPORATION By:__________________________________ Timothy J. Rink, President ATTEST: _____________________________________ Deborah J. Tower, Secretary 2. EX-3.4 5 EXHIBIT 3.4 1 EXHIBIT 3.4 RESTATED CERTIFICATE OF INCORPORATION OF AURORA BIOSCIENCES CORPORATION AURORA BIOSCIENCES CORPORATION, a corporation organized and existing under the laws of the state of Delaware, hereby certifies as follows: FIRST. The name of the corporation is Aurora Biosciences Corporation. SECOND. The date of the filing of the corporation's original Certificate of Incorporation with the Secretary of State of Delaware was January 22, 1996. THIRD. This Restated Certificate of Incorporation was duly adopted by the corporation in accordance with Section 245 of the General Corporation Law of the State of Delaware. FOURTH. The Certificate of Incorporation of the corporation shall be amended and restated to read in full as follows. I. The name of this corporation is AURORA BIOSCIENCES CORPORATION. II. The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 30 Old Rudnick Lane, City of Dover, County of Kent; and the name of the registered agent of the corporation in the State of Delaware at such address is CorpAmerica Inc. III. 1. 2 The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law. IV. A. CLASSES OF STOCK. This corporation is authorized to issue two classes of stock to be designated, respectively, "Common Stock" and "Preferred Stock." The total number of shares which the corporation is authorized to issue is fifty-seven million five hundred thousand (57,500,000) shares. Fifty million (50,000,000) shares shall be Common Stock, each having a par value of one-tenth of one cent ($0.001). Seven million five hundred thousand (7,500,000) shares shall be Preferred Stock, each having a par value of one-tenth of one cent ($0.001). B. The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized, by filing a certificate pursuant to the Delaware General Corporation Law, to fix or alter from time to time the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof, including without limitation the dividend rights, dividend rate, conversion rights, voting rights and the liquidation preferences of any wholly unissued series of Preferred Stock, and to establish from time to time the number of shares constituting any such series and the designation thereof, or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. V. For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that: A. 1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed exclusively by one or more resolutions adopted by the Board of Directors. 2. Subject to the rights of the holders of any series of Preferred Stock, the Board of Directors or any individual director may be removed from office at any time (i) with cause by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of voting stock of the corporation, entitled to vote at an election of directors (the "Voting Stock") or (ii) without cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all the then-outstanding shares of the Voting Stock. 3. Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, except as otherwise provided by law, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any director elected 2. 3 in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected and qualified. 4. Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of the Voting Stock. The Board of Directors shall also have the power to adopt, amend, or repeal Bylaws. 5. The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. 6. No action shall be taken by the stockholders of the corporation except at an annual or special meeting of stockholders called in accordance with the Bylaws and no action shall be taken by the stockholders by written consent. 7. Special meetings of the stockholders of the corporation may be called, for any purpose or purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption) or (iv) by the holders of the shares entitled to cast not less that fifty percent (50%) of the votes at the meeting, and shall be held at such place, on such date, and at such time as the Board of Directors shall fix. 8. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation. VI. A. A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended after approval by the stockholders of this Article to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director shall be eliminated or limited to the fullest extent permitted by the Delaware General corporation Law, as so amended. B. Any repeal or modification of this Article VI shall be prospective and shall not affect the rights under this Article VI in effect at the time of the alleged occurrence of any act or omission to act giving rise to liability or indemnification. VII. A. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, except as provided in paragraph B. of this Article VII, and all rights conferred upon the stockholders herein are granted subject to this reservation. B. Notwithstanding any other provisions of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Voting Stock required by law, this Certificate of Incorporation or any Preferred Stock Designation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of the Voting Stock, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI, and VII. 3. 4 IN WITNESS WHEREOF, said Aurora Biosciences Corporation has caused this Certificate to be signed by its President and Chief Executive Officer, Timothy J. Rink, and attested to by its Secretary, Deborah J. Tower, this _____th day of May, 1997. _____________________________ TIMOTHY J. RINK PRESIDENT AND CHIEF EXECUTIVE OFFICER ATTEST: __________________________________ DEBORAH J. TOWER SECRETARY 4. EX-3.5 6 EXHIBIT 3.5 1 EXHIBIT 3.5 RESTATED BYLAWS OF AURORA BIOSCIENCES CORPORATION (A DELAWARE CORPORATION) ARTICLE I OFFICES SECTION 1. REGISTERED OFFICE. The registered office of the corporation in the State of Delaware shall be in the City of Dover, County of Kent. SECTION 2. OTHER OFFICES. The corporation shall also have and maintain an office or principal place of business in San Diego, California, at such place as may be fixed by the Board of Directors, and may also have offices at such other places, both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II CORPORATE SEAL SECTION 3. CORPORATE SEAL. The corporate seal shall consist of a die bearing the name of the corporation and the inscription, "Corporate Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE III STOCKHOLDERS' MEETINGS SECTION 4. PLACE OF MEETINGS. Meetings of the stockholders of the corporation shall be held at such place, either within or without the State of Delaware, as may be designated from time to time by the Board of Directors, or, if not so designated, then at the office of the corporation required to be maintained pursuant to Section 2 hereof. SECTION 5. ANNUAL MEETING. 1. 2 (a) The annual meeting of the stockholders of the corporation, for the purpose of election of Directors and for such other business as may lawfully come before it, shall be held on such date and at such time as may be designated from time to time by the Board of Directors. (b) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be: (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (B) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (C) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of the date of the corporation's proxy statement released to stockholders in connection with the previous year's annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from the date contemplated at the time of the previous year's proxy statement, notice by the stockholder to be timely must be so received not earlier than the close of business on the ninetieth (90th) day prior to such annual meeting and not later than the close of business on the later of the sixtieth (60th) day prior to such annual meeting or, in the event public announcement of the date of such annual meeting is first made by the corporation fewer than seventy (70) days prior to the date of such annual meeting, the close of business on the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the corporation. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the stockholder, (iv) any material interest of the stockholder in such business and (v) any other information that is required to be provided by the stockholder pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "1934 Act"), in his capacity as a proponent to a stockholder proposal. Notwithstanding the foregoing, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholder's meeting, stockholders must provide notice as required by the regulations promulgated under the 1934 Act. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the 2. 3 procedures set forth in this paragraph (b). The chairman of the annual meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions of this paragraph (b), and, if he should so determine, he shall so declare at the meeting that any such business not properly brought before the meeting shall not be transacted. (c) Only persons who are nominated in accordance with the procedures set forth in this paragraph (c) shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any stockholder of the corporation entitled to vote in the election of Directors at the meeting who complies with the notice procedures set forth in this paragraph (c). Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation in accordance with the provisions of paragraph (b) of this Section 5. Such stockholder's notice shall set forth (i) as to each person, if any, whom the stockholder proposes to nominate for election or re-election as a Director: (A) the name, age, business address and residence address of such person, (B) the principal occupation or employment of such person, (C) the class and number of shares of the corporation which are beneficially owned by such person, (D) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, and (E) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation such person's written consent to being named in the proxy statement, if any, as a nominee and to serving as a Director if elected); and (ii) as to such stockholder giving notice, the information required to be provided pursuant to paragraph (b) of this Section 5. At the request of the Board of Directors, any person nominated by a stockholder for election as a Director shall furnish to the Secretary of the corporation that information required to be set forth in the stockholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the corporation unless nominated in accordance with the procedures set forth in this paragraph (c). The chairman of the meeting shall, if the facts warrant, determine and declare at the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws, and if he should so determine, he shall so declare at the meeting and the defective nomination shall be disregarded. (d) For purposes of this Section 5, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation 3. 4 with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. SECTION 6. SPECIAL MEETINGS. (a) Special meetings of the stockholders of the corporation may be called, for any purpose or purposes, by (i) the Chairman of the Board, (ii) the Chief Executive Officer, (iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption) or (iv) by the holders of shares entitled to cast not less than fifty percent (50%) of the votes at the meeting, and shall be held at such place, on such date, and at such time as the Board of Directors shall fix. (b) If a special meeting is called by any person or persons other than the Board of Directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the Chairman of the Board of Directors, the Chief Executive Officer, or the Secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The Board of Directors shall determine the time and place of such special meeting, which shall be held not less than thirty-five (35) nor more than one hundred twenty (120) days after the date of the receipt of the request. Upon determination of the time and place of the meeting, the officer receiving the request shall cause notice to be given to the stockholders entitled to vote, in accordance with the provisions of Section 7 of these Bylaws. If the notice is not given within sixty (60) days after the receipt of the request, the person or persons requesting the meeting may set the time and place of the meeting and give the notice. Nothing contained in this paragraph (b) shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held. SECTION 7. NOTICE OF MEETINGS. Except as otherwise provided by law or the Certificate of Incorporation, written notice of each meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, such notice to specify the place, date and hour and purpose or purposes of the meeting. Notice of the time, place and purpose of any meeting of stockholders may be waived in writing, signed by the person entitled to notice thereof, either before or after such meeting, and will be waived by any stockholder by his attendance thereat in person or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any 4. 5 stockholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given. SECTION 8. QUORUM. At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of Incorporation, or by these Bylaws, the presence, in person or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of business. In the absence of a quorum any meeting of stockholders may be adjourned, from time to time, either by the Chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, all action taken by the holders of a majority of the vote cast, excluding abstentions, at any meeting at which a quorum is present shall be valid and binding upon the corporation; provided, however, that Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of Directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by statute or by the Certificate of Incorporation or these Bylaws, a majority of the outstanding shares of such class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and, except where otherwise provided by statute or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the majority (plurality, in the case of the election of Directors) of the votes cast, including abstentions, by the holders of shares of such class or classes or series shall be the act of such class or classes or series. SECTION 9. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting of stockholders, whether annual or special, may be adjourned from time to time either by the Chairman of the meeting or by the vote of a majority of the shares casting votes, excluding abstentions. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. SECTION 10. VOTING RIGHTS. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders, except as otherwise provided by law, only persons in whose 5. 6 names shares stand on the stock records of the corporation on the record date, as provided in Section 12 of these Bylaws, shall be entitled to vote at any meeting of stockholders. Except as may be otherwise provided in the Certificate of Incorporation or these Bylaws, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder. Every person entitled to vote shall have the right to do so either in person or by an agent or agents authorized by a proxy granted in accordance with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years from its date of creation unless the proxy provides for a longer period. SECTION 11. BENEFICIAL OWNERS OF STOCK. (a) If shares or other securities having voting power stand of record in the names of two (2) or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (a) if only one (1) votes, his act binds all; (b) if more than one (1) votes, the act of the majority so voting binds all; (c) if more than one (1) votes, but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionally, or may apply to the Delaware Court of Chancery for relief as provided in the General Corporation Law of Delaware, Section 217(b). If the instrument filed with the Secretary shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of this subsection (c) shall be a majority or even-split in interest. SECTION 12. LIST OF STOCKHOLDERS. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall be produced and kept at the time and place of meeting during the whole time thereof, and may be inspected by any stockholder who is present. SECTION 13. ACTION WITHOUT MEETING. No action shall be taken by the stockholders of the corporation except at an annual or special meeting of the stockholders called in accordance with these Bylaws and no action shall be taken by the stockholders by written consent. 6. 7 SECTION 14. ORGANIZATION. (a) At every meeting of stockholders, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or is absent, the President, or, if the President is absent, a chairman of the meeting chosen by a majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act as chairman. The Secretary, or, in his absence, an Assistant Secretary directed to do so by the President, shall act as secretary of the meeting. (b) The Board of Directors of the corporation shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and constituted proxies, and such other persons as the chairman shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. Unless, and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure. ARTICLE IV DIRECTORS SECTION 15. NUMBER AND TERM OF OFFICE. The authorized number of directors of the corporation shall be fixed in accordance with the Certificate of Incorporation. Directors need not be stockholders unless so required by the Certificate of Incorporation. If for any cause, the Directors shall not have been elected at an annual meeting, they may be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner provided in these Bylaws. No reduction of the authorized number of Directors shall have the effect of removing any Director before the Director's term of office expires, unless such removal is made pursuant to the provisions of Section 19 hereof. 7. 8 SECTION 16. POWERS. The powers of the corporation shall be exercised, its business conducted and its property controlled by the Board of Directors, except as may be otherwise provided by statute or by the Certificate of Incorporation. SECTION 17. VACANCIES. Unless otherwise provided in the Certificate of Incorporation, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under this Bylaw in the case of the death, removal or resignation of any director. SECTION 18. RESIGNATION. Any Director may resign at any time by delivering his written resignation to the Secretary, such resignation to specify whether it will be effective at a particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors. If no such specification is made, it shall be deemed effective at the pleasure of the Board of Directors. Except as otherwise provided in the Certificate of Incorporation with respect to the filling of vacancies on the Board, when one or more Directors shall resign from the Board of Directors, effective at a future date, a majority of the Directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Director so chosen shall hold office for the unexpired portion of the term of the Director whose place shall be vacated and until his successor shall have been duly elected and qualified. SECTION 19. REMOVAL. Subject to the rights of the holders of any series of Preferred Stock, the Board of Directors or any individual director may be removed from office at any time (i) with cause by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of voting stock of the corporation, entitled to vote at an election of directors (the "Voting Stock") or (ii) without cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all the then-outstanding shares of the Voting Stock. SECTION 20. MEETINGS. (a) ANNUAL MEETINGS. The annual meeting of the Board of Directors shall be held immediately before or after the annual meeting of stockholders and at the 8. 9 place where such meeting is held. No notice of an annual meeting of the Board of Directors shall be necessary and such meeting shall be held for the purpose of electing officers and transacting such other business as may lawfully come before it. (b) REGULAR MEETINGS. Except as hereinafter otherwise provided, regular meetings of the Board of Directors shall be held in the office of the corporation required to be maintained pursuant to Section 2 hereof. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of Directors may also be held at any place within or without the State of Delaware which has been designated by resolution of the Board of Directors or the written consent of all directors. (c) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of Directors may be held at any time and place within or without the State of Delaware whenever called by the Chairman of the Board, the President or any three of the directors. (d) TELEPHONE MEETINGS. Any member of the Board of Directors, or of any committee thereof, may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. (e) NOTICE OF MEETINGS. Notice of the time and place of all special meetings of the Board of Directors shall be orally or in writing, by telephone, facsimile, telegraph or telex, during normal business hours, at least twenty-four (24) hours before the date and time of the meeting, or sent in writing to each director by first class mail, charges prepaid, at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing at any time before or after the meeting and will be waived by any Director by attendance thereat, except when the Director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. (f) WAIVER OF NOTICE. The transaction of all business at any meeting of the Board of Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the Directors not present shall sign a written waiver of notice, or a consent to holding such meeting, or an approval of the minutes thereof. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in any written waiver of notice or consent unless so required by the Certificate of Incorporation or these Bylaws. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. 9. 10 SECTION 21. QUORUM AND VOTING. (a) Unless the Certificate of Incorporation requires a greater number and except with respect to indemnification questions arising under Section 42 hereof, for which a quorum shall be one-third of the exact number of Directors fixed from time to time in accordance with the Certificate of Incorporation, a quorum of the Board of Directors shall consist of a majority of the exact number of Directors fixed from time to time by the Board of Directors in accordance with the Certificate of Incorporation; provided, however, at any meeting whether a quorum be present or otherwise, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board of Directors, without notice other than by announcement at the meeting. (b) At each meeting of the Board of Directors at which a quorum is present all questions and business shall be determined by the affirmative vote of a majority of the Directors present, unless a different vote be required by law, the Certificate of Incorporation or these Bylaws. SECTION 22. ACTION WITHOUT MEETING. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and such writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. SECTION 23. FEES AND COMPENSATION. Directors shall be entitled to such compensation for their services as may be approved by the Board of Directors, including, if so approved, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of the Board of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor. SECTION 24. COMMITTEES. (a) EXECUTIVE COMMITTEE. The Board of Directors may by resolution passed by a majority of the whole Board of Directors appoint an Executive Committee to consist of one (1) or more members of the Board of Directors. The Executive Committee, to the extent permitted by law and provided in the resolution of the Board of Directors shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, including without limitation 10. 11 the power or authority to declare a dividend, to authorize the issuance of stock and to adopt a certificate of ownership and merger, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the bylaws of the corporation. (b) OTHER COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, from time to time appoint such other committees as may be permitted by law. Such other committees appointed by the Board of Directors shall consist of one (1) or more members of the Board of Directors, and shall have such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees, but in no event shall such committee have the powers denied to the Executive Committee in these Bylaws. (c) TERM. The members of all committees of the Board of Directors shall serve a term on the committee coexistent with such member's term on the Board of Directors. The Board of Directors, subject to the provisions of subsections (a) or (b) of this Section 24, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of a committee member shall terminate on the date of his death or voluntary resignation from the committee or from the Board of Directors. The Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. 11. 12 (d) MEETINGS. Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any other committee appointed pursuant to this Section 24 shall be held at such times and places as are determined by the Board of Directors, or by any such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may be held at any place which has been determined from time to time by such committee, and may be called by any Director who is a member of such committee, upon written notice to the members of such committee of the time and place of such special meeting given in the manner provided for the giving of written notice to members of the Board of Directors of the time and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing at any time before or after the meeting and will be waived by any Director by attendance thereat, except when the Director attends such special meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A majority of the authorized number of members of any such committee shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is present shall be the act of such committee. SECTION 25. ORGANIZATION. At every meeting of the Directors, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or is absent, the President, or if the President is absent, the most senior Vice President, or, in the absence of any such officer, a chairman of the meeting chosen by a majority of the Directors present, shall preside over the meeting. The Secretary, or in his absence, an Assistant Secretary directed to do so by the President, shall act as secretary of the meeting. ARTICLE V OFFICERS SECTION 26. OFFICERS DESIGNATED. The officers of the corporation shall include, if and when designated by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer, the President, one or more Vice Presidents, the Secretary, the Chief Financial Officer, the Treasurer and the Controller, all of whom shall be elected at the annual organizational meeting of the Board of Directors. The Board of Directors may also appoint one or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such other officers and agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one time unless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall be fixed by or in the manner designated by the Board of Directors. 12. 13 SECTION 27. TENURE AND DUTIES OF OFFICERS. (a) GENERAL. All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly elected and qualified, unless sooner removed. Any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors. (b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of Directors, when present, shall preside at all meetings of the stockholders and the Board of Directors. The Chairman of the Board of Directors shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. If there is no President, then the Chairman of the Board of Directors shall also serve as the Chief Executive Officer of the corporation and shall have the powers and duties prescribed in paragraph (c) of this Section 27. (c) DUTIES OF PRESIDENT. The President shall preside at all meetings of the stockholders and at all meetings of the Board of Directors, unless the Chairman of the Board of Directors has been appointed and is present. Unless some other officer has been elected Chief Executive Officer of the corporation, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. The President shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. (d) DUTIES OF VICE PRESIDENTS. The Vice Presidents, in the order of their seniority, may assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. (e) DUTIES OF SECRETARY. The Secretary shall attend all meetings of the stockholders and of the Board of Directors, and shall record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the stockholders, and of all meetings of the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties given him in these Bylaws and other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. The President may direct any 13. 14 Assistant Secretary to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. (f) DUTIES OF CHIEF FINANCIAL OFFICER OR TREASURER. The Chief Financial Officer or Treasurer shall keep or cause to be kept the books of account of the corporation in a thorough and proper manner, and shall render statements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or the President. The Chief Financial Officer or Treasurer, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the corporation. The Chief Financial Officer or Treasurer shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. The President may direct any Assistant Treasurer, or the Controller or any Assistant Controller to assume and perform the duties of the Chief Financial Officer or Treasurer in the absence or disability of the Chief Financial Officer or Treasurer, and each Assistant Treasurer and each Controller and Assistant Controller shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. SECTION 28. DELEGATION OF AUTHORITY. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof. SECTION 29. RESIGNATIONS. Any officer may resign at any time by giving written notice to the Board of Directors or to the President or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract with the resigning officer. SECTION 30. REMOVAL. Any officer may be removed from office at any time, either with or without cause, by the affirmative vote of a majority of the directors in office at the time, or by the unanimous written consent of the directors in office at the time, or by any committee or superior officers upon whom such power of removal may have been conferred by the Board of Directors. ARTICLE VI 14. 15 EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION SECTION 31. EXECUTION OF CORPORATE INSTRUMENTS. The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute on behalf of the corporation any corporate instrument or document, or to sign on behalf of the corporation the corporate name without limitation, or to enter into contracts on behalf of the corporation, except where otherwise provided by law or these Bylaws, and such execution or signature shall be binding upon the corporation. Unless otherwise specifically determined by the Board of Directors or otherwise required by law, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the corporation, and other corporate instruments or documents requiring the corporate seal, and certificates of shares of stock owned by the corporation, shall be executed, signed or endorsed by the Chairman of the Board of Directors, or the President or any Vice President, and by the Secretary or Chief Financial Officer or Treasurer or any Assistant Secretary or Assistant Treasurer. All other instruments and documents requiring the corporate signature, but not requiring the corporate seal, may be executed as aforesaid or in such other manner as may be directed by the Board of Directors. All checks and drafts drawn on banks or other depositories on funds to the credit of the corporation or in special accounts of the corporation shall be signed by such person or persons as the Board of Directors shall authorize so to do. Unless authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount. SECTION 32. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and other securities of other corporations owned or held by the corporation for itself, or for other parties in any capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by resolution of the Board of Directors, or, in the absence of such authorization, by the Chairman of the Board of Directors, the Chief Executive Officer, the President, or any Vice President. ARTICLE VII SHARES OF STOCK SECTION 33. FORM AND EXECUTION OF CERTIFICATES. Certificates for the shares of stock of the corporation shall be in such form as is consistent with the Certificate of 15. 16 Incorporation and applicable law. Every holder of stock in the corporation shall be entitled to have a certificate signed by or in the name of the corporation by the Chairman of the Board of Directors, or the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number of shares owned by him in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Each certificate shall state upon the face or back thereof, in full or in summary, all of the powers, designations, preferences, and rights, and the limitations or restrictions of the shares authorized to be issued or shall, except as otherwise required by law, set forth on the face or back a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to this section or otherwise required by law or with respect to this section a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical. SECTION 34. LOST CERTIFICATES. A new certificate or certificates shall be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require or to give the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen, or destroyed. SECTION 35. TRANSFERS. (a) Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, 16. 17 and upon the surrender of a properly endorsed certificate or certificates for a like number of shares. (b) The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the General Corporation Law of Delaware. SECTION 36. FIXING RECORD DATES. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. (b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to 17. 18 consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. (c) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. SECTION 37. REGISTERED STOCKHOLDERS. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VIII OTHER SECURITIES OF THE CORPORATION SECTION 38. EXECUTION OF OTHER SECURITIES. All bonds, debentures and other corporate securities of the corporation, other than stock certificates (covered in Section 33), may be signed by the Chairman of the Board of Directors, the President or any Vice President, or such other person as may be authorized by the Board of Directors, and the corporate seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an Assistant Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided, however, that where any such bond, debenture or other corporate security shall be authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the corporation or such other person as may be authorized by the Board of Directors, or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest 18. 19 coupon, shall have ceased to be such officer before the bond, debenture or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless may be adopted by the corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer of the corporation. ARTICLE IX DIVIDENDS SECTION 39. DECLARATION OF DIVIDENDS. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. SECTION 40. DIVIDEND RESERVE. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. ARTICLE X FISCAL YEAR SECTION 41. FISCAL YEAR. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. ARTICLE XI INDEMNIFICATION SECTION 42. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS. (a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall indemnify its Directors and executive officers to the fullest extent not prohibited by the Delaware General Corporation Law; provided, however, that the corporation may limit the extent of such indemnification by individual contracts with its Directors and executive officers; and, provided, further, that the corporation shall not be required to indemnify any 19. 20 Director or executive officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its Directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation or (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the Delaware General Corporation Law. (b) OTHER OFFICERS, EMPLOYEES AND OTHER Agents. The corporation shall have power to indemnify its other officers, employees and other agents as set forth in the Delaware General Corporation Law. (c) EXPENSES. The corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or executive officer of the corporation, or is or was serving at the request of the corporation as a director or executive officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any Director or executive officer in connection with such proceeding upon receipt of an undertaking by or on behalf of such person to repay said amounts if it should be determined ultimately that such person is not entitled to be indemnified under this Bylaw or otherwise. Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this Bylaw, no advance shall be made by the corporation if a determination is reasonably and promptly made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to the proceeding, or (2) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation. (d) ENFORCEMENT. Without the necessity of entering into an express contract, all rights to indemnification and advances to Directors and executive officers under this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation and the Director or executive officer. Any right to indemnification or advances granted by this Bylaw to a Director or executive officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within 20. 21 ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. In connection with any claim for indemnification, the corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the Delaware General Corporation Law for the corporation to indemnify the claimant for the amount claimed. In connection with any claim by an executive officer of the corporation (except in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such executive officer is or was a director of the corporation) for advances, the corporation shall be entitled to raise a defense as to any such action clear and convincing evidence that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause to believe that his or her conduct was lawful. Neither the failure of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. In any suit brought by a director or executive officer to enforce a right to indemnification or to an advancement of expenses hereunder, the burden of proving that the director or executive officer is not entitled to be indemnified, or to such advancement of expenses, under this Article XI or otherwise shall be on the corporation. (e) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of its Directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the Delaware General Corporation Law. (f) SURVIVAL OF RIGHTS. The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a Director, officer, employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (g) INSURANCE. To the fullest extent permitted by the Delaware General Corporation Law, the corporation, upon approval by the Board of Directors, may 21. 22 purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Bylaw. (h) AMENDMENTS. Any repeal or modification of this Bylaw shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any director, officer, employee or agent of the corporation. (i) SAVING CLAUSE. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each Director and executive officer to the full extent not prohibited by any applicable portion of this Bylaw that shall not have been invalidated, or by any other applicable law. (j) CERTAIN DEFINITIONS. For the purposes of this Bylaw, the following definitions shall apply: (1) The term "PROCEEDING" shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative. (2) The term "EXPENSES" shall be broadly construed and shall include, without limitation, court costs, attorneys' fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding. (3) The term the "CORPORATION" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Bylaw with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (4) References to a "director," "executive officer," "officer," "employee," or "agent" of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation as, respectively, a director, 22. 23 executive officer, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise. (5) References to "OTHER ENTERPRISES" shall include employee benefit plans; references to "FINES" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "SERVING AT THE REQUEST OF THE CORPORATION" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "NOT OPPOSED TO THE BEST INTERESTS OF THE CORPORATION" as referred to in this Bylaw. ARTICLE XII NOTICES SECTION 43. NOTICES. (a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions of these Bylaws, notice is required to be given to any stockholder, it shall be given in writing, timely and duly deposited in the United States mail, postage prepaid, and addressed to his last known post office address as shown by the stock record of the corporation or its transfer agent. (b) NOTICE TO DIRECTORS. Any notice required to be given to any Director may be given by the method stated in subsection (a), or by facsimile, telex or telegram, except that such notice other than one which is delivered personally shall be sent to such address as such Director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known post office address of such Director. (c) ADDRESS UNKNOWN. If no address of a stockholder or Director be known, notice may be sent to the office of the corporation required to be maintained pursuant to Section 2 hereof. (d) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by a duly authorized and competent employee of the corporation or its transfer agent appointed with respect to the class of stock affected, specifying the name and address or the names and addresses of the stockholder or stockholders, or Director or Directors, to whom any such notice or notices was or were given, and the time and method of giving the same, shall, in the absence of fraud, be prima facie evidence of the facts therein contained. 23. 24 (e) TIME NOTICES DEEMED GIVEN. All notices given by mail, as above provided, shall be deemed to have been given as at the time of mailing and all notices given by facsimile, telex or telegram shall be deemed to have been given as of the sending time recorded at time of transmission. (f) METHODS OF NOTICE. It shall not be necessary that the same method of giving notice be employed in respect of all Directors, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in respect of any other or others. (g) FAILURE TO RECEIVE NOTICE. The period or limitation of time within which any stockholder may exercise any option or right, or enjoy any privilege or benefit, or be required to act, or within which any Director may exercise any power or right, or enjoy any privilege, pursuant to any notice sent him in the manner above provided, shall not be affected or extended in any manner by the failure of such stockholder or such Director to receive such notice. (h) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever notice is required to be given, under any provision of law or of the Certificate of Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the Delaware General Corporation Law, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful. (i) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever notice is required to be given, under any provision of law or the Certificate of Incorporation or Bylaws of the corporation, to any stockholder to whom (i) notice of two consecutive annual meetings, and all notices of meetings or of the taking of action by written consent without a meeting to such person during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities during a twelve month period, have been mailed addressed to such person at his address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall be taken or held without notice to such person shall have the same force and effect as if such notice had been duly given. If any such person shall deliver to the corporation a written notice setting forth his then current address, the requirement that 24. 25 notice be given to such person shall be reinstated. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the Delaware General Corporation Law, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to this paragraph. ARTICLE XIII AMENDMENTS SECTION 44. AMENDMENTS. Subject to paragraph (h) of Section 42 of the Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of the Voting Stock. The Board of Directors shall also have the power to adopt, amend, or repeal Bylaws. ARTICLE XIV LOANS TO OFFICERS SECTION 45. LOANS TO OFFICERS. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiaries, including any officer or employee who is a Director of the corporation or its subsidiaries, whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without interest and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this Section 46 shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute. 25. EX-4.3 7 EXHIBIT 4.3 1 EXHIBIT 4.3 AURORA BIOSCIENCES CORPORATION AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT DECEMBER 27, 1996 2 AURORA BIOSCIENCES CORPORATION AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT This Investors' Rights Agreement (the "AGREEMENT") is entered into as of December 27, 1996 among (i) AURORA BIOSCIENCES CORPORATION, a Delaware corporation (the "COMPANY"), with its principal office located at 11149 North Torrey Pines Road, La Jolla, CA 92037, (ii) holders of the Company's Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (such holders are listed on Exhibit A attached hereto and are referred to herein as the "PREVIOUS INVESTORS"), and (iii) the purchasers listed on the Schedule of Purchasers attached to that certain Series D Preferred Stock Purchase Agreement of even date herewith (THE "PURCHASE AGREEMENT") and Exhibit B hereto (the "PURCHASERS"). Each of the Previous Investors and the Purchasers are referred to herein as a "STOCKHOLDER;" collectively they are referred to as the "STOCKHOLDERS." This Agreement supersedes, amends and restates in its entirety that certain Investors Rights Agreement dated as of March 8, 1996, by and among the Company and the Previous Investors, as amended by that certain Amendment Agreement dated April 9, 1996 as further amended by that certain Second Amendment Agreement dated April 29, 1996 (collectively, the "FORMER INVESTORS RIGHTS AGREEMENT"). RECITALS A. The Company proposes to issue and sell up to an aggregate of 572,536 shares of its Series D Preferred Stock pursuant to the Purchase Agreement (the "FINANCING"). B. Each of the Previous Investors desire to waive his, her or its right to receive notice of the Financing and to purchase a certain portion of the Series D Preferred Stock to be sold by the Company in the Financing as set forth in Section 3 of the Former Investors Rights Agreement. C. As a condition of entering into the Purchase Agreement, the Purchasers have requested that the Company extend to them registration rights, information rights and other rights as set forth herein. D. In order to induce the Purchasers to enter into the Purchase Agreement and to induce the Purchasers to invest funds in the Company, the Company and the Previous Investors have agreed to enter into this Agreement in order to amend and restate the Former Investors Rights Agreement so that this Agreement is the sole agreement with respect to the obligations and rights contained herein. E. Section 4.7 of the Former Investors Rights Agreement provides that such agreement may be amended with the written consent of the Company and the holders of at least two-thirds (2/3) of the shares which are then Registrable Securities (as defined in the Former 1 3 Investors Rights Agreement) and that such amendment shall be binding upon the Stockholders (as defined in the Former Investors Rights Agreement), each of their transferees and the Company. NOW THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties hereby agree that the Former Investors Rights Agreement is amended and restated in its entirety to read as set forth above and as follows (unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned in the Purchase Agreement): AGREEMENT 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS 1.1. RESTRICTIONS ON TRANSFERABILITY. Neither the shares of the Company's Series A, Series B, Series C or Series D Preferred Stock issued to the Stockholders pursuant to the Purchase Agreement or pursuant to that certain Preferred Stock Purchase Agreement dated March 8, 1996, as amended by that certain Amendment Agreement dated April 9, 1996, as further amended by that certain Second Amendment Agreement dated April 29, 1996 (the "DESIGNATED PREFERRED") nor the Registrable Securities (as defined below) shall be transferable except upon compliance with (i) the Right of First Refusal set forth in Section 45 of the Company's Bylaws, (ii) the conditions specified in this Agreement, which conditions are intended to insure compliance with the provisions of the Securities Act (as defined below), and (iii) if such shares are Restricted Securities (as defined below), upon such other terms as are in the opinion of counsel to the Company necessary to comply with the provisions of the Securities Act; provided, however that such restrictions shall not apply to transfers under the circumstances described in Sections 1.5, 1.6 or 1.7 and that the requirements of clause (iii) shall not apply to a transfer without consideration to one or more partners or shareholders of a Stockholder (e.g., an in-kind distribution pursuant to the terms of the Stockholder's governing documents). Except for transfers made pursuant to Rule 144 of the Securities Act, each Stockholder will cause any proposed transferee of Designated Preferred or Registrable Securities held by such Stockholder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement and it will be a condition precedent to the effectiveness of any such transfer that such Stockholder shall have secured a written agreement of such transferee in form and substance satisfactory to the Company to that effect, if so requested by the Company; provided, however, that this sentence shall not apply with respect to any proposed transferee in whose hands the transferred shares will not be Restricted Securities. 1.2. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: "COMMISSION" shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. 2 4 "COMMON STOCK" shall mean the Common Stock, $.001 par value, of the Company, as constituted on the date of this Agreement. "FORM S-3" shall mean Form S-3 under the Securities Act (as defined below) as in effect on the date of this Agreement, or any substantially similar, equivalent or successor form under the Securities Act. "HOLDER" shall mean each holder of Registrable Securities. "INITIAL PUBLIC OFFERING" shall mean the Company's initial firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "ACT"), covering the offer and sale by the Company of Common Stock to the public at an aggregate offering price of not less than $10,000,000 (prior to underwriters' discounts and expenses), and at a public offering price not less than $6.00 per share, subject to adjustment for stock splits, stock dividends, reorganizations and the like with respect to such shares. "REGISTRABLE SECURITIES" means shares of the Company's Common Stock (i) issued or issuable upon conversion of Designated Preferred which have not been sold to the public, and (ii) issued in respect of the shares of Common Stock referred to under the foregoing clause (i) by reason of any stock split, stock dividend, recapitalization or similar event which have not been sold to the public. The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in complying with Sections 1.5, 1.6 and 1.7 hereof other than Selling Expenses, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel, blue sky fees and expenses (including counsel fees), and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company). "RESTRICTED SECURITIES" shall mean the securities of the Company required to bear the legends set forth in Section 1.3 hereof or legends substantially similar thereto. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "SELLING EXPENSES" shall mean all underwriting discounts and selling commissions applicable to the applicable sale. 1.3. RESTRICTIVE LEGEND(S). Each certificate representing the shares of Designated Preferred and Registrable Securities shall (unless otherwise permitted by the provisions of Section 1.4 below) be stamped or otherwise imprinted with legends in the following form (in addition to any other legend required by the Bylaws of the Company, or under applicable California or other state securities laws): 3 5 (A) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION. (B) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION'S STOCKHOLDERS, AS PROVIDED IN THE BYLAWS OF THE CORPORATION. 1.4. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate representing the Restricted Securities, by acceptance thereof, agrees to comply, in addition to the requirements of Section 45 of the Company's Bylaws, in all respects with the provisions of this Section 1.4. Prior to any proposed transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, the holder thereof shall give written notice to the Company of such holder's intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, and shall be accompanied (except in transactions in compliance with Rule 144 and except for transfers without consideration to one or more partners or shareholders of the holder (e.g., an in-kind distribution pursuant to the terms of the holder's governing documents)) by either (i) a written opinion of legal counsel who shall be reasonably satisfactory to the Company (it being agreed that Testa Hurwitz & Thibeault is satisfactory) addressed to the Company and reasonably satisfactory in form and substance to the Company's counsel, to the effect that the proposed transfer of the Restricted Securities may be effected without registration under the Securities Act, or (ii) a "no action" letter from the Commission, a copy of any holder's request (together with all supplements or amendments thereto) for which shall have been provided to the Company, at or prior to the time of first delivery to the Commission's staff, to the effect that the transfer of such securities without registration will not result in a recommendation by such staff that action be taken with respect thereto, whereupon the holder of such Restricted Securities shall be entitled to transfer such Restricted Securities in accordance with the terms of the notice delivered by the holder to the Company. Each certificate evidencing the Restricted Securities transferred as provided for above shall bear the appropriate restrictive legends set forth in Section 1.3 above, except that such certificate shall not bear the restrictive legend set forth in Section 1.3(a) above if, in the opinion of counsel for the Company or counsel for such holder, such legend is not required in order to establish compliance with any provisions of the Securities Act and except that such certificate shall not bear the restrictive legend set forth in Section 1.3(b) above if the right of first refusal set forth in the Company's Bylaws is no longer applicable. 1.5. DEMAND REGISTRATION RIGHTS. (A) Commencing on the earlier of (i) five (5) years after the date hereof, or (ii) one (1) year after the Company's initial public offering of securities pursuant to a registration statement 4 6 under the Securities Act, if the Company shall receive a written request (specifying that it is being made pursuant to this Section 1.5) from the Holders of at least fifty percent (50%) of the Registrable Securities that the Company file a registration statement or similar document under the Securities Act covering the registration of the greater of (i) 20% of the shares which are then Registrable Securities, or (ii) Registrable Securities the expected aggregate offering price to the public of which is at least $5,000,000, then the Company shall promptly notify all other Holders of such request and shall use its best efforts to promptly and expeditiously cause all Registrable Securities that such Holders have requested, within 15 days after receipt of such written notice, to be registered in accordance with this Section 1.5 to be registered under the Securities Act. The Holders making the written request pursuant to this Section 1.5 shall be referred to hereinafter as the "INITIATING HOLDERS". Notwithstanding the foregoing: (i) the Company shall not be obligated to effect a registration pursuant to this Section 1.5 during the period starting with the date one hundred twenty (120) days prior to the Company's estimated date of filing of, and ending on a date one hundred twenty (120) days following the effective date of, a registration statement pertaining to an underwritten public offering of the Company's securities, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and that the Company's estimate of the date of filing such registration statement is made in good faith; or (ii) if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company's obligation to use its best efforts to file a registration statement shall be deferred for a period not to exceed six (6) months; provided, however, that the Company shall not obtain such a deferral more than once in any 12-month period. The Company shall not be obligated to effect more than two (2) registrations pursuant to this Section 1.5 for which holders of Registrable Securities are the Initiating Holders; provided, however that such obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities requested by Holders to be registered pursuant to such demand shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto. (B) If the Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of an underwriting, they shall so advise the Company as part of their demand made pursuant to this Section 1.5, and the Company shall include such information in the notice referred to in Section 1.5(a). In such event, the right of any Holder to registration pursuant to this Section 1.5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall, together with all Holders proposing to distribute their securities through such underwriting, enter into an underwriting agreement in customary form with the underwriter or underwriters selected by a majority of interest of the Initiating Holders and reasonably satisfactory to the Company. Notwithstanding any other provision of this Section 1.5, if the underwriter shall advise the Company in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation of the number of shares to be underwritten, then the 5 7 Company shall so advise all Holders of Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced and shall be allocated pro rata among such Holders thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Initiating Holders. The Registrable Securities so withdrawn shall also be withdrawn from registration. If by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the underwriter limitation in this Section 1.5. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account (or for the account of other securityholders) in such registration if the underwriter so agrees and if the number of Registrable Securities that would otherwise have been included in such registration and underwriting will not thereby be limited and if such inclusion will not adversely affect the marketing of the Registrable Securities. Except for registration statements on Form S-4, S-8 or any successor thereto, the Company will not file with the Commission any other registration statement with respect to its Common Stock, whether for its own account or that of other stockholders, from the date of receipt of a request for registration from Initiating Holders pursuant to this Section 1.5 until the earlier of (a) one hundred twenty (120) days from the receipt of the initial request pursuant to Section 1.5(a) or (b) the completion of the period of distribution of the registration contemplated thereby. Although the Company shall have no obligation to register any Designated Preferred, in any underwritten public offering contemplated by this Section 1.5 or Section 1.6 or 1.7, holders of Designated Preferred shall be entitled to sell shares of Designated Preferred representing Registrable Securities to be included in such underwriting to the underwriters for conversion and sale of the Registrable Securities issued upon conversion thereof. 1.6. COMPANY REGISTRATION. (A) If, at any time or from time to time, the Company shall determine to register any of its securities, either for its own account or the account of a security holder or holders exercising their respective demand registration rights, other than a registration (A) relating solely to employee benefit plans on Form S-8 or similar forms which may be promulgated in the future, (B) a registration on Form S-4 or similar forms which may be promulgated in the future relating solely to a Securities and Exchange Commission Rule 145 or similar transaction or (C) in connection with the Company's Initial Public Offering, the Company will (i) promptly give to each Holder written notice thereof and (ii) include in such registration (and any related qualification under Blue Sky laws or other compliance), 6 8 and in any underwriting involved therein, all Registrable Securities of such Holders as specified in a written request or requests made within 15 days after receipt of such written notice from the Company. (B) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so indicate in the notice given pursuant to Section 1.6(a). In such event the right of any Holder to registration pursuant to this Section 1.6 shall be conditioned upon such Holder's agreeing to participate in such underwriting and in the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company or by other holders exercising any demand registration rights to the extent such holders are not excluded from the registration pursuant to the Underwriter Cutback described below. Notwithstanding any other provision of this Section 1.6, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities or other securities from such registration and underwriting (hereinafter an "UNDERWRITER CUTBACK"). In the event of an Underwriter Cutback, the Company shall so advise all Holders and the other holders distributing their securities through such underwriting, and the Underwriter Cutback shall be implemented on the basis that the holders who are not Holders shall be cut back before any cutback of Holders. If the limitation determined by the underwriter requires an Underwriter Cutback with respect to the Registrable Securities to be included, such Underwriter Cutback shall be in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. 1.7. FORM S-3 REGISTRATION RIGHTS. After the Initial Public Offering, the Company shall use its best efforts to qualify for registration on Form S-3, and to that end the Company shall use its best efforts to comply with the reporting requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), within twelve (12) months following the effective date of the first registration of any securities of the Company for an underwritten registered public offering. After the Company has qualified for the use of Form S-3, and subject to the provisions of Section 1.14, each Holder shall have the right to request registrations on Form S-3 (such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended method of disposition of such shares by each such Holder), subject only to the following limitations: (A) The Company shall not be obligated to cause a registration on Form S-3 to become effective prior to one hundred twenty (120) days following the effective date of a Company initiated registration (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145); (B) The Company shall not be required to effect a registration pursuant to this Section 1.7 unless the Holder or Holders requesting such a registration propose to dispose of shares of Registrable Securities having an aggregate disposition price (before deduction of underwriting discounts and expenses of sale) of at least $1,000,000 (unless the value of all of the Registrable 7 9 Securities held by all Holders is less than $1,000,000, in which case the Holders shall be entitled to a final demand registration pursuant to this Section 1.7 for an amount equal to the value of the Registrable Securities held by all Holders at the time of such demand; provided that for purposes of the foregoing, "value" shall be determined based on the average of the last sale prices of the Company's Common Stock on the principal exchange or market on which such Common Stock is traded during the five (5) trading days immediately preceding such demand); (C) The Company shall not be required to effect a registration pursuant to this Section 1.7 if the Company shall furnish to the requesting Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company or its stockholders for the registration statement to be filed at the date filing would be required, in which case the Company shall have an additional period of not more than one hundred twenty (120) days within which to file such registration statement; provided however, that the Company shall not use this right more than once in any twelve- month period; (D) The Company shall not be required to maintain and keep any such registration on Form S-3 effective for a period exceeding one hundred twenty (120) days from the effective date thereof; and (E) The Company shall not be obligated to cause a registration on Form S-3 if in the prior twelve-month period the Company has caused a registration on Form S-3 to become effective as the result of a request pursuant to this Section 1.7. The Company shall give notice to all Holders of the receipt of a request for registration pursuant to this Section 1.7 and shall use its best efforts to cause all Registrable Securities that such Holders have requested, within 15 days after receipt of such written notice, be registered in accordance with this Section 1.7 to be registered under the Securities Act. Subject to the foregoing, the Company will use its best efforts to effect promptly any registration pursuant to this Section 1.7. The provisions of Section 1.5(b) shall apply to any registration effected pursuant to this Section 1.7 1.8. EXPENSES OF REGISTRATION. All Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Sections 1.5, 1.6 and 1.7 (exclusive of Selling Expenses but inclusive of the reasonable fees and expenses of one special counsel to the selling Holders) shall be borne by the Company. Notwithstanding anything to the contrary herein, the Company shall not be required to pay for any expenses of any registration proceeding under Section 1.5 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to have been registered, unless such Holders agree to forfeit their right to a demand registration pursuant to Section 1.5 (in which event such right shall be forfeited by all Holders). In the absence of such an agreement to forfeit, the Holders of Registrable Securities to have been registered shall bear all such expenses pro rata on the basis of the Registrable Securities to have been registered. Notwithstanding the foregoing, however, if at the time of the withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request, of which the Company had knowledge at the time of the request, then the Holders shall not be required to pay any of said expenses and shall retain their rights pursuant to Section 1.5. 8 10 1.9. REGISTRATION PROCEDURES. In the case of each registration, qualification or compliance effected by the Company pursuant to this Section 1, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will: (A) Keep such registration, qualification or compliance effective for a period of one hundred twenty (120) days or until the Holder or Holders have completed the distribution described in the registration statement relating thereto, whichever first occurs; (B) Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement; (C) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them; (D) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders or the underwriters, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; (E) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with (and provide customary due diligence materials and information to) the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; (F) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and (G) use its best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed. Notwithstanding any provision to the contrary in this Agreement, the Company shall not be required in connection with any registration pursuant to Sections 1.5, 1.6 or 1.7 to qualify shares in any state or jurisdiction which requires the Company to qualify to do business or to file a general consent to service of process. 9 11 1.10. INDEMNIFICATION. (A) The Company will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Section 1, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or regulation promulgated under the Securities Act applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will promptly reimburse each such Holder, each of its officers and directors and partners, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred (as and when incurred) in connection with investigating, preparing to defend or defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder or underwriter and stated to be specifically for use therein. (B) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, severally and not jointly indemnify the Company, each of its directors and officers, each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and partners and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof) including any of the foregoing incurred in settlement of any litigation commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or regulation promulgated under the Securities Act applicable to the Company in connection with any such registration, qualification, or compliance, and will promptly reimburse the Company, such Holders, such directors, officers, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred (as and when incurred) in connection with investigation, preparing to defend or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged 10 12 omission) is made in such registration statement, prospectus, offering circular or other document or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder and stated to be specifically for use therein; provided, however, that the obligations of each such Holder hereunder shall be limited to an amount equal to the proceeds to each such Holder of Registrable Securities sold in such registration as contemplated herein. (C) Each party entitled to indemnification under this Section 1.10 (the "INDEMNIFIED PARTY") shall give notice to the party required to provide indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at its own expense; provided, however, that, if the defendants in any such claim or litigation include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1 unless such failure resulted in actual detriment to the Indemnifying Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party a release from all liability in respect of such claim or litigation. (D) If the indemnification provided for in this Section 1.10 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission, provided, however, that in no case will any seller of Registrable Securities be required to contribute any amount in excess of the amount of proceeds to such seller of Registrable Securities sold pursuant to the registration statement with respect to which the contribution obligation arose. 11 13 (E) The obligations of the Company and Holders under this Section 1.10 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 1 and otherwise. 1.11. INFORMATION BY HOLDER. The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Section 1. 1.12. RULE 144 REPORTING. With a view to making available the benefits of certain rules and regulations of the Commission which may at any time permit the sale of the Restricted Securities to the public without registration, after such time as a public market exists for the Common Stock of the Company, the Company agrees to: (A) Use its best efforts to make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act at all times after the effective date of the first registration under the Securities Act filed by the Company for an offering of its securities to the general public; (B) Use its best efforts to then file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act at any time after it has become subject to such reporting requirements; (C) So long as a Stockholder owns any Restricted Securities, to furnish to the Stockholder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 (at any time after 90 days after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public) and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as a Stockholder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Stockholder to sell any such securities without registration. 1.13. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to register securities granted under Sections 1.5, 1.6 and 1.7 may be assigned or otherwise conveyed to a transferee or assignee of Registrable Securities, who shall be considered a "Holder," and the transferred shares shall be considered "Registrable Securities," for purposes of this Section 1, provided that (i) said transferee acquires Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction, and (ii) the Company is given written notice by such Holder at the time of or within a reasonable time (but not more than 30 days) after said transfer, stating the name and address of said transferee or assignee and identifying the securities with respect to which such registration rights are being assigned, subject to said transferee's agreement to be bound by and comply with the provisions of this Section 1. 12 14 1.14. TERMINATION OF REGISTRATION RIGHTS. The registration rights granted pursuant to this Section 1 shall terminate (i) upon the seventh anniversary of the effective date of the Initial Public Offering or (ii) if earlier, as to any individual Holder, at such time after the Company's Initial Public Offering as all Registrable Securities held by such Holder can be sold within any three-month period without compliance with the registration requirements of the Securities Act pursuant to Rule 144 (including Rule 144(k)) promulgated thereunder. 1.15. "MARKET STAND OFF" AGREEMENT. Each Holder hereby agrees that it shall not, to the extent requested by the Company and the underwriters managing any underwritten offering of the Company's Common Stock (or other securities), sell or otherwise transfer or dispose of (other than to those who agree to be similarly bound) any Registrable Securities or any other securities of the Company during the one hundred eighty (180) day period following the effective date of a registration statement of the Company filed in connection with the Company's Initial Public Offering. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities and other securities of the Holders (and the shares or securities of every other person subject to the foregoing restriction) until the end of such one hundred eighty (180) day period. 1.16. OTHER REGISTRATION RIGHTS. The Company shall not grant to any third party any registration rights more favorable than or inconsistent with any of those contained herein, so long as any of the registration rights under this Agreement remains in effect. 1.17. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often as, there is any change in the Common Stock or the Designated Preferred by way of a stock split, stock dividend, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby shall continue with respect to the Common Stock or the Designated Preferred as so changed. 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS 2.1. FINANCIAL INFORMATION. Subject to Section 2.16, the Company will furnish the following reports to the Stockholders for so long as the Stockholders are Holders of Registrable Securities: (A) As soon as practicable after the end of each fiscal year (other than the fiscal year ended March 31, 1996), and in any event within 90 days thereafter, audited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year, and consolidated statements of income, stockholders' equity and cash flows of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company; and (B) As soon as practicable after the end of each fiscal quarter, and in any event within 45 days thereafter, unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such quarter, and unaudited consolidated statements of income, stockholders' 13 15 equity and cash flows of the Company and its subsidiaries, if any, for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, prepared in accordance with generally accepted accounting principles (but subject to normal year-end audit adjustments) and certified by the chief financial officer. 2.2. ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights granted pursuant to Section 2.1 and Section 2.3 may be assigned by the Stockholders (or by any permitted transferee of any such rights) so long as (i) the Company is given notice of any such assignment within a reasonable time after the date the same is effected, (ii) the transferee shall have acquired Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction, and (iii) the transferee is not engaged in a business that is competitive with the Company. 2.3. INSPECTION AND VISITATION RIGHTS. Each Stockholder, so long as such Stockholder holds Registrable Securities, shall have the right to visit and inspect the Company's principal place of business, subject to such limitations and restrictions as the President of the Company in good faith determines to be necessary for the protection of the Company's Proprietary Information. 2.4. RESERVE FOR CONVERSION SHARES. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, for the purpose of effecting the conversion of the Designated Preferred and otherwise complying with the terms of this Agreement, such number of its duly authorized shares of Common Stock as shall be sufficient to effect the conversion of the Designated Preferred from time to time outstanding or otherwise to comply with the terms of this Agreement. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of the Designated Preferred or otherwise to comply with the terms of this Agreement, the Company will forthwith take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company will obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon conversion of the Designated Preferred. 2.5. PROPERTIES, BUSINESS, INSURANCE. The Company shall maintain and cause each of its subsidiaries to maintain as to their respective properties and business, with financially sound and reputable insurers, insurance against such casualties and contingencies and of such types and in such amounts as is customary for companies similarly situated, which insurance shall be deemed by the Company to be sufficient. 2.6. RESTRICTIVE AGREEMENTS PROHIBITED. Neither the Company nor any of its subsidiaries shall become a party to any agreement which by its terms restricts the Company's performance of this Agreement, the Management Rights Agreements, the Voting Agreements or the Restated Certificate. 2.7. TRANSACTIONS WITH AFFILIATES. Except for transactions contemplated by the Agreements or as otherwise approved by the Board of Directors, neither the Company nor any of its subsidiaries shall enter into any material transaction with any director, officer, employee or holder of more than 5% of the outstanding capital stock of any class or series of capital stock of the Company or any of its subsidiaries, or to the Company's knowledge any member of the family 14 16 of any such person, any corporation, partnership, trust or other entity in which any such person, or member of the family of any such person, is a director, officer, trustee, partner or holder of more than 5% of the outstanding capital stock thereof, except for transactions on customary terms related to such person's employment. 2.8. EXPENSES OF DIRECTORS. The Company shall promptly reimburse in full, each director of the Company who is not an employee of the Company for all of his reasonable out-of-pocket expenses incurred in attending each meeting of the Board of Directors of the Company or any Committee thereof. 2.9. BYLAWS. The Company shall at all times cause its Bylaws to provide that (a) any three directors shall have the right to call a meeting of the Board of Directors and (b) the number of directors fixed in accordance therewith shall in no event conflict with any of the terms or provisions of the Designated Preferred as set forth in the Restated Certificate. The Company shall at all times maintain provisions in its Bylaws and/or Certificate of Incorporation indemnifying all directors against liability and absolving all directors from liability to the Company and its stockholders to the maximum extent permitted under the laws of the State of Delaware. 2.10. PERFORMANCE OF CONTRACTS. The Company shall not amend, modify, terminate, waive or otherwise alter, in whole or in part, any of the Proprietary Information Agreements or the provisions contained in the Employment Amendment without the approval of the Company's Board of Directors. 2.11. PROPRIETARY INFORMATION AGREEMENTS. The Company shall use its best efforts to obtain, and shall cause its subsidiaries to use their best efforts to obtain, a Proprietary Information Agreement in substantially the form of Exhibit E to the Purchase Agreement from all future officers, key employees and other employees who will have access to confidential information of the Company or any of its subsidiaries, upon their employment or engagement by the Company or any of its subsidiaries. The Company shall use its reasonable best efforts to cause any consultant with whom the Company contracts to agree to maintain the confidentiality of the Company's confidential or Proprietary information, and to assign to the Company any proprietary rights arising from work performed by the consultant for the Company. 2.12. COMPLIANCE WITH LAWS. The Company shall comply, and cause each subsidiary to comply, with all applicable laws, rules, regulations and orders, noncompliance with which could materially adversely affect its business or condition, financial or otherwise. 2.13. KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall keep, and cause each subsidiary to keep, adequate records and books of account, in which complete entries will be made in accordance with United States generally accepted accounting principles ("GAAP") consistently applied, reflecting financial transactions of the Company and each subsidiary in accordance with GAAP. 2.14. U.S. REAL PROPERTY INTEREST STATEMENT. The Company shall provide prompt written notice to each Stockholder following any "determination date" (as defined in Treasury Regulation Section 1.897-2(c)(i)) on which the Company becomes a United States real property holding corporation. In addition, upon a written request by any Stockholder, the Company shall provide such 15 17 Stockholder with a written statement informing the Stockholder whether such Stockholder's interest in the Company constitutes a U.S. real property interest. The Company's determination shall comply with the requirements of Treasury Regulation Section 1.897-2(h)(1) or any successor regulation, and the Company shall provide timely notice to the Internal Revenue Service, in accordance with and to the extent required by Treasury Regulation Section 1.897-2(h)(2) or any successor regulation, that such statement has been made. The Company's written statement to any Stockholder shall be delivered to such Stockholder within ten (10) days of such Stockholder's written request therefor. In addition, upon request by any foreign Stockholder but subject to the succeeding sentence, the Company shall provide along with such statement either or both of the following documents: (i) an affidavit in conformance with the requirements of Section 1445(b)(3) of the Code and the regulations thereunder or (ii) a notarized statement, executed by an officer having actual knowledge of the facts, that the shares of Company stock held by such Stockholder are of a class that is regularly traded on an established securities market, within the meaning of Section 1445(b)(6) of the Code and the regulations thereunder. If the Company is unable to provide either of the documents described in (i) or (ii) above upon request, it shall promptly, and in any event within such ten (10) day period, notify such Stockholder in writing of the reason for such inability. Finally, upon the request of a foreign Stockholder and without regard to whether either document described in (i) or (ii) above has been requested, the Company shall reasonably cooperate with the efforts of such foreign Stockholder to obtain a "qualifying statement" within the meaning of Section 1445(b)(4) of the Code and the regulations thereunder or such other documents as would excuse a transferee of a foreign Stockholder's interest from withholding of income tax imposed pursuant to Section 897(a) of the Code. 2.15. RULE 144A INFORMATION. The Company shall, at all times during which it is not subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, provide in writing, upon the written request of any Stockholder or a prospective buyer of Registrable Securities (including Designated Preferred before conversion into Registrable Securities) from any Stockholder, all information required by Rule 144A(d)(4)(i) of the General Regulations promulgated by the Commission under the Securities Act ("RULE 144A INFORMATION"). The Company's obligations under this Section 2.15 shall at all times be contingent upon the relevant Stockholder's obtaining from the prospective buyer of such Registrable Securities a written agreement to take all reasonable precautions to safeguard the Rule 144A Information from disclosure to anyone other than a person who will assist such buyer in evaluating the purchase of such Registrable Securities. 2.16. TERMINATION OF COVENANTS. The covenants set forth in Section 2.1, Sections 2.3 through 2.13 and Section 2.15 shall terminate and be of no further force or effect upon the earlier of (i) the closing of the Initial Public Offering, or (ii) the date on which none of the Registrable Securities (including shares of Designated Preferred prior to conversion into Common Stock) is outstanding. The Covenants set forth in Section 2.14 shall terminate five (5) years after the closing of the Initial Public Offering. 2.17. CONFIDENTIAL INFORMATION, ETC. Each Holder agrees that (i) all information received by it pursuant to this Section 2 which the Company designates as or promptly confirms in writing to be "Confidential" or the like, and (ii) any other information relating to the Company's technology, processes or formulas that is disclosed by the Company to any Holder in writing and is marked "Confidential" or the like, shall be considered confidential information. Each Holder further agrees that 16 18 it shall hold all such confidential information in confidence and shall not, without the Company's prior express written consent, disclose any such confidential information to any third party other than its counsel, accountants, employees and other professional advisors, representatives and agents, all of whom shall have a need to know such information and shall be bound by the provisions of this Section 2.17, nor shall such Holder, without the Company's prior express written consent, use such confidential information for any purpose other than evaluation of such Holder's investment in the Company; provided, however, that the foregoing obligation to hold in confidence and not to disclose confidential information shall not apply to any such information that (a) was known to the public or the Holder or its representatives prior to disclosure by the Company, (b) becomes known to the public through no fault of such Holder, (c) is disclosed to such Holder on a non-confidential basis by a third party having a legal right to make such disclosure, (d) is independently developed by such Holder, or (e) is required to be disclosed as a matter of law or pursuant to court order; and provided further that the foregoing obligation to hold in confidence and not to disclose confidential information shall not prohibit such Holder from disclosing to its partners or shareholders financial and other information described in clause (i) of this Section 2.17 which is of a type customarily provided by such Holder to such partners or shareholders in the ordinary course or from disclosing to a bona-fide prospective transferee of its securities of the Company such financial and other information described in such clause (i) which is reasonably necessary to provide such transferee with adequate disclosure of material information. 3. RIGHTS OF FIRST REFUSAL 3.1. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES. (A) The Company hereby grants to each Stockholder the right of first refusal to purchase its Pro Rata Share (defined below) of all (or any part) of New Securities (defined below) that the Company may from time to time propose to sell and issue. Stockholder's "PRO RATA SHARE," for purposes of this Section 3, is the ratio of the number of shares of Common Stock (assuming conversion of all shares of Designated Preferred) then held by such Stockholder to the total number of shares of Common Stock then outstanding (assuming conversion of all shares of Designated Preferred). This right of first refusal shall be subject to the following provisions: (B) "NEW SECURITIES" shall mean any Common Stock or Preferred Stock of the Company, whether now authorized or not, and rights, options, or warrants to purchase said Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into or exchangeable for said Common Stock or Preferred Stock; provided, however, that "NEW SECURITIES" does not include (i) the Designated Preferred; (ii) securities issuable upon conversion of or with respect to the Designated Preferred; (iii) shares of the Company's Common Stock (or related options) issued to officers, directors, employees of and/or consultants to the Company pursuant to plans or agreements as approved by the Company's Board of Directors; (iv) shares of the Company's Common Stock or Preferred Stock issued to holders of the Designated Preferred in connection with any stock split, stock dividend, or recapitalization by the Company; (v) securities issued in connection with any equipment leasing, technology licensing, corporate partnering, strategic alliance, acquisition, merger, purchase of assets or similar transaction as approved by the Company's Board of Directors; 17 19 (vi) shares of Common Stock issued to holders of Common Stock in connection with a stock split or stock dividend with respect to the Common Stock; and (vii) shares issued in the Initial Public Offering. (C) In the event that the Company proposes to undertake an issuance of New Securities, it shall give the Stockholders written notice of its intention, describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. The Stockholders shall have twenty (20) days from the date of receipt of any such notice to agree to purchase for cash some or all of its Pro Rata Share of such New Securities for the price and upon the general terms, including deferred payment, if any, specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. (D) In the event that any Stockholder (a "NON-EXERCISING STOCKHOLDER") fails to exercise in full the right of first refusal within said twenty (20) day period, notice shall promptly be given by the Company to those Stockholders who have exercised the right of first refusal in full. Such Stockholders shall have the right for an additional ten (10) days to elect by notice to the Company to purchase any or all of the New Securities which the Non-exercising Stockholders were entitled to purchase but elected not to, with such right of over-subscription to be allocated among such Stockholders in accordance with their respective Pro Rata Shares or as they may otherwise agree. After the aggregate thirty (30) day period during which Stockholders may exercise their first refusal right, the Company shall have one hundred twenty (120) days thereafter to sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within one hundred twenty (120) days from the date of said agreement) the New Securities respecting which the Stockholder's rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company's notice. In the event the Company has not sold the New Securities within said one hundred twenty (120) day period (or sold and issued New Securities in accordance with the foregoing agreement within one hundred twenty (120) days from the date of said agreement), the Company shall not thereafter issue or sell any New Securities, without first offering such securities to the Stockholders in the manner provided above. (E) The right of first refusal granted under this Section 3.1 shall not apply to and shall expire upon the closing of the Company's Initial Public Offering. (F) The rights granted pursuant to this Section 3.1 may be assigned by the Stockholder (or by any permitted transferee of any such rights) so long as (i) the Company is given notice of any such assignment within a reasonable time after the date the same is effected and (ii) the transferee shall have acquired Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction. 18 20 4. MISCELLANEOUS 4.1. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California as applicable to contracts entered into and performed entirely within the State of California by California residents. 4.2. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 4.3. ENTIRE AGREEMENT. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. 4.4. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile or by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Stockholder, to such Stockholder's address set forth in the Purchase Agreement or to such other address as such Stockholder shall have furnished to the Company in writing, (b) if to any other holder of Registrable Securities, at such address as such holder shall have furnished the Company in writing, or (c) if to the Company, to its address set forth above and addressed to the attention of the President or at such other address as the Company shall have furnished to the Stockholders. All notices and other communications pursuant to the provisions of this Section 4.4 shall be deemed delivered when mailed or sent by facsimile. Notwithstanding the foregoing, any notice or communication to an address outside the United States shall be sent by facsimile and confirmed in writing contemporaneously sent by two day guaranteed international courier. 4.5. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be enforceable against the party actually executing such counterpart, and which together shall constitute one instrument. 4.6. 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 without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. 4.7. APPROVAL OF AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) with the written consent of (i) the Company and (ii) the holders of at least two-thirds (2/3) of the shares which are then Registrable Securities. Any amendment, termination or waiver effected in accordance with this section shall be binding upon the Stockholders, each of their transferees and the Company. The Stockholders acknowledge that by the operation of this Section the holders of two-thirds (2/3) of the outstanding Registrable Securities as aforesaid may have the right and power to diminish or eliminate all rights of such Stockholder under this Agreement. 19 21 The foregoing Amended and Restated Investors Rights Agreement is hereby executed as of the date first above written. THE COMPANY: AURORA BIOSCIENCES CORPORATION By: __________________________ Title: __________________________ THE PURCHASERS: JAPAN ASSOCIATED FINANCE CO., LTD. JAFCO G-6(A) INVESTMENT ENTERPRISE PARTNERSHIP By: __________________________ By: __________________________________ Title: __________________________ Title:__________________________________ JAFCO R-2 INVESTMENT JAFCO G-6(B) INVESTMENT ENTERPRISE PARTNERSHIP ENTERPRISE PARTNERSHIP By: __________________________ By: __________________________________ Title: __________________________ Title:__________________________________ JAFCO R-3 INVESTMENT ENTERPRISE PARTNERSHIP By: __________________________ ________________________________________ ROGER Y. TSIEN Title: __________________________ 20 22 THE PREVIOUS INVESTORS: AVALON MEDICAL PARTNERS, L.P. By: __________________________ Title: __________________________ AVALON BIOVENTURES II, L.P. By: __________________________ Title: __________________________ KINGSBURY CAPITAL PARTNERS, L.P. II By: Kingsbury Associates, L.P. By: __________________________ Title: General Partner ABINGWORTH BIOVENTURES SICAV By: __________________________ Title: __________________________ 21 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 23 NEW ENTERPRISES ASSOCIATES VI, LIMITED PARTNERSHIP By: NEA Partners VI, Limited Partnership, its General Partner By: __________________________ Title: General Partner NEA VENTURES 1996, L.P. By: __________________________ Title: Authorized Signatory DP III ASSOCIATES, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: ___________________________ General Partner DOMAIN PARTNERS III, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: ___________________________ General Partner BIOTECHNOLOGY INVESTMENTS LIMITED By: Old Court Limited By: ___________________________ Attorney - in - Fact 22 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 24 PACKARD INSTRUMENT COMPANY, INC. By: __________________________ Title: __________________________ SEQUANA THERAPEUTICS, INC. By: __________________________ Title: __________________________ GC&H INVESTMENTS By: __________________________ Title: __________________________ - --------------------------------- KEVIN J. KINSELLA - --------------------------------- ROGER Y. TSIEN - --------------------------------- THERESA E. GLOBE 23 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 25 - --------------------------------- CHARLES S. ZUKER - --------------------------------- MICHAEL G. ROSENFELD - --------------------------------- JOHN A. PORCO, JR. - --------------------------------- LUBERT STRYER - --------------------------------- ANDREA S. STRYER - --------------------------------- WALTER LUETOLF FOR ADRIAN J.R. LANGINGER - --------------------------------- NORMAND F. SMITH - --------------------------------- HUGH Y. RIENHOFF, JR. - --------------------------------- JANICE THOMPSON 24 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 26 THE GREENE FAMILY TRUST By:______________________________ HOWARD E. GREENE, JR., TRUSTEE By:______________________________ ARLINE GREENE, TRUSTEE - --------------------------------- TIMOTHY J. RINK HAMBRECHT & QUIST GROUP By:______________________________ Dennis J. Purcell Title:___________________________ 25 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 27 EXHIBIT A PREVIOUS INVESTORS Avalon Medical Partners, L.P. Avalon Bioventures II, L.P. Kingsbury Capital Partners, L.P. II Abingworth Bioventures SICAV New Enterprises Associates VI, Limited partnership NEA Ventures 1996, L.P. DP III Associates, L.P. Domain Partners III, L.P. Biotechnology Investments Limited Packard Instrument Company, Inc. Sequana Therapeutics, Inc. GC&H Investments Kevin J. Kinsella Roger Y. Tsien Theresa E. Globe Charles S. Zuker Michael G. Rosenfeld John A. Porco, Jr. Lubert Stryer Andrea S. Stryer Walter Luetolf for Adrian J.R. Langinger Normand F. Smith Hugh Y. Rienhoff, Jr. Janice Thompson The Greene Family Trust Timothy J. Rink Hambrecht & Quist Group AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 28 EXHIBIT B PURCHASERS Japan Associated Finance Co., Ltd. JAFCO R-2 Investment Enterprise Partnership JAFCO R-3 Investment Enterprise Partnership JAFCO G-6(A) Investment Enterprise Partnership JAFCO G-6(B) Investment Enterprise Partnership Roger Y. Tsien AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 29 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.............................1 1.1. Restrictions on Transferability...................................1 1.2. Certain Definitions...............................................1 1.3. Restrictive Legend(s).............................................2 1.4. Notice of Proposed Transfers......................................3 1.5. Demand Registration Rights........................................4 1.6. Company Registration..............................................6 1.7. Form S 3 Registration Rights......................................6 1.8. Expenses of Registration..........................................8 1.9. Registration Procedures...........................................8 1.10. Indemnification..................................................9 1.11. Information by Holder...........................................11 1.12. Rule 144 Reporting..............................................11 1.13. Transfer of Registration Rights.................................12 1.14. Termination of Registration Rights..............................12 1.15. "Market Stand Off" Agreement....................................12 1.16. Other Registration Rights.......................................12 1.17. Changes in Common Stock or Preferred Stock......................13 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS....................13 2.1. Financial Information............................................13 2.2. Assignment of Rights to Financial Information....................13 2.3. Inspection and Visitation Rights.................................13 2.4. Reserve for Conversion Shares....................................13 2.5. Properties, Business, Insurance..................................14 2.6. Restrictive Agreements Prohibited................................14 2.7. Transactions with Affiliates.....................................14 2.8. Expenses of Directors............................................14 2.9. Bylaws...........................................................14 2.10. Performance of Contracts........................................15 2.11. Proprietary Information Agreements..............................15 2.12. Compliance with Laws............................................15
i 30 2.13. Keeping of Records and Books of Account.........................15 2.14. U.S. Real Property Interest Statement...........................15 2.15. Rule 144A Information...........................................16 2.16. Termination of Covenants........................................16 2.17. Confidential Information, etc...................................16 3. RIGHTS OF FIRST REFUSAL..................................................17 3.1. Right of First Refusal on Company Issuances......................17 4. MISCELLANEOUS............................................................18 4.1. Governing Law....................................................18 4.2. Successors and Assigns...........................................18 4.3. Entire Agreement.................................................18 4.4. Notices, etc.....................................................18 4.5. Counterparts.....................................................19 4.6. Severability.....................................................19 4.7. Approval of Amendments and Waivers...............................19
ii EX-5.1 8 EXHIBIT 5.1 1 Exhibit 5.1 [COOLEY GODWARD LLP LETTERHEAD] March 14, 1997 Aurora Biosciences Corporation 11149 N. Torrey Pines Road La Jolla, CA 92037 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Aurora Biosciences Corporation (the "Company") of a Registration Statement on Form S-1 (the "Registration Statement") with the Securities and Exchange Commission, including a related prospectus to be filed with the Commission pursuant to Rule 424(b) of Regulation C (the "Prospectus") promulgated under the Securities Act of 1933, as amended, and the underwritten public offering of up to 3,450,000 shares (including 450,000 shares of Common Stock for which the underwriters have been granted an over allotment option) of the Company's Common Stock (the "Common Stock"). In connection with this opinion, we have (i) examined and relied upon the Registration Statement and related Prospectus, the Company's Restated Certificate of Incorporation and Amended and Restated Bylaws, and the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below and (ii) assumed that the shares of Common Stock will be sold by the underwriters at a price established by the Pricing Committee of the Board of Directors of the Company. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Common Stock, when sold and issued in accordance with the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable. We consent to the reference to our firm under the caption "Legal Matters" in the Prospectus included in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. Yours very truly, Cooley Godward LLP /s/Thomas A. Coll Thomas A. Coll EX-10.1 9 EXHIBIT 10.1 1 EXHIBIT 10.01 AURORA BIOSCIENCES CORPORATION INDEMNITY AGREEMENT THIS AGREEMENT is made and entered into this ___________ day of _________, 1996 by and between AURORA BIOSCIENCES CORPORATION, a Delaware corporation (the "Corporation"), and ("Agent"). RECITALS WHEREAS, Agent performs a valuable service to the Corporation in [his/her] capacity as a [Director/Executive Officer/Officer] of the Corporation; WHEREAS, the stockholders of the Corporation have adopted bylaws (the "Bylaws") providing for the indemnification of the directors, officers, employees and other agents of the Corporation, including persons serving at the request of the Corporation in such capacities with other corporations or enterprises, as authorized by the Delaware General Corporation Law, as amended (the "Code"); WHEREAS, the Bylaws and the Code, by their non-exclusive nature, permit contracts between the Corporation and its agents, officers, employees and other agents with respect to indemnification of such persons; and WHEREAS, in order to induce Agent to continue to serve as a [Director/Executive Officer/Officer] of the Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent; NOW, THEREFORE, in consideration of Agent's continued service as a [Director/Executive Officer/Officer] after the date hereof, the parties hereto agree as follows: AGREEMENT 1. SERVICES TO THE CORPORATION. Agent will serve, at the will of the Corporation or under separate contract, if any such contract exists, as a [Director/Executive Officer/Officer] of the Corporation or as a director, officer or other fiduciary of an affiliate of the Corporation (including any employee benefit plan of the Corporation) faithfully and to the best of [his/her] ability so long as [he/she] is duly elected and qualified in accordance with the provisions of the Bylaws or other applicable charter documents of the Corporation or such affiliate; provided, however, that Agent may at any time and for any reason resign from such position (subject to any contractual obligation that Agent may have assumed apart from this Agreement) and that the 1. 2 Corporation or any affiliate shall have no obligation under this Agreement to continue Agent in any such position. 2. INDEMNITY OF AGENT. The Corporation hereby agrees to hold harmless and indemnify Agent to the fullest extent authorized or permitted by the provisions of the Bylaws and the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the Bylaws or the Code permitted prior to adoption of such amendment). 3. ADDITIONAL INDEMNITY. In addition to and not in limitation of the indemnification otherwise provided for herein, and subject only to the exclusions set forth in Section 4 hereof, the Corporation hereby further agrees to hold harmless and indemnify Agent: a) against any and all expenses (including attorneys' fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally obligated to pay because of any claim or claims made against or by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative (including an action by or in the right of the Corporation) to which Agent is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that Agent is, was or at any time becomes a director, officer, employee or other agent of Corporation, or is or was serving or at any time serves at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise; and b) otherwise to the fullest extent as may be provided to Agent by the Corporation under the non-exclusivity provisions of the Code and Section 42 of the Bylaws. 4. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation: a) on account of any claim against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; b) on account of Agent's conduct that was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct; 2. 3 c) on account of Agent's conduct that constituted a breach of Agent's duty of loyalty to the Corporation or resulted in any personal profit or advantage to which Agent was not legally entitled; d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement; e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof. 5. CONTINUATION OF INDEMNITY. All agreements and obligations of the Corporation contained herein shall continue during the period Agent is a director, officer, employee or other agent of the Corporation (or is or was serving at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise) and shall continue thereafter so long as Agent shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact that Agent was serving in the capacity referred to herein. 6. PARTIAL INDEMNIFICATION. Agent shall be entitled under this Agreement to indemnification by the Corporation for a portion of the expenses (including attorneys' fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally obligated to pay in connection with any action, suit or proceeding referred to in Section 3 hereof even if not entitled hereunder to indemnification for the total amount thereof, and the Corporation shall indemnify Agent for the portion thereof to which Agent is entitled. 3. 4 7. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days after receipt by Agent of notice of the commencement of any action, suit or proceeding, Agent will, if a claim in respect thereof is to be made against the Corporation under this Agreement, notify the Corporation of the commencement thereof; but the omission so to notify the Corporation will not relieve it from any liability which it may have to Agent otherwise than under this Agreement. With respect to any such action, suit or proceeding as to which Agent notifies the Corporation of the commencement thereof: a) the Corporation will be entitled to participate therein at its own expense; b) except as otherwise provided below, the Corporation may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent under this Agreement for any legal or other expenses subsequently incurred by Agent in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Agent shall have the right to employ separate counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Agent unless (i) the employment of counsel by Agent has been authorized by the Corporation, (ii) Agent shall have reasonably concluded that there may be a conflict of interest between the Corporation and Agent in the conduct of the defense of such action or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of Agent's separate counsel shall be at the expense of the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Agent shall have made the conclusion provided for in clause (ii) above; and c) the Corporation shall not be liable to indemnify Agent under this Agreement for any amounts paid in settlement of any action or claim effected without its written consent, which shall not be unreasonably withheld. The Corporation shall be permitted to settle any action except that it shall not settle any action or claim in any manner which would impose any penalty or limitation on Agent without Agent's written consent, which may be given or withheld in Agent's sole discretion. 8. EXPENSES. The Corporation shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by Agent in connection with such proceeding upon receipt of an undertaking by or on behalf of Agent to repay said amounts if it shall be determined ultimately that Agent is not entitled to be indemnified under the provisions of this Agreement, the Bylaws, the Code or otherwise. 4. 5 9. ENFORCEMENT. Any right to indemnification or advances granted by this Agreement to Agent shall be enforceable by or on behalf of Agent in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. Agent, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. It shall be a defense to any action for which a claim for indemnification is made under Section 3 hereof (other than an action brought to enforce a claim for expenses pursuant to Section 8 hereof, provided that the required undertaking has been tendered to the Corporation) that Agent is not entitled to indemnification because of the limitations set forth in Section 4 hereof. Neither the failure of the Corporation (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Agent is proper in the circumstances, nor an actual determination by the Corporation (including its Board of Directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that Agent is not entitled to indemnification under this Agreement or otherwise. 10. SUBROGATION. In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Agent, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Corporation effectively to bring suit to enforce such rights. 11. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Agent by this Agreement shall not be exclusive of any other right which Agent may have or hereafter acquire under any statute, provision of the Corporation's Certificate of Incorporation or Bylaws, agreement, vote of stockholders or directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. 12. SURVIVAL OF RIGHTS. a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to be a director, officer, employee or other agent of the Corporation or to serve at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and shall inure to the benefit of Agent's heirs, executors and administrators. b) The Corporation shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, expressly to assume and agree to perform this 5. 6 Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place. 13. SEPARABILITY. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any ground, then the Corporation shall nevertheless indemnify Agent to the fullest extent provided by the Bylaws, the Code or any other applicable law. 14. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware. 15. AMENDMENT AND TERMINATION. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto. 16. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement. 17. HEADINGS. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof. 18. NOTICES. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the party to whom such communication was directed or (ii) upon the third business day after the date on which such communication was mailed if mailed by certified or registered mail with postage prepaid: a) If to Agent, at the address indicated on the signature page hereof. b) If to the Corporation, to Aurora Biosciences Corporation 11149 North Torrey Pines Road La Jolla, California 92037 Attention: Chief Executive Officer or to such other address as may have been furnished to Agent by the Corporation. 6. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written. AURORA BIOSCIENCES CORPORATION By:__________________________________ Title:_______________________________ AGENT _____________________________________ (Type Name Here) Address: _____________________________________ _____________________________________ _____________________________________ 7. EX-10.2 10 EXHIBIT 10.2 1 EXHIBIT 10.2 AURORA BIOSCIENCES CORPORATION 1996 STOCK PLAN ADOPTED JANUARY 23, 1996 AS AMENDED AND RESTATED AS OF FEBRUARY 4, 1997 (SHARE NUMBERS HEREIN HAVE NOT BEEN ADJUSTED TO REFLECT THE FOUR FOR FIVE REVERSE STOCK SPLIT TO BE EFFECTED PRIOR TO THE OFFERING) 1. PURPOSES. (a) The purpose of the Plan is to provide a means by which selected Employees and Directors of and Consultants to the Company, and its Affiliates, may be given an opportunity to benefit from increases in value of the stock of the Company through the granting of (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, (iii) stock bonuses, (iv) rights to purchase restricted stock, and (v) stock appreciation rights, all as defined below. (b) The Company, by means of the Plan, seeks to retain the services of persons who are now Employees or Directors of or Consultants to the Company or its Affiliates, to secure and retain the services of new Employees, Directors and Consultants, and to provide incentives for such persons to exert maximum efforts for the success of the Company and its Affiliates. (c) The Company intends that the Stock Awards issued under the Plan shall, in the discretion of the Board or any Committee to which responsibility for administration of the Plan has been delegated pursuant to subsection 3(c), be either (i) Options granted pursuant to Section 6 hereof, including Incentive Stock Options and Nonstatutory Stock Options, (ii) stock bonuses or rights to purchase restricted stock granted pursuant to Section 7 hereof, or (iii) stock appreciation rights granted pursuant to Section 8 hereof. All Options shall be separately designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and in such form as issued pursuant to Section 6, and a separate certificate or certificates will be issued for shares purchased on exercise of each type of Option. 2. DEFINITIONS. (a) "AFFILIATE" means any parent corporation or subsidiary corporation, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f) respectively, of the Code. (b) "BOARD" means the Board of Directors of the Company. (c) "CODE" means the Internal Revenue Code of 1986, as amended. (d) "COMMITTEE" means a Committee appointed by the Board in accordance with subsection 3(c) of the Plan. 1 2 "COMPANY" means Aurora Biosciences Corporation, a Delaware corporation. (f) "CONCURRENT STOCK APPRECIATION RIGHT" or "CONCURRENT RIGHT" means a right granted pursuant to subsection 8(b)(2) of the Plan. (g) "CONSULTANT" means any person, including an advisor, engaged by the Company or an Affiliate to render consulting services and who is compensated for such services, provided that the term "Consultant" shall not include Directors who are paid only a director's fee by the Company or who are not compensated by the Company for their services as Directors. (h) "CONTINUOUS STATUS AS AN EMPLOYEE , DIRECTOR OR CONSULTANT" means that the service of an individual to the Company, whether as an Employee, Director or Consultant is not interrupted or terminated. The Board, in its sole discretion, may determine whether Continuous Status as an Employee, Director or Consultant shall be considered interrupted in the case of: (i) any leave of absence approved by the Board, including sick leave, military leave, or any other personal leave; or (ii) transfers between locations of the Company or between the Company, Affiliates or their successors. (i) "COVERED EMPLOYEE" means the chief executive officer and the four (4) other highest compensated officers of the Company for whom total compensation is required to be reported to stockholders under the Exchange Act, as determined for purposes of Section 162(m) of the Code. (j) "DIRECTOR" means a member of the Board. (k) "EMPLOYEE" means any person, including Officers and Directors, employed by the Company or any Affiliate of the Company. Neither service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute "employment" by the Company. (l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended. (m) "FAIR MARKET VALUE" means, as of any date, the value of the common stock determined as follows and, in each case, in a manner consistent with Section 260.140.50 of Title 10 of the California Code of Regulations: (i) If the common stock is listed on any established stock exchange or a national market system, including without limitation the National Market System of the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") System, the Fair Market Value of a share of common stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such system or exchange (or the exchange with the greatest volume of trading in common stock) on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; 2 3 (ii) If the common stock is quoted on the NASDAQ System (but not on the National Market System thereof) or is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a share of Common Stock shall be the mean between the bid and asked prices for the common stock on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; (iii) In the absence of an established market for the common stock, the Fair Market Value shall be determined in good faith by the Board. (n) "INCENTIVE STOCK OPTION" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder. (o) "INDEPENDENT STOCK APPRECIATION RIGHT" or "INDEPENDENT RIGHT" means a right granted pursuant to subsection 8(b)(3) of the Plan. (p) "LISTING DATE" means the first date upon which any security of the Company is listed (or approved for listing) upon notice of issuance on any securities exchange, or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system if such securities exchange or interdealer quotation system has been certified in accordance with the provisions of Section 25100(o) of the California Corporate Securities Law of 1968. (q) "NON-EMPLOYEE DIRECTOR" means a Director who either (i) is not a current Employee or Officer of the Company or its parent or subsidiary, does not receive compensation (directly or indirectly) from the Company or its parent or subsidiary for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act ("Regulation S-K")), does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a "non-employee" for purposes of Rule 16b-3. (r) "NONSTATUTORY STOCK OPTION" means an Option not intended to qualify as an Incentive Stock Option. (s) "OFFICER" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. (t) "OPTION" means a stock option granted pursuant to the Plan. (u) "OPTION AGREEMENT" means a written agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan. 3 4 (v) "OPTIONEE" means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option. (w) "OUTSIDE DIRECTOR" means a Director who either (i) is not a current employee of the Company or an "affiliated corporation" (within the meaning of the Treasury regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an "affiliated corporation" receiving compensation for prior services (other than benefits under a tax qualified pension plan), was not an officer of the Company or an "affiliated corporation" at any time, and is not currently receiving direct or indirect remuneration from the Company or an "affiliated corporation" for services in any capacity other than as a Director, or (ii) is otherwise considered an "outside director" for purposes of Section 162(m) of the Code. (x) "PLAN" mans this 1996 Stock Plan. (y) "RULE 16b-3" means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect with respect to the Company when discretion is being exercised regarding the Plan. (z) "SECURITIES ACT" means the Securities Act of 1933, as amended. (aa) "STOCK APPRECIATION RIGHT" means any of the various types of rights which may be granted under Section 8 of the Plan. (bb) "STOCK AWARD" means any right granted under the Plan, including any Option, any stock bonus, any right to purchase restricted stock, and any Stock Appreciation Right. (cc) "STOCK AWARD AGREEMENT" means a written agreement between the Company and a holder of a Stock Award evidencing the terms and conditions of an individual Stock Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the Plan. (dd) "TANDEM STOCK APPRECIATION RIGHT" or "TANDEM RIGHT" means a right granted pursuant to subsection 8(b)(1) of the Plan. 3. ADMINISTRATION. (a) The Plan shall be administered by the Board unless and until the Board delegates administration to a Committee, as provided in subsection 3(c). (b) The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: (1) To determine from time to time which of the persons eligible under the Plan shall be granted Stock Awards; when and how each Stock Award shall be granted; whether 4 5 a Stock Award will be an Incentive Stock Option, a Nonstatutory Stock Option, a stock bonus, a right to purchase restricted stock, a Stock Appreciation Right, or a combination of the foregoing; the provisions of each Stock Award granted (which need not be identical), including the time or times when a person shall be permitted to receive stock pursuant to a Stock Award; whether a person shall be permitted to receive stock upon exercise of an Independent Stock Appreciation Right; and the number of shares with respect to which a Stock Award shall be granted to each such person. (2) To construe and interpret the Plan and Stock Awards granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (3) To amend the Plan or a Stock Award as provided in Section 14. (4) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company which are not in conflict with the provisions of the Plan. (c) The Board may delegate administration of the Plan to a committee of the Board composed of not fewer than two (2) members (the "Committee"), all of the members of which Committee may be, in the discretion of the Board, Non-Employee Directors and/or Outside Directors. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee of two (2) or more Outside Directors any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to the Committee or such a subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. Additionally, prior to the Listing Date, and notwithstanding anything to the contrary contained herein, the Board may delegate administration of the Plan to a committee of one or more members of the Board and the term Committee shall apply to any person or persons to whom such authority has been delegated. Notwithstanding anything in this Section 3 to the contrary, the Board or the Committee may delegate to a committee of one or more members of the Board the authority to grant Stock Awards to eligible persons who (1) are not then subject to Section 16 of the Exchange Act and/or (2) are either (i) not then Covered Employees and are not expected to be Covered Employees at the time of recognition of income resulting from such Stock Award, or (ii) not persons with respect to whom the Company wishes to comply with Section 162(m) of the Code. 4. SHARES SUBJECT TO THE PLAN. (a) Subject to the provisions of Section 13 relating to adjustments upon changes in stock, the stock that may be issued pursuant to Stock Awards shall not exceed in the aggregate 5 6 two million five hundred thousand (2,500,000) shares of the Company's common stock. If any Stock Award shall for any reason expire or otherwise terminate, in whole or in part, without having been exercised in full, the stock not acquired under such Stock Award shall revert to and again become available for issuance under the Plan. Shares subject to Stock Appreciation Rights exercised in accordance with Section 8 of the Plan shall not be available for subsequent issuance under the Plan. (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 5. ELIGIBILITY. (a) Incentive Stock Options and Stock Appreciation Rights appurtenant thereto may be granted only to Employees. Stock Awards other than Incentive Stock Options and Stock Appreciation Rights appurtenant thereto may be granted only to Employees, Directors or Consultants. (b) No person shall be eligible for the grant of an Option or an award to purchase restricted stock if, at the time of grant, such person owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any of its Affiliates unless the exercise price of such Option is at least one hundred ten percent (110%) of the Fair Market Value of such stock at the date of grant and the Option is not exercisable after the expiration of five (5) years from the date of grant, or in the case of a restricted stock purchase award, the purchase price is at least one hundred percent (100%) of the Fair Market Value of such stock at the date of grant. (c) Subject to the provisions of Section 13 relating to adjustments upon changes in stock, no person shall be eligible to be granted Options and Stock Appreciation Rights covering more than two hundred fifty thousand (250,000) shares of the Company's common stock in any twelve (12) month period. This subsection 5(c) shall not apply prior to the Listing Date and, following the Listing Date, shall not apply until (i) the earliest of: (a) the first material modification of the Plan (including any increase to the number of shares reserved for issuance under the Plan in accordance with Section 4); (b) the issuance of all of the shares of common stock reserved for issuance under the Plan; (c) the expiration of the Plan; or (d) the first meeting of stockholders at which directors are to be elected that occurs after the close of the third calendar year following the calendar year in which occurred the first registration of an equity security under section 12 of the Exchange Act; or (ii) such other date required by Section 162(m) of the Code and the rules and regulations promulgated thereunder. 6. OPTION PROVISIONS. Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The provisions of separate Options need not be identical, but 6 7 each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: (a) TERM. No Option shall be exercisable after the expiration of ten (10) years from the date it was granted. (b) PRICE. The exercise price of each Incentive Stock Option shall be not less than one hundred percent (100%) of the Fair Market Value of the stock subject to the Option on the date the Option is granted; the exercise price of each Nonstatutory Stock Option shall be not less than eighty-five percent (85%) of the Fair Market Value of the stock subject to the Option on the date the Option is granted. Notwithstanding the foregoing, an Option (whether an Incentive Stock Option or a Nonstatutory Stock Option) may be granted with an exercise price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 424(a) of the Code. (c) CONSIDERATION. The purchase price of stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the Option is exercised, or (ii) at the discretion of the Board or the Committee, at the time of the grant of the Option, (a) by delivery to the Company of other common stock of the Company, or (b) in any other form of legal consideration that may be acceptable to the Board. (d) TRANSFERABILITY. An Option shall not be transferable except by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of the person to whom the Option is granted only by such person; provided, however, that, after the Listing Date, to the extent permitted by applicable law, a Nonstatutory Stock Option shall be transferable by the person to whom such Option is granted upon such terms and conditions as are set forth in the Option Agreement for such Nonstatutory Stock Option, as the Board or Committee shall determine in its discretion. Notwithstanding the foregoing, the person to whom the Option is granted may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionee, shall thereafter be entitled to exercise the Option. (e) VESTING. The total number of shares of stock subject to an Option may, but need not, be allotted in periodic installments (which may, but need not, be equal). The Option Agreement may provide that from time to time during each of such installment periods, the Option may become exercisable ("vest") with respect to some or all of the shares allotted to that period, and may be exercised with respect to some or all of the shares allotted to such period and/or any prior period as to which the Option became vested but was not fully exercised. The Option may be subject to such other terms and conditions on the time or times when it may be exercised (which may be based on performance or other criteria) as the Board may deem appropriate. The vesting provisions of individual Options may vary but in each case will provide for vesting of at least twenty percent (20%) per year of the total number of shares subject to the Option. The provisions of this subsection 6(e) are subject to any Option provisions governing the minimum number of shares as to which an Option may be exercised. 7 8 (f) TERMINATION OF EMPLOYMENT OR RELATIONSHIP AS A DIRECTOR OR CONSULTANT. In the event an Optionee's Continuous Status as an Employee, Director or Consultant terminates (other than upon the Optionee's death or disability), the Optionee may exercise his or her Option (to the extent that the Optionee was entitled to exercise it as of the date of termination) but only within such period of time ending on the earlier of (i) the date three (3) months following the termination of the Optionee's Continuous Status as an Employee, Director or Consultant (or such longer or shorter period, which shall not be less than thirty (30) days, specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after termination, the Optionee does not exercise his or her Option within the time specified in the Option Agreement, the Option shall terminate, and the shares covered by such Option shall revert to and again become available for issuance under the Plan. An Optionee's Option Agreement may also provide that if the exercise of the Option following the termination of the Optionee's Continuous Status as an Employee, Director, or Consultant (other than upon the Optionee's death or disability) would result in liability under Section 16(b) of the Exchange Act, then the Option shall terminate on the earlier of (i) the expiration of the term of the Option set forth in the Option Agreement, or (ii) the tenth (10th) day after the last date on which such exercise would result in such liability under Section 16(b) of the Exchange Act. Finally, an Optionee's Option Agreement may also provide that if the exercise of the Option following the termination of the Optionee's Continuous Status as an Employee, Director or Consultant (other than upon the Optionee's death or disability) would be prohibited at any time solely because the issuance of shares would violate the registration requirements under the Securities Act, then the Option shall terminate on the earlier of (i) the expiration of the term of the Option set forth in the first paragraph of this subsection 6(f), or (ii) the expiration of a period of three (3) months after the termination of the Optionee's Continuous Status as an Employee, Director or Consultant during which the exercise of the Option would not be in violation of such registration requirements. (g) DISABILITY OF OPTIONEE. In the event an Optionee's Continuous Status as an Employee, Director or Consultant terminates as a result of the Optionee's disability, the Optionee may exercise his or her Option (to the extent that the Optionee was entitled to exercise it as of the date of termination), but only within such period of time ending on the earlier of (i) the date twelve (12) months following such termination (or such longer or shorter period, which in no event shall be less than six (6) months, specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, at the date of termination, the Optionee is not entitled to exercise his or her entire Option, the shares covered by the unexercisable portion of the Option shall revert to and again become available for issuance under the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the shares covered by such Option shall revert to and again become available for issuance under the Plan. (h) DEATH OF OPTIONEE. In the event of the death of an Optionee during, or within a period specified in the Option Agreement after the termination of, the Optionee's Continuous Status as an Employee, Director or Consultant, the Option may be exercised (to the extent the Optionee was entitled to exercise the Option as of the date of death) by the Optionee's estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person 8 9 designated to exercise the option upon the Optionee's death pursuant to subsection 6(d), but only within the period ending on the earlier of (i) the date eighteen (18) months following the date of death (or such longer or shorter period, which in no event shall be less than six (6) months, specified in the Option Agreement), or (ii) the expiration of the term of such Option as set forth in the Option Agreement. If, at the time of death, the Optionee was not entitled to exercise his or her entire Option, the shares covered by the unexercisable portion of the Option shall revert to and again become available for issuance under the Plan. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate, and the shares covered by such Option shall revert to and again become available for issuance under the Plan. (i) EARLY EXERCISE. The Option may, but need not, include a provision whereby the Optionee may elect at any time while an Employee, Director or Consultant to exercise the Option as to any part or all of the shares subject to the Option prior to the full vesting of the Option. Any unvested shares so purchased shall be subject to a repurchase right in favor of the Company, with the repurchase price to be equal to the original purchase price of the stock, or to any other restriction the Board determines to be appropriate; provided, however, that (i) the right to repurchase at the original purchase price shall lapse at a minimum rate of twenty percent (20%) per year over five (5) years from the date the Option was granted, and (ii) such right shall be exercisable only within (A) the ninety (90) day period following the termination of employment or the relationship as a Director or Consultant, or (B) such longer period as may be agreed to by the Company and the Optionee (for example, for purposes of satisfying the requirements of Section 1202(c)(3) of the Code (regarding "qualified small business stock")), and (iii) such right shall be exercisable only for cash or cancellation of purchase money indebtedness for the shares. Should the right of repurchase be assigned by the Company, the assignee shall pay the Company cash equal to the difference between the original purchase price and the stock's Fair Market Value if the original purchase price is less than the stock's Fair Market Value. (j) RIGHT OF REPURCHASE. The Option may, but need not, include a provision whereby the Company may elect, prior to the Listing Date, to repurchase all or any part of the vested shares exercised pursuant to the Option; provided, however, that (i) such repurchase right shall be exercisable only within (a) the ninety (90) day period following the termination of employment or the relationship as a Director or Consultant and (ii) such right shall be exercisable only for cash or cancellation of purchase money indebtedness for the shares at a repurchase price equal to the greater of (a) the stock's Fair Market Value at the time of such termination, or (b) the original purchase price paid for such shares by the Optionee. (k) RIGHT OF FIRST REFUSAL. The Option may, but need not, include a provision whereby the Company may elect, prior to the Listing Date, to exercise a right of first refusal following receipt of notice from the Optionee of the intent to transfer all or any part of the shares exercised pursuant to the Option. (l) RE-LOAD OPTIONS. Without in any way limiting the authority of the Board or Committee to make or not to make grants of Options hereunder, the Board or Committee shall have the authority (but not an obligation) to include as part of any Option Agreement a provision entitling the Optionee to a further Option (a "Re-Load Option") in the event the Optionee exercises the Option evidenced by the Option agreement, in whole or in part, by surrendering 9 10 other shares of Common Stock in accordance with this Plan and the terms and conditions of the Option Agreement. Any such Re-Load Option (i) shall be for a number of shares equal to the number of shares surrendered as part or all of the exercise price of such Option; (ii) shall have an expiration date which is the same as the expiration date of the Option the exercise of which gave rise to such Re-Load Option; and (iii) shall have an exercise price which is equal to one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Re-Load Option on the date of exercise of the original Option. Notwithstanding the foregoing, a Re-Load Option which is granted to a 10% stockholder (as described in subsection 5(b)), shall have an exercise price which is equal to one hundred ten percent (110%) of the Fair Market Value of the stock subject to the Re-Load Option on the date of exercise of the original Option and shall have a term which is no longer than five (5) years. Any such Re-Load Option may be an Incentive Stock Option or a Nonstatutory Stock Option, as the Board or Committee may designate at the time of the grant of the original Option; provided, however, that the designation of any Re-Load Option as an Incentive Stock Option shall be subject to the one hundred thousand dollar ($100,000) annual limitation on exercisability of Incentive Stock Options described in subsection 12(e) of the Plan and in Section 422(d) of the Code. There shall be no Re-Load Options on a Re-Load Option. Any such Re-Load Option shall be subject to the availability of sufficient shares under subsection 4(a) and the limits on the grants of Options under subsection 5(c) and shall be subject to such other terms and conditions as the Board or Committee may determine which are not inconsistent with the express provisions of the Plan regarding the terms of Options. 7. TERMS OF STOCK BONUSES AND PURCHASES OF RESTRICTED STOCK. Each stock bonus or restricted stock purchase agreement shall be in such form and shall contain such terms and conditions as the Board or the Committee shall deem appropriate. The terms and conditions of stock bonus or restricted stock purchase agreements may change from time to time, and the terms and conditions of separate agreements need not be identical, but each stock bonus or restricted stock purchase agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions as appropriate: (a) PURCHASE PRICE. The purchase price under each restricted stock purchase Stock Award Agreement shall be such amount as the Board or Committee shall determine and designate in such agreement, but in no event shall the purchase price be less than eighty-five percent (85%) of the stock's Fair Market Value on the date such award is made. Notwithstanding the foregoing, the Board or the Committee may determine that eligible participants in the Plan may be awarded stock pursuant to a stock bonus agreement in consideration for past services actually rendered to the Company or for its benefit. (b) TRANSFERABILITY. No rights under a stock bonus or restricted stock purchase agreement shall be transferable except by will or the laws of descent and distribution or pursuant to a QDRO satisfying the requirements of Rule 16b-3 and any administrative interpretations or 10 11 pronouncements thereunder, so long as stock awarded under such agreement remains subject to the terms of the agreement. (c) CONSIDERATION. The purchase price of stock acquired pursuant to a stock purchase agreement shall be paid either: (i) in cash at the time of purchase; or (ii) in any other form of legal consideration that may be acceptable to the Board or the Committee in its discretion. Notwithstanding the foregoing, the Board or the Committee to which administration of the Plan has been delegated may award stock pursuant to a stock bonus agreement in consideration for past services actually rendered to the Company or for its benefit. (d) VESTING. Shares of stock sold or awarded under the Plan may, but need not, be subject to a repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board or the Committee. The applicable agreement shall provide (i) that the right to repurchase at the original purchase price shall lapse at a minimum rate of twenty percent (20%) per year over five (5) years from the date the Stock Award was granted, and (ii) such right shall be exercisable only (a) within the ninety (90) day period following the termination of employment or the relationship as a Director or Consultant, or (b) such longer period as may be agreed to by the Company and the holder of the Stock Award (for example, for purposes of satisfying the requirements of Section 1202(c)(3) of the Code (regarding "qualified small business stock")), and (iii) such right shall be exercisable only for cash or cancellation of purchase money indebtedness for the shares. Should the right of repurchase be assigned by the Company, the assignee shall pay the Company cash equal to the difference between the original purchase price and the stock's Fair Market Value if the original purchase price is less than the stock's Fair Market Value. (e) TERMINATION OF EMPLOYMENT OR RELATIONSHIP AS A DIRECTOR OR CONSULTANT. In the event a participant's Continuous Status as an Employee, Director or Consultant terminates, the Company may repurchase or otherwise reacquire, subject to the limitations described in subsection 7(d), any or all of the shares of stock held by that person which have not vested as of the date of termination under the terms of the stock bonus or restricted stock purchase agreement between the Company and such person. 11 12 8. STOCK APPRECIATION RIGHTS. (a) The Board or Committee shall have full power and authority, exercisable in its sole discretion, to grant Stock Appreciation Rights under the Plan to Employees or Directors of or Consultants to, the Company or its Affiliates. To exercise any outstanding Stock Appreciation Right, the holder must provide written notice of exercise to the Company in compliance with the provisions of the Stock Award Agreement evidencing such right. If a Stock Appreciation Right is granted to an individual who is at the time of grant subject to Section 16(b) of the Exchange Act, the Stock Award Agreement shall incorporate all the terms and conditions at the time necessary to assure that the subsequent exercise of such right shall qualify for the safe-harbor exemption from short-swing profit liability provided by Rule 16b-3 promulgated under the Exchange Act (or any successor rule or regulation). Except as provided in subsection 5(c), no limitation shall exist on the aggregate amount of cash payments the Company may make under the Plan in connection with the exercise of a Stock Appreciation Right. (b) Three types of Stock Appreciation Rights shall be authorized for issuance under the Plan: (1) TANDEM STOCK APPRECIATION RIGHTS. Tandem Stock Appreciation Rights will be granted appurtenant to an Option, and shall, except as specifically set forth in this Section 8, be subject to the same terms and conditions applicable to the particular Option grant to which it pertains. Tandem Stock Appreciation Rights will require the holder to elect between the exercise of the underlying Option for shares of stock and the surrender, in whole or in part, of such Option for an appreciation distribution. The appreciation distribution payable on the exercised Tandem Right shall be in cash (or, if so provided, in an equivalent number of shares of stock based on Fair Market Value on the date of the Option surrender) in an amount up to the excess of (a) the Fair Market Value (on the date of the Option surrender) of the number of shares of stock covered by that portion of the surrendered Option in which the Optionee is vested over (b) the aggregate exercise price payable for such vested shares. (2) CONCURRENT STOCK APPRECIATION RIGHTS. Concurrent Rights will be granted appurtenant to an Option and may apply to all or any portion of the shares of stock subject to the underlying Option and shall, except as specifically set forth in this Section 8, be subject to the same terms and conditions applicable to the particular Option grant to which it pertains. A Concurrent Right shall be exercised automatically at the same time the underlying Option is exercised with respect to the particular shares of stock to which the Concurrent Right pertains. The appreciation distribution payable on an exercised Concurrent Right shall be in cash (or, if so provided, in an equivalent number of shares of stock based on Fair Market Value on the date of the exercise of the Concurrent Right) in an amount equal to such portion as shall be determined by the Board or the Committee at the time of the grant of the excess of (a) the aggregate Fair Market Value (on the date of the exercise of the Concurrent Right) of the vested shares of stock purchased under the underlying Option which have Concurrent Rights appurtenant to them over (b) the aggregate exercise price paid for such shares. (3) INDEPENDENT STOCK APPRECIATION RIGHTS. Independent Rights will be granted independently of any Option and shall, except as specifically set forth in this Section 8, 12 13 be subject to the same terms and conditions applicable to Nonstatutory Stock Options as set forth in Section 6. They shall be denominated in share equivalents. The appreciation distribution payable on the exercised Independent Right shall be not greater than an amount equal to the excess of (a) the aggregate Fair Market Value (on the date of the exercise of the Independent Right) of a number of shares of Company stock equal to the number of share equivalents in which the holder is vested under such Independent Right, and with respect to which the holder is exercising the Independent Right on such date, over (b) the aggregate Fair Market Value (on the date of the grant of the Independent Right) of such number of shares of Company stock. The appreciation distribution payable on the exercised Independent Right shall be in cash or, if so provided, in an equivalent number of shares of stock based on Fair Market Value on the date of the exercise of the Independent Right. 9. CANCELLATION AND RE-GRANT OF OPTIONS. (a) The Board or the Committee shall have the authority to effect, at any time and from time to time, (i) the repricing of any outstanding Options and/or any Stock Appreciation Rights under the Plan and/or (ii) with the consent of the affected holders of Options and/or Stock Appreciation Rights, the cancellation of any outstanding Options and/or any Stock Appreciation Rights under the Plan and the grant in substitution therefor of new Options and/or Stock Appreciation Rights under the Plan covering the same or different numbers of shares of stock, but having an exercise price per share not less than eighty-five percent (85%) of the Fair Market Value (one hundred percent (100%) of the Fair Market Value in the case of an Incentive Stock Option) or, in the case of a 10% stockholder (as described in subsection 5(b)), not less than one hundred ten percent (110%) of the Fair Market Value) per share of stock on the new grant date. Notwithstanding the foregoing, the Board or the Committee may grant an Option and/or Stock Appreciation Right with an exercise price lower than that set forth above if such Option and/or Stock Appreciation Right is granted as part of a transaction to which section 424(a) of the Code applies. (b) Shares subject to an Option or Stock Appreciation Right canceled under this Section 9 shall continue to be counted against the maximum award of Options and Stock Appreciation Rights permitted to be granted pursuant to subsection 5(c) of the Plan. The repricing of an Option and/or Stock Appreciation Right under this Section 9, resulting in a reduction of the exercise price, shall be deemed to be a cancellation of the original Option and/or Stock Appreciation Right and the grant of a substitute Option and/or Stock Appreciation Right; in the event of such repricing, both the original and the substituted Options and Stock Appreciation Rights shall be counted against the maximum awards of Options and Stock Appreciation Rights permitted to be granted pursuant to subsection 5(c) of the Plan. The provisions of this subsection 9(b) shall be applicable only to the extent required by Section 162(m) of the Code. 13 14 10. COVENANTS OF THE COMPANY. (a) During the terms of the Stock Awards, the Company shall keep available at all times the number of shares of stock required to satisfy such Stock Awards. (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock upon exercise of the Stock Award; provided, however, that this undertaking shall not require the Company to register under the Securities Act either the Plan, any Stock Award or any stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell stock upon exercise of such Stock Awards unless and until such authority is obtained. 11. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to Stock Awards shall constitute general funds of the Company. 12. MISCELLANEOUS. (a) Neither an Employee, Director or Consultant nor any person to whom a Stock Award is transferred under subsection 6(d), 7(b), or 8(b) shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such Stock Award unless and until such person has satisfied all requirements for exercise of the Stock Award pursuant to its terms. (b) Throughout the term of any Stock Award, the Company shall deliver to the holder of such Stock Award, not later than one hundred twenty (120) days after the close of each of the Company's fiscal years during the term of such Stock Award, a balance sheet and an income statement. This subsection shall not apply when issuance is limited to key employees whose duties in connection with the Company assure them access to equivalent information. (c) Nothing in the Plan or any instrument executed or Stock Award granted pursuant thereto shall confer upon any Employee, Director, Consultant or other holder of Stock Awards any right to continue in the employ of the Company or any Affiliate (or to continue acting as a Director or Consultant) or shall affect the right of the Company or any Affiliate to terminate the employment of any Employee with or without cause, the right of the Company's Board of Directors and/or the Company's stockholders to remove any Director as provided in the Company's By-Laws and the provisions of the Delaware General Corporation Law or the right to terminate the relationship of any Consultant subject to the terms of such Consultant's agreement with the Company or Affiliate. 14 15 (d) To the extent that the aggregate Fair Market Value (determined at the time of grant) of stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionee during any calendar year under all plans of the Company and its Affiliates exceeds one hundred thousand dollars ($100,000), the Options or portions thereof which exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory Stock Options. (e) The Company may require any person to whom a Stock Award is granted, or any person to whom a Stock Award is transferred pursuant to subsection 6(d), 7(b) or 8(b), as a condition of exercising or acquiring stock under any Stock Award, (1) to give written assurances satisfactory to the Company as to such person's knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters, and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Stock Award; and (2) to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the Stock Award for such person's own account and not with any present intention of selling or otherwise distributing the stock. The foregoing requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise or acquisition of stock under the Stock Award has been registered under a then currently effective registration statement under the Securities Act, or (ii) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of the stock. (f) To the extent provided by the terms of a Stock Award Agreement, the person to whom a Stock Award is granted may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of stock under a Stock Award by any of the following means or by a combination of such means: (1) tendering a cash payment; (2) authorizing the Company to withhold shares from the shares of the common stock otherwise issuable to the participant as a result of the exercise or acquisition of stock under the Stock Award; or (3) delivering to the Company owned and unencumbered shares of the common stock of the Company. 13. ADJUSTMENTS UPON CHANGES IN STOCK. (a) If any change is made in the stock subject to the Plan, or subject to any Stock Award (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Company), the Plan will be appropriately adjusted in the type(s) and maximum number of securities subject to the Plan pursuant to subsection 4(a) and the maximum number of securities subject to award to any person during any twelve (12) month 15 16 period pursuant to subsection 5(c), and the outstanding Stock Awards will be appropriately adjusted in the type(s) and number of securities and price per share of stock subject to such outstanding Stock Awards. Such adjustments shall be made by the Board or the Committee, the determination of which shall be final, binding and conclusive. (The conversion of any convertible securities of the Company shall not be treated as a "transaction not involving the receipt of consideration by the Company".) (b) In the event of: (1) a dissolution, liquidation or sale of all or substantially all of the assets of the Company; (2) a merger or consolidation in which the Company is not the surviving corporation or (3) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise; or (4) after the Listing Date, the acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d) of the Exchange Act or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or any Affiliate of the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, then: (i) any surviving or acquiring corporation shall assume any Stock Awards outstanding under the Plan or shall substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the transaction described in this subsection 13(b) for those outstanding under the Plan, or (ii) in the event any surviving or acquiring corporation refuses to assume such Stock Awards or to substitute similar stock awards for those outstanding under the Plan (A) with respect to Stock Awards held by persons then performing services as Employees, Directors or Consultants, and subject to any applicable provisions of the California Corporate Securities Law of 1968 and related regulations relied upon as a condition of issuing securities pursuant to the Plan, the vesting of such Stock Awards (and, if applicable, the time during which such Stock Awards may be exercised) shall be accelerated prior to such event and the Stock Awards terminated if not exercised (if applicable) after such acceleration and at or prior to such event, and (B) with respect to any other Stock Awards outstanding under the Plan, such Stock Awards shall be terminated if not exercised (if applicable) prior to such event. 14. AMENDMENT OF THE PLAN AND STOCK AWARDS. (a) The Board at any time, and from time to time, may amend the Plan. However, except as provided in Section 13 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the stockholders of the Company within twelve (12) months before or after the adoption of the amendment, where the amendment will: (i) Increase the number of shares reserved for Stock Awards under the Plan; 16 17 (ii) Modify the requirements as to eligibility for participation in the Plan (to the extent such modification requires stockholder approval in order for the Plan to satisfy the requirements of Section 422 of the Code); or (iii) Modify the Plan in any other way if such modification requires stockholder approval in order for the Plan to satisfy the requirements of Section 422 of the Code or to comply with the requirements of Rule 16b-3. (b) The Board may in its sole discretion submit any other amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) of the Code and the regulations promulgated thereunder regarding the exclusion of performance-based compensation from the limit on corporate deductibility of compensation paid to certain executive officers. (c) It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide eligible Employees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options granted under it into compliance therewith. (d) Rights and obligations under any Stock Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent of the person to whom the Stock Award was granted and (ii) such person consents in writing. (e) The Board at any time, and from time to time, may amend the terms of any one or more Stock Award; provided, however, that the rights and obligations under any Stock Award shall not be impaired by any such amendment unless (i) the Company requests the consent of the person to whom the Stock Award was granted and (ii) such person consents in writing. 15. TERMINATION OR SUSPENSION OF THE PLAN. (a) The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on January 22, 2006, which shall be within ten (10) years from the date the Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier. No Stock Awards may be granted under the Plan while the Plan is suspended or after it is terminated. (b) Rights and obligations under any Stock Award granted while the Plan is in effect shall not be impaired by suspension or termination of the Plan, except with the written consent of the person to whom the Stock Award was granted. 17 18 16. EFFECTIVE DATE OF PLAN. The Plan shall become effective as determined by the Board, but no Stock Awards granted under the Plan shall be exercised unless and until the Plan has been approved by the stockholders of the Company, which approval shall be within twelve (12) months before or after the date the Plan is adopted by the Board, and, if required, an appropriate permit has been issued by the Commissioner of Corporations of the State of California. 18 EX-10.3 11 EXHIBIT 10.3 1 EXHIBIT 10.3 INCENTIVE STOCK OPTION ______________________, Optionee: Aurora Biosciences Corporation (the "Company"), pursuant to its 1996 Stock Plan (the "Plan"), has granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's employees (including officers), directors or consultants and is intended to comply with the provisions of Rule 701 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). Defined terms not explicitly defined in this agreement but defined in the Plan shall have the same definitions as in the Plan. The details of your option are as follows: 1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of shares of Common Stock subject to this option is ____________________ (__________). 2. VESTING. Subject to the limitations contained herein, this option shall become exercisable (vest) with respect to each installment shown below on or after the date of vesting applicable to such installment, as follows:
NUMBER OF SHARES (INSTALLMENT) DATE OF EARLIEST EXERCISE (VESTING) ------------------------------ ----------------------------------- __________ __________, 199__ __________ The ___ day of each month thereafter, commencing on ________, 199__ through and including _________, 199__. __________ __________, 199__
3. EXERCISE PRICE AND METHOD OF PAYMENT. (a) EXERCISE PRICE. The exercise price of this option is ___________ ($___________) per share, being not less than the fair market value of the Common Stock on the date of grant of this option. 2 (b) METHOD OF PAYMENT. Payment of the exercise price per share is due in full upon exercise of all or any part of each installment which has accrued to you. You may elect, to the extent permitted by applicable statutes and regulations, to make payment of the exercise price under one of the following alternatives: (i) Payment of the exercise price per share in cash (including check) at the time of exercise; (ii) Payment pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds; (iii) Provided that at the time of exercise the Company's Common Stock is publicly traded and quoted regularly in the Wall Street Journal, payment by delivery of already-owned shares of Common Stock, held for the period required to avoid a charge to the Company's reported earnings, and owned free and clear of any liens, claims, encumbrances or security interests, which Common Stock shall be valued at its fair market value on the date of exercise; or (iv) Payment by a combination of the methods of payment permitted by subparagraph 3(b)(i) through 3(b)(iii) above. 4. WHOLE SHARES. This option may not be exercised for any number of shares which would require the issuance of anything other than whole shares. 5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. 6. TERM. The term of this option commences on __________, 19__, the date of grant, and expires on _____________________ (the "Expiration Date," which date shall be no more than ten (10) years from the date this option is granted), unless this option expires sooner as set forth below or in the Plan. In no event may this option be exercised on or after the Expiration Date. This option shall terminate prior to the Expiration Date as follows: three (3) months after the termination of your Continuous Status as an Employee, Director or Consultant with the Company or an Affiliate of the Company for any reason or for no reason unless: (a) such termination of Continuous Status as an Employee, Director or Consultant is due to your permanent and total disability as defined in Section 422(c)(6) of the 3 Code, in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months following such termination of Continuous Status as an Employee, Director or Consultant; or (b) such termination of Continuous Status as an Employee, Director or Consultant is due to your death or your death occurs within three (3) months following your termination of Continuous Status as an Employee, Director or Consultant for any other reason, in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months after your death; or (c) during any part of such three (3) month period the option is not exercisable solely because of the condition set forth in paragraph 5 above, in which event the option shall not expire until the earlier of the Expiration Date set forth above or until it shall have been exercisable for an aggregate period of three (3) months after the termination of Continuous Status as an Employee, Director or Consultant; or (d) exercise of the option within three (3) months after termination of your Continuous Status as an Employee, Director or Consultant with the Company or with an Affiliate of the Company would result in liability under section 16(b) of the Securities Exchange Act of 1934, in which case the option will expire on the earlier of (i) the Expiration Date set forth above, (ii) the tenth (10th) day after the last date upon which exercise would result in such liability or (iii) six (6) months and ten (10) days after the termination of your Continuous Status as an Employee, Director or Consultant with the Company or an Affiliate of the Company. However, this option may be exercised following termination of Continuous Status as an Employee, Director or Consultant only as to that number of shares as to which it was exercisable on the date of termination of Continuous Status as an Employee, Director or Consultant under the provisions of paragraph 2 of this option. In order to obtain the federal income tax advantages associated with an "incentive stock option," the Code requires that at all times beginning on the date of grant of the option and ending on the day three (3) months before the date of the option's exercise, you must be an employee of the Company or an Affiliate of the Company, except in the event of your death or permanent and total disability. The Company has provided for continued vesting or extended exercisability of your option under certain circumstances for your benefit, but cannot guarantee that your option will necessarily be treated as an "incentive stock option," particularly if you provide services to the Company or an Affiliate of the Company as a consultant or exercise your option more than three (3) months after the date your employment with the Company and all Affiliates of the Company terminates. 7. REPRESENTATIONS. By executing this option agreement, you hereby warrant and represent that you are acquiring this option for your own account and that you have no intention of distributing, transferring or selling all or any part of this option except in accordance with the terms of this option agreement. 4 8. EXERCISE. (a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require pursuant to Section 12(e) of the Plan. (b) By exercising this option you agree that: (i) as a precondition to the completion of any exercise of this option, the Company may require you to enter an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (a) the exercise of this option; (b) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (c) the disposition of shares acquired upon such exercise; (ii) you will notify the Company in writing within fifteen (15) days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of this option that occurs within two (2) years after the date of this option grant or within one (1) year after such shares of Common Stock are transferred upon exercise of this option; and (iii) the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date of the registration statement of the Company filed under the Act as may be requested by the Company or the representative of the underwriters. You further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. 9. TRANSFERABILITY. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise this option. 10. OPTION NOT A SERVICE CONTRACT. This option is not an employment contract and nothing in this option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company, or of the Company to continue your employment with the Company. In addition, nothing in this option shall obligate the Company or any Affiliate of the Company, or their respective stockholders, Board 5 of Directors, officers or employees to continue any relationship which you might have as a Director or Consultant for the Company or Affiliate of the Company. 11. NOTICES. Any notices provided for in this option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 12. GOVERNING PLAN DOCUMENT. This option is subject to all the provisions of the Plan, a copy of which is attached hereto and its provisions are hereby made a part of this option, including without limitation the provisions of Section 6 of the Plan relating to option provisions, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this option and those of the Plan, the provisions of the Plan shall control. Dated the ____ day of __________________, 19__. Very truly yours, AURORA BIOSCIENCES CORPORATION By______________________________________ Duly authorized on behalf of the Board of Directors ATTACHMENTS: Aurora Biosciences Corporation 1996 Stock Plan Notice of Exercise 6 The undersigned: (a) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option and the Plan; and (b) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its Affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of (i) the options previously granted and delivered to the undersigned under stock option plans of the Company, and (ii) the following agreements only: NONE _________________________ (Initial) OTHER _________________________________ _________________________________ _________________________________ ____________________________________ OPTIONEE Address:____________________________ ____________________________ EX-10.4 12 EXHIBIT 10.4 1 EXHIBIT 10.4 NONSTATUTORY STOCK OPTION _______________________, Optionee: Aurora Biosciences Corporation (the "Company"), pursuant to its 1996 Stock Plan (the "Plan"), has granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is not intended to qualify and will not be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's employees (including officers), directors or consultants and is intended to comply with the provisions of Rule 701 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). Defined terms not explicitly defined in this agreement but defined in the Plan shall have the same definitions as in the Plan. The details of your option are as follows: 1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of shares of Common Stock subject to this option is ___________________ (_______). 2. VESTING. Subject to the limitations contained herein, this option shall become exercisable (vest) with respect to each installment shown below on or after the date of vesting applicable to such installment, as follows:
NUMBER OF SHARES (INSTALLMENT) DATE OF EARLIEST EXERCISE (VESTING) ------------------------------ ----------------------------------- __________ __________, 199__ __________ The ___ day of each month thereafter, commencing on ________, 199__ through and including _________, 199__. __________ __________, 199__
3. EXERCISE PRICE AND METHOD OF PAYMENT. (a) EXERCISE PRICE. The exercise price of this option is _________________ ($____________) per share, being not less than 85% of the fair market value of the Common Stock on the date of grant of this option. (b) METHOD OF PAYMENT. Payment of the exercise price per share is due in full upon exercise of all or any part of each installment which has accrued to you. You may elect, to the extent permitted by applicable statutes and regulations, to make payment of the exercise price under one of the following alternatives: 2 (i) Payment of the exercise price per share in cash (including check) at the time of exercise; (ii) Payment pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds; (iii) Provided that at the time of exercise the Company's Common Stock is publicly traded and quoted regularly in the Wall Street Journal, payment by delivery of already-owned shares of Common Stock, held for the period required to avoid a charge to the Company's reported earnings, and owned free and clear of any liens, claims, encumbrances or security interests, which Common Stock shall be valued at its fair market value on the date of exercise; or (iv) Payment by a combination of the methods of payment permitted by subparagraph 3(b)(i) through 3(b)(iii) above. 4. WHOLE SHARES. This option may not be exercised for any number of shares which would require the issuance of anything other than whole shares. 5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. 6. TERM. The term of this option commences on ___________, 19__, the date of grant, and expires on _____________________ (the "Expiration Date," which date shall be no more than ten (10) years from the date this option is granted), unless this option expires sooner as set forth below or in the Plan. In no event may this option be exercised on or after the Expiration Date. This option shall terminate prior to the Expiration Date as follows: three (3) months after the termination of your Continuous Status as an Employee, Director or Consultant with the Company or an Affiliate of the Company for any reason or for no reason unless: (a) such termination of Continuous Status as an Employee, Director or Consultant is due to your permanent and total disability as defined in Section 422(c)(6) of the Code, in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months following such termination of Continuous Status as an Employee, Director or Consultant; or 3 (b) such termination of Continuous Status as an Employee, Director or Consultant is due to your death or your death occurs within three (3) months following termination of your Continuous Status as an Employee, Director or Consultant for any other reason, in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months after your death; or (c) during any part of such three (3) month period the option is not exercisable solely because of the condition set forth in paragraph 5 above, in which event the option shall not expire until the earlier of the Expiration Date set forth above or until it shall have been exercisable for an aggregate period of three (3) months after the termination of Continuous Status as an Employee, Director or Consultant; or (d) exercise of the option within three (3) months after termination of your Continuous Status as an Employee, Director or Consultant with the Company or with an Affiliate of the Company would result in liability under section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), in which case the option will expire on the earlier of (i) the Expiration Date set forth above, (ii) the tenth (10th) day after the last date upon which exercise would result in such liability or (iii) six (6) months and ten (10) days after the termination of your Continuous Status as an Employee, Director or Consultant with the Company or an Affiliate of the Company. However, this option may be exercised following termination of Continuous Status as an Employee, Director or Consultant only as to that number of shares as to which it was exercisable on the date of termination of Continuous Status as an Employee, Director or Consultant under the provisions of paragraph 2 of this option. 7. REPRESENTATION. By executing this option agreement, you hereby warrant and represent that you are acquiring this option for your own account and that you have no intention of distributing, transferring or selling all or any part of this option except in accordance with the terms of this option agreement. 8. EXERCISE. (a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require pursuant to subsection 12(e) of the Plan. (b) By exercising this option you agree that: (i) as a precondition to the completion of any exercise of this option, the Company may require you to enter an arrangement providing for the cash payment by you to the Company of any tax withholding obligation of the Company arising by reason of: (1) the exercise of this option; (2) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (3) the disposition of shares acquired upon 4 such exercise. You also agree that any exercise of this option has not been completed and that the Company is under no obligation to issue any Common Stock to you until such an arrangement is established or the Company's tax withholding obligations are satisfied, as determined by the Company; and (ii) the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date (the "Effective Date") of the registration statement of the Company filed under the Act as may be requested by the Company or the representative of the underwriters. You further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. 9. TRANSFERABILITY. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise this option. 10. OPTION NOT A SERVICE CONTRACT. This option is not an employment contract and nothing in this option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company, or of the Company to continue your employment with the Company. In addition, nothing in this option shall obligate the Company or any Affiliate of the Company, or their respective stockholders, Board of Directors, officers or employees to continue any relationship which you might have as a Director or Consultant for the Company or Affiliate of the Company. 11. NOTICES. Any notices provided for in this option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 5 GOVERNING PLAN DOCUMENT. This option is subject to all the provisions of the Plan, a copy of which is attached hereto and its provisions are hereby made a part of this option, including without limitation the provisions of Section 6 of the Plan relating to option provisions, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this option and those of the Plan, the provisions of the Plan shall control. Dated the ____ day of __________________, 19__. Very truly yours, AURORA BIOSCIENCES CORPORATION By______________________________________ Duly authorized on behalf of the Board of Directors ATTACHMENTS: Aurora Biosciences Corporation 1996 Stock Plan Notice of Exercise 6 The undersigned: (a) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option and the Plan; and (b) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its Affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of (i) the options previously granted and delivered to the undersigned under stock option plans of the Company, and (ii) the following agreements only: NONE _________________ (Initial) OTHER _______________________________ _______________________________ _______________________________ ________________________________________ OPTIONEE Address: ______________________________ _______________________________ EX-10.5 13 EXHIBIT 10.5 1 EXHIBIT 10.5 AURORA BIOSCIENCES CORPORATION RESTRICTED STOCK PURCHASE AGREEMENT THIS AGREEMENT is made as of _____________ in San Diego, California, between AURORA BIOSCIENCES CORPORATION, a Delaware corporation (the "Company"), and __________________________ (the "Purchaser"). WHEREAS, the Purchaser is an employee, director or consultant of the Company and the Purchaser's continued service to the Company is considered by the Company to be important for the Company's continued growth; and WHEREAS, in order to give the Purchaser an opportunity to acquire an equity interest in the Company as an incentive for the Purchaser to participate in the affairs of the Company, the Company is willing to sell to the Purchaser and the Purchaser desires to purchase shares of Common Stock according to the terms and conditions contained in the Company's 1996 Stock Plan and herein; and WHEREAS, the issuance of Common Stock hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's employees, directors, officers, consultants and advisors and is intended to comply with the provisions of Rule 701 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). NOW, THEREFORE, the parties agree as follows: 1. SALE OF STOCK. The Company hereby agrees to sell to the Purchaser and the Purchaser hereby agrees to purchase an aggregate of ______ shares of the Company's Common Stock (the "Shares"), at the price of _____ per share for an aggregate purchase price of _________. 2. PAYMENT OF PURCHASE PRICE. The purchase price for the Shares shall be paid by delivery to the Company at the time of execution of this Agreement of cash or check in the amount of the aggregate purchase price, and the Company shall immediately issue and deliver to Purchaser a share certificate in accordance with the terms of this Agreement. 3. REPURCHASE OPTION. In the event of any termination of the Purchaser's employment by or services to the Company for any or no reason (including death or disability) before all of the Shares are released from the Company's repurchase option 1 2 (see Section 4), the Company shall, upon the date of such termination (as reasonably fixed and determined by the Company) have an irrevocable, exclusive option for a period of 90 days (or such longer period of time either mutually agreed to by Purchaser and the Company or determined by the Company in good faith to be necessary to avoid the loss of "qualified small business stock" treatment under section 1202 of the Internal Revenue Code for any stockholder other than the Purchaser) from such date to repurchase some or all of the Unreleased Shares (as defined in Section 4) at such time at the original purchase price per share (the "Repurchase Price"). Said option shall be exercised by the Company by written notice to the Purchaser or the Purchaser's executor (with a copy to the Escrow Holder, as defined in Section 6) and, at the Company's option, (i) by delivery to the Purchaser or the Purchaser's executor with such notice of a check in the amount of the purchase price for the Shares being repurchased, or (ii) by cancellation by the Company of an amount of any Purchaser's indebtedness to the Company equal to the purchase price for the Shares being repurchased, or (iii) by a combination of (i) and (ii) so that the combined payment and cancellation of indebtedness equals such repurchase price. Upon delivery of such notice and the payment of the purchase price in any of the ways described above, the Company shall become the legal and beneficial owner of the Shares being repurchased and all rights and interests therein or relating thereto, and the Company shall have the right to retain and transfer to its own name the number of Shares being repurchased by the Company. 4. RELEASE OF SHARES FROM REPURCHASE OPTION. (a) The number of Shares to be released from the Company's repurchase option, and the timing thereof, is set forth in a schedule attached hereto as Exhibit A, provided that, as to each incremental period resulting in the release of Shares from such repurchase option, that the Purchaser's employment or services have not been terminated prior to the date of any such release. (b) Any of the Shares which have not yet been released from the Company's repurchase option are referred to herein as "Unreleased Shares". (c) The Shares which (i) have been released from the Company's repurchase option, (ii) have been paid for in full, and (iii) no longer secure Shares not yet paid for in full, shall be delivered to the Purchaser at the Purchaser's request (see Section 6). 5. RESTRICTIONS ON TRANSFER. (a) Except for the escrow described in Section 6, none of the Shares or any beneficial interest therein shall be transferred, encumbered or otherwise disposed of 2 3 in any manner until the release of such Shares from the Company's repurchase option in accordance with the provisions of this Agreement. (b) The Shares may not be sold, offered for sale, pledged, hypothecated or otherwise transferred in the absence of an effective registration Statement under the Securities Act of 1933, as amended (the "Securities Act"), with respect to such Shares or an opinion of counsel reasonably acceptable to the Company that such registration is not required. The Company shall not be required to transfer on its books any portion of such Shares purchased hereunder which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or to treat as the owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares shall have been so transferred. (c) The Purchaser hereby agrees that if so requested by the Company or any representative of the underwriters in connection with any registration of the offering of any securities of the Company under Section 7 of the Securities Act, the Purchaser shall not sell, transfer or otherwise dispose of any Shares or other securities of the Company during a period of up to 180 days (as specified by such representative) following the effective date of a registration statement of the Company filed under the Securities Act; provided, however, that such restriction shall only apply to the first two registration statements of the Company to become effective under the Securities Act which include securities to be sold on behalf of the Company to the public in an underwritten public offering under the Securities Act. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such 180-day period. (d) The Shares are subject to a Right of First Refusal as set forth in Article XIV of the Company's Bylaws. 6. ESCROW OF SHARES. The Shares issued under this Agreement shall be held by an escrow holder designated by the Company (the "Escrow Holder"), along with a stock assignment executed by the Purchaser in blank in the form attached hereto as Exhibit B, pursuant to the terms of the Joint Escrow Instructions attached hereto as Exhibit C. 7. ADJUSTMENT FOR STOCK SPLIT. All references to the number of Shares and the purchase price of the Shares in this Agreement shall be appropriately adjusted to reflect any stock split, stock dividend or other change in the Shares which may be made by the Company after the date of this Agreement. 8. TAX CONSEQUENCES. The Purchaser has reviewed with the Purchaser's own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. The Purchaser is relying solely on such 3 4 advisors and not on any statements or representations of the Company or any of its agents. The Purchaser understands that the Purchaser (and not the Company) shall be responsible for the Purchaser's own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. The Purchaser understands that Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), taxes as ordinary income both (i) the difference between the fair market value of the Shares when the Company granted the Purchaser the right to purchase the Shares and the fair market value of the Shares on the date of this Agreement, and (ii) the difference between the amount paid for the Shares and the fair market value of the Shares as of the date any restrictions on the Shares lapse. In this context, "restriction" includes the right of the Company to buy back the Shares pursuant to its repurchase option. In the event the Company has registered under the Exchange Act, "restriction" with respect to officers, directors and 10% shareholders also means the period after the purchase of the Shares during which such officers, directors and 10% shareholders could be subject to suit under Section 16(b) of the Exchange Act. The Purchaser understands that the Purchaser may elect to be taxed at the time the Shares are purchased rather than when and as the Company's repurchase option or 16(b) period expires by filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of purchase. A form of election under Section 83(b) is attached as Exhibit D hereto. THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PURCHASER'S BEHALF. 9. GENERAL PROVISIONS. (a) The rights and benefits of the Company under this Agreement shall be transferable to any one or more persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and be enforceable by the Company's successors and assigns. The rights and obligations of the Purchaser under this Agreement may only be assigned with the prior written consent of the Company. (b) Any notice, demand or request required or permitted to be given by either the Company or the Purchaser pursuant to the terms of this Agreement shall be in writing and shall be deemed given when delivered personally or deposited in the U.S. Mail, First Class with postage prepaid, and addressed to the parties at the addresses of the parties set forth at the end of this Agreement or such other address as a party may request by notifying the other in writing. 4 5 (c) Either party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted both parties herein are cumulative and shall not constitute a waiver of either party's right to assert all other legal remedies available to it under the circumstances. (d) The Purchaser agrees upon request to execute any further documents or instruments necessary or desirable to carry out the purposes or intent of this Agreement. (e) Purchaser acknowledges that it is aware that the Shares have not been registered under the Securities Act of 1933, as amended (the "Act") and that the Shares are deemed to constitute "restricted securities" under Rule 144 and Rule 701 promulgated under the Act. In this connection, Purchaser warrants and represents to the Company that Purchaser is purchasing the Shares for Purchaser's own account and Purchaser has no present intention of distributing or selling said Shares except as permitted under the Act and Section 25102(f) of the California Corporations Code. Purchaser further warrants and represents that Purchaser has either (i) preexisting personal or business relationships with the Company or any of its officers, directors or controlling persons, or (ii) the capacity to protect its own interests in connection with the purchase of the Shares by virtue of the business or financial expertise of Purchaser or of any professional advisors to Purchaser who are unaffiliated with and who are not compensated by the Company or any of its affiliates, directly or indirectly. Purchaser further acknowledges that the exemption from registration under Rule 144 will not be available for at least three years from the date of sale of the Shares unless at least two years from the date of sale (i) a public trading market then exists for the Common Stock of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 are complied with; and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions. (f) All certificates representing any shares of Common Stock of the Company subject to the provisions of this Agreement shall have endorsed thereon legends in substantially the following form: (i) The securities represented by this certificate have not been registered under the Act. They may not be sold or offered for sale or otherwise distributed unless the securities are registered under the Act or an exemption therefrom is available. 5 6 (ii) Any other legend required to be placed thereon by the Company's Bylaws or applicable state, federal or foreign securities laws. (g) PURCHASER ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE, DIRECTOR OR CONSULTANT AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED OR PURCHASING SHARES HEREUNDER). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH PURCHASER'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE PURCHASER'S EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE. (h) Purchaser has reviewed this Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of this Agreement. (i) PURCHASER ACKNOWLEDGES THAT THIS AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING BETWEEN THE COMPANY AND PURCHASER REGARDING SHARES OF THE COMPANY'S SECURITIES, AND THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AND/OR UNDERSTANDINGS REGARDING THE SAME. IN WITNESS WHEREO, the parties have duly executed this Agreement as of the day and year first set forth above. AURORA BIOSCIENCES CORPORATION PURCHASER: By: __________________________ __________________________ 6 7 CONSENT OF SPOUSE I, __________________________________, spouse of , have read and approve the foregoing Agreement. In consideration of granting of the right to my spouse to purchase shares of Aurora Biosciences Corporation, as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights under the Agreement and agree to be bound by the provisions of the Agreement insofar as I may have any rights in said Agreement or any shares issued pursuant thereto under the community property laws of the State of California or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement. Dated: _______________________________ 8 EXHIBIT A REPURCHASE OPTION -- RELEASE SCHEDULE The number of Shares subject to the Company's repurchase option shall be released in accordance with the following schedule: 9 EXHIBIT B AURORA BIOSCIENCES CORPORATION STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE FOR VALUE RECEIVED, hereby sells, assigns and transfers unto AURORA BIOSCIENCES CORPORATION, a Delaware Corporation (the "Company"), pursuant to the Repurchase Option under that certain Restricted Stock Purchase Agreement dated by and between the undersigned and the Company (the "Agreement"), shares of Common Stock of Aurora Biosciences Corporation, a Delaware corporation (the "Company") standing in the undersigned's name on the books of the Company represented by Certificate No. and does hereby irrevocably constitute and appoint the Secretary of the Company attorney to transfer said stock on the books of the Company with full power of substitution in the premises. This Assignment may be used only in accordance with and subject to the terms and conditions of the Agreement, in connection with the repurchase of shares of Common Stock issued to the undersigned pursuant to the Agreement, and only to the extent that such shares remain subject to the Company's Repurchase Option under the Agreement. Dated: ________________________ ________________________________ (Signature) 10 EXHIBIT C AURORA BIOSCIENCES CORPORATION JOINT ESCROW INSTRUCTIONS President Aurora Biosciences Corporation 11149 North Torrey Pines Road La Jolla, CA 92037 Dear Sir: As Escrow Agent for both Aurora Biosciences Corporation, a Delaware corporation (the "Company"), and the undersigned purchaser of stock of the Company ("Purchaser"), you are hereby authorized and directed to hold the documents delivered to you pursuant to the terms of that certain Restricted Stock Purchase Agreement ("Agreement"), dated to which a copy of these Joint Escrow Instructions is attached as Exhibit C, in accordance with the following instructions: 1. In the event the Company or an assignee shall elect to exercise the Repurchase Option set forth in the Agreement, the Company or its assignee will give to Purchaser and you a written notice specifying the number of shares of stock to be purchased, the purchase price, and the time for a closing hereunder at the principal office of the Company. Purchaser and the Company hereby irrevocably authorize and direct you to close the transaction contemplated by such notice in accordance with the terms of said notice. 2. At the closing you are directed (a) to date any stock assignments necessary for the transfer in question, (b) to fill in the number of shares being transferred, and (c) to deliver same, together with the certificate evidencing the shares of stock to be transferred, to the Company against the simultaneous delivery to you of the purchase price (which may include suitable acknowledgment of cancellation of indebtedness) of the number of shares of stock being purchased pursuant to the exercise of the Repurchase Option. 3. Purchaser irrevocably authorizes the Company to deposit with you any certificates evidencing shares of stock to be held by you hereunder and any additions and substitutions to said shares as specified in the Agreement. Purchaser does hereby irrevocably constitute and appoint you as her attorney-in-fact and agent for the term of this escrow to execute with respect to such securities and other property all documents of 11 assignment and/or transfer and all stock certificates necessary or appropriate to make all securities negotiable and complete any transaction herein contemplated. 4. This escrow shall terminate upon expiration or exercise in full of the Repurchase Option, whichever occurs first. 5. If at the time of termination of this escrow you should have in your possession any documents, securities, or other property belonging to Purchaser, you shall deliver all of same to Purchaser and shall be discharged of all further obligations hereunder; provided, however, that if at the time of termination of this escrow you are advised by the Company that the property subject to this escrow is the subject of a pledge or other security agreement, you shall deliver all such property to the pledgeholder or other person designated by the Company. 6. Except at otherwise provided in these Joint Escrow Instructions, your duties hereunder may be altered, amended, modified or revoked only by a writing signed by all of the parties hereto. 7. You shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by you to be genuine and to have been signed or presented by the proper party or parties or their assignees. You shall not be personally liable for any act you may do or omit to do hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith and any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive evidence of such good faith. 8. You are hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case you obey or comply with any such order, judgment or decree of any court, you shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. 9. You shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder. 10. You shall not be liable for the outlawing of any rights under any statute of limitations with respect to these Joint Escrow Instructions or any documents deposited with you. 12 11. You shall be entitled to employ such legal counsel (including without limitation the firm of Cooley, Godward, Castro, Huddleson & Tatum) and other experts as you may deem necessary properly to advise you in connection with your obligations hereunder, may rely upon the advice of such counsel, and may pay such counsel reasonable compensation therefor. 12. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be President of the Company or if you shall resign by written notice to each party. In the event of any such termination, the Company may appoint any officer or assistant officer of the Company as successor Escrow Agent and Purchaser hereby confirms the appointment of such successor or successors as his attorney-in-fact and agent to the full extent of your appointment. 13. If you reasonably require other or further instruments in connection with these Joint Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments. 14. It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the securities, you may (but are not obligated to) retain in your possession without liability to anyone all or any part of said securities until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but you shall be under no duty whatsoever to institute or defend any such proceedings. 15. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in any United States Post Box, by registered or certified mail with postage and fees prepaid, addressed to each of the other parties hereunto entitled at the following addresses, or at such other addresses as a party may designate by ten days' written notice to each of the other parties hereto: COMPANY: AURORA BIOSCIENCES CORPORATION 11149 North Torrey Pines Road La Jolla, CA 92037 PURCHASER: 13 PRESIDENT: AURORA BIOSCIENCES CORPORATION 11149 North Torrey Pines Road La Jolla, CA 92037 16. By signing these Joint Escrow Instructions you become a party hereto only for the purpose of said Joint Escrow Instructions; you do not become a party to the Agreement. 17. This instrument shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. It is understood and agreed that references to "you" or "your" herein refer to the original Escrow Agent and to any and all successor Escrow Agents. It is understood and agreed that the Company may at any time or from time to time assign its rights under the Agreement and these Joint Escrow Instructions in whole or in part. Very truly yours, AURORA BIOSCIENCES CORPORATION By____________________________________ PURCHASER: ______________________________________ ESCROW AGENT: ______________________________________ EX-10.6 14 EXHIBIT 10.6 1 Exhibit 10.6 AURORA BIOSCIENCES CORPORATION EMPLOYEE STOCK PURCHASE PLAN ADOPTED FEBRUARY 4, 1997 (SHARE NUMBERS HEREIN HAVE NOT BEEN ADJUSTED TO REFLECT THE FOUR FOR FIVE REVERSE STOCK SPLIT TO BE EFFECTED PRIOR TO THE OFFERING) 1. PURPOSE. (a) The purpose of the Employee Stock Purchase Plan (the "Plan") is to provide a means by which employees of Aurora Biosciences Corporation, a Delaware corporation (the "Company"), and its Affiliates, as defined in subparagraph 1(b), which are designated as provided in subparagraph 2(b), may be given an opportunity to purchase stock of the Company. (b) The word "Affiliate" as used in the Plan means any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended (the "Code"). (c) The Company, by means of the Plan, seeks to retain the services of its employees, to secure and retain the services of new employees, and to provide incentives for such persons to exert maximum efforts for the success of the Company. (d) The Company intends that the rights to purchase stock of the Company granted under the Plan be considered options issued under an "employee stock purchase plan" as that term is defined in Section 423(b) of the Code. 2. ADMINISTRATION. (a) The Plan shall be administered by the Board of Directors (the "Board") of the Company unless and until the Board delegates administration to a Committee, as provided in subparagraph 2(c). Whether or not the Board has delegated administration, the Board shall have the final power to determine all questions of policy and expediency that may arise in the administration of the Plan. (b) The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: (i) To determine when and how rights to purchase stock of the Company shall be granted and the provisions of each offering of such rights (which need not be identical). (ii) To designate from time to time which Affiliates of the Company shall be eligible to participate in the Plan. (iii) To construe and interpret the Plan and rights granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (iv) To amend the Plan as provided in paragraph 13. (v) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company and its Affiliates. (c) The Board may delegate administration of the Plan to a Committee composed of not fewer than two (2) members of the Board (the "Committee"). If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, 1. 2 subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. 3. SHARES SUBJECT TO THE PLAN. (a) Subject to the provisions of paragraph 12 relating to adjustments upon changes in stock, the stock that may be sold pursuant to rights granted under the Plan shall not exceed in the aggregate five hundred thousand (500,000) shares of the Company's common stock (the "Common Stock"). If any right granted under the Plan shall for any reason terminate without having been exercised, the Common Stock not purchased under such right shall again become available for the Plan. (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 4. GRANT OF RIGHTS; OFFERING. (a) The Board or the Committee may from time to time grant or provide for the grant of rights to purchase Common Stock of the Company under the Plan to eligible employees (an "Offering") on a date or dates (the "Offering Date(s)") selected by the Board or the Committee. Each Offering shall be in such form and shall contain such terms and conditions as the Board or the Committee shall deem appropriate, which shall comply with the requirements of Section 423(b)(5) of the Code that all employees granted rights to purchase stock under the Plan shall have the same rights and privileges. The provisions of separate Offerings need not be identical, but each Offering shall include (through incorporation of the provisions of this Plan by reference in the Offering or otherwise) the period during which the Offering shall be effective, which period shall not exceed twenty-seven (27) months beginning with the Offering Date, and the substance of the provisions contained in paragraphs 5 through 8, inclusive. (b) If an employee has more than one right outstanding under the Plan, unless he or she otherwise indicates in agreements or notices delivered hereunder: (1) each agreement or notice delivered by that employee will be deemed to apply to all of his or her rights under the Plan, and (2) a right with a lower exercise price (or an earlier-granted right, if two rights have identical exercise prices), will be exercised to the fullest possible extent before a right with a higher exercise price (or a later-granted right, if two rights have identical exercise prices) will be exercised. 5. ELIGIBILITY. (a) Rights may be granted only to employees of the Company or, as the Board or the Committee may designate as provided in subparagraph 2(b), to employees of any Affiliate of the Company. Except as provided in subparagraph 5(b), an employee of the Company or any Affiliate shall not be eligible to be granted rights under the Plan, unless, on the Offering Date, such employee is in the employ of the Company and has been in the employ of the Company or any Affiliate for such continuous period preceding such grant as the Board or the Committee may require, but in no event shall the required period of continuous employment be greater than two (2) years. In addition, unless otherwise determined by the Board or the Committee and set forth in the terms of the applicable Offering, no employee of the Company or any Affiliate shall be eligible to be granted rights under the Plan, unless, on the Offering Date, such employee's customary employment with the Company or such Affiliate is for at least twenty (20) hours per week and at least five (5) months per calendar year. (b) Each person who, during the course of an Offering, first becomes an eligible employee of the Company or designated Affiliate shall not be eligible to be granted rights under such Offering. (c) No employee shall be eligible for the grant of any rights under the Plan if, immediately after any such rights are granted, such employee owns stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or of any Affiliate. For purposes of this subparagraph 2. 3 5(c), the rules of Section 424(d) of the Code shall apply in determining the stock ownership of any employee, and stock which such employee may purchase under all outstanding rights and options shall be treated as stock owned by such employee. (d) An eligible employee may be granted rights under the Plan only if such rights, together with any other rights granted under "employee stock purchase plans" of the Company and any Affiliates, as specified by Section 423(b)(8) of the Code, do not permit such employee's rights to purchase stock of the Company or any Affiliate to accrue at a rate which exceeds twenty-five thousand dollars ($25,000) of fair market value of such stock (determined at the time such rights are granted) for each calendar year in which such rights are outstanding at any time. (e) Officers of the Company and any designated Affiliate shall be eligible to participate in Offerings under the Plan, provided, however, that the Board may provide in an Offering that certain employees who are highly compensated employees within the meaning of Section 423(b)(4)(D) of the Code shall not be eligible to participate. 6. RIGHTS; PURCHASE PRICE. (a) On each Offering Date, each eligible employee, pursuant to an Offering made under the Plan, shall be granted the right to purchase up to the number of shares of Common Stock of the Company purchasable with a percentage designated by the Board or the Committee not exceeding fifteen percent (15%) of such employee's Earnings (as defined in subparagraph 7(a)) during the period which begins on the Offering Date (or such later date as the Board or the Committee determines for a particular Offering) and ends on the date stated in the Offering, which date shall be no later than the end of the Offering. The Board or the Committee shall establish one or more dates during an Offering (the "Purchase Date(s)") on which rights granted under the Plan shall be exercised and purchases of Common Stock effected in accordance with such Offering. (b) In connection with each Offering made under this Plan, the Board or the Committee shall specify a maximum number of shares which may be purchased by any employee as well as a maximum aggregate number of shares which may be purchased by all eligible employees pursuant to such Offering. In addition, in connection with each Offering which contains more than one Purchase Date, the Board or the Committee may specify a maximum aggregate number of shares which may be purchased by all eligible employees on any given Purchase Date under the Offering. If the aggregate purchase of shares upon exercise of rights granted under the Offering would exceed any such maximum aggregate number, the Board or the Committee shall make a pro rata allocation of the shares available in as nearly a uniform manner as shall be practicable and as it shall deem to be equitable. (c) The purchase price of stock acquired pursuant to rights granted under the Plan shall be not less than the lesser of: (i) an amount equal to eighty-five percent (85%) of the fair market value of the stock on the Offering Date; or (ii) an amount equal to eighty-five percent (85%) of the fair market value of the stock on the Purchase Date. 7. PARTICIPATION; WITHDRAWAL; TERMINATION. (a) An eligible employee may become a participant in the Plan pursuant to an Offering by delivering a participation agreement to the Company within the time specified in the Offering, in such form as the Company provides; provided, however, that an eligible employee shall be entitled to participate in no more than one (1) Offering at any time. Each such agreement shall authorize payroll deductions of up to the maximum percentage specified by the Board or the Committee of such employee's Earnings during the Offering. "Earnings" is defined as an employee's regular salary or wages (including amounts thereof elected to be deferred by the employee, that would otherwise have been paid, under any cash or deferred arrangement established by the Company), which shall include commissions and overtime pay, but shall exclude bonuses, incentive pay, profit sharing, other remuneration 3. 4 paid directly to the employee, the cost of employee benefits paid for by the Company or an Affiliate, education or tuition reimbursements, imputed income arising under any group insurance or benefit program, traveling expenses, business and moving expense reimbursements, income received in connection with stock options, contributions made by the Company or an Affiliate under any employee benefit plan, and similar items of compensation. The payroll deductions made for each participant shall be credited to an account for such participant under the Plan and shall be deposited with the general funds of the Company or an Affiliate. A participant may reduce (including to zero) such payroll deductions after the beginning of any Offering only as provided for in the Offering. A participant may not increase such payroll deductions during the course of an Offering. A participant may not make additional payments into his or her account. (b) At any time during an Offering, a participant may terminate his or her payroll deductions under the Plan and withdraw from the Offering by delivering to the Company a notice of withdrawal in such form as the Company provides. Such withdrawal may be elected at any time prior to the end of the Offering except as provided by the Board or the Committee in the Offering. Upon such withdrawal from the Offering by a participant, the Company shall distribute to such participant all of his or her accumulated payroll deductions (reduced to the extent, if any, such deductions have been used to acquire stock for the participant) under the Offering, without interest, and such participant's interest in that Offering shall be automatically terminated. A participant's withdrawal from an Offering will have no effect upon such participant's eligibility to participate in any other Offerings under the Plan but such participant will be required to deliver a new participation agreement in order to participate in subsequent Offerings under the Plan. (c) Rights granted pursuant to any Offering under the Plan shall terminate immediately upon cessation of any participating employee's employment with the Company and any designated Affiliate, for any reason, and the Company shall distribute to such terminated employee all of his or her accumulated payroll deductions (reduced to the extent, if any, such deductions have been used to acquire stock for the terminated employee), under the Offering, without interest. (d) Rights granted under the Plan shall not be transferable, and, except as provided in paragraph 14, shall be exercisable only by the person to whom such rights are granted. 8. EXERCISE. (a) On each date specified therefor in the relevant Offering ("Purchase Date"), each participant's accumulated payroll deductions and other additional payments specifically provided for in the Offering (without any increase for interest) will be applied to the purchase of whole shares of stock of the Company, up to the maximum number of shares permitted pursuant to the terms of the Plan and the applicable Offering, at the purchase price specified in the Offering. No fractional shares shall be issued upon the exercise of rights granted under the Plan. The amount, if any, of accumulated payroll deductions remaining in each participant's account after the purchase of shares on the final Purchase Date of an Offering shall be distributed to the participant after such final Purchase Date, without interest. (b) No rights granted under the Plan may be exercised to any extent unless the Plan (including rights granted thereunder) is covered by an effective registration statement pursuant to the Securities Act of 1933, as amended (the "Securities Act") and the Plan is in material compliance with all applicable state, foreign and other securities and other laws applicable to the Plan. If on a Purchase Date in any Offering hereunder the Plan is not so registered, no rights granted under the Plan or any Offering shall be exercised on such Purchase Date, and the Purchase Date shall be delayed until the Plan is subject to such an effective registration statement and in such compliance, except that the Purchase Date shall not be delayed more than twelve (12) months and the Purchase Date shall in no event be more than twenty-seven (27) months from the Offering Date. If on the Purchase Date of any Offering hereunder, as delayed to the maximum extent permissible, the Plan is not registered and in such compliance, no rights granted under the Plan or any Offering shall be exercised and all payroll deductions accumulated during the Offering (reduced to the extent, if any, such deductions have been used to acquire stock) shall be distributed to the participants, without interest. 4. 5 9. COVENANTS OF THE COMPANY. (a) During the terms of the rights granted under the Plan, the Company shall keep available at all times the number of shares of stock required to satisfy such rights. (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock upon exercise of the rights granted under the Plan. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell stock upon exercise of such rights unless and until such authority is obtained. 10. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to rights granted under the Plan shall constitute general funds of the Company. 11. RIGHTS AS A STOCKHOLDER. A participant shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to rights granted under the Plan unless and until the participant's stockholdings acquired upon exercise of rights under the Plan are recorded in the books of the Company. 12. ADJUSTMENTS UPON CHANGES IN STOCK. (a) If any change is made in the stock subject to the Plan, or subject to any rights granted under the Plan (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), the Plan and outstanding rights will be appropriately adjusted in the class(es) and maximum number of shares subject to the Plan and the class(es) and number of shares and price per share of stock subject to outstanding rights. (b) In the event of: (1) a dissolution or liquidation of the Company; (2) a merger or consolidation in which the Company is not the surviving corporation; (3) a reverse merger in which the Company is the surviving corporation but the shares of the Company's Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise; or (4) any other capital reorganization in which more than fifty percent (50%) of the shares of the Company entitled to vote are exchanged, then, as determined by the Board in its sole discretion (i) any surviving corporation may assume outstanding rights or substitute similar rights for those under the Plan, (ii) such rights may continue in full force and effect, or (iii) participants' accumulated payroll deductions may be used to purchase Common Stock immediately prior to the transaction described above and the participants' rights under the ongoing Offering terminated. 13. AMENDMENT OF THE PLAN. (a) The Board at any time, and from time to time, may amend the Plan. However, except as provided in paragraph 12 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the stockholders of the Company within twelve (12) months before or after the adoption of the amendment, where the amendment will: (i) Increase the number of shares reserved for rights under the Plan; (ii) Modify the provisions as to eligibility for participation in the Plan (to the extent such modification requires stockholder approval in order for the Plan to obtain employee stock purchase plan treatment 5. 6 under Section 423 of the Code or to comply with the requirements of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 16b-3")); or (iii) Modify the Plan in any other way if such modification requires stockholder approval in order for the Plan to obtain employee stock purchase plan treatment under Section 423 of the Code or to comply with the requirements of Rule 16b-3. It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide eligible employees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder relating to employee stock purchase plans and/or to bring the Plan and/or rights granted under it into compliance therewith. (b) Rights and obligations under any rights granted before amendment of the Plan shall not be impaired by any amendment of the Plan, except with the consent of the person to whom such rights were granted or except as necessary to comply with any laws or governmental regulation. 14. DESIGNATION OF BENEFICIARY. (a) A participant may file a written designation of a beneficiary who is to receive any shares and cash, if any, from the participant's account under the Plan in the event of such participant's death subsequent to the end of an Offering but prior to delivery to him of such shares and cash. In addition, a participant may file a written designation of a beneficiary who is to receive any cash from the participant's account under the Plan in the event of such participant's death during an Offering. (b) Such designation of beneficiary may be changed by the participant at any time by written notice. In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant's death, the Company shall deliver such shares and/or cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one or more dependents or relatives of the participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate. 15. TERMINATION OR SUSPENSION OF THE PLAN. (a) The Board may suspend or terminate the Plan at any time. No rights may be granted under the Plan while the Plan is suspended or after it is terminated. (b) Rights and obligations under any rights granted while the Plan is in effect shall not be impaired by suspension or termination of the Plan, except as expressly provided in the Plan or with the consent of the person to whom such rights were granted or except as necessary to comply with any laws or governmental regulation. 16. EFFECTIVE DATE OF PLAN. The Plan shall become effective upon the effectiveness of the Company's initial public offering of shares of common stock, but no rights granted under the Plan shall be exercised unless and until the Plan has been approved by the stockholders of the Company. 6. 7 AURORA BIOSCIENCES CORPORATION EMPLOYEE STOCK PURCHASE PLAN OFFERING 1. GRANT; OFFERING DATE. (a) The Board of Directors of Aurora Biosciences Corporation (the "Company"), pursuant to the Company's Employee Stock Purchase Plan (the "Plan"), hereby authorizes the grant of rights to purchase shares of the common stock of the Company ("Common Stock") to all Eligible Employees (an "Offering"). The first Offering shall begin simultaneously with the initial public offering of the Company's Common Stock, or the effective date of such initial public offering (the "Effective Date") and end on April 30, 1999 (the "Initial Offering"). Thereafter, an Offering shall begin on May 1st, every year, beginning with calendar year 1998, and shall end on the day prior to the second anniversary of its Offering Date. (b) Prior to the commencement of any Offering, the Board of Directors (or the Committee described in subparagraph 2(c) of the Plan, if any) may change any or all terms of such Offering and any subsequent Offerings. The granting of rights pursuant to each Offering hereunder shall occur on each respective Offering Date unless, prior to such date (a) the Board of Directors (or such Committee) determines that such Offering shall not occur, or (b) no shares remain available for issuance under the Plan in connection with the Offering. 2. ELIGIBLE EMPLOYEES. (a) All employees of the Company and each of its Affiliates (as defined in the Plan) incorporated in the United States shall be granted rights to purchase Common Stock under each Offering on the Offering Date of such Offering (an "Eligible Employee"); provided, however, that an Eligible Employee shall be entitled to participate in no more than one (1) Offering at any time. Notwithstanding the foregoing, no employee who is disqualified by subparagraph 5(c) or 5(d) of the Plan shall be an Eligible Employee or be granted rights under an Offering. An employee need not otherwise satisfy the employment requirements of subparagraph 5(a) of the Plan (that is, an employee need not be in the employ of the Company for any continuous period, nor customarily employed for at least twenty (20) hours per week and at least five (5) months per calendar year) to be an Eligible Employee granted rights under the Offering. (b) Each person who, with respect to any Offering, first becomes an Eligible Employee subsequent to the Offering Date of such Offering, shall not receive any right under such Offering. 3. RIGHTS. (a) Subject to the limitations contained herein and in the Plan, on each Offering Date each Eligible Employee shall be granted the right to purchase the number of shares of Common Stock purchasable with up to fifteen percent (15%) of such employee's Earnings paid during the period of such Offering beginning after such Eligible Employee first commences participation; provided, however, that no employee may purchase Common Stock in a particular year with more than fifteen percent (15%) of such employee's Earnings in such year under all ongoing Offerings under the Plan and all other Company plans intended to qualify as "employee stock purchase plans" under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). "Earnings" for this purpose means an employee's regular salary or wages (including amounts the employee elected to defer, but which would otherwise have been paid under a 401(k) plan or similar arrangement), commissions and overtime pay. The maximum number of shares of Common Stock an Eligible Employee may purchase on any Purchase Date in an Offering shall be such number of shares as has a fair market value (determined as of the Offering Date for such Offering) equal to (x) $25,000 multiplied by the number of calendar years in which the right under such Offering has been outstanding at any time, minus (y) the fair market value of any other shares of Common Stock (determined as of the relevant Offering Date with respect to such shares) which, for purposes of the limitation of Section 423(b)(8) of the Code, are attributed to any of such calendar years in which the right is outstanding. The amount in clause (y) of the previous sentence shall be determined in accordance with regulations applicable under Section 423(b)(8) of the Code based on (i) the number of shares previously purchased with respect to such calendar years 8 pursuant to such Offering or any other Offering under the Plan, or pursuant to any other Company plans intended to qualify as "employee stock purchase plans" under Section 423 of the Code, and (ii) the number of shares subject to other rights outstanding on the Offering Date for such Offering pursuant to the Plan or any other such Company plan. (b) The maximum aggregate number of shares available to be purchased by all Eligible Employees under an Offering on any Purchase Date shall be the number of shares remaining available under the Plan on the applicable Purchase Date. If the aggregate purchase of shares of Common Stock upon exercise of rights granted under the Offering would exceed the maximum aggregate number of shares available, the Board shall make a pro rata allocation of the shares available in a uniform and equitable manner. 4. PURCHASE PRICE. The purchase price of the Common Stock under the Offering shall be the lesser of eighty-five percent (85%) of the fair market value of the Common Stock on the Offering Date or eighty-five percent (85%) of the fair market value of the Common Stock on the Purchase Date, in each case rounded up to the nearest whole cent per share. For the Initial Offering, the fair market value of the Common Stock at the time when the Offering commences shall be the price per share at which shares of Common Stock are first sold to the public in the Company's initial public offering as specified in the final prospectus with respect to that offering. As otherwise used herein, "fair market value" means, as of any date, the value of the common stock of the Company determined as follows: (i) If the common stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market, the fair market value of a share of common stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such system or exchange (or the exchange with the greatest volume of trading in common stock) on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; (ii) If the common stock is quoted on Nasdaq (but not on the National Market thereof) or is regularly quoted by a recognized securities dealer but selling prices are not reported, the fair market value of a share of common stock shall be the mean between the bid and asked prices for the common stock on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; (iii) In the absence of an established market for the common stock, the fair market value shall be determined in good faith by the Board. 5. PARTICIPATION. (a) An Eligible Employee may elect to participate in an Offering only on the Offering Date. An Eligible Employee shall become a participant in an Offering by delivering an agreement authorizing payroll deductions. Such deductions may be in whole percentages only, with a minimum percentage of one percent (1%), and a maximum percentage of fifteen percent (15%). A participant may not make additional payments into his or her account. The agreement shall be made on such enrollment form as the Company provides, and must be delivered to the Company before the Offering Date to be effective for that Offering, unless a later time for filing the enrollment form is set by the Board for all Eligible Employees with respect to a given Offering Date. As to the Initial Offering, the time for filing an enrollment form and commencing participation for individuals who are Eligible Employees on the Offering Date for the Initial Offering shall be determined by the Company and communicated to such Eligible Employees. (b) A participant may not increase his or her participation level during the course of an Offering. A participant may reduce (including to zero) his or her participation level only once during any six month period ending on a Purchase Date by delivering a notice to the Company in such form and at such time as the Company provides. Notwithstanding the foregoing, a participant may make a second reduction during such six month period if such second reduction is to zero. A participant may withdraw from an Offering and receive his or her 9 accumulated payroll deductions from the Offering (reduced to the extent, if any, such deductions have been used to acquire Common Stock for the participant on any prior Purchase Dates), without interest, at any time prior to the end of the Offering by delivering a withdrawal notice to the Company in such form as the Company provides. 6. PURCHASES. Subject to the limitations contained herein, on each Purchase Date, each participant's accumulated payroll deductions (without any increase for interest) shall be applied to the purchase of whole shares of Common Stock, up to the maximum number of shares permitted under the Plan and the Offering. "Purchase Date" shall be defined as each April 30 (excluding April 30, 1997) and October 31. 7. TERMINATION. Rights granted under the Offering shall terminate immediately upon cessation of any participating employee's employment with the Company and any designated Affiliate, for any reason, and the Company shall distribute to such terminated employee all of his or her accumulated payroll deductions (reduced to the extent, if any, such deductions have been used to acquire stock for the terminated employee), under the Offering, without interest. 8. NOTICES AND AGREEMENTS. Any notices or agreements provided for in an Offering or the Plan shall be given in writing, in a form provided by the Company, and unless specifically provided for in the Plan or this Offering shall be deemed effectively given upon receipt or, in the case of notices and agreements delivered by the Company, five (5) days after deposit in the United States mail, postage prepaid. 9. EXERCISE CONTINGENT ON STOCKHOLDER APPROVAL. The rights granted under an Offering are subject to the approval of the Plan by the stockholders as required for the Plan to obtain treatment as a tax-qualified employee stock purchase plan under Section 423 of the Code and to comply with the requirements of the exemption from potential liability under Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), set forth in Rule 16b-3 promulgated under the Exchange Act. 10. OFFERING SUBJECT TO PLAN. Each Offering is subject to all the provisions of the Plan, and its provisions are hereby made a part of the Offering, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of an Offering and those of the Plan (including interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan), the provisions of the Plan shall control. EX-10.7 15 EXHIBIT 10.7 1 EXHIBIT 10.7 AURORA BIOSCIENCES CORPORATION NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN ADOPTED ON FEBRUARY 10, 1997 (SHARE NUMBERS HEREIN HAVE NOT BEEN ADJUSTED TO REFLECT THE FOUR FOR FIVE REVERSE STOCK SPLIT TO BE EFFECTED PRIOR TO THE OFFERING) 1. PURPOSE. (a) The purpose of the Non-Employee Directors' Stock Option Plan (the "Plan") is to provide a means by which certain directors of Aurora Biosciences Corporation, a Delaware corporation (the "Company"), who are not otherwise employees of the Company or of any Affiliate of the Company ("Non-Employee Directors"), will be given an opportunity to purchase stock of the Company. (b) The word "Affiliate" as used in the Plan means any parent corporation or subsidiary corporation of the Company as those terms are defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended from time to time (the "Code"). (c) The Company, by means of the Plan, seeks to retain the services of certain persons now serving as Non-Employee Directors of the Company, to secure and retain the services of persons capable of serving in such capacity, and to provide incentives for such persons to exert maximum efforts for the success of the Company. 2. ADMINISTRATION. (a) The Plan shall be administered by the Board of Directors of the Company (the "Board") unless and until the Board delegates administration to a committee, as provided in subparagraph 2(b). (b) The Board may delegate administration of the Plan to a committee composed of not fewer than two (2) members of the Board (the "Committee"). If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. 3. SHARES SUBJECT TO THE PLAN. (a) Subject to the provisions of paragraph 10 relating to adjustments upon changes in stock, the stock that may be sold pursuant to options granted under the Plan shall not exceed in the aggregate three hundred thousand (300,000) shares of the 1. 2 Company's common stock. If any option granted under the Plan shall for any reason expire or otherwise terminate without having been exercised in full, the stock not purchased under such option shall again become available for the Plan. (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 4. ELIGIBILITY. Options shall be granted only to Non-Employee Directors of the Company. 5. NON-DISCRETIONARY GRANTS. (a) Each person who, upon the effective date of the Plan as set forth in Section 13 below, is a Non-Employee Director automatically shall be granted a one-time option to purchase twenty thousand (20,000) shares of common stock of the Company on the terms and conditions set forth herein. (b) Each person who, after the effective date of the Company's initial public offering of shares of Common Stock pursuant to a registration statement on Form S-1 filed with the Securities and Exchange Commission (the "Effective Date"), for the first time becomes a Non- Employee Director automatically shall be granted, upon the date of his or her initial appointment or election to be a Non-Employee Director by the Board or stockholders of the Company, a one-time option to purchase twenty thousand (20,000) shares of common stock of the Company on the terms and conditions set forth herein. (c) On the date of each annual meeting of the stockholders of the Company after the Effective Date (other than any such annual meeting held in 1997), each person who is elected at such annual meeting to serve as a Non-Employee Director (other than a person who receives a grant under subparagraph 5(b) on or during the three-month period preceding such date) automatically shall be granted an option to purchase five thousand (5,000) shares of common stock of the Company on the terms and conditions set forth herein. 6. OPTION PROVISIONS. Each option shall be subject to the following terms and conditions: (a) TERM. The term of each option commences on the date it is granted and, unless sooner terminated as set forth herein, expires on the date ten (10) years from the date of grant (the "Expiration Date"). No option shall be exercisable after the Expiration Date. 2. 3 (b) TERMINATION OF SERVICE TO THE COMPANY. If the optionee's service as a Non-Employee Director or employee of or consultant to the Company or any Affiliate ("Service") terminates (other than upon the optionee's death or disability), the optionee may exercise his or her option (to the extent that the optionee was entitled to exercise it as of the date of termination) but only within such period of time ending on the earlier of (i) the date three (3) months following the termination of the optionee's Service (or such longer or shorter period, which shall not be less than thirty (30) days, specified in the option agreement), or (ii) the Expiration Date. If, at the date of termination, the optionee is not entitled to exercise his or her entire option, the shares covered by the unexercisable portion of the option shall revert to and again become available for issuance under the Plan. If, after termination of Service, the optionee does not exercise his or her option within the time specified herein, the option shall terminate, and the shares covered by such option shall revert to and again become available for issuance under the Plan. An optionee's option agreement may also provide that, if the exercise of the option following the termination of the optionee's Service (other than upon the optionee's death or disability) would result in liability under Section 16(b) of the Exchange Act, then the option shall terminate on the earlier of (i) the Expiration Date or (ii) the tenth (10th) day after the last date on which such exercise would result in such liability under Section 16(b) of the Exchange Act. Finally, an optionee's option agreement may also provide that if the exercise of the option following the termination of the optionee's Service (other than upon the optionee's death or disability) would be prohibited at any time solely because the issuance of shares would violate the registration requirements under the Securities Act, then the option shall terminate on the earlier of (i) the Expiration Date or (ii) the expiration of a period of three (3) months after the termination of the optionee's Service during which the exercise of the Option would not be in violation of such registration requirements. (c) DISABILITY OF OPTIONEE. In the event an optionee's Service terminates as a result of the optionee's disability, the optionee may exercise his or her option (to the extent that the optionee was entitled to exercise it as of the date of termination), but only within such period of time ending on the earlier of (i) the date twelve (12) months following such termination (or such longer or shorter period, which in no event shall be less than six (6) months, specified in the option agreement), or (ii) the Expiration Date. If, at the date of termination, the optionee is not entitled to exercise his or her entire option, the shares covered by the unexercisable portion of the option shall revert to and again become available for issuance under the Plan. If, after termination, the optionee does not exercise his or her option within the time specified herein, the option shall terminate, and the shares covered by such option shall revert to and again become available for issuance under the Plan. (d) DEATH OF OPTIONEE. In the event of the death of an optionee during, or within a period specified in the option agreement after the termination of, the optionee's 3. 4 Service, the option may be exercised (to the extent the optionee was entitled to exercise the option as of the date of death) by the optionee's estate, by a person who acquired the right to exercise the option by bequest or inheritance or by a person designated to exercise the option upon the optionee's death pursuant to subsection 6(d), but only within the period ending on the earlier of (i) the date eighteen (18) months following the date of death (or such longer or shorter period, which in no event shall be less than six (6) months, specified in the option agreement), or (ii) the Expiration Date. If, at the time of death, the optionee was not entitled to exercise his or her entire option, the shares covered by the unexercisable portion of the option shall revert to and again become available for issuance under the Plan. If, after death, the option is not exercised within the time specified herein, the option shall terminate, and the shares covered by such option shall revert to and again become available for issuance under the Plan. (e) The exercise price of each option shall be one hundred percent (100%) of the fair market value of the stock subject to such option on the date such option is granted. (f) Payment of the exercise price of each option is due in full in cash upon any exercise, provided that an option may be exercised pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which results in the receipt of cash (or check) by the Company prior to the issuance of shares of the Company's common stock. (g) An option shall only be transferable by the optionee upon such terms and conditions as are set forth in the option agreement for such option, as the Board or the Committee shall determine in its discretion. The optionee may, by delivering written notice to the Company in a form satisfactory to the Company, designate a third party who, in the event of the death of the optionee, shall thereafter be entitled to exercise the option. (h) The option shall become exercisable (vest) in monthly installments over a period of four years from the date of grant, with one forty-eighth (1/48) of the shares vesting on each one-month anniversary of the grant date; provided that the optionee has, during the entire period prior to such vesting date, continuously served as a Non-Employee Director or employee of or consultant to the Company or any Affiliate of the Company, whereupon such option shall become fully exercisable in accordance with its terms with respect to that portion of the shares represented by that installment. Notwithstanding the foregoing, the option may, but need not, include a provision whereby the Optionee may elect at any time while a Director to exercise the option as to any part or all of the shares subject to the option prior to the full vesting of the option. Any unvested shares so purchased may be subject to a repurchase right in favor of the Company or to any other restriction the Board or Committee determines to be appropriate. (i) The Company may require any optionee, or any person to whom an option is transferred under subparagraph 6(g), as a condition of exercising any such option: (i) to give written assurances satisfactory to the Company as to the optionee's knowledge and experience in financial and business matters; and (ii) to give written assurances 4. 5 satisfactory to the Company stating that such person is acquiring the stock subject to the option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the option has been registered under a then- currently-effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or (ii), as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then- applicable securities laws. (j) Notwithstanding anything to the contrary contained herein, an option may not be exercised unless the shares issuable upon exercise of such option are then registered under the Securities Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Securities Act. 7. COVENANTS OF THE COMPANY. (a) During the terms of the options granted under the Plan, the Company shall keep available at all times the number of shares of stock required to satisfy such options. (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock upon exercise of the options granted under the Plan; provided, however, that this undertaking shall not require the Company to register under the Securities Act either the Plan, any option granted under the Plan, or any stock issued or issuable pursuant to any such option. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell stock upon exercise of such options. 8. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to options granted under the Plan shall constitute general funds of the Company. 9. MISCELLANEOUS. (a) Neither an optionee nor any person to whom an option is transferred under subparagraph 6(g) shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such option unless and until such person has satisfied all requirements for exercise of the option pursuant to its terms. 5. 6 (b) Throughout the term of any option granted pursuant to the Plan, the Company shall make available to the holder of such option, not later than one hundred twenty (120) days after the close of each of the Company's fiscal years during the option term, upon request, such financial and other information regarding the Company as comprises the annual report to the shareholders of the Company provided for in the Bylaws of the Company and such other information regarding the Company as the holder of such option may reasonably request. (c) Nothing in the Plan or in any instrument executed pursuant thereto shall confer upon any Non-Employee Director any right to continue in the service of the Company or any Affiliate or shall affect any right of the Company, its Board or shareholders or any Affiliate to terminate the service of any Non-Employee Director with or without cause. (d) No Non-Employee Director, individually or as a member of a group, and no beneficiary or other person claiming under or through him, shall have any right, title or interest in or to any option reserved for the purposes of the Plan except as to such shares of common stock, if any, as shall have been reserved for him pursuant to an option granted to him. (e) In connection with each option granted pursuant to the Plan, it shall be a condition precedent to the Company's obligation to issue or transfer shares to a Non-Employee Director, or to evidence the removal or lapse of any restrictions on transfer, that such Non-Employee Director make arrangements satisfactory to the Company to insure that the amount of any federal or other withholding tax required to be withheld with respect to such sale or transfer, or such removal or lapse, is made available to the Company for timely payment of such tax. (f) As used in this Plan, "fair market value" means, as of any date, the value of the common stock of the Company determined as follows: (i) If the common stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market, the fair market value of a share of common stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such system or exchange (or the exchange with the greatest volume of trading in common stock) on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; (ii) If the common stock is quoted on Nasdaq (but not on the National Market thereof) or is regularly quoted by a recognized securities dealer but selling prices are not reported, the fair market value of a share of common stock shall be the mean 6. 7 between the bid and asked prices for the common stock on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; (iii) In the absence of an established market for the common stock, the fair market value shall be determined in good faith by the Board. 10. ADJUSTMENTS UPON CHANGES IN STOCK. (a) If any change is made in the stock subject to the Plan, or subject to any option granted under the Plan (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), the Plan and outstanding options will be appropriately adjusted in the class(es) and maximum number of shares subject to the Plan and the class(es) and number of shares and price per share of stock subject to outstanding options. (b) In the event of: (1) a dissolution, liquidation or sale of substantially all of the assets of the Company; (2) a merger or consolidation in which the Company is not the surviving corporation; (3) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise; or (4) any other capital reorganization (including a sale of stock of the Company to a single purchaser or single group of affiliated purchasers) after which less than fifty percent (50%) of the outstanding voting shares of the new or continuing corporation are owned by stockholders of the Company immediately before such transaction, the time during which options outstanding under the Plan may be exercised shall be accelerated to permit the optionee to exercise all such options in full prior to such event, and the options shall terminate if not exercised prior to such event. 11. AMENDMENT OF THE PLAN. (a) The Board at any time, and from time to time, may amend the Plan, provided, however, that the Board shall not amend the plan more than once every six (6) months with respect to the provisions of the Plan which relate to the amount, price and timing of grants, other than to comport with changes in the Code or applicable regulations or rulings thereunder. Except as provided in paragraph 10 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the stockholders of the Company within twelve (12) months before or after the adoption of the amendment, where the amendment will: (i) Increase the number of shares which may be issued under the Plan; 7. 8 (ii) Modify the requirements as to eligibility for participation in the Plan (to the extent such modification requires stockholder approval in order for the Plan to comply with the requirements of Rule 16b-3); or (iii) Modify the Plan in any other way if such modification requires stockholder approval in order for the Plan to comply with the requirements of Rule 16b-3 or Section 162(m) of the Internal Revenue Code. (b) Rights and obligations under any option granted before any amendment of the Plan shall not be impaired by such amendment unless (i) the Company requests the consent of the person to whom the option was granted and (ii) such person consents in writing. 12. TERMINATION OR SUSPENSION OF THE PLAN. (a) The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on the date that is ten (10) years after the Effective Date. No options may be granted under the Plan while the Plan is suspended or after it is terminated. (b) Rights and obligations under any option granted while the Plan is in effect shall not be impaired by suspension or termination of the Plan, except with the consent of the person to whom the option was granted. (c) The Plan shall terminate upon the occurrence of any of the events described in Section 10(b) above. 13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE. (a) The Plan shall become effective on the date on which the Board approves the Plan, subject to the condition that the Plan be approved by the stockholders of the Company. (b) No option granted under the Plan shall be exercised or exercisable unless and until the condition of subparagraph 13(a) above has been met. 8. EX-10.8 16 EXHIBIT 10.8 1 EXHIBIT 10.8 NONSTATUTORY STOCK OPTION (NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN) __________, Optionee: AURORA BIOSCIENCES CORPORATION(the "Company"), pursuant to its Non-Employee Directors' Stock Option Plan (the "Plan") has on _________ granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is not intended to qualify and will not be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). Capitalized terms used but not otherwise defined in this agreement shall have the meaning ascribed to them in the Plan. The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's Non-Employee Directors (as defined in the Plan). The details of your option are as follows: 1. The total number of shares of Common Stock subject to this option is _________ (______). Subject to the limitations contained herein, this option shall become exercisable (vest) with respect to each installment shown below on or after the date of vesting applicable to such installment, as follows:
NUMBER OF SHARES (INSTALLMENT) DATE OF EARLIEST EXERCISE (VESTING) ------------------------------ ----------------------------------- __________ __________, 199__ __________ The ___ day of each month thereafter, commencing on ________, 199__ through and including _________, 199__. __________ __________, 199__
2. EXERCISE PRICE AND METHOD OF PAYMENT. (a) EXERCISE PRICE. The exercise price of this option is _________________ ($____________) per share, being the fair market value (as defined in the Plan) of the Common Stock on the date of grant of this option. (b) METHOD OF PAYMENT. Payment of the exercise price per share is due in full upon exercise of all or any part of each installment which has accrued to you. You may elect, to the extent permitted by applicable statutes and regulations, to make payment of the exercise price under one of the following alternatives: (i) Payment of the exercise price per share in cash (including check) at the time of exercise; (ii) Payment pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds; (iii) Provided that at the time of exercise the Company's Common Stock is publicly traded and quoted regularly in the Wall Street Journal, payment by delivery of already-owned shares of Common Stock, held for the period required to avoid a charge to the Company's reported earnings, and owned free and clear of any liens, claims, encumbrances or security interests, which Common Stock shall be valued at its fair market value on the date of exercise; or 1. 2 (iv) Payment by a combination of the methods of payment permitted by subparagraph 3(b)(i) through 3(b)(iii) above. 3. WHOLE SHARES. This option may not be exercised for any number of shares which would require the issuance of anything other than whole shares. 4. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. 5. TERM. The term of this option commences on ___________, 19__, the date of grant, and expires on _____________________ (the "Expiration Date," which date shall be no more than ten (10) years from the date this option is granted), unless this option expires sooner as set forth below or in the Plan. In no event may this option be exercised on or after the Expiration Date. This option shall terminate prior to the Expiration Date as follows: three (3) months after the termination of your service as a Non-Employee Director or employee of or Consultant to the Company or an Affiliate of the Company ("Service") for any reason or for no reason unless: (a) such termination of Service is due to your permanent and total disability as defined in Section 422(c)(6) of the Code, in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months following such termination of Service; or (b) such termination of Service is due to your death or your death occurs within three (3) months following termination of your Service for any other reason, in which event the option shall expire on the earlier of the Expiration Date set forth above or eighteen (18) months after your death; or (c) during any part of such three (3) month period the option is not exercisable solely because of the condition set forth in paragraph 4 above, in which event the option shall not expire until the earlier of the Expiration Date set forth above or until it shall have been exercisable for an aggregate period of three (3) months after the termination of Service; or (d) exercise of the option within three (3) months after termination of your Service would result in liability under section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), in which case the option will expire on the earlier of (i) the Expiration Date set forth above, (ii) the tenth (10th) day after the last date upon which exercise would result in such liability or (iii) six (6) months and ten (10) days after the termination of your Service. However, this option may be exercised following termination of Service only as to that number of shares as to which it was exercisable on the date of termination of Service under the provisions of paragraph 1 of this option. 6. EXERCISE. (a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require pursuant to paragraph 6 of the Plan. (b) By exercising this option you agree that: (i) as a precondition to the completion of any exercise of this option, the Company may require you to enter an arrangement providing for the cash payment by you to the Company of any tax withholding obligation of the Company arising by reason of: (1) the exercise of this option; (2) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (3) the disposition of shares acquired upon such exercise. You also agree that any exercise of this option has not been completed and that the Company is 2. 3 under no obligation to issue any Common Stock to you until such an arrangement is established or the Company's tax withholding obligations are satisfied, as determined by the Company; and (ii) the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date (the "Effective Date") of the registration statement of the Company filed under the Act as may be requested by the Company or the representative of the underwriters. You further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. 7. OPTION NOT A SERVICE CONTRACT. Nothing in this option shall obligate the Company or any Affiliate of the Company, or their respective stockholders, Board of Directors, Officers or employees to continue any relationship which you might have as a Director or employee of or consultant to the Company or any Affiliate of the Company. 8. NOTICES. Any notices provided for in this option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 9. TRANSFERABILITY. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise this option. 3. 4 10. This option is subject to all the provisions of the Plan, a copy of which is attached hereto and its provisions are hereby made a part of this option, including without limitation the provisions of paragraph 6 of the Plan relating to option provisions, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this option and those of the Plan, the provisions of the Plan shall control. Dated as of ___________. Very truly yours, AURORA BIOSCIENCES CORPORATION By:___________________________________ Duly authorized on behalf of the Board of Directors ATTACHMENTS: Aurora Biosciences Corporation Non-Employees Directors' Stock Option Plan Notice of Exercise 4. 5 The undersigned: (A) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option and the Plan; and (B) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its Affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of (i) the options previously granted and delivered to the undersigned under stock option plans of the Company, and (ii) the following agreements only: NONE __________________________________ (Initial) OTHER __________________________________ __________________________________ __________________________________ __________________________________ Optionee __________________________________ Address __________________________________ __________________________________ 5. EX-10.9 17 EXHIBIT 10.9 1 EXHIBIT 10.9 AMENDMENT AMENDMENT dated as of March 8, 1996 between Aurora Biosciences Corporation, a Delaware corporation (the "Company"), and Timothy J. Rink ("Rink"). Reference is made to that certain letter (the "Letter") dated January 23, 1996 relating to the principal terms on which Rink would join the Company. WHEREAS, the Company was formed as of January 22, 1996 and merged with Aurora Biosciences, Inc., a California corporation ("Aurora"), on February 14, 1996 to reincorporate Aurora in Delaware, and Rink has joined the Company. WHEREAS, on or about the date hereof, certain persons and entities (the "Purchasers") are purchasing shares of Series A, Series B and Series C Preferred Stock of the Company (the "Preferred Stock"), which purchases will benefit the Company and its present stockholders and employees. WHEREAS, it is a condition to the obligations of the Purchasers to purchase the Preferred Stock that Rink and the Company enter into this Amendment, and they are willing to do so. NOW THEREFORE, in consideration of the foregoing and the agreements contained herein, and intending to be legally bound hereby, the Company and Rink hereby agree as follows (references to "you" herein shall mean Rink): 1. The second sentence of the paragraph of the letter captioned "Bonuses" is hereby amended by deleting it in its entirety and replacing it with the following: You will also be entitled to an additional one-time bonus of $25,000 payable upon the Company closing a corporate partner collaboration within one year of the closing of the Company's first round of financing with committed payments to the Company by such corporate partner greater than $2,000,000 (excluding equity purchases and the pending collaborations with Sequana and Packard), provided that you are employed as chief executive officer of the Company at the time of such closing. 2. The paragraph of the Letter captioned "Outside Activities" is hereby amended by deleting the second sentence of such paragraph in its entirety and replacing it with the following: It is further acknowledged that you will occasionally provide additional consulting services to companies which are not in competition with the Company 2 - 2 - and that you are currently serving on the Board of Directors of four companies other than the Company, none of which is in competition with the Company. Notwithstanding the foregoing, with the exception of the 4 days a month you are committed to provide consulting services to Amylin and customary Board of Directors duties related to the four other Boards of which you are currently a member, you will devote substantially all of your business time, attention and services to the faithful discharge of your duties and responsibilities for the Company and, in any event, such time as is necessary to so faithfully discharge such duties and responsibilities. In addition, you will not serve on the Board of Directors of any company for which you not currently a Board member without the prior consent of a majority of the members of the Company's Board of Directors (excluding you if you are then a member of the Board). 3. The paragraph of the Letter captioned "Employment at Will" is hereby amended by deleting it in its entirety and replacing it with the following: Termination of Employment by You: Subject to the provisions of the paragraphs captioned "Termination After Three Years" and "Termination of Employment by You Without Advance Notice" below, you may terminate your employment with the Company upon at least six months' prior written notice to the Company. During such notice period, you will, in addition to continuing to perform your responsibilities (except to the extent determined by the Company's Board of Directors), assist the Company in the transition to a successor officer. In the event you decide to terminate your employment, you shall not be entitled to any severance or other termination benefits. Subject to the provisions of the paragraphs captioned "Termination After Three Years" and "Termination of Employment by You Without Advance Notice" below, you agree that you will not terminate your employment with the Company without providing at least six months' prior written notice to the Company. Termination of Employment by You Without Advance Notice: It is understood that you may terminate your employment with the Company without the requirement of six months' prior written notice to the Company under the following circumstances: (i) your death; (ii) your disability or other physical or mental incapacity which renders you unable to perform your responsibilities for the Company for any 90 work days in any 180 day period; (iii) a Change of Control Transaction (as defined below) in which stockholders of the Company 3 - 3 - immediately before such event do not own more than 50% of the surviving company following such event; (iv) a significant reduction in your responsibilities and powers as chief executive officer and president or your removal from either position of chief executive officer or president; (v) serious and continuing medical conditions involving a member of your immediate family which requires such amount of your attention as to make it impracticable for you to continue to perform your responsibilities for the Company; or (vi) such other unforeseeable personal circumstances beyond your control which the Board of Directors of the Company (excluding you if you are then a member of the Board), in its sole discretion, reasonably determines result in your inability to perform your responsibilities for the Company. To the extent the requirement of six months' notice is not applicable, you will make reasonable efforts to effect an efficient transition of your responsibilities and duties to a successor. Following termination of your employment in the event of one of the following situations, you will not be entitled to any severance or termination benefits. Termination by the Company for Cause: The Company may immediately terminate your employment "for cause" at any time without any prior written notice to you. Termination shall constitute a termination "for cause" if such termination is for one or more of the following causes, as found by the Board of Directors of the Company by a resolution duly adopted by a majority of its members, excluding you if you are then a member of the Board (a copy of which resolution shall be delivered to you): (i) your substantial and continuing failure to render services to the Company substantially in accordance with your responsibilities, which materially and adversely affects or could reasonably be expected to materially and adversely affect the business, prospects, financial condition, operations, property or affairs of the Company, after 30 days' notice from the Board of Directors of the Company (so long as such failure is continuing), such notice setting forth in reasonable detail the nature of such failure; (ii) the commission by you of an act of willful misconduct, fraud or embezzlement, which results in material loss, damage or injury to the Company, whether directly or indirectly, or the commission by you of any other action with the intent to injure materially the Company which could, in the reasonable opinion of the Board of Directors, result in material harm to the Company; 4 - 4- (iii) if you are convicted of a felony, either in connection with the performance of your responsibilities for the Company or which shall materially adversely affect your ability to perform your responsibilities for the Company; or (iv) the commission of an act which constitutes unfair competition with the Company or with the intent of inducing any third party to breach a material contract with the Company or the willful and materially injurious unauthorized disclosure of any trade secret or confidential information of the Company. In the event of a termination "for cause" pursuant to the provisions of clauses (i) through (iv) above, inclusive, you shall be entitled to no severance or other termination benefits except as required by law. Termination by Company without Cause: Subject to the provisions of the paragraph captioned "Termination After Three Years" below, the Company may terminate your employment with the Company other than "for cause" upon at least six months' prior written notice to you. During such notice period, you will, in addition to continuing to perform your responsibilities (except to the extent determined by the Company's Board of Directors), assist the Company in the transition to a successor officer. Following such notice period, you shall not be entitled to any severance or other termination benefits except as required by law. Notwithstanding the foregoing but subject to the provisions of the paragraph captioned "Termination After Three Years" below, the Company may terminate your employment on less than six months' notice, but in such event, the Company will continue to pay you, as a severance payment, your salary, based on your base salary and in accordance with the Company's normal payroll practices, during the period from the date your employment terminates until the date which is six months following the date on which the Company gave you notice of termination; provided that the Company may terminate such severance payment in the event you commit any action described in clauses (ii) or (iv) of the preceding paragraph. Except as set forth in the preceding sentence, the Company will have no further obligation to you following termination of your employment, except as may be imposed by law. 5 - 5 - Termination After Three Years: On and after March 1, 1999, if you are still employed with the Company on such date, your employment with the Company will be at-will, meaning that it may be terminated at any time by you or the Company upon written notice to the other, and following such termination you will not be entitled to any severance or other termination benefits except as required by law. General Provisions Relating to Termination: For purposes of the preceding five paragraphs, termination of your position as Chairman of the Board shall not constitute termination of your employment with the Company. In addition, for purposes of the paragraph captioned "Termination by Company without Cause", your employment will not be considered to have been terminated by the Company if the Company is acquired (a "Change of Control Transaction"), whether by merger, consolidation, sale of substantially all its assets or otherwise. 4. Rink represents to the Company that he is not bound by any agreement or any other existing or previous business relationship which conflicts with, or may conflict with, his carrying on of the business of the Company. 5. The provisions contained in this Amendment together with the Letter constitute the entire understanding of the parties relating to the subject matter hereof and supersede and cancel all agreements, written or oral, made prior to the date hereof relating to such subject matter, including, without limitation, Section 10.5 of that certain Employee Proprietary Information and Inventions Agreement between Rink and the Company. Except as expressly amended above, the Letter shall remain in full force and effect. Rink acknowledges that, as of the date of this Amendment, he has no right to acquire any equity securities of the Company other than the 615,000 shares purchased pursuant to that certain Restricted Stock Purchase Agreement between Rink and the Company dated February 14, 1996. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6 - 6 - IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. AURORA BIOSCIENCES CORPORATION /s/ TIMOTHY J. RINK ------------------------------- Timothy J. Rink By: /s/ John T. Hendrick ---------------------------- Title: VP Finance ------------------------- 7 [AURORA BIOSCIENCES, INC. LETTERHEAD] January 23, 1996 Timothy J. Rink, M.A., M.D., Sc.D. 5666 La Jolla Blvd. #5 La Jolla, CA 92037 Dear Tim: This letter is a formal offer setting forth the principal terms for you to join Aurora Biosciences, Inc., a to-be-formed California corporation (the "Company"), which will be located in San Diego, California. Position: Chairman, President and Chief Executive Officer Initial Responsibilities: Serve as the Company's chairman and chief executive officer responsible for all aspects of the Company's operations and reporting to the Board of Directors. Compensation: Your monthly compensation will be $20,833.33 per month. Bonuses: You will be entitled to a $25,000 bonus payable upon the Company closing a first round of financing with a premoney valuation in excess of $3,000,000. You will also be entitled to an additional one-time bonus of $25,000 payable upon the Company closing a corporate partner collaboration within one year of the closing of the Company's first round of financing with committed payments to the Company greater than $2,000,000 (excluding equity purchases and the pending collaborations with Sequana and Packard). 8 Page 2 Timothy J. Rink, M.A., M.D., Sc.D. January 23, 1996 Equity: You will be entitled to purchase at fair market value - ------- twenty and one-half percent (20.5%) of the common stock of the Company (615,000) shares set aside for founders, initial employees, consultants and directors (a total of three million (3,000,000) shares. As of January 31, 1996, forty five thousand twelve (45,012) of your shares will be vested. Of the remaining shares, five hundred thousand four hundred (500,400) shares and sixty nine thousand five hundred eighty eight (69,588) shares will vest monthly over a three-year period at the rate of one thirty-sixth (1/36) of such shares each month beginning February 1, 1996 based on your continued service as the Company's Chief Executive Officer and Chairman, respectively. Benefits: You will be entitled to receive standard medical and - --------- dental insurance benefits for yourself similar to those typically afforded in similar-sized biotechnology companies. In addition, the Company will pay the premiums on a $500,000 term life insurance policy and a disability insurance policy. The Company will also make its best efforts to obtain Directors and officers liability insurance under terms and conditions which the Board of Directors find to be reasonable. You will also be provided with a Company-paid mobile phone. Vacation: You will be entitled to 22 days per year of paid - --------- personal leave. If Aurora establishes a Company policy to close between Christmas and News Year's, such time off will not count against the 22 days. Outside Activities: It is acknowledged that you are committed to spend up - ------------------- to 4 days a month providing consulting services to Amylin Pharmaceuticals, Inc. and that you have a non-compete agreement with Amylin. It is further acknowledged that you will occasionally provide additional consulting services and that you are currently serving on the Board of Directors of other companies which are not in competition with Aurora. 9 Page 3 Timothy J. Rink, M.A., M.D., Sc.D. January 23, 1996 Employment at Will: Your employment will be at will, which means it may be terminated at any time by you or the Company with or without cause. Start Date: February 1, 1996. I am excited about Aurora's prospects for success, and I look forward to your joining the Company. Sincerely, /s/ Kevin J. Kinsella Kevin J. Kinsella Founding Chairman and Chief Executive Officer SIGNED AND AGREED TO: /s/ Timothy J. Rink - -------------------------- Timothy J. Rink, M.A., M.D., Sc.D. Date: 1/29/96 --------------------- EX-10.10 18 EXHIBIT 10.10 1 EXHIBIT 10.10 [AURORA LETTERHEAD] STRICTLY CONFIDENTIAL August 6, 1996 J. Gordon Foulkes, Ph.D. 35B East Rogues Path Huntington Station, NY 11746 Dear Gordon: This letter is a formal offer setting forth the principal terms for you to join Aurora Biosciences Corporation, (The "Company"), a Delaware corporation, which is located in San Diego, California, and is subject to your fulfilling all contractual obligations to Oncogene Science, Inc. and not being subject to any non-compete or other conditions, excepting customary obligations of confidentiality, which would conflict with or impair the performance of our duties at Aurora. Position: Chief Technical Officer and member of the Board of Directors Reporting to: Dr. Timothy J. Rink Base Salary: $20,833.33 per month Bonus Plan: $150,000 dependent on and payable (minus normal withholdings) immediately following your completing four year's continuous employment at Aurora. Relocation: Reimbursed expenses to include reasonable and customary closing costs for the sale of your house, including realtors' fees, payment for movement of household goods (and two cars), including packing, unpacking, and insurance; economy air fares for you and your immediate family from Huntington Station, New York, and two "house hunting" visits for you and your spouse; and up to four months' payment of temporary accommodations and car rental not to exceed $3,000 per month. All expenses must be documented and paid either directly to the vendor or reimbursed by normal means. The Company will "gross up" the compensation element of directly paid or reimbursed relocation expenses. The Company will follow federal, state and local tax regulations with regards to 2 J. Gordon Foulkes, Ph.D. August 6, 1996 Page two reporting reimbursements associated with the move. Aurora would pay applicable taxes related to the compensation element of these relocation reimbursables. The terms of this move package would be valid for 12 months from date of employment. Mortgage Allowance: The Company will pay you $2,500 per month commencing on your start date through the earlier of the closing of the sale of your house in New York or three months following your start date, i.e., to a maximum of $7,500. The relocation payments (including tax payments) and mortgage allowance will be repayable by you if you were to terminate your employment voluntarily during the first 18 months following your start date, other than for health reasons. Such repayment will be made within one (1) year of your termination of employment. If the Company were to terminate your employment during the first two years, other than for cause, you would receive a payment for 12 months' salary plus $100,000, minus normal withholdings. If the Company were to terminate your employment after the second anniversary of your start date, other than for cause, you would receive a lump sum payment of nine months' salary, minus normal withholdings. Termination for Cause: As used in the agreement, a termination of your employment for cause shall be limited to a termination based upon your conviction of a felony or other crime involving moral turpitude, your commission of an act or failure to take an action in bad faith and to the detriment of Aurora, or your breach of any material term of this agreement or other agreements with the Company, including but not limited to the Proprietary Information and Invention Agreement, or repeated failure to follow reasonable procedures and policies of the Company on requirements of the Board of Directors or your supervisor, which breach or failure remains uncorrected on the expiration of 21 days from your receipt of written notice of such breach or failure. House Purchase Loan: Up to $150,000 interest free loan to be used for your purchase of a new principal residence, to be funded on closing house purchase in San Diego County within one year of your start date, secured by 3 Gordon Foulkes, Ph.D. August 6, 1996 Page three such property. The loan will be repayable to the Company on the earlier of the fourth anniversary of your start date or within one year following termination of your employment, for any reason, prior to the fourth anniversary of your start date. The loan would be evidenced by a promissory note to be executed by you at the time of such house purchase closing. Such note would contain the terms set forth herein, as well as other terms customary for such a loan. You hereby certify that you reasonably expect to be entitled to and, if lawful, will itemize deductions for each year the loan is outstanding. For purposes of this letter, "voluntary termination of your employment" shall be deemed to have occurred if you fail to commence employment by March 10, 1997, or if the Company is notified, or has good reason to believe, that you will not commence employment before March 10, 1997. Equity: Following acceptance of this offer you will be entitled to purchase 260,000 shares of the common stock of the Company at a price equal to ten cents ($.10) per share and otherwise on the terms specified in the Company's standard form of restricted stock purchase agreement. Your shares will vest according to the following schedule: Twenty-five percent (25%) at the end of one year from your employment start date, and monthly thereafter over the following three-year period at the rate of one forty-eighth (1/48) of such shares each month. If the Company were to undergo a change of control as specified in the stock purchase agreement and your employment were terminated by the Company, other than for cause, within 18 months of such change, vesting of all then unvested shares would occur at such termination. Benefits: You will be entitled to receive standard medical, life and dental insurance benefits for yourself and your dependents in accordance with Company policy. 4 J. Gordon Foulkes, Ph.D. August 6, 1996 Page four Paid Personal Leave: You will be entitled to 20 days per year of paid personal leave. If Aurora establishes a Company policy to close between Christmas and New Year's, such time off will not count against the 20 days. Employment at Will: Your employment will be at will, which means it may be terminated at any time by you or the Company with or without cause. Start Date: March 10, 1997, or at such earlier date as is mutually agreeable and is consistent with observance of all the terms of your employment contract with Oncogene Science, Inc. As a condition of your employment, you will be required to sign a copy of our Employee Proprietary Information and Inventions Agreement when you begin your employment. A copy of this form is enclosed for your review. In addition, to conform with the Immigration Reform and Control Act of 1986, please bring with you on your start date the original of one of the documents noted in List A on the I-9 form enclosed or one document from List B and one document from List C. If you do not have the originals of any of these documents, please call me immediately. This offer is contingent upon your providing sufficient documentation to show proof of eligibility for employment in the United States. It is Aurora's policy to respect fully the rights of your previous employers in their proprietary or confidential information. No employee is expected to disclose, or is allowed to use for Aurora's purpose, any confidential or proprietary information he or she may have acquired as a result of previous employment. I am pleased to extend this offer to you and look forward to your acceptance. Please sign and return the enclosed copy of this offer letter as soon as possible to indicate your agreement with the terms of this offer. This offer will lapse if not signed and returned by August 15, 1996. Once signed by you, this letter will constitute the complete agreement between you and Aurora regarding employment matters and will supersede all prior written or oral agreements or understandings on these matters. 5 J. Gordon Foulkes, Ph.D. August 6, 1996 Page five I believe you will be able to make substantial contributions to Aurora's effort, and I think you will enjoy the rewards of working for an innovative, fast-paced company. One of the keys to our accomplishments is good people. We hope you accept our offer to be one of those people. Yours sincerely, /s/ TIMOTHY J. RINK Timothy J. Rink, M.D., Sc.D. Chairman, CEO and President TJR/jkc Enclosures I accept the terms of employment as described in this offer letter dated August 6, 1996, and will start my employment on or before March 10, 1997. I confirm that by my start date at Aurora I will have taken all reasonable and feasible steps to ensure that I will be under no contract or agreement with any entity other than Oncogene Science, Inc. which would in any way restrict my ability to work at Aurora or perform the functions of my job for Aurora. With respect to Oncogene Science, Inc., I confirm that I have already given oral and written notice to Oncogene Science, Inc. of non-renewal of my employment contract, effective February 28, 1997. /s/ J. GORDON FOULKES Date August 14th 1996 - --------------------------------- --------------------------------- J. Gordon Foulkes EX-10.11 19 EXHIBIT 10.11 1 EXHIBIT 10.11 AURORA BIOSCIENCES CORPORATION PREFERRED STOCK PURCHASE AGREEMENT MARCH 8, 1996 2 SECTION 1 Sale of Shares....................................................1 1.2 Closing Date.......................................................1 1.3 Delivery...........................................................2 SECTION 2 Representations and Warranties of the Company.....................2 2.1 Organization and Standing..........................................2 2.2 Corporate Power....................................................3 2.3 Subsidiaries.......................................................3 2.4 Capitalization.....................................................3 2.5 Authorization......................................................4 2.6 Contracts and Other Commitments....................................5 2.7 Compliance with Other Instruments, etc.............................5 2.8 Litigation, etc....................................................5 2.9 Registration Rights................................................6 2.10 Permits...........................................................6 2.11 Governmental Consent, etc.........................................6 2.12 Disclosure........................................................6 2.13 Offering..........................................................7 2.14 Liabilities.......................................................7 2.15 Changes...........................................................7 2.16 Title to Properties and Assets; Liens, Leases, etc................9 2.17 Patents and Trademarks............................................9 2.18 Tax Returns; Taxes...............................................10 2.19 Employees........................................................10 2.20 No Defaults......................................................11 2.21 Insurance........................................................11 2.22 Brokers or Finders...............................................12 2.23 Environmental and Safety Laws....................................12 2.24 No Dividends.....................................................12 2.25 Employee Benefit Plan Obligations................................12 2.26 Qualification as a Qualified Small Business......................12 2.27 Financial Statements.............................................12 2.28 Transactions with Affiliates.....................................12 2.29 Proprietary Information and Inventions Agreements................13 2.30 U.S. Real Property Holding Corporation...........................13 SECTION 3 Investment Representations.......................................13 3.1 Power and Authority...............................................13 3.2 Due Execution.....................................................13 3.3 Experience; Accredited Investor...................................14 3.4 Investment........................................................14 3.5 Rule 144..........................................................14 3.6 No Public Market..................................................14
i. 3 3.7 Disclosure of Information.........................................14 SECTION 4 Conditions of the Purchaser's Obligations at Closing ............15 4.1 Representations and Warranties....................................15 4.2 Covenants.........................................................15 4.3 No Material Adverse Change........................................15 4.4 Securities Laws...................................................15 4.5 Compliance Certificate............................................15 4.6 Opinion of Counsel................................................15 4.7 Investors' Rights Agreement.......................................15 4.8 Proceedings and Documents.........................................15 4.9 Supporting Documents..............................................16 4.10 Management Rights Agreements.....................................16 4.11 Voting Agreement.................................................16 4.12 Amendment to Employment Agreement................................17 4.13 Charter..........................................................17 4.14 Bylaws...........................................................17 4.14 Proprietary Information Agreements...............................17 4.15 Election of Directors............................................17 4.16 Certificate as to Disqualified Persons...........................17 4.18 Fees of Purchasers' Counsel......................................17 SECTION 5 Conditions of the Company's Obligations at Closing...............18 5.1 Representations and Warranties....................................18 5.2 Covenants.........................................................18 SECTION 6 Miscellaneous....................................................18 6.1 Governing Law.....................................................18 6.2 Successors and Assigns............................................18 6.3 Entire Agreement..................................................18 6.4 Notices, etc......................................................18 6.5 Expenses..........................................................19 6.6 Counterparts......................................................19 6.7 Severability......................................................19 6.8 Survival of Agreements............................................19 6.9 Brokerage.........................................................19 6.10 Amendments.......................................................20
ii. 4
EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION B SCHEDULE OF EXCEPTIONS C INVESTORS' RIGHTS AGREEMENT D FORM OF MANAGEMENT RIGHTS LETTER E FORM OF VOTING AGREEMENT F FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT G FORM OF LEGAL OPINION OF COMPANY COUNSEL
iii. 5 AURORA BIOSCIENCES CORPORATION PREFERRED STOCK PURCHASE AGREEMENT THIS AGREEMENT is made as of March 8, 1996 between Aurora Biosciences Corporation, a Delaware corporation (the "COMPANY"), with its principal office at 1020 Prospect Street, Suite 405, La Jolla, California 92037, and the purchasers listed on Schedule A hereto who execute this Agreement (each a "Purchaser", and collectively, the "Purchasers"). WHEREAS, the Company has authorized the issuance and sale of up to 10,239,115 shares of its Series A Preferred Stock (the "SERIES A PREFERRED"), 555,555 shares of Series B Preferred Stock (the "SERIES B PREFERRED"), and 750,000 shares of Series C Preferred Stock (the "SERIES C PREFERRED") (collectively, the "SHARES") having the rights, preferences, privileges and restrictions set forth in the Restated Certificate of Incorporation of the Company in the form attached to this Agreement as Exhibit A (the "RESTATED CERTIFICATE"). NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and conditions set forth below, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows: SECTION 1 SALE OF SHARES 1.1 SALE OF SHARES. Subject to the terms and conditions hereof, at the Closing (as hereinafter defined), each Purchaser (severally but not jointly) agrees to purchase from the Company, and the Company agrees to sell and issue, shares of Preferred Stock of the Company being of the number, Series, and price per share as set forth opposite each Purchaser's name on Schedule A hereto. 1.2 CLOSING DATE. The purchase and sale of the Shares hereunder shall take place in up to three (3) closings, each of which shall be held at the law offices of Cooley Godward Castro Huddleson & Tatum, 4365 Executive Drive, Suite 1100, San Diego, California 92121. The first closing of such purchase and sale hereunder, at which the shares of Series A Preferred to be purchased and sold hereunder shall be so purchased and sold (the "FIRST CLOSING"), shall be held on the date of this Agreement or at such other time upon which the Company and the Purchasers participating in the First Closing shall agree. The closing of the purchase and sale of the Series B Preferred hereunder (the "SERIES B CLOSING") and the closing of the purchase and sale of the Series C Preferred hereunder (the "SERIES C CLOSING") (the Series B Closing and the Series C Closing are 1 6 hereinafter collectively referred to as the "SUBSEQUENT Closings" and the First Closing and the Subsequent Closings are hereinafter collectively referred to as the "Closings") shall be held as soon as practicable but in each case not more than thirty (30) days following the date hereof as agreed upon by the Company and Purchasers purchasing at least a majority of the Shares to be purchased and sold in such Subsequent closing. Upon delivery of a duly executed copy of this Agreement, the Investor's Rights Agreement (defined below) and the Voting Agreement (defined below), any purchaser of Shares at a Subsequent Closing shall be deemed to be a party to this Agreement, the Investors' Rights Agreement and the Voting Agreement, such purchaser shall be deemed to be a "Purchaser" for purposes of this Agreement, a "Stockholder" for purposes of the Investor's Rights Agreement and a "Purchaser" for purposes of the Voting Agreement, and the Shares acquired by such purchaser shall be deemed to have been acquired pursuant to this Agreement. 1.3 DELIVERY. At each Closing, the Company will deliver to each Purchaser purchasing Shares in such Closing a certificate representing the Shares being purchased upon payment of the aggregate purchase price therefor (as set forth opposite each Purchaser's name on Schedule A hereto) by (i) check payable to the order of the Company, (ii) wire transfer of immediately available funds made payable to the order of the Company or (iii) cancellation of outstanding principal and accrued interest under promissory notes issued by the Company, or any combination of the foregoing, as provided on Schedule A. Section 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as set forth in the Schedule of Exceptions attached hereto as Exhibit B, the Company hereby represents and warrants to the Purchasers as follows: 2.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized and validly existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has all requisite corporate power to own and operate its assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification or where the failure to so qualify would have a Material Adverse Effect. As used in this Agreement, "Material Adverse Effect" shall mean material adverse effect on the Company's business as presently conducted or planned to be conducted or the Company's financial condition, operations or prospects. 2 7 2.2 CORPORATE POWER. The Company has, and at the time of each Closing will have, all requisite legal and corporate power to execute and deliver this Agreement, the Investors' Rights Agreement in substantially the form attached hereto as Exhibit C (the "INVESTORS' RIGHTS AGREEMENT"), the Management Rights letter agreements between the Company and certain of the Purchasers substantially in the form attached hereto as Exhibit D (the "MANAGEMENT RIGHTS AGREEMENTS") and the Voting Agreement in substantially the form attached hereto as Exhibit E (this Agreement, the Investors' Rights Agreement, the Management Rights Agreements and the Voting Agreement are hereinafter collectively referred to as the "AGREEMENTS"), to sell and issue the Shares under this Agreement, to issue the Common Stock issuable upon conversion of the Shares and to carry out and perform its obligations under the terms of the Agreements, including all exhibits and schedules hereto and thereto. 2.3 SUBSIDIARIES. The Company does not own (of record or beneficially) or control, directly or indirectly, any equity interest in any other corporation, association or business entity (other than investments in marketable securities). The Company is not a participant in any joint venture, partnership or similar arrangement. 2.4 CAPITALIZATION. The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, of which 2,508,500 shares will be issued and outstanding immediately prior to the First Closing, and 25,000,000 shares of Preferred Stock, of which 10,500,000 are designated Series A Preferred Stock, 600,000 are designated Series B Preferred Stock, and 800,000 are designated Series C Preferred Stock, none of which will be issued and outstanding immediately prior to the First Closing. No other shares of capital stock or other securities of the Company are outstanding. All such issued and outstanding shares have been duly authorized and validly issued and are fully paid and nonassessable and have been offered, issued, sold and delivered by the Company in compliance with applicable federal and state securities laws. The Shares have the rights, preferences and privileges set forth in the Restated Certificate, and all such rights, preferences and privileges are valid, binding and enforceable in accordance with all applicable laws. The stockholders of record and holders of subscriptions, warrants, options, convertible securities and other rights to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each are as set forth in Exhibit B. All of the outstanding shares of stock held by each such holder are subject to vesting as described in Exhibit B, and the Company has the right to repurchase unvested shares upon the termination of such holder's employment or other business relationship with the Company at the original purchase price per share paid to the Company by such holder. The Company has reserved 1,000,000 shares of its Common Stock (the "Reserved Shares") for issuance pursuant to the Company's 1996 Stock Plan. Except for the transactions contemplated in the Agreements, the conversion privileges of the Company's 3 8 Series A, Series B and Series C Preferred Stock specified in the Restated Certificate, and as set forth in Exhibit B, there are no options, warrants, conversion privileges or other rights or agreements presently outstanding to purchase or otherwise acquire any authorized but unissued shares of the Company's capital stock or other securities of the Company and there is no commitment by the Company to issue shares, options, warrants, convertible securities or other rights to purchase or otherwise acquire shares of the Company's capital stock or other securities of the Company. Except as set forth in Section 45 of the Company's Bylaws and as contemplated by the Agreements or as provided for in Exhibit B, to the best of the Company's knowledge, there are no voting trusts or agreements, stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to securities of the Company (whether or not the Company is a party thereto). The Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities. 2.5 AUTHORIZATION. All corporate action on the part of the Company, its directors and shareholders necessary for the authorization, execution, delivery and performance of the Agreements by the Company, the authorization, sale, issuance and delivery of the Shares (and the Common Stock issuable upon conversion of the Shares) and the performance of the Company's obligations under the Agreements has been taken or will be taken prior to the First Closing. The Agreements, when executed and delivered by the Company, will constitute valid and binding obligations of the Company enforceable in accordance with their terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors, general equity principles and limitations upon rights to indemnity. This Agreement has been duly executed and delivered by the Company. The Shares, when issued in compliance with the provisions of this Agreement, will be duly and validly issued, fully paid and nonassessable and will be free and clear of all liens, encumbrances or restrictions imposed by or through the Company. The Common Stock issuable upon conversion of the Shares has been duly and validly reserved and, when issued in compliance with the provisions of the Restated Certificate, will be duly and validly issued, fully paid and nonassessable and will be free and clear of all liens, encumbrances or restrictions imposed by or through the Company. The issuance of the Shares (and the Common Stock issuable upon conversion of the Shares) is not subject to any preemptive rights, rights of first refusal or similar rights that have not been waived; provided, however, that the Shares (and the Common Stock issuable upon conversion of the Shares) are subject to a right of first refusal as set forth in Section 45 of the Company's Bylaws, and may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein. 4 9 2.6 CONTRACTS AND OTHER COMMITMENTS. The Company does not have any contract, agreement, lease, commitment, or proposed transaction, written or oral, absolute or contingent, other than contracts for the purchase of supplies and services that were entered into in the ordinary course of business and that do not involve more than $25,000 individually or $50,000 in the aggregate. For the purpose of this paragraph, employment and consulting contracts (including any severance arrangements), license agreements and any other agreements relating to the acquisition or disposition of the Company's technology (other than pursuant to the Company's standard form of Proprietary Information and Inventions Agreement (the "PROPRIETARY INFORMATION AGREEMENT")) shall not be considered to be contracts entered into in the ordinary course of business. The Company is not a party to or bound by any judgment, order, writ or decree restricting or affecting the development, manufacture or distribution of the Company's products or services or proposed products or services or limiting or restricting the Company's right to compete with any person in any respect. 2.7 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. The Company is not, and will not by virtue of entering into and performing the Agreements and the transactions contemplated thereunder be, in violation (with or without the passage of time or giving of notice or both) of any term of the Restated Certificate or its Bylaws or any term or provision of any material mortgage, indenture, contract, agreement, instrument, judgment or decree to which it is a party or by which it is bound, and is not, and will not by virtue of entering into and performing the Agreements and the transactions contemplated thereunder be, in violation of any material order, statute, rule or regulation applicable to the Company, other than any of the foregoing such violations that do not impair the Company's ability to enter into or perform its obligations under the Agreements or which, either individually or in the aggregate, do not have a Material Adverse Effect. Entering into and performing the Agreements and the transactions contemplated thereunder by the Company will not result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to the Company or its properties or business. 2.8 LITIGATION, ETC. There is neither pending nor, to the Company's knowledge and belief, threatened any action, suit, proceeding, investigation, governmental inquiry, or claim, or any basis therefor or threat thereof, whether or not purportedly on behalf of the Company, to which the Company is or may be named as a party or its property is or may be subject or, to the Company's knowledge, to which any officer, key employee, key consultant, or principal shareholder of the Company is subject; and the Company has no knowledge (i) of any unasserted claim, the assertion of which is likely and which, if asserted, will seek damages, an injunction or other legal, equitable, monetary or nonmonetary relief, which claim individually or collectively with other such unasserted claims if granted would have a Material Adverse Effect, or (ii) that there exists, or there is 5 10 pending or planned, any patent, trademark, tradename, invention, device, application or principle, or any statute, rule, law, regulation, standard or code which would result in a Material Adverse Effect. There is no pending or, to the Company's knowledge and belief, threatened claim or litigation against or affecting the Company contesting, or which if adversely determined might materially impair, its right to produce, manufacture, sell or use any product, process, method, substance, part or other material presently produced, manufactured, sold or used or planned to be produced, manufactured, sold or used by the Company in connection with the operations of the Company. The Company has no current plans to initiate any action, suit or proceeding. 2.9 REGISTRATION RIGHTS. Except as set forth in the Investors' Rights Agreement, the Company is not under any obligation to register (as defined in the Investors' Rights Agreement), and has not granted any rights to register, any of its presently outstanding securities or any of its securities that may hereafter be issued. 2.10 PERMITS. The Company has all franchises, permits, licenses, and any similar authority necessary for the conduct of its business as now being conducted by it and as proposed to be conducted, the lack of which would have a Material Adverse Effect. The Company is not in default or violation in any material respect under any of such franchises, permits, licenses, or other similar authority, and the execution and delivery of the Agreements will not result in any such default or violation, with or without the passage of time or giving of notice or both. 2.11 GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Company is required in connection with the valid execution and delivery of the Agreements, or the offer, sale or issuance of the Shares (and the Common Stock issuable upon conversion of the Shares) or the consummation of any other transaction contemplated thereby, except the filing of the Restated Certificate in the Office of the Secretary of State of the State of Delaware and the qualification (or taking such action as may be necessary to secure an exemption from qualification, if available) of the offer and sale of the Shares (and the Common Stock issuable upon conversion of the Shares) under the California Corporate Securities Law, which filing and qualification, if required, will be accomplished in a timely manner prior to or promptly upon completion of the First Closing. 2.12 DISCLOSURE. The Company has provided each Purchaser with all the information reasonably available to it without undue expense that such Purchaser has requested or could reasonably be expected to be material in deciding whether to purchase the Shares. The Agreements and the Exhibits thereto as well as any other document, certificate, schedule, financial, business or other statement furnished to such Purchaser by or on behalf of the Company in connection with the transactions contemplated hereby, 6 11 including, without limitation, the Business Plan dated January 8, 1996, do not contain any untrue statement of a material fact and do not omit to state a material fact necessary in order to make the statements contained herein or therein not misleading; provided, however, that with respect to any projections, expressions of opinion, forecasts, predictions or the like (collectively, "Projections") contained in such Business Plan, the Company represents only that such Projections were made in good faith and that the Company believes there is a reasonable basis therefor. 2.13 OFFERING. Subject to the accuracy of the representations set forth in Section 3 hereof, the offer, sale and issuance of the Shares pursuant to this Agreement and the issuance of the Common Stock to be issued upon conversion of the Shares constitute transactions exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the "SECURITIES ACT"), and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption. 2.14 LIABILITIES. The Company has no indebtedness for borrowed money that the Company has directly or indirectly created, incurred, assumed, or guaranteed, or with respect to which the Company has otherwise become directly or indirectly liable, other than obligations not in excess of $25,000 individually or in the aggregate. The Company has not assumed, guaranteed, endorsed or otherwise become directly or contingently liable on any indebtedness of any other person (including, without limitation, liability by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor, or otherwise to assure the creditor against loss), except for guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business. 2.15 CHANGES. Since December 31, 1995, there has not been: (a) any change in the assets, liabilities, financial condition, or operating results of the Company except changes in the ordinary course of business that have not been, in the aggregate, materially adverse; (b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (c) any waiver or compromise by the Company of a valuable right or of a material debt owed to it; 7 12 (d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and that is not material to the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (e) to the best of the Company's knowledge, any material change to a material contract or arrangement by which the Company or any of its assets is bound or subject; (f) any material change in any compensation arrangement or agreement with any employee, consultant, officer, director or shareholder; (g) any sale, assignment, license or transfer of any patents, trademarks, copyrights, trade secrets, Proprietary Information (as defined herein) or other intangible assets; (h) any resignation or termination of employment of any key officer of the Company or termination of engagement of any key consultant of the Company; and the Company, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer or termination of engagement of any such consultant; (i) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company; (j) any mortgage, pledge, transfer of a security interest in, or lien created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable; (k) any loans or guarantees made by the Company to or for the benefit of any person, other than travel advances to employees and/or consultants and other advances to employees and/or consultants made in the ordinary course of its business; (l) to the best of the Company's knowledge, any other event or condition of any character that might, individually or in the aggregate, materially and adversely affect the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (m) any amount borrowed or any liability (absolute, accrued or contingent) incurred, or to which the Company has become subject, except liabilities not in excess of $25,000 individually or $50,000 in the aggregate and except current liabilities incurred 8 13 and liabilities under contracts entered into in the ordinary course of business which have not been, individually or in the aggregate materially adverse; (n) any transaction except in the ordinary course of business or as otherwise contemplated hereby; or (o) any agreement or commitment by the Company to do any of the things described in this paragraph 2.15. 2.16 TITLE TO PROPERTIES AND ASSETS; LIENS, LEASES, ETC. The Company has good and marketable title to its properties and assets and has good title to all of its leasehold interests, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (i) the lien of current taxes not yet due and payable, and (ii) possible minor liens and encumbrances that do not in any case materially detract from the value of the property subject thereto or materially impair the operations of the Company and which have not arisen otherwise than in the ordinary course of business. Set forth on Exhibit B is a correct and complete list (including the amount of rents called for and a description of the leased property) of all material leases (involving more than $25,000 either individually or in the aggregate if such leases are of a similar nature or with the same lessor) under which the Company is a lessee. The Company enjoys peaceful and undisturbed possession under all such leases, all of such leases are valid and subsisting and, except as would not result in a Material Adverse Effect, the Company and, to the Company's knowledge, each other party to such leases is not in default thereunder. 2.17 PATENTS AND TRADEMARKS. The Company has sufficient title and ownership of all patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights, trade secrets, information, proprietary rights and processes (collectively "PROPRIETARY INFORMATION"), or has, or believes to the best of its knowledge that it has the ability to acquire on comercially reasonable terms, valid licenses to such Proprietary Information (as described further on Exhibit B), as necessary for its business as now conducted and as proposed to be conducted without any conflict with or infringement of the rights of others. The Schedule of Exceptions contains a complete list of patents and pending patent applications of the Company or of which the Company is a licensee. There are no outstanding options, licenses, or agreements of any kind relating to Proprietary Information owned by the Company, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other person or entity. The Company is not aware of any impropriety with regard to the granting of any licenses of Proprietary Information to or from the Company, and no claim is pending or, to the Company's knowledge, threatened to the effect that any such Property Information owned or licensed by the Company, or which the Company otherwise has the right to use, is 9 14 invalid or unenforceable by the Company (and to the Company's knowledge, there is no basis for any such claim). Neither the Company nor, to the Company's knowledge, any of its employees or consultants has received any written communications alleging, nor does the Company know of any grounds for any claims or allegations now or in the future, that the Company or its employees or consultants has violated or infringed or that the Company or its employees or consultants would, by conducting its business as proposed, violate or infringe any of the patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights or trade secrets or other proprietary rights of any other person or entity. The Company is not aware that any of its employees or consultants is obligated under any contract (including licenses, covenants, or commitments of any nature) or other agreement, or subject to any judgment, decree, or order of any court or administrative agency, that would, in the case of employees, interfere with the use of such employee's best efforts to promote the interests of the Company or that would conflict with the Company's business as proposed to be conducted or, in the case of consultants, which would conflict with their obligations in serving as consultants to the Company. No third party, including the employers or former employers of the Company's employees and consultants, has asserted any rights or claims to the Proprietary Information or any inventions used or proposed to be used in the Company's business, and the Company does not believe that any such third party has a right to assert any such rights or claims, except to the extent that such Proprietary Information or such inventions are licensed to or from such third party. Except pursuant to the terms of the Proprietary Information Agreements, there are no agreements, understandings, instruments, or contracts to which the Company is a party or by which it is bound that involve the license of any patent, copyright, trade secret or other similar proprietary right to or from the Company. 2.18 TAX RETURNS; TAXES. The Company has accurately prepared and timely filed all federal, state and other tax returns which are required to be filed and has timely paid all taxes covered by such returns which have become due and payable. The Company has not been advised that any of its returns, federal, state or other, have been or are being audited as of the date hereof. The Company is not delinquent in taxes or assessments and has no tax deficiency proposed or assessed and has made no waiver of the statute of limitations regarding assessments or collections. All taxes, if any, imposed by law in connection with the issuance, sale and delivery of the Shares shall have been paid, and all laws imposing such taxes shall have been fully complied with, prior to the First Closing. Neither the Company nor any of its present or former stockholders has ever filed an election pursuant to Section 1362 of the Internal Revenue Code of 1986, as amended (the "Code"), that the Company be taxed as an S corporation. 2.19 EMPLOYEES. None of the Company's employees belongs to any union or collective bargaining unit. To the best of its knowledge, the Company has complied in all material respects with all applicable state and federal equal opportunity and other laws related to employment. To the best of the Company's knowledge, no employee of or 10 15 consultant to the Company is or will be in violation of any judgment, decree, or order, or any term of any employment contract, patent disclosure agreement, proprietary information and inventions agreement, or any restrictive covenant, or any other common law obligation to a former employer, or any other contract or agreement relating to the relationship of any such person with the Company, or any other party, or to the use of trade secrets or proprietary information of others, because of the nature of the business conducted or to be conducted by the Company or the use by any such employee of his best efforts with respect to such business or the performance by any such consultant of his obligations to the Company. To the knowledge of the Company, no third party has claimed or has reason to claim that any employee of or consultant to the Company has disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party, or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees and, to the Company's knowledge, no such person proposes to do any of such things. The Company is not a party to or bound by any currently effective employment contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan, retirement agreement, or other employee compensation agreement, other than with respect to the Company's 1996 Stock Plan, a true and correct copy of which has been provided to each Purchaser. The Company is not aware that any officer, key employee or key consultant, or that any group of key employees or key consultants, intends to terminate their employment or consultancy with the Company, nor does the Company have a present intention to terminate the employment or engagement as a consultant of any of the foregoing. Subject to general principles related to wrongful termination of employees, the employment of each officer and employee of the Company is terminable at the will of the Company. The Company has delivered to counsel for the Purchasers a copy of each consulting agreement to which it is a party. 2.20 NO DEFAULTS. The Company has, in all material respects, performed all material obligations required to be performed by it to date and is not in default under any of the contracts, loans, notes, mortgages, indentures, licenses, security agreements, agreements, leases, documents, commitments or other arrangements to which it is a party or by which it is otherwise bound, except for such defaults which in the aggregate would not have a Material Adverse Effect, and no event or condition has occurred which, with the lapse of time or the giving of notice, or both, would constitute such a default. 2.21 INSURANCE. The Company maintains adequate insurance on its properties of a character and in such amounts and on such terms usually insured by corporations engaged in the same or a similar business against loss or damage resulting from fire or other risks insured against by such corporations, and maintains in full force and effect public liability insurance against claims for personal injury, death or property damage occurring upon, in, about or in connection with the use of any of its properties, products 11 16 or services and maintains such other insurance as may be required by law or other agreement to which the Company is a party. 2.22 BROKERS OR FINDERS. The Company has not incurred, and will not incur, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with the Agreements. 2.23 ENVIRONMENTAL AND SAFETY LAWS. To the best of its knowledge, the Company is not in violation of any applicable statute, law or regulation relating to the environment or occupational health and safety, and to the best of its knowledge, no material expenditures are or will be required in order to comply with any such existing statute, law or regulation. 2.24 NO DIVIDENDS. The Company has never made any declaration, setting aside for payment or other distribution in respect of any of the Company's capital stock or any direct or indirect redemption, repurchase or other acquisition of any of such stock. 2.25 EMPLOYEE BENEFIT PLAN OBLIGATIONS. The Company does not maintain or have any obligations with respect to any employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")). The Company is not, nor was it at any time, obligated to contribute to any employee pension benefit plan which is or was a multi-employer plan within the meaning of Section 3(37) of ERISA. 2.26 QUALIFICATION AS A QUALIFIED SMALL BUSINESS. The Company is a "qualified small business," as defined in Section 1202(b) of the Internal Revenue Code (the "Code") and the Shares constitute "qualified small business stock" as defined in Section 1202(c) of the Code. The Company covenants and agrees to comply with the reporting and recordkeeping requirements of Section 1202 of the Code and any regulations promulgated thereunder and to execute and deliver to the Purchasers and the Internal Revenue Service, from time to time, such forms, documents, schedules and other instruments as may be reasonably requested thereby to cause the Shares and the shares of Common Stock issuable upon conversion of the Shares to qualify as a "qualified small business stock," as defined in Section 1202(c) of the Code. 2.27 FINANCIAL STATEMENTS. The Company has furnished to the Purchasers the unaudited balance sheet of the Company as of January 31, 1996 and the related unaudited statement of income for the period from the Company's inception through January 31, 1996. All such financial statements fairly present the financial position of the Company as of January 31, 1996, and the results of operations during such period. 2.28 TRANSACTIONS WITH AFFILIATES. No director or officer or, to the Company's knowledge, employee or stockholder of the Company, or, to the Company's knowledge, 12 17 member of the family of any such person, or, to the Company's knowledge, any corporation, partnership, trust or other entity in which any such person, or any member of the family of any such person, has a substantial interest or is an officer, director, trustee, partner or holder of more than 5% of the outstanding capital stock thereof, is a party to any material transaction with the Company, including any contract, agreement or other arrangement providing for the employment of, furnishing of services by, rental of real or personal property from or otherwise requiring payments to any such person or firm, other than employment-at-will arrangements in the ordinary course of business. 2.29 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each of the officers of the Company, each key employee and each other employee now employed by the Company who has access to confidential information of the Company has executed the Proprietary Information Agreement substantially in the form of Exhibit F (collectively, the "Proprietary Information Agreements"), and such agreements are in full force and effect. The Company is not aware that any of such persons is in violation of any such agreement. 2.30 U.S. REAL PROPERTY HOLDING CORPORATION. The Company is not now and has never been a "United States real property holding corporation," as defined in Section 897(c)(2) of the Code and Section 1.897-2(b) of the Regulations promulgated by the Internal Revenue Service, and the Company has filed with the Internal Revenue Service all statements, if any, with its United States income tax returns which are required under Section 1.897-2(h) of such Regulations. SECTION 3 INVESTMENT REPRESENTATIONS Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as follows: 3.1 POWER AND AUTHORITY. Such Purchaser has the requisite power and authority to enter into this Agreement, to purchase the Shares hereunder, to convert the Shares into Common Stock, and to carry out and perform its obligations under the terms of this Agreement. 3.2 DUE EXECUTION. This Agreement has been duly authorized, executed and delivered by such Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of such Purchaser, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and general equity principles. 13 18 3.3 EXPERIENCE; ACCREDITED INVESTOR. Such Purchaser has, from time to time, evaluated investments in start-up companies and has, either individually or through the personal experience of one or more of its current officers or partners, experience in evaluating and investing in start-up companies. Such Purchaser is an "accredited investor" as defined in Regulation D promulgated under the Securities Act. 3.4 INVESTMENT. Such Purchaser is acquiring the Shares (and any Common Stock issuable upon conversion of the Shares) for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. Such Purchaser understands that the Shares (and any Common Stock issuable upon conversion of the Shares) to be purchased have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. 3.5 RULE 144. Such Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. Such Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than two years after a party has purchased and paid for the securities to be sold, the sale being through a "BROKER'S TRANSACTION" or in transactions directly with a "MARKET MAKER" (as provided by Rule 144(f)) and the number of shares being sold during any three-month period not exceeding specified limitations. Such Purchaser is aware that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plan to satisfy these conditions in the foreseeable future. 3.6 NO PUBLIC MARKET. Such Purchaser understands that no public market now exists for the Shares and that a public market may never exist for the Shares. 3.7 DISCLOSURE OF INFORMATION. Such Purchaser believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Shares. Such Purchaser further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares. 14 19 SECTION 4 CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT CLOSING Each Purchaser's obligation to purchase the Shares at each Closing, as applicable, is subject to the fulfillment on or prior to such Closing of the following conditions: 4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company contained in Section 2 shall be true when made and on and as of the date of such Closing with the same effect as though such representations and warranties had been made on and as of the date of such Closing. 4.2 COVENANTS. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to such Closing shall have been performed or complied with in all material respects. 4.3 NO MATERIAL ADVERSE CHANGE. There shall have been no material adverse change in the Company's business or financial condition or affairs between the date of this Agreement and the date of such Closing, if different. 4.4 SECURITIES LAWS. The Company shall have obtained all necessary permits and qualifications, or secured exemptions therefrom, required under the Securities Act or by any state for the offer and sale of the Shares and Common Stock issuable upon conversion of the Shares. 4.5 COMPLIANCE CERTIFICATE. The Company shall have delivered on the date of such Closing a certificate signed by the President and Chief Financial Officer of the Company certifying that the conditions specified in Sections 4.1, 4.2, 4.3, 4.7, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 have been fulfilled. 4.6 OPINION OF COUNSEL. The Purchasers purchasing shares in such Closing shall have received from Cooley Godward Castro Huddleson & Tatum, counsel for the Company, an opinion dated as of such Closing in substantially the form attached hereto as Exhibit G. 4.7 INVESTORS' RIGHTS AGREEMENT. The Company shall have executed and delivered the Investors' Rights Agreement. 4.8 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection with the transactions contemplated at such Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchasers' counsel, 15 20 which shall have received all such counterpart original and certified or other copies of such documents as it may reasonably request. 4.9 SUPPORTING DOCUMENTS. The Purchasers purchasing shares in such Closing and their counsel shall have received copies of the following documents: (i) (A) the Certificate of Incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Delaware and (B) a certificate of said Secretary dated as of a recent date as to the due incorporation and good standing of the Company, the payment of all excise taxes by the Company and listing all documents of the Company on file with said Secretary. (ii) a certificate of the Secretary or an Assistant Secretary of the Company dated the date of such Closing and certifying: (A) that attached thereto is a true and complete copy of the Bylaws of the Company as in effect on the date of such certification; (B) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors or the stockholders of the Company authorizing the execution, delivery and performance of the Agreements, the issuance, sale and delivery of the Shares, and the reservation, issuance and delivery of the shares of Common Stock issuable upon conversion of the Shares, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by the Agreements; (C) that the Certificate of Incorporation has not been amended since the date of the last amendment referred to in the certificate delivered pursuant to clause (i)(B) above, except for the filing of the Restated Certificate; and (D) to the incumbency and specimen signature of each officer of the Company executing the Agreements, the stock certificates representing the Shares and any certificate or instrument furnished pursuant hereto, and a certification by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii); and (iii) such additional supporting documents and other information with respect to the operations and affairs of the Company as the Purchasers or their counsel reasonably may request. 4.10 MANAGEMENT RIGHTS AGREEMENTS. The Company shall have executed and delivered the Management Rights Agreements to those Purchasers participating in such Closing who have made a request to the Company therefor and are subject in any manner with respect to their investment in the Company to ERISA. 4.11 VOTING AGREEMENT. The Company and the other parties thereto shall have executed and delivered the Voting Agreement. 16 21 4.12 AMENDMENT TO EMPLOYMENT AGREEMENT. Timothy J. Rink and the Company shall have entered into an amendment (the "EMPLOYMENT AMENDMENT") to the terms of his employment arrangements with the Company in a form satisfactory to Dr. Rink, the Purchasers and their counsel, and a copy thereof shall have been delivered to counsel for the Purchasers. 4.13 CHARTER. The Certificate of Incorporation of the Company shall read in its entirety as set forth in Exhibit A. 4.14 BYLAWS. The Company's Bylaws shall have been amended, if necessary, to provide that (i) any three directors shall have the right to call a meeting of the Board of Directors and (ii) the number of directors fixed in accordance therewith shall in no event conflict with any of the terms or provisions of the Series A Preferred Stock. Series B Preferred Stock and Series C Preferred Stock as set forth in the Restated Certificate. 4.15 PROPRIETARY INFORMATION AGREEMENTS. Copies of the Proprietary Information Agreements shall have been delivered to counsel for the Purchasers. 4.16 ELECTION OF DIRECTORS. The number of directors constituting the entire Board of Directors shall have been fixed at seven (7) and the following persons shall have been elected as the directors and shall each hold such position as of the First Closing: Timothy J. Rink and Lubert Stryer, as the directors elected solely by the holders of the Common Stock, and Kevin J. Kinsella, Timothy J. Wollaeger, Stephen Bunting, James C. Blair and Hugh Y. Rienhoff, Jr., as the directors elected solely by the holders of the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock. 4.17 CERTIFICATE AS TO DISQUALIFIED PERSONS. The Company shall have executed and delivered to New Enterprise Associates VI, Limited Partnership ("NEA VI") a Certificate as to Disqualified Persons, as requested by NEA VI, dated the Closing Date, in form and substance satisfactory to NEA VI. 4.18 FEES OF PURCHASERS' COUNSEL. The Company shall have paid in accordance with Section 6.5 the reasonable fees and disbursements of Testa, Hurwitz and Thibeault in connection with this Agreement and related transactions as specified on a reasonably detailed invoice, detailing all time entries and costs, submitted to counsel to the Company a reasonable time in advance of such Closing. 17 22 SECTION 5 CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING The Company's obligation to issue and sell the Shares at each Closing is subject to the fulfillment on or prior to such Closing of the following conditions: 5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Purchasers contained in Section 3 shall be true when made and on and as of the date of such Closing with the same effect as though such representations and warranties had been made on and as of the date of such Closing. 5.2 COVENANTS. All covenants, agreements and conditions contained in this Agreement to be performed by the Purchasers on or prior to the date of such Closing shall have been performed or complied with in all respects. SECTION 6 MISCELLANEOUS 6.1 GOVERNING LAW. This Agreement shall be governed by the laws of the State of California as applicable to contracts entered into and performed entirely within the State of California by residents of California. 6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto; provided, however, that the rights of the Purchasers to purchase the Shares shall not be assignable (other than to a corporation a majority of whose outstanding voting shares are owned or controlled, directly or indirectly, by the Purchaser) without the consent of the Company, and the Company's obligations hereunder shall not be assignable without the consent of the Purchasers. 6.3 ENTIRE AGREEMENT. This Agreement, its Exhibits, and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. 6.4 NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile or mailed by registered or 18 23 certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Purchaser, to the address set forth on Schedule A hereto, or at such other address as shall have been furnished to the Company in writing by such Purchaser, or (b) if to the Company, one copy to its address set forth above and addressed to the attention of the President, or at such other address or addresses as the Company shall have furnished in writing to the Purchasers, and one copy to Cooley Godward Castro Huddleson & Tatum, 4365 Executive Drive, Suite 1100, San Diego, CA 92121, Attn: Thomas A. Coll, Esq. All notices and other communications pursuant to the provisions of this Section 6.4 shall be deemed delivered when mailed or sent by facsimile or delivered by hand or messenger. Notwithstanding the foregoing, any notice or communication to an address outside the United States shall be sent by facsimile and confirmed in writing contemporaneously sent by two-day guaranteed international courier. 6.5 EXPENSES. Each party to this Agreement shall bear its own expenses and legal fees incurred by it with respect to this Agreement and all related transactions; provided, however, that the Company shall pay the reasonable fees and expenses of the Purchasers' special counsel, Testa, Hurwitz and Thibeault, in connection with this Agreement and such transactions and any subsequent amendment, waiver, consent or enforcement thereof. 6.6 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be enforceable against the party actually executing such counterpart, and which together shall constitute one instrument. 6.7 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 without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. 6.8 SURVIVAL OF AGREEMENTS. All covenants, agreements, representations and warranties made herein or in the other Agreements, or any certificate or instrument delivered to the Purchasers pursuant to or in connection with the Agreements, shall survive the execution and delivery of the Agreements, the issuance, sale and delivery of the Shares, and the issuance and delivery of the shares of Common Stock issuable upon conversion of the Shares, and all statements contained in any certificate or other instrument delivered by the Company hereunder or thereunder or in connection herewith or therewith shall be deemed to constitute representations and warranties made by the Company. 6.9 BROKERAGE. Each party hereto will indemnify and hold harmless the others against and in respect of any claim for brokerage or other commissions relative to this 19 24 Agreement or to the transactions contemplated hereby, based in any way on agreements, arrangements or understandings made or claimed to have been made by such party with any third party. 6.10 AMENDMENTS. This Agreement may not be amended or modified, and no provisions hereof may be waived, without the written consent of the Company and the holders of at least two-thirds of the shares of Common Stock issued or issuable upon conversion of the Shares. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 20 25 The foregoing Preferred Stock Purchase Agreement is hereby executed as of the date first above written. THE COMPANY: AURORA BIOSCIENCES CORPORATION By: __________________________ Title: _______________________ THE PURCHASERS: AVALON MEDICAL PARTNERS, L.P. By: __________________________ Title: _______________________ AVALON BIOVENTURES II, L.P. By: __________________________ Title: _______________________ 21 26 KINGSBURY CAPITAL PARTNERS, L.P. II By: Kingsbury Associates, L.P. By: __________________________ Title: General Partner ABINGWORTH BIOVENTURES SICAV By: __________________________ Title: _______________________ NEW ENTERPRISES ASSOCIATES VI, LIMITED PARTNERSHIP By: NEA Partners VI, Limited Partnership, its General Partner By: __________________________ Title: General Partner NEA VENTURES 1996, L.P. By: __________________________ Title: Authorized Signatory 22 27 DP III ASSOCIATES, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: __________________________ General Partner DOMAIN PARTNERS III, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: __________________________ General Partner BIOTECHNOLOGY INVESTMENTS LIMITED By: Old Court Limited By: __________________________ Attorney - in - Fact PACKARD INSTRUMENT COMPANY, INC. By: __________________________ Title: _______________________ [SIGNATURE PAGE FOR PREFERRED STOCK PURCHASE AGREEMENT] 23 28 SEQUANA THERAPEUTICS, INC. By: __________________________ Title: _______________________ GC&H INVESTMENTS By: __________________________ Title: _______________________ ______________________________ KEVIN J. KINSELLA ______________________________ ROGER Y. TSIEN ______________________________ THERESA E. GLOBE ______________________________ CHARLES S. ZUKER 24 29 ______________________________ MICHAEL G. ROSENFELD ______________________________ JOHN A. PORCO, JR. ______________________________ LUBERT STRYER ______________________________ ANDREA S. STRYER ______________________________ WALTER LUETOLF FOR ADRIAN J.R. LANGINGER ______________________________ NORMAND F. SMITH ______________________________ HUGH Y. RIENHOFF, JR. ______________________________ JANICE THOMPSON 25 30 THE GREENE FAMILY TRUST By: __________________________ HOWARD E. GREENE, JR., TRUSTEE By: __________________________ ARLINE GREENE, TRUSTEE ______________________________ TIMOTHY J. RINK HAMBRECHT & QUIST GROUP By: __________________________ Dennis J. Purcell Title: _______________________ 26 31 SCHEDULE A PURCHASERS OF PREFERRED STOCK
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- AVALON MEDICAL PARTNERS L.P. $424,998.84 319,548 Ser A $1.33 CD 1020 Prospect Street, Suite 405 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- AVALON BIOVENTURES II L.P. 499,998.87 375,939 Ser A $1.33 CD 1020 Prospect Street, Suite 405 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- KINGSBURY CAPITAL PARTNERS, L.P. II 999,999.07 751,879 Ser A $1.33 C/W 3655 Nobel Drive, Suite 490 San Diego, CA 92122 Fax: (619) 677-0800 - --------------------------------------------------------------------------------------------------------------------------------- ABINGWORTH BIOVENTURES SICAV 3,499,998.74 2,631,578 Ser A $1.33 C/W c/o Sanne & Cie Boite Postale 566 L-2015 Luxemberg Attn: Karl Sanne Fax: 352-43-54-10 with a copy to: Stephen Bunting Abingworth Management Ltd. 26 St. James Street London SW1A1HA Fax: 44-171-930-1891 Daniel P. Finkelman Testa Hurwitz & Thibeault 125 High Street Boston, MA 02110 Fax: (617) 248-7100 - ---------------------------------------------------------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- NEW ENTERPRISE ASSOCIATES VI 2,749,999.77 2,067,669 Ser A $1.33 C/W LIMITED PARTNERSHIP 1119 St. Paul Street Baltimore, MD 21202 Fax: (410) 752-7721 - --------------------------------------------------------------------------------------------------------------------------------- NEA VENTURES 1996, L.P. 9,998.94 7,518 Ser A $1.33 C/W 1119 St. Paul Street Baltimore, MD 21202 Fax: (410) 752-7721 - --------------------------------------------------------------------------------------------------------------------------------- DP III ASSOCIATES, L.P. 95,301.15 71,655 Ser A $1.33 C/W One Palmer Square, Suite 515 Princeton, NJ 08542 Fax: (609) 683-9789 - --------------------------------------------------------------------------------------------------------------------------------- DOMAIN PARTNERS III., L.P. 2,754,698.66 2,071,202 Ser A $1.33 C/W One Palmer Square, Suite 515 Princeton, NJ 08542 Fax: (609) 683-9789 - --------------------------------------------------------------------------------------------------------------------------------- BIOTECHNOLOGY INVESTMENTS LIMITED 1,899,999.43 1,428,571 Ser A $1.33 C/W One Palmer Square, Suite 515 Princeton, NJ 08542 Fax: (609)683-9789 - --------------------------------------------------------------------------------------------------------------------------------- KEVIN J. KINSELLA 49,998.69 37,593 Ser A $1.33 C/W Avalon Ventures 1020 Prospect Street, Suite 405 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- ROGER Y. TSIEN 199,500.00 150,000 Ser A $1.33 C/W 8535 Nottingham Place La Jolla, CA 92037 Fax: (619) 534-5270 - --------------------------------------------------------------------------------------------------------------------------------- THERESA E. GLOBE 50,540.00 38,000 Ser A $1.33 C/W 142 Bessborough Drive Toronto, Ontario M4G3J6 Fax: (416) 864-3361 - ---------------------------------------------------------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- CHARLES S. ZUKER 79,800.00 60,000 Ser A $1.33 C/W UCSD Cellular & Molecular Medicine West La Jolla, CA 92037 Fax: (619) 534-8510 - --------------------------------------------------------------------------------------------------------------------------------- MICHAEL G. ROSENFELD 29,999.48 22,556 Ser A $1.33 C/W UCSD Eukaryotic Regulatory Biology Program Room 345 C.M.M. 9500 Gilman Drive La Jolla, CA 92093 Fax: (619) 534-8180 - --------------------------------------------------------------------------------------------------------------------------------- JOHN A. PORCO, JR. 4,999.47 3,759 Ser A $1.33 C/W Argonaut Technologies, Inc. 887-G Industrial Rd., Ste. G San Carlos, CA 94070-3305 Fax: (415) 598-1359 - --------------------------------------------------------------------------------------------------------------------------------- LUBERT STRYER 37,499.35 28,195 Ser A $1.33 C/W 843 Sonoma Terrace Stanford, CA 94305 Fax: (415) 498-5351 - --------------------------------------------------------------------------------------------------------------------------------- ANDREA S. STRYER 37,499.35 28,195 Ser A $1.33 C/W 843 Sonoma Terrace Stanford, CA 94305 Fax: (415) 498-5351 - --------------------------------------------------------------------------------------------------------------------------------- ADRIAN J.R. LANGINGER 53,200.00 40,000 Ser A $1.33 C/W c/o WALTER LUTOLF ATAG Vermogensverwaltung AG 8022 Zurich Bleicherweg 21 Postfach 5272 Fax: 01-202 33 49 - ---------------------------------------------------------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- GC&H INVESTMENTS 49,998.69 37,593 Ser A $1.33 C/W Cooley Godward Castro Huddleson & Tatum 4365 Executive Drive, Suite 1100 San Diego, CA 92121 Fax: (619) 453-3555 - --------------------------------------------------------------------------------------------------------------------------------- NORMAND F. SMITH 24,998.68 18,796 Ser A $1.33 C/W Perkins, Smith & Cohen One Beacon Street Boston, MA 02108-3106 Fax: (617) 854-4040 - --------------------------------------------------------------------------------------------------------------------------------- HUGH Y. RIENHOFF, JR. 4,999.47 3,759 Ser A $1.33 C/W New Enterprise Associates 1119 St. Paul Street Baltimore, MD 21202 Fax: (410) 752-7721 - --------------------------------------------------------------------------------------------------------------------------------- JANICE THOMPSON 9,998.94 7,518 Ser A $1.33 C/W P.O. Box 3471 16360 La Gracia Rancho Santa Fe, CA 92067 Fax: (619) 756-4320 - --------------------------------------------------------------------------------------------------------------------------------- THE GREENE FAMILY TRUST 24,998.68 18,796 Ser A $1.33 C/W C/O HOWARD E. GREENE, JR. 9373 Towne Centre Drive San Diego, CA 92121 Fax: (619) 552-2212 - --------------------------------------------------------------------------------------------------------------------------------- TIMOTHY J. RINK 24,998.68 18,796 Ser A $1.33 C/W 5666 La Jolla Boulevard, #5 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- PACKARD INSTRUMENT COMPANY, INC. 999,999.00 555,555 Ser B $1.80 C/W 800 Research Parkway Meriden, CT 06450 Fax: (203) 235-1347 - ---------------------------------------------------------------------------------------------------------------------------------
35
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- SEQUANA THERAPEUTICS, INC. 1,500,000.00 750,000 Ser C $2.00 C/W 11099 North Torrey Pines Rd., Ste. 160 La Jolla, CA 92037 Fax: (619) 452-6653 - --------------------------------------------------------------------------------------------------------------------------------- HAMBRECHT & QUIST GROUP 499,998.60 277,777 Ser B $1.80 C/W 230 Park Ave., 21st Fl. New York, NY 10169 Attn: Dennis J. Purcell Fax: (212) 207-1519 - --------------------------------------------------------------------------------------------------------------------------------- TOTALS $16,618,020.55 11,822,447 - ---------------------------------------------------------------------------------------------------------------------------------
1 "C/W" indicates check or wire transfer; "CD" indicates cancellation of indebtedness. 36 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 37 RESTATED CERTIFICATE OF INCORPORATION OF AURORA BIOSCIENCES CORPORATION AURORA BIOSCIENCES CORPORATION, a corporation organized and existing under the laws of the state of Delaware, hereby certifies as follows: FIRST. The name of the corporation is Aurora Biosciences Corporation. SECOND. The date of the filing of the corporation's original Certificate of Incorporation with the Secretary of State of Delaware was January 22, 1996. THIRD. This Restated Certificate of Incorporation was duly adopted by the corporation in accordance with Section 245 of the General Corporation Law of the State of Delaware. FOURTH. The Certificate of Incorporation of the corporation shall be amended and restated to read in full as follows. I. The name of this corporation is AURORA BIOSCIENCES CORPORATION. 1 38 II. The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1050 South State Street, City of Dover, County of Kent; and the name of the registered agent of the corporation in the State of Delaware at such address is CorpAmerica Inc. III. The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law. IV. A. CLASSES OF STOCK. This corporation is authorized to issue two classes of stock to be designated, respectively, "COMMON STOCK" and "PREFERRED STOCK." The total number of shares which the corporation is authorized to issue is seventy-five million (75,000,000) shares. Fifty million (50,000,000) shares shall be Common Stock, each having a par value of one-tenth of one cent ($0.001). Twenty-five million (25,000,000) shares shall be Preferred Stock, each having a par value of one-tenth of one cent ($0.001). Notwithstanding Section 242 of the General Corporation Law of the State of Delaware, the number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of holders of a majority of the outstanding shares of capital stock of the corporation, with each such share being entitled to such number of votes per share as is provided in this Article IV. The Preferred Stock may be issued from time to time in one or more series. Subject to compliance with applicable voting rights, if any, which may have been granted to the Preferred 2 39 Stock or any series thereof, the Board of Directors is hereby authorized, by filing a certificate pursuant to the Delaware General Corporation Law, to fix or alter from time to time the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof, including without limitation the dividend rights, dividend rate, conversion rights, voting rights and the liquidation preferences of any wholly unissued series of Preferred Stock, and to establish from time to time the number of shares constituting any such series and the designation thereof, or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. Of the Preferred Stock, ten million five hundred thousand (10,500,000) shares shall be designated "Series A Preferred Stock," six hundred thousand (600,000) shares shall be designated "Series B Preferred Stock", and eight hundred thousand (800,000) shares shall be designated "Series C Preferred Stock." The Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock is hereinafter sometimes collectively referred to as the "Designated Preferred." B. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF THE SERIES A, SERIES B AND SERIES C PREFERRED STOCK. SECTION 1. DIVIDENDS. The holders of the Designated Preferred shall be entitled to receive dividends at the rate per annum of $0.1064 per share of Series A Preferred Stock, $0.1440 per share of Series B Preferred Stock, and $0.1600 per share of Series C Preferred Stock, when, as and if declared by the Board of Directors out of any funds legally 3 40 available therefor, prior and in preference to any declaration or payment of any dividend on the Common Stock of this corporation ("COMMON") payable other than in Common. Such dividends shall not be cumulative. Such dividends shall be distributed ratably among the holders of each Series of Designated Preferred based on the full dividend to which such holder is entitled. No dividends or other distributions shall be made with respect to the Common in any year, other than dividends payable solely in Common, unless and until (i) the full amount of the dividend provided for above with respect to the Designated Preferred for such year has been paid or declared and set apart for payment, and (ii) an equal dividend per share shall have been paid or declared and set apart for payment to the holders of the Designated Preferred (in addition to the dividend provided for above) for each share of Common which the holders of the Designated Preferred then have the right to acquire upon conversion of their respective shares under this Certificate. SECTION 2. LIQUIDATION PREFERENCE. A. In the event of any liquidation, dissolution or winding up of the corporation, either voluntary or involuntary, the holders of the Designated Preferred shall be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the corporation to the holders of the Common by reason of their ownership thereof: (i) the sum of $1.33 per share of Series A Preferred Stock, $1.80 per share of Series B Preferred Stock, and $2.00 per share of Series C Preferred Stock then held by them (such amounts per share with respect to each such Series are hereinafter referred to as the "Original Issue Price"), and (ii) an amount equal to all declared but unpaid dividends on the Designated Preferred then held by them. If, upon the occurrence of such event, the assets and funds thus distributed among the holders of the Designated Preferred shall be insufficient to permit the payment to such holders of the full aforesaid 4 41 preferential amount, then the entire assets and funds of the corporation legally available for distribution shall be distributed ratably among the holders of the Designated Preferred in proportion to the preferential amount each such holder would have been entitled to receive pursuant to this Section 2a. if such distribution had been sufficient to permit the full payment of such preferential amount. B. Upon the completion of the distribution provided for in Section 2a., all of the assets remaining in the corporation, if any, shall be distributed pro rata among the holders of the Common, based upon the number of shares of Common held by each such holder. C. For purposes of this Section 2, a merger or consolidation of this corporation with or into any other corporation or corporations where the stockholders of this corporation immediately prior to such merger or consolidation do not beneficially own more than 50% of the outstanding voting stock of the surviving entity immediately following such merger or consolidation and in which the stockholders of this corporation receive distributions in cash or in securities of another corporation as a result of such merger or consolidation, or a sale or other disposition of all or substantially all of the assets of the corporation, shall be treated as a liquidation, dissolution or winding up of the corporation. SECTION 3. CONVERSION. The holders of the Designated Preferred shall have conversion rights as follows (the "CONVERSION RIGHTS"): A. OPTIONAL CONVERSION. Each share of Designated Preferred shall be convertible at the option of the holder thereof, without payment of additional consideration, at any time, at the office of the corporation or any transfer agent for the Designated Preferred, into one share of Common, subject to adjustment as provided in Sections 3.d. and 3.e. below. 5 42 B. AUTOMATIC CONVERSION. Each share of Designated Preferred shall automatically be converted into the number of shares of Common into which such share of Designated Preferred is then convertible pursuant to Section 3a (i) in the event that the holders of not less than sixty-seven percent (67%) of the outstanding Designated Preferred consent to such conversion, or (ii) upon the closing of a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "ACT"), covering the offer and sale by the corporation of Common to the public at an aggregate offering price of not less than $10,000,000 (prior to underwriters' discounts and expenses), and at a public offering price not less than $6.00 per share, subject to adjustment for stock splits, stock dividends, reorganizations and the like with respect to the Common. C. MECHANICS OF CONVERSION. (1) No fractional shares of Common shall be issued upon conversion of the Designated Preferred. In lieu of any fractional share, the corporation shall pay cash equal to such fraction multiplied by the then current fair market value of a share of Common as determined in good faith by the Board of Directors of the corporation. Before any holder of Designated Preferred shall be entitled to convert the same into shares of Common, it shall surrender the certificate or certificates therefor, duly endorsed, at the office of the corporation or of any transfer agent for the Designated Preferred, and shall give written notice to the corporation at such office that it elects to convert the same (except that no such written notice of election to convert shall be necessary in the event of an automatic conversion pursuant to Section 3b.). The corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Designation Preferred a certificate or certificates, registered in such names as specified by the 6 43 holder, for the number of shares of Common to which such holder shall be entitled as aforesaid, and a check payable to the holder in the amount of any amounts payable for fractional shares and any declared and unpaid dividends on the converted Designated Preferred. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of the Designated Preferred to be converted, and the person or persons entitled to receive the shares of Common issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common on such date (except that in the event of an automatic conversion pursuant to Section 3b.(i), such conversion shall be deemed to have been made at the close of business on the date fixed in the vote approving such automatic conversion and in the event of automatic conversion pursuant to Section 3b.(ii), such conversion shall be deemed to have been made immediately prior to the closing of the offering referred to in Section 3b.(ii)). If the conversion is in connection with an underwritten offer of securities registered pursuant to the Act, the conversion may, at the option of any holder tendering Designated Preferred for conversion, be conditioned upon the closing with the underwriter of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common issuable upon such conversion of Designated Preferred shall not be deemed to have converted such Designated Preferred until immediately prior to the closing of such sale of securities. If such conversion is in connection with a merger, consolidation or sale of assets which would be treated as a liquidation, dissolution or winding up of the corporation in accordance with and for purposes of Section 2, the conversion may, at the option of the holder tendering Designated Preferred for conversion, be conditioned upon the consummation of such transaction, in which event the person(s) entitled to receive the Common issuable upon such conversion of Designated 7 44 Preferred shall not be deemed to have converted such Designated Preferred until immediately prior to the consummation of such transaction. D. ADJUSTMENTS FOR SUBDIVISIONS, DIVIDENDS, COMBINATIONS OR CONSOLIDATIONS OF COMMON. (1) In the event the outstanding shares of Common shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common, the number of shares of Common into which the Designated Preferred is convertible immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately decreased. (2) In the event the corporation shall declare or pay any dividend on the Common payable in Common or in the event the outstanding shares of Common shall be subdivided, by reclassification or otherwise than by payment of a dividend in Common, into a greater number of shares of Common, the number of shares of Common into which the Designated Preferred is convertible immediately prior to such dividend or subdivision shall be proportionately increased: (A) in the case of any such dividend, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend, or (B) in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective. 8 45 (3) If such record date shall have been fixed and such dividend shall not have been fully paid on the date fixed therefor, the adjustment previously made in accordance with this Subsection d. shall be canceled (to the extent such dividend was not paid) as of the close of business on the date so fixed, and thereafter the number of shares of Common into which the Designated Preferred is convertible shall be adjusted as of the time of actual payment of such dividend. E. ADJUSTMENTS FOR OTHER RECLASSIFICATIONS, DIVIDENDS AND DISTRIBUTIONS. If there occurs any capital reorganization or any reclassification of the capital stock of the corporation (other than any subdivision, dividend, combination, consolidation or other transaction provided for in Section 3d), each share of Designated Preferred shall thereafter be convertible into the same kind and amounts of securities or other assets, or both, that were issuable or distributable to the holders of shares of outstanding Common Stock of the corporation upon such reorganization or reclassification, in proportion to that number of shares of Common Stock into which such shares of Designated Preferred might have been converted immediately prior to such reorganization or reclassification; and in any such case, appropriate adjustments (as determined by the Board of Directors) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holders of Designated Preferred to the end that the provisions of this Certificate shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other assets thereafter deliverable upon the conversion of the Designated Preferred. F. NO IMPAIRMENT. The Corporation will not, by amendment of its Certificate of Incorporation, by filing a Certificate of Designation or through any reorganization, 9 46 transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of Designated Preferred against impairment. G. CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each adjustment or readjustment, pursuant to this Section 3, of the number of shares of Common into which any shares of Designated Preferred are convertible, the corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of such shares of Designated Preferred a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The corporation shall, upon the written request at any time of any holder of Designated Preferred, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the number of shares of Common into which the Designated Preferred is then convertible, and (iii) the number of shares of Common and the amount, if any, of other property which at the time would be received upon the conversion of Designated Preferred. H. NOTICES OF RECORD DATE. In the event that this Corporation shall propose at any time: (1) to declare any dividend or distribution upon the Common, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus; 10 47 (2) to offer for subscription pro rata to the holders of any class or series of its stock any additional shares of stock of any class or series or other rights; (3) to effect any reclassification or recapitalization of its Common shares outstanding involving a change in the Common shares; or (4) to merge or consolidate with or into any other corporation, or sell, lease or convey all or substantially all its property or business, or to liquidate, dissolve or wind up; then, in connection with each such event, this corporation shall send to the holders of the Designated Preferred: (A) at least 10 days' prior written notice of the date on which a record shall be taken for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common shares shall be entitled thereto) or for determining rights to vote in respect of the matters referred to in (1) and (2) above; and (B) in the case of the matters referred to in (3) and (4) above, at least 10 days' prior written notice of the date when the same shall take place (and specifying, if practicable, or estimating the date on which the holders of Common shares shall be entitled to exchange their Common shares for securities or other property deliverable upon the occurrence of such event). (C) Each such written notice shall be given by first class mail, postage prepaid, addressed to the holders of the Designated Preferred at the address for each such holder as shown on the books of this Corporation; provided that any such notice to an address 11 48 outside the United States shall be given by facsimile and confirmed in writing contemporaneously sent by two-day guaranteed international courier. I. COMMON STOCK RESERVED. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of Designated Preferred, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Designated Preferred, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then-outstanding shares of Designated Preferred, the Corporation shall take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. J. ISSUE TAX. The issuance of certificates for shares of Common upon conversion of Designated Preferred shall be made without charge to the holders thereof for any issuance tax in respect thereof, provided that the corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the holder of the Designated Preferred which is being converted. K. CLOSING OF BOOKS. The corporation will at no time close its transfer books against the transfer of any Designated Preferred or of any shares of Common issued or issuable upon the conversion of any shares of Designated Preferred in any manner which interferes 12 49 with the timely conversion of such Designated Preferred, except as may otherwise be required to comply with applicable securities laws. SECTION 4. VOTING RIGHTS. A. GENERAL. Except as otherwise required by law or this Certificate of Incorporation, (i) each share of Common issued and outstanding shall have one vote; (ii) each share of Designated Preferred issued and outstanding shall have a number of votes equal to the number of Common shares (including fractions of a share) into which such share of Designated Preferred is then convertible as adjusted from time to time pursuant to Section 3 hereof; and (iii) the Common and the Designated Preferred and any other class and series of Stock of the corporation shall vote together as a single class. B. BOARD SIZE. The corporation shall not, without the written consent or affirmative vote of the holders of at least sixty-seven percent (67%) of the then outstanding shares of Designated Preferred, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, increase the maximum number of directors constituting the Board of Directors to a number of excess of nine (9). C. BOARD SEATS. The holders of the Designated Preferred, voting as a separate class, shall be entitled to elect five (5) directors of the corporation. The holders of Common, voting as a separate class, shall be entitled to elect two (2) directors of the corporation. At any meeting (or in a written consent in lieu thereof) held for the purpose of electing directors, the presence in person or by proxy (or the written consent) of the holders of a majority of the shares of Designated Preferred then outstanding shall constitute a quorum of the Designated Preferred for 13 50 the election of directors to be elected solely by the holders of the Designated Preferred. A vacancy in any directorship elected by the holders of the Designated Preferred shall be filled only by vote or written consent of the holders of the Designated Preferred and a vacancy in any directorship elected by the holders of Common shall be filled only by vote or written consent of the holders of Common. A director elected by the holders of Designated Preferred may be removed without cause only by vote of holders of a majority of the outstanding shares of Designated Preferred and a director elected by the holders of Common may be removed without cause only by vote of holders of a majority of the outstanding shares of Common. SECTION 5. COVENANTS. A. In addition to any other rights provided by law, this corporation shall not, without first obtaining the affirmative vote or written consent of the holders of not less than sixty-seven percent (67%) of all outstanding shares of Designated Preferred, voting together as a class: (1) make any amendment to the corporation's Certificate of Incorporation or Bylaws that would materially and adversely alter or change the rights, preferences, or privileges of the outstanding Designated Preferred; (2) increase or decrease the authorized number of shares of Preferred Stock or any Series thereof; (3) create (by reclassification, Certificate of Designation or otherwise) any new class or series of shares of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock with respect to voting rights, liquidation preferences, or dividends; increase the authorized amount of any class or series of shares 14 51 of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock with respect to voting rights, liquidation preferences or dividends; or create or authorize (by reclassification, Certificate of Designation or otherwise) any obligation or security convertible into shares of any class or series of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock with respect to voting rights, liquidation preferences or dividends; or (4) take any action that results in any liquidation, dissolution or winding up of the corporation or any merger, consolidation, or other corporate reorganization, or effect any transaction in which all or substantially all of the assets of the corporation are sold or otherwise disposed of. B. In addition to any other rights provided by law, this corporation shall not, without first obtaining the affirmative vote or written consent of the holders of a majority of the outstanding shares of a particular Series of Designated Preferred, take any action that would (i) materially and adversely alter or change the rights, preferences, or privileges of such Series in a manner different than the other Series, (ii) increase or decrease the authorized number of shares of such Series or (iii) amend the terms of another Series of Designated Preferred which, when established, was pari pasu with such Series with respect to voting rights, liquidation preferences or dividends, if such amendment results in the other Series having a preference over such Series with respect to voting rights, liquidation preferences or dividends.. SECTION 6. STATUS OF CONVERTED OR REDEEMED STOCK. In case any shares of Designated Preferred shall be converted pursuant to Section 3 hereof, the shares so converted shall resume the status of authorized but unissued and undesignated shares of Preferred Stock. 15 52 SECTION 7. RESIDUAL RIGHTS. All rights accruing to the outstanding shares of this corporation not expressly provided for to the contrary herein shall be vested in the Common. V. For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that: A. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. Subject to Section 4b of Article IV, the number of directors which shall constitute the whole Board of Directors shall be fixed by the Board of Directors in the manner provided in the Bylaws, provided that such number shall not be less than the number of directors provided for in Section 4 of Article IV. B. Subject to Section 5 of Article IV, the Board of Directors may from time to time make, amend, supplement or repeal the Bylaws; provided, however, that (subject to such Section 5) the stockholders may change or repeal any Bylaw adopted by the Board of Directors by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the corporation (considered for this purpose as one class); and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with any amendment or supplement thus adopted by the stockholders. C. The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. 16 53 D. Following the effectiveness of the registration of any class of securities of the corporation pursuant to the requirements of the Securities Exchange Act of 1934, as amended, no action shall be taken by the stockholders of the corporation except at an annual or special meeting of stockholders called in accordance with the Bylaws and no action shall be taken by the stockholders by written consent. E. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation. VI. A director of the corporation shall, to the full extent not prohibited by the Delaware General Corporation Law, as the same exists or may hereafter be amended, not be liable to the corporation or its stockholders for monetary damages for breach of his fiduciary duty as a director. VII. The corporation is to have perpetual existence. 17 54 VIII. Subject to the provisions of this Certificate of Incorporation, the corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this right. IN WITNESS WHEREOF, said Aurora Biosciences Corporation has caused this Certificate to be signed by its President and Chief Executive Officer, Timothy J. Rink, and attested to by its Secretary, John T. Hendrick, this 6th day of March, 1996. ------------------------------------- TIMOTHY J. RINK PRESIDENT AND CHIEF EXECUTIVE OFFICER ATTEST: - --------------------------------- JOHN T. HENDRICK SECRETARY 18 55 EXHIBIT B SCHEDULE OF EXCEPTIONS 56 EXHIBIT C INVESTORS' RIGHTS AGREEMENT 57 AURORA BIOSCIENCES CORPORATION INVESTORS RIGHTS AGREEMENT MARCH 8, 1996 58 AURORA BIOSCIENCES CORPORATION INVESTORS' RIGHTS AGREEMENT This Investors' Rights Agreement (the "AGREEMENT") is entered into as of March 8, 1996 among Aurora Biosciences Corporation, a Delaware corporation (the "COMPANY"), with its principal office located at 1020 Prospect Street, Suite 405, La Jolla, CA 92037 and the persons or entities listed as Stockholders in the signature pages hereto who execute this Agreement (each a "Stockholder", collectively, the "STOCKHOLDERS"). This Agreement is being entered into pursuant to Section 4.7 of that certain Preferred Stock Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT") among the Company and the Stockholders. In consideration of the mutual agreements, covenants and conditions contained herein, the Company and the Stockholders hereby agree as follows (unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned in the Purchase Agreement): 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS 1.1. RESTRICTIONS ON TRANSFERABILITY. Neither the shares of the Company's Series A, Series B or Series C Preferred Stock purchased by the Stockholders pursuant to the Purchase Agreement (the "DESIGNATED PREFERRED") nor the Registrable Securities (as defined below) shall be transferable except upon compliance with (i) the Right of First Refusal set forth in Section 45 of the Company's Bylaws, (ii) the conditions specified in this Agreement, which conditions are intended to insure compliance with the provisions of the Securities Act (as defined below), and (iii) if such shares are Restricted Securities, upon such other terms as are in the opinion of counsel to the Company necessary to comply with the provisions of the Securities Act; provided, however that such restrictions shall not apply to transfers under the circumstances described in Sections 1.5, 1.6 or 1.7 and that the requirements of clause (iii) shall not apply to a transfer without consideration to one or more partners or shareholders of the Stockholder (e.g., an in-kind distribution pursuant to the terms of the Stockholder's governing documents). Except for transfers made pursuant to Rule 144 of the Securities Act, each Stockholder will cause any proposed transferee of Designated Preferred or Registrable Securities held by such Stockholder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement and it will be a condition precedent to the effectiveness of any such transfer that such Stockholder shall have secured a written agreement of such transferee in form and substance satisfactory to the Company to that effect, if so requested by the Company; provided, however, that this sentence shall not apply with respect to any proposed transferee in whose hands the transferred shares will not be Restricted Securities. 1.2. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: "COMMISSION" shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. 1. 59 "COMMON STOCK" shall mean the Common Stock, $.001 par value, of the Company, as constituted on the date of this Agreement. "FORM S-3" shall mean Form S-3 under the Securities Act (as defined below) as in effect on the date of this Agreement, or any substantially similar, equivalent or successor form under the Securities Act. "HOLDER" shall mean each holder of Registrable Securities. "INITIAL PUBLIC OFFERING" shall mean the Company's initial firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "ACT"), covering the offer and sale by the Company of Common Stock to the public at an aggregate offering price of not less than $10,000,000 (prior to underwriters' discounts and expenses), and at a public offering price not less than $6.00 per share, subject to adjustment for stock splits, stock dividends, reorganizations and the like with respect to such shares. "REGISTRABLE SECURITIES" means shares of the Company's Common Stock (i) issued or issuable upon conversion of Designated Preferred which have not been sold to the public, and (ii) issued in respect of the shares of Common Stock referred to under the foregoing clause (i) by reason of any stock split, stock dividend, recapitalization or similar event which have not been sold to the public. The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in complying with Sections 1.5, 1.6 and 1.7 hereof other than Selling Expenses, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel, blue sky fees and expenses (including counsel fees), and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company). "RESTRICTED SECURITIES" shall mean the securities of the Company required to bear the legends set forth in Section 1.3 hereof or legends substantially similar thereto. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "SELLING EXPENSES" shall mean all underwriting discounts and selling commissions applicable to the applicable sale. 1.3. RESTRICTIVE LEGEND(S). Each certificate representing the shares of Designated Preferred and Registrable Securities shall (unless otherwise permitted by the provisions of Section 1.4 below) be stamped or otherwise imprinted with legends in the following form (in addition to any other legend required by the Bylaws of the Company, or under applicable California or other state securities laws): 2. 60 (A) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION. (B) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION'S STOCKHOLDERS, AS PROVIDED IN THE BYLAWS OF THE CORPORATION. 1.4. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate representing the Restricted Securities, by acceptance thereof, agrees to comply, in addition to the requirements of Section 45 of the Company's Bylaws, in all respects with the provisions of this Section 1.4. Prior to any proposed transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, the holder thereof shall give written notice to the Company of such holder's intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, and shall be accompanied (except in transactions in compliance with Rule 144 and except for transfers without consideration to one or more partners or shareholders of the holder (e.g., an in-kind distribution pursuant to the terms of the holder's governing documents)) by either (i) a written opinion of legal counsel who shall be reasonably satisfactory to the Company (it being agreed that Testa Hurwitz & Thibeault is satisfactory) addressed to the Company and reasonably satisfactory in form and substance to the Company's counsel, to the effect that the proposed transfer of the Restricted Securities may be effected without registration under the Securities Act, or (ii) a "no action" letter from the Commission, a copy of any holder's request (together with all supplements or amendments thereto) for which shall have been provided to the Company, at or prior to the time of first delivery to the Commission's staff, to the effect that the transfer of such securities without registration will not result in a recommendation by such staff that action be taken with respect thereto, whereupon the holder of such Restricted Securities shall be entitled to transfer such Restricted Securities in accordance with the terms of the notice delivered by the holder to the Company. Each certificate evidencing the Restricted Securities transferred as provided for above shall bear the appropriate restrictive legends set forth in Section 1.3 above, except that such certificate shall not bear the restrictive legend set forth in Section 1.3(a) above if, in the opinion of counsel for the Company or counsel for such holder, such legend is not required in order to establish compliance with any provisions of the Securities Act and except that such certificate shall not bear the restrictive legend set forth in Section 1.3(b) above if the right of first refusal set forth in the Company's Bylaws is no longer applicable. 1.5. DEMAND REGISTRATION RIGHTS. (A) Commencing on the earlier of (i) five (5) years after the date hereof, or (ii) one (1) year after the Company's initial public offering of securities pursuant to a registration statement 3. 61 under the Securities Act, if the Company shall receive a written request (specifying that it is being made pursuant to this Section 1.5) from the Holders of at least fifty percent (50%) of the Registrable Securities that the Company file a registration statement or similar document under the Securities Act covering the registration of the greater of (i) 20% of the shares which are then Registrable Securities, or (ii) Registrable Securities the expected aggregate offering price to the public of which is at least $5,000,000, then the Company shall promptly notify all other Holders of such request and shall use its best efforts to promptly and expeditiously cause all Registrable Securities that such Holders have requested, within 15 days after receipt of such written notice, to be registered in accordance with this Section 1.5 to be registered under the Securities Act. The Holders making the written request pursuant to this Section 1.5 shall be referred to hereinafter as the "INITIATING HOLDERS". Notwithstanding the foregoing: (i) the Company shall not be obligated to effect a registration pursuant to this Section 1.5 during the period starting with the date one hundred twenty (120) days prior to the Company's estimated date of filing of, and ending on a date one hundred twenty (120) days following the effective date of, a registration statement pertaining to an underwritten public offering of the Company's securities, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and that the Company's estimate of the date of filing such registration statement is made in good faith; or (ii) if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company's obligation to use its best efforts to file a registration statement shall be deferred for a period not to exceed six (6) months; provided, however, that the Company shall not obtain such a deferral more than once in any 12-month period. The Company shall not be obligated to effect more than two (2) registrations pursuant to this Section 1.5 for which holders of Registrable Securities are the Initiating Holders; provided, however that such obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities requested by Holders to be registered pursuant to such demand shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto. (B) If the Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of an underwriting, they shall so advise the Company as part of their demand made pursuant to this Section 1.5, and the Company shall include such information in the notice referred to in Section 1.5(a). In such event, the right of any Holder to registration pursuant to this Section 1.5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall, together with all Holders proposing to distribute their securities through such underwriting, enter into an underwriting agreement in customary form with the underwriter or underwriters selected by a majority of interest of the Initiating Holders and reasonably satisfactory to the Company. Notwithstanding any other provision of this Section 1.5, if the underwriter shall advise the Company in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation of the number of shares to be underwritten, then the 4. 62 Company shall so advise all Holders of Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced and shall be allocated pro rata among such Holders thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Initiating Holders. The Registrable Securities so withdrawn shall also be withdrawn from registration. If by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the underwriter limitation in this Section 1.5. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account (or for the account of other securityholders) in such registration if the underwriter so agrees and if the number of Registrable Securities that would otherwise have been included in such registration and underwriting will not thereby be limited and if such inclusion will not adversely affect the marketing of the Registrable Securities. Except for registration statements on Form S-4, S-8 or any successor thereto, the Company will not file with the Commission any other registration statement with respect to its Common Stock, whether for its own account or that of other stockholders, from the date of receipt of a request for registration from Initiating Holders pursuant to this Section 1.5 until the earlier of (a) one hundred twenty (120) days from the receipt of the initial request pursuant to Section 1.5(a) or (b) the completion of the period of distribution of the registration contemplated thereby. Although the Company shall have no obligation to register any Designated Preferred, in any underwritten public offering contemplated by this Section 1.5 or Section 1.6 or 1.7, holders of Designated Preferred shall be entitled to sell shares of Designated Preferred representing Registrable Securities to be included in such underwriting to the underwriters for conversion and sale of the Registrable Securities issued upon conversion thereof. 1.6. COMPANY REGISTRATION. (A) If, at any time or from time to time, the Company shall determine to register any of its securities, either for its own account or the account of a security holder or holders exercising their respective demand registration rights, other than a registration (A) relating solely to employee benefit plans on Form S-8 or similar forms which may be promulgated in the future, (B) a registration on Form S-4 or similar forms which may be promulgated in the future relating solely to a Securities and Exchange Commission Rule 145 or similar transaction or (C) in connection with the Company's Initial Public Offering, the Company will (i) promptly give to each Holder written notice thereof and (ii) include in such registration (and any related qualification under Blue Sky laws or other compliance), 5. 63 and in any underwriting involved therein, all Registrable Securities of such Holders as specified in a written request or requests made within 15 days after receipt of such written notice from the Company. (B) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so indicate in the notice given pursuant to Section 1.6(a). In such event the right of any Holder to registration pursuant to this Section 1.6 shall be conditioned upon such Holder's agreeing to participate in such underwriting and in the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company or by other holders exercising any demand registration rights to the extent such holders are not excluded from the registration pursuant to the Underwriter Cutback described below. Notwithstanding any other provision of this Section 1.6, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities or other securities from such registration and underwriting (hereinafter an "UNDERWRITER CUTBACK"). In the event of an Underwriter Cutback, the Company shall so advise all Holders and the other holders distributing their securities through such underwriting, and the Underwriter Cutback shall be implemented on the basis that the holders who are not Holders shall be cut back before any cutback of Holders. If the limitation determined by the underwriter requires an Underwriter Cutback with respect to the Registrable Securities to be included, such Underwriter Cutback shall be in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. 1.7. FORM S-3 REGISTRATION RIGHTS. After the Initial Public Offering, the Company shall use its best efforts to qualify for registration on Form S-3, and to that end the Company shall use its best efforts to comply with the reporting requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), within twelve (12) months following the effective date of the first registration of any securities of the Company for an underwritten registered public offering. After the Company has qualified for the use of Form S-3, and subject to the provisions of Section 1.14, each Holder shall have the right to request registrations on Form S-3 (such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended method of disposition of such shares by each such Holder), subject only to the following limitations: (A) The Company shall not be obligated to cause a registration on Form S-3 to become effective prior to one hundred twenty (120) days following the effective date of a Company initiated registration (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145); (B) The Company shall not be required to effect a registration pursuant to this Section 1.7 unless the Holder or Holders requesting such a registration propose to dispose of shares of Registrable Securities having an aggregate disposition price (before deduction of underwriting discounts and expenses of sale) of at least $1,000,000 (unless the value of all of the Registrable 6. 64 Securities held by all Holders is less than $1,000,000, in which case the Holders shall be entitled to a final demand registration pursuant to this Section 1.7 for an amount equal to the value of the Registrable Securities held by all Holders at the time of such demand; provided that for purposes of the foregoing, "value" shall be determined based on the average of the last sale prices of the Company's Common Stock on the principal exchange or market on which such Common Stock is traded during the five (5) trading days immediately preceding such demand); (C) The Company shall not be required to effect a registration pursuant to this Section 1.7 if the Company shall furnish to the requesting Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company or its stockholders for the registration statement to be filed at the date filing would be required, in which case the Company shall have an additional period of not more than one hundred twenty (120) days within which to file such registration statement; provided however, that the Company shall not use this right more than once in any twelve-month period; (D) The Company shall not be required to maintain and keep any such registration on Form S-3 effective for a period exceeding one hundred twenty (120) days from the effective date thereof; and (E) The Company shall not be obligated to cause a registration on Form S-3 if in the prior twelve-month period the Company has caused a registration on Form S-3 to become effective as the result of a request pursuant to this Section 1.7. The Company shall give notice to all Holders of the receipt of a request for registration pursuant to this Section 1.7 and shall use its best efforts to cause all Registrable Securities that such Holders have requested, within 15 days after receipt of such written notice, be registered in accordance with this Section 1.7 to be registered under the Securities Act. Subject to the foregoing, the Company will use its best efforts to effect promptly any registration pursuant to this Section 1.7. The provisions of Section 1.5(b) shall apply to any registration effected pursuant to this Section 1.7 1.8. EXPENSES OF REGISTRATION. All Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Sections 1.5, 1.6 and 1.7 (exclusive of Selling Expenses but inclusive of the reasonable fees and expenses of one special counsel to the selling Holders) shall be borne by the Company. Notwithstanding anything to the contrary herein, the Company shall not be required to pay for any expenses of any registration proceeding under Section 1.5 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to have been registered, unless such Holders agree to forfeit their right to a demand registration pursuant to Section 1.5 (in which event such right shall be forfeited by all Holders). In the absence of such an agreement to forfeit, the Holders of Registrable Securities to have been registered shall bear all such expenses pro rata on the basis of the Registrable Securities to have been registered. Notwithstanding the foregoing, however, if at the time of the withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request, of which the Company had knowledge at the time of the request, then the Holders shall not be required to pay any of said expenses and shall retain their rights pursuant to Section 1.5. 7. 65 1.9. REGISTRATION PROCEDURES. In the case of each registration, qualification or compliance effected by the Company pursuant to this Section 1, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will: (A) Keep such registration, qualification or compliance effective for a period of one hundred twenty (120) days or until the Holder or Holders have completed the distribution described in the registration statement relating thereto, whichever first occurs; (B) Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement; (C) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them; (D) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders or the underwriters, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; (E) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with (and provide customary due diligence materials and information to) the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; (F) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and (G) use its best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed. Notwithstanding any provision to the contrary in this Agreement, the Company shall not be required in connection with any registration pursuant to Sections 1.5, 1.6 or 1.7 to qualify shares in any state or jurisdiction which requires the Company to qualify to do business or to file a general consent to service of process. 8. 66 1.10. INDEMNIFICATION. (A) The Company will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Section 1, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or regulation promulgated under the Securities Act applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will promptly reimburse each such Holder, each of its officers and directors and partners, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred (as and when incurred) in connection with investigating, preparing to defend or defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder or underwriter and stated to be specifically for use therein. (B) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, severally and not jointly indemnify the Company, each of its directors and officers, each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and partners and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof) including any of the foregoing incurred in settlement of any litigation commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or regulation promulgated under the Securities Act applicable to the Company in connection with any such registration, qualification, or compliance, and will promptly reimburse the Company, such Holders, such directors, officers, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred (as and when incurred) in connection with investigation, preparing to defend or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged 9. 67 omission) is made in such registration statement, prospectus, offering circular or other document or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder and stated to be specifically for use therein; provided, however, that the obligations of each such Holder hereunder shall be limited to an amount equal to the proceeds to each such Holder of Registrable Securities sold in such registration as contemplated herein. (C) Each party entitled to indemnification under this Section 1.10 (the "INDEMNIFIED PARTY") shall give notice to the party required to provide indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at its own expense; provided, however, that, if the defendants in any such claim or litigation include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1 unless such failure resulted in actual detriment to the Indemnifying Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party a release from all liability in respect of such claim or litigation. (D) If the indemnification provided for in this Section 1.10 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission, provided, however, that in no case will any seller of Registrable Securities be required to contribute any 10. 68 amount in excess of the amount of proceeds to such seller of Registrable Securities sold pursuant to the registration statement with respect to which the contribution obligation arose. (E) The obligations of the Company and Holders under this Section 1.10 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 1 and otherwise. 1.11. INFORMATION BY HOLDER. The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Section 1. 1.12. RULE 144 REPORTING. With a view to making available the benefits of certain rules and regulations of the Commission which may at any time permit the sale of the Restricted Securities to the public without registration, after such time as a public market exists for the Common Stock of the Company, the Company agrees to: (A) Use its best efforts to make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act at all times after the effective date of the first registration under the Securities Act filed by the Company for an offering of its securities to the general public; (B) Use its best efforts to then file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act at any time after it has become subject to such reporting requirements; (C) So long as a Stockholder owns any Restricted Securities, to furnish to the Stockholder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 (at any time after 90 days after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public) and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as a Stockholder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Stockholder to sell any such securities without registration. 1.13. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to register securities granted under Sections 1.5, 1.6 and 1.7 may be assigned or otherwise conveyed to a transferee or assignee of Registrable Securities, who shall be considered a "Holder," and the transferred shares shall be considered "Registrable Securities," for purposes of this Section 1, provided that (i) said transferee acquires Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction, and (ii) the Company is given written notice by such Holder at the time of or within a reasonable time (but not more than 30 days) after said transfer, stating the name and address of said transferee or assignee and identifying the securities with respect to 11. 69 which such registration rights are being assigned, subject to said transferee's agreement to be bound by and comply with the provisions of this Section 1. 1.14. TERMINATION OF REGISTRATION RIGHTS. The registration rights granted pursuant to this Section 1 shall terminate (i) upon the seventh anniversary of the effective date of the Initial Public Offering or (ii) if earlier, as to any individual Holder, at such time after the Company's Initial Public Offering as all Registrable Securities held by such Holder can be sold within any three-month period without compliance with the registration requirements of the Securities Act pursuant to Rule 144 (including Rule 144(k)) promulgated thereunder. 1.15. "MARKET STAND OFF" AGREEMENT. Each Holder hereby agrees that it shall not, to the extent requested by the Company and the underwriters managing any underwritten offering of the Company's Common Stock (or other securities), sell or otherwise transfer or dispose of (other than to those who agree to be similarly bound) any Registrable Securities or any other securities of the Company during the one hundred eighty (180) day period following the effective date of a registration statement of the Company filed in connection with the Company's Initial Public Offering. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities and other securities of the Holders (and the shares or securities of every other person subject to the foregoing restriction) until the end of such one hundred eighty (180) day period. 1.16. OTHER REGISTRATION RIGHTS. The Company shall not grant to any third party any registration rights more favorable than or inconsistent with any of those contained herein, so long as any of the registration rights under this Agreement remains in effect. 1.17. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often as, there is any change in the Common Stock or the Designated Preferred by way of a stock split, stock dividend, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby shall continue with respect to the Common Stock or the Designated Preferred as so changed. 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS 2.1. FINANCIAL INFORMATION. Subject to Section 2.16, the Company will furnish the following reports to the Stockholders for so long as the Stockholders are Holders of Registrable Securities: (A) As soon as practicable after the end of each fiscal year (other than the fiscal year ended March 31, 1996), and in any event within 90 days thereafter, audited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year, and consolidated statements of income, stockholders= equity and cash flows of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company; and 12. 70 (B) As soon as practicable after the end of each fiscal quarter, and in any event within 45 days thereafter, unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such quarter, and unaudited consolidated statements of income, stockholders' equity and cash flows of the Company and its subsidiaries, if any, for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, prepared in accordance with generally accepted accounting principles (but subject to normal year-end audit adjustments) and certified by the chief financial officer. 2.2. ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights granted pursuant to Section 2.1 and Section 2.3 may be assigned by the Stockholders (or by any permitted transferee of any such rights) so long as (i) the Company is given notice of any such assignment within a reasonable time after the date the same is effected, (ii) the transferee shall have acquired Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction, and (iii) the transferee is not engaged in a business that is competitive with the Company. 2.3. INSPECTION AND VISITATION RIGHTS. Each Stockholder, so long as such Stockholder holds Registrable Securities, shall have the right to visit and inspect the Company's principal place of business, subject to such limitations and restrictions as the President of the Company in good faith determines to be necessary for the protection of the Company's Proprietary Information. 2.4. RESERVE FOR CONVERSION SHARES. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, for the purpose of effecting the conversion of the Designated Preferred and otherwise complying with the terms of this Agreement, such number of its duly authorized shares of Common Stock as shall be sufficient to effect the conversion of the Designated Preferred from time to time outstanding or otherwise to comply with the terms of this Agreement. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of the Designated Preferred or otherwise to comply with the terms of this Agreement, the Company will forthwith take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company will obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon conversion of the Designated Preferred. 2.5. PROPERTIES, BUSINESS, INSURANCE. The Company shall maintain and cause each of its subsidiaries to maintain as to their respective properties and business, with financially sound and reputable insurers, insurance against such casualties and contingencies and of such types and in such amounts as is customary for companies similarly situated, which insurance shall be deemed by the Company to be sufficient. 2.6. RESTRICTIVE AGREEMENTS PROHIBITED. Neither the Company nor any of its subsidiaries shall become a party to any agreement which by its terms restricts the Company's performance of this Agreement, the Management Rights Agreements, the Voting Agreements or the Restated Certificate. 2.7. TRANSACTIONS WITH AFFILIATES. Except for transactions contemplated by the Agreements or as otherwise approved by the Board of Directors, neither the Company nor any of 13. 71 its subsidiaries shall enter into any material transaction with any director, officer, employee or holder of more than 5% of the outstanding capital stock of any class or series of capital stock of the Company or any of its subsidiaries, or to the Company's knowledge any member of the family of any such person, any corporation, partnership, trust or other entity in which any such person, or member of the family of any such person, is a director, officer, trustee, partner or holder of more than 5% of the outstanding capital stock thereof, except for transactions on customary terms related to such person's employment. 2.8. EXPENSES OF DIRECTORS. The Company shall promptly reimburse in full, each director of the Company who is not an employee of the Company for all of his reasonable out-of-pocket expenses incurred in attending each meeting of the Board of Directors of the Company or any Committee thereof. 2.9. BYLAWS. The Company shall at all times cause its Bylaws to provide that (a) any three directors shall have the right to call a meeting of the Board of Directors and (b) the number of directors fixed in accordance therewith shall in no event conflict with any of the terms or provisions of the Designated Preferred as set forth in the Restated Certificate. The Company shall at all times maintain provisions in its Bylaws and/or Certificate of Incorporation indemnifying all directors against liability and absolving all directors from liability to the Company and its stockholders to the maximum extent permitted under the laws of the State of Delaware. 2.10. PERFORMANCE OF CONTRACTS. The Company shall not amend, modify, terminate, waive or otherwise alter, in whole or in part, any of the Proprietary Information Agreements or the provisions contained in the Employment Amendment without the approval of the Company's Board of Directors. 2.11. PROPRIETARY INFORMATION AGREEMENTS. The Company shall use its best efforts to obtain, and shall cause its subsidiaries to use their best efforts to obtain, a Proprietary Information Agreement in substantially the form of Exhibit F to the Purchase Agreement from all future officers, key employees and other employees who will have access to confidential information of the Company or any of its subsidiaries, upon their employment or engagement by the Company or any of its subsidiaries. The Company shall use its reasonable best efforts to cause any consultant with whom the Company contracts to agree to maintain the confidentiality of the Company's confidential or Proprietary information, and to assign to the Company any proprietary rights arising from work performed by the consultant for the Company. 2.12. COMPLIANCE WITH LAWS. The Company shall comply, and cause each subsidiary to comply, with all applicable laws, rules, regulations and orders, noncompliance with which could materially adversely affect its business or condition, financial or otherwise. 2.13. KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall keep, and cause each subsidiary to keep, adequate records and books of account, in which complete entries will be made in accordance with United States generally accepted accounting principles ("GAAP") consistently applied, reflecting financial transactions of the Company and each subsidiary in accordance with GAAP. 14. 72 2.14. U.S. REAL PROPERTY INTEREST STATEMENT. The Company shall provide prompt written notice to each Stockholder following any Adetermination date@ (as defined in Treasury Regulation Section 1.897-2(c)(i)) on which the Company becomes a United States real property holding corporation. In addition, upon a written request by any Stockholder, the Company shall provide such Stockholder with a written statement informing the Stockholder whether such Stockholder's interest in the Company constitutes a U.S. real property interest. The Company's determination shall comply with the requirements of Treasury Regulation Section 1.897-2(h)(1) or any successor regulation, and the Company shall provide timely notice to the Internal Revenue Service, in accordance with and to the extent required by Treasury Regulation Section 1.897-2(h)(2) or any successor regulation, that such statement has been made. The Company's written statement to any Stockholder shall be delivered to such Stockholder within ten (10) days of such Stockholder's written request therefor. In addition, upon request by any foreign Stockholder but subject to the succeeding sentence, the Company shall provide along with such statement either or both of the following documents: (i) an affidavit in conformance with the requirements of Section 1445(b)(3) of the Code and the regulations thereunder or (ii) a notarized statement, executed by an officer having actual knowledge of the facts, that the shares of Company stock held by such Stockholder are of a class that is regularly traded on an established securities market, within the meaning of Section 1445(b)(6) of the Code and the regulations thereunder. If the Company is unable to provide either of the documents described in (i) or (ii) above upon request, it shall promptly, and in any event within such ten (10) day period, notify such Stockholder in writing of the reason for such inability. Finally, upon the request of a foreign Stockholder and without regard to whether either document described in (i) or (ii) above has been requested, the Company shall reasonably cooperate with the efforts of such foreign Stockholder to obtain a Aqualifying statement@ within the meaning of Section 1445(b)(4) of the Code and the regulations thereunder or such other documents as would excuse a transferee of a foreign Stockholder=s interest from withholding of income tax imposed pursuant to Section 897(a) of the Code. 2.15. RULE 144A INFORMATION. The Company shall, at all times during which it is not subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, provide in writing, upon the written request of any Stockholder or a prospective buyer of Registrable Securities (including Designated Preferred before conversion into Registrable Securities) from any Stockholder, all information required by Rule 144A(d)(4)(i) of the General Regulations promulgated by the Commission under the Securities Act ("Rule 144A Information"). The Company's obligations under this Section 2.15 shall at all times be contingent upon the relevant Stockholder's obtaining from the prospective buyer of such Registrable Securities a written agreement to take all reasonable precautions to safeguard the Rule 144A Information from disclosure to anyone other than a person who will assist such buyer in evaluating the purchase of such Registrable Securities. 2.16. TERMINATION OF COVENANTS. The covenants set forth in Section 2.1, Sections 2.3 through 2.13 and Section 2.15 shall terminate and be of no further force or effect upon the earlier of (i) the closing of the Initial Public Offering, or (ii) the date on which none of the Registrable Securities (including shares of Designated Preferred prior to conversion into Common Stock) is outstanding. The Covenants set forth in Section 2.14 shall terminate five (5) years after the closing of the Initial Public Offering. 15. 73 2.17. CONFIDENTIAL INFORMATION, ETC. Each Holder agrees that (i) all information received by it pursuant to this Section 2 which the Company designates as or promptly confirms in writing to be AConfidential@ or the like, and (ii) any other information relating to the Company's technology, processes or formulas that is disclosed by the Company to any Holder in writing and is marked "Confidential" or the like, shall be considered confidential information. Each Holder further agrees that it shall hold all such confidential information in confidence and shall not, without the Company=s prior express written consent, disclose any such confidential information to any third party other than its counsel, accountants, employees and other professional advisors, representatives and agents, all of whom shall have a need to know such information and shall be bound by the provisions of this Section 2.17, nor shall such Holder, without the Company's prior express written consent, use such confidential information for any purpose other than evaluation of such Holder's investment in the Company; provided, however, that the foregoing obligation to hold in confidence and not to disclose confidential information shall not apply to any such information that (a) was known to the public or the Holder or its representatives prior to disclosure by the Company, (b) becomes known to the public through no fault of such Holder, (c) is disclosed to such Holder on a non-confidential basis by a third party having a legal right to make such disclosure, (d) is independently developed by such Holder, or (e) is required to be disclosed as a matter of law or pursuant to court order; and provided further that the foregoing obligation to hold in confidence and not to disclose confidential information shall not prohibit such Holder from disclosing to its partners or shareholders financial and other information described in clause (i) of this Section 2.17 which is of a type customarily provided by such Holder to such partners or shareholders in the ordinary course or from disclosing to a bona-fide prospective transferee of its securities of the Company such financial and other information described in such clause (i) which is reasonably necessary to provide such transferee with adequate disclosure of material information. 3. RIGHTS OF FIRST REFUSAL 3.1. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES. (A) The Company hereby grants to each Stockholder the right of first refusal to purchase its Pro Rata Share (defined below) of all (or any part) of New Securities (defined below) that the Company may from time to time propose to sell and issue. Stockholder's "PRO RATA SHARE," for purposes of this Section 3, is the ratio of the number of shares of Common Stock (assuming conversion of all shares of Designated Preferred) then held by such Stockholder to the total number of shares of Common Stock then outstanding (assuming conversion of all shares of Designated Preferred). This right of first refusal shall be subject to the following provisions: (B) "NEW SECURITIES" shall mean any Common Stock or Preferred Stock of the Company, whether now authorized or not, and rights, options, or warrants to purchase said Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into or exchangeable for said Common Stock or Preferred Stock; provided, however, that "NEW SECURITIES" does not include (i) securities issuable upon conversion of or with respect to the Designated Preferred; (ii) shares of the Company's Common Stock (or related options) issued to officers, directors, employees of and/or consultants to the Company pursuant to plans or agreements as approved by the Company's Board of Directors; (iii) shares of the Company's Common Stock or Preferred Stock issued to holders of the Designated Preferred in connection with any stock split, stock 16. 74 dividend, or recapitalization by the Company; (iv) securities issued in connection with any equipment leasing, technology licensing, corporate partnering, strategic alliance, acquisition, merger, purchase of assets or similar transaction as approved by the Company's Board of Directors; (v) shares of Common Stock issued to holders of Common Stock in connection with a stock split or stock dividend with respect to the Common Stock; and (vi) shares issued in the Initial Public Offering. (C) In the event that the Company proposes to undertake an issuance of New Securities, it shall give the Stockholders written notice of its intention, describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. The Stockholders shall have twenty (20) days from the date of receipt of any such notice to agree to purchase for cash some or all of its Pro Rata Share of such New Securities for the price and upon the general terms, including deferred payment, if any, specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. (D) In the event that any Stockholder (a "Non-exercising Stockholder") fails to exercise in full the right of first refusal within said twenty (20) day period, notice shall promptly be given by the Company to those Stockholders who have exercised the right of first refusal in full. Such Stockholders shall have the right for an additional ten (10) days to elect by notice to the Company to purchase any or all of the New Securities which the Non-exercising Stockholders were entitled to purchase but elected not to, with such right of over- subscription to be allocated among such Stockholders in accordance with their respective Pro Rata Shares or as they may otherwise agree. After the aggregate thirty (30) day period during which Stockholders may exercise their first refusal right, the Company shall have one hundred twenty (120) days thereafter to sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within one hundred twenty (120) days from the date of said agreement) the New Securities respecting which the Stockholder's rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company's notice. In the event the Company has not sold the New Securities within said one hundred twenty (120) day period (or sold and issued New Securities in accordance with the foregoing agreement within one hundred twenty (120) days from the date of said agreement), the Company shall not thereafter issue or sell any New Securities, without first offering such securities to the Stockholders in the manner provided above. (E) The right of first refusal granted under this Section 3.1 shall not apply to and shall expire upon the closing of the Company's Initial Public Offering. (F) The rights granted pursuant to this Section 3.1 may be assigned by the Stockholder (or by any permitted transferee of any such rights) so long as (i) the Company is given notice of any such assignment within a reasonable time after the date the same is effected and (ii) the transferee shall have acquired Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction. 17. 75 4. MISCELLANEOUS 4.1. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California as applicable to contracts entered into and performed entirely within the State of California by California residents. 4.2. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 4.3. ENTIRE AGREEMENT. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. 4.4. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile or by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Stockholder, to such Stockholder's address set forth in the Purchase Agreement or to such other address as such Stockholder shall have furnished to the Company in writing, (b) if to any other holder of Registrable Securities, at such address as such holder shall have furnished the Company in writing, or (c) if to the Company, to its address set forth above and addressed to the attention of the President or at such other address as the Company shall have furnished to the Stockholders. All notices and other communications pursuant to the provisions of this Section 4.4 shall be deemed delivered when mailed or sent by facsimile. Notwithstanding the foregoing, any notice or communication to an address outside the United States shall be sent by facsimile and confirmed in writing contemporaneously sent by two day guaranteed international courier. 4.5. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be enforceable against the party actually executing such counterpart, and which together shall constitute one instrument. 4.6. 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 without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. 4.7. APPROVAL OF AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) with the written consent of (i) the Company and (ii) the holders of at least two-thirds (2/3) of the shares which are then Registrable Securities. Any amendment, termination or waiver effected in accordance with this section shall be binding upon the Stockholders, each of their transferees and the Company. The Stockholders acknowledge that by the operation of this Section the holders of two-thirds (2/3) of the outstanding Registrable Securities as aforesaid may have the right and power to diminish or eliminate all rights of such Stockholder under this Agreement. 18. 76 The foregoing Investors' Rights Agreement is hereby executed as of the date first above written. THE COMPANY: AURORA BIOSCIENCES CORPORATION By ________________________________________________ Title _____________________________________________ THE STOCKHOLDERS: AVALON MEDICAL PARTNERS, L.P. By:________________________________________________ Title:_____________________________________________ AVALON BIOVENTURES II, L.P. By:________________________________________________ Title:_____________________________________________ KINGSBURY CAPITAL PARTNERS, L.P. II By: Kingsbury Associates, L.P. By:________________________________________________ Title: General Partner ABINGWORTH BIOVENTURES SICAV 19. 77 By:________________________________________________ Title:_____________________________________________ NEW ENTERPRISES ASSOCIATES VI, LIMITED PARTNERSHIP By: NEA Partners VI, Limited Partnership, its General Partner By:________________________________________________ Title: General Partner NEA VENTURES 1996, L.P. By:________________________________________________ Title: Authorized Signatory DP III ASSOCIATES, L.P. By: One Palmer Square Associates III, L.P., its General Partner By:________________________________________________ General Partner DOMAIN PARTNERS III, L.P. By: One Palmer Square Associates III, L.P., its General Partner By:________________________________________________ General Partner 20. 78 BIOTECHNOLOGY INVESTMENTS LIMITED By: Old Court Limited By:________________________________________________ Attorney-in-Fact PACKARD INSTRUMENT COMPANY, INC. By:________________________________________________ Title:_____________________________________________ [SIGNATURE PAGE FOR INVESTORS' RIGHTS AGREEMENT] SEQUANA THERAPEUTICS, INC. By:________________________________________________ Title:_____________________________________________ GC&H INVESTMENTS By:________________________________________________ Title:_____________________________________________ ___________________________________________________ KEVIN J. KINSELLA ___________________________________________________ ROGER Y. TSIEN 21. 79 ___________________________________________________ THERESA E. GLOBE ___________________________________________________ CHARLES S. ZUKER ___________________________________________________ MICHAEL G. ROSENFELD ___________________________________________________ JOHN A. PORCO, JR. ___________________________________________________ LUBERT STRYER ___________________________________________________ ANDREA S. STRYER ___________________________________________________ WALTER LUETOLF FOR ADRIAN J.R. LANGINGER ___________________________________________________ NORMAND F. SMITH 22. 80 ___________________________________________________ HUGH Y. RIENHOFF, JR. ___________________________________________________ JANICE THOMPSON THE GREENE FAMILY TRUST By:________________________________________________ HOWARD E. GREENE, JR., TRUSTEE By:________________________________________________ ARLINE GREENE, TRUSTEE ___________________________________________________ TIMOTHY J. RINK HAMBRECHT & QUIST GROUP By:________________________________________________ Dennis J. Purcell Title:_____________________________________________ 23. 81 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1. Restrictions on Transferability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.3. Restrictive Legend(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4. Notice of Proposed Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.5. Demand Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.6. Company Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.7. Form S 3 Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.8. Expenses of Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1.9. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1.10. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1.11. Information by Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1.12. Rule 144 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1.13. Transfer of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1.14. Termination of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1.15. "Market Stand Off" Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1.16. Other Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1.17. Changes in Common Stock or Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 13 2.1. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2.2. Assignment of Rights to Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . 13 2.3. Inspection and Visitation Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2.4. Reserve for Conversion Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2.5. Properties, Business, Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.6. Restrictive Agreements Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.7. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.8. Expenses of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.9. Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.10. Performance of Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.11. Proprietary Information Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
i. 82 2.12. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.13. Keeping of Records and Books of Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.14. U.S. Real Property Interest Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.15. Rule 144A Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2.16. Termination of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2.17. Confidential Information, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3. RIGHTS OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.1. Right of First Refusal on Company Issuances . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.1. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.2. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.3. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.4. Notices, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4.6. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4.7. Approval of Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ii. 83 EXHIBIT D FORM OF MANAGEMENT RIGHTS LETTER 84 AURORA BIOSCIENCES CORPORATION 1020 Prospect Street, Suite 405 La Jolla, California 92037 March 8, 1996 Re: Management Rights ----------------- Ladies and Gentlemen: This letter will confirm our agreement that in connection with your purchase of shares of Series A Preferred Stock of Aurora Biosciences Corporation (the "Company"), you will be entitled to the following contractual management rights, in addition to rights to certain non-public financial information, inspection rights and other rights specifically provided to you under that certain Investors' Rights Agreement of even date herewith: (1) If and for so long as you do not have a representative on the Company's Board of Directors ("Unrepresented Party"), you shall be permitted to select one representative ("Representative") to consult with and advise management of the Company on significant business issues, including management's proposed annual operating plans, and management will make itself available to meet with your Representative regularly during each year at the Company's facilities at mutually agreeable times for such consultation and advice and to review progress in achieving said plans. (2) If and for so long as you are an Unrepresented Party, your Representative may examine the books and records of the Company and inspect its facilities and may request information at reasonable times and intervals concerning the general status of the Company's financial condition and operations, provided that access to highly confidential proprietary information and facilities need not be provided. (3) If and for so long as you are an Unrepresented Party, the Company shall invite you to send your Representative to attend in a nonvoting observer capacity all meetings of its Board of Directors and, in this respect, shall give your Representative copies of all notices, minutes, consents, and other material that it provides to its Directors; provided, however, that the Company reserves the right to exclude your Representative from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. Your Representative may participate in discussions of matters brought to the Board. 85 Page 2 (4) Within ten (10) days after the date of this letter, the Company shall deliver to you, with a copy to , a table showing in reasonable detail the fully-diluted capitalization of the Company, taking into account the investments being made on the date hereof. (5) Any notice or communication to you or to any of your representatives which is to be sent to an address outside the United States shall, in addition to any other method(s), be given by telecopy and confirmed in writing contemporaneously sent by two-day guaranteed international courier. A copy of any communication sent by the Company to you will also be sent to at their respective addresses set forth in the Preferred Stock Purchase Agreement of even date hereof or at such other address as may be provided to the Company. The rights described herein shall terminate and be of no further force or effect upon the earliest to occur of (a) the closing of a public offering of shares of the Company's capital stock pursuant to a registration statement filed by the Company under the Securities Act of 1933 which has become effective thereunder (other than a registration statement relating solely to employee benefit plans or a transaction covered by Rule 145), (b) such time as the Company becomes required to file reports with the Securities and Exchange Commission under Sections 12(g) or 15(d) of the Securities Exchange Act of 1934, or (c) such time as you or your affiliates hold, in the aggregate, less than 20% of the shares of Series A Preferred Stock purchased by you on the date hereof or, if such shares have been converted into Common Stock, less than 20% of the shares of Common Stock issued upon conversion of such shares, adjusted, in each case, for stock splits, stock dividends, combinations and the like with respect to the particular class or series of stock. This letter may be executed in counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same instrument. Very truly yours, AURORA BIOSCIENCES CORPORATION By: /s/ TIMOTHY J. RINK ------------------------------------ Title: President and CEO --------------------------------- ACCEPTED AND AGREED TO: By: ------------------------------- Title: ---------------------------- 86 EXHIBIT E FORM OF VOTING AGREEMENT 87 VOTING AGREEMENT AGREEMENT dated as of March 8, 1996, among Aurora Biosciences Corporation, a Delaware corporation (the "Company"), the persons listed as Purchasers in the signature pages hereto who execute this Agreement (collectively, the "Purchasers" and individually, a "Purchaser"), and the other persons and entities who execute a signature page hereto. WHEREAS, on the date hereof the Purchasers are purchasing from the Company shares of its Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (collectively, the "Designated Preferred") pursuant to the terms of a Preferred Stock Purchase Agreement dated the date hereof between the Company and the Purchasers (the "Purchase Agreement"); and WHEREAS, certain of the Stockholders (as defined below) are the holders of at least a majority of the outstanding Common Stock, $.001 par value, of the Company ("Common Stock"); WHEREAS, the Stockholders wish to make certain provisions for the voting of their Shares (as defined below); WHEREAS, the purchases by the Purchasers will benefit the Company and its current stockholders; and WHEREAS, it is a condition to the obligations of the Purchasers under the Purchase Agreement that this Agreement be executed by the parties hereto, and the parties are willing to execute this Agreement and to be bound by the provisions hereof; NOW, THEREFORE, in consideration of the premises, the agreements set forth below, and the parties' desire to further the interests of the Company and its present and future stockholders, the parties agree as follows: 1. DEFINITION. As used in this Agreement, (a) the term "Shares" means all shares of capital stock of the Company (i) now or hereafter owned (either beneficially or of record) by a Stockholder, and (ii) which a Stockholder does not own (either beneficially or of record) but as to which it now or hereafter has the right to exercise voting control, and (b) the term "Stockholders" means collectively the Purchasers and each other person or entity executing a signature page hereto. 2. DESIGNATION OF NOMINEES. Each of Avalon Bioventures II, L.P. ("Avalon"), Kingsbury Capital Partners, L.P. II ("Kingsbury"), Abingworth Bioventures SICAV ("Abingworth"), New Enterprises Associates VI, Limited Partnership ("NEA") and Domain Partners III, L.P. ("Domain") (together, the "Nominating Purchasers" and 1. 88 individually, a "Nominating Purchaser"), so long as it or its affiliates continues to own at least 20% of the shares of Designated Preferred acquired by it and its affiliates on the date hereof (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Designated Preferred), shall have the right to designate a nominee for election as one of the directors of the Company who shall be elected solely by the holders of the Designated Preferred, voting separately as a single class (together, the "Nominees" and individually, a "Nominee"). At least ten days prior to any meeting (or written action in lieu of a meeting) of stockholders of the Company at or by which directors are to be elected by the holders of Designated Preferred, voting separately as a single class, each Nominating Purchaser shall notify the other Purchasers in writing of the Nominee designated by such Nominating Purchaser for election as a director. In the absence of any such notification, it shall be presumed that the Nominating Purchaser's then incumbent Nominee has been redesignated as its Nominee. The initial Nominees of Avalon, Kingsbury, Abingworth, NEA and Domain are Kevin J. Kinsella, Timothy J. Wollaeger, Stephen Bunting, Hugh Y. Rienhoff, Jr. and James C. Blair, respectively. Each Nominating Purchaser shall cause its Nominee to nominate the other Nominees for election to the Board of Directors of the Company in any manner which may be required by the Bylaws of the Company. 3. ELECTION OF DIRECTORS. At each meeting (or written action in lieu of a meeting) of stockholders of the Company at or by which directors are to be elected by the holders of the Designated Preferred, voting separately as a single class, each Stockholder shall vote all of its Shares of Designated Preferred to elect, as directors of the Company, the Nominees designated in the manner provided in Section 2. At each meeting (or written action in lieu of a meeting) of stockholders of the Company at or by which directors are to be elected by the holders of Common Stock, voting separately as a class, each of the Stockholders shall vote all of its Shares of Common Stock to elect, as directors of the Company, (a) the then current Chief Executive Officer of the Company (the "CEO/Director"), which shall initially be Timothy J. Rink, and (b) a person (the "Additional Director") designated jointly by Roger Y. Tsien and Charles S. Zuker who is reasonably acceptable to a majority of the other members of the Company's Board of Directors, who shall initially be Lubert Stryer. At least 30 days prior to any meeting (or written action in lieu of a meeting) of stockholders of the Company at or by which directors are to be elected by the holders of Common Stock, voting separately as a class, Drs. Tsien and Zuker shall notify the Company and the Board of Directors of their designee pursuant to clause (b), and if such person is reasonably acceptable to a majority of the other members of the Board of Directors, the Company shall notify the Stockholders of such designee at least ten days prior to such meeting or written action. In the absence of any such notification, it shall be presumed that the then incumbent Additional Director has been redesignated. Notwithstanding the foregoing, if both Dr. Tsien's and Dr. Zuker's services as consultants to the Company terminate, for any reason or for no reason, then such Additional Director shall be designated as above by the holders of a majority of the Common Stock of the Company. 89 4. SUCCESSOR DIRECTORS. If a Nominee shall cease to serve as a director for any reason, the Nominating Purchaser which designated such Nominee shall have the right to designate a successor Nominee and each of the other Stockholders shall use its best efforts to ensure that such successor Nominee is duly elected as a director. If a Nominating Purchaser notifies the other Stockholders that it desires to remove its Nominee as a director, each of the other Stockholders shall use its best efforts to ensure that such Nominee is duly removed as a director. If the CEO/Director ceases to be the Chief Executive Officer of the Company for any reason, each Stockholder shall use its best efforts to ensure that such person is promptly removed as a director and that the newly appointed Chief Executive Officer is elected as a director. If the Additional Director ceases to be a director for any reason, a successor may be designated in the manner set forth in Section 3(b) and each Stockholder shall use its best efforts to ensure that such successor is duly elected as a director. If Drs. Tsien and Zuker jointly (or, pursuant to the last sentence of Section 3, the holders of a majority of the outstanding Common Stock of the Company) desire to remove the Additional Director as a director, each of the Stockholders shall use its best efforts to ensure that such member is duly removed as a director. If a Nominating Purchaser notifies the Company that it desires to remove its Nominee as a director and/or designate a successor Nominee or if Drs. Tsien and Zuker jointly (or, pursuant to the last sentence of Section 3, the holders of a majority of the outstanding Common Stock of the Company) notify the Company that they desire to remove the Additional Director as a director and/or designate a successor, the Company shall, upon request, use its best efforts to ensure that a meeting of stockholders of the Company is promptly called for such purpose. 5. CHANGE OF CONTROL. Each Purchaser agrees that such Purchaser will not sell or dispose of any of its Shares (excluding shares of capital stock which are Shares solely because of clause (ii) of the definition of Shares) in connection with any transaction or series of related transactions occurring subsequent to the date hereof which results or is intended to result in (i) a sale or transfer of 50% or more of the then outstanding voting securities of the Company to one or more related purchasers (including persons acting as a partnership, syndicate or other group for the purpose of acquiring securities of the Company); (ii) a merger, consolidation or other corporate reorganization where the stockholders of the Company immediately prior to such transaction do not immediately following such transaction own at least 50% of the surviving entity; or (iii) a transfer of all or substantially all of the assets of the Company (collectively, a "Change of Control"), unless such Change of Control has been approved or consented to by holders of at least sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Designated Preferred, considered as a single class. Each Purchaser further agrees that it will vote all of its Shares in favor of (and, if applicable, will tender their Shares to the acquiring party pursuant to) any Change in Control which is approved by Purchasers holding at least sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Designated Preferred (the "Required Approval"). If, however, despite the foregoing sentences, a Change of Control for which the Required Approval 90 has not been obtained does occur (because of sales by holders of the Company's voting securities who are not subject to this provision), the foregoing restriction shall not apply and the Purchasers may tender their Shares in connection with and otherwise participate in such Change of Control transaction. The provisions of this Section 5 shall be of no further force or effect following a Change of Control occurring subsequent to the date hereof. 6. TERM. This Agreement shall continue until the earlier of (i) such time as no shares of Designated Preferred remain outstanding or (ii) the tenth anniversary of the date of this Agreement. 7. SPECIFIC ENFORCEMENT. Each Stockholder and the Company expressly agrees that the Stockholders will be irreparably damaged if this Agreement is not specifically enforced. Upon a breach or threatened breach of the terms, covenants and/or conditions of this Agreement by a Stockholder or the Company, the other Stockholders shall, in addition to all other remedies, be entitled to a temporary or permanent injunction, without showing any actual damage, and/or a decree for specific performance, in accordance with the provisions hereof. 8. LEGEND. Each certificate evidencing Shares shall bear a legend substantially as follows: "The shares represented by this certificate are subject to the terms and conditions of a certain Voting Agreement dated as of March __, 1996, a copy of which the Company will furnish to the holder of this certificate upon request and without charge, and may only be transferred subject to such terms and conditions." 9. NOTICES. All notices or other communications given hereunder shall be in writing and shall be deemed effective upon delivery at the address of the party to be notified and shall be mailed by certified or registered mail, return receipt requested, delivered by courier, telecopied, or sent by other facsimile method, addressed to the address specified below such party's signature hereto or such other address as such party may subsequently notify the other parties of in writing. Notwithstanding the foregoing, all notices or other communications to an address outside of the United States shall, in addition to any other method, be given by telecopy and confirmed in writing sent contemporaneously by two-day guaranteed international courier. 10. FURTHER ASSURANCES. The Company shall use its best efforts to cause any persons or entities that acquire newly issued shares of Common Stock after the date hereof to execute a counterpart signature page to this Agreement and to become a party to this Agreement in order to ensure that at all times holders of at least a majority of the Company's outstanding Common Stock are subject to this Agreement. 91 11. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and neither this Agreement nor any provision hereof may be waived, modified, amended or terminated except by a written agreement signed by the Company, Purchasers owning at least two-thirds of the then outstanding shares of Designated Preferred held by Purchasers and, with respect to waivers, modifications, etc., which adversely effect the rights of any Stockholders (other than Purchasers), at least fifty percent of the Common Stock held by persons or entities executing this Agreement; provided however, that no waiver, modification, amendment or termination shall adversely effect the rights of a particular Nominating Purchaser with respect to the designation and removal of a member of the Company's Board of Directors without the written consent of such Nominating Purchaser. 12. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be governed by the laws of the State of Delaware and shall bind and inure to the benefit of the heirs, personal representatives, executors, administrators, successors and assigns of the parties. Without limiting the generality of the foregoing, all covenants and agreements of the Stockholders shall bind any and all subsequent holders of their Shares, and the Company agrees that it shall not transfer on its records any such Shares unless (i) the transferor Stockholder shall have first delivered to the Company and the other Purchasers the written agreement of the transferee to be bound by this Agreement to the same extent as if such transferee had originally been a Stockholder hereunder and (ii) the certificate or certificates evidencing the Shares so transferred bear the legend specified in Section 8. 13. CAPTIONS. Captions are for convenience only and are not deemed to be part of this Agreement. 14. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 15. ADDITIONAL PARTIES. Additional persons and entities may become parties to this Agreement by executing a counterpart signature page hereto which sets forth the address of such person or entity and pursuant to which such person or entity agrees to be bound by this Agreement, and upon execution thereof, such person or entity shall be deemed a Stockholder for all purposes hereunder. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 92 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. COMPANY: AURORA BIOSCIENCES CORPORATION By: --------------------------------------- Title: ------------------------------------ Address: 1020 Prospect Street, Ste. 405 La Jolla, California 92037 Facsimile: (619) 454-5239 PURCHASERS: AVALON MEDICAL PARTNERS, L.P. By: --------------------------------------- Title: ------------------------------------ Address: 1020 Prospect Street, Ste. 405 La Jolla, California 92037 Facsimile: (619) 454-5239 AVALON BIOVENTURES II, L.P. By: --------------------------------------- Title: ------------------------------------ Address: 1020 Prospect Street, Ste. 405 La Jolla, California 92037 Facsimile: (619) 454-5239 93 KINGSBURY CAPITAL PARTNERS, L.P. II By: Kingsbury Associates, L.P. By: --------------------------------------- Title: General Partner Address: 3655 Nobel Drive, Suite 490 San Diego, California 92122 Facsimile: (619) 677-0800 ABINGWORTH BIOVENTURES SICAV By: --------------------------------------- Title: Attorney-in-fact pursuant to Power of Attorney dated March 6, 1996 Address: c/o Sanne & Cie Boite Postale 566 L-2015 Luxembourg Telecopy: (352) 43 5410 With a copy to: Dr. Stephen Bunting Abingworth Management Limited 26 St. James's Street London, England SW1A 1HA Telecopy: 44-171-930-1891 Daniel P. Finkelman, Esq. Testa, Hurwitz & Thibeault High Street Tower 125 High Street Boston, MA 02110 Telecopy: (617) 248-7100 94 NEW ENTERPRISE ASSOCIATES VI, LIMITED PARTNERSHIP By: NEA Partners VI, Limited Partnership, its General Partner By: ------------------------------------ Title: General Partner Address: 1119 St. Paul Street Baltimore, Maryland 21202 Facsimile: (410) 752-7721 NEA VENTURES 1996, L.P. By: ------------------------------------ Title: Authorized Signatory Address: 1119 St. Paul Street Baltimore, Maryland 21202 Facsimile: (410) 752-7721 DP III ASSOCIATES, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: ------------------------------------ Title: General Partner Address: One Palmer Square, Suite 515 Princeton New Jersey 08542 Facsimile: (609) 683-9789 95 DOMAIN PARTNERS III, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: ------------------------------------ Title: General Partner Address: One Palmer Square, Suite 515 Princeton New Jersey 08542 Facsimile: (609) 683-9789 BIOTECHNOLOGY INVESTMENTS LIMITED By: Old Court Limited By: ------------------------------------ Title: Attorney-in-Fact Address: One Palmer Square, Suite 515 Princeton New Jersey 08542 Facsimile: (609) 683-9789 PACKARD INSTRUMENT COMPANY, INC. By: ------------------------------------ Title: Address: 800 Research Parkway Meriden CT 06450 Facsimile: (203) 235-1347 [SIGNATURE PAGE FOR VOTING AGREEMENT] 96 SEQUANA THERAPEUTICS, INC. By: ------------------------------------ Title: --------------------------------- Address: 11099 North Torrey Pines Rd., Suite 160 La Jolla, California 92037 Facsimile: (619) 452-6653 GC&H INVESTMENTS By: ------------------------------------ Title: --------------------------------- Address: 4365 Executive Dr., Ste. 1100 San Diego, California 92121 Facsimile: (609) 453-3555 ---------------------------------------- KEVIN J. KINSELLA Address: Avalon Ventures 1020 Prospect Street,Suite 405 La Jolla, California 92037 Facsimile: (619) 454-5329 ---------------------------------------- ROGER Y. TSIEN Address: 8535 Nottingham Place La Jolla, California 92037 Facsimile: (619) 534-5270 97 ---------------------------------------- THERESA E. GLOBE Address: 142 Bessborough Drive Toronto, Ontario M4G3J6 Facsimile: (416) 864-3361 ---------------------------------------- CHARLES S. ZUKER Address: UCSD Cellular & Molecular Medicine West 9500 Gilman Drive, Rm. 355 La Jolla, California 92037 Facsimile: (619) 534-8510 ---------------------------------------- MICHAEL G. ROSENFELD Address: UCSD Eukaryotic Regulatory Biology Program Room 345 C.M.M. 9500 Gilman Drive La Jolla, California 92037 Facsimile: (619) 534-8180 ---------------------------------------- JOHN A. PORCO, JR. Address: Argonaut Technologies, Inc. 887-G Industrial Road, Ste. G San Carlos, California 94070 Facsimile: (415) 598-1359 ---------------------------------------- LUBERT STRYER Address: 843 Sonoma Terrace Stanford, California 94305 Facsimile: (415) 498-5351 98 ---------------------------------------- ANDREA S. STRYER Address: 843 Sonoma Terrace Stanford, California 94305 Facsimile: (415) 498-5351 ---------------------------------------- WALTER LUETOLF FOR ADRIAN J.R. LANGINGER Address: ATAG Vermogensverwaltung AG 8022 Zurich Bleichwrweg 21 Postfach 8272 Facsimile: 01-202 33 49 ---------------------------------------- NORMAND F. SMITH Address: Perkins, Smith & Cohen One Beacon Street Moston, MA 02108-3106 Facsimilie: (617) 854-4040 ---------------------------------------- HUGH Y. RIENHOFF, JR. Address: New Enterprise Associates 119 St. Paul Street Baltimore, Maryland 21202 Facsimile: (410) 752-7721 ---------------------------------------- JANICE THOMPSON Address: P.O. Box 3471 16360 La Gracia Rancho Santa Fe, CA 92067 Facsimile: (619) 756-4320 99 THE GREENE FAMILY TRUST By: ------------------------------------ HOWARD E. GREENE, JR., TRUSTEE By: ------------------------------------ ARLINE GREENE, TRUSTEE Address: c/o Howard E. Greene, Jr. 9373 Towne Centre Drive San Diego, California 92121 Facsimile: (619) 552-2212 ---------------------------------------- TIMOTHY J. RINK Address: 5666 La Jolla Boulevard, #5 La Jolla, California 92037 Facsimile: (619) 454-5329 HAMBRECHT & QUIST GROUP By: ------------------------------------- Dennis J. Purcell Title: ---------------------------------- Address: 230 Park Avenue, 21st Fl. New York, NY 10169 Facsimile: (212) 207-1664 [END OF PURCHASERS] [OTHER STOCKHOLDER SIGNATURE PAGES FOLLOW IMMEDIATELY] 100 OTHER STOCKHOLDER SIGNATURE PAGE The undersigned hereby executes the Voting Agreement among Aurora Biosciences Corporation and the other parties thereto, authorizes this signature page to be attached to a counterpart of such Agreement and agrees to be bound by such Agreement. Print Exact Name of Stockholder:_____________________________ Signature:___________________________________________________ Print Name of Signer:________________________________________ Print Title of Signer Here, if applicable:___________________ Print Address of Stockholder Here:___________________________ _____________________________________________________________ _____________________________________________________________ 101 EXHIBIT F FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT 102 AURORA BIOSCIENCES CORPORATION EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT In consideration of my employment or continued employment by AURORA BIOSCIENCES CORPORATION (the "COMPANY"), and the compensation now and hereafter paid to me, I hereby agree as follows: 1. NONDISCLOSURE 1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during my employment and thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish any of the Company's Proprietary Information (defined below), except as such disclosure, use or publication may be required in connection with my work for the Company, or unless an officer of the Company expressly authorizes such in writing. I will obtain Company's written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to my work at Company and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in such Proprietary Information and recognize that all Proprietary Information shall be the sole property of the Company and its assigns. 1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall mean any and all confidential and/or proprietary knowledge, data or information of the Company. By way of illustration but not limitation, "PROPRIETARY INFORMATION" includes (a) tangible and intangible information relating to antibodies and other biological materials, cell lines, samples of assay components, media and/or cell lines and procedures and formulations for producing any such assay components, media and/or cell lines, formulations, products, processes, know-how, designs, drawings, formulas, methods, developmental or experimental work, clinical data, improvements, discoveries (hereinafter collectively referred to as "INVENTIONS"); (b) plans for research, new products, manufacturing, trade secrets, inventions, programs, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of other employees of the Company. Notwithstanding the foregoing, it is understood that, at all such times, I am free to use information which is generally known in the trade or industry, which is not gained as result of a breach of this Agreement, and my own, skill, knowledge, know-how and experience to whatever extent and in whichever way I wish. 1.3 THIRD PARTY INFORMATION. I understand, in addition, that the Company has received and in the future will receive from third parties confidential or proprietary information ("THIRD PARTY INFORMATION") subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for the Company) or use, except in connection with my work for the Company, Third Party Information unless expressly authorized by an officer of the Company in writing. 1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS. During my employment by the Company I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. 2. ASSIGNMENT OF INVENTIONS. 2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean all trade secret, patent, 1. 103 copyright, mask work and other intellectual property rights throughout the world. 2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which I made prior to the commencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have set forth on Exhibit B (Previous Inventions) attached hereto a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with the Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (collectively referred to as "PRIOR INVENTIONS"). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is provided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the course of my employment with the Company, I incorporate a Prior Invention into a Company product, process or machine, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions without the Company's prior written consent. 2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I hereby assign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the period of my employment with the Company. Inventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are hereinafter referred to as "COMPANY INVENTIONS." 2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an Invention which qualifies fully as a nonassignable Invention under Section 2870 of the California Labor Code (hereinafter "SECTION 2870"). I have reviewed the notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the notification. 2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my employment with the Company, I will promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I will promptly disclose to the Company all patent applications filed by me or on my behalf prior to termination of employment. For a period of six (6) months following termination of my employment with the Company, I will promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others, and all patent applications filed by me or on my behalf, which Inventions or patent applications directly relate to the field of my work at the Company at the time of termination or within three (3) years prior thereto. At the time of each such disclosure, I will advise the Company in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time provide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in confidence and will not use for any purpose or disclose to third parties without my consent any confidential information disclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under the provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection under Section 2870. 2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right, title and interest in and to any particular Invention to a third party, including without limitation the United States, as directed by the Company. 2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are "works made for hire," pursuant to United States Copyright Act (17 U.S.C., Section 101). 2. 104 2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Company Inventions in any and all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company with respect to Proprietary Rights relating to such Company Inventions in any and all countries shall continue beyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my termination for the time actually spent by me at the Company's request on such assistance. 2.9 In the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company. 3. RECORDS. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all Proprietary Information developed by me and all Inventions made by me during the period of my employment at the Company, which records shall be available to and remain the sole property of the Company at all times. 4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment by the Company I will not, without the Company's express written consent, engage in any employment or business activity which is competitive with, or would otherwise conflict with, my employment by the Company. I agree further that for the period of my employment by the Company and for one (l) year after the date of termination of my employment by the Company I will not induce any employee of the Company to leave the employ of the Company. 5. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict herewith. 6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third Party Information or Proprietary Information of the Company. I further agree that any property situated on the Company's premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. Prior to leaving, I will cooperate with the Company in completing and signing the Company's termination statement. 7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and because I may have access to and become acquainted with the Proprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement. 8. NOTICES. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing. 9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the Company, I hereby consent to the notification of my new employer of my rights and obligations under this Agreement. 10. GENERAL PROVISIONS. 3. 105 10.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement will be governed by and construed according to the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. I hereby expressly consent to the personal jurisdiction of the state and federal courts located in San Diego County, California for any lawsuit filed there against me by Company arising from or related to this Agreement. 10.2 SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. 10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns. 10.4 SURVIVAL. The provisions of this Agreement shall survive the termination of my employment and the assignment of this Agreement by the Company to any successor in interest or other assignee. 10.5 EMPLOYMENT. I agree and understand that nothing in this Agreement shall confer any right with respect to continuation of employment by the Company, nor shall it interfere in any way with my right or the Company's right to terminate my employment at any time, with or without cause. 10.6 WAIVER. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement. 10.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of this Agreement shall apply to any time during which I was previously employed, or am in the future employed, by the Company as a consultant if no other agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement. This Agreement shall be effective as of the first day of my employment with the Company, namely: _____________, 19__. I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT. Dated:____________________________ ________________________________________________________ SIGNATURE ________________________________________________________ (PRINTED NAME) ACCEPTED AND AGREED TO: AURORA BIOSCIENCES CORPORATION BY:_____________________________________________________ TITLE:__________________________________________________ ________________________________________________________ (ADDRESS) ________________________________________________________ 4. 106 EXHIBIT A LIMITED EXCLUSION NOTIFICATION THIS IS TO NOTIFYyou in accordance with Section 2872 of the California Labor Code that the foregoing Agreement between you and the Company does not require you to assign or offer to assign to the Company any invention that you developed entirely on your own time without using the Company's equipment, supplies, facilities or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the Company's business, or actual or demonstrably anticipated research or development of the Company; (2) Result from any work performed by you for the Company. To the extent a provision in the foregoing Agreement purports to require you to assign an invention otherwise excluded from the preceding paragraph, the provision is against the public policy of this state and is unenforceable. This limited exclusion does not apply to any patent or invention covered by a contract between the Company and the United States or any of its agencies requiring full title to such patent or invention to be in the United States. I ACKNOWLEDGE RECEIPT of a copy of this notification. By:_____________________________________ (Printed Name of Employee) Date:___________________________________ WITNESSED BY: ________________________________________________ Signature ________________________________________________ (Printed Name of Representative) Dated:________________________________________________ A-1. 107 EXHIBIT B TO: AURORA BIOSCIENCES CORPORATION FROM: ___________________________ DATE: ___________________________ SUBJECT: PREVIOUS INVENTIONS 1. Except as listed in Section 2 below, the following is a complete list of all inventions or improvements relevant to the subject matter of my employment by Aurora Biosciences Corporation (the "COMPANY") that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by the Company: [ ] No inventions or improvements. [ ] See below: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ [ ] Additional sheets attached. 2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above with respect to inventions or improvements generally listed below, the proprietary rights and duty of confidentiality with respect to which I owe to the following party(ies): INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP 1. ___________________________ ____________________ ____________ 2. ___________________________ ____________________ ____________ 3. ___________________________ ____________________ ____________ [ ] Additional sheets attached. _________________________ (Name of Employee) B-1. 108 EXHIBIT G FORM OF LEGAL OPINION OF COMPANY COUNSEL 109 March 8, 1996 To the Purchasers listed on Schedule A of that certain Preferred Stock Purchase Agreement of even date herewith referred to below Ladies and Gentlemen: We have acted as counsel for Aurora Biosciences Corporation, a Delaware corporation (the "Company"), in connection with the issuance and sale of 10,239,115 shares of Series A Preferred Stock, 555,555 shares of Series B Preferred Stock, and 750,000 shares of Series C Preferred Stock under the Preferred Stock Purchase Agreement dated March 8, 1996, among the Company and the purchasers listed on Schedule A thereto (the "Agreement"). We are rendering this opinion pursuant to Section 4.6 of the Agreement. Except as otherwise defined herein, capitalized terms used but not defined herein have the respective meanings given to them in the Agreement. In connection with this opinion, we have examined and relied upon the representations and warranties as to factual matters contained in and made pursuant to the Agreement by the various parties and originals or copies certified to our satisfaction, of such records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. Where we render an opinion "to the best of our knowledge" or concerning an item "known to us" or our opinion otherwise refers to our knowledge, it is based solely upon (i) an inquiry of attorneys within this firm who perform legal services for the Company, (ii) receipt of a certificate executed by an officer of the Company covering such matters and (iii) such other investigation, if any, that we specifically set forth herein. In rendering this opinion, we have assumed: the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents (except the due authorization, execution and delivery by the Company of the Agreement, the Investors' Rights Agreement, the Management Rights Agreements and the Voting Agreement (collectively, the "Agreements")), where authorization, execution and delivery are prerequisites to the effectiveness of such documents. We have also assumed: that all individuals executing and delivering documents had the legal capacity to so execute and deliver; that you have received all documents you were to receive under the Agreements; that the Agreements are an obligation binding upon you; if you are a corporation or other entity, that you have filed any required California franchise or income tax returns and have paid any required California franchise or income taxes; and that there are no extrinsic agreements or understandings among the parties to the Agreements that would modify or interpret the terms of the Agreements or the respective rights or obligations of the parties thereunder. 110 To the Purchasers March 8, 1996 Page Two Our opinion is expressed only with respect to the federal laws of the United States of America, the General Corporation Law of the State of Delaware, and the laws of the State of California. We express no opinion as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that the laws of any jurisdiction other than those identified above are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof. With regard to our opinion in paragraph 4 below, we have examined and relied upon a certificate executed by an officer of the Company to the effect that the consideration for all outstanding shares of capital stock of the Company was received by the Company in accordance with the provisions of the applicable Board of Directors resolutions and any plan or agreement relating to the issuance of such shares, and we have undertaken no independent verification with respect thereto. With regard to our opinion in paragraph 5 below with respect to material defaults under any material agreement known to us, we have relied solely upon (i) inquiries of officers of the Company, (ii) a list supplied to us by the Company, a copy of which is attached hereto, of material agreements to which the Company is a party or by which it is bound and (iii) an examination of the items on the aforementioned list; we have made no further investigation. On the basis of the foregoing, in reliance thereon and with the foregoing qualifications, we are of the opinion that: 1. The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. 2. The Company has the requisite corporate power to own or lease its property and assets, to conduct its business as it is currently being conducted and to execute and perform the Agreements, is qualified as a foreign corporation to do business in California and, to the best of our knowledge, is not required to qualify as a foreign corporation to do business in any other jurisdiction in the United States. 3. The Agreements have been duly and validly authorized, executed and delivered by the Company and constitute valid and binding agreements of the Company enforceable against the Company in accordance with their terms, except as rights to indemnity under section 1.10 of the Investors' Rights Agreement may be limited by applicable laws and except as enforcement of the Agreements may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors' rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. 111 To the Purchasers March 8, 1996 Page Three 4. The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, of which 2,508,500 shares are issued and outstanding immediately prior to the First Closing, and 25,000,000 shares of Preferred Stock, of which 10,500,000 are designated Series A Preferred Stock, 600,000 are designated Series B Preferred Stock, and 800,000 are designated Series C Preferred Stock, none of which will be issued and outstanding immediately prior to the First Closing. No other shares of capital stock or other securities of the Company are outstanding. All such issued and outstanding shares have been duly authorized and validly issued and are fully paid and nonassessable. The Shares have the rights, preferences and privileges set forth in the Restated Certificate. The Shares have been duly authorized, and upon issuance and delivery against payment therefor in accordance with the terms of the Agreement, the Shares will be validly issued, outstanding, fully paid and nonassessable, provided, however, that the Shares (and the Common Stock issuable upon conversion of the Shares) are subject to a right of first refusal as set forth in Section 45 of the Company's Bylaws, and may be subject to restrictions on transfer under state and/or federal securities laws. The shares of Common Stock issuable upon conversion of the Shares have been duly authorized and reserved for issuance, and upon issuance in accordance with the terms of the Restated Certificate, will be validly issued, outstanding, fully paid and nonassessable. To the best of our knowledge, (a) there are no options, warrants, conversion privileges, preemptive rights or other rights presently outstanding to purchase any of the authorized but unissued capital stock of the Company, other than as disclosed in the Agreement or on Exhibit B thereto, and (b) other than as disclosed in the Agreement or Exhibit B thereto, there is no commitment by the Company to issue shares, warrants, options, convertible securities or such other rights. Neither the issuance, sale or delivery of the Shares nor the issuance or delivery of the shares of Common Stock issuable upon conversion of the Shares is subject to any preemptive right of stockholders of the Company arising under law or the Restated Certificate or Bylaws of the Company or, to our knowledge, to any contractual right of first refusal or other similar right in favor of any person under any agreement on the list attached hereto which has not been waived. To our knowledge, the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein. 5. The execution and delivery of the Agreements by the Company, the performance by the Company of its obligations thereunder and the issuance of the Shares pursuant thereto (and the issuance of shares of Common Stock upon conversion of the Shares (assuming conversion of the Shares by the Purchasers as of the date hereof)) do not violate any provision of the Company's Restated Certificate of Incorporation or Bylaws, and do not constitute a material default under the provisions of any material agreement known to us to which the Company is a party or by which it is bound, and do not violate or contravene (a) any governmental statute, rule or regulation applicable to the Company or (b) any order, writ, judgment, injunction, decree, determination or award which has been entered against the Company and of which we are aware, the violation or 112 To the Purchasers March 8, 1996 Page Four contravention of which would materially and adversely affect the Company, its assets, financial condition or operations or impair the Company's ability to execute and perform the Agreements. 6. To the best of our knowledge, there is no action, proceeding or investigation pending or overtly threatened against the Company before any court, administrative agency or other governmental instrumentality that questions the validity of the Agreements or might result, either individually or in the aggregate, in any material adverse change in the assets, financial condition, or operations of the Company. 7. All consents, approvals, authorizations, or orders of, and filings, registrations, and qualifications with any regulatory authority or governmental body in the United States required for the consummation by the Company of the transactions contemplated by the Agreements (including issuance of the Shares and issuance of the shares of Common Stock upon conversion of the Shares (assuming conversion of the Shares by the Purchasers as of the date hereof)), have been made or obtained, except (a) for the filing of a Notice of Transaction Pursuant To Section 25102(f) of the California Corporate Securities Law of 1968, and (b) for the filing of a Form D pursuant to Securities and Exchange Commission Regulation D. 8. The offer and sale of the Shares is, and the issuance of the shares of Common Stock upon conversion of the Shares (assuming conversion of the Shares by the Purchasers as of the date hereof) will be, exempt from the registration requirements of the Securities Act of 1933, as amended. This opinion is intended solely for your benefit and is not to be made available to or be relied upon by any other person, firm, or entity without our prior written consent. Very truly yours, COOLEY GODWARD CASTRO HUDDLESON & TATUM By:_______________________________ Thomas A. Coll TAC:flm 35939 v4/SD EX-10.12 20 EXHIBIT 10.12 1 EXHIBIT 10.12 AURORA BIOSCIENCES CORPORATION ------------------------------------------------------------------------------ SERIES D PREFERRED STOCK PURCHASE AGREEMENT ------------------------------------------------------------------------------ DECEMBER 27, 1996 2 SECTION 1 Sale of Shares....................................................1 1.2 Closing Date.......................................................1 1.3 Delivery...........................................................2 SECTION 2 Representations and Warranties of the Company.....................2 2.1 Organization and Standing..........................................2 2.2 Corporate Power....................................................3 2.3 Subsidiaries.......................................................3 2.4 Capitalization.....................................................3 2.5 Authorization......................................................4 2.6 Contracts and Other Commitments....................................5 2.7 Compliance with Other Instruments, etc.............................5 2.8 Litigation, etc....................................................5 2.9 Registration Rights................................................6 2.10 Permits...........................................................6 2.11 Governmental Consent, etc.........................................6 2.12 Disclosure........................................................6 2.13 Offering..........................................................7 2.14 Liabilities.......................................................7 2.15 Changes...........................................................7 2.16 Title to Properties and Assets; Liens, Leases, etc................9 2.17 Patents and Trademarks............................................9 2.18 Tax Returns; Taxes...............................................10 2.19 Employees........................................................10 2.20 No Defaults......................................................11 2.21 Insurance........................................................11 2.22 Brokers or Finders...............................................12 2.23 Environmental and Safety Laws....................................12 2.24 No Dividends.....................................................12 2.25 Employee Benefit Plan Obligations................................12 2.26 Qualification as a Qualified Small Business......................12 2.27 Financial Statements.............................................12 2.28 Transactions with Affiliates.....................................12 2.29 Proprietary Information and Inventions Agreements................13 2.30 U.S. Real Property Holding Corporation...........................13 SECTION 3 Investment Representations.......................................13 3.1 Power and Authority...............................................13 3.2 Due Execution.....................................................13 3.3 Experience; Accredited Investor...................................14 3.4 Investment........................................................14 3.5 Rule 144..........................................................14 3.6 No Public Market..................................................14 3.7 Disclosure of Information.........................................14
i 3 SECTION 4 Conditions of the Purchaser's Obligations at Closing.............15 4.1 Representations and Warranties....................................15 4.2 Covenants.........................................................15 4.3 No Material Adverse Change........................................15 4.4 Securities Laws...................................................15 4.5 Compliance Certificate............................................15 4.6 Opinion of Counsel................................................15 4.7 Investors' Rights Agreement.......................................15 4.8 Proceedings and Documents.........................................15 4.9 Supporting Documents..............................................16 4.10 Management Rights Agreements.....................................16 4.11 Voting Agreement.................................................16 4.12 Amendment to Employment Agreement................................17 4.13 Charter..........................................................17 4.14 Bylaws...........................................................17 4.14 Proprietary Information Agreements...............................17 4.15 Election of Directors............................................17 4.16 Certificate as to Disqualified Persons...........................17 4.18 Fees of Purchasers' Counsel......................................17 SECTION 5 Conditions of the Company's Obligations at Closing...............18 5.1 Representations and Warranties....................................18 5.2 Covenants.........................................................18 SECTION 6 Miscellaneous....................................................18 6.1 Governing Law.....................................................18 6.2 Successors and Assigns............................................18 6.3 Entire Agreement..................................................18 6.4 Notices, etc......................................................18 6.5 Expenses..........................................................19 6.6 Counterparts......................................................19 6.7 Severability......................................................19 6.8 Survival of Agreements............................................19 6.9 Brokerage.........................................................19 6.10 Amendments.......................................................20
EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION B SCHEDULE OF EXCEPTIONS C INVESTORS' RIGHTS AGREEMENT D FORM OF VOTING AGREEMENT E FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT F FORM OF LEGAL OPINION OF COMPANY COUNSEL ii 4 AURORA BIOSCIENCES CORPORATION SERIES D PREFERRED STOCK PURCHASE AGREEMENT THIS AGREEMENT is made as of December 27, 1996 between Aurora Biosciences Corporation, a Delaware corporation (the "COMPANY"), with its principal office at 11149 North Torrey Pines Road, La Jolla, California 92037, and the purchasers listed on Schedule of Purchasers attached hereto (the "SCHEDULE OF PURCHASERS") who execute this Agreement (each a "Purchaser," and collectively, the "PURCHASERS"). WHEREAS, the Company has authorized the issuance and sale of up to 572,536 shares of its Series D Preferred Stock (the "SHARES") having the rights, preferences, privileges and restrictions set forth in the Restated Certificate of Incorporation of the Company in the form attached to this Agreement as Exhibit A (the "RESTATED CERTIFICATE"). NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and conditions set forth below, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows: SECTION 1 SALE OF SHARES 1.1 SALE OF SHARES. Subject to the terms and conditions hereof, at the Closing (as hereinafter defined) each Purchaser (severally but not jointly) agrees to purchase from the Company, and the Company agrees to sell and issue, at a purchase price per share of $3.60, that number of Shares as is set forth opposite such Purchaser's name on the Schedule of Purchasers. CLOSING DATE. The purchase and sale of the Shares hereunder (the "CLOSING") shall take place at the law offices of Cooley Godward LLP, 4365 Executive Drive, Suite 1100, San Diego, California 92121 on the date of this Agreement or at such other time upon which the Company and the Purchasers shall agree. 1.2 DELIVERY. At the Closing, the Company will deliver to each Purchaser a certificate representing the Shares being purchased by such Purchaser upon payment of the aggregate purchase price therefor (as set forth opposite each Purchaser's name on the Schedule of Purchasers) by check payable to the order of the Company or wire transfer of immediately available funds made payable to the order of the Company, or any combination of the foregoing. SECTION 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 1 5 Except as set forth in the Schedule of Exceptions attached hereto as Exhibit B, the Company hereby represents and warrants to the Purchasers as follows: 2.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized and validly existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has all requisite corporate power to own and operate its assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification or where the failure to so qualify would have a Material Adverse Effect. As used in this Agreement, "Material Adverse Effect" shall mean material adverse effect on the Company's business as presently conducted or planned to be conducted or the Company's financial condition or operations. 2.2 CORPORATE POWER. The Company has all requisite legal and corporate power to execute and deliver this Agreement, the Amended and Restated Investors' Rights Agreement in substantially the form attached hereto as Exhibit C (the "AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT") and the Voting Agreement in substantially the form attached hereto as Exhibit D (the "VOTING AGREEMENT") (this Agreement, the Investors' Rights Agreement and the Voting Agreement are hereinafter collectively referred to as the "AGREEMENTS"), to sell and issue the Shares under this Agreement, to issue the Common Stock issuable upon conversion of the Shares and to carry out and perform its obligations under the terms of the Agreements, including all exhibits and schedules hereto and thereto. 2.3 SUBSIDIARIES. The Company does not own (of record or beneficially) or control, directly or indirectly, any equity interest in any other corporation, association or business entity (other than investments in marketable securities). The Company is not a participant in any joint venture, partnership or similar arrangement. 2.4 CAPITALIZATION. The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, of which 3,574,450 shares will be issued and outstanding immediately prior to the Closing, and 25,000,000 shares of Preferred Stock, of which 10,500,000 are designated Series A Preferred Stock, 833,332 are designated Series B Preferred Stock, 800,000 are designated Series C Preferred Stock and 572,536 are designated Series D Preferred Stock. Immediately prior to the Closing, 10,239,115 shares of Series A Preferred Stock, 833,332 shares of Series B Preferred Stock and 750,000 shares of Series C Preferred Stock will be outstanding. No shares of Series D Preferred Stock will be issued and outstanding immediately prior to the Closing. No other shares of capital stock or other securities of the Company are outstanding. All such issued and outstanding shares have been duly authorized and validly issued and are fully paid and nonassessable and have been offered, issued, sold and delivered by the Company in compliance with applicable federal and state securities laws. The Shares have the rights, preferences and privileges set forth in the Restated Certificate, and all 2 6 such rights, preferences and privileges are valid, binding and enforceable in accordance with all applicable laws. The stockholders of record and holders of subscriptions, warrants, options, convertible securities and other rights to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each are as set forth in Exhibit B. All of the outstanding shares of stock held by each such holder are subject to vesting as described in Exhibit B, and the Company has the right to repurchase unvested shares upon the termination of such holder's employment or other business relationship with the Company at the original purchase price per share paid to the Company by such holder. The Company has reserved 1,000,000 shares of its Common Stock (the "Reserved Shares") for issuance pursuant to the Company's 1996 Stock Plan. Except for the transactions contemplated in the Agreements, the conversion privileges of the Company's Series A, Series B, Series C and Series D Preferred Stock specified in the Restated Certificate, and except as set forth in Exhibit B, there are no options, warrants, conversion privileges or other rights or agreements presently outstanding to purchase or otherwise acquire any authorized but unissued shares of the Company's capital stock or other securities of the Company and there is no commitment by the Company to issue shares, options, warrants, convertible securities or other rights to purchase or otherwise acquire shares of the Company's capital stock or other securities of the Company. Except as set forth in Section 45 of the Company's Bylaws and as contemplated by the Agreements or as provided for in Exhibit B, to the best of the Company's knowledge, there are no voting trusts or agreements, stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to securities of the Company (whether or not the Company is a party thereto). The Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities. 2.5 AUTHORIZATION. All corporate action on the part of the Company, its directors and shareholders necessary for the authorization, execution, delivery and performance of the Agreements by the Company, the authorization, sale, issuance and delivery of the Shares (and the Common Stock issuable upon conversion of the Shares) and the performance of the Company's obligations under the Agreements has been taken or will be taken prior to the Closing. The Agreements, when executed and delivered by the Company, will constitute valid and binding obligations of the Company enforceable in accordance with their terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors, general equity principles and limitations upon rights to indemnity. This Agreement has been duly executed and delivered by the Company. The Shares, when issued in compliance with the provisions of this Agreement, will be duly and validly issued, fully paid and nonassessable and will be free and clear of all liens, encumbrances or restrictions imposed by or through the Company. The Common Stock issuable upon conversion of the Shares has been duly and validly reserved and, when issued in compliance with the provisions of the Restated Certificate, will be duly and validly issued, fully paid and nonassessable and will be free and clear of all liens, encumbrances or restrictions imposed by or through the Company. The issuance 3 7 of the Shares (and the Common Stock issuable upon conversion of the Shares) is not subject to any preemptive rights, rights of first refusal or similar rights that have not been waived; provided, however, that the Shares (and the Common Stock issuable upon conversion of the Shares) are subject to a right of first refusal as set forth in Section 45 of the Company's Bylaws, and may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein. 2.6 CONTRACTS AND OTHER COMMITMENTS. The Company does not have any contract, agreement, lease, commitment, or proposed transaction, written or oral, absolute or contingent, other than contracts for the purchase of supplies and services that were entered into in the ordinary course of business and that do not involve more than $100,000 individually or $500,000 in the aggregate. For the purpose of this paragraph, employment and consulting contracts (including any severance arrangements), license agreements and any other agreements relating to the acquisition or disposition of the Company's technology (other than pursuant to the Company's standard form of Proprietary Information and Inventions Agreement (the "PROPRIETARY INFORMATION AGREEMENT")) shall not be considered to be contracts entered into in the ordinary course of business. The Company is not a party to or bound by any judgment, order, writ or decree restricting or affecting the development, manufacture or distribution of the Company's products or services or proposed products or services or limiting or restricting the Company's right to compete with any person in any respect. 2.7 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. The Company is not, and will not by virtue of entering into and performing the Agreements and the transactions contemplated thereunder be, in violation (with or without the passage of time or giving of notice or both) of any term of the Restated Certificate or its Bylaws or any term or provision of any material mortgage, indenture, contract, agreement, instrument, judgment or decree to which it is a party or by which it is bound, and is not, and will not by virtue of entering into and performing the Agreements and the transactions contemplated thereunder be, in violation of any material order, statute, rule or regulation applicable to the Company, other than any of the foregoing such violations that do not impair the Company's ability to enter into or perform its obligations under the Agreements or which, either individually or in the aggregate, do not have a Material Adverse Effect. Entering into and performing the Agreements and the transactions contemplated thereunder by the Company will not result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to the Company or its properties or business. 2.8 LITIGATION, ETC. There is neither pending nor, to the Company's knowledge and belief, threatened any action, suit, proceeding, investigation, governmental inquiry, or claim, or any basis therefor or threat thereof, whether or not purportedly on behalf of the Company, to which the Company is or may be named as a party or its property is or may be subject or, to the Company's knowledge, to which any officer, key employee, key 4 8 consultant, or principal shareholder of the Company is subject; and the Company has no knowledge (i) of any unasserted claim, the assertion of which is likely and which, if asserted, will seek damages, an injunction or other legal, equitable, monetary or nonmonetary relief, which claim individually or collectively with other such unasserted claims if granted would have a Material Adverse Effect, or (ii) that there exists, or there is pending or planned, any patent, trademark, tradename, invention, device, application or principle, or any statute, rule, law, regulation, standard or code which would result in a Material Adverse Effect. There is no pending or, to the Company's knowledge and belief, threatened claim or litigation against or affecting the Company contesting, or which if adversely determined might materially impair, its right to produce, manufacture, sell or use any product, process, method, substance, part or other material presently produced, manufactured, sold or used or planned to be produced, manufactured, sold or used by the Company in connection with the operations of the Company. The Company has no current plans to initiate any action, suit or proceeding. 2.9 REGISTRATION RIGHTS. Except as set forth in the Amended and Restated Investors' Rights Agreement, the Company is not under any obligation to register (as defined in the Amended and Restated Investors' Rights Agreement), and has not granted any rights to register, any of its presently outstanding securities or any of its securities that may hereafter be issued. 2.10 PERMITS. The Company has all franchises, permits, licenses, and any similar authority necessary for the conduct of its business as now being conducted by it and as proposed to be conducted, the lack of which would have a Material Adverse Effect. The Company is not in default or violation in any material respect under any of such franchises, permits, licenses, or other similar authority, and the execution and delivery of the Agreements will not result in any such default or violation, with or without the passage of time or giving of notice or both. 2.11 GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Company is required in connection with the valid execution and delivery of the Agreements, or the offer, sale or issuance of the Shares (and the Common Stock issuable upon conversion of the Shares) or the consummation of any other transaction contemplated thereby, except the filing of the Restated Certificate in the Office of the Secretary of State of the State of Delaware and the qualification (or taking such action as may be necessary to secure an exemption from qualification, if available) of the offer and sale of the Shares (and the Common Stock issuable upon conversion of the Shares) under the California Corporate Securities Law, which filing and qualification, if required, will be accomplished in a timely manner prior to or promptly upon completion of the Closing. 2.12 DISCLOSURE. The Company has provided each Purchaser with all the information reasonably available to it without undue expense that such Purchaser has requested or could reasonably be expected to be material in deciding whether to purchase 5 9 the Shares. The Agreements and the Exhibits thereto as well as any other document, certificate, schedule, financial, business or other statement furnished to such Purchaser by or on behalf of the Company in connection with the transactions contemplated hereby do not contain any untrue statement of a material fact and do not omit to state a material fact necessary in order to make the statements contained herein or therein not misleading. 2.13 OFFERING. Subject to the accuracy of the representations set forth in Section 3 hereof, the offer, sale and issuance of the Shares pursuant to this Agreement and the issuance of the Common Stock to be issued upon conversion of the Shares constitute transactions exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the "SECURITIES ACT"), and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption. 2.14 LIABILITIES. The Company has no indebtedness for borrowed money that the Company has directly or indirectly created, incurred, assumed, or guaranteed, or with respect to which the Company has otherwise become directly or indirectly liable, other than obligations not in excess of $100,000 individually or $500,000 in the aggregate. The Company has not assumed, guaranteed, endorsed or otherwise become directly or contingently liable on any indebtedness of any other person (including, without limitation, liability by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor, or otherwise to assure the creditor against loss), except for guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business. 2.15 CHANGES. Since November 30, 1996, there has not been: (A) any change in the assets, liabilities, financial condition, or operating results of the Company except changes in the ordinary course of business that have not been, in the aggregate, materially adverse; (B) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (C) any waiver or compromise by the Company of a valuable right or of a material debt owed to it; (D) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and that is not material to the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); 6 10 (E) to the best of the Company's knowledge, any material change to a material contract or arrangement by which the Company or any of its assets is bound or subject; (F) any material change in any compensation arrangement or agreement with any employee, consultant, officer, director or shareholder; (G) any sale, assignment, license or transfer of any patents, trademarks, copyrights, trade secrets, Proprietary Information (as defined herein) or other intangible assets; (H) any resignation or termination of employment of any key officer of the Company or termination of engagement of any key consultant of the Company; and the Company, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer or termination of engagement of any such consultant; (I) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company; (J) any mortgage, pledge, transfer of a security interest in, or lien created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable; (K) any loans or guarantees made by the Company to or for the benefit of any person, other than travel advances to employees and/or consultants and other advances to employees and/or consultants made in the ordinary course of its business; (L) to the best of the Company's knowledge, any other event or condition of any character that might, individually or in the aggregate, materially and adversely affect the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (M) any amount borrowed or any liability (absolute, accrued or contingent) incurred, or to which the Company has become subject, except liabilities not in excess of $50,000 individually or $100,000 in the aggregate and except current liabilities incurred and liabilities under contracts entered into in the ordinary course of business which have not been, individually or in the aggregate materially adverse; (N) any transaction except in the ordinary course of business or as otherwise contemplated hereby; or (O) any agreement or commitment by the Company to do any of the things described in this paragraph 2.15. 7 11 2.16 TITLE TO PROPERTIES AND ASSETS; LIENS, LEASES, ETC. The Company has good and marketable title to its properties and assets and has good title to all of its leasehold interests, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (i) the lien of current taxes not yet due and payable, and (ii) possible minor liens and encumbrances that do not in any case materially detract from the value of the property subject thereto or materially impair the operations of the Company and which have not arisen otherwise than in the ordinary course of business. Set forth on Exhibit B is a correct and complete list (including the amount of rents called for and a description of the leased property) of all material leases (involving more than $100,000 either individually or $500,000 in the aggregate if such leases are of a similar nature or with the same lessor) under which the Company is a lessee. The Company enjoys peaceful and undisturbed possession under all such leases, all of such leases are valid and subsisting and, except as would not result in a Material Adverse Effect, the Company and, to the Company's knowledge, each other party to such leases is not in default thereunder. 2.17 PATENTS AND TRADEMARKS. The Company has sufficient title and ownership of all patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights, trade secrets, information, proprietary rights and processes (collectively "PROPRIETARY INFORMATION"), or has, or believes to the best of its knowledge that it has the ability to acquire on commercially reasonable terms, valid licenses to such Proprietary Information (as described further on Exhibit B), as necessary for its business as now conducted and as proposed to be conducted without any conflict with or infringement of the rights of others. The Schedule of Exceptions contains a complete list of patents and pending patent applications of the Company or of which the Company is a licensee. There are no outstanding options, licenses, or agreements of any kind relating to Proprietary Information owned by the Company, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other person or entity. The Company is not aware of any impropriety with regard to the granting of any licenses of Proprietary Information to or from the Company, and no claim is pending or, to the Company's knowledge, threatened to the effect that any such Property Information owned or licensed by the Company, or which the Company otherwise has the right to use, is invalid or unenforceable by the Company (and to the Company's knowledge, there is no basis for any such claim). Neither the Company nor, to the Company's knowledge, any of its employees or consultants has received any written communications alleging, nor does the Company know of any grounds for any claims or allegations now or in the future, that the Company or its employees or consultants has violated or infringed or that the Company or its employees or consultants would, by conducting its business as proposed, violate or infringe any of the patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights or trade secrets or other proprietary rights of any other person or entity. The Company is not aware that any of its employees or consultants is obligated under any contract (including licenses, covenants, or 8 12 commitments of any nature) or other agreement, or subject to any judgment, decree, or order of any court or administrative agency, that would, in the case of employees, interfere with the use of such employee's best efforts to promote the interests of the Company or that would conflict with the Company's business as proposed to be conducted or, in the case of consultants, which would conflict with their obligations in serving as consultants to the Company. No third party, including the employers or former employers of the Company's employees and consultants, has asserted any rights or claims to the Proprietary Information or any inventions used or proposed to be used in the Company's business, and the Company does not believe that any such third party has a right to assert any such rights or claims, except to the extent that such Proprietary Information or such inventions are licensed to or from such third party. Except pursuant to the terms of the Proprietary Information Agreements, there are no agreements, understandings, instruments, or contracts to which the Company is a party or by which it is bound that involve the license of any patent, copyright, trade secret or other similar proprietary right to or from the Company. 2.18 TAX RETURNS; TAXES. The Company has accurately prepared and timely filed all federal, state and other tax returns which are required to be filed and has timely paid all taxes covered by such returns which have become due and payable. The Company has not been advised that any of its returns, federal, state or other, have been or are being audited as of the date hereof. The Company is not delinquent in taxes or assessments and has no tax deficiency proposed or assessed and has made no waiver of the statute of limitations regarding assessments or collections. All taxes, if any, imposed by law in connection with the issuance, sale and delivery of the Shares shall have been paid, and all laws imposing such taxes shall have been fully complied with, prior to the Closing. Neither the Company nor any of its present or former stockholders has ever filed an election pursuant to Section 1362 of the Internal Revenue Code of 1986, as amended (the "CODE"), that the Company be taxed as an S corporation. 2.19 EMPLOYEES. None of the Company's employees belongs to any union or collective bargaining unit. To the best of its knowledge, the Company has complied in all material respects with all applicable state and federal equal opportunity and other laws related to employment. To the best of the Company's knowledge, no employee of or consultant to the Company is or will be in violation of any judgment, decree, or order, or any term of any employment contract, patent disclosure agreement, proprietary information and inventions agreement, or any restrictive covenant, or any other common law obligation to a former employer, or any other contract or agreement relating to the relationship of any such person with the Company, or any other party, or to the use of trade secrets or proprietary information of others, because of the nature of the business conducted or to be conducted by the Company or the use by any such employee of his best efforts with respect to such business or the performance by any such consultant of his obligations to the Company. To the knowledge of the Company, no third party has claimed or has reason to claim that any employee of or consultant to the Company has disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party, or interfered or may be interfering in the employment 9 13 relationship between such third party and any of its present or former employees and, to the Company's knowledge, no such person proposes to do any of such things. The Company is not a party to or bound by any currently effective employment contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan, retirement agreement, or other employee compensation agreement, other than with respect to the Company's 1996 Stock Plan, a true and correct copy of which has been provided to each Purchaser. The Company is not aware that any officer, key employee or key consultant, or that any group of key employees or key consultants, intends to terminate their employment or consultancy with the Company, nor does the Company have a present intention to terminate the employment or engagement as a consultant of any of the foregoing. Subject to general principles related to wrongful termination of employees, the employment of each officer and employee of the Company is terminable at the will of the Company. The Company has delivered to counsel for the Purchasers a copy of each consulting agreement to which it is a party. 2.20 NO DEFAULTS. The Company has, in all material respects, performed all material obligations required to be performed by it to date and is not in default under any of the contracts, loans, notes, mortgages, indentures, licenses, security agreements, agreements, leases, documents, commitments or other arrangements to which it is a party or by which it is otherwise bound, except for such defaults which in the aggregate would not have a Material Adverse Effect, and no event or condition has occurred which, with the lapse of time or the giving of notice, or both, would constitute such a default. 2.21 INSURANCE. The Company maintains adequate insurance on its properties of a character and in such amounts and on such terms usually insured by corporations engaged in the same or a similar business against loss or damage resulting from fire or other risks insured against by such corporations, and maintains in full force and effect public liability insurance against claims for personal injury, death or property damage occurring upon, in, about or in connection with the use of any of its properties, products or services and maintains such other insurance as may be required by law or other agreement to which the Company is a party. 2.22 BROKERS OR FINDERS. The Company has not incurred, and will not incur, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with the Agreements. 2.23 ENVIRONMENTAL AND SAFETY LAWS. To the best of its knowledge, the Company is not in violation of any applicable statute, law or regulation relating to the environment or occupational health and safety, and to the best of its knowledge, no material expenditures are or will be required in order to comply with any such existing statute, law or regulation. 10 14 2.24 NO DIVIDENDS. The Company has never made any declaration, setting aside for payment or other distribution in respect of any of the Company's capital stock or any direct or indirect redemption, repurchase or other acquisition of any of such stock. 2.25 EMPLOYEE BENEFIT PLAN OBLIGATIONS. The Company does not maintain or have any obligations with respect to any employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")). The Company is not, nor was it at any time, obligated to contribute to any employee pension benefit plan which is or was a multi-employer plan within the meaning of Section 3(37) of ERISA. 2.26 QUALIFICATION AS A QUALIFIED SMALL BUSINESS. The Company is a "qualified small business," as defined in Section 1202(b) of the Internal Revenue Code (the "Code") and the Shares constitute "qualified small business stock" as defined in Section 1202(c) of the Code. The Company covenants and agrees to comply with the reporting and recordkeeping requirements of Section 1202 of the Code and any regulations promulgated thereunder and to execute and deliver to the Purchasers and the Internal Revenue Service, from time to time, such forms, documents, schedules and other instruments as may be reasonably requested thereby to cause the Shares and the shares of Common Stock issuable upon conversion of the Shares to qualify as a "qualified small business stock," as defined in Section 1202(c) of the Code. 2.27 FINANCIAL STATEMENTS. The Company has furnished to the Purchasers the unaudited balance sheet of the Company as of November 30, 1996 and the related unaudited statement of income for the period from April 1, 1996 through November 30, 1996. All such financial statements fairly present the financial position of the Company as of November 30, 1996, and the results of operations during such period. 2.28 TRANSACTIONS WITH AFFILIATES. No director or officer or, to the Company's knowledge, employee or stockholder of the Company, or, to the Company's knowledge, member of the family of any such person, or, to the Company's knowledge, any corporation, partnership, trust or other entity in which any such person, or any member of the family of any such person, has a substantial interest or is an officer, director, trustee, partner or holder of more than 5% of the outstanding capital stock thereof, is a party to any material transaction with the Company, including any contract, agreement or other arrangement providing for the employment of, furnishing of services by, rental of real or personal property from or otherwise requiring payments to any such person or firm, other than employment-at-will arrangements in the ordinary course of business. 2.29 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each of the officers of the Company, each key employee and each other employee now employed by the Company who has access to confidential information of the Company has executed the Proprietary Information Agreement substantially in the form of Exhibit E (collectively, the "PROPRIETARY INFORMATION Agreements"), and such agreements are in 11 15 full force and effect. The Company is not aware that any of such persons is in violation of any such agreement. 2.30 U.S. REAL PROPERTY HOLDING CORPORATION. The Company is not now and has never been a "United States real property holding corporation," as defined in Section 897(c)(2) of the Code and Section 1.897-2(b) of the Regulations promulgated by the Internal Revenue Service, and the Company has filed with the Internal Revenue Service all statements, if any, with its United States income tax returns which are required under Section 1.897-2(h) of such Regulations. SECTION 3 INVESTMENT REPRESENTATIONS Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as follows: 3.1 POWER AND AUTHORITY. Such Purchaser has the requisite power and authority to enter into this Agreement, to purchase the Shares hereunder, to convert the Shares into Common Stock, and to carry out and perform its obligations under the terms of this Agreement. 3.2 DUE EXECUTION. This Agreement has been duly authorized, executed and delivered by such Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of such Purchaser, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and general equity principles. 3.3 EXPERIENCE; ACCREDITED INVESTOR. Such Purchaser has, from time to time, evaluated investments in start-up companies and has, either individually or through the personal experience of one or more of its current officers or partners, experience in evaluating and investing in start-up companies. Such Purchaser is an "accredited investor" as defined in Regulation D promulgated under the Securities Act. 3.4 INVESTMENT. Such Purchaser is acquiring the Shares (and any Common Stock issuable upon conversion of the Shares) for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. Such Purchaser understands that the Shares (and any Common Stock issuable upon conversion of the Shares) to be purchased have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. 12 16 3.5 RULE 144. Such Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. Such Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than two years after a party has purchased and paid for the securities to be sold, the sale being through a "BROKER'S TRANSACTION" or in transactions directly with a "MARKET MAKER" (as provided by Rule 144(f)) and the number of shares being sold during any three-month period not exceeding specified limitations. Such Purchaser is aware that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plan to satisfy these conditions in the foreseeable future. 3.6 NO PUBLIC MARKET. Such Purchaser understands that no public market now exists for the Shares and that a public market may never exist for the Shares. 3.7 DISCLOSURE OF INFORMATION. Such Purchaser believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Shares. Such Purchaser further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares. SECTION 4 CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT CLOSING Each Purchaser's obligation to purchase the Shares at the Closing is subject to the fulfillment on or prior to the Closing of the following conditions: 4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company contained in Section 2 shall be true when made and on and as of the date of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. 4.2 COVENANTS. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing shall have been performed or complied with in all material respects. 4.3 NO MATERIAL ADVERSE CHANGE. There shall have been no material adverse change in the Company's business or financial condition or affairs between the date of this Agreement and the date of the Closing, if different. 13 17 4.4 SECURITIES LAWS. The Company shall have obtained all necessary permits and qualifications, or secured exemptions therefrom, required under the Securities Act or by any state for the offer and sale of the Shares and Common Stock issuable upon conversion of the Shares. 4.5 COMPLIANCE CERTIFICATE. The Company shall have delivered on the date of the Closing a certificate signed by the President and Director of Finance and Administration of the Company certifying that the conditions specified in Sections 4.1, 4.2, 4.3, 4.7, 4.9, 4.10, and 4.11 have been fulfilled. 4.6 OPINION OF COUNSEL. The Purchasers purchasing shares in the Closing shall have received from Cooley Godward LLP, counsel for the Company, an opinion dated as of the Closing in substantially the form attached hereto as Exhibit F. 4.7 AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT. The Company and the holders of at least sixty-six and two-thirds percent (66 2/3%) of the aggregate number of outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall have executed and delivered the Amended and Restated Investors' Rights Agreement. 4.8 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchasers' counsel, which shall have received all such counterpart original and certified or other copies of such documents as it may reasonably request. 4.9 SUPPORTING DOCUMENTS. The Purchasers and their counsel shall have received copies of the following documents: (i) (A) the Certificate of Incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Delaware and (B) a certificate of said Secretary dated as of a recent date as to the due incorporation and good standing of the Company, the payment of all excise taxes by the Company and listing all documents of the Company on file with said Secretary. (ii) a certificate of the Secretary or an Assistant Secretary of the Company dated the date of the Closing and certifying: (A) that attached thereto is a true and complete copy of the Bylaws of the Company as in effect on the date of such certification; (B) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors or the stockholders of the Company authorizing the execution, delivery and performance of the Agreements, the issuance, sale and delivery of the Shares, and the reservation, issuance and delivery of the shares of 14 18 Common Stock issuable upon conversion of the Shares, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by the Agreements; (C) that the Certificate of Incorporation has not been amended since the date of the last amendment referred to in the certificate delivered pursuant to clause (i)(B) above, except for the filing of the Restated Certificate; and (D) to the incumbency and specimen signature of each officer of the Company executing the Agreements, the stock certificates representing the Shares and any certificate or instrument furnished pursuant hereto, and a certification by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii); and (iii) such additional supporting documents and other information with respect to the operations and affairs of the Company as the Purchasers or their counsel reasonably may request. 4.10 CHARTER. The Certificate of Incorporation of the Company shall read in its entirety as set forth in Exhibit A. 4.11 FEES OF PURCHASERS' COUNSEL. The Company shall have paid in accordance with Section 6.5 the reasonable fees and disbursements of Hamada & Matsumoto in connection with this Agreement and related transactions as specified on a reasonably detailed invoice, detailing all time entries and costs, submitted to counsel to the Company a reasonable time in advance of such Closing. SECTION 5 CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING The Company's obligation to issue and sell the Shares at the Closing is subject to the fulfillment on or prior to the Closing of the following conditions: 5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Purchasers contained in Section 3 shall be true when made and on and as of the date of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. 5.2 COVENANTS. All covenants, agreements and conditions contained in this Agreement to be performed by the Purchasers on or prior to the date of the Closing shall have been performed or complied with in all respects. 15 19 5.3 AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT. The Purchasers and the holders of at least sixty-six and two-thirds percent (66 2/3%) of the aggregate number of outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall have executed and delivered the Amended and Restated Investors' Rights Agreement. 5.4 VOTING AGREEMENT. Each of the Purchasers shall have executed a counterpart signature page to the Voting Agreement pursuant to which such Purchaser agrees to be bound by the provisions of the Voting Agreement. SECTION 6 MISCELLANEOUS 6.1 GOVERNING LAW. This Agreement shall be governed by the laws of the State of California as applicable to contracts entered into and performed entirely within the State of California by residents of California. 6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto; provided, however, that the rights of the Purchasers to purchase the Shares shall not be assignable without the consent of the Company, and the Company's obligations hereunder shall not be assignable without the consent of the Purchasers. 6.3 ENTIRE AGREEMENT. This Agreement, its Exhibits, and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. 6.4 NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile or mailed by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Purchaser, to the address set forth on the Schedule of Purchasers, or at such other address as shall have been furnished to the Company in writing by such Purchaser, or (b) if to the Company, one copy to its address set forth above and addressed to the attention of the President, or at such other address or addresses as the Company shall have furnished in writing to the Purchasers, and one copy to Cooley Godward LLP, 4365 Executive Drive, Suite 1100, San Diego, CA 92121, Attn.: Thomas A. Coll, Esq. All notices and other communications pursuant to the provisions of this Section 6.4 shall be deemed delivered when mailed or sent by facsimile or delivered by hand or messenger. Notwithstanding the foregoing, any notice or communication to an address outside the United 16 20 States shall be sent by facsimile and confirmed in writing contemporaneously sent by two-day guaranteed international courier. 6.5 EXPENSES. Each party to this Agreement shall bear its own expenses and legal fees incurred by it with respect to this Agreement and all related transactions; provided, however, that the Company shall pay the reasonable fees and expenses of the Purchasers' special counsel, Hamada & Matsumoto, not to exceed $5,000, in connection with this Agreement and such transactions and any subsequent amendment, waiver, consent or enforcement thereof. 6.6 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be enforceable against the party actually executing such counterpart, and which together shall constitute one instrument. 6.7 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 without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. 6.8 SURVIVAL OF AGREEMENTS. All covenants, agreements, representations and warranties made herein or in the other Agreements, or any certificate or instrument delivered to the Purchasers pursuant to or in connection with the Agreements, shall survive the execution and delivery of the Agreements, the issuance, sale and delivery of the Shares, and the issuance and delivery of the shares of Common Stock issuable upon conversion of the Shares, and all statements contained in any certificate or other instrument delivered by the Company hereunder or thereunder or in connection herewith or therewith shall be deemed to constitute representations and warranties made by the Company. 6.9 BROKERAGE. Each party hereto will indemnify and hold harmless the others against and in respect of any claim for brokerage or other commissions relative to this Agreement or to the transactions contemplated hereby, based in any way on agreements, arrangements or understandings made or claimed to have been made by such party with any third party. 6.10 AMENDMENTS. This Agreement may not be amended or modified, and no provisions hereof may be waived, without the written consent of the Company and the holders of at least two-thirds of the shares of Common Stock issued or issuable upon conversion of the Shares. 17 21 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 18 22 The foregoing Preferred Stock Purchase Agreement is hereby executed as of the date first above written. THE COMPANY: AURORA BIOSCIENCES CORPORATION By: ------------------------------------ Title: --------------------------------- THE PURCHASERS: JAPAN ASSOCIATED FINANCE CO., LTD. By: ------------------------------------ Title: --------------------------------- JAFCO R-2 INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------------ Title: --------------------------------- JAFCO R-3 INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------------ Title: --------------------------------- 19 23 JAFCO G-6(A) INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------------ Title: --------------------------------- JAFCO G-6(B) INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------------ Title: --------------------------------- - --------------------------------------- ROGER Y. TSIEN 20 24 SCHEDULE OF PURCHASERS
AGGREGATE PURCHASE SHARES SHAREHOLDER PRICE PURCHASED - ----------------------------------- -------------------- -------------- JAPAN ASSOCIATED FINANCE CO., LTD. Tekko Bldg, 1-8-2 $399,999.60 111,111 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Fax: 81-3-5223-7562 JAFCO R-2 INVESTMENT ENTERPRISE PARTNERSHIP $434,548.80 120,708 Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Fax: 81-3-5223-7562 JAFCO R-3 INVESTMENT ENTERPRISE PARTNERSHIP $416,232.00 115,620 Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Fax: 81-3-5223-7562 JAFCO G-6(A) INVESTMENT ENTERPRISE PARTNERSHIP $374,608.80 104,058 Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Fax: 81-3-5223-7562 JAFCO G-6(B) INVESTMENT ENTERPRISE PARTNERSHIP $374,608.80 104,058 Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Fax: 81-3-5223-7562 ROGER Y. TSIEN 8535 Nottingham Place $61,131.60 16,981 La Jolla, Ca 92037 Fax: (619) 534-5270 ------------- -------- TOTAL $2,061,129.60 572,536 ============= =======
25 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 26 RESTATED CERTIFICATE OF INCORPORATION OF AURORA BIOSCIENCES CORPORATION AURORA BIOSCIENCES CORPORATION, a corporation organized and existing under the laws of the state of Delaware, hereby certifies as follows: FIRST. The name of the corporation is Aurora Biosciences Corporation. SECOND. The date of the filing of the corporation's original Certificate of Incorporation with the Secretary of State of Delaware was January 22, 1996. THIRD. This Restated Certificate of Incorporation was duly adopted by the corporation in accordance with Section 245 of the General Corporation Law of the State of Delaware. FOURTH. The Certificate of Incorporation of the corporation shall be amended and restated to read in full as follows. I. The name of this corporation is AURORA BIOSCIENCES CORPORATION. 1 27 II. The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 30 Old Rudnick Lane, City of Dover, County of Kent; and the name of the registered agent of the corporation in the State of Delaware at such address is CorpAmerica Inc. III. The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law. IV. A. CLASSES OF STOCK. This corporation is authorized to issue two classes of stock to be designated, respectively, "COMMON STOCK" and "PREFERRED STOCK." The total number of shares which the corporation is authorized to issue is seventy-five million (75,000,000) shares. Fifty million (50,000,000) shares shall be Common Stock, each having a par value of one-tenth of one cent ($0.001). Twenty-five million (25,000,000) shares shall be Preferred Stock, each having a par value of one-tenth of one cent ($0.001). Notwithstanding Section 242 of the General Corporation Law of the State of Delaware, the number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of holders of a majority of the outstanding shares of capital stock of the corporation, with each such share being entitled to such number of votes per share as is provided in this Article IV. The Preferred Stock may be issued from time to time in one or more series. Subject to compliance with applicable voting rights, if any, which may have been granted to the Preferred 2 28 Stock or any series thereof, the Board of Directors is hereby authorized, by filing a certificate pursuant to the Delaware General Corporation Law, to fix or alter from time to time the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof, including without limitation the dividend rights, dividend rate, conversion rights, voting rights and the liquidation preferences of any wholly unissued series of Preferred Stock, and to establish from time to time the number of shares constituting any such series and the designation thereof, or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. Of the Preferred Stock, ten million five hundred thousand (10,500,000) shares shall be designated "SERIES A PREFERRED STOCK," eight hundred thirty-three thousand three hundred thirty-two (833,332) shares shall be designated "SERIES B PREFERRED STOCK", eight hundred thousand (800,000) shares shall be designated "SERIES C PREFERRED STOCK" and five hundred seventy-two thousand five hundred thirty-six (572,536) shares shall be DESIGNATED "SERIES D PREFERRED STOCK." The Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock is hereinafter sometimes collectively referred to as the "DESIGNATED PREFERRED." B. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF THE SERIES A, SERIES B, SERIES C AND SERIES D PREFERRED STOCK. SECTION 1. DIVIDENDS. The holders of the Designated Preferred shall be entitled to receive dividends at the rate per annum of $0.1064 per share of Series A Preferred 3 29 Stock, $0.1440 per share of Series B Preferred Stock, $0.1600 per share of Series C Preferred Stock and $0.288 per share of Series D Preferred Stock, when, as and if declared by the Board of Directors out of any funds legally available therefor, prior and in preference to any declaration or payment of any dividend on the Common Stock of this corporation ("COMMON") payable other than in Common. Such dividends shall not be cumulative. Such dividends shall be distributed ratably among the holders of each Series of Designated Preferred based on the full dividend to which such holder is entitled. No dividends or other distributions shall be made with respect to the Common in any year, other than dividends payable solely in Common, unless and until (i) the full amount of the dividend provided for above with respect to the Designated Preferred for such year has been paid or declared and set apart for payment, and (ii) an equal dividend per share shall have been paid or declared and set apart for payment to the holders of the Designated Preferred (in addition to the dividend provided for above) for each share of Common which the holders of the Designated Preferred then have the right to acquire upon conversion of their respective shares under this Certificate. SECTION 2. LIQUIDATION PREFERENCE. A. In the event of any liquidation, dissolution or winding up of the corporation, either voluntary or involuntary, the holders of the Designated Preferred shall be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the corporation to the holders of the Common by reason of their ownership thereof: (i) the sum of $1.33 per share of Series A Preferred Stock, $1.80 per share of Series B Preferred Stock, $2.00 per share of Series C Preferred Stock and $3.60 per share of Series D Preferred Stock then held by them (such amounts per share with respect to each such Series are hereinafter referred to as the "Original Issue Price"), and (ii) an amount equal to all declared but unpaid dividends on 4 30 the Designated Preferred then held by them. If, upon the occurrence of such event, the assets and funds thus distributed among the holders of the Designated Preferred shall be insufficient to permit the payment to such holders of the full aforesaid preferential amount, then the entire assets and funds of the corporation legally available for distribution shall be distributed ratably among the holders of the Designated Preferred in proportion to the preferential amount each such holder would have been entitled to receive pursuant to this Section 2a. if such distribution had been sufficient to permit the full payment of such preferential amount. B. Upon the completion of the distribution provided for in Section 2a., all of the assets remaining in the corporation, if any, shall be distributed pro rata among the holders of the Common, based upon the number of shares of Common held by each such holder. C. For purposes of this Section 2, a merger or consolidation of this corporation with or into any other corporation or corporations where the stockholders of this corporation immediately prior to such merger or consolidation do not beneficially own more than 50% of the outstanding voting stock of the surviving entity immediately following such merger or consolidation and in which the stockholders of this corporation receive distributions in cash or in securities of another corporation as a result of such merger or consolidation, or a sale or other disposition of all or substantially all of the assets of the corporation, shall be treated as a liquidation, dissolution or winding up of the corporation. SECTION 3. CONVERSION. The holders of the Designated Preferred shall have conversion rights as follows (the "CONVERSION RIGHTS"): A. OPTIONAL CONVERSION. Each share of Designated Preferred shall be convertible at the option of the holder thereof, without payment of additional consideration, at any 5 31 time, at the office of the corporation or any transfer agent for the Designated Preferred, into one share of Common, subject to adjustment as provided in Sections 3.d. and 3.e. below. B. AUTOMATIC CONVERSION. Each share of Designated Preferred shall automatically be converted into the number of shares of Common into which such share of Designated Preferred is then convertible pursuant to Section 3a (i) in the event that the holders of not less than sixty-seven percent (67%) of the outstanding Designated Preferred consent to such conversion, or (ii) upon the closing of a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "ACT"), covering the offer and sale by the corporation of Common to the public at an aggregate offering price of not less than $10,000,000 (prior to underwriters' discounts and expenses), and at a public offering price not less than $6.00 per share, subject to adjustment for stock splits, stock dividends, reorganizations and the like with respect to the Common. C. MECHANICS OF CONVERSION. (1) No fractional shares of Common shall be issued upon conversion of the Designated Preferred. In lieu of any fractional share, the corporation shall pay cash equal to such fraction multiplied by the then current fair market value of a share of Common as determined in good faith by the Board of Directors of the corporation. Before any holder of Designated Preferred shall be entitled to convert the same into shares of Common, it shall surrender the certificate or certificates therefor, duly endorsed, at the office of the corporation or of any transfer agent for the Designated Preferred, and shall give written notice to the corporation at such office that it elects to convert the same (except that no such written notice of election to convert shall be necessary in the event of an automatic conversion pursuant to Section 3b.). The 6 32 corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Designation Preferred a certificate or certificates, registered in such names as specified by the holder, for the number of shares of Common to which such holder shall be entitled as aforesaid, and a check payable to the holder in the amount of any amounts payable for fractional shares and any declared and unpaid dividends on the converted Designated Preferred. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of the Designated Preferred to be converted, and the person or persons entitled to receive the shares of Common issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common on such date (except that in the event of an automatic conversion pursuant to Section 3b.(i), such conversion shall be deemed to have been made at the close of business on the date fixed in the vote approving such automatic conversion and in the event of automatic conversion pursuant to Section 3b.(ii), such conversion shall be deemed to have been made immediately prior to the closing of the offering referred to in Section 3b.(ii)). If the conversion is in connection with an underwritten offer of securities registered pursuant to the Act, the conversion may, at the option of any holder tendering Designated Preferred for conversion, be conditioned upon the closing with the underwriter of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common issuable upon such conversion of Designated Preferred shall not be deemed to have converted such Designated Preferred until immediately prior to the closing of such sale of securities. If such conversion is in connection with a merger, consolidation or sale of assets which would be treated as a liquidation, dissolution or winding up of the corporation in accordance with and for purposes of Section 2, the conversion may, at the option of the holder tendering Designated Preferred for conversion, be conditioned upon the consummation of such transaction, in which 7 33 event the person(s) entitled to receive the Common issuable upon such conversion of Designated Preferred shall not be deemed to have converted such Designated Preferred until immediately prior to the consummation of such transaction. D. ADJUSTMENTS FOR SUBDIVISIONS, DIVIDENDS, COMBINATIONS OR CONSOLIDATIONS OF COMMON. (1) In the event the outstanding shares of Common shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common, the number of shares of Common into which the Designated Preferred is convertible immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately decreased. (2) In the event the corporation shall declare or pay any dividend on the Common payable in Common or in the event the outstanding shares of Common shall be subdivided, by reclassification or otherwise than by payment of a dividend in Common, into a greater number of shares of Common, the number of shares of Common into which the Designated Preferred is convertible immediately prior to such dividend or subdivision shall be proportionately increased: (A) in the case of any such dividend, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend, or (B) in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective. 8 34 (3) If such record date shall have been fixed and such dividend shall not have been fully paid on the date fixed therefor, the adjustment previously made in accordance with this Subsection d. shall be canceled (to the extent such dividend was not paid) as of the close of business on the date so fixed, and thereafter the number of shares of Common into which the Designated Preferred is convertible shall be adjusted as of the time of actual payment of such dividend. E. ADJUSTMENTS FOR OTHER RECLASSIFICATIONS, DIVIDENDS AND DISTRIBUTIONS. If there occurs any capital reorganization or any reclassification of the capital stock of the corporation (other than any subdivision, dividend, combination, consolidation or other transaction provided for in Section 3d), each share of Designated Preferred shall thereafter be convertible into the same kind and amounts of securities or other assets, or both, that were issuable or distributable to the holders of shares of outstanding Common Stock of the corporation upon such reorganization or reclassification, in proportion to that number of shares of Common Stock into which such shares of Designated Preferred might have been converted immediately prior to such reorganization or reclassification; and in any such case, appropriate adjustments (as determined by the Board of Directors) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holders of Designated Preferred to the end that the provisions of this Certificate shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other assets thereafter deliverable upon the conversion of the Designated Preferred. F. NO IMPAIRMENT. The Corporation will not, by amendment of its Certificate of Incorporation, by filing a Certificate of Designation or through any reorganization, 9 35 transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of Designated Preferred against impairment. G. CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each adjustment or readjustment, pursuant to this Section 3, of the number of shares of Common into which any shares of Designated Preferred are convertible, the corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of such shares of Designated Preferred a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The corporation shall, upon the written request at any time of any holder of Designated Preferred, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the number of shares of Common into which the Designated Preferred is then convertible, and (iii) the number of shares of Common and the amount, if any, of other property which at the time would be received upon the conversion of Designated Preferred. H. NOTICES OF RECORD DATE. In the event that this Corporation shall propose at any time: 10 36 (1) to declare any dividend or distribution upon the Common, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus; (2) to offer for subscription pro rata to the holders of any class or series of its stock any additional shares of stock of any class or series or other rights; (3) to effect any reclassification or recapitalization of its Common shares outstanding involving a change in the Common shares; or (4) to merge or consolidate with or into any other corporation, or sell, lease or convey all or substantially all its property or business, or to liquidate, dissolve or wind up; then, in connection with each such event, this corporation shall send to the holders of the Designated Preferred: (A) at least 10 days' prior written notice of the date on which a record shall be taken for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common shares shall be entitled thereto) or for determining rights to vote in respect of the matters referred to in (1) and (2) above; and (B) in the case of the matters referred to in (3) and (4) above, at least 10 days' prior written notice of the date when the same shall take place (and specifying, if practicable, or estimating the date on which the holders of Common shares shall be entitled to exchange their Common shares for securities or other property deliverable upon the occurrence of such event). 11 37 (C) Each such written notice shall be given by first class mail, postage prepaid, addressed to the holders of the Designated Preferred at the address for each such holder as shown on the books of this Corporation; provided that any such notice to an address outside the United States shall be given by facsimile and confirmed in writing contemporaneously sent by two-day guaranteed international courier. I. COMMON STOCK RESERVED. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of Designated Preferred, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Designated Preferred, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then-outstanding shares of Designated Preferred, the Corporation shall take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. J. ISSUE TAX. The issuance of certificates for shares of Common upon conversion of Designated Preferred shall be made without charge to the holders thereof for any issuance tax in respect thereof, provided that the corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the holder of the Designated Preferred which is being converted. 12 38 K. CLOSING OF BOOKS. The corporation will at no time close its transfer books against the transfer of any Designated Preferred or of any shares of Common issued or issuable upon the conversion of any shares of Designated Preferred in any manner which interferes with the timely conversion of such Designated Preferred, except as may otherwise be required to comply with applicable securities laws. SECTION 4. VOTING RIGHTS. A. GENERAL. Except as otherwise required by law or this Certificate of Incorporation, (i) each share of Common issued and outstanding shall have one vote; (ii) each share of Designated Preferred issued and outstanding shall have a number of votes equal to the number of Common shares (including fractions of a share) into which such share of Designated Preferred is then convertible as adjusted from time to time pursuant to Section 3 hereof; and (iii) the Common and the Designated Preferred and any other class and series of Stock of the corporation shall vote together as a single class. B. BOARD SIZE. The corporation shall not, without the written consent or affirmative vote of the holders of at least sixty-seven percent (67%) of the then outstanding shares of Designated Preferred, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, increase the maximum number of directors constituting the Board of Directors to a number of excess of nine (9). C. BOARD SEATS. The holders of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (collectively, the "VOTING PREFERRED"), voting together as a separate class, shall be entitled to elect five (5) directors of the corporation. The 13 39 holders of Common, voting as a separate class, shall be entitled to elect two (2) directors of the corporation. The holders of Series D Preferred Stock shall not be entitled to vote for the election of directors of the corporation. At any meeting (or in a written consent in lieu thereof) held for the purpose of electing directors, the presence in person or by proxy (or the written consent) of the holders of a majority of the shares of Voting Preferred then outstanding shall constitute a quorum of the Voting Preferred for the election of directors to be elected solely by the holders of the Voting Preferred. A vacancy in any directorship elected by the holders of the Voting Preferred shall be filled only by vote or written consent of the holders of the Voting Preferred and a vacancy in any directorship elected by the holders of Common shall be filled only by vote or written consent of the holders of Common. A director elected by the holders of Voting Preferred may be removed without cause only by vote of holders of a majority of the outstanding shares of Voting Preferred and a director elected by the holders of Common may be removed without cause only by vote of holders of a majority of the outstanding shares of Common. SECTION 5. COVENANTS. A. In addition to any other rights provided by law, this corporation shall not, without first obtaining the affirmative vote or written consent of the holders of not less than sixty-seven percent (67%) of all outstanding shares of Designated Preferred, voting together as a class: (1) make any amendment to the corporation's Certificate of Incorporation or Bylaws that would materially and adversely alter or change the rights, preferences, or privileges of the outstanding Designated Preferred; 14 40 (2) increase or decrease the authorized number of shares of Preferred Stock or any Series thereof; (3) create (by reclassification, Certificate of Designation or otherwise) any new class or series of shares of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with respect to voting rights, liquidation preferences, or dividends; increase the authorized amount of any class or series of shares of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with respect to voting rights, liquidation preferences or dividends; or create or authorize (by reclassification, Certificate of Designation or otherwise) any obligation or security convertible into shares of any class or series of stock having a preference over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with respect to voting rights, liquidation preferences or dividends; or (4) take any action that results in any liquidation, dissolution or winding up of the corporation or any merger, consolidation, or other corporate reorganization, or effect any transaction in which all or substantially all of the assets of the corporation are sold or otherwise disposed of. B. In addition to any other rights provided by law, this corporation shall not, without first obtaining the affirmative vote or written consent of the holders of a majority of the outstanding shares of a particular Series of Designated Preferred, take any action that would (i) materially and adversely alter or change the rights, preferences, or privileges of such Series in a manner different than the other Series, (ii) increase or decrease the authorized number of shares 15 41 of such Series or (iii) amend the terms of another Series of Designated Preferred which, when established, was pari pasu with such Series with respect to voting rights, liquidation preferences or dividends, if such amendment results in the other Series having a preference over such Series with respect to voting rights, liquidation preferences or dividends. SECTION 6. STATUS OF CONVERTED STOCK. In case any shares of Designated Preferred shall be converted pursuant to Section 3 hereof, the shares so converted shall resume the status of authorized but unissued and undesignated shares of Preferred Stock. SECTION 7. RESIDUAL RIGHTS. All rights accruing to the outstanding shares of this corporation not expressly provided for to the contrary herein shall be vested in the Common. For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that: A. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. Subject to Section 4b of Article IV, the number of directors which shall constitute the whole Board of Directors shall be fixed by the Board of Directors in the manner provided in the Bylaws, provided that such number shall not be less than the number of directors provided for in Section 4 of Article IV. B. Subject to Section 5 of Article IV, the Board of Directors may from time to time make, amend, supplement or repeal the Bylaws; provided, however, that (subject to such Section 5) the stockholders may change or repeal any Bylaw adopted by the Board of Directors by 16 42 the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the corporation (considered for this purpose as one class); and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with any amendment or supplement thus adopted by the stockholders. C. The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. D. Following the effectiveness of the registration of any class of securities of the corporation pursuant to the requirements of the Securities Exchange Act of 1934, as amended, no action shall be taken by the stockholders of the corporation except at an annual or special meeting of stockholders called in accordance with the Bylaws and no action shall be taken by the stockholders by written consent. E. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation. VI. A director of the corporation shall, to the full extent not prohibited by the Delaware General Corporation Law, as the same exists or may hereafter be amended, not be liable to the corporation or its stockholders for monetary damages for breach of his fiduciary duty as a director. VII. 17 43 The corporation is to have perpetual existence. VIII. Subject to the provisions of this Certificate of Incorporation, the corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this right. IN WITNESS WHEREOF, said Aurora Biosciences Corporation has caused this Certificate to be signed by its President and Chief Executive Officer, Timothy J. Rink, and attested to by its Secretary, Deborah J. Tower, this th day of December, 1996. ----------------------------------------- TIMOTHY J. RINK PRESIDENT AND CHIEF EXECUTIVE OFFICER ATTEST: - ------------------------------------- DEBORAH J. TOWER SECRETARY 18 44 EXHIBIT B SCHEDULE OF EXCEPTIONS 45 EXHIBIT C AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT 46 AURORA BIOSCIENCES CORPORATION AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT DECEMBER 27, 1996 47 AURORA BIOSCIENCES CORPORATION AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT This Investors' Rights Agreement (the "AGREEMENT") is entered into as of December 27, 1996 among (i) AURORA BIOSCIENCES CORPORATION, a Delaware corporation (the "COMPANY"), with its principal office located at 11149 North Torrey Pines Road, La Jolla, CA 92037, (ii) holders of the Company's Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (such holders are listed on Exhibit A attached hereto and are referred to herein as the "PREVIOUS INVESTORS"), and (iii) the purchasers listed on the Schedule of Purchasers attached to that certain Series D Preferred Stock Purchase Agreement of even date herewith (THE "PURCHASE AGREEMENT") and Exhibit B hereto (the "PURCHASERS"). Each of the Previous Investors and the Purchasers are referred to herein as a "STOCKHOLDER;" collectively they are referred to as the "STOCKHOLDERS." This Agreement supersedes, amends and restates in its entirety that certain Investors Rights Agreement dated as of March 8, 1996, by and among the Company and the Previous Investors, as amended by that certain Amendment Agreement dated April 9, 1996 as further amended by that certain Second Amendment Agreement dated April 29, 1996 (collectively, the "FORMER INVESTORS RIGHTS AGREEMENT"). RECITALS A. The Company proposes to issue and sell up to an aggregate of 572,536 shares of its Series D Preferred Stock pursuant to the Purchase Agreement (the "FINANCING"). B. Each of the Previous Investors desire to waive his, her or its right to receive notice of the Financing and to purchase a certain portion of the Series D Preferred Stock to be sold by the Company in the Financing as set forth in Section 3 of the Former Investors Rights Agreement. C. As a condition of entering into the Purchase Agreement, the Purchasers have requested that the Company extend to them registration rights, information rights and other rights as set forth herein. D. In order to induce the Purchasers to enter into the Purchase Agreement and to induce the Purchasers to invest funds in the Company, the Company and the Previous Investors have agreed to enter into this Agreement in order to amend and restate the Former Investors Rights Agreement so that this Agreement is the sole agreement with respect to the obligations and rights contained herein. E. Section 4.7 of the Former Investors Rights Agreement provides that such agreement may be amended with the written consent of the Company and the holders of at least two-thirds (2/3) of the shares which are then Registrable Securities (as defined in the Former 1 48 Investors Rights Agreement) and that such amendment shall be binding upon the Stockholders (as defined in the Former Investors Rights Agreement), each of their transferees and the Company. NOW THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties hereby agree that the Former Investors Rights Agreement is amended and restated in its entirety to read as set forth above and as follows (unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned in the Purchase Agreement): AGREEMENT 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS 1.1. RESTRICTIONS ON TRANSFERABILITY. Neither the shares of the Company's Series A, Series B, Series C or Series D Preferred Stock issued to the Stockholders pursuant to the Purchase Agreement or pursuant to that certain Preferred Stock Purchase Agreement dated March 8, 1996, as amended by that certain Amendment Agreement dated April 9, 1996, as further amended by that certain Second Amendment Agreement dated April 29, 1996 (the "DESIGNATED PREFERRED") nor the Registrable Securities (as defined below) shall be transferable except upon compliance with (i) the Right of First Refusal set forth in Section 45 of the Company's Bylaws, (ii) the conditions specified in this Agreement, which conditions are intended to insure compliance with the provisions of the Securities Act (as defined below), and (iii) if such shares are Restricted Securities (as defined below), upon such other terms as are in the opinion of counsel to the Company necessary to comply with the provisions of the Securities Act; provided, however that such restrictions shall not apply to transfers under the circumstances described in Sections 1.5, 1.6 or 1.7 and that the requirements of clause (iii) shall not apply to a transfer without consideration to one or more partners or shareholders of a Stockholder (e.g., an in-kind distribution pursuant to the terms of the Stockholder's governing documents). Except for transfers made pursuant to Rule 144 of the Securities Act, each Stockholder will cause any proposed transferee of Designated Preferred or Registrable Securities held by such Stockholder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement and it will be a condition precedent to the effectiveness of any such transfer that such Stockholder shall have secured a written agreement of such transferee in form and substance satisfactory to the Company to that effect, if so requested by the Company; provided, however, that this sentence shall not apply with respect to any proposed transferee in whose hands the transferred shares will not be Restricted Securities. 1.2. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: "COMMISSION" shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. 2 49 "COMMON STOCK" shall mean the Common Stock, $.001 par value, of the Company, as constituted on the date of this Agreement. "FORM S-3" shall mean Form S-3 under the Securities Act (as defined below) as in effect on the date of this Agreement, or any substantially similar, equivalent or successor form under the Securities Act. "HOLDER" shall mean each holder of Registrable Securities. "INITIAL PUBLIC OFFERING" shall mean the Company's initial firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "ACT"), covering the offer and sale by the Company of Common Stock to the public at an aggregate offering price of not less than $10,000,000 (prior to underwriters' discounts and expenses), and at a public offering price not less than $6.00 per share, subject to adjustment for stock splits, stock dividends, reorganizations and the like with respect to such shares. "REGISTRABLE SECURITIES" means shares of the Company's Common Stock (i) issued or issuable upon conversion of Designated Preferred which have not been sold to the public, and (ii) issued in respect of the shares of Common Stock referred to under the foregoing clause (i) by reason of any stock split, stock dividend, recapitalization or similar event which have not been sold to the public. The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in complying with Sections 1.5, 1.6 and 1.7 hereof other than Selling Expenses, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel, blue sky fees and expenses (including counsel fees), and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company). "RESTRICTED SECURITIES" shall mean the securities of the Company required to bear the legends set forth in Section 1.3 hereof or legends substantially similar thereto. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "SELLING EXPENSES" shall mean all underwriting discounts and selling commissions applicable to the applicable sale. 1.3. RESTRICTIVE LEGEND(S). Each certificate representing the shares of Designated Preferred and Registrable Securities shall (unless otherwise permitted by the provisions of Section 1.4 below) be stamped or otherwise imprinted with legends in the following form (in addition to any other legend required by the Bylaws of the Company, or under applicable California or other state securities laws): 3 50 (A) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION. (B) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION'S STOCKHOLDERS, AS PROVIDED IN THE BYLAWS OF THE CORPORATION. 1.4. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate representing the Restricted Securities, by acceptance thereof, agrees to comply, in addition to the requirements of Section 45 of the Company's Bylaws, in all respects with the provisions of this Section 1.4. Prior to any proposed transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, the holder thereof shall give written notice to the Company of such holder's intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, and shall be accompanied (except in transactions in compliance with Rule 144 and except for transfers without consideration to one or more partners or shareholders of the holder (e.g., an in-kind distribution pursuant to the terms of the holder's governing documents)) by either (i) a written opinion of legal counsel who shall be reasonably satisfactory to the Company (it being agreed that Testa Hurwitz & Thibeault is satisfactory) addressed to the Company and reasonably satisfactory in form and substance to the Company's counsel, to the effect that the proposed transfer of the Restricted Securities may be effected without registration under the Securities Act, or (ii) a "no action" letter from the Commission, a copy of any holder's request (together with all supplements or amendments thereto) for which shall have been provided to the Company, at or prior to the time of first delivery to the Commission's staff, to the effect that the transfer of such securities without registration will not result in a recommendation by such staff that action be taken with respect thereto, whereupon the holder of such Restricted Securities shall be entitled to transfer such Restricted Securities in accordance with the terms of the notice delivered by the holder to the Company. Each certificate evidencing the Restricted Securities transferred as provided for above shall bear the appropriate restrictive legends set forth in Section 1.3 above, except that such certificate shall not bear the restrictive legend set forth in Section 1.3(a) above if, in the opinion of counsel for the Company or counsel for such holder, such legend is not required in order to establish compliance with any provisions of the Securities Act and except that such certificate shall not bear the restrictive legend set forth in Section 1.3(b) above if the right of first refusal set forth in the Company's Bylaws is no longer applicable. 1.5. DEMAND REGISTRATION RIGHTS. (A) Commencing on the earlier of (i) five (5) years after the date hereof, or (ii) one (1) year after the Company's initial public offering of securities pursuant to a registration statement 4 51 under the Securities Act, if the Company shall receive a written request (specifying that it is being made pursuant to this Section 1.5) from the Holders of at least fifty percent (50%) of the Registrable Securities that the Company file a registration statement or similar document under the Securities Act covering the registration of the greater of (i) 20% of the shares which are then Registrable Securities, or (ii) Registrable Securities the expected aggregate offering price to the public of which is at least $5,000,000, then the Company shall promptly notify all other Holders of such request and shall use its best efforts to promptly and expeditiously cause all Registrable Securities that such Holders have requested, within 15 days after receipt of such written notice, to be registered in accordance with this Section 1.5 to be registered under the Securities Act. The Holders making the written request pursuant to this Section 1.5 shall be referred to hereinafter as the "INITIATING HOLDERS". Notwithstanding the foregoing: (i) the Company shall not be obligated to effect a registration pursuant to this Section 1.5 during the period starting with the date one hundred twenty (120) days prior to the Company's estimated date of filing of, and ending on a date one hundred twenty (120) days following the effective date of, a registration statement pertaining to an underwritten public offering of the Company's securities, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and that the Company's estimate of the date of filing such registration statement is made in good faith; or (ii) if the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company's obligation to use its best efforts to file a registration statement shall be deferred for a period not to exceed six (6) months; provided, however, that the Company shall not obtain such a deferral more than once in any 12-month period. The Company shall not be obligated to effect more than two (2) registrations pursuant to this Section 1.5 for which holders of Registrable Securities are the Initiating Holders; provided, however that such obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities requested by Holders to be registered pursuant to such demand shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto. (B) If the Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of an underwriting, they shall so advise the Company as part of their demand made pursuant to this Section 1.5, and the Company shall include such information in the notice referred to in Section 1.5(a). In such event, the right of any Holder to registration pursuant to this Section 1.5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall, together with all Holders proposing to distribute their securities through such underwriting, enter into an underwriting agreement in customary form with the underwriter or underwriters selected by a majority of interest of the Initiating Holders and reasonably satisfactory to the Company. Notwithstanding any other provision of this Section 1.5, if the underwriter shall advise the Company in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation of the number of shares to be underwritten, then the 5 52 Company shall so advise all Holders of Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be reduced and shall be allocated pro rata among such Holders thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the underwriter, and the Initiating Holders. The Registrable Securities so withdrawn shall also be withdrawn from registration. If by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the underwriter limitation in this Section 1.5. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account (or for the account of other securityholders) in such registration if the underwriter so agrees and if the number of Registrable Securities that would otherwise have been included in such registration and underwriting will not thereby be limited and if such inclusion will not adversely affect the marketing of the Registrable Securities. Except for registration statements on Form S-4, S-8 or any successor thereto, the Company will not file with the Commission any other registration statement with respect to its Common Stock, whether for its own account or that of other stockholders, from the date of receipt of a request for registration from Initiating Holders pursuant to this Section 1.5 until the earlier of (a) one hundred twenty (120) days from the receipt of the initial request pursuant to Section 1.5(a) or (b) the completion of the period of distribution of the registration contemplated thereby. Although the Company shall have no obligation to register any Designated Preferred, in any underwritten public offering contemplated by this Section 1.5 or Section 1.6 or 1.7, holders of Designated Preferred shall be entitled to sell shares of Designated Preferred representing Registrable Securities to be included in such underwriting to the underwriters for conversion and sale of the Registrable Securities issued upon conversion thereof. 1.6. COMPANY REGISTRATION. (A) If, at any time or from time to time, the Company shall determine to register any of its securities, either for its own account or the account of a security holder or holders exercising their respective demand registration rights, other than a registration (A) relating solely to employee benefit plans on Form S-8 or similar forms which may be promulgated in the future, (B) a registration on Form S-4 or similar forms which may be promulgated in the future relating solely to a Securities and Exchange Commission Rule 145 or similar transaction or (C) in connection with the Company's Initial Public Offering, the Company will (i) promptly give to each Holder written notice thereof and (ii) include in such registration (and any related qualification under Blue Sky laws or other compliance), 6 53 and in any underwriting involved therein, all Registrable Securities of such Holders as specified in a written request or requests made within 15 days after receipt of such written notice from the Company. (B) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so indicate in the notice given pursuant to Section 1.6(a). In such event the right of any Holder to registration pursuant to this Section 1.6 shall be conditioned upon such Holder's agreeing to participate in such underwriting and in the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company or by other holders exercising any demand registration rights to the extent such holders are not excluded from the registration pursuant to the Underwriter Cutback described below. Notwithstanding any other provision of this Section 1.6, if the underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all Registrable Securities or other securities from such registration and underwriting (hereinafter an "UNDERWRITER CUTBACK"). In the event of an Underwriter Cutback, the Company shall so advise all Holders and the other holders distributing their securities through such underwriting, and the Underwriter Cutback shall be implemented on the basis that the holders who are not Holders shall be cut back before any cutback of Holders. If the limitation determined by the underwriter requires an Underwriter Cutback with respect to the Registrable Securities to be included, such Underwriter Cutback shall be in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. 1.7. FORM S-3 REGISTRATION RIGHTS. After the Initial Public Offering, the Company shall use its best efforts to qualify for registration on Form S-3, and to that end the Company shall use its best efforts to comply with the reporting requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), within twelve (12) months following the effective date of the first registration of any securities of the Company for an underwritten registered public offering. After the Company has qualified for the use of Form S-3, and subject to the provisions of Section 1.14, each Holder shall have the right to request registrations on Form S-3 (such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended method of disposition of such shares by each such Holder), subject only to the following limitations: (A) The Company shall not be obligated to cause a registration on Form S-3 to become effective prior to one hundred twenty (120) days following the effective date of a Company initiated registration (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145); (B) The Company shall not be required to effect a registration pursuant to this Section 1.7 unless the Holder or Holders requesting such a registration propose to dispose of shares of Registrable Securities having an aggregate disposition price (before deduction of underwriting discounts and expenses of sale) of at least $1,000,000 (unless the value of all of the Registrable 7 54 Securities held by all Holders is less than $1,000,000, in which case the Holders shall be entitled to a final demand registration pursuant to this Section 1.7 for an amount equal to the value of the Registrable Securities held by all Holders at the time of such demand; provided that for purposes of the foregoing, "value" shall be determined based on the average of the last sale prices of the Company's Common Stock on the principal exchange or market on which such Common Stock is traded during the five (5) trading days immediately preceding such demand); (C) The Company shall not be required to effect a registration pursuant to this Section 1.7 if the Company shall furnish to the requesting Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company or its stockholders for the registration statement to be filed at the date filing would be required, in which case the Company shall have an additional period of not more than one hundred twenty (120) days within which to file such registration statement; provided however, that the Company shall not use this right more than once in any twelve- month period; (D) The Company shall not be required to maintain and keep any such registration on Form S-3 effective for a period exceeding one hundred twenty (120) days from the effective date thereof; and (E) The Company shall not be obligated to cause a registration on Form S-3 if in the prior twelve-month period the Company has caused a registration on Form S-3 to become effective as the result of a request pursuant to this Section 1.7. The Company shall give notice to all Holders of the receipt of a request for registration pursuant to this Section 1.7 and shall use its best efforts to cause all Registrable Securities that such Holders have requested, within 15 days after receipt of such written notice, be registered in accordance with this Section 1.7 to be registered under the Securities Act. Subject to the foregoing, the Company will use its best efforts to effect promptly any registration pursuant to this Section 1.7. The provisions of Section 1.5(b) shall apply to any registration effected pursuant to this Section 1.7 1.8. EXPENSES OF REGISTRATION. All Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Sections 1.5, 1.6 and 1.7 (exclusive of Selling Expenses but inclusive of the reasonable fees and expenses of one special counsel to the selling Holders) shall be borne by the Company. Notwithstanding anything to the contrary herein, the Company shall not be required to pay for any expenses of any registration proceeding under Section 1.5 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to have been registered, unless such Holders agree to forfeit their right to a demand registration pursuant to Section 1.5 (in which event such right shall be forfeited by all Holders). In the absence of such an agreement to forfeit, the Holders of Registrable Securities to have been registered shall bear all such expenses pro rata on the basis of the Registrable Securities to have been registered. Notwithstanding the foregoing, however, if at the time of the withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request, of which the Company had knowledge at the time of the request, then the Holders shall not be required to pay any of said expenses and shall retain their rights pursuant to Section 1.5. 8 55 1.9. REGISTRATION PROCEDURES. In the case of each registration, qualification or compliance effected by the Company pursuant to this Section 1, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will: (A) Keep such registration, qualification or compliance effective for a period of one hundred twenty (120) days or until the Holder or Holders have completed the distribution described in the registration statement relating thereto, whichever first occurs; (B) Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement; (C) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them; (D) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders or the underwriters, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; (E) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with (and provide customary due diligence materials and information to) the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; (F) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and (G) use its best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed. Notwithstanding any provision to the contrary in this Agreement, the Company shall not be required in connection with any registration pursuant to Sections 1.5, 1.6 or 1.7 to qualify shares in any state or jurisdiction which requires the Company to qualify to do business or to file a general consent to service of process. 9 56 1.10. INDEMNIFICATION. (A) The Company will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Section 1, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or regulation promulgated under the Securities Act applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will promptly reimburse each such Holder, each of its officers and directors and partners, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred (as and when incurred) in connection with investigating, preparing to defend or defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder or underwriter and stated to be specifically for use therein. (B) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, severally and not jointly indemnify the Company, each of its directors and officers, each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and partners and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof) including any of the foregoing incurred in settlement of any litigation commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or regulation promulgated under the Securities Act applicable to the Company in connection with any such registration, qualification, or compliance, and will promptly reimburse the Company, such Holders, such directors, officers, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred (as and when incurred) in connection with investigation, preparing to defend or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged 10 57 omission) is made in such registration statement, prospectus, offering circular or other document or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder and stated to be specifically for use therein; provided, however, that the obligations of each such Holder hereunder shall be limited to an amount equal to the proceeds to each such Holder of Registrable Securities sold in such registration as contemplated herein. (C) Each party entitled to indemnification under this Section 1.10 (the "INDEMNIFIED PARTY") shall give notice to the party required to provide indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at its own expense; provided, however, that, if the defendants in any such claim or litigation include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1 unless such failure resulted in actual detriment to the Indemnifying Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party a release from all liability in respect of such claim or litigation. (D) If the indemnification provided for in this Section 1.10 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission, provided, however, that in no case will any seller of Registrable Securities be required to contribute any amount in excess of the amount of proceeds to such seller of Registrable Securities sold pursuant to the registration statement with respect to which the contribution obligation arose. 11 58 (E) The obligations of the Company and Holders under this Section 1.10 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 1 and otherwise. 1.11. INFORMATION BY HOLDER. The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Section 1. 1.12. RULE 144 REPORTING. With a view to making available the benefits of certain rules and regulations of the Commission which may at any time permit the sale of the Restricted Securities to the public without registration, after such time as a public market exists for the Common Stock of the Company, the Company agrees to: (A) Use its best efforts to make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act at all times after the effective date of the first registration under the Securities Act filed by the Company for an offering of its securities to the general public; (B) Use its best efforts to then file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act at any time after it has become subject to such reporting requirements; (C) So long as a Stockholder owns any Restricted Securities, to furnish to the Stockholder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 (at any time after 90 days after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public) and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as a Stockholder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Stockholder to sell any such securities without registration. 1.13. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to register securities granted under Sections 1.5, 1.6 and 1.7 may be assigned or otherwise conveyed to a transferee or assignee of Registrable Securities, who shall be considered a "Holder," and the transferred shares shall be considered "Registrable Securities," for purposes of this Section 1, provided that (i) said transferee acquires Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction, and (ii) the Company is given written notice by such Holder at the time of or within a reasonable time (but not more than 30 days) after said transfer, stating the name and address of said transferee or assignee and identifying the securities with respect to which such registration rights are being assigned, subject to said transferee's agreement to be bound by and comply with the provisions of this Section 1. 12 59 1.14. TERMINATION OF REGISTRATION RIGHTS. The registration rights granted pursuant to this Section 1 shall terminate (i) upon the seventh anniversary of the effective date of the Initial Public Offering or (ii) if earlier, as to any individual Holder, at such time after the Company's Initial Public Offering as all Registrable Securities held by such Holder can be sold within any three-month period without compliance with the registration requirements of the Securities Act pursuant to Rule 144 (including Rule 144(k)) promulgated thereunder. 1.15. "MARKET STAND OFF" AGREEMENT. Each Holder hereby agrees that it shall not, to the extent requested by the Company and the underwriters managing any underwritten offering of the Company's Common Stock (or other securities), sell or otherwise transfer or dispose of (other than to those who agree to be similarly bound) any Registrable Securities or any other securities of the Company during the one hundred eighty (180) day period following the effective date of a registration statement of the Company filed in connection with the Company's Initial Public Offering. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities and other securities of the Holders (and the shares or securities of every other person subject to the foregoing restriction) until the end of such one hundred eighty (180) day period. 1.16. OTHER REGISTRATION RIGHTS. The Company shall not grant to any third party any registration rights more favorable than or inconsistent with any of those contained herein, so long as any of the registration rights under this Agreement remains in effect. 1.17. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often as, there is any change in the Common Stock or the Designated Preferred by way of a stock split, stock dividend, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby shall continue with respect to the Common Stock or the Designated Preferred as so changed. 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS 2.1. FINANCIAL INFORMATION. Subject to Section 2.16, the Company will furnish the following reports to the Stockholders for so long as the Stockholders are Holders of Registrable Securities: (A) As soon as practicable after the end of each fiscal year (other than the fiscal year ended March 31, 1996), and in any event within 90 days thereafter, audited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year, and consolidated statements of income, stockholders' equity and cash flows of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company; and (B) As soon as practicable after the end of each fiscal quarter, and in any event within 45 days thereafter, unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such quarter, and unaudited consolidated statements of income, stockholders' 13 60 equity and cash flows of the Company and its subsidiaries, if any, for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, prepared in accordance with generally accepted accounting principles (but subject to normal year-end audit adjustments) and certified by the chief financial officer. 2.2. ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights granted pursuant to Section 2.1 and Section 2.3 may be assigned by the Stockholders (or by any permitted transferee of any such rights) so long as (i) the Company is given notice of any such assignment within a reasonable time after the date the same is effected, (ii) the transferee shall have acquired Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction, and (iii) the transferee is not engaged in a business that is competitive with the Company. 2.3. INSPECTION AND VISITATION RIGHTS. Each Stockholder, so long as such Stockholder holds Registrable Securities, shall have the right to visit and inspect the Company's principal place of business, subject to such limitations and restrictions as the President of the Company in good faith determines to be necessary for the protection of the Company's Proprietary Information. 2.4. RESERVE FOR CONVERSION SHARES. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, for the purpose of effecting the conversion of the Designated Preferred and otherwise complying with the terms of this Agreement, such number of its duly authorized shares of Common Stock as shall be sufficient to effect the conversion of the Designated Preferred from time to time outstanding or otherwise to comply with the terms of this Agreement. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of the Designated Preferred or otherwise to comply with the terms of this Agreement, the Company will forthwith take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. The Company will obtain any authorization, consent, approval or other action by or make any filing with any court or administrative body that may be required under applicable state securities laws in connection with the issuance of shares of Common Stock upon conversion of the Designated Preferred. 2.5. PROPERTIES, BUSINESS, INSURANCE. The Company shall maintain and cause each of its subsidiaries to maintain as to their respective properties and business, with financially sound and reputable insurers, insurance against such casualties and contingencies and of such types and in such amounts as is customary for companies similarly situated, which insurance shall be deemed by the Company to be sufficient. 2.6. RESTRICTIVE AGREEMENTS PROHIBITED. Neither the Company nor any of its subsidiaries shall become a party to any agreement which by its terms restricts the Company's performance of this Agreement, the Management Rights Agreements, the Voting Agreements or the Restated Certificate. 2.7. TRANSACTIONS WITH AFFILIATES. Except for transactions contemplated by the Agreements or as otherwise approved by the Board of Directors, neither the Company nor any of its subsidiaries shall enter into any material transaction with any director, officer, employee or holder of more than 5% of the outstanding capital stock of any class or series of capital stock of the Company or any of its subsidiaries, or to the Company's knowledge any member of the family 14 61 of any such person, any corporation, partnership, trust or other entity in which any such person, or member of the family of any such person, is a director, officer, trustee, partner or holder of more than 5% of the outstanding capital stock thereof, except for transactions on customary terms related to such person's employment. 2.8. EXPENSES OF DIRECTORS. The Company shall promptly reimburse in full, each director of the Company who is not an employee of the Company for all of his reasonable out-of-pocket expenses incurred in attending each meeting of the Board of Directors of the Company or any Committee thereof. 2.9. BYLAWS. The Company shall at all times cause its Bylaws to provide that (a) any three directors shall have the right to call a meeting of the Board of Directors and (b) the number of directors fixed in accordance therewith shall in no event conflict with any of the terms or provisions of the Designated Preferred as set forth in the Restated Certificate. The Company shall at all times maintain provisions in its Bylaws and/or Certificate of Incorporation indemnifying all directors against liability and absolving all directors from liability to the Company and its stockholders to the maximum extent permitted under the laws of the State of Delaware. 2.10. PERFORMANCE OF CONTRACTS. The Company shall not amend, modify, terminate, waive or otherwise alter, in whole or in part, any of the Proprietary Information Agreements or the provisions contained in the Employment Amendment without the approval of the Company's Board of Directors. 2.11. PROPRIETARY INFORMATION AGREEMENTS. The Company shall use its best efforts to obtain, and shall cause its subsidiaries to use their best efforts to obtain, a Proprietary Information Agreement in substantially the form of Exhibit E to the Purchase Agreement from all future officers, key employees and other employees who will have access to confidential information of the Company or any of its subsidiaries, upon their employment or engagement by the Company or any of its subsidiaries. The Company shall use its reasonable best efforts to cause any consultant with whom the Company contracts to agree to maintain the confidentiality of the Company's confidential or Proprietary information, and to assign to the Company any proprietary rights arising from work performed by the consultant for the Company. 2.12. COMPLIANCE WITH LAWS. The Company shall comply, and cause each subsidiary to comply, with all applicable laws, rules, regulations and orders, noncompliance with which could materially adversely affect its business or condition, financial or otherwise. 2.13. KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall keep, and cause each subsidiary to keep, adequate records and books of account, in which complete entries will be made in accordance with United States generally accepted accounting principles ("GAAP") consistently applied, reflecting financial transactions of the Company and each subsidiary in accordance with GAAP. 2.14. U.S. REAL PROPERTY INTEREST STATEMENT. The Company shall provide prompt written notice to each Stockholder following any "determination date" (as defined in Treasury Regulation Section 1.897-2(c)(i)) on which the Company becomes a United States real property holding corporation. In addition, upon a written request by any Stockholder, the Company shall provide such 15 62 Stockholder with a written statement informing the Stockholder whether such Stockholder's interest in the Company constitutes a U.S. real property interest. The Company's determination shall comply with the requirements of Treasury Regulation Section 1.897-2(h)(1) or any successor regulation, and the Company shall provide timely notice to the Internal Revenue Service, in accordance with and to the extent required by Treasury Regulation Section 1.897-2(h)(2) or any successor regulation, that such statement has been made. The Company's written statement to any Stockholder shall be delivered to such Stockholder within ten (10) days of such Stockholder's written request therefor. In addition, upon request by any foreign Stockholder but subject to the succeeding sentence, the Company shall provide along with such statement either or both of the following documents: (i) an affidavit in conformance with the requirements of Section 1445(b)(3) of the Code and the regulations thereunder or (ii) a notarized statement, executed by an officer having actual knowledge of the facts, that the shares of Company stock held by such Stockholder are of a class that is regularly traded on an established securities market, within the meaning of Section 1445(b)(6) of the Code and the regulations thereunder. If the Company is unable to provide either of the documents described in (i) or (ii) above upon request, it shall promptly, and in any event within such ten (10) day period, notify such Stockholder in writing of the reason for such inability. Finally, upon the request of a foreign Stockholder and without regard to whether either document described in (i) or (ii) above has been requested, the Company shall reasonably cooperate with the efforts of such foreign Stockholder to obtain a "qualifying statement" within the meaning of Section 1445(b)(4) of the Code and the regulations thereunder or such other documents as would excuse a transferee of a foreign Stockholder's interest from withholding of income tax imposed pursuant to Section 897(a) of the Code. 2.15. RULE 144A INFORMATION. The Company shall, at all times during which it is not subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, provide in writing, upon the written request of any Stockholder or a prospective buyer of Registrable Securities (including Designated Preferred before conversion into Registrable Securities) from any Stockholder, all information required by Rule 144A(d)(4)(i) of the General Regulations promulgated by the Commission under the Securities Act ("RULE 144A INFORMATION"). The Company's obligations under this Section 2.15 shall at all times be contingent upon the relevant Stockholder's obtaining from the prospective buyer of such Registrable Securities a written agreement to take all reasonable precautions to safeguard the Rule 144A Information from disclosure to anyone other than a person who will assist such buyer in evaluating the purchase of such Registrable Securities. 2.16. TERMINATION OF COVENANTS. The covenants set forth in Section 2.1, Sections 2.3 through 2.13 and Section 2.15 shall terminate and be of no further force or effect upon the earlier of (i) the closing of the Initial Public Offering, or (ii) the date on which none of the Registrable Securities (including shares of Designated Preferred prior to conversion into Common Stock) is outstanding. The Covenants set forth in Section 2.14 shall terminate five (5) years after the closing of the Initial Public Offering. 2.17. CONFIDENTIAL INFORMATION, ETC. Each Holder agrees that (i) all information received by it pursuant to this Section 2 which the Company designates as or promptly confirms in writing to be "Confidential" or the like, and (ii) any other information relating to the Company's technology, processes or formulas that is disclosed by the Company to any Holder in writing and is marked "Confidential" or the like, shall be considered confidential information. Each Holder further agrees that 16 63 it shall hold all such confidential information in confidence and shall not, without the Company's prior express written consent, disclose any such confidential information to any third party other than its counsel, accountants, employees and other professional advisors, representatives and agents, all of whom shall have a need to know such information and shall be bound by the provisions of this Section 2.17, nor shall such Holder, without the Company's prior express written consent, use such confidential information for any purpose other than evaluation of such Holder's investment in the Company; provided, however, that the foregoing obligation to hold in confidence and not to disclose confidential information shall not apply to any such information that (a) was known to the public or the Holder or its representatives prior to disclosure by the Company, (b) becomes known to the public through no fault of such Holder, (c) is disclosed to such Holder on a non-confidential basis by a third party having a legal right to make such disclosure, (d) is independently developed by such Holder, or (e) is required to be disclosed as a matter of law or pursuant to court order; and provided further that the foregoing obligation to hold in confidence and not to disclose confidential information shall not prohibit such Holder from disclosing to its partners or shareholders financial and other information described in clause (i) of this Section 2.17 which is of a type customarily provided by such Holder to such partners or shareholders in the ordinary course or from disclosing to a bona-fide prospective transferee of its securities of the Company such financial and other information described in such clause (i) which is reasonably necessary to provide such transferee with adequate disclosure of material information. 3. RIGHTS OF FIRST REFUSAL 3.1. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES. (A) The Company hereby grants to each Stockholder the right of first refusal to purchase its Pro Rata Share (defined below) of all (or any part) of New Securities (defined below) that the Company may from time to time propose to sell and issue. Stockholder's "PRO RATA SHARE," for purposes of this Section 3, is the ratio of the number of shares of Common Stock (assuming conversion of all shares of Designated Preferred) then held by such Stockholder to the total number of shares of Common Stock then outstanding (assuming conversion of all shares of Designated Preferred). This right of first refusal shall be subject to the following provisions: (B) "NEW SECURITIES" shall mean any Common Stock or Preferred Stock of the Company, whether now authorized or not, and rights, options, or warrants to purchase said Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible into or exchangeable for said Common Stock or Preferred Stock; provided, however, that "NEW SECURITIES" does not include (i) the Designated Preferred; (ii) securities issuable upon conversion of or with respect to the Designated Preferred; (iii) shares of the Company's Common Stock (or related options) issued to officers, directors, employees of and/or consultants to the Company pursuant to plans or agreements as approved by the Company's Board of Directors; (iv) shares of the Company's Common Stock or Preferred Stock issued to holders of the Designated Preferred in connection with any stock split, stock dividend, or recapitalization by the Company; (v) securities issued in connection with any equipment leasing, technology licensing, corporate partnering, strategic alliance, acquisition, merger, purchase of assets or similar transaction as approved by the Company's Board of Directors; 17 64 (vi) shares of Common Stock issued to holders of Common Stock in connection with a stock split or stock dividend with respect to the Common Stock; and (vii) shares issued in the Initial Public Offering. (C) In the event that the Company proposes to undertake an issuance of New Securities, it shall give the Stockholders written notice of its intention, describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. The Stockholders shall have twenty (20) days from the date of receipt of any such notice to agree to purchase for cash some or all of its Pro Rata Share of such New Securities for the price and upon the general terms, including deferred payment, if any, specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. (D) In the event that any Stockholder (a "NON-EXERCISING STOCKHOLDER") fails to exercise in full the right of first refusal within said twenty (20) day period, notice shall promptly be given by the Company to those Stockholders who have exercised the right of first refusal in full. Such Stockholders shall have the right for an additional ten (10) days to elect by notice to the Company to purchase any or all of the New Securities which the Non-exercising Stockholders were entitled to purchase but elected not to, with such right of over-subscription to be allocated among such Stockholders in accordance with their respective Pro Rata Shares or as they may otherwise agree. After the aggregate thirty (30) day period during which Stockholders may exercise their first refusal right, the Company shall have one hundred twenty (120) days thereafter to sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within one hundred twenty (120) days from the date of said agreement) the New Securities respecting which the Stockholder's rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company's notice. In the event the Company has not sold the New Securities within said one hundred twenty (120) day period (or sold and issued New Securities in accordance with the foregoing agreement within one hundred twenty (120) days from the date of said agreement), the Company shall not thereafter issue or sell any New Securities, without first offering such securities to the Stockholders in the manner provided above. (E) The right of first refusal granted under this Section 3.1 shall not apply to and shall expire upon the closing of the Company's Initial Public Offering. (F) The rights granted pursuant to this Section 3.1 may be assigned by the Stockholder (or by any permitted transferee of any such rights) so long as (i) the Company is given notice of any such assignment within a reasonable time after the date the same is effected and (ii) the transferee shall have acquired Registrable Securities (including shares of Designated Preferred prior to conversion into Registrable Securities) in a private transaction. 18 65 4. MISCELLANEOUS 4.1. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California as applicable to contracts entered into and performed entirely within the State of California by California residents. 4.2. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 4.3. ENTIRE AGREEMENT. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. 4.4. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile or by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Stockholder, to such Stockholder's address set forth in the Purchase Agreement or to such other address as such Stockholder shall have furnished to the Company in writing, (b) if to any other holder of Registrable Securities, at such address as such holder shall have furnished the Company in writing, or (c) if to the Company, to its address set forth above and addressed to the attention of the President or at such other address as the Company shall have furnished to the Stockholders. All notices and other communications pursuant to the provisions of this Section 4.4 shall be deemed delivered when mailed or sent by facsimile. Notwithstanding the foregoing, any notice or communication to an address outside the United States shall be sent by facsimile and confirmed in writing contemporaneously sent by two day guaranteed international courier. 4.5. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be enforceable against the party actually executing such counterpart, and which together shall constitute one instrument. 4.6. 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 without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. 4.7. APPROVAL OF AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) with the written consent of (i) the Company and (ii) the holders of at least two-thirds (2/3) of the shares which are then Registrable Securities. Any amendment, termination or waiver effected in accordance with this section shall be binding upon the Stockholders, each of their transferees and the Company. The Stockholders acknowledge that by the operation of this Section the holders of two-thirds (2/3) of the outstanding Registrable Securities as aforesaid may have the right and power to diminish or eliminate all rights of such Stockholder under this Agreement. 19 66 The foregoing Amended and Restated Investors Rights Agreement is hereby executed as of the date first above written. THE COMPANY: AURORA BIOSCIENCES CORPORATION By: __________________________ Title: __________________________ THE PURCHASERS: JAPAN ASSOCIATED FINANCE CO., LTD. JAFCO G-6(A) INVESTMENT ENTERPRISE PARTNERSHIP By: __________________________ By: __________________________________ Title: __________________________ Title:__________________________________ JAFCO R-2 INVESTMENT JAFCO G-6(B) INVESTMENT ENTERPRISE PARTNERSHIP ENTERPRISE PARTNERSHIP By: __________________________ By: __________________________________ Title: __________________________ Title:__________________________________ JAFCO R-3 INVESTMENT ENTERPRISE PARTNERSHIP By: __________________________ ________________________________________ ROGER Y. TSIEN Title: __________________________ 20 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 67 THE PREVIOUS INVESTORS: AVALON MEDICAL PARTNERS, L.P. By: __________________________ Title: __________________________ AVALON BIOVENTURES II, L.P. By: __________________________ Title: __________________________ KINGSBURY CAPITAL PARTNERS, L.P. II By: Kingsbury Associates, L.P. By: __________________________ Title: General Partner ABINGWORTH BIOVENTURES SICAV By: __________________________ Title: __________________________ 21 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 68 NEW ENTERPRISES ASSOCIATES VI, LIMITED PARTNERSHIP By: NEA Partners VI, Limited Partnership, its General Partner By: __________________________ Title: General Partner NEA VENTURES 1996, L.P. By: __________________________ Title: Authorized Signatory DP III ASSOCIATES, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: ___________________________ General Partner DOMAIN PARTNERS III, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: ___________________________ General Partner BIOTECHNOLOGY INVESTMENTS LIMITED By: Old Court Limited By: ___________________________ Attorney - in - Fact 22 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 69 PACKARD INSTRUMENT COMPANY, INC. By: __________________________ Title: __________________________ SEQUANA THERAPEUTICS, INC. By: __________________________ Title: __________________________ GC&H INVESTMENTS By: __________________________ Title: __________________________ - --------------------------------- KEVIN J. KINSELLA - --------------------------------- ROGER Y. TSIEN - --------------------------------- THERESA E. GLOBE 23 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 70 - --------------------------------- CHARLES S. ZUKER - --------------------------------- MICHAEL G. ROSENFELD - --------------------------------- JOHN A. PORCO, JR. - --------------------------------- LUBERT STRYER - --------------------------------- ANDREA S. STRYER - --------------------------------- WALTER LUETOLF FOR ADRIAN J.R. LANGINGER - --------------------------------- NORMAND F. SMITH - --------------------------------- HUGH Y. RIENHOFF, JR. - --------------------------------- JANICE THOMPSON 24 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 71 THE GREENE FAMILY TRUST By:______________________________ HOWARD E. GREENE, JR., TRUSTEE By:______________________________ ARLINE GREENE, TRUSTEE - --------------------------------- TIMOTHY J. RINK HAMBRECHT & QUIST GROUP By:______________________________ Dennis J. Purcell Title:___________________________ 25 AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 72 EXHIBIT A PREVIOUS INVESTORS Avalon Medical Partners, L.P. Avalon Bioventures II, L.P. Kingsbury Capital Partners, L.P. II Abingworth Bioventures SICAV New Enterprises Associates VI, Limited partnership NEA Ventures 1996, L.P. DP III Associates, L.P. Domain Partners III, L.P. Biotechnology Investments Limited Packard Instrument Company, Inc. Sequana Therapeutics, Inc. GC&H Investments Kevin J. Kinsella Roger Y. Tsien Theresa E. Globe Charles S. Zuker Michael G. Rosenfeld John A. Porco, Jr. Lubert Stryer Andrea S. Stryer Walter Luetolf for Adrian J.R. Langinger Normand F. Smith Hugh Y. Rienhoff, Jr. Janice Thompson The Greene Family Trust Timothy J. Rink Hambrecht & Quist Group AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 73 EXHIBIT B PURCHASERS Japan Associated Finance Co., Ltd. JAFCO R-2 Investment Enterprise Partnership JAFCO R-3 Investment Enterprise Partnership JAFCO G-6(A) Investment Enterprise Partnership JAFCO G-6(B) Investment Enterprise Partnership Roger Y. Tsien AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT 74 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.............................1 1.1. Restrictions on Transferability...................................1 1.2. Certain Definitions...............................................1 1.3. Restrictive Legend(s).............................................2 1.4. Notice of Proposed Transfers......................................3 1.5. Demand Registration Rights........................................4 1.6. Company Registration..............................................6 1.7. Form S 3 Registration Rights......................................6 1.8. Expenses of Registration..........................................8 1.9. Registration Procedures...........................................8 1.10. Indemnification..................................................9 1.11. Information by Holder...........................................11 1.12. Rule 144 Reporting..............................................11 1.13. Transfer of Registration Rights.................................12 1.14. Termination of Registration Rights..............................12 1.15. "Market Stand Off" Agreement....................................12 1.16. Other Registration Rights.......................................12 1.17. Changes in Common Stock or Preferred Stock......................13 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS....................13 2.1. Financial Information............................................13 2.2. Assignment of Rights to Financial Information....................13 2.3. Inspection and Visitation Rights.................................13 2.4. Reserve for Conversion Shares....................................13 2.5. Properties, Business, Insurance..................................14 2.6. Restrictive Agreements Prohibited................................14 2.7. Transactions with Affiliates.....................................14 2.8. Expenses of Directors............................................14 2.9. Bylaws...........................................................14 2.10. Performance of Contracts........................................15 2.11. Proprietary Information Agreements..............................15 2.12. Compliance with Laws............................................15
i 75 2.13. Keeping of Records and Books of Account.........................15 2.14. U.S. Real Property Interest Statement...........................15 2.15. Rule 144A Information...........................................16 2.16. Termination of Covenants........................................16 2.17. Confidential Information, etc...................................16 3. RIGHTS OF FIRST REFUSAL..................................................17 3.1. Right of First Refusal on Company Issuances......................17 4. MISCELLANEOUS............................................................18 4.1. Governing Law....................................................18 4.2. Successors and Assigns...........................................18 4.3. Entire Agreement.................................................18 4.4. Notices, etc.....................................................18 4.5. Counterparts.....................................................19 4.6. Severability.....................................................19 4.7. Approval of Amendments and Waivers...............................19
ii 76 EXHIBIT D VOTING AGREEMENT 77 COUNTERPART SIGNATURE PAGE TO AURORA BIOSCIENCES CORPORATION VOTING AGREEMENT The undersigned hereby agrees to be bound by the terms and conditions contained in the Voting Agreement dated as of March 8, 1996, by and among Aurora Biosciences Corporation, a Delaware corporation, and the other individuals and entities listed in the signature pages thereto (the "Voting Agreement"). Upon the execution of this counterpart signature page, the undersigned shall be deemed a "Stockholder" for all purposes under the Voting Agreement. JAPAN ASSOCIATED FINANCE CO., LTD. By: ------------------------------- Title ------------------------------- Address: Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Facsimile: 81-3-5223-7562 78 COUNTERPART SIGNATURE PAGE TO AURORA BIOSCIENCES CORPORATION VOTING AGREEMENT The undersigned hereby agrees to be bound by the terms and conditions contained in the Voting Agreement dated as of March 8, 1996, by and among Aurora Biosciences Corporation, a Delaware corporation, and the other individuals and entities listed in the signature pages thereto (the "Voting Agreement"). Upon the execution of this counterpart signature page, the undersigned shall be deemed a "Stockholder" for all purposes under the Voting Agreement. JAFCO R-2 INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------- Title ------------------------------- Address: Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Facsimile: 81-3-5223-7562 79 COUNTERPART SIGNATURE PAGE TO AURORA BIOSCIENCES CORPORATION VOTING AGREEMENT The undersigned hereby agrees to be bound by the terms and conditions contained in the Voting Agreement dated as of March 8, 1996, by and among Aurora Biosciences Corporation, a Delaware corporation, and the other individuals and entities listed in the signature pages thereto (the "Voting Agreement"). Upon the execution of this counterpart signature page, the undersigned shall be deemed a "Stockholder" for all purposes under the Voting Agreement. JAFCO R-3 INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------- Title ------------------------------- Address: Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Facsimile: 81-3-5223-7562 80 COUNTERPART SIGNATURE PAGE TO AURORA BIOSCIENCES CORPORATION VOTING AGREEMENT The undersigned hereby agrees to be bound by the terms and conditions contained in the Voting Agreement dated as of March 8, 1996, by and among Aurora Biosciences Corporation, a Delaware corporation, and the other individuals and entities listed in the signature pages thereto (the "Voting Agreement"). Upon the execution of this counterpart signature page, the undersigned shall be deemed a "Stockholder" for all purposes under the Voting Agreement. JAFCO G-6(A) INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------- Title ------------------------------- Address: Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Facsimile: 81-3-5223-7562 81 COUNTERPART SIGNATURE PAGE TO AURORA BIOSCIENCES CORPORATION VOTING AGREEMENT The undersigned hereby agrees to be bound by the terms and conditions contained in the Voting Agreement dated as of March 8, 1996, by and among Aurora Biosciences Corporation, a Delaware corporation, and the other individuals and entities listed in the signature pages thereto (the "Voting Agreement"). Upon the execution of this counterpart signature page, the undersigned shall be deemed a "Stockholder" for all purposes under the Voting Agreement. JAFCO G-6(B) INVESTMENT ENTERPRISE PARTNERSHIP By: ------------------------------- Title ------------------------------- Address: Tekko Bldg, 1-8-2 Marunouchi, Chiyoda-ku Tokyo, Japan 100 Facsimile: 81-3-5223-7562 82 COUNTERPART SIGNATURE PAGE TO AURORA BIOSCIENCES CORPORATION VOTING AGREEMENT The undersigned hereby agrees to be bound by the terms and conditions contained in the Voting Agreement dated as of March 8, 1996, by and among Aurora Biosciences Corporation, a Delaware corporation, and the other individuals and entities listed in the signature pages thereto (the "Voting Agreement"). Upon the execution of this counterpart signature page, the undersigned shall be deemed a "Stockholder" for all purposes under the Voting Agreement. - ------------------------------------ Roger Y. Tsien Address: 8535 Nottingham Place La Jolla, Ca 92037 Facsimile: (619) 534-5270 83 EXHIBIT E FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT 84 EXHIBIT F FORM OF LEGAL OPINION OF COMPANY COUNSEL 85 [LETTERHEAD] December 27, 1996 To the Purchasers of Aurora Biosciences Corporation Series D Preferred Stock listed on Schedule A attached hereto: We have acted as counsel for Aurora Biosciences Corporation, a Delaware corporation (the "Company"), in connection with the issuance and sale of 572,536 shares of the Company's Series D Preferred Stock (the "Shares") to the Purchasers listed in the Schedule of Purchasers attached to the Series D Preferred Stock Purchase Agreement dated as of December 27, 1996 (the "Agreement"). We are rendering this opinion pursuant to Section 4.6 of the Agreement. Except as otherwise defined herein, capitalized terms used but not defined herein have the respective meanings given to them in the Agreement. In connection with this opinion, we have examined and relied upon the representations and warranties as to factual matters contained in and made pursuant to the Agreement by the various parties and originals or copies certified to our satisfaction, of such records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. Where we render an opinion "to the best of our knowledge" or concerning an item "known to us" or our opinion otherwise refers to our knowledge, it is based solely upon (i) an inquiry of attorneys within this firm who perform legal services for the Company, (ii) receipt of a certificate executed by an officer of the Company covering such matters, and (iii) such other investigation, if any, that we specifically set forth herein. In rendering this opinion, we have assumed: the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents (except the due authorization, execution and delivery by the Company of the Agreement and the Amended and Restated Investors' Rights Agreement (together, the "Agreements")), where authorization, execution and delivery are prerequisites to the effectiveness of such documents. We have also assumed: that all individuals executing and delivering documents had the legal capacity to so execute and deliver; that you have received all documents you were to receive under the Agreements; that the Agreements are obligations binding upon you; if you are a corporation or other entity, that you have filed any required California franchise or income tax returns and have paid any required California franchise or income taxes; and that there are no extrinsic agreements or understandings among the parties to the Agreements that would modify or interpret the terms of the Agreements or the respective rights or obligations of the parties thereunder. Our opinion is expressed only with respect to the federal laws of the United States of America, the General Corporation Law of the State of Delaware, and the laws of the State of California. We express no opinion as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that the laws of any jurisdiction other than those identified above are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof. With regard to our opinion in paragraph 3 below, we have examined and relied upon a certificate executed by an officer of the Company, to the effect that the consideration for all outstanding shares of capital stock of the Company was received by the Company in accordance with the provisions of the applicable Board of Directors resolutions and any plan or agreement relating to the issuance of such shares, and we have undertaken no independent verification with respect thereto. 86 The Purchasers of Series D Preferred Stock December 27, 1996 Page Two On the basis of the foregoing, in reliance thereon and with the foregoing qualifications, we are of the opinion that: 1. The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware. 2. The Agreements have been duly and validly authorized, executed and delivered by the Company and constitute valid and binding agreements of the Company enforceable against the Company in accordance with their terms, except as rights to indemnity under section 1.10 of the Amended and Restated Investors' Rights Agreement may be limited by applicable laws and except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors' rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. 3. The Company's authorized capital stock consists of (a) fifty million (50,000,000) shares of Common Stock, par value $.001 per share and (b) twenty-five million (25,000,000) shares of Preferred Stock, par value $.001 per share, of which ten million five hundred thousand (10,500,000) shares have been designated Series A Preferred Stock, eight hundred thirty-three thousand three hundred thirty-two (833,332) shares have been designated Series B Preferred Stock, eight hundred thousand (800,000) shares have been designated Series C Preferred Stock and five hundred seventy-two thousand five hundred thirty-six (572,536) shares have been designated Series D Preferred Stock. Immediately prior to the Closing, 3,574,450 shares of Common Stock, 10,239,115 shares of Series A Preferred Stock, 833,332 shares of Series B Preferred Stock and 750,000 shares of Series C Preferred Stock were issued and outstanding. Immediately prior to the Closing, no shares of Series D Preferred Stock were outstanding. The outstanding shares of Common Stock and Preferred Stock have been duly authorized and validly issued and are fully paid and nonassessable. The rights, preferences and privileges of the Shares are as stated in the Restated Certificate. The Shares have been duly authorized, and upon issuance and delivery against payment therefor in accordance with the terms of the Agreement, the Shares will be validly issued, outstanding, fully paid and nonassessable. The shares of Common Stock issuable upon conversion of the Shares have been duly authorized, and upon issuance and delivery upon conversion of the Shares in accordance with the terms thereof, will be validly issued, outstanding, fully paid and nonassessable. To the best of our knowledge, except as set forth in the Agreement or Exhibit B thereto, there are no options, warrants, conversion privileges, preemptive rights or other rights presently outstanding to purchase any of the authorized but unissued capital stock of the Company, other than the conversion privileges of the Preferred Stock, rights created in connection with the transactions contemplated by the Agreement, and 1,000,000 shares reserved for issuance under the Company's 1996 Stock Plan. 4. The execution and delivery of the Agreements by the Company do not violate any provision of the Company's Certificate of Incorporation or Bylaws. 5. To the best of our knowledge, there is no action, proceeding or investigation pending or overtly threatened against the Company before any court or administrative agency that questions the validity of the Agreements or might result, either individually or in the aggregate, in any material adverse change in the assets, financial condition, or operations of the Company. 6. All consents, approvals, authorizations, or orders of, and filings, registrations, and qualifications with any regulatory authority or governmental body in the United States required for the consummation by the Company of the transactions contemplated by the Agreements, have been 87 The Purchasers of Series D Preferred Stock December 27, 1996 Page Three made or obtained, except (a) for the filing of a Notice of Transaction Pursuant To Section 25102(f) of the California Corporate Securities Law of 1968, and (b) for the filing of a Form D pursuant to Securities and Exchange Commission Regulation D. This opinion is intended solely for your benefit and is not to be made available to or be relied upon by any other person, firm, or entity without our prior written consent. Very truly yours, Cooley Godward LLP By:________________________________________________ Thomas A. Coll TAC:mpc 63000 v2/SD 1CM002!.DOC EX-10.13 21 EXHIBIT 10.13 1 EXHIBIT 10.13 Aurora Biosciences Corporation AMENDMENT NO. 1 TO SUBLEASE This AMENDMENT NO. 1 TO SUBLEASE is made and entered into as of the 31st day of August, 1996, by and between TORREY PINES SCIENCE CENTER LIMITED PARTNERSHIP, a Delaware limited partnership ("Sublessor") and AURORA BIOSCIENCES CORPORATION, a Delaware corporation ("Sublessee"); W I T N E S S E T H; That WHEREAS, Sublessee and Sublessor are parties to a certain Sublease dated May 29, 1996 (the "Initial Sublease") concerning the premises described therein (the "Initial Premises"); and WHEREAS, Sublessor is also a party to a Sublease dated June 26, 1996 (the "Initial Sequana Sublease") with Sequana Therapeutics, Inc. ("Sequana"); and WHEREAS, Sublessee wishes to utilize a portion of the premises covered by the Initial Sequana Sublease, and Sequana agrees to permit such use; and WHEREAS, both the Initial Sublease and the Initial Sequana Sublease shall be modified to accommodate such use of space; NOW, THEREFORE, in consideration of the premises, the mutual covenants, the mutual benefits hereof and other good and valuable consideration, receipt whereof is hereby acknowledged do hereby agree as follows: 1. Premises (See Paragraph 4 of Initial Sublease). After the Effective Date, the term Subleased Premises shall be those premises situated in the City of San Diego, County of San Diego, State of California in the building commonly known as 11149 North Torrey Pines Road (the "Building"), consisting of 21,437 square feet located on the second floor, the utility room of 343 square feet on the first floor and the library of 465 square feet (the "Library"), all as more particularly shown on Exhibit A annexed hereto. The Library has been added to the initial subleased premises as defined in the Initial Sublease. 2. Rent (See Paragraph 3.3 of Initial Sublease). After the Effective Date, the Basic Rent shall be as follows: 9/1/96 to 6/30/97 $55,612.50 ($2.50 per square foot) per month NNN 7/1/97 to 6/30/98 $57,169.65 ($2.57 per square foot) per month NNN 7/1/98 to 6/30/99 $58,949.25 ($2.65 per square foot) per month NNN 7/1/99 to 10/15/99 $60,728.85 ($2.73 per square foot) per month NNN. 3. Pro Rata Share (See Paragraph 3.3 of Initial Sublease). After the Effective Date, Sublessee's pro rata share for purposes of calculating Additional Rent shall be 51.88% of the Building and 18.56% of the Project. 2 4. Rentable Area (See Paragraph 3.3 of Initial Sublease). After the Effective Date, the Rentable Area of the Subleased Premises shall be 22,245 square feet, and shall not be subject to remeasurement. 5. Effective Date; Obligations to Sequana This Amendment shall be effective as of October 1, 1996 (the "Effective Date"). Any use of the Library prior to that date shall be resolved between Sublessee and Sequana, Sublessor being released from all responsibility with respect thereto and Sublessee agreeing to indemnify, defend and hold Sublessor harmless with respect thereto. 6. Continuing Validity of Initial Sublease. In all respects, except as expressly modified by this Amendment No. 1, the Initial Sublease shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused their respective, duly authorized officers or agents to execute this Agreement. SUBLESSOR: SUBLESSEE: TORREY PINES SCIENCE CENTER AURORA BIOSCIENCES CORPORATION, LIMITED PARTNERSHIP a Delaware corporation By: Slough-Torrey Pines Science Center, Inc., General Partner By: [SIG] --------------------------------- Its: Chairman, CEO and President ----------------------------- By: [SIG] -------------------------------- Its: Vice President ---------------------------- CONSENT BY MASTER LESSOR The undersigned Master Lessor under the Lease referred to in the Initial Sublease hereby consents to this Amendment No. 1 and the effectuation of the transactions contemplated hereby. MASTER LESSOR: TORREY PINES CENTRE ASSOCIATES a California Limited Partnership By: Nexus Properties, Inc. a California corporation Its General Partner By: MICHAEL J. REIDY ------------------------- Michael J. Reidy, CEO 2 3 EXHIBIT A FLOOR PLAN 4 EXHIBIT A FLOOR PLAN 5 SUBLEASE 1. PARTIES. THIS SUBLEASE (the "Sublease") is entered into as of May 29, 1996, by and between TORREY PINES SCIENCE CENTER LIMITED PARTNERSHIP, a Delaware limited partnership ("Sublessor"), and AURORA BIOSCIENCES CORPORATION, a Delaware corporation ("Sublessee"), as a Sublease under the Lease dated March 1, 1989 (as amended or otherwise modified from time to time, the "Lease"), entered into by NEXUS CENTRE/TORREY PINES ("Master Lessor"), as Landlord, and Sublessor, as Tenant [by assignment from Gemini Science. Inc. ("Gemini")]. Capitalized terms used herein and not otherwise defined herein shall have the meanings as provided in the Lease. A copy of said Lease is attached hereto, marked Exhibit A. 2. MASTER LEASE. This Sublease shall be subject to and subordinate to all of the terms and provisions of the Lease, and Master Lessor shall have all rights in respect of the Lease and the Subleased Premises (defined below) as set forth therein. Sublessee and Sublessor agree not to commit or permit to be committed any act or omission which shall violate any terms or conditions of the Lease. Except for payments of rent under Article 5 of the Lease (which payments shall be made by Sublessor), and, except as otherwise provided in Section 3 hereof, Sublessee hereby assumes and agrees to perform for Sublessor's benefit, during the term of this Sublease, all of Sublessor's obligations under the Lease insofar as they relate to the Subleased Premises (hereinafter the "Assumed Obligations"), which accrue during the term of this Sublease. 3. PROVISIONS CONSTITUTING SUBLEASE. 3.1 Except as otherwise provided in this Sublease (including, but not limited to, Paragraph 11), all of the terms and provisions of the Lease are incorporated into and made a part of this Sublease, and the rights and obligations of the parties under the Lease are hereby imposed upon the parties hereto with respect to the Subleased Premises, the Sublessor being substituted for the Landlord in the Lease, the Sublessee being substituted for the Tenant in the Lease and the Subleased Premises being substituted for the Premises in the Lease. It is expressly agreed that the provisions hereof do not release Master Lessor from any of its obligations under the Lease. 3.2 Notwithstanding the foregoing: (a) The following Paragraphs of the Lease are not incorporated herein: 1, 2, 3, 4, 5, 6, 7.3(a), 8, 11, 12.1, 24.10, 31, 42, 43 and 44. (b) Pursuant to Paragraph 41.7 of the Lease, certain testing is to be effected at commencement and termination thereof, with the tenant obligated to effect remediation of contamination which occurred by reason of its use. Certain tests (the "Gemini Tests") are being effected in conjunction with Gemini's relinquishment of the entire premises subject to the Lease 1 6 as of the commencement date hereof, including the Subleased Premises; for purposes hereof, the condition of the Subleased Premises as of the commencement date hereof shall be that established by the Gemini Tests, modified only to the extent of any subsequent documented remediation. The testing to be performed at the expiration or termination of the Sublease shall be substantially the same as the Gemini Tests. (c) In the event of the termination, without fault of Sublessor, of Sublessor's interest as Tenant under the Lease prior to the expiration of this Sublease, then this Sublease shall terminate coincidentally therewith without any liability to Sublessor. To the extent that the Lease grants Sublessor any discretionary right to terminate the Lease, whether due to casualty, condemnation, or otherwise, Sublessor shall not exercise such right during the term of this Sublease without the consent of Sublessee; provided, however, that Sublessor shall be free to exercise any such right if Sublessee is in default of any provision hereof. Furthermore, Sublessor shall not otherwise negotiate any termination or other modification of the Lease which has an adverse effect on Sublessee without the consent of Sublessee. (d) Sublessee shall indemnify, defend, protect, and hold Sublessor harmless from and against all actions, claims, demands, costs, liabilities, losses, reasonable attorneys' fees, damages, penalties, and expenses (collectively "Claims") which may be brought or made against Sublessor or which Sublessor may pay or incur to the extent caused by (i) a breach of this Sublease by Sublessee (including, but not limited to, amounts due Master Lessor and damages under the Lease), (ii) any violation of law by Sublessee or its employees, agents, contractors or invitees ("Agents") relating to the use or occupancy of the Subleased Premises, (iii) the negligence or willful misconduct of Sublessee or its Agents, or (iv) any acts or omissions of Sublessee. Sublessor shall indemnify, defend, protect, and hold Sublessee harmless from and against all actions, claims which may be brought or made against Sublessee or which Sublessee may pay or incur to the extent caused by (i) a breach of this Sublease or the Lease by Sublessor, or (ii) the negligence or willful misconduct of Sublessor or its Agents, Sublessee and Sublessor shall promptly deliver to the other party copies of all notices with reference to the Subleased Premises. 3.3 For the purposes of incorporating the terms and provisions of the Lease into this Sublease, the Lease is hereby amended as follows (references are to Sections of the Lease): Section Comments 5.4 and 7.3(a) To the extent that charges for items included as Additional Rent have been assessed with respect to the entire Building or Project, Sublessee's pro-rata portion of such charges shall be calculated as 50.80% of the Building and 18.17% of the Project. 8.1 and 2.1.3 The "Rentable Area" of the Subleased Premises is 21,780 square feet, and shall not be subject to remeasurement. 2 7 10.2 The reference in Paragraph 10.2 of the Lease to Paragraph 2.1.9 of the Lease shall, instead, be a reference to Paragraph 8 of this Sublease. 10.8 Sublessee shall have the right to install a sign on the face of the Building at Sublessee's sole cost and expense, as approved by Master Lessor and the City of San Diego, and shall be allocated 14% of the middle portion of the monument sign. 15.2 Sublessee shall have the non-exclusive use of 77 of the parking spaces serving the Building. 21 All insurance required to be, or actually, carried by Sublessee shall also protect Master Lessor and Sublessor, including same as additional, named or defined insureds. All waivers of subrogation, waivers or releases of liability and indemnifications provided by Sublessee and Master Lessor set forth in either the Lease or this Sublease shall inure to the benefit of all of the other parties hereto. 21.3 Insurance coverage of Sublessee shall be $10,000,000. Master Lessor, Sublessor and Gemini shall be named as additional insureds on the liability insurance and any other insurance required to be carried under the Lease; additionally, Sublessor and Gemini shall be additional insureds under, and have the benefit of any waivers of subrogation of, any insurance required to be, or actually, carried by Master Lessor pursuant to the Lease. All references to the Work Letter shall be deleted. 4. PREMISES. 4.1 Sublessor hereby leases to Sublessee and Sublessee hereby leases from said Sublessor, the following described premises (the "Subleased Premises") situated in the City of San Diego, County of San Diego, State of California: approximately 21,437 square feet located on the second floor and the Utility Room of approximately 343 square feet on the first floor of the building commonly known as 11149 North Torrey Pines Road (the "Building"), all as more particularly shown in Exhibit B hereto. Said Utility Room and the equipment which it contains (including steam generating and air filtration equipment) services all of Sublessor's premises in the Building; Sublessee's use of the Utility Room and equipment therein is non-exclusive and subject to the reasonable use by Sublessor and other sublessees of Sublessor. 4.2 Sublessor shall, in common with all tenants of the Project, on a non-exclusive basis, have reasonable access to, and the right to reasonable use of, the common loading and on the first floor of the Building, all subject to the requirements, rights, rules and regulations of Master Lessor. 3 8 5. TERM. 5.1 The term of this Sublease shall be for a period commencing on July 1, 1996 and ending on October 15, 1999, unless sooner terminated or as extended pursuant to any provision hereof or of the Lease. 5.2 Notwithstanding said commencement date, if for any reason Sublessor cannot deliver possession of the Subleased Premises to Sublessee on said date, Sublessor shall not be subject to any liability therefore, nor shall such failure affect the validity of this Lease or the obligations of Sublessee hereunder or extend the term hereof, but in such case Sublessee shall not be obligated to pay rent until possession of the Subleased Premises is tendered to Sublessee; provided, however, that if Sublessor shall not have delivered possession of the Subleased Premises to Sublessee by October 1, 1996, then, until Sublessor shall tender the Subleased Premises, Sublessee may, at Sublessee's option, by notice in writing to Sublessor, cancel this Sublease. If this Lease is canceled as herein provided, Sublessor shall return any monies previously deposited by Sublessee and the parties shall be discharged from all obligations hereunder. 5.3 In the event that Sublessor shall permit Sublessee to occupy the Subleased Premises prior to the commencement date of the term of this Sublease, such occupancy shall be subject to all of the provisions of this Sublease, including, but not limited to, payment of Rent and procurement of insurance. Said early possession shall not advance the termination date of this Sublease. 6. RENT. Sublessee shall pay to Sublessor as rent for the Subleased Premises, basic rental ("Basic Rent") plus certain additional rental ("Additional Rent"), all as provided below. Basic Rent, Additional Rent, and any other charges due hereunder or under the Lease are hereinafter referred to collectively as "Rent." 6.1 Sublessee shall pay Sublessor equal monthly installments of Basic Rent, in advance, on the first day of each month of the term hereof, as set forth in Paragraph 1 of the Addendum attached hereto and incorporated herein by this reference (the "Addendum"). 6.2 Sublessee shall also pay in addition to Basic Rent, with respect to the Subleased Premises, Additional Rent (as such term is defined in Section 5.4 of the Lease), excluding rental adjustments pursuant to Paragraph 6 of the Lease. 6.3 To the extent that Additional Rent due under the Lease is payable on a monthly basis pursuant to the Lease, such Additional Rent shall be paid to Sublessor as and when Basic Rent is paid. To the extent that Additional Rent is billed from time to time to Sublessor by Master Lessor, such Additional Rent shall be paid by Sublessee to Sublessor within fifteen (15) days after Sublessee's receipt of an invoice therefor. All Rent shall be paid to Sublessor at the address specified for Sublessor below, or to such other person or to such other place as Sublessor may from time to time designate in writing. To the extent that Additional Rent is payable on an 4 9 estimated basis pursuant to the Lease, the Additional Rent due hereunder shall be adjusted between the parties (with appropriate reimbursements ) when the actual Additional Rent due under the Lease has been determined. 6.4 Sublessee shall pay Sublessor upon the execution hereof the sum of Fifty-Four Thousand Four Hundred Fifty Dollars ($54,450.00) as rent for July, 1996. Rent for any period during the term hereof which is for less than one month shall be a pro rata portion of the monthly installment. Rent shall be payable without notice or demand and without any deduction, offset or abatement, except as specifically set forth herein, in lawful money of the United States of America to Sublessor at the address stated herein or to such other persons or at such other places as Sublessor may designate in writing. 7. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon execution hereof the sum of Fifty-Four Thousand Four Hundred Fifty Dollars ($54,450.00) as security for Sublessee's faithful performance of Sublessee's obligations hereunder. If Sublessee fails to pay rent or other charges due hereunder, or otherwise defaults with respect to any provision of this Sublease or the Lease, Sublessor may use, apply or retain all or any portion of said deposit to cure any such default, for the payment of any rent or other charge in default or for the payment of any other sum to which Sublessor may become obligated by all, or any portion, of said deposit, and may exercise any and all other remedies. Sublessee shall, within ten (10) days after written demand, deposit cash with Sublessor in an amount sufficient to restore said deposit to the full amount hereinabove stated. Sublessee's failure to do so shall be a breach of this Sublease, and Sublessor may, at its option, terminate this Sublease and pursue all of its other remedies therefor. If Sublessee performs all of Sublessee's obligations hereunder, said deposit or so much thereof as had not theretofore been applied by Sublessor, shall be returned with interest, to Sublessee (or at Sublessor's option, to the last assignee, if any, of Sublessee's interest hereunder) within ten (10) days after the expiration of the term hereof, or after Sublessee has vacated the Subleased Premises, whichever is later. Notwithstanding the foregoing, Sublessee shall have the option to deposit with Sublessor in lieu of, or as replacement for, the security deposit an irrevocable (for a period continuing for 10 days beyond the termination hereof) stand-by letter of credit with payment conditioned only upon presentation of a sight draft and a certificate asserting a default of Sublessee hereunder, in form and substance reasonably satisfactory to, and issued by a bank reasonably acceptable to, Sublessor. 8. USE. The Subleased Premises shall be used and occupied only for Research & Development, laboratory, administrative offices and any other lawful uses permitted by the Scientific Research (SR) Zone and other governmental regulation. 9. INSPECTION OF PROPERTY. Sublessee has inspected said Property and has determined that it is suitable for Sublessee's purposes. Sublessor hereby warrants that all building systems (including the HVAC 5 10 mechanical and plumbing systems) serving the Subleased Premises shall be in good operating order and condition upon delivery of the Subleased Premises to Sublessee. Neither Sublessor, Master Lessor, Gemini nor Broker has made any representations as to the condition of the Subleased Premises or the suitability for the conduct of Sublessee's business. 10. CONSENT OF MASTER LESSOR. If Sublessee desires to take any action which requires the consent of Master Lessor pursuant to the terms of the Lease, including without limitation, the making of any alterations, then, notwithstanding anything to the contrary herein, (a) Sublessor, independently, shall have the same rights of approval or disapproval as Master Lessor has under the Lease, (b) Sublessee shall not take any such action until it obtains the consent of both Sublessor and Master Lessor, and (c) Sublessee shall request that Sublessor obtain Master Lessor's consent on Sublessee's behalf and Sublessor shall use commercially reasonable efforts to obtain such consent, unless Sublessor and Master Lessor agree that Sublessee may contact Master Lessor directly with respect to the specific action for which Master Lessor's consent is required. 11. SUBLESSOR'S OBLIGATIONS. 11.1 With respect to any service or the performance of any obligation (including, but not limited to, maintenance of insurance), maintenance or any other act (collectively "Master Lessor Obligations") that is the responsibility of Master Lessor, Sublessor, upon Sublessee's request, shall make reasonable efforts to cause Master Lessor to perform such Master Lessor Obligations; provided, however, that in no event shall Sublessor be responsible for the performance of any of same or be liable to Sublessee for any liability, loss or damage whatsoever in the event that Master Lessor should fail to perform the same, nor for the inaccuracy or breach of any representation or warranty of Master Lessor, nor shall Sublessee be entitled to withhold the payment of Rent or terminate this Sublease. If notwithstanding Sublessor's reasonable efforts, Sublessee's use of the Subleased Premises is substantially impaired due to Master Lessor's failure to perform any Master Lessor Obligation, upon written request from Sublessee, Sublessor shall either assign Sublessor's rights under the Lease to the extent necessary to permit Sublessee to institute legal proceedings against Master Lessor to obtain the performance of such Master Lessor Obligation, or Sublessor shall itself institute legal proceedings to enforce the performance of such Master Lessor Obligation. In the event that such legal proceedings are required, Sublessor and Sublessee agree to cooperate with each other in good faith in the course and conduct of such legal proceedings (including any settlement thereof). 11.2 Except as provided in Section 11 and 12 and as expressly otherwise provided herein, Sublessor shall have no other obligations to Sublessee with respect to the Subleased Premises or the performance of the Master Lessor Obligations. 12. TENANT IMPROVEMENT ALLOWANCE. Sublessor shall reimburse Sublessee for the construction of certain tenant improvements as set forth in Paragraph 2 of the Addendum. Sublessor shall have no further obligation with respect to improvement of the Subleased Premises. 6 11 13. COMMISSION. Each party warrants and represents to the other that such party has not retained the services of any real estate broker, finder or any other person whose services would form the basis for any claim for any commission or fee in connection with this Sublease or the transactions contemplated hereby, except for brokerage services rendered by John Burnham & Company ("Burnham") to Sublessor. Sublessor shall pay directly to Burnham its fees due on account thereof, in accordance with its listing agreement. Each party agrees to save, defend, indemnify and hold the other party free and harmless from any breach of its warranty and representation as set forth in the preceding sentence, including the other party's reasonable attorneys' fees. 14. COUNTERPARTS. This Sublease may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which together shall constitute one and the same instrument. Address: 33 W. Monroe Street TORREY PINES SCIENCE CENTER Suite 2610 LIMITED PARTNERSHIP Chicago, Illinois 60603 By: Slough-Torrey Pines Science Center, Inc., General Partner By: D. L. BEAN --------------------------- Its Vice President ----------------------- Address: 11149 N. TORREY PINES ROAD AURORA BIOSCIENCES CORPORATION, ----------------------------- a Delaware corporation La Jolla, CA 92037 ----------------------------- By: [SIG] ------------------------------- Its President ---------------------------- 7 12 CONSENT BY MASTER LESSOR. The undersigned Master Lessor under the Lease in Exhibit A, hereby consents to the subletting of the Subleased Premises described herein on the terms and conditions contained in this Sublease. This consent shall apply only to this Sublease and shall not be deemed to be a consent to any other Sublease. MASTER LESSOR: NEXUS CENTRE/TORREY PINES, a California Limited Partnership By: Nexus Development Corporation -- Southern Division, a California corporation Its General Partner By: MICHAEL J. REIDY ---------------------------------- Michael J. Reidy, President 8 13 ADDENDUM TO SUBLEASE AGREEMENT DATED MAY 29,1996 BY AND BETWEEN TORREY PINES SCIENCE CENTER LIMITED PARTNERSHIP AND AURORA BIOSCIENCES CORPORATION (SUBLESSEE). 1. BASIC RENT: Sublessee shall pay basic rent according to the following rent schedule: 7/1/96 (or such earlier or later $54,450.00 ($2.50 per square foot) per month NNN date as contemplated pursuant to the Sublease) to 6/30/97 7/1/97 to 6/30/98 $55,974.60 ($2.57 per square foot) per month NNN 7/1/98 to 6/30/99 $57,717.00 ($2.65 per square foot) per month NNN 7/1/99 to 10/15/99 $59,459.40 ($2.73 per square foot) per month NNN
2. Tenant Improvement Allowance: Sublessor will also provide up to $5,000 for tenant improvements for separating the premises for Aurora Biosciences Corporation's occupancy. 14 LEASE THIS LEASE is made as of the 1st day of March, 1989, by and between Nexus Centre/Torrey Pines, A California Limited Partnership (hereinafter called "Landlord"), and Gemini Science, Inc., a California corporation (hereinafter called "Tenant"). 1. Lease Premises. 1.1 Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, those certain premises (hereinafter called the "Demised Premises") consisting of the entirety of the second floor and a portion of the first floor of the smaller of two buildings to be constructed in Nexus Centre/Torrey Pines at the address set forth below (hereinafter called the "Building"). The two buildings, the real property upon which the buildings are located, and all landscaping, parking facilities, and other improvements and appurtenances related thereto are hereinafter collectively referred to as the "Project", the site plan for which is attached hereto as Exhibit "A". All exterior portions of the Project which are for the non-exclusive use of tenants of the Project, including without limitation roadways, driveways, sidewalks, parking areas, and landscaped areas, are hereinafter referred to as "Common Area". 2. Basic Lease Provisions. 2.1 For convenience of the parties, certain basic provisions of this Lease are set forth herein. The provisions set forth herein are subject to the remaining terms and conditions of this Lease and are to be interpreted in light of such remaining terms and conditions. 2.1.1 Address of the Building: Building No. 2 of Nexus Centre-Torrey Pines, North Torrey Pines Road, San Diego, California, to be one of two buildings (Building No. 1, consisting of approximately 76,701 square feet, and Building No. 2, consisting of approximately 43,805 square feet) located on real property legally described as Parcel 1 of Map No. 14129, Recorded January 27, 1986. 15 2.1.2 Designation of Tenant's Building: Building No. 2 Floor(s): The Entirety of the Second Floor and a Portion of the First Floor Suite(s): 100 and 200 2.1.3 Rentable Area: 26,383 sq. ft. 2.1.4 Basic Annual Rent: $649,021.80 ($2.05 per square foot per month of Rentable Area, subject to adjustment pursuant to Sections 5.2, 5.3 and 5.4 and Article 6 hereof) 2.1.5 Monthly Rental Installments: $54,085.15 ($2.05 per square foot per month of Rentable Area, subject to adjustment pursuant to Sections 5.2, 5.3 and 5.4 and Article 6 hereof) 2.1.6 Tenant's Pro Rata Share: 61.54% of the Building and 22% of the Project (subject to adjustment) 2.1.7 (a) Scheduled Term Commencement Date: October 1, 1989 (b) Term Expiration Date: Ten (10) years from the Term Commencement Date (subject to option to extend) 2.1.8 Security Deposit: None, but see Section 5.1 regarding prepaid rent 2.1.9 Permitted Use: Research and development, laboratory, headquarters and administrative offices related to research and development, and any other lawful uses permitted by the Scientific and Research (SR) Zone and other governmental regulation 2.1.10 Address for Rent Payment and Notices to Landlord: Nexus Centre/Torrey Pines Associates c/o Nexus Development Corporation - Southern Division 9373 Towne Centre Drive, Suite 200 San Diego, California 92121 -2- 16 Addresses for Notices to Tenant: Gemini Science, Inc. 3333 North Torrey Pines Court, Suite 120 La Jolla, California 92037 Attn: Mr. Toshihiko Maruoka Gemini Science, Inc. 600 3rd Avenue, 21st Flr (Kirin U.S.A.) New York, New York 10016 Attn: Mr. Yoshinari Kumagai With copy to: Pettit & Martin Attn: Joel S. Marcus, Esq. 355 South Grand Avenue Thirty-Third Floor Los Angeles, California 90071 2.1.11 The following Exhibits are attached hereto and incorporated herein: "A", "B", "D", "E", "F", and "G". 3. Term. 3.1 This Lease shall take effect upon the date of execution hereof by both parties hereto and, except as specifically otherwise provided within this Lease, each of the provisions hereof shall be binding upon and inure to the benefit of Landlord and Tenant from the date of execution hereof by both parties hereto. 3.2 The approximate term of this Lease is as set forth in Section 2.1.7. The actual term of this Lease will be that period from the actual Term Commencement Date as defined in Section 4.1 below through the Term Expiration Date, subject to earlier termination of this Lease as provided herein. 4. Possession and Commencement Date. 4.1 The "Term Commencement Date" shall be the date Landlord tenders possession of the Demised Premises to Tenant with the Tenant Improvements (as defined in the work letter attached hereto as Exhibit "B", hereinafter the "Work Letter") Substantially Completed (as defined in the Work Letter). Landlord and Tenant shall each execute and deliver to the other written acknowledgment of the Term Commencement Date (and of the Term Expiration Date) when such is established in the form of Exhibit "F" and shall attach it to this Lease as Exhibit "F-1"; however, failure to execute and deliver such acknowledgment shall not affect Tenant's liability hereunder. -3- 17 4.2 Landlord shall use its best efforts to tender possession of the Demised Premises to Tenant on the Scheduled Term Commencement Date as set forth in Section 2.1.7(a) (and as defined in the Work Letter), with the Tenant Improvements Substantially Completed (as defined in the Work Letter). Tenant agrees that in the event Landlord fails to tender possession of the Demised Premises with Tenant Improvements Substantially Completed on or before the Scheduled Term Commencement Date, this Lease shall not be void or voidable, and Landlord shall not be liable to Tenant for any loss or damage resulting therefrom except as set forth in the Work Letter. In such event, however, Tenant shall not be liable for any Basic Annual Rent or Operating Expenses (as defined below) until the Term Commencement Date set forth in Section 4.1. 5. Rent. 5.1 Tenant agrees to pay Landlord as "Basic Annual Rent" for the Demised Premises the sum set forth in Section 2.1.4, subject to adjustments as set forth in Sections 5.2, 5.3 and 5.4 and Article 6. Basic Annual Rent shall be paid in the equal monthly installments set forth in Section 2.1.5, subject to adjustments as set forth in Sections 5.2, 5.3 and 5.4 and Article 6, each in advance on the first day of each and every calendar month during the term of this Lease, except that two month's rent shall be prepaid upon the execution hereof ("Prepaid Rent"). The Prepaid Rent shall be applied as a credit against the amounts of Basic Annual Rent otherwise due in respect of the first and second months of the lease term. 5.2 Basic Annual Rent shall be adjusted, if necessary, so that the monthly installments shall be equal to $2.05 per month multiplied by the square feet of the Rentable Area of the Demised Premises (including the Rentable Area of Tenant's Pro Rata Share of the equipment vault located adjacent to the Building), as remeasured upon Tenant's occupancy of the Demised Premises if such remeasurement is requested by Tenant as set forth in Section 8. 5.3 Notwithstanding the forgoing Section 5.1, Basic Annual Rent but not Additional Rent as defined in Section 5.4 shall be waived and shall not be payable during the third (3rd) through the eighth (8th) months of the term, and shall commence on the first day of the ninth (9th) month of the term. 5.4 In addition to Basic Annual Rent, Tenant agrees to pay to Landlord as additional rent ("Additional Rent") at times hereinafter specified in this Lease (i) Tenant's pro rata share (as set forth in Section 2.1.6, subject to adjustment) of Operating Expenses as provided in Article 7, and (ii) any other amounts that Tenant assumes or agrees to pay under the provisions of this Lease that are owed to Landlord, including without limitation any and all other sums that may become due -4- 18 by reason of any default of Tenant or failure on Tenant's part to comply with the agreements, terms, covenants and conditions of this Lease to be performed by Tenant. 5.5 Basic Annual Rent and Additional Rent shall together be denominated "Rent." Rent shall be paid to Landlord, without abatement, deduction, or offset except as set forth in this Lease, in lawful money of the United States of America, at the office of Landlord as set forth in Section 2.1.10 or to such other person or at such other place in the City of San Diego as Landlord may from time to time designate in writing. In the event the term of this Lease commences or ends on a day other than the first day of a calendar month, then the Rent for such fraction of a month shall be prorated for such period and shall be paid at the then current rate for such fractional month. 6. Rental Adjustments. 6.1 The Basic Annual Rent shall be subject to annual upward adjustment in proportion to rises in the Consumer Price Index as provided within this Article 6. The first such adjustment shall become effective commencing with that monthly rental installment which is due on or after the first anniversary of the Term Commencement Date and subsequent adjustments shall become effective on the same day of each calendar year thereafter for so long as this Lease continues in effect. By way of example, if the Term Commencement Date is October 1, 1989, the first such adjustment shall become effective on October 1, 1990; if the Term Commencement Date is October 2, 1989, the first such adjustment shall become effective on November 1, 1990. 6.2 The Basic Annual Rent shall be adjusted upward as follows: (a) The "Base Month" for purposes of each Rent adjustment shall be that month which is fifteen (15) months prior to the month in which the Rent adjustment occurs, and the "Comparison Month" shall be that month which is three (3) months prior to the month in which the Rent adjustment occurs. (b) As used in this subsection, the term "Consumer Price Index" means the Consumer Price Index (all items) for all wage earners and clerical workers in the Long Beach/Anaheim/Riverside metropolitan area (1982/84 = 100) as published by the United States Department of Labor, Bureau of Labor Statistics. If the 1982/84 base of the Consumer Price Index is hereafter changed, then the new base will be converted to the 1982/84 base and the base as so converted shall be used. In the event that the Bureau ceases to publish the Consumer Price Index at least once a month, then the successor -5- 19 or most nearly comparable index thereto so selected by Landlord shall be used. (c) In the event that the Consumer Price Index for the Comparison Month exceeds the Consumer Price Index for the Base Month, the Basic Annual Rent then payable (as increased by previous adjustments under this Section 6) shall be multiplied by a fraction, the numerator of which is the Consumer Price Index figure for the Comparison Month, and the denominator of which is the Consumer Price Index figure for the Base Month. Such amount as calculated shall be the Basic Annual Rent to be paid until the next date for adjustment hereunder. (d) Notwithstanding any of the foregoing to the contrary, Basic Annual Rent shall not be increased less than three percent (3%) or more than seven percent (7%) per year. 7. Operating Expenses. 7.1 As used herein, the term "Operating Expenses" shall include: (a) Government impositions including, without limitation, property tax costs consisting of real and personal property taxes and assessments (but excluding personal property taxes and assessments of other tenants of the Project) including amounts due under any improvement bond upon the Building and/or Project including the parcel or parcels of real property upon which Building and areas serving such Building are located or assessments levied in lieu thereof imposed by any governmental authority or agency, any tax on or measured by gross rentals received from the rental of space in the Building, or tax based on the square footage of the Demised Premises or Buildings as well as any utilities surcharges or any other costs levied, assessed or imposed by, or at the direction of, or resulting from statutes or regulations, or interpretations thereof, promulgated by any federal, state, regional, municipal or local government authority in connection with the use or occupancy of the Building or the parking facilities serving the Building, and any expenses, including the cost of attorneys or experts, reasonably incurred by Landlord after the first two years of the term of this Lease in seeking reduction by the taxing authority of the applicable taxes, less tax refunds obtained as a result of an application for review thereof. Tenant shall have the right to insist that Landlord contest any particular tax or governmental imposition at Tenant's cost and expense. (b) Costs of maintenance and repairs to the structural and exterior portion of the Building and the Common Areas, including roof, foundations, floors, beams, masonry -6- 20 walls, and load-bearing partitions, and to the heating, ventilation, air conditioning, plumbing, fire sprinkler, electrical, elevator, and window systems, except to the extent of the warranties set forth in the Work Letter. (c) Except as set forth in Section 7.2 below, all other costs paid or incurred by Landlord which, in accordance with accepted principles of sound accounting practice as applied to the operation and maintenance of first class buildings, are properly chargeable to the maintenance and operation of the Building and the Project including, by way of examples and not as a limitation upon the generality of the foregoing, costs of repairs and replacements to improvements within the Project as appropriate to maintain the Project in first class condition, costs of utilities furnished to the Common Areas, sewer fees, trash collection, cleaning (including windows), maintenance of landscape and grounds (including the cost of maintaining the entryway to the science park of which the project is a part under applicable reciprocal easement and access agreements), maintenance of drives and parking areas, reasonable and customary security services, maintenance, repair, and replacement of reasonable and customary security devices, building supplies, maintenance, repair, and replacement of equipment utilized for operation and maintenance of the Project, insurance premiums, portions of insured losses paid by Landlord as part of deductible portion of loss by reason of insurance policy terms, service contracts for work of nature before referenced, costs of services of independent contractors retained to do work of nature before referenced, and costs of compensation (including employment taxes and fringe benefits) of all persons who perform regular and recurring duties (but only to the extent the duties are not performed by Tenant) connected with the day-to-day operation and maintenance of Building No. 2 and the Common Areas, and reasonable costs of management services which shall not exceed two and one half percent (2 1/2%) of the Basic Annual Rent due from all tenants of the Project during the first year of the term of the Lease, and five percent (5%) of the Basic Annual Rent due from all tenants of the Project thereafter. 7.2 As used herein, and notwithstanding the foregoing Section 7.1, the term "Operating Expenses" shall not include: (a) Any net income, franchise, capital stock, estate or inheritance taxes or taxes which are the personal obligation of Landlord or of another tenant of the Project; costs of janitors, maintenance personnel, and all other persons who perform duties connected with the operation and maintenance of the Building and the Common Areas to the extent Tenant retains and pays for such services itself (on the condition Landlord has reasonably approved the level of services and the qualifications of the provider of the services under -7- 21 Section 16.6 of this Lease); expenses which relate to preparation of rental space for a tenant, expenses of initial development and construction, including but not limited to, grading, paving, landscaping, and decorating (as distinguished from maintenance and repairs as set forth in Section 7.1(b) above), any capital repairs, replacements or improvements (as distinguished from maintenance and repairs as set forth in Section 7.1(b) above); expenses for which Landlord is reimbursed or indemnified (either by an insurer, condemnor, tenant or otherwise, but less costs of obtaining such reimbursement); losses which would have been insured losses if Landlord had carried the insurance required of Landlord under this Lease (except for that portion of the loss which would have been part of the deductible); expenses incurred in leasing or procuring tenants (including, without limitation, lease commissions, advertising expenses and expenses of renovating space for tenants); legal expenses arising out of the initial construction of the Project, Building, Common Areas, or any tenant improvements or for the enforcement of the provisions of any tenant leases other than this one; interest or amortization payments on any mortgage or deed of trust encumbering the Project or any portion thereof (provided that interest upon a government assessment or improvement bond payable in installments is an Operating Expense under subparagraph 7.1(a) above); wages, salaries or other compensation paid to any employees of Landlord except as set forth in subparagraph 7.1(c) above; costs of any new improvements added to the Project (as distinguished from repair or replacement of an improvement previously existing on the Project); the cost of any work or service performed for or facilities furnished to a tenant at such tenant's cost; the cost of correcting defects in the construction of the Project or any equipment incorporated therein; any cost or expense representing an amount paid to an entity affiliated in any way with Landlord which is in excess of the amount which would be paid in the absence of such relationship; depreciation claimed by Landlord for tax purposes (provided this exclusion of "depreciation" is not intended to delete from Operating Expenses actual costs of repairs and replacements which are provided for in subparagraph 7.1 above), any interest or penalties imposed upon Landlord by any taxing authority for late payment or otherwise, taxes of the types set forth within the second to the last sentence of subparagraph 7.1(a) above; and any other expense otherwise chargeable as part of the cost of operation and maintenance but which is not of general benefit to the Project but is primarily for the benefit of one or more specific tenant(s). (b) Any increase in real property taxes for any period prior to the termination of the initial term of this Lease caused by a sale or transfer (but only the first such sale or transfer) of the Building or Project (other than a sale to Tenant or an affiliate of Tenant). Such amount of real property taxes which are not included in Operating Expenses -8- 22 shall not be greater than the difference between (i) the amount the taxes would have been if the Building and Project had been fully improved even if they are not yet fully improved at the time of the sale, and (ii) the sale price. For the purposes of this Section 7.2(b) two or more related sales or transfers shall be considered but one sale or transfer, and the provisions of this Section 7.2(b) shall apply to any sale or transfer between Landlord and any entity in any way affiliated with Landlord, but such sale or transfer shall not be considered the "first" sale or transfer. At Landlord's option, Landlord may pay to Tenant at the time of the first such sale of the Building or Project a mutually agreeable sum equal to estimated real property taxes caused by the first such sale for the balance of the initial term of this Lease, in consideration for which Tenant shall execute an amendment to this Lease deleting this Section 7.2(b). 7.3 Tenant shall pay to Landlord on the first day of each calendar month of the term of this lease, as Additional Rent, Landlord's good faith estimate of Tenant's Pro Rata Share (as set forth in 2.1.6) of Operating Expenses with respect to the Project for such month. (a) "Tenant's Pro Rata Share" under this Lease shall mean (i) with regard to the Building, 61.54% of the Rentable Area of the Building, and (ii) with regard to the Common Area, the Rentable Area of the Demised Premises divided by the Rentable Area of both buildings of the Project. (b) Within forty five (45) days after the conclusion of each calendar year, Landlord shall furnish to Tenant a statement (the "Annual Operating Expense Statement") showing in reasonable detail the actual Operating Expenses and Tenant's Pro Rata Share of Operating Expenses for the previous calendar year. Any additional sum due from Tenant to Landlord shall be due and payable within twenty (20) days of Tenant's receipt of such statement. If the amounts paid by Tenant pursuant to this Section 7.3 exceeds Tenant's Pro Rata Share of Operating Expenses for the previous calendar year, the difference shall be credited by Landlord against the Rent next due and owing from Tenant; provided that, if the Lease term has expired, Landlord shall accompany said statement with payment for the amount of such difference. (c) Any amount due under this Section 7.3 for any period which is less than a full month shall be prorated for such fractional month. (d) Notwithstanding this Section 7.3, Operating Expenses which can fairly and reasonably be allocated to one or more tenants of the Project shall be so allocated, and shall be separately scheduled on the Annual Operating Expense Statement. Furthermore, once the Project has been -9- 23 subdivided into two lots, expenses attributable to Building No. 1 and to the Common Areas located on the lot underlying Building No. 1 shall not be included in Operating Expenses under this Lease. 7.4 Tenant shall have the right, at Tenant's expense, upon reasonable notice during reasonable business hours, to have an employee or outside accountant or other consultant inspect the portion of Landlord's books that are relevant to preparation of the Annual Operating Expense Statement provided any request for such review shall be furnished within sixty (60) days of Tenant's receipt of such statement as to a prior year's statement. 7.5 Operating Expenses for the calendar year in which Tenant's obligation to share therein commences and in the calendar year in which such obligation ceases, shall be prorated. Expenses such as taxes, assessments and insurance premiums which are incurred for an extended time period shall be prorated based upon time periods to which applicable so that the amounts attributed to the Demised Premises relate in a reasonable manner to the time period wherein Tenant has an obligation to share in Operating Expenses. 8. Rentable Area. 8.1 The "Rentable Area" of the Demised Premises shall be as set forth in Section 2.1.3 of this Lease unless and until Tenant requests a remeasurement of the Demised Premises (and unless and until the Demised Premises are expanded under Section 43, Section 44, or otherwise). Basic Annual Rent (but not the rental rate per square foot) shall be adjusted upward or downward by reason of any later determination that Rentable Area of the Demised Premises differs from the Rentable Area set forth in Section 2.1.3. Rentable Area as adjusted shall also be utilized for computation of Tenant's Pro Rata Share of Operating Expenses for purposes of allocating Operating Expenses among tenants of the Project. Tenant's Pro Rata Share shall be equal to a fraction the numerator of which shall be the Rentable Area of the Demised Premises and the denominator of which shall be the aggregate of the Rentable Area of the Project. 8.2 In the event Tenant requests a remeasurement of the Demised Premises (and in the event the Demised Premises are expanded under Section 43, Section 44, or otherwise), the Rentable Area of each floor shall be computed by measuring to the inside finished surface of the four exterior glass walls, so long as such glass walls form fifty percent (50%) or more of the vertical floor to ceiling dimension (otherwise measurement is from the outside finished surface of the permanent outer Building walls) provided, in such situations as the floor is served by a balcony, the balcony area is included and -10- 24 measurement is from the centerline of the handrail of such balcony. The full area calculated as before set forth shall be included as Rentable Area without deduction for columns and projections necessary to the Building, except that, in accordance with industry custom, major vertical penetrations which are defined as stairs and elevator shafts and their enclosing walls which serve more than one floor of the Building shall be excluded, provided, however, the term major vertical penetrations shall not be deemed to include stairs and elevator shafts exclusively serving a tenant occupying space on more than one floor. The Rentable Area of the Demised Premises shall also include Tenant's Pro Rata Share of the equipment vault located adjacent to the Building, which is included in the Rentable Area set forth in Section 2.1.3. 8.3. The Rentable Area of the Building is determined by making separate calculations of Rentable Area applicable to each floor within the Building and totaling the Rentable Area of all floors within the Building. 8.4 The Rentable Area of the Project is the total of Rentable Area of both buildings within the Project. 8.5 The term "Rentable Area" when applied to Tenant is the approximate area to be occupied by Tenant plus an equitable allocation of Rentable Area within the Building which is not then utilized or expected to be utilized by Tenant or other tenants of the Building, including but not limited to the portion of the Building devoted to corridors, equipment rooms, restrooms, elevator lobby and mailroom. In making such allocations, consideration will be given to tenants benefited by space allocated such that areas which primarily serve tenants of only one floor, such as corridors and restrooms upon such floor, shall be allocated to that tenant's Rentable Area. 8.6 Review of allocations of Rentable Areas as between tenants of the Building and the Project may be made as frequently as in Landlord's opinion appears appropriate in order to facilitate an equitable apportionment of Operating Expenses. If such review is by a licensed architect and allocations are certified correct by such licensed architect, the parties shall be bound by such certifications. 9. [Intentionally Left blank) 10. Use. 10.1 Landlord covenants as a condition of this Lease that it has good marketable fee title to the Demised Premises and the right to make this Lease for the term aforesaid; that the provisions of this Lease do not conflict with or violate the provisions of existing agreements between the Landlord and any third parties; that the Demised Premises and the uses -11- 25 thereof are in conformity with all applicable legal requirements, including, without limitation, zoning and planning ordinances, and do not violate applicable restrictions, if any; and that Landlord will deliver actual possession of the Demised Premises to Tenant free of all tenants and occupants, and free of all monetary liens other than (i) the lien of any mortgage or deed of trust encumbering the Project, and (ii) any mechanic's lien filed against the Demised Premises or against the Building for work claimed to have been done or materials furnished, the removal of which Landlord shall diligently pursue, and which will be discharged by Landlord, by bond or otherwise, within thirty (30) days after the Term Commencment date, at the cost and expense of Landlord. 10.2 Tenant shall use the Demised Premises for the purpose set forth in Section 2.1.9 and shall not use the Demised Premises, or permit or suffer the Demised Premises to be used, for any other purpose without the prior written consent of Landlord. In the event any government law or regulation (or court order enforcing a government law or regulation) prohibits or substantially limits Tenant's use of the Demised Premises for research and development, laboratory, and related offices, Tenant may at any time cancel the Lease by giving Landlord written notice, and thereafter neither party shall have any rights, duties or obligations hereunder. 10.3 Tenant shall conduct its business operations and use the Demised Premises (including any storage or use of Hazardous Materials as defined in Article 41 of this Lease) in compliance with all federal, state, and local laws and regulations. Subject to the provisions of Section 10.2, Tenant shall not use or occupy the Demised Premises in violation of any law or regulation or of the certificate of occupancy issued for the Building, and shall, upon five (5) days' written notice from Landlord, discontinue any use of the Demised Premises which is declared by any governmental authority having jurisdiction to be a violation of law or of said certificate of occupancy. Tenant shall comply with any direction of any governmental authority having jurisdiction which shall, by reason of the nature of Tenant's use or occupancy of the Demised Premises, impose any duty upon Tenant or Landlord with respect to the Demised Premises or with respect to the use or occupation thereof. 10.4 Tenant shall not do or permit to be done anything which will invalidate or increase the cost of any "all risk" or other insurance policy covering the Building and Project and shall comply with all rules, orders, regulations and requirements of the insurers of the Building and Project. Landlord shall give Tenant written notice of any failure to comply with the provisions of this Section, and if Tenant fails to remedy such failure within a reasonable time, Tenant shall -12- 26 promptly upon demand reimburse Landlord for any additional premium charged for such policy by reason of Tenant's failure. 10.5 Tenant shall keep all doors opening onto public corridors closed, except when in use for ingress and egress. 10.6 Tenant upon termination of this Lease shall return to Landlord all keys, access cards, and other items and equipment used with the security system installed in the Building and the Demised Premises, except to the extent such system is installed by Tenant at Tenant's expense and may be removed without material damage to the Demised Premises or the Building. 10.7 No awnings or other projection shall be attached to any outside wall of the Building. No curtains, blinds, shades or screens shall be attached to or hung in, or used in connection with, any window or door of the Demised Premises other than those specified in the approved plans and specifications for the Building and the Demised Premises. Neither the interior nor exterior of any windows shall be coated or otherwise sunscreened without the express written consent of Landlord, nor shall any bottles, parcels, or other articles be placed on the windowsills. 10.8 No sign, advertisement, or notice shall be exhibited, painted or affixed by Tenant on any part of the Demised Premises or the Building without the prior written consent of Landlord, except for a sign on the face (contemplated to be on the upper portion of the face) of the Building at Tenant's sole cost and expense and not to exceed the size allowed by the City of San Diego and to the extent approved by Landlord and the City of San Diego, and a monument sign at Landlord's sole cost and expense to the extent approved by Tenant and the City of San Diego. In addition, Tenant shall be allocated eighteen percent (18%) of the total square footage of the monument sign within the middle portion of the sign; the tenant of Building No. 1 has been allocated fifty two percent (52%) and the top portion, other tenants of Building No. 2 shall be allocated ten percent (10%) within the middle portion below Tenant's space, and Landlord shall be allocated twenty percent (20%) and the bottom portion of the monument sign. Interior signs on doors and the directory tablet shall be inscribed, painted or affixed for Tenant by Landlord at the expense of Tenant, and shall be of a size, color, and style acceptable to Landlord. The directory tablet shall be provided exclusively for the display of the name and location of tenants only. Nothing may be placed on the exterior of corridor walls or corridor doors other than Landlord's standard lettering. The Project plans as approved by the City of San Diego do not allow a separate monument sign for the Building; however, Landlord is endeavoring to obtain permission for the installation of such a separate monument sign, and if it is -13- 27 successful, Tenant may at its option use the top half of the monument sign. If Tenant elects to use the additional monument sign, Tenant's fair share of the expense of the monument sign shall be paid for from the Tenant Improvement budget described in the Work Letter. 10.9 Tenant shall not place any equipment weighing six hundred (600) pounds or greater upon the Demised Premises except as installed pursuant to the Work Letter without consulting with Landlord to insure that the proposed location of the equipment is designed to carry the weight of such equipment. 10.10 Tenant shall not do or permit anything to be done in or about the Demised Premises which shall in any way obstruct or interfere with the rights of other tenants or occupants of the Building. 11. Brokers. 11.1 Tenant represents and warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease other than John Burnham & Company, and that it knows of no other real estate broker or agent who is or might be entitled to a commission in connection with this Lease. 11.2 Landlord shall pay any brokerage commission or finder's fee payable to John Burnham & Company on account of this Lease, and Landlord shall pay, indemnify, defend and hold harmless Tenant for any claims, losses, or damages (including attorneys' fees) arising out of any claimed brokerage commission or finder's fee arising in connection with this Lease or any of the transactions contemplated in connection therewith, except to the extent that such claim arises out of Tenant's dealings with any broker or finder other than John Burnham & Company. 12. Holding Over. 12.1 If, with Landlord's consent, Tenant holds possession of all or any part of the Demised Premises after the term of this Lease, Tenant shall become a tenant from month-to-month upon the date of such expiration or earlier termination, and in such case Tenant shall continue to pay in accordance with Article 5 the Basic Annual Rent as adjusted from the Term Commencement Date in accordance with Article 6 and Operating Expenses in accordance with Article 7, and such month-to-month tenancy shall be subject to every other term, covenant and agreement contained herein. 12.2 If Tenant remains in possession of the Demised Premises after the expiration or earlier termination of the -14- 28 term hereof without the express written consent of Landlord, Tenant shall become a tenant at sufferance upon the terms of this Lease except that monthly rental shall be equal to one hundred twenty percent (120%) of the monthly rental in effect during the last thirty (30) days of the Lease term. 12.3 Acceptance by Landlord of rent after such expiration of earlier termination shall not result in a renewal or reinstatement of this Lease. 12.4 The foregoing provisions of this Article 12 are in addition to and do not affect Landlord's right to re-entry or any other rights of Landlord hereunder or as otherwise provided by law. 13. Taxes on Tenant's Property. 13.1 Tenant shall pay not less than ten (10) days before delinquency taxes levied against any personal property or trade fixtures placed by Tenant in or about the Demised Premises. Tenant shall not be responsible for taxes levied against any personal property or trade fixtures of other tenants. 13.2 If any such taxes on Tenant's personal property or trade fixtures are levied against Landlord or Landlord's property or, if the assessed valuation of the Building is increased by the inclusion therein of a value attributable to Tenant's personal property or trade fixtures, and if Landlord after written notice to Tenant pays the taxes based upon such increase in the assessed value, then Tenant shall upon demand repay to Landlord the taxes so levied against Landlord. 13.3 If any improvements in or alterations to the Demised Premises, whether owned by Landlord or Tenant and whether or not affixed to the real property so as to become a part thereof, are assessed for real property tax purposes at a valuation higher than the valuation at which improvements in other spaces in the Building or Project are assessed, then the real property taxes and assessments levied against Landlord or the Building or Project by reason of such excess assessed valuation shall be deemed to be taxes levied against personal property to Tenant and shall be governed by the provisions of Section 13.2, above. Any such excess assessed valuation due to improvements in or alterations to space in the Building or Project leased by other tenants of Landlord shall not be included in the Operating Expenses defined in Section 7.5, but shall be treated, as to such other tenants, as provided in this Section 13.3, and shall be allocated to such other tenants. If the records of the County assessor are available and sufficiently detailed to serve as a basis for determining whether said Tenant improvements or alterations are assessed at a higher valuation than improvements in other spaces in the -15- 29 Building or Project, such records shall be binding on both Landlord and Tenant. 14. [Intentionally Left Blank] 15. Common Areas and Parking Facilities. 15.1 Tenant shall have the nonexclusive right, in common with others, to use the Common Areas, subject to the rules and regulations adopted by Landlord and attached hereto as Exhibit "D" together with such other reasonable and nondiscriminatory rules and regulations as are hereafter promulgated by Landlord (the "Rules and Regulations"). 15.2 As an appurtenance to the Demised Premises, Tenant is entitled to use free of charge no fewer than 98 of the 155 parking spaces serving the Building, which portion is computed by multiplying the 155 parking spaces serving the Building by Tenant's Pro Rata Share of the Building. Tenant's allocation shall be reduced to the extent installation of Tenant's equipment outside of the Building reduces the available parking. Twenty percent (20%) of the spaces allocated to Tenant shall be marked "reserved" for Tenant's use, no more than twenty percent (20%) of the spaces allocated to other tenants of the Building shall be marked "reserved" for the other tenants, and the balance of the spaces shall be used in common with the other tenants. Tenant's reserved spaces (and the reserved spaces of other tenants of the Building) shall be located near the main entrance to the Building at a location mutually satisfactory to Landlord and Tenant. 15.3 Tenant agrees not to overburden the parking facilities and agrees to cooperate with Landlord and other tenants in the use of parking facilities. 15.4 Landlord reserves the right to modify Common Areas including the right to add or remove real property by subdivision or otherwise, provided no such change is of the nature to have an adverse effect upon Tenant's use and enjoyment of the Demised Premises or on the parking spaces serving the Building. 16. Utilities and Services. 16.1 Tenant shall pay for all water, gas, electricity, telephone and other utilities supplied to the Demised Premises, together with any taxes thereon. If any such utility is not separately metered to Tenant, Tenant shall pay a reasonable proportion to be determined by Landlord of all charges jointly metered with tenants of other premises as part of its share of Operating Expenses. Utilities and services provided to the Demised Premises which are separately metered shall be paid by Tenant directly to the supplier of such -16- 30 utility or service, and Tenant shall pay for such utilities and services prior to delinquency during the term of this Lease. 16.2 Should any such utility or service be suspended for a reason other than any act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, and should such suspension materially interfere with Tenant's use of the Demised Premises, from and after two (2) business days written notice from Tenant to Landlord of the need to reinstate such utility or service, Basic Annual Rent and Operating Expenses shall abate for all or that portion of the Demised Premises incident to which Tenant's use is materially interfered with until service is fully restored. 16.3 Should any such utility or service be suspended for a reason other than any act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, and should such suspension materially interfere with Tenant's use of the Demised Premises, and should such failure extend for more than ninety (90) days from written notice from Tenant to Landlord of the need to reinstate such utility or service, Tenant may, at its option, cancel this Lease by giving Landlord written notice, and thereafter neither party shall have any further rights, duties or obligations hereunder. 16.4 In the event the suspension is of such a nature that it can be remedied by Landlord and Landlord fails to do so within a period of fifteen (15) days after notice from Tenant of the need to reinstate such utility or service, Tenant shall have the right but not the obligation to undertake to have such suspension remedied and may deduct any cost or expense in connection therewith from any Rent otherwise coming due to the extent such cost is not included within Tenant's Pro Rata Share of Operating Expenses under Section 7 of this Lease. 16.5 Except as set forth in this Article 16, Tenant shall not be relieved from any covenants of this Lease nor shall there be any liability of Landlord in excess of proceeds of applicable insurance policies, if any (or in excess of what would have been proceeds of insurance policies required of Landlord under this Lease if Landlord fails to carry such policies, the amount of which proceeds shall be Landlord's liability on account of such failure) by reason of any injury to or interference with Tenant's business arising from the suspension of utilities or services, except to the extent such injury or interference is caused by Landlord's gross negligence or willful misconduct. 16.6 Tenant may provide and pay for janitors, maintenance personnel, and other persons who perform duties connected with the operation and maintenance of the Demised Premises subject the Landlord's reasonable approval of the level of services and the qualifications of the provider of the services. -17- 31 17. Alterations. 17.1 Tenant shall make no structural alterations, additions or improvements to the Demised Premises or the Building, and shall make no non-structural alterations, additions or improvements in or to the Demised Premises which cost in excess of $50,000 per annum other than wall coverings, paneling, built-in cabinet work, installation of movable furniture, and trade fixtures, without Landlord's prior written consent, which shall not be unreasonably withheld, and then only by contractors or mechanics reasonably approved by Landlord. To the extent the alterations, additions or improvements are of the nature which would require a building permit from the city of San Diego, Tenant shall provide to Landlord a set of "as-built" plans and specifications of the alterations, additions, or improvements once they have been completed. 17.2 Tenant agrees that there shall be no construction of partitions or other obstructions which might interfere with free access to mechanical installations or service facilities of the Building or interfere with the moving of Landlord's equipment to or from the enclosures containing said installations or facilities. 17.3 Tenant agrees that any work by Tenant shall be accomplished in such a manner as to permit any fire sprinkler system and fire water supply lines to remain fully operable at all times. 17.4 Tenant covenants and agrees that all work done by Tenant shall be performed in full compliance with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental agencies, offices, departments, bureaus and boards having jurisdiction, and in full compliance with the rules, orders, directions, regulations, and requirements of any applicable fire rating bureau. 17.5 Before commencing any work described in Section 17.1, Tenant shall give Landlord at least five (5) days' prior written notice of the proposed commencement of such work. 17.6 Except for trade fixtures and items of personal property and any security system installed by Tenant under Section 10.6, all alterations, fixtures, additions and improvements attached to or built into the Demised Premises, made by either party, including (without limiting the generality of the foregoing) all wallcovering, built-in cabinet work, and paneling, shall become the property of Landlord upon the expiration or earlier termination of the term of this -18- 32 Lease, and shall remain upon and be surrendered with the Demised Premises as a part thereof. 17.7 All articles of personal property and all business and trade fixtures, machinery and equipment, furniture and movable partitions owned by Tenant or installed by Tenant at its expense in the Demised Premises shall be and remain the property of Tenant and may be removed by Tenant at any time up to ten (10) days after the expiration or earlier termination of the Lease. Tenant shall repair any damage to the Demised Premises caused by Tenant's removal of any property from the Demised Premises. If Tenant shall fail to remove all of its effects from the Demised Premises within ten (10) days after the expiration or earlier termination of the Lease, then Landlord may, at its option, remove and dispose of the same in accordance with and upon such notice to Tenant as may be provided by California law. However, notwithstanding any provision of law to the contrary, the proceeds of any sale of the property may be applied by Landlord against any amounts due under this Lease from Tenant to Landlord and against any expenses incident to the removal, storage and sale of said personal property. 17.8 Notwithstanding any other provision of this Article 17 to the contrary, in no event may Tenant remove any improvement from the Demised Premises as to which Landlord contributed payment without Landlord's prior written consent. 18. Repairs and Maintenance. 18.1 Landlord shall repair and maintain the structural and exterior portions and Common Areas of the Building and Project, including roofing and covering materials, the plumbing, fire sprinkler system (if any), heating, ventilating, air conditioning, elevator, and electrical systems installed or furnished by Landlord, subject to reimbursement by Tenant as its Pro Rata Share of Operating Expenses to the extent provided by Section 7, and subject to the warranties set forth in the Work Letter. However, if such maintenance or repairs are required because of any act, neglect, fault of or omissions of any duty by Tenant, its agents, servants, employees or invitees, Tenant shall pay to Landlord the costs of such maintenance and repairs attributable to Tenant's act, neglect, fault or omission. 18.2 Except for services of Landlord, if any, required by the terms of Section 18.1, Tenant shall at Tenant's sole cost and expense keep the Demised Premises and every part thereof in good condition and repair, except for damage thereto from causes beyond the reasonable control of Tenant and ordinary wear and tear, and except to the extent Landlord is responsible under the warranties set forth in the Work Letter. Tenant shall upon the expiration or sooner termination of the -19- 33 term hereof surrender the Demised Premises to Landlord in the same condition as when received, ordinary wear and tear and damage from causes beyond the reasonable control of Tenant excepted. After completion of the work required by the Work Letter, Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint the Demised Premises or any part thereof except for any remaining "punchlist items" (as defined in the Work Letter). 18.3 Should repairs or maintenance under Section 18.1 be required of Landlord for a reason other than any act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, and should the lack of repairs or maintenance materially interfere with Tenant's use of the Demised Premises, from and after two (2) business days from written notice from Tenant to Landlord of the need of such repairs or maintenance, Basic Annual Rent and Operating Expenses shall abate for all or that portion of the Demised Premises incident to which Tenant's use is materially interfered with until the repairs or maintenance are completed. 18.4 Should repairs or maintenance under Section 18.1 be required of Landlord for a reason other than any act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, and should the lack of repairs or maintenance materially interfere with Tenant's use of the Demised Premises, and should such lack of repairs or maintenance extend for more than ninety (90) days after written notice from Tenant to Landlord of the need of such repairs or maintenance, Tenant may, at its option, cancel this Lease by giving Landlord written notice, and thereafter neither party shall have any further rights, duties or obligations hereunder. 18.5 In the event Landlord fails to complete the repairs and maintenance required of it under Section 18.1 within a period of fifteen (15) days after notice from Tenant of the need of such repairs or maintenance, Tenant shall have the right but not the obligation to undertake the maintenance and repairs and may deduct any cost or expense in connection therewith from any Rent otherwise coming due to the extent such cost is not included within Tenant's Pro Rata Share of Operating Expenses under Section 7 of this Lease. 18.6 Except as set forth in this Article 18, Tenant shall not be relieved of any covenants of this Lease nor shall there be any liability of Landlord in excess of proceeds of applicable insurance policies, if any (or in excess of what would have been proceeds of insurance policies required of Landlord under this Lease if Landlord fails to carry such policies, the amount of which proceeds shall be Landlord's liability on account of such failure), by reason of any injury to or interference with Tenant's business arising from the need for or the making of any repairs, alterations or improvements -20- 34 in or to any portion of the Building or the Demised Premises or in or to fixtures, appurtenances and equipment therein, except to the extent such injury or interference is caused by Landlord's gross negligence or willful misconduct. 18.7 This Article 18 relates to repairs and maintenance arising in ordinary course of operation of the Building and any related facilities. In the event of fire, earthquake, flood, vandalism, war, or similar cause of damage or destruction this Article 18 shall not be applicable and the provisions of Article 22 entitled "Damage or Destruction" shall apply and control. 19. Liens. 19.1 Tenant shall keep the Demised Premises, the Building and the property upon which the Building is situated free from any liens arising out of work performed, materials furnished or obligations incurred by Tenant. Tenant further covenants and agrees that any mechanic's lien filed against the Demised Premises or against the Building for work claimed to have been done for, or materials claimed to have been furnished to Tenant except for tenant improvements installed pursuant to the Work Letter, the removal of which Tenant shall diligently pursue, and which will be discharged by Tenant, by bond or otherwise, within thirty (30) days after the filing thereof, at the cost and expense of Tenant. 19.2 Landlord covenants and agrees that any mechanic's lien filed against the Demised Premises or against the Building for work claimed to have been done for, or materials claimed to have been furnished to Landlord, will be discharged by Landlord, by bond or otherwise, within thirty (30) days after the filing thereof, at the cost and expense of Landlord. 19.3 Should Tenant fail to discharge any lien of the nature described in Section 19.1, Landlord may at Landlord's election pay such claim or post a bond or otherwise provide security to eliminate the lien as a claim against title and the cost thereof shall be immediately due from Tenant as Additional Rent. 19.4 In the event Tenant shall lease or finance the acquisition of office equipment, furnishings, or other personal property of a removable nature utilized by Tenant in the operation of Tenant's business, or encumber its interest in this Lease, Tenant warrants that any Uniform Commercial Code Financing Statement or mortgage or deed of trust executed by Tenant will upon its face or by exhibit thereto indicate that such Financing Statement is applicable only to removable personal property or fixtures of Tenant located within the Demised Premises or to Tenant's interest in this Lease, as the -21- 35 case may be. In no event shall the address or legal description of the Building be furnished on the statement without qualifying language as to applicability of the lien only to removable personal property or fixtures located in an identified suite held by Tenant, or to Tenant's interest in this Lease. Landlord shall consent to such financing statements upon the request of Tenant, which consent shall not be unreasonably withheld or delayed; any mortgage or deed of trust encumbering Tenant's interest in this Lease shall also be subject to the reasonable consent of any lender of Landlord, and shall be subordinate to any interest of any lender of Landlord under Section 36 of this Lease. Should any holder of a Financing Statement or mortgage or deed of trust executed by Tenant record or place of record a Financing Statement or mortgage or deed of trust which appears to constitute a lien against any interest of Landlord or against equipment which may be located other than within the Demised Premises, Tenant shall within ten (10) days after filing such Financing Statement or mortgage or deed of trust cause (i) copies of the Security Agreement or other documents to which the Financing Statement or mortgage or deed of trust pertains to be furnished to Landlord to facilitate Landlord's being in a position to show such lien is not applicable to Landlord's interest, and (ii) its lender to amend documents of record so as to clarify that such lien is not applicable to any interest of Landlord in the Building or Project. Nothing in this Section 19 shall prohibit Tenant from encumbering its interest in this Lease with a leasehold mortgage or similar document, subject to the reasonable consent of Landlord and any lender of Landlord. Landlord agrees to properly execute, acknowledge, and deliver to Tenant or any lender of Tenant upon request all such documentation as may be reasonably required by such lender in order for Tenant to finance its interests under this Lease or the acquisition of office equipment, furnishings, or other personal property of a removable nature utilized by Tenant in the operation of Tenant's business. 20. Indemnification and Exculpation. 20.1 Tenant agrees to indemnify Landlord against and save Landlord harmless from all damages, demands, claims, causes of action or judgments, and all reasonable expenses incurred in investigating or resisting the same (including reasonable attorneys' fees), for injury to person or to property occurring within the Demised Premises and arising out of Tenant's use and occupancy of the Demised Premises, except if caused by the willful acts or negligence of Landlord or other tenants of the Project. 20.2 Landlord, during the term of this Lease, agrees to indemnify Tenant against and save Tenant harmless from all damages, demands, claims, causes of action or judgments, and all reasonable expenses incurred in investigating or resisting -22- 36 the same (including reasonable attorneys' fees) , for injury to person or property occurring within the Building and Project, except those occurring within the Demised Premises for which Tenant is responsible under Section 20.1, and except if caused by the willful acts or negligence of Tenant or other tenants of the project except to the extent such damages would have been avoidable if Landlord had fulfilled its obligations under Section 33 of this Lease and failed to do so. 20.3 Notwithstanding any provision of Sections 20.1 and 20.2 to the contrary, Landlord shall not be liable to Tenant and Tenant assumes all risk of damage any fixtures, goods, inventory, merchandise, equipment, leasehold improvements, records, research data, experiments, living organisms, chemicals, or any other personal property kept within the Demised Premises, if the cause of such damage is of a nature which, if Tenant had elected to maintain "all risk" insurance covering the above-described risks would be a loss subject to settlement by the insurance carrier including but not limited to, damage or losses caused by fire, electrical malfunctions, gas explosion, and water damage of any type including but not limited to broken water lines, malfunction of fire sprinkler system, roof leakage or stoppages of lines unless and except if such loss is due to willful disregard of Landlord of written notice of need for a repair for an unreasonable period of time. Tenant further waives any claim for injury to Tenant's business or loss of income relating to any such damage or destruction of personal property including any loss of records. 20.4 Notwithstanding any provision of Sections 20.1 and 20.2 to the contrary, Landlord shall not be liable to Tenant and Tenant assumes all risk of personal injury and property damages caused by Tenant's products. 20.5 Landlord shall not be liable for any damages arising from any act or neglect of any other tenant in the Building except to the extent such damages would have been avoidable if Landlord had fulfilled its obligations under Section 33 of this Lease and failed to do so. 21. Insurance - Waiver of Subrogation. 21.1 Landlord shall carry insurance upon the Building, in an amount equal to full replacement cost (exclusive of the costs of excavation, foundations, and footings, and without reference to depreciation taken by Landlord upon its books or tax returns) or such lesser coverage as Landlord may elect provided such coverage is not less than ninety percent (90%) of such full replacement cost or the amount of such insurance Landlord's mortgage lender requires Landlord to maintain, providing protection against any peril generally included within the "all risk" classification of -23- 37 insurance. Landlord, subject to availability thereof, may upon request of Tenant further insure as Landlord deems appropriate coverages against flood and/or earthquake, loss or failure of building equipment, rental loss during the period to repair or rebuild, workmen's compensation insurance and fidelity bonds for employees employed to perform services. Notwithstanding the foregoing, Landlord may, but shall not be deemed required to, provide insurance as to any improvements installed by Tenant or which are in addition to the Tenant Improvements installed pursuant to the Work Letter without regard to whether or not such are made a part of the Building. Tenant shall have the right to approve the insurance carried by Landlord, which approval shall not be unreasonably withheld or delayed. 21.2 Landlord shall further carry public liability insurance with combined single limits of not less than Ten Million Dollars ($10,000,000) for death, bodily injury, or property damage with respect to the Project and unrented, uninsured or insured for less than loss claim, areas of the Building and walks, drives, parking areas, landscaped areas, and other appurtenances thereto. 21.3 Tenant at its own cost shall procure and continue in effect from the Term Commencement Date or the date of occupancy, whichever first occurs, and continuing throughout the term of this Lease (and occupancy by Tenant, if any, after termination of this Lease) comprehensive public liability insurance, including employer's non-ownership automobile coverage, with limits of not less than Ten Million Dollars ($10,000,000) for death, bodily injury, or property damage with respect to the Demised Premises. 21.4 The aforesaid insurance required of Tenant shall name Landlord, its agents and employees, as an additional insured. Tenant shall upon written request of Landlord designate and furnish certificates so evidencing Landlord as an additional insured to any lender and/or any other party who has a reasonable business need for such certificates. 21.5 The aforesaid insurance required of Landlord or Tenant shall be with companies having a rating of not less than policyholder rating of A and financial category rating of at least Class XII in "Best's Insurance Guide." The insured party shall obtain for the other party from the insurance companies or cause the insurance companies to furnish certificates of coverage to the other party. No such policy shall be cancellable or subject to reduction of coverage or other modification or cancellation except after thirty (30) days' prior written notice to Landlord and Tenant from the insurer. All such policies shall be written as primary policies, not contributing with and not in excess of any other coverage. Tenant's policy may be a "blanket policy" which specifically provides that the amount of insurance shall not be reduced by -24- 38 other losses covered by the policy. The insured party shall, at least twenty (20) days prior to the expiration of such policies, furnish the other party with renewals or binders. Tenant agrees that if Tenant does not take out and maintain such insurance, Landlord may (but shall not be required to) procure said insurance on Tenant's behalf. 21.6 Landlord and Tenant each hereby waive any and all rights of recovery against the other or against the officers, employees, agents, and representatives of the other, on account of loss or damage occasioned to such waiving party or its property or the property of others under its control to the extent that such loss or damage is insured against under any "all risk" insurance policy which either may have in force at the time of such loss or damage, such waivers to continue as long as their respective insurers so permit. Any termination of such a waiver shall be by written notice of circumstances as hereinafter set forth. Landlord and Tenant upon obtaining the policies of insurance required or permitted under this Lease shall give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease. If such policies shall not be obtainable with such waiver or shall be so obtainable only at premium over that chargeable without such waiver, the party seeking such policy shall notify the other thereof, and the latter shall have ten (10) days thereafter to either (i) procure such insurance in companies reasonably satisfactory to the other party or (ii) agree to pay such additional premium (in the Tenant's case, in the proportion which the area of the Demised Premises bears to the insured area). If neither (i) nor (ii) are done, this Section 21.6 shall have no effect during such time as such policies shall not be obtainable or the party in whose factor a waiver of subrogation is desired shall refuse to pay the additional premium. If such policies shall at any time be unobtainable, but shall be subsequently obtainable, neither party shall be subsequently liable for a failure to obtain such insurance until a reasonable time after notification thereof by the other party. If the release of either Landlord or Tenant, as set forth in the first sentence of this Section 21.6 shall contravene any law with respect to exculpatory agreements, the liability of the party in question shall be deemed not released but shall be secondary to the other's insurer. 21.7 Not more frequently than once each three (3) years, Landlord or Tenant may require insurance policy limits to be raised to conform with requirements of Landlord's lender and/or to bring coverage limits to the level then being required of new tenants of space within the Project. 21.8 Any insurance required to be carried by Landlord under this Lease shall provide for a deductible of not more than Ten Thousand Dollars ($10,000) per occurrence. -25- 39 22. Damage or Destruction. 22.1 In the event of a partial destruction of the Building by fire or other perils covered by "all risk" insurance not exceeding twenty-five percent (25%) of the full insurable value thereof, and if the damage thereto is such that the Building may be repaired, reconstructed or restored within a period of ninety (90) days from the date of the happening of such casualty and Landlord will receive insurance proceeds sufficient to cover the cost of such repairs (except for any deductible amount provided by Landlord's policy, which deductible amount if paid by Landlord shall be an Operating Expense), Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and this Lease shall continue in full force and effect. 22.2 In the event of any damage to or destruction of the Building other than as provided in Section 22.1, Landlord may nevertheless elect to repair, reconstruct and restore the Building, but if Landlord elects not to do so, then this Lease shall terminate as of the date of the damage or destruction. Landlord shall give written notice to Tenant of its election not to repair, reconstruct or restore the Building or Project within the thirty (30) day period commencing on the date of damage or destruction. 22.3 In the event of repair, reconstruction and restoration as herein provided, the Rent provided to be paid under this Lease shall be abated proportionately based on the extent to which Tenant's use of the Demised Premises is impaired during the period of such repair, reconstruction or restoration, unless Landlord provides Tenant with other space in the Project during the period of repair, which in Tenant's reasonable opinion is suitable for the temporary conduct of Tenant's business. Tenant shall not be entitled to any compensation or damages occasioned by any such damage, repair, reconstruction or restoration except to the extent such damages are caused by Landlord's gross negligence or willful misconduct. 22.4 If Landlord is obligated to or elects to repair or restore as herein provided, Landlord shall be obligated to make repairs or restoration only of those portions of the Demised Premises which were originally provided at Landlord's expense pursuant to the Work Letter; the repair and restoration of items not provided at Landlord's expense, including the emergency generator except to the extent it is paid for from the Tenant Improvement Allowance described in the Work Letter, shall be the obligation of Tenant. 22.5 Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Demised Premises when the damage resulting from any casualty -26- 40 covered under this Article occurs during the last twelve (12) months of the term of this Lease or any extension hereof unless Tenant has exercised or elects to exercise its option to extend the term of the Lease. 22.6 Notwithstanding anything to the contrary contained in this Article, should Landlord fail to complete the repair or restoration of the damage of the Demised Premises within ninety (90) days after written notice from Tenant to Landlord of the need for such repairs or maintenance, Tenant may, unless the damage or destruction was caused by an act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, and unless the damage or destruction does not materially interfere with Tenant's use of the Demised Premises, at its option, cancel this Lease by giving Landlord written notice, and thereafter neither party shall have any further rights, duties or obligations hereunder. 22.7 To the extent it is obligated to repair or restore the Building or the Demised Premises under this Article 22, in the event Landlord fails to commence the repair or restoration within a period of thirty (30) days after notice from Tenant of the need of such repairs or maintenance, or fails to diligently prosecute the repairs or restoration to completion, Tenant shall have the right but not the obligation to undertake the repairs or restoration and may deduct any cost or expense in connection therewith from any Rent otherwise coming due to the extent such cost is not included within Tenant's Pro Rata Share of Operating Expenses under Section 7 of this Lease. 22.8 Except as set forth in this Article 22, Tenant shall not be relieved of any covenants under this Lease nor shall there be any liability of Landlord in excess of proceeds of applicable insurance policies, if any, by reason of any injury to or interference with Tenant's business arising from damage or destruction to the Building or the Demised Premises or in or to fixtures, appurtenances and equipment therein, except to the extent such injury or interference is caused by Landlord's gross negligence or willful misconduct. 23. Eminent Domain. 23.1 In the event the whole of the Demised Premises, or such part thereof as shall substantially interfere with the Tenant's use and occupancy thereof, shall be taken for any public or quasi-public purpose by any lawful power or authority by exercise of the right of appropriation, condemnation or eminent domain, or sold to prevent such taking, Tenant or Landlord may terminate this Lease effective as of the date possession is required to be surrendered to said authority. -27- 41 23.2 In the event of a partial taking of the Building, the Project or of drives, walkways, and parking areas serving the Building for any public or quasi-public purpose by any lawful power or authority by exercise of right of appropriation, condemnation, or eminent domain, or sold to prevent such taking, Tenant may elect to terminate this Lease provided such taking is of material detriment to Tenant's use of the Demised Premises. 23.3 Tenant shall be entitled to any award which is specifically awarded as compensation for the taking of Tenant's personal property and fixtures, including tenant improvements which were installed at Tenant's expense, for the value of the unexpired portion of Tenant's interest in the Lease, and for costs of Tenant moving to a new location. 23.4 If upon any taking of the nature described in this Article 23 this Lease continues in effect, then Landlord shall promptly proceed to restore the Demised Premises, Building, and Project to substantially their same condition prior to such partial taking. To the extent such restoration is feasible, the Rent shall be abated proportionately on the basis of the percentage of the rental value of the Demised Premises after such taking and the rental value of the Demised Premises prior to such taking. 24. Defaults and Remedies. 24.1 Late payment by Tenant to Landlord of Rent and other sums due will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing, accounting charges and late charges which may be imposed on Landlord by the terms of any mortgage or trust deed covering the Demised Premises. In the event that Tenant shall fail to pay to Landlord within ten (10) days of the date when due any payment owing to Landlord pursuant to the terms of this Lease, said late payment shall bear interest at the lesser of (i) ten percent (10%) per annum, or (ii) the maximum rate permitted by law. Such interest shall be calculated from the date due and payable until the same shall have been fully paid. 24.2 No payment by Tenant or receipt by Landlord of a lesser amount than the rent payment herein stipulated shall be deemed to be other than on account of the rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided. If at any time a dispute shall arise as to any amount or sum of money to be paid by Tenant to Landlord, Tenant shall have the right to make -28- 42 payment "under protest" and such payment shall not be regarded as a voluntary payment, and there shall survive the right on the part of Tenant to institute suit for recovery of the payment paid under protest. 24.3 If Tenant fails to pay any sum of money (other than Basic Annual Rent) required to be paid by it hereunder, or shall fail to perform any other act on its part to be performed hereunder, Landlord may, without waiving or releasing Tenant from any obligations of Tenant, but shall not be obligated to, make such payment or perform such act; provided, that such failure by Tenant continued for thirty (30) days after notice from Landlord demanding performance by Tenant was delivered to Tenant, or that such failure by Tenant unreasonably interfered with the use of the Building by any other tenant or with the efficient operation of the Building, or resulted or could have resulted in a violation of law or the cancellation of an insurance policy maintained by Landlord. All sums so paid or incurred by Landlord, together with interest thereon, from the date such sums were paid or incurred, at the annual rate equal to ten percent (10%) per annum or highest rate permitted by law, whichever is less, shall be payable to Landlord on demand as Additional Rent. 24.4 The occurrence of either of the following events shall constitute a "Default" hereunder by Tenant: (a) The failure by Tenant to make any payment of Rent, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant. Such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161; (b) The failure by Tenant to observe or perform any obligation other than described in Sections 24.4(a) to be performed by Tenant, where such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant. Such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161; provided that if the nature of Tenant's default is such that it reasonably requires more than thirty (30) days to cure, then Tenant shall not be deemed to be in default if Tenant shall commence such cure within said thirty (30) day period and thereafter diligently prosecute the same to completion; Notices given under this Section shall specify the alleged default and shall demand that Tenant perform the provisions of this Lease or pay the Rent that is in arrears, as the case may be, within the applicable period of time, or quit the Demised Premises. No such notice shall be deemed a -29- 43 forfeiture or a termination of this Lease unless Landlord elects otherwise in such notice. 24.5 In the event of a Default by Tenant, and at any time thereafter, upon such notice as may be required by California law, without limiting Landlord in the exercise of any right or remedy which Landlord may have, Landlord shall be entitled to terminate Tenant's right to possession of the Demised Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall have the right, upon such notice as may be required by California law but no sooner than ten (10) days after the event of Default, to re-enter and remove all persons and property, and may dispose of the property in accordance with and upon such notice to Tenant as may be required by California law. However, notwithstanding any provision of law to the contrary, the proceeds of any sale of the property may be applied by Landlord against any amounts due under this Lease from Tenant to Landlord and against any expenses incident to the removal, storage and sale of said personal property. In the event that Landlord shall elect to so terminate this Lease, then Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default, including: (a) The worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (b) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds that portion of such rental loss which Tenant proves could have been reasonably avoided; plus (c) The worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus (d) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligation under this Lease or which in the ordinary course of things would be likely to result therefrom as may be permitted from time to time by applicable law. As used in Subsections (a) and (b) above, "worth at the time of award" shall be computed by allowing interest at the rate specified in Section 24.1. As used in Subsection (c) above, the "worth at the time of award" shall be computed by taking the present value of such amount, by using -30- 44 the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percentage point. 24.6 In the event of a Default by Tenant, and at any time thereafter, upon such notice as may be required by California law, without terminating this Lease and without limiting Landlord in the exercise of any right or remedy which Landlord may have, Landlord shall have the immediate right to re-enter and remove all persons and property, and to dispose of the property in accordance with and upon such notice to Tenant as may be provided by California law. However, notwithstanding any provision of law to the contrary, the proceeds of any sale of the property may be applied by Landlord against any amounts due under this Lease from Tenant to Landlord and against any expenses incident to the removal, storage and sale of said personal property. No such re-entry shall be considered or construed to be a forcible entry by Landlord. If Landlord does not elect to terminate this Lease as provided in this Section, then Landlord may, from time to time, recover all Rent as it becomes due under this Lease. At any time thereafter, Landlord may elect to terminate this Lease and to recover damages to which Landlord is entitled. 24.7 All rights, options, and remedies of Landlord contained in this Lease shall be construed and held to be nonexclusive and cumulative. Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Lease. No waiver of any default of Tenant hereunder shall be implied from any acceptance by Landlord of any Rent or other payments due hereunder of any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect defaults other than as specified in said waiver. 24.8 Termination of this Lease or Tenant's right to possession by Landlord shall not relieve Tenant from any liability to Landlord which has theretofore accrued or shall arise based upon events which occurred prior to the last to occur of (i) the date of Lease termination or (ii) the date the Demised Premises are vacated. 24.9 Except as set forth in Articles 16, 18, and 22 of this Lease, Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for performance, then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. -31- 45 24.10 In the event of any default on the part of Landlord or Tenant, the non-defaulting party will give notice by registered or certified mail to any beneficiary of a deed of trust or mortgagee of a mortgage covering the Building or any improvements to or equipment in the Building whose address shall have been furnished and shall offer such beneficiary or mortgagee a reasonable opportunity to cure the default, including time to obtain possession of the Building, improvements, or equipment by power of sale or a judicial action if such should prove necessary to effect a cure. 25. Assignment or Subletting. 25.1 Tenant may sublet the Demised Premises to the La Jolla Institute for Allergy and Immunology. 25.2 Tenant may sublet the Demised Premises or any part thereof to any party other than La Jolla Institute for Allergy and Immunology provided that Tenant first irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the Demised Premises. Landlord as assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward Tenant's obligations under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent. 25.3 Tenant may assign this Lease provided that the assignee first executes, acknowledges and delivers to Landlord an agreement whereby the assignee agrees to be bound by all of the covenants and agreements in this Lease. 25.4 Notwithstanding any subletting or assignment, Tenant (and the initial guarantor of the Lease) shall remain fully and primarily liable for the payment of all rental and other sums due, or to become due hereunder, and for the full performance of all other terms, conditions, and covenants to be kept and performed by Tenant, unless the assignee or subsequent guarantor shall have a net worth (determined in accordance with generally accepted accounting principles consistently applied) immediately after such assignment which is at least equal to the net worth (as so determined) of Tenant and the initial guarantor of Tenant's obligations under this Lease. The acceptance of rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant, or condition hereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting or assignment of the Demised Premises. 25.5 Except as set forth above, Tenant shall not, either voluntarily or by operation of law, sell, hypothecate or -32- 46 transfer this Lease, or sublet the Demised premises or any part hereof, or permit or suffer the Demised Premises or any part thereof to be used or occupied as work space, storage space, mailing privileges, concession or otherwise by anyone other than Tenant or Tenant's employees, without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld or delayed. 26. Attorney's Fees. 26.1 If either party becomes a party to any litigation concerning this Lease, the Demised Premises, or the Building or Project in which the Demised Premises are located, buy reason of any act or omission of the other party or its authorized representatives, and not by any act or omission of the party that becomes a party to that litigation or any act or omission of its authorized representatives, the party that causes the other party to become involved in the litigation shall be liable to that party for reasonable attorneys' fees and court costs incurred by it in the litigation. 26.2 If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit. 27. [Intentionally Left Blank.) 28. Definition of Landlord. 28.1 The term "Landlord" as used in this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only Landlord or the successor-in-interest of Landlord under this Lease at the time in question. In the event of any transfer, assignment or the conveyance of Landlord's title or leasehold, the Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer, assignment or conveyance of all liability for the performance of any covenants or obligations contained in this Lease thereafter to be performed by Landlord and, without further agreement, the transferee of such title or leasehold shall be deemed to have assumed and agreed to observe and perform any and all obligations of Landlord hereunder, during its ownership or ground lease of the Demised Premises. Landlord may transfer its interest in the Demised Premises or this Lease without the consent of Tenant and such transfer or subsequent transfer shall not be deemed a violation on the part of Landlord or the then grantor of any of the terms or conditions of this Lease. -33- 47 29. Estoppel Certificate. 29.1 Tenant or Landlord, as the case may be, shall within ten (10) days of written notice from the other party, execute, acknowledge and deliver to the other party a statement in writing substantially in the form attached to this Lease as Exhibit "E" with the blanks filled in, and on any other form reasonably requested by a proposed lender or purchaser, (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect) and the dates to which the rental and other charges are paid in advance, if any, (ii) acknowledging that there are not, to the certifying party's knowledge, any uncured defaults on the part of the other party hereunder, or specifying such defaults if any are claimed and (iii) setting forth such further information with respect to this Lease or the Demised Premises as may be requested thereon. Any such statement may be relied upon by any prospective purchaser or encumbrancer of all or any portion of the real property of which the Demised Premises are a part. 30. [Intentionally Left Blank.) 31. Limitation of Landlord's Liability. 31.1 If Landlord is in default of this Lease, and as a consequence, Tenant recovers a money judgment against Landlord, the judgment shall be satisfied only out of the proceeds of sale received on execution of the judgment and levy against the right, title, and interest of Landlord in the Building and Project of which the Demised Premises are a part, and out of rent or other income from the Building and Project receivable by Landlord or out of the consideration received by Landlord from the sale or other disposition of all or any part of Landlord's right, title, and interest in the Building and Project of which the Demised Premises are a part. 31.2 Landlord shall not be personally liable for any deficiency. If Landlord is a partnership or joint venture, the partners of such partnership shall not be personally liable and no partner of Landlord shall be sued or named as a party in any suit or action or service of process be made against any partner of Landlord except as may be necessary to secure jurisdiction of the partnership or joint venture. If Landlord is a corporation, the shareholders, directors, officers, employees, and/or agents of such corporation shall not be personally liable and no shareholder, director, officer, employee, or agent of Landlord shall be sued or name as a party in any suit or action or sevice of process be made against any shareholder, director, officer, employee, or agent of Landlord. No partner, shareholder, director, employee, or agent of Landlord shall be required to answer or otherwise -34- 48 plead to any service of process and no judgment will be taken or writ of execution levied against any partner, shareholder, director, employee, or agent of Landlord. 31.3 Each of the covenants and agreements of this Article 31 shall be applicable to any covenant or agreement either expressly contained in this Lease or imposed by statute or by common law. 32. Project Control by Landlord. 32.1 Landlord reserves full control over the Building and Project to the extent not inconsistent with Tenant's quiet enjoyment and use of Demised Premises. This reservation includes but is not limited to right of Landlord to subdivide the project, the right to grant easements and licenses to others subject to the consent of Tenant, which shall not be unreasonably withheld or delayed, and the right to maintain or establish ownerships of Building separate from fee title to land, provided no such change is of the nature to have a material adverse effect upon Tenant's use and enjoyment of Demised Premises. 32.2 Tenant shall, should Landlord so request, promptly join with Landlord in execution of such documents as may be appropriate to assist Landlord to implement any such action provided Tenant need not execute any document which is of nature wherein liability is created in Tenant or if by reason of the terms of such document Tenant will be deprived of the quiet enjoyment and use of the Demised Premises as granted by this Lease. 33. Quiet Enjoyment. 33.1 So long as Tenant is not in default, Landlord covenants that Landlord or anyone acting through or under Landlord will not disturb Tenant's occupancy of the Demised Premises except as permitted by the provisions of this Lease, and that Landlord shall use reasonable efforts to enforce the lease obligations of tenants of the balance of the Building to the extent they might otherwise disturb Tenant's occupancy. Landlord shall provide copies to Tenant of any notices given to other tenants of the Building regarding tenant defaults or other matters which may materially effect Tenant's quiet enjoyment of the Demised Premises. 34. Quitclaim Deed. 34.1 Tenant shall execute and deliver to Landlord on the expiration or termination of this Lease, immediately on Landlord's request, a quitclaim deed to the Demised premises and Project or other document in recordable form suitable to evidence of record termination of this Lease. -35- 49 35. Rules and Regulations. 35.1 Tenant shall faithfully observe and comply with the Rules and Regulations attached hereto as Exhibit "D" and all reasonable and nondiscriminatory modifications thereof and additions thereto from time to time put into effect by Landlord. Landlord shall not be responsible to Tenant for the violation or non-performance by any other tenant or any agent, employee or invitee thereof of any of said Rules and Regulations. 36. Subordination and Attornment. 36.1 Unless the mortgagee or beneficiary elects otherwise, this Lease shall be subject and subordinate to the lien of any mortgage or deed of trust now or hereafter in force against the Project and Building of which the Demised Premises are a part, and to all advances made or hereafter to be made upon the security thereof without the necessity of the execution and delivery of any further instruments on the part of Tenant to effectuate such subordination. 36.2 Notwithstanding the foregoing, Tenant shall execute and deliver upon demand such further instrument or instruments evidencing such subordination of this Lease to the lien of any such mortgage or mortgages or deeds of trust as may be required by Landlord. However, if any such mortgagee or beneficiary so elects, this Lease shall be deemed prior in lien to any such mortgage or deed of trust upon or including the Demised Premises regardless of date and Tenant will execute a statement in writing to such effect at Landlord's request. 36.3 In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust made by the Landlord covering the Demised Premises, the Tenant shall at the election of the purchaser at such foreclosure or sale attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease. 36.4 So long as this Lease is in full force and effect and there is no uncured Default with respect to Tenant's obligations under the Lease, no mortgage, deed of trust, or other interest to which this Lease and/or Tenant's rights are or may become subordinate, and no action or proceedings under and/or termination of any such mortgage, deed of trust, or other interest, shall affect in any manner whatsoever Tenant's rights under this Lease, Tenant's use, possession or enjoyment of the Demised Premises, or the leasehold estate granted by this Lease. 36.5 Any and all mortgagees of the Project and beneficiaries of deeds of trust encumbering the Project shall -36- 50 execute and deliver to Tenant a subordination and attornment agreement substantially in the form attached hereto as Exhibit "G", unless the mortgagee or beneficiary of the deed of trust has elected under Section 36.2 above that this Lease shall be deemed prior in lien to the mortgage or deed of trust. 37. Surrender. 37.1 No surrender of possession of any part of the Demised Premises shall release Tenant from any of its obligations hereunder unless accepted by Landlord. 37.2 The voluntary or other surrender of this Lease by Tenant shall not work a merger, unless Landlord consents, and shall, at the option of Landlord, operate as an assignment to it of any or all subleases or subtenancies. 38. Waiver and Modification. 38.1 No provision of this Lease may be modified, amended or added to except by an agreement in writing. The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. 39. [Intentionally Left Blank.) 40. [Intentionally Left Blank.] 41. Hazardous Materials. 41.1 Landlord's Representations and Warranties. Landlord represents and warrants to Tenant that, to Landlord's knowledge, after due inquiry, (a) no Hazardous Materials (as hereinafter defined), including, without limitation, asbestos-containing PCBs, are present or were installed, exposed, released or discharged in, on or under the Demised Premises at any time during or prior to Landlord's ownership thereof, and no prior owner or occupant of the Demised Premises has used Hazardous Materials, (b) no storage tanks for gasoline or any other substance are or were located on the Demised Premises at any time during or prior to Landlord's ownership thereof, and (c) the Demised Premises has been used and operated in compliance with all applicable local, state and federal laws, ordinances, rules, regulations and orders, and Landlord has all permits and authorizations required for the use and operation of the Demised Premises. Landlord shall maintain and operate the Demised Premises at all times in compliance with all applicable local, state and federal laws, ordinances and regulations, shall make all disclosures required of Landlord by any such laws, ordinances and regulations, and shall comply with all orders issued by any governmental -37- 51 authority having jurisdiction over the Demised Premises and take all action required of such governmental authorities to bring the Demised Premises into compliance with all laws, rules, regulations and ordinances relating to Hazardous Materials and affecting the Demised Premises. 41.2 Tenant's Representations and Warranties. Tenant shall maintain and operate the Demised Premises at all times in compliance with all applicable local, state and federal laws, ordinances and regulations, shall make all disclosures required of Tenant by any such laws, ordinances and regulations, and shall comply with all orders issued by any governmental authority having jurisdiction over the Demised Premises and take all action required of such governmental authorities to bring the Demised Premises into compliance with all laws, rules, regulations and ordinances relating to Hazardous Materials and affecting the Demised Premises. 41.3 Indemnity by Landlord. If contamination of the Demised Premises by Hazardous Materials occurs for which Landlord is liable to Tenant under Section 41.1 for damage resulting therefrom, then Landlord shall indemnify, defend and hold Tenant, its agents, contractors, and sublessees harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, damages for the loss or restriction on use of the Demised Premises and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise during or after the term of the Lease as a result of such contamination. The indemnification of Tenant by Landlord includes, without limitation, costs incurred in connection with any investigation of site conditions (except as set forth in Section 41.7 below) or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on or under the Demised Premises. 41.4 Indemnity by Tenant. If contamination of the Demised Premises by Hazardous Materials occurs for which Tenant is liable to Landlord under Section 41.2 for damage resulting therefrom, or if the presence of Hazardous Material on the Demised Premises caused or permitted by Tenant results in contamination of the Demised Premises, or if contamination of the Demised Premises by Hazardous Material otherwise occurs for which Tenant is legally liable to Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and hold Landlord, its agents and contractors harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Demised Premises or any portion of the Project, damages for the loss or restriction on use of rentable space or of any amenity of the Demised Premises or Project, damages arising from any adverse impact on marketing -38- 52 of space in the Demised Premises or the Project, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise during or after the term of the Lease as a result of such contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions (except as set forth in Section 41.7 below) or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on or under the Demised Premises. Without limiting the foregoing, if the presence of any Hazardous Material on the Demised Premises caused or permitted by Tenant results in any contamination of the Demised Premises, Tenant shall promptly take all actions at its sole expense as are necessary to return the Demised Premises to the condition existing prior to the introduction of any such Hazardous Material to the Demised Premises. 41.5 Notices. If at any time Tenant or Landlord shall become aware, or have reasonable cause to believe, that any Hazardous Material has been released or has otherwise come to be located on or beneath the Demised Premises, such party shall, immediately upon discovering the release or the presence or suspected presence of the Hazardous Material, give written notice of that condition to the other party. In addition, the party first learning of the release or presence of a Hazardous Material on or beneath the Demised Premises shall immediately notify the other party in writing of (i) any enforcement, cleanup, removal, or other governmental or regulatory action instituted, completed or threatened pursuant to any Hazardous Material laws, (ii) any claim made or threatened by any person against Landlord, Tenant or the Demised Premises arising out of or resulting from any Hazardous Material, and (iii) any reports made to any local, state or federal environmental agency arising out of or in connection with any Hazardous Material. 41.6 Hazardous Materials. As used in this Agreement, the term "Hazardous Materials" means any hazardous or toxic substances, materials or waste, including, but not limited to, those substances, materials and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302), and amendments thereto, or such substances materials and wastes which are or become regulated under any applicable local, state or federal law, including, without limitation, any material, waste or substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (v) defined as a "hazardous substance" under Section 25316 of the -39- 53 California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (vi) defined as a "hazardous material," "hazardous substance" or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (vii) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (viii) defined as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251, et seq. (33 U.S.C. Section 1321), or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317), (ix) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903), or (x) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C. Section 9601). 41.7 Testing. Prior to the Term Commencement Date, at the time Tenant vacates the Demised Premises, and at the time any other Tenant vacates any other portion of the Building, Landlord shall conduct appropriate tests of water and soil and deliver to Tenant the results of such tests to demonstrate the level of contamination, if any, at the time of the Term Commencement Date or the vacation of the Demised Premises or other portion of the Building, as the case may be, in order to determine if contamination in excess of permissible levels has occurred as a result of Tenant's use of the Demised Premises. Landlord shall pay the expense of the tests prior to the Term Commencement Date and at the time any other Tenant vacates any other portion of the Building, and Tenant shall pay the expense of the tests at the time Tenant vacates the Demised Premises. 41.8 Storage Tanks. If storage tanks storing Hazardous Materials are located on the Demised Premises or are hereafter placed on the Demised Premises by Tenant, Tenant shall monitor the storage tanks, maintain appropriate records, implement reporting procedures, and take or cause to be taken all other steps necessary as required under the California Administrative Code and the California Health and Safety Code as they now exist or may hereafter be adopted or amended. 41.9 Tenant's and Landlord's Obligations. Tenant's and Landlord's obligations under this Article 41 shall survive the termination of the Lease. 42. Option to Extend. 42.1 Landlord grants to Tenant the right to extend the term of this Lease for two (2) separate five (5) year -40- 54 periods under the same terms and conditions existing in the original Lease. Basic Annual Rent shall be adjusted on the first day of the first full calendar month of each extension term and annually thereafter in accordance with Article 6, as if the initial term of the Lease had not expired. Tenant shall exercise such right to extend the term of this Lease by written notice to Landlord no later than twelve (12) months prior to the end of the original term or the first extension term of this Lease, as the case may be. There shall be no further right to extend the term of this Lease beyond said two (2) extension periods. 43. Continuing Right of First Refusal to Lease Additional Space. 43.1 Each time during the term of the Lease Landlord determines to lease all or any part of the balance of the space in Building No. 2 to a prospective tenant, other than the initial lease of the space, Landlord shall notify Tenant of the identity of the prospective tenant and the term, tenant concessions, tenant improvements, and rent of the proposed lease. If Tenant, within ten (10) days after Landlord's notice is given, indicates in writing its agreement to lease all of the space described in Landlord's notice on the terms stated in Landlord's notice, Landlord shall lease the space to Tenant on the terms stated in the notice. If Tenant does not indicate in writing its agreement within ten (10) days after Landlord's notice is given, Landlord thereafter shall have the right to lease the space to the prospective tenant on substantially the same terms as are stated in the notice. If Landlord does not lease such space to the prospective tenant within one hundred and fifty (150) days after Landlord's notice is given, any further transaction shall be deemed a new determination by Landlord to lease the space and the provisions of this Article shall again be applicable. 43.2 Notwithstanding the forgoing Section 43.1, in the event Tenant fails to exercise the Expansion Option in response to the notice given by Landlord pursuant to Section 44.4 of this Lease and thereafter fails to exercise the right of first refusal described in the preceding Section 43.1, then the right of first refusal shall terminate and Tenant shall have no further right of first refusal to lease such space. 44. Option to Expand. 44.1 Landlord grants to Tenant the option ("Expansion Option") to lease the entire balance, but not less than the entire balance, of the space ("Expansion Space") in the Building under the terms and conditions of this Section 44. 44.2 Tenant shall exercise the Expansion Option by giving written notice to Landlord no earlier than twelve (12) -41- 55 months and no later than six (6) months prior to the fifth (5th) anniversary of the Term Commencement Date (the first day of the sixth year of the term of the Lease). If Tenant exercises the Expansion Option, Tenant shall occupy and commence paying Rent for the Expansion Space on the fifth (5th) anniversary of the Term Commencement Date (the first day of the sixth year of the term of the Lease). If Tenant fails to exercise the Expansion Option as set forth above, the Expansion Option shall expire and be of no further force or effect. 44.3 At the election of Landlord, for every month or part thereof after the thirty-sixth (36th) and before the forty-ninth (49th) month of the Lease term that the Expansion Space is vacant and not producing rent to Landlord, the period of time during which Tenant may exercise the Expansion Option and occupy and commence paying Rent for the Expansion Space shall be extended one (1) month. Landlord shall advise Tenant in writing on a month-to-month basis of its election pursuant to the preceding sentence to extend the period of time during which Tenant may exercise the Expansion Option and occupy and commence paying Rent for the Expansion Space, and such time shall be extended one month for each month Tenant receives such notice. 44.4 If after the last day of the forty-eighth (48th) month of the Lease term the Expansion Space is vacant and not producing rent to Landlord, Landlord at its election may give Tenant sixty (60) days written notice that it may exercise the Expansion Option by (i) notice to Landlord, (ii) occupancy of the Expansion Space, and (iii) the commencement of the payment of Rent for the Expansion Space on or before the sixty-first (61st) day from the date of the notice, and if Tenant fails to so exercise the Expansion Option within such period, the Expansion Option shall expire and be of no further force or effect. 44.5 Tenant shall occupy the Expansion Space in an "as is" condition, and Landlord shall not be required to pay for any tenant improvements. However, to the extent that Landlord had previously installed Tenant Improvements at a cost to Landlord of less than $90.00 per usable square foot (based upon 14,731 of usable square feet in the Expansion Space), Landlord shall contribute the difference between the cost of the tenant improvements previously installed and $90.00 per usable square foot toward improving or modifying the Expansion Space to Tenant's specifications. 44.6 In the event Tenant exercises the Expansion Option, Landlord and Tenant shall execute an amendment to this Lease (i) adding the Expansion Space to the Demised premises, (ii) increasing the Basic Annual Rent to include the Rentable Area of the Expansion Space (16,490 rentable square feet) multiplied by the Basic Annual rent then payable per rentable -42- 56 square foot of the Demised Premises as increased annually under Section 6 of the Lease ($2.05 per rentable square foot per month as increased annually under Section 6), (iii) changing Tenant's Pro Rata Share to reflect that Tenant is occupying the entirety of the Building, and (iv) making such other revisions as may be appropriate to reflect the fact that Tenant has increased the size of the Demised Premises and occupied the Expansion Space without any tenant concessions except as set forth in this Section 44. The rent Tenant shall pay upon occupancy for the Expansion Space will be the amount Tenant then pays per rentable square foot for the Demised Premises, and the rent shall be increased under Section 6 at the same time the rent is increased for the Demised Premises (the first day of the calendar month following each anniversary of the Term Commencement Date). 45. Miscellaneous. 45.1 Terms and Headings. Where applicable in this Lease, the singular includes the plural and the masculine or neuter includes the masculine, feminine and neuter. The section headings of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. 45.2 Examination of Lease. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or option for lease, and it is not effective as a lease or otherwise until execution by and delivery to both Landlord and Tenant. 45.3 Time. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. 45.4 Covenants and Conditions. Each provision of this Lease performable by Tenant shall be deemed both a covenant and a condition. 45.5 Consents. Whenever consent or approval of either party is required, that party shall not unreasonably withhold or delay such consent or approval, except as may be expressly set forth to the contrary. 45.6 Entire Agreement. The terms of this Lease are intended by the parties as a final expression of their agreement with respect to the terms as are included herein, and may not be contradicted by evidence of any prior or contemporaneous agreement. The Basic Lease Provisions, General Provisions, Addendum, and Exhibits all constitute a single document and are incorporated herein. -43- 57 45.7 Severability. Any provision of this Lease which shall prove to be invalid, void, or illegal in no way affects, impairs or invalidates any other provision hereof, and such other provisions shall remain in full force and effect. 45.8 Recording. A short form memorandum hereof shall be recorded at the election of either Landlord or Tenant. 45.9 Impartial Construction. The language in all parts of this Lease shall be in all cases construed as a whole according to its fair meaning and not strictly for or against either Landlord or Tenant. 45.10 Inurement. Each of the covenants, conditions, and agreements herein contained shall inure to the benefit of and shall apply to and be binding upon the parties hereto and their respective heirs, legatees, devisees, executors, administrators, successors, assigns, sublessees, or any person who may come into possession of said Demised Premises or any part thereof in any manner whatsoever. Nothing in this Section 45.10 contained shall in any way alter the provisions against assignment or subletting in this Lease provided. 45.11 Notices. All notices, requests, demands, and other communications required or permitted to be given under this Lease shall be in writing and given by first class registered or certified mail, return receipt requested, postage prepaid, and properly addressed to Tenant or Landlord at the addresses shown in Section 2.1.10 of this Lease, in which case such notice shall be deemed to have been duly given on the fifth (5th) day following the date such notice is mailed. A courtesy copy of the notice or other communication shall be given by telephonic facsimile transmission on the day the notice is mailed. Either party may, by notice to the other given pursuant to this Section, specify additional or different addresses for notice purposes. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first above written. Landlord: Tenant: Nexus Centre/Torrey Pines Gemini Science, Inc. A California Limited Partnership A California Corporation By Nexus Development Corporation By: /s/ KOICHIRO ARAMAKI - Southern Division ---------------------------- A California Corporation Koichiro Aramaki General Partner President By: /s/ MICHAEL J. REIDY ------------------------------ Michael J. Reidy President -44- 58 EXHIBIT "A" Project Site Plan 59 NEXUS CENTRE / TORREY PINES SCHEMATIC LANDSCAPE 60 HOPE Architects and Engineers 401 WEST "A" STREET SAN DIEGO CA 92112-4171 NEXUS NEXUS CENTRE TORREY PINES 61 EXHIBIT "A-1" Floor Plan of Demised Premises 62 NEXUS FLOOR PLAN 63 NEXUS FLOOR PLAN 64 EXHIBIT "B" Work Letter Agreement 65 WORK LETTER AGREEMENT This Work Letter Agreement ("Agreement") is made and entered into as of the 1st day of March, 1989, by and between Nexus Centre/Torrey Pines, a California limited partnership ("Landlord"), and Gemini Science, Inc., a California corporation ("Tenant"). RECITALS A. Concurrently with the execution of this Work Letter Agreement, Landlord and Tenant have entered into a lease (the "Lease) covering certain premises (the "Demised Premises") more particularly described in Exhibit "A" to the Lease. B. In order to induce Tenant to enter into the Lease, Landlord has agreed to install certain leasehold improvements in the Demised Premises (the "Tenant Improvements") and has entered into an agreement with Kornberg & Associates ("Architect") to perform certain architectural services in connection therewith. C. Landlord expressly understands that Tenant would not have entered into the Lease without the assurances made by Landlord hereunder, including without limitation, the assurance that Landlord shall use its best efforts to complete the Tenant Improvements and deliver the Demised Premises to Tenant on or before the Scheduled Commencement Date (as defined herein), and shall do so within the Fixed Price (as defined herein). D. Landlord further understands and acknowledges that Tenant will incur substantial costs and expenses in reliance on the assurances of Landlord hereunder. Such costs and expenses shall include, without limitation, the cost of moving and relocating scientists, technicians, and administrative officers, acquiring other employees of Tenant from all over the continental United States and abroad, and the hiring of such additional personnel and the acquisition of such specialized equipment as may be necessary to commence Tenant's immediate operations in the Demised Premises on or before the Scheduled Commencement Date. NOW, THEREFORE, in recognition of the foregoing and in consideration of the mutual covenants and conditions contained herein, Landlord and Tenant hereby agree as follows: 66 1. Tenant Improvements. Landlord shall complete the Tenant Improvements and deliver the Demised Premises to Tenant in accordance with the terms and conditions of this Agreement. Landlord and Tenant shall at all times cooperate with each other in good faith to effect the timely completion of the various tasks required of Landlord and Tenant for the completion of the Tenant Improvements on or before the Scheduled Commencement Date. In the event Tenant fails to fulfill any obligation of Tenant hereunder and such failure results from a matter other than an event of Force Majeure (as defined herein), such failure shall be deemed a "Tenant Delay". In the event Landlord fails to deliver the Demised Premises to Tenant on or before the Scheduled Commencement Date and such failure results from any matter other than a Tenant Delay or an event of Force Majeure, such failure shall be deemed a "Landlord Delay". Landlord and Tenant shall reasonably attempt to give each other advance written notice of any matter within the notifying party's control that is causing or threatening to cause any failure of an obligation hereunder. As of the date of this Agreement, neither Landlord nor Tenant is aware of any matter that would constitute a Landlord or Tenant Delay or event of Force Majeure. As a result thereof, and subject to the terms and conditions of this Agreement, Landlord agrees to use its best efforts to complete the Tenant Improvements and deliver the Demised Premises to Tenant on or before the Scheduled Commencement Date. 2. Tenant Improvement Plans. (a) Landlord and Architect have entered into that certain agreement attached hereto as Exhibit "A" ("Architect Agreement"), whereby Architect has prepared all tenant improvements plans ("Tenant Improvement Plans") for the Demised Premises and shall monitor the construction of the Tenant Improvements to ensure they are constructed in accordance with the Tenant Improvement Plans. (b) As of the date of this Agreement Landlord and Tenant have agreed to a list of subcontractors attached hereto as Exhibit "B" ("Approved Subcontractors") which each considers acceptable to perform the construction of the Tenant Improvements. The Approved Subcontractors (i) are licensed and bondable, (ii) have no prior adverse relationship with the Contractor, (iii) are willing to provide warranties against defects in workmanship and materials for a period and to the extent as is customary in their trades in the San Diego community, (iv) are willing to sign the Contractor's normal contract forms which shall include a guaranteed maximum contract price endorsement, and (v) are acceptable to Architect. - 2 - 67 (c) Landlord has caused Architect to prepare and deliver a set of preliminary plans and specifications ("Preliminary Plans") for the Demised Premises to Tenant, which Tenant approved on December 19, 1988. (d) Landlord has caused Architect to prepare working drawings and specifications ("Working Drawings") for construction of the Tenant Improvements, which Tenant approved on February 17, 1989. (e) Architect delivered a set of Working Drawings to the appropriate governmental bodies for plan checking and the issuance of building permits on February 17, 1989. In the event the City of San Diego ("City") or County of San Diego ("County") require any changes in the Working Drawings prior to issuing the necessary building permits, Architect shall immediately notify Landlord and Tenant of any such change and Tenant shall approve or disapprove such change within one (1) business day after receipt of such notification. Tenant shall not disapprove any change that does not have a material adverse impact on the use or design of the Demised Premises or on the cost of the Tenant Improvements . (f) As soon as practical, but no later than seven (7) business days after Landlord receives all necessary City and County approvals of the Working Drawings, Landlord shall obtain final bids from the Approved Subcontractors for construction of the Tenant Improvements and shall deliver a final price (the "Final Price") for such work to Tenant. Tenant shall have five (5) days after receipt of the Final Price to approve or disapprove the Final Price. (g) In the event Tenant disapproves the Final Price, Architect shall revise the Working Drawings as directed by Tenant. Landlord shall obtain revised final bids from the Approved Subcontractors for construction of the Tenant Improvements in accordance with the revised Working Drawings and shall deliver a revised Final Price for such work to Tenant. Tenant shall have two (2) days after receipt of the revised Final Price to approve or disapprove the revised Final Price. In the event Tenant disapproves the revised Final Price, Architect and Tenant shall repeat the procedure set forth in this subparagraph (g) until Tenant approves a Final Price. Any delays associated with such revisions shall be deemed a Tenant Delay, and any expenses associated therewith shall be paid by Tenant. The Final Price which is ultimately approved by Tenant shall be deemed the fixed price ("Fixed Price") hereunder. (h) If the Fixed Price exceeds the Tenant Allowance (as defined herein), Tenant shall pay such excess cost either, at Tenant's election, (i) as a single payment to - 3 - 68 Landlord within ninety (90) days after the Actual Commencement Date, or (ii) as Rent under the Lease, in which event Tenant's initial monthly installments of Basic Annual Rent shall increase by one and a half cents ($.015) per rentable square foot for each one dollar ($1.00) of such excess cost per usable square foot (based upon 23,205 usable square feet in the Demised Premises). By way of example, if such excess costs are $55,000, Tenant's initial monthly installments of Basic Annual Rent shall increase from $2.05 to 2.085 per rentable square foot per month ($2.05 plus ($55,000 divided by 23,205) multiplied by .015). (i) Landlord shall use its best efforts to obtain all necessary building permits for construction of the Tenant Improvements by no later than April 17, 1989. Upon receipt of all such permits Landlord shall commence construction of the Tenant Improvements: In the event Landlord elects to proceed with construction of the Tenant Improvements prior to receipt of necessary building permits, Landlord shall bear the entire cost of any change in the Working Drawings required by the City or County in addition to the cost of having to reconstruct portions of the Tenant Improvements completed prior to the issuance of building permits. In addition, any delay to the Scheduled Commencement Date as a result thereof shall be deemed a Landlord Delay and shall not be considered an event of Force Majeure. 3. Tenant Allowance: (a) Landlord shall provide at Landlord's cost the building core and shell ("Building") and other Building standard equipment described in those certain plans and specifications previously approved by Tenant: In addition, Landlord shall pay Two Hundred Thousand Dollars ($200,000) toward an enhanced mechanical system for the Building. Architect has represented to Tenant that Architect has reviewed the plans and specifications for the Building and for the enhanced mechanical system and that the Building as enhanced is satisfactory for Tenant's intended use. (b) Landlord shall provide Tenant with an allowance ("Tenant Allowance") in the amount of Two Million Two Hundred Twenty Three Thousand Six Hundred Thirty Dollars ($2,223,630) for construction of the Tenant Improvements. The Tenant Allowance shall be applied toward the cost of construction and installation of all the Tenant Improvements, including, without limitation, the cost of the following: (i) All services of Architect in an amount not to exceed One Hundred Ninety-Thousand Dollars ($190,000); - 4 - 69 (ii) The payment of all City or County Plan checks, permit and license fees relating to the construction of the Tenant Improvements in an amount not to exceed Thirty Thousand Dollars ($30,000); (iii) Construction of the Tenant Improvements in accordance with the Working Drawings; (iv) Any and all testing an inspection costs; (v) Contractors' fees in an amount not to exceed three percent (3%) of the total cost of the tenant improvements (in addition to three percent (3%) for general conditions and temporary facilities, and eight percent (8%) for overhead); and (vi) All other costs to be expended by Landlord for the construction of the Tenant Improvements except those set forth in subparagraph (c) below. (c) Costs incurred by Landlord for Landlord's office or administrative overhead, development fees or other similar indirect costs of Landlord or costs resulting from Landlord Delays shall be paid by Landlord and shall not be charged against the Tenant Allowance. (d) Landlord shall pay the Contractor and Approved Subcontractors who perform construction of the Tenant Improvements on a progress payment basis, and shall provide Tenant and Architect with copies of the periodic construction draw requests and supporting documentation together with partial mechanics' lien releases when they are submitted to the construction lender. Tenant shall approve in advance expenditures for the purchase and installation of the emergency generator. (e) In the event that Fixed Price does not meet or exceed the Tenant Allowance, Tenant may use such excess as a reimbursement for its relocation costs, for the payment of equipment which must be installed for Tenant's use of the Demised Premises, including without limitation, to pay for any emergency Building generator. 4. Landlord's Cost Completion Guarantee. Landlord guarantees that the Tenant Improvements shall be completed at a cost not to exceed the Fixed Price. Landlord shall bear the entire cost of the Tenant Improvements which may exceed the Fixed Price unless such excess cost results from a Tenant Change Order under paragraph 5. Landlord shall, for example and without limitation, be responsible for all costs resulting from (i) - 5 - 70 Landlord Delay, (ii) requirements of any governmental agency subsequent to the issuance of Building permits, or (iii) excess costs resulting from required changes to the Working Drawings and reconstruction of Tenant Improvements resulting from Landlord's election to proceed with construction prior to Landlord's receipt of all necessary building permits. 5. Changes to Final Plans. In the event Tenant requires any change, addition or alteration in the Working Drawings during the construction of the Tenant Improvements, Tenant shall give Landlord a written request to make such Change ("Change Order"). Within two (2) business days after Landlord receives a Change Order Landlord shall give Tenant a written estimate of (i) the additional costs, if any, which may result from such Change Order and (ii) the resulting delay, if any, in the Scheduled Commencement Date. Tenant shall notify Landlord within two (2) business days thereafter ("Change Authorization"), as to whether Tenant elects to proceed with such Change Order. Landlord shall not make a change pursuant to any Change Order unless Landlord receives Tenant's Change Authorization. Any delay in failing to complete and deliver the Demised Premises on or before the Scheduled Commencement Date which results from Tenant's request for a Change Order or failure to give Landlord a Change Authorization shall be deemed a Tenant Delay. Notwithstanding anything to the contrary contained in paragraph 4 above, in the event a Change Order causes the cost to the Tenant Improvements to exceed the Fixed Price, Tenant shall pay such additional cost. 6. Delays Associated with Emergency Generator and Equipment. Any delays associated with the design and installation of the emergency generator system shall be deemed a Tenant Delay, and any expenses associated therewith shall be paid by Tenant. 7. Construction of Tenant Improvements. The general contractor ("Contractor") for the construction of the Tenant Improvements shall be Nexus Construction Company, Inc. Landlord shall cause the Contractor to include Tenant as a third party beneficiary under the construction contract for the Tenant Improvements and to guarantee the completion and construction of the Tenant Improvements within the Fixed Price. Landlord shall supervise Contractor's construction of the Tenant Improvements to ensure that the Tenant Improvements are constructed and completed with first-class workmanship. Landlord and Contractor shall warrant the Tenant Improvements - 6 - 71 and the Building against defects covered by a subcontractor's warranty for the period and to the extent of the warranty, and other defects for a period of one (1) year after Architect's notice of Substantial Completion. In no event, however, shall Landlord be responsible for defects which occurred during such one year warranty period unless written notice thereof is provided from Tenant to Landlord within the applicable periods of limitation set forth in Section 312 et seq., including without limitation Sections 337.1 and 337.15, of the California Code of Civil Procedure. 8. Completion of Tenant Improvements and Commencement Date. (a) Landlord shall use its best efforts to complete construction of the Tenant Improvements and deliver possession of the Premises to Tenant on October 1, 1989 (the "Scheduled Commencement Date"). The Tenant Improvements shall not be deemed complete unless (i) the Architect certifies their substantial completion in accordance with the Tenant Improvement Plans (except for minor "punchlist" items which do not affect Tenant's use or occupancy of the Demised Premises, except for the installation of furniture, fixtures, the emergency generator, and other equipment which is the responsibility of Tenant to install, and telephone and utility hookups), (ii) Landlord has obtained a final inspection from the City for the Demised Premises (unless the final inspection is withheld because of delays in the installation of furniture, fixtures, the emergency generator, and other equipment which is the responsibility of Tenant to install, and telephone and utility hookups), and (iii) Landlord has given Tenant thirty (30) days advance notice of the actual commencement date ("Actual Commencement Date"), whether or not the Actual Commencement Date is the Scheduled Commencement Date. Upon Tenant's receipt of Landlord's written notice of the Actual Commencement Date and during the thirty (30) day period of time thereafter, Tenant shall be entitled to enter the Demised Premises to install the equipment and fixtures which are critical to Tenant's operation on the Demised Premises. Tenant's entry upon the Demised Premises shall not advance the Actual Commencement Date or any obligation under the Lease provided, however, Tenant shall obtain the insurance required of Tenant under the Lease and shall pay the cost of repairing any damage to the Building or Tenant Improvements or other injuries or damages which may be caused by Tenant's entry upon the Premises and shall hold Landlord harmless therefrom. Any delay in the Actual Commencement Date which may result from Tenant's interference with the completion of the Tenant Improvements during such period of time shall be deemed a Tenant Delay. Landlord shall first notify Tenant of the Actual Commencement Date no later than September 1, 1989. In the event the Demised Premises are not ready for occupancy by - 7 - 72 the Scheduled Commencement Date, Landlord shall provide Tenant with written notice at least every ten (10) days thereafter of the estimated Actual Commencement Date. Landlord shall obtain from the City of San Diego a certificate of occupancy for Tenant's occupancy of the Demised Premises as soon as possible after the substantial completion of the Tenant Improvements. (b) Within five (5) days prior to the Actual Commencement Date, Landlord, Tenant and Architect shall inspect the Premises for punch list ("Punch List") items which require Landlord's correction or repair. The Punch List shall include only those items which Architect certifies do not adversely affect Tenant's use or operation upon the Premises and which can be corrected or repaired within thirty (30) days. In the event Landlord, Tenant and Architect identify items which Architect does not certify as Punch List items, the Actual Commencement Date shall be delayed until all such items are corrected and repaired and such delay shall be deemed a Landlord Delay. 9. Failure of Commencement Date. (a) In the event the Scheduled Commencement Date or estimated Actual Commencement Date is delayed as a result of a Tenant Delay or event of Force Majeure, Tenant shall assume any resulting cost and expense to Tenant for each day of and which directly results from such Tenant Delay. (b) In the event the Scheduled Commencement Date or estimated Actual Commencement Date is delayed for any reason other than a Tenant Delay, Landlord acknowledges that Tenant shall incur substantial damages which are now difficult to ascertain but which will escalate on a daily basis until the Demised Premises are completed and ready for Tenant's use and occupancy. Landlord further acknowledges and understands that Landlord's agreement to compensate Tenant for such damages as a result thereof is a material consideration to Tenant's execution of the Lease and this Agreement. Landlord therefore expressly agrees to pay the Tenant the following amounts if Landlord fails to complete the Tenant Improvements on or before the Scheduled Commencement Date and such failure is not the result of a Tenant Delay or an event of Force Majeure: (i) In the event Landlord does not complete the Tenant Improvements on or before the Scheduled Commencement Date, Landlord shall pay tenant the sum of three thousand three hundred thirty-three Dollars ($3,333.00) per day, commencing October 1, 1989, until the earlier of October 31, 1989, or the completion of the Tenant Improvements; - 8 - 73 (ii) In the event Landlord does not complete the Tenant Improvements before November 1, 1989, Landlord shall, in addition to the previous payments made under Subparagraph (i) above, pay Tenant an additional sum of Two Hundred Thousand Dollars ($200,000) on November 1, 1989; (iii) In the event Landlord does not complete the Tenant Improvements before December 1, 1989, Landlord shall in addition to the previous payments made under Subparagraphs (i) and (ii) above, pay Tenant the sum of Three Thousand Three Hundred Thirty-three Dollars ($3,333.00) per day commencing December 1, 1989, until the Tenant Improvements are completed or March 1, 1990, whichever first occurs; provided, however, in the event Landlord fails to complete the Tenant Improvements before March 1, 1990, for any reason, including Force Majeure, Tenant may elect to terminate the Lease and this Agreement with no further liability, and Landlord shall return to Tenant all Prepaid Rent and funds spent by Tenant for tenant improvements in excess of the Tenant Allowance. THE PARTIES AGREE THAT TENANT'S ACTUAL DAMAGES IN THE EVENT OF DELAY IN THE COMPLETION OF THE TENANT IMPROVEMENTS WOULD BE DIFFICULT OR IMPOSSIBLE TO ASCERTAIN. THEREFORE, AS EVIDENCED BY THEIR RESPECTIVE INITIALS BELOW, LANDLORD AND TENANT AGREE THAT THE AMOUNTS SET FORTH ABOVE HAVE BEEN AGREED UPON, AFTER NEGOTIATION, AS THEIR BEST ESTIMATE OF TENANT'S DAMAGES IN THE EVENT OF DELAY IN THE COMPLETION OF THE TENANT IMPROVEMENTS. Landlord's initials. /INITIALS/ Tenant's initials: /INITIALS/. 10. Force Majeure. In the event of any prevention, delay or stoppage of work or any other obligation to be performed by Landlord or Tenant hereunder which is due to strikes, labor disputes, inability to obtain labor or materials, acts of God, fire or other casualty ("Force Majeure"), either Landlord or Tenant, whichever party is obligated to perform hereunder, shall be excused from performance of the work or obligation by that party for a period equal to the duration of that preventation, delay or stoppage. For purposes of this Agreement, Force Majeure shall be deemed to include any period of time after May 27, 1989, that it takes to obtain the necessary building permits, provided such failure is not due to a Landlord Delay or matters within Landlord's reasonable control, or to inclusion of matters other than the Tenant Improvements in the plans submitted to the City on February 17, 1989. - 9 - 74 11. Notices. All notices required or permitted hereunder must be in writing and may be given by personal delivery or telefax transmission at the addresses set forth below for each party. Landlord: Nexus Centre/Torrey Pines c/o Nexus Development Corporation - Southern Division 9373 Towne Center Drive, Suite 200 San Diego, California 92121 Tenant: Gemini Science, Inc. 3333 North Torrey Pines Court, Suite 120 La Jolla, California 92037 Attn: Mr. Toshihiko Maruoka With copy which shall not constitute notice hereunder to: Gemini Science, Inc. 600 3rd Avenue, 21st Floor (Kirin USA) New York, New York 10016 Attn: Mr. Yoshinari Kumagai Pettit & Martin 355 So. Grand Avenue, 33rd Floor Los Angeles, California 90071 Attention: Joel S. Marcus, Esq. Architect: Kornberg & Associates 2214 Via aprilia Del Mar, California 92014 Attention: Ken Edrington The notice shall be deemed to have been given on the day of the personal delivery or telefax transmission. Either party may specify a different address for notice purposes by written notice to the other. - 10 - 75 12. Defined Terms. All terms with an initial capitalized letter herein shall have the same definition as set forth in the Lease unless otherwise defined herein. IN WITNESS WHEREOF, this Work Letter Agreement has been executed as of the date first above written. LANDLORD: NEXUS CENTRE/TORREY PINES A California Limited Partnership By Nexus Development Corporation - Southern Division A California Corporation General Partner By: MICHAEL J. REIDY --------------------------------- Michael J. Reidy, President TENANT: GEMINI SCIENCE, INC. A California Corporation By: KOICHIRO ARAMAKI -------------------------------- Koichiro Aramaki, President - 11 - 76 [THE AMERICAN INSTITUTE OF ARCHITECTS LETTERHEAD] NEXUS PROJECT NO. 85TI16 - ------------------------------------------------------------------------------- AIA Document B151 Abbreviated Form of Agreement Between Owner and Architect for Construction Projects of Limited Scope 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. - ------------------------------------------------------------------------------- AGREEMENT made as of the 1st day of December in the year of Nineteen Hundred and Eighty-eight BETWEEN the Owner: NEXUS CONSTRUCTION CO., INC. (Name and address) 9373 Towne Centre Drive, Suite 200 San Diego, CA 92121 (Agent for NEXUS CENTRE/TORREY PINES ASSOCIATES) and the Architect: KORNBERG ASSOCIATES (Name and address) 2214 Via Aprilia Del Mar, CA 92014 For the following Project: (Include detailed description of Project, location, address and scope.) The Design, Construction Documents, and Construction Administration of 24,707 usable square feet of B-2 occupancy interior development for La Jolla Institute for Allergy and Immunology and associated mechanical, site and core improvements (as described in attachment A) at Building 2 Nexus Centre/Torrey Pines, La Jolla, California. The Owner and Architect agree as set forth below. - ------------------------------------------------------------------------------- Copyright 1974, 1978 (C) 1987 by The American Institute of Architects, 1735 New York Avenue, N.W., Washington, D.C. 20006. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to legal prosecution.
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EXHIBIT A 77 TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT ARTICLE 1 ARCHITECT'S RESPONSIBILITIES 1.1 ARCHITECT'S SERVICES 1.1.1 The Architect's services consist of those services performed by the Architect, Architect's employees and Architect's consultants as enumerated in Articles 2 and 3, of this Agreement and any other services included in Article 12. 1.1.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Work. 1.1.3 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 11.5.1. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 2.1 DEFINITION 2.1.1. The Architect's Basic Services consist of those described under the three phases identified below, any other services identified in Article 12, and include normal structural, mechanical and electrical engineering services. 2.2 DESIGN PHASE 2.2.1 The Architect shall review with the Owner alternative approaches to design and construction of the Projects. 2.2.2 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Design Documents consisting of drawings and other documents appropriate for the Project, and shall submit to the Owner a preliminary estimate of Construction Cost. 2.3 CONSTRUCTION DOCUMENTS PHASE 2.3.1 Based on the approved Design Documents, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project and shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost. 2.3.2 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.3.3 Unless provided in Article 12, the Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. 2.4 CONSTRUCTION PHASE--ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.4.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the earlier of issuance to the Owner of the final Certificate for Payment of 60 days after the date of Substantial Completion of the Work, unless extended under the terms of Subparagraph 10.??? 2.4.2 The Architect shall provide administration of the Contract for Construction as set forth below and in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. 2.4.3 Duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect with consent of the Contractor, which consent shall not be unreasonably withheld. 2.4.4 The Architect shall be a representative of and shall advise and consult with the Owner (1) during construction until final payment to the Contractor is due and (2) as an Additional Service at the Owner's direction from time to time during the correction period described in the Contract for Construction. 2.4.5 The Architect shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to chick the quality or quantity of the Work. On the basis of on-site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the Work. (More extensive site representation may be agreed to as an Additional Service, as described in Paragraph 3.2.) 2.4.6 The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction. The Architect shall not be responsible for the Contractor's schedules or failure to carry out the Work in accordance with the Contract Documents. The Architect shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 2.4.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress. 2.4.8 Based on the Architect's observations and evaluations of the Contractor's Applications for Payment, the Architect shall review and certify the amounts due the Contractor. 2.4.9 The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's observations at the site as provided in Subparagraph 2.4.5 and on the
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78 data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.4.10 The Architect shall have authority to reject Work which does not conform to the Contract Documents and will have authority to require additional inspection or testing of the Work whenever, in the Architect's reasonable opinion, it is necessary or advisable for the implementation of the intent of the Contract Documents. 2.4.11 The Architect shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action shall be taken with such reasonable promptness as to cause no delay. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.4.12 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if authorized or confirmed in writing by the Owner as provided in Paragraphs 3.1 and 3.3, for the owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.4.13 The Architect shall conduct inspections to determine the dates of Substantial Completion and final completion and shall issue a final Certificate for Payment. 2.4.14 The Architect shall interpret and decide matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both Owner and Contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. ARTICLE 3 --------- ADDITIONAL SERVICES 3.1 Additional Services shall be provided if authorized or confirmed in writing by the Owner or if included in Article 12, and they shall be paid for by the Owner as provided in this Agreement. Such Additional Services shall include, in addition to those described in Paragraphs 3.2 and 3.3, budget analysis, financial feasibility studies, planning surveys, environmental studies, measured drawings of existing conditions, coordination of separate contractors or independent consultants, coordination of construction or project managers, detailed Construction Cost estimates, quantity surveys, interior design, planning of tenant or rental spaces, inventories of materials or equipment, preparation of record drawings, and any other services not otherwise included in this Agreement under Basic Services or not customarily furnished in accordance with generally accepted architectural practice. 3.2 If more extensive representation at the site than is described in Subparagraph 2.4.5 is required, such additional project representation shall be provided and paid for as set forth in Articles 11 and 12. 3.3 As an Additional Service in connection with Change Orders and Construction Change Directives, the Architect shall prepare Drawings, Specifications and other documentation and data, evaluate Contractor's proposals, and provide any other services made necessary by such Change Orders and Construction Change Directives. ARTICLE 4 --------- OWNER'S RESPONSIBILITIES 4.1 The Owner shall provide full information, including a program which shall set forth the Owner's objectives, schedule, constraints, budget with reasonable contingencies, and criteria. 4.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, a written legal description of the site and the services of geotechnical engineers or other consultants when such services are requested by the Architect. 4.3 The Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.4 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by the Owner. 4.5 The foregoing services, information, surveys and reports shall be furnished at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof. 4.6 Prompt written notice shall be given by the Owner to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.7 The proposed language of certificates or certifications requested of the Architect or Architect's consultants shall be submitted to the Architect for review and approval at least 14 days prior to execution.
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79 ARTICLE 5 CONSTRUCTION COST 5.1 DEFINITION 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Architect. 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction. 5.1.3 Construction Cost does not include the compensation of the Architect and Architect's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 It is recognized that neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from any estimate of Construction Cost or evaluation prepared or agreed to by the Architect. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget, unless a fixed limit has been agreed upon in writing and signed by the parties hereto. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.2.3 Any Project budget or fixed limit of Construction Cost may be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. 5.2.4 If a fixed limit of Construction Cost is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall: .1 give written approval of an increase in such fixed limit; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 if the Project is abandoned, terminate in accordance with Paragraph 8.3; or .4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. 5.2.4 If the Owner chooses to proceed under Clause 5.2.4.4, the Architect, without additional charge, shall modify the Contract Documents as necessary to comply with the fixed limit, if established as a condition of this Agreement. The modification of Contract Documents shall be the limit of the Architect's responsibility arising out of the establishment of a fixed limit. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Architect for this Project are instruments of the Architect's service for use solely with respect to this Project, and the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright. The Owner shall be permitted to retain copies, including reproducible copies, of the Architect's Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project. The Architect's Drawings, Specifications or other documents shall not be used by the Owner or others on other projects, for additions to this Project or for completion of this Project by others, unless the Architect is adjudged to be in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect. 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Architect's reserved rights. ARTICLE 7 ARBITRATION 7.1 Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. No arbitration arising out of or relating to this Agreement shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement signed by the Owner, Architect, and any other person or entity sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to this Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. 7.2 In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of limitations. 7.3 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 8 TERMINATION, SUSPENSION OR ABANDONMENT 8.1 This Agreement may be terminated by either party upon not less than seven days' written notice should the other party
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80 fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. 8.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Architect's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Architect's services. 8.3 This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Architect in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Architect may terminate this Agreement by giving written notice. 8.4 Failure of the Owner to make payments to the Architect in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. 8.5 If the Owner fails to make payment when due the Architect for services and expenses, the Architect may, upon seven days' written notice to the Owner, suspend performance of services under this Agreement. Unless payment in full is received by the Architect within seven days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. 8.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses. 8.7 Termination Expenses are in addition to compensation for Basic and Additional Services, and include expenses which are directly attributable to termination. ARTICLE 9 --------- MISCELLANEOUS PROVISIONS 9.1 Unless otherwise provided, this Agreement shall be governed by the law of the principal place of business of the Architect. 9.2 Terms in this Agreement shall have the same meaning as those in AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. 9.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. 9.4 The Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. The Owner and Architect each shall require similar waivers from their contractors, consultants and agents. 9.5 The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Architect shall assign this Agreement without the written consent of the other. 9.6 This Agreement represents the entire and integrated agreement between the Owner and Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. 9.7 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. 9.8 The Architect and Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials of any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. ARTICLE 10 ---------- PAYMENTS TO THE ARCHITECT 10.1 DIRECT PERSONNEL EXPENSE 10.1.1 Direct Personnel Expense is defined as the direct salaries of the Architect's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 10.2 REIMBURSABLE EXPENSES 10.2.1 Reimbursable Expenses include expenses incurred by the Architect in the interest of the Project for: .1 expense of transportation and living expenses in connection with out-of-town travel authorized by the Owner; .2 long-distance communications; .3 fees paid for securing approval of authorities having jurisdiction over the Project; .4 reproductions; .5 postage and handling of Drawings and Specifications; .6 expense of overtime work requiring higher than regular rates, if authorized by the Owner; .7 renderings and models requested by the Owner; .8 expense of additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally carried by the Architect and Architect's consultants; and .9 expense of computer-aided design and drafting equipment time when used in connection with the Project.
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81 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 10.3.1 An initial payment as set forth in Paragraph 11.1 is the minimum payment under this Agreement. 10.3.2 Subsequent payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service. 10.3.3 If and to the extent that the time initially established in Subparagraph 11.5.1 of this Agreement is exceeded or extended through no fault of the Architect, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Subparagraph 11.3.2. 10.3.4 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subparagraph 11.2.2, based on (1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES AND REIMBURSABLE EXPENSES 10.4.1 Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Architect's statement of services rendered or expenses incurred. 10.5 PAYMENTS WITHHELD 10.5.1 No deductions shall be made from the Architect's compensation on account of sums withheld from payments to contractors. ARTICLE 11 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows: 11.1 AN INITIAL PAYMENT OF Ten Thousand Dollars ($10,000.00) shall be made upon execution of this Agreement and credited to the Owner's account at final payment. 11.2 BASIC COMPENSATION 11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be computed as follows: [COPY ILLEGIBLE] Compensation - Stipulated Sum: Two Hundred Fifty-four Thousand Dollars ($254,000.00) as follows: Core and Shell $ 67,550.00 Gemini/LIAI T.I. 186,450.00 ----------- TOTAL FEE: $254,000.00 11.2.2 Where compensation is based on a stipulated sum or percentage of Construction Cost, progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable: (Insert additional __________ as appropriate.) Design Phase: percent (30%) Construction Documents Phase: percent (50%) Construction Phase: percent (20%) - ------------------------------------------------------------- Total Basic Compensation: one hundred percent(100%)
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82 11.3 COMPENSATION FOR ADDITIONAL SERVICES 11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES as described in Paragraph 12, compensation shall be computed as follows: On a time and materials basis (see 11.3.2) 11.3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT provided under Article 5 or identified in Article 12, compensation shall be computed as follows: Two lines of italicized gobbledygook.... Principal's time at a fixed rate of one hundred dollars ($100.00)/hr. Project Architect's time at a fixed rate of eighty-five dollars ($85.00)/hr. Job Captain's time at a fixed rate of forty-five dollars ($45.00)/hr. Draftsman's time at a fixed rate of thirty-five ($35.00)/hr. Clerical's time at a fixed rate of thirty-five dollars ($35.00)/hr. 11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical and electrical engineering services and those provided under Article 3 or identified in Article 12 as part of Additional Services, a multiple of one point zero (1.0) times the amounts billed to the Architect for such services. (Identify specific types of consultants in Article 12, if ????) 11.4 REIMBURSABLE EXPENSES 11.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 10.2, and any other items included in Article 12 as Reimbursable Expenses, a multiple of on point one (1.1) times the expenses incurred by the Architect, the Architect's employees and consultants in the interest of the Project. 11.5 ADDITIONAL PROVISIONS 11.5.1 IF THE BASIC SERVICES covered by this Agreement have not been completed within twelve (12) months of the date hereof, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as provided in Subparagraphs 10.3.3 and 11.3.2. 11.5.2 Payments are due and payable thirty days from the date of the Architect's invoice. Amounts unpaid sixty days after invoice date shall bear interest from the date payment is due at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the principal place of business of the Architect. (Insert any rate of interest agreed upon.) (Usury laws and requirements under the Federal Truth in Lending Act, ________________?? and local consumer credit laws and other regulations______________________________?? principal places of business, the location of the Project, _____?? may affect the validity of this provision. Specific legal advice should be and ______________________?? modifications, and also regarding requirements such as written disclosures of ___________??) 11.5.3 The rates and multiples set forth for Additional Services shall be annually adjusted in accordance with normal salary review practices of the Architect.
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83 ARTICLE 12 ---------- OTHER CONDITIONS OR SERVICES [ILLEGIBLE] This Agreement entered into as of the day and year first written above. OWNER NEXUS CONSTRUCTION CO., INC. ARCHITECT /s/ WILLIAM G. BUGENHAGAN /s/ KENNETH A. KORNBERG - ----------------------------------- ----------------------------------- (Signature) (Signature) WILLIAM G. BUGENHAGAN, AIA VICE PRESIDENT Kenneth A. Kornberg, President - ----------------------------------- ----------------------------------- (Printed name and title) (Printed name and title)
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84 ATTACHMENT A SCOPE OF SERVICES: 1. CORE AND SHELL o Revisions to exterior of shell building o Location of shafts penetrating shell structure o Space planning of subterranean structure to house mechanical and electrical equipment o Space planning of on-site equipment enclosure, transformer enclosure, and trash enclosure o Coordination with Shell Architect for items listed above (Shell Architect shall provide construction documents for items listed above) o Restrooms, lobbies, and tenant corridors o Central Mechanical Plant o Building Electrical Main, Subpanels and site lighting connections (Shell Architect shall specify and locate site fixtures) 2. GEMINI/LIAI TENANT IMPROVEMENT o Architectural, mechanical, plumbing, and electrical services necessary to produce the 26,000 SF (plus or minus) tenant improvement for Gemini/LIAI. This excludes the 16,000 SF (plus or minus) future lease space area. o Coordination of and services for Gemini/LIAI provided equipment 85 NEXUS G.S.I FINAL BID LIST November 11, 1988 HVAC Helm Corporation ACCO R & H Padre Mechanical University Mechanical ELECTRICAL Sorrento Electric Nutter Electric Fleet Electrical Mark Snyder Electric Bergelectric PLUMBING Coast Plumbing Sherwood Plumbing, Inc. University Mechanical Tridimensional Plumbing FIRE SPRINKLERS Schmidt Fire Protection Co., Inc. Arrow Automatic Fire Sprinklers, Inc. Wormald Fire Systems Southwest DRYWALL Tenant Development, Inc. National Corporate Drywall San Diego Drywall Coastal Systems Exhibit B Nexus Development Corporation o Southern Division 9373 Towne Centre Drive, Suite 200, Sen Diego, CA 92121 (619) 587-2100 P.O. Box 22040, San Diego, CA 92122 86 G.S.I. PRELIMINARY BID LIST November 11, 1988 Page 2 DOORS Tenant Development, Inc. National Corporate Drywall, Inc. LOCKSETS & PASSAGE SETS Pacific Builders Hardware, Inc. CEILINGS Tenant Development, Inc. National Corporate Drywall, Inc. Daryl Griffis Acoustics, Inc. FLOORCOVERING Carpet Services, Inc. Howard's Rug Company Engineered Flooring Systems PAINT General Coatings Corporation Southern Ron Nielson SPECIAL COATINGS Integrated Coatings & Flooring, Inc. MILLWORK Bowser Cabinets & Casework Corporation California Custom Woodworks Montbleu Creative Woodcraft JRV/jas:B:05C 87 EXHIBIT "C" [Intentionally Left Blank] 88 EXHIBIT "D" Rules and Regulations 89 EXHIBIT D RULES AND REGULATIONS 1. Except as specifically provided in the Lease to which these Rules and Regulations are attached, no sign, placard, picture, advertisement, name or notice shall be installed or displayed on any part of the outside of the Premises without prior written consent of Landlord. Landlord shall have the right to remove, at Tenant's expense and without notice, any sign installed or displayed in violation of this rule. 2. If Landlord objects in writing to any curtains, blinds, shades, screens or hanging plants or other similar objects attached to or used in connections with any window or door of the Premises, or placed on any windowsill, which is visible from the exterior of the Premises Tenant shall remove said object. 3. Intentionally Omitted. 4. Intentionally Omitted. 90 5. 6. Except as prohibited by Tenant's security regulations, Landlord will furnish Tenant, free of charge, with two keys to each door lock in the Premises. Landlord may make a reasonable charge for any additional keys. Tenant shall not alter any lock or install a new additional lock or bolt on any door of its Premises. Tenant, upon the termination of its tenancy, shall deliver to Landlord the keys of all doors which have been furnished to Tenant, and in the event of loss of any keys so furnished, shall pay Landlord therefor. 7. If Tenant requires telegraphic, burglar alarm or similar services, it shall first obtain, and comply with, Landlord's instructions in their installation. 8. Intentionally Omitted. 9. Intentionally Omitted. 91 10. Intentionally omitted. 11. Tenant shall not use any method of heating or air-conditioning other than that supplied by Landlord. 12. Intentionally omitted. 13. Intentionally omitted. 92 14. Intentionally Omitted. 15. Intentionally Omitted. 16. Intentionally Omitted. 17. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatsoever shall be thrown therein. The expense of any breakage, stoppage or damage resulting frozen the violation of this rule shall be borne by the tenant who, or whose employees or invitees, shall have caused it. 18. Tenant shall not sell, or permit the sale at retail, of newspapers, magazines, periodicals, theater tickets or any other goods or merchandise to the general public in or on the Premises. Tenant shall not make any room-to-room solicitation of business from other tenants in the Building or Project. Tenant shall not use the Premises for any business or activity other than that specifically provided for in Tenant's Lease. 93 19. Tenant shall not install any radio or television antenna, loudspeaker or other devices on the roof or exterior walls of the Premises. Tenant shall not interfere with radio or television broadcasting or reception from or in the Premises or elsewhere. 20. Intentionally omitted. 21. Intentionally omitted. 22. Canvassing, soliciting and distribution of handbills or any other written material, and peddling in the Complex are prohibited, and Tenant shall cooperate to prevent such activities. 23. Landlord reserves the right to exclude or expel from the Premises or the Complex any person who, in Landlord's judgment, is intoxicated or under the influence of liquor or drugs or who is in violation of any of the Rules and Regulations of the Complex. 24. Tenant shall store all its trash and garbage within its Premises or in other facilities provided by Landlord. Tenant shall not place in any trash box or receptacle any material which cannot be disposed of in the ordinary and customary manner of trash and garbage disposal. All garbage and refuse disposal shall be made in accordance with directions issued from time to time by Landlord. 25. Intentionally omitted. 94 26. Intentionally Omitted. 27. Intentionally Omitted. 28. Intentionally Omitted. 29. Intentionally Omitted. 30. Tenant's requirements will be attended to only upon appropriate application to the Complex management office by an authorized individual. Employees of Landlord shall not perform any work or do anything outside of their regular duties unless under special instructions from Landlord, and no employee of Landlord will admit any person (Tenant or otherwise) to any office without specific instructions from Landlord. 31. Landlord may waive any one or more of these Rules and Regulations for the benefit of Tenant or any other tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the Complex. 95 32. These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of Tenant's lease of its Premises. 33. Intentionally Omitted. 34. Intentionally Omitted. 35. The term "Complex" as used in these Rules and Regulations shall mean the same as the term "Project" as used in the Lease. 96 EXHIBIT "E" Form of Estoppel Letter from Tenants _________________, 19_____ TO: ____________________ ____________________ ____________________ ____________________ Re: Lease ("Lease") dated March 1, 1989, by and between Nexus Centre/Torrey Pines, a California Limited Partnership ("Landlord"), and Gemini Science, Inc., a California corporation ("Tenant"), of approximately 26,383 square feet of space located on the first and second floor of Building No. 2 of Nexus Centre/Torrey Pines, in the City and County of San Diego, California. Gentlemen: The undersigned, as Tenant, has been advised that the Lease has been or will be assigned to you as a result of your purchase of the above-referenced Property or that you are a lender who intends to perfect a security interest in the property, and as an inducement therefor hereby confirms the following: 1. That it has accepted possession and is in full occupancy of the Demised Premises, that the Lease is in full force and effect, and that Tenant has received no notice of any default of any of its obligations under the Lease and is not in default of any such obligations. 2. That the improvements and space required to be furnished according to the Lease, including any construction required to be made by the Landlord under the Lease, have been satisfactorily completed by the Landlord in all respects and that the Landlord has fulfilled all of its duties under the terms, covenants and obligations of the Lease and is not currently in default thereunder. 3. That the Lease has not been modified, altered or amended and represents the entire agreement of the parties. 4. That Tenant has accepted the Premises "as is" and there are no off-sets, concessions, counter-claims or credits against rentals, nor have rentals been prepaid or forgiven. 97 5. That Tenant has no claim, cause of action or right of setoff against the Landlord, or any defense to payment of any sum or performance of any obligation due under the Lease. 6. That the rent payable under the Lease is $_______ per month plus additional rent comprised of a complete pass through of Tenant's share of taxes and other operating expenses with respect to the Property and said rentals commenced to accrue on the _____ day of ______________ , 19 . The Lease term commenced on __________________ . There has been no advance payment of rent payable under the Lease. The Lease term expires on _________________ unless extended pursuant to ______________ option(s) to renew for ______ years each, ________ of which have been exercised as of the date hereof. The amount of the security deposit and all other deposits paid to Landlord is $________. 7. That Tenant has no notice of a prior assignment, hypothecation or pledge of rents under the Lease. 8. That Tenant agrees to attorn to you and recognize you as Landlord under the Lease upon your purchase of the Property and assumption of the Lease pursuant to its terms, and hereby consents to the assignment of the Lease to you. 9. That this letter shall inure to your benefit and to the benefit of your successors and assigns and shall be binding upon Tenant and Tenant's heirs, personal representatives, successors and assigns. This letter shall not be deemed to alter or modify any of the terms, covenants or obligations of the Lease. 10. That Tenant has not executed or otherwise agreed to any sublease or other rental or occupancy agreements with respect to the Premises. 11. That Tenant does not claim, and knows of no person or entity claiming, any right to or interest in all or any part of the Premises. 12. That Tenant does not have a purchase option or renewal option other than as described above with regard to the Premises, nor does Tenant have a right of first refusal to lease any other space in the Property. 13. That the Tenant has accepted parking in the Project known as ______________________________ without requiring from the Landlord to provide other parking elsewhere. 14. That the Tenant has no right to cancel or terminate the Lease under the terms thereof or otherwise, except in the case of condemnation or destruction of the entire Premises in accordance with the applicable provisions of the 98 Lease and except to the extent that applicable California law may permit the termination of a lease by a tenant in the case of certain breaches thereof by the landlord thereunder (but nothing herein shall be deemed to imply that the Tenant has any greater right to terminate the Lease beyond any rights of termination, if any, generally permitted under applicable California Law). The above statements are made with the understanding that you will rely on them in connection with the purchase or financing of the Property. Very truly yours, ------------------------------------- (Tenant) By: --------------------------------- Its: ----------------------------- 99 EXHIBIT "F" Acknowledgment of Term Commencement Date Pursuant to Section 4.2 of that certain Lease ("Lease") dated March 1, 1989, by and between Nexus Centre/Torrey Pines, a California Limited Partnership ("Landlord"), and Gemini Science, Inc., a California corporation ("Tenant"), of approximately 26,383 square feet of space located on the first and second floor of Building No. 2 of Nexus Centre/Torrey Pines, in the City and County of San Diego, California, We hereby acknowledge that the Term Commencement Date of the Lease is _______________ , 19__. We hereby acknowledge that the Term Expiration Date of the Lease is ________________ , 19__. Landlord: Tenant: ____________________________ _________________________________ By:_________________________ By:______________________________ Its:_____________________ Its:__________________________ By:_________________________ By:______________________________ Its:_____________________ Its:__________________________ 100 EXHIBIT "G" Subordination Agreement 101 GUARANTY OF LEASE WHEREAS Nexus Centre/Torrey Pines, a California Limited partnership, hereinafter referred to as "Landlord", and Gemini Science, Inc., a California corporation, hereinafter referred to as "Tenant", are about to execute a Lease dated March 1, 1989, for approximately 26,383 square feet consisting of the entire second floor and a portion of the first floor of Building No. 2 of Nexus Centre-Torrey Pines, North Torrey Pines Road, San Diego, California, and WHEREAS, Kirin Brewery Company, Ltd., hereinafter referred to as "Guarantor", has a financial interest in Tenant; and WHEREAS, Landlord would not execute the Lease if Guarantor did not execute and deliver to Landlord this Guaranty of Lease. NOW, THEREFORE, for and in consideration of the execution of the foregoing Lease by Landlord and as a material inducement to Landlord to execute said Lease, Guarantor hereby irrevocably guarantees the prompt payment by Tenant of all rent and all other sums payable by Tenant under said Lease and the faithful and prompt performance by Tenant of each and every one of the terms, conditions and covenants of said Lease to be kept and performed by Tenant. It is specifically agreed and understood that the terms of the foregoing Lease may be altered, affected, modified or changed by agreement between Landlord and Tenant, or by a course of conduct, and said Lease may be assigned by Landlord or any assignee of Landlord without consent or notice to Guarantor and that this Guaranty shall thereupon and thereafter guarantee the performance of said Lease as so changed, modified, altered or assigned. This Guaranty shall not be released, modified or affected by failure or delay on the part of Landlord to enforce any of the rights or remedies of the Landlord under said Lease, whether pursuant to the terms thereof or at law or in equity. The parties hereto specifically agree and understand that the guarantee of the undersigned is a continuing guarantee under which Landlord may proceed forthwith and immediately against Tenant, or against Guarantor following any breach or default by Tenant or for the enforcement of any rights which Landlord may have as against Tenant pursuant to or under the terms of the within Lease or at law or in equity. 102 Landlord shall have the right to proceed against Guarantor hereunder following any breach or default by Tenant without first proceeding against Tenant and without previous notice to or demand upon Tenant except to the extent required by the terms of the Lease. Landlord shall have the right to proceed against Guarantor hereunder following any breach or default by Tenant without first proceeding against Tenant upon written notice to Guarantor that a breach or default has occurred and that it intends to proceed against Guarantor under this Guaranty. Such notice shall be given by first class registered or certified mail, return receipt requested, postage prepaid, and properly addressed to Guarantor at the address set forth below, in which case such notice shall be deemed to have been duly given on the fifth (5th) day following the date such notice is mailed: Kirin Brewery Co., Ltd. 26-1, Jingumae 6-chome Shibuya-ku, Tokyo 150 Japan Attn: Dr. Toru Sasahari General Manager, Pharmaceutical Department With copy to: Kirin USA 600 Third Avenue, 21st Floor New York, New York 10016 Attn: Mr. Yoshinari Kumagai Gemini Science, Inc. 3333 North Torrey Pines Court, Suite 120 La Jolla, California 92037 Attn: Mr. Toshihiko Maruoka Pettit & Martin Attn: Joel S. Marcus, Esq. 355 South Grand Avenue Thirty-Third Floor Los Angeles, California 90071 A courtesy copy of the notice or other communication shall be given by telephonic facsimile transmission on the day the notice is mailed. Either party may, by notice to the other given pursuant to this Section, specify additional or different addresses for notice purposes. Guarantor hereby waives (a) notice of acceptance of this Guaranty, (b) demand of payment, presentation and protest, (c) all right to assert or plead any statute of limitations - 2 - EX-10.14 22 EXHIBIT 10.14 1 EXHIBIT 10.14 [LEASE MANAGEMENT SERVICES LETTERHEAD] MASTER LEASE AGREEMENT NUMBER 10494 LESSEE: AURORA BIOSCIENCES CORPORATION LESSOR: LEASE MANAGEMENT SERVICES, INC. 11149 NO. TORREY PINES ROAD 2500 Sand Hill Road, Suite 101 LA JOLLA, CA 92037 Menlo Park, CA 94025 - -------------------------------------------------------------------------------- LEASE TERMS - -------------------------------------------------------------------------------- 1. LEASE. Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor, subject to the terms of this Master Lease Agreement and any addenda thereto (the "Master Lease") and the Schedule defined below, the personal property (together with all attachments, replacements, parts, substitutions, additions, repairs, accessions, and accessories, Incorporated therein and/or affixed, thereto) (the "Equipment") described in any Lease Schedule and any addenda thereto (a "Schedule") executed by the parties hereto and incorporating the terms of this Master Lease by reference therein (the "Lease"). The parties agree that this Lease is a "Finance Lease" as defined by Section 10103(1)(g) of the California Commercial Code (Cal.Com.C.). Lessee acknowledges either (a) that Lessee has reviewed and approved any written Supply Contract (as defined by Cal.Com.C 10103(1)(y) covering the Equipment purchased from the "Supplier" (as defined by Cal.Com.C. 10103(1)(x)) thereof for lease to Lessee or (b) that Lessor has informed or advised Lessee,in writing, either previously or by this Lease of the following: (i) the identity of the Supplier; (ii) that the Lessee may have rights under the Supply Contract; and (iii) that the Lessee may contact the Supplier for a description of any such rights Lessee may have under the Supply Contract. 2. TERM AND RENT. The term of this Lease shall be as specified in the Schedule(s). The rental payments ("Rent") for the Equipment shall be as set forth in the Schedule(s) and any addenda and shall be payable at the time set forth therein. 3. LATE CHARGES. Time is of the essence in this Lease and if any Rent is not paid within ten (10) days after the due date thereof, Lessor shall have the right to add and collect, and Lessee agrees to pay: (a) a late charge on and in addition to such Rent equal to five percent (5%) of such Rent or a lesser amount if established by any state or federal statute applicable thereto, and (b) interest on such Rent from thirty (30) days after the due date until paid at the highest contract rate enforceable against Lessee under applicable law but never to exceed eighteen percent (18%) per annum. 4. DISCLAIMER OF WARRANTIES. LESSOR IS NOT THE MANUFACTURER, SUPPLIER OR SELLER OF THE EQUIPMENT. LESSOR IS NOT THE AGENT OF THE MANUFACTURER, SUPPLIER OR SELLER OF THE EQUIPMENT. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE FITNESS, MERCHANTABILITY, CONDITION, QUALITY, DURABILITY OR SUITABILITY OF THE EQUIPMENT IN ANY RESPECT, OR IN CONNECTION WITH, OR FOR THE PURPOSES AND USES OF LESSEE OR ANY OTHER REPRESENTATION OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO. As between Lessor and Lessee, the Equipment shall be accepted and leased by Lessee "as is" and "with all faults." Lessee specifically waives all rights to make claim against Lessor herein for breach of any warranty of any kind whatsoever, asserting and resolving any such claims directly with the Supplier of the Equipment, and Lessor hereby assigns to Lessee all warranties, if any, received by Lessor resulting from its ownership of the Equipment. Lessor shall not be responsible for any repairs, service or defects in the quality or in its operation or for any delay of Supplier and Lessee waives any claim it might have with respect to Lessor for any loss, damage, or expense caused by the Equipment, its use or maintenance. In no event shall Lessor be liable for any consequential damages. Supplier is not an agent of Lessor and no employee, salesperson, or agent of Supplier is authorized to waive, supplement, or otherwise alter any provision of this Lease, and no representation as to the Equipment or any other matter by the Supplier shall in any way affect the Lessee's duty to pay Rent and perform all its obligations as set forth in this Lease. Lessor makes no warranty that the Equipment is in compliance with applicable governmental requirements, rules or regulations. Lessor has not made any representation or warranty to Lessee as to the tax benefits, if any, Lessee will obtain from this Lease, or as to the manner in which Lessee should treat this Lease in Lessee's records for tax, financial reporting or accounting purposes. 5. ACCEPTANCE. Lessee's acceptance of the Equipment shall be conclusively and irrevocably evidenced by Lessee signing the Lessor's standard form Certificate of Acceptance. If Lessee fails or refuses to sign the Certificate of Acceptance as to all or any part of the Equipment within a reasonable time, Lessee shall automatically assume all of Lessor's purchase obligations for the Equipment and Lessee agrees to indemnify and defend Lessor from any claims including any demand for payment of the purchase price for the Equipment by the manufacturer, Supplier or seller of the Equipment. 6. USE, OPERATION AND LOCATION. Lessee shall not use or operate the Equipment so as to violate the terms of any insurance coverage for the Equipment as required herein. Lessee agrees not to allow the Equipment to be used by persons other than employees of Lessee, not to rent or sublet the Equipment or any part thereof to others, to use the Equipment solely for commercial, agricultural or business purposes, and to use and operate the Equipment in accordance with the manufacturer's operating procedures and all applicable governmental laws, ordinances, rules and regulations. If at any time during the term hereof, Lessor supplies Lessee with labels or other markings, stating that the Equipment is owned by Lessor, Lessee (or Lessor, at Lessor's option) shall affix and keep the labels upon a prominent place on the Equipment. The Equipment shall be located as shown on the Schedule(s). Lessee, without the prior written consent of Lessor, shall not remove the Equipment from such location nor give up possession or control thereof. Lessor, upon prior reasonable notice to Lessee, shall have the right to inspect the Equipment during Lessee's normal business hours. 7. ALTERATIONS, MAINTENANCE AND REPAIRS. Lessee, at its sole expense, shall keep Equipment in good condition and working order and furnish all labor, parts and supplies required therefor. Lessee agrees to maintain accurate and complete records of all repairs and maintenance to the Equipment. Any modifications or additions to the Equipment required by any governmental edict shall be promptly made by Lessee at its own expense. Without the prior written consent of Lessor, Lessee shall not make any alterations, additions or improvements to the Equipment which are permanent or which detract from its economic value or functional utility, except as may be required pursuant to the preceding sentence of this Paragraph 7. All additions and improvements to the Equipment shall belong to and immediately become the property of Lessor and shall be returned to Lessor with the Equipment upon the expiration or earlier termination of this Lease unless Lessor notifies Lessee to restore such Equipment to its original state. 8. LOSS, DAMAGE. Lessee assumes the risk of loss and damage to the Equipment, or any portion thereof, from every cause whatsoever, including but not limited to damage, destruction, loss or theft. No loss, theft, damage, destruction of the Equipment shall relieve Lessee of the obligation to pay Rent or to comply with any other obligation under this Lease. In the event of damage to any item of Equipment, Lessee shall immediately place the Equipment in good condition and working order at Lessee's expense. If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall, at Lessor's option, either: (a) Replace the same with like equipment in good condition and working order, free and clear of all liens, claims and encumbrances, which equipment shall thereupon become subject to this Lease; or (b) Pay Lessor, not as a penalty, but herein liquidated for all purposes an amount equal to the sum of (i) any accrued and unpaid Rent as of the date the loss, theft, damage or destruction occurred ("Date of Loss") plus the total of any amounts due to Lessor pursuant to Paragraph 3; (ii) the present value of all future rentals reserved in this Lease and contracted to be paid over the unexpired term of this Lease discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco as of the Date of Loss; (iii) the discounted value of the agreed upon or estimated residual value of the Equipment as of the expiration of this Lease or any renewal thereof discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco as of the Date of Loss; and (iv) any other amount otherwise then due and owing under this Lease or which otherwise will become due and owing irrespective of the fact that the Equipment has been damaged, destroyed, lost or stolen including any additional taxes or other charges that may otherwise arise by reason of the damage, destruction, loss or theft of the Equipment. Lessee further agrees to pay late charges calculated in accordance with Paragraph 3 from the Date of Loss to the date the casualty payment is paid to Lessor. 9. INSURANCE. Commencing on the date risk of loss passes to Lessor from the Supplier and continuing until all of Lessee's obligations under this Lease have been satisfied, Lessee shall, at Lessee's own expense, keep the Equipment and any replacements thereto insured against such risks, and in such amounts, in such form and with such companies as are satisfactory to Lessor. All such insurance policies shall protect Lessor and Lessee, as their respective interests may appear, and shall provide that all losses shall be payable to and adjusted solely with Lessor. Lessee shall, at Lessee's own expense, also maintain public liability insurance, in such amounts, in such form and with such companies as are satisfactory to Lessor, insuring Lessor with respect to injury to person or property resulting from the condition, locations, maintenance, and actual or alleged use of the Equipment. Lessee shall, prior to the acceptance of a Schedule by Lessor, deliver to Lessor each of the foregoing policies or satisfactory evidence of such insurance. Each such policy shall contain an endorsement providing that the insurer will give Lessor not less than 30 days' prior written notice of the effective date of any alteration or cancellation of such policy. Lessee shall furnish annually to Lessor satisfactory evidence of the maintenance of such insurance. Lessee hereby irrevocably appoints Lessor as Lessee's attorney-in-fact to make claim for, receive payment of, and execute any and endorse all documents for loss or damages under any insurance policy as herein specified. In case of the failure of Lessee to maintain any of such insurance, Lessor shall have the right, but shall not be obligated, to obtain such insurance, and therefor, Lessee hereby grants Lessor the irrevocable right to select an insurance broker for the procurement and maintenance of such insurance coverage herein specified. 10. TAXES. Lessee shall pay directly, or to lessor, all license fees, registration fees, assessments and taxes which may now or hereafter be imposed upon the ownership, sale (if authorized), possession or use of the Equipment, excepting only those based on Lessor's income or any single business tax of Lessor. All required personal property tax returns relating to the Equipment shall be filed by Lessor unless otherwise provided in writing. If Lessee fails to pay any said fees, - -------------------------------------------------------------------------------- THIS LEASE MAY NOT BE AMENDED EXCEPT BY A WRITING SIGNED BY LESSOR AND LESSEE. LESSEE'S INITIALS [JH] ----- Dated: May 17, 1996 ------------------------ LESSEE: LESSOR: AURORA BIOSCIENCES CORPORATION LEASE MANAGEMENT SERVICES, INC. By /s/ JOHN T. HENDRICK By ------------------------------ ------------------------ John T. Hendrick Title VP Finance Title ------------------------------ ------------------------ WHITE - LESSOR'S COPY YELLOW - FILE COPY PINK - LESSEE'S COPY 2 assessments, or taxes, Lessor shall have the right but not the obligation to pay the same, and such amount, including penalties and costs shall be repayable to Lessor at the next Rent due date, and if not so paid, shall be the same as failure to pay any Rent due hereunder. Lessor shall not be responsible for contesting any valuation of or tax imposed on the Equipment but may do so strictly as an accommodation to Lessee and shall not be liable or accountable to Lessee therefor. If Lessee pays any taxes, fees or assessments directly to the appropriate taxing authority, Lessee agrees to immediately notify Lessor and to provide Lessor documentary evidence of said payment. 11. LESSEE'S FAILURE TO PAY: LESSOR'S PAYMENT. In the event Lessee fails to pay any amounts due hereunder, including Lessee's obligation to pay taxes and insurance, or to perform any of its other obligations under this Lease, Lessor may, at its option, pay such amounts or perform such obligations, and Lessee shall reimburse Lessor the amount of such payment or cost of such performance, including any charges or penalties which have been levied by the taxing authority or insurance carrier for such late payment. Within ten (10) days from demand, such reimbursement shall be paid as additional Rent plus late charges as calculated in accordance with Paragraph 3 from the date of Lessor's payment to the date of reimbursement. 12. TITLE. The Equipment is, and shall at all times be the sole and exclusive property of Lessor, and Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this Lease. Further, the Equipment shall at all times remain personal property, notwithstanding that the Equipment or any part thereof may be affixed or attached to real property or any building thereon. Lessee shall keep the Equipment free and clear from all liens, charges, encumbrances, legal process, and claims. Lessee shall not assign, sublet, hypothecate, sell, transfer or give up possession of the Equipment or any interest in this Lease, and any such attempt shall be null and void. 13. INDEMNITY. Lessee shall indemnify and hold Lessor harmless from and against all claims, losses, liabilities (including negligence, tort and strict liability), damages, judgments, suits, and all legal proceedings, and any and all costs and expenses in connection therewith (including attorneys' fees) arising out of or in any manner connected (a) with the manufacture, purchase, financing, ownership, delivery, rejection, nondelivery, possession, use, transportation, storage, operation, maintenance, repair, return or other disposition of the Equipment; or (b) with this Lease, including, without limitation, claims for injury or death of persons and for damage to property, and claims for patent, trademark or copyright infringement, and give Lessor prompt notice of any claim or liability. 14. NON-TERMINABLE LEASE: OBLIGATIONS UNCONDITIONAL. This Lease cannot be terminated except as expressly provided herein. Lessee hereby agrees that Lessee's obligation to pay all Rent and any other amounts owing hereunder shall be absolute and unconditional. 15. HOLDING OVER. Any use of the Equipment by Lessee beyond the initial Lease term or any renewal thereof shall be an extension of this Lease term at the then current Rent on a month-to-month basis terminable by Lessor on ten (10) days' notice to Lessee and all obligations of Lessee herein contained, including payment of Rent, shall continue during such holding over. Any holdover period is limited to twelve (12) months without written consent of Lessor. 16. RETURN OF EQUIPMENT. Upon the expiration or earlier termination of this Lease, with respect to the Equipment or any part thereof, Lessee shall return the same to Lessor in good condition and working order, ordinary wear and tear excepted, in the following manner as selected by Lessor: (a) By properly packing and delivering the Equipment at Lessee's cost and expense, to such place as Lessor shall specify within the County in which the same was delivered to Lessee; or (b) By properly packing and loading the Equipment, at Lessee's cost and expense, on board such carrier as Lessor shall specify, and shipping the same, freight prepaid, to the destination indicated by Lessor. Lessee agrees to pay for all repair to the Equipment other than attributable to ordinary wear and tear. Notice of Lessee's intent to return Equipment must be received by Lessor at least sixty (60) days prior to return. 17. LESSEE'S WAIVERS. To the extent permitted by applicable law, Lessee hereby waives any and all rights and remedies conferred upon a Lessee by Sections 10508 through 10522 of the Cal.Com.C., including but not limited to Lessee's rights to: (i) cancel this Lease; (ii) repudiate this Lease; (iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover damages from Lessor for any breaches of warranty or for any other reason; (vi) a security interest in the Equipment in Lessee's possession or control for any reason; (vii) deduct all or any part of any claimed damages resulting from Lessor's default, if any, under this Lease; (viii) accept partial delivery of the Equipment; (ix) "cover" by making any purchase or lease of or contract to purchase or lease Equipment in substitution for Equipment due from Lessor; (x) recover any general, special, incidental or consequential damages, for any reason whatsoever; and (xi) specific performance, replevin, detinue, sequestration, claim and delivery or the like for any Equipment identified to this Lease. To the extent permitted by applicable law, Lessee also hereby waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor's damages as set forth in Paragraph 19 or which may otherwise limit or modify any of Lessor's rights or remedies under Paragraph 19. Any action by Lessee against Lessor for any default by Lessor under this Lease, including breach of warranty or indemnity, shall be commenced within one (1) year after any such cause of action accrues. 18. DEFAULT. Any of the following events or conditions shall constitute an event of default ("Event of Default") hereunder: (a) Lessee's failure to pay when due any Rent or other amount due hereunder; (b) Lessee's failure to perform any other term, covenant or condition hereof or a default under any other agreement between Lessor and Lessee; (c) the breach of any representation or warranty made by Lessee or any guarantor of this Lease; (d) Seizure of the Equipment under legal process; (e) A filing by or against Lessee of a Petition for Reorganization or Liquidation under the Bankruptcy Code or any amendments thereto or any other insolvency law providing for the relief of debtors; (f) The voluntary or involuntary making of an assignment of a substantial portion of its assets by Lessee for the benefit of creditors, employment of a receiver or trustee for Lessee or for any of Lessee's assets, the institution of formal or informal proceedings by or against Lessee for dissolution, liquidation, settlement of claims against or winding up of the affairs of Lessee, or the making by Lessee of a transfer of all or a material portion of Lessee's assets or inventory not in the ordinary course of business; (g) The value or condition of any collateral furnished by the Lessee, or any guarantor of this Lease, becomes impaired or diminished as to, in Lessor's reasonable opinion, increase Lessor's credit risk; (h) If, in Lessor's reasonable opinion, there should be a material adverse change in the financial condition of Lessee. 19. REMEDIES. Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, with or without cancelling this Lease, in its sole discretion, do any one or more of the following: (a) upon notice to Lessee cancel this Lease and any or all Schedules; (b) continue to be the owner of the equipment and may, but is not obligated to, take possession of the Equipment, dispose of the Equipment by sale or otherwise, all of which determinations may be made by Lessor in its absolute discretion and for its own account; (c) declare immediately due and payable all Rents due and to become due hereunder for the full term of this Lease (including any renewal or purchase obligations); (d) recover from Lessee damages not as a penalty but herein liquidated for all purposes and in an amount equal to the sum of (i) any accrued and unpaid rent as of the date of entry of judgment in favor of Lessor plus the total of any amounts due to Lessor pursuant to Paragraph 3; (ii) the present value of all future rentals reserved in this Lease and contracted to be paid over the unexpired term of this Lease discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco as of the date of entry of judgment in favor of Lessor; (iii) all commercially reasonable costs and expenses incurred by Lessor in any repossession, recovery, storage, repair, sale, re-lease or other disposition of the Equipment including reasonable attorneys' fees and costs incurred in connection therewith or otherwise resulting from Lessee's default; (iv) the present value of the agreed upon or estimated residual value of the Equipment as of the expiration of this Lease or any renewal thereof discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco as of the date of entry of judgment in favor of Lessor; and (v) any indemnity, if then determinable, plus interest at eighteen percent (18% per annum; (e) in its sole discretion, re-lease or sell any or all of the Equipment at a public or private sale on such terms and notice as Lessor shall deem reasonable and recover from Lessee damages, not as a penalty, but herein liquidated for all purposes and in an amount equal to the sum of (i) any accrued and unpaid rent as of the later of (A) the date of default or (B) the date that Lessor has obtained possession of the Equipment or such other date as Lessee has made an effective tender of possession of the Equipment back to Lessor ("Default Date"): plus rent (at the rate provided for in this Lease) for the additional period (but in no event longer than two (2) months) that it takes Lessor to resell or re-let all of the Equipment, plus the total of any amounts due to Lessor pursuant to Paragraph 3; (ii) the present value of all future rentals reserved in this Lease and contracted to be paid over the unexpired term of this Lease discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco as of the Default Date; (iii) all commercially reasonable costs and expenses incurred by Lessor in any repossession, recovery, storage, repair, sale, re-lease or other disposition of the Equipment including reasonable attorneys' fees and costs incurred in connection with or otherwise resulting from the Lessee's default; (iv) estimated residual value of the Equipment as of the expiration of this Lease or any renewal thereof; and (v) any indemnity, if then determinable, plus interest at eighteen percent (18%) per annum; LESS the amount received by Lessor upon such public or private sale or re-lease of such items of Equipment, if any; (f) exercise any other right or remedy which may be available to it under the Uniform Commercial Code or any applicable law. A cancellation hereunder shall occur only upon notice by Lessor and only as to such items of Equipment as Lessor specifically elects to cancel and this Lease shall continue in full force and effect as to the remaining items, if any. If this Lease is deemed at any time to be one intended as security, Lessee agrees that the Equipment shall secure; in addition to the indebtedness set forth herein, all other indebtedness at any time owing by Lessee to Lessor. No remedy referred to in this Paragraph is intended to be exclusive, but shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. No express or implied waiver by Lessor of any default shall constitute a waiver of any other default by Lessee or a waiver of any of Lessor's rights. 20. ASSIGNMENT BY LESSOR. LESSOR MAY ASSIGN OR TRANSFER THIS LEASE OR ANY SCHEDULES OR LESSOR'S INTEREST IN THE EQUIPMENT WITHOUT NOTICE TO LESSEE. Any assignee or transferee of Lessor shall have the rights, but none of the obligations, of Lessor under this Lease. Lessee agrees that it will not assert against any assignee or transferee of Lessor any defense, counterclaim or offset that Lessee may have against Lessor and that upon notice, it will pay Rent to such assignee or transferee. Lessee acknowledges that any assignment or transfer by Lessor shall not materially change Lessee's duties or obligations under this Lease nor materially increase the burdens or risks imposed on Lessee. 21. NO ASSIGNMENT BY LESSEE. LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. 22. FURTHER ASSURANCES. Lessee will promptly and duly execute and deliver to Lessor such further documents and take such further actions as Lessor may from time to time deem necessary in order to carry out the intent and purpose of this Lease and to protect the interests of Lessor under this Lease. Lessee, at the request of Lessor, agrees to execute and deliver to Lessor, any financing statements, fixture filings, or other instruments necessary for perfecting the interest and title of Lessor in this Lease and the Equipment, agrees that a copy of this Lease may be so filed, and agrees that all costs incurred in connection therewith (including, without limitation, filing fees and taxes) shall be paid by Lessee. Lessee hereby appoints Lessor as Lessee's attorney-in-fact to affix Lessee's signature to any and all such documents. Lessee will deliver to Lessor monthly financial statements (unaudited but prepared in accordance with generally accepted accounting principles) within 30 days of each month-end and audited annual financial statements within three months of fiscal year-end, which financial statements, Lessee warrants, shall fully and fairly represent the true financial condition of Lessee. 23. MISCELLANEOUS. This Lease shall constitute an agreement of Lease and nothing herein shall be construed as giving to Lessee any right, title or interest in any of the Equipment except as a Lessee only. If Lessee is a partnership, then this Lease is executed by a general partner thereof, and if Lessee is a corporation, then this Lease is executed by a duly authorized officer of said corporation pursuant to authority granted by the board of directors of said corporation. This Lease may be executed in several counterparts, each of which shall constitute an original and in each case, such counterparts together shall constitute but one and the same instrument. (a) Law: Jurisdiction, Venue. This Lease shall be deemed to have been made and accepted in San Mateo County, California, where Lessor's principal place of business is located, and shall be governed by the laws of the State of California, except for local recording statutes. Lessee hereby agrees that all actions and proceedings arising from this Lease may be litigated, at the election of Lessor, only in courts having sites within the State of California and Lessee hereby consents to the jurisdiction of any state or federal court located within the State of California. Lessee agrees that if any action is brought to enforce the provisions of this Lease by either party, the County of San Mateo shall be a proper place for the trial of such action. Lessee agrees to waive trial by jury. (b) Binding on Successors. The terms and conditions of this Lease shall, subject only to the provisions as to assignment, be binding upon and inure to the benefit of Lessor and Lessee and their respective heirs, executors, administrators and assigns. (c) Survival. Lessee's indemnities such as given in Paragraphs 13 and in any addenda to this Lease shall survive the expiration or other termination of this Lease. (d) Entire Agreement; Non-Waiver; Notices; Severability. This Lease constitutes the entire understanding between Lessor and Lessee relating to the subject matter hereof. Any representation, promises or conditions not contained herein shall not be binding unless in writing and signed by duly authorized representatives of each party. No covenant or condition of this Lease can be waived except by the written consent of Lessor. Any notices required to be given hereunder shall be given in writing at the address of each party herein set forth, or at such other address as either party may substitute by written notice to the other. If any condition of this Lease is held invalid, such an invalidity shall not affect any other provisions hereof. (e) Gender; Number; Joint and Several Liability; Authorization; Paragraph Headings. Whenever the content of this Lease requires, the masculine gender includes the feminine or neuter, and the single number includes the plural. Whenever the word "Lessor" is used herein, it shall include all assignees of Lessor. Whenever the word "herein" is used referring to this Lease, it shall include the applicable Schedules hereto. If there is more than one lessee named in this Lease, the liability of each shall be joint and several. Lessee hereby authorizes Lessor to (i) insert serial numbers and other identification in the Equipment Description when known and (ii) correct any patent errors or omissions in this Lease. The titles to the Paragraphs of this Lease are solely for the convenience of the parties and shall in no way be held to explain, modify, amplify or aid in the interpretation of the terms and provisions hereof. 3 LEASE MANAGEMENT SERVICES, INC. ADDENDUM MASTER LEASE AGREEMENT NUMBER 10494 BY AND BETWEEN AURORA BIOSCIENCES CORPORATION, AS LESSEE AND LEASE MANAGEMENT SERVICES, INC., AS LESSOR Attached to and made an integral part of Master Lease Agreement Number 10494, by and between AURORA BIOSCIENCES CORPORATION, as Lessee, and LEASE MANAGEMENT SERVICES, INC., as Lessor (the "Master Lease"). In consideration of Lessor acquiring and leasing the equipment as more fully described in subsequent Lease Schedules of the Master Lease, Lessor and Lessee hereby agree that at the end of the initial lease term, Lessee will purchase the leased Equipment at its residual value which the parties agree is equal to ten percent (10%) of its initial cost. Such initial cost includes any/all taxes, installation, freight, and other charges capitalized into the lease No Lease Schedule may be subdivided. All Equipment subject to a Lease Schedule shall be treated identically for purposes of purchase or renewal. IN WITNESS WHEREOF, Lessor and Lessee have each caused this Addendum to be duly executed in their respective names this ______ day of ____________, 1996. LESSEE: LESSOR: AURORA BIOSCIENCES LEASE MANAGEMENT SERVICES, CORPORATION INC. By: By: ------------------------------------------- --------------------------------------------------- Title: Title: EVP/General Manager ----------------------------------------- ------------------------------------------------
4 ADDENDUM TO MASTER LEASE NUMBER 10494 BETWEEN AURORA BIOSCIENCES CORPORATION ("LESSEE") AND LEASE MANAGEMENT SERVICES, INC. ("LESSOR") The printed form of Master Lease Agreement #10494 between the parties dated May 17, 1996 is amended as follows: FIRST: In Section 5, Delete section in its entirety and replace with "5. ACCEPTANCE. Lessee's acceptance of the Equipment shall be conclusively and irrevocably evidenced by Lessee signing the Lessor's standard form of Certificate of Acceptance. If Lessee fails or refuses to sign the Certificate of Acceptance as to all or any part of the Equipment within a reasonable time after Lessor pays, or assumes an obligation to pay, for all or any part of the Equipment, Lessee shall automatically assume all of Lessor's purchase obligations, if any, for the Equipment and Lessee agrees to indemnify and defend Lessor from any claims with respect to such Equipment, including any demand for payment of the purchase price for such Equipment by the manufacturer, supplier or seller of such Equipment. If Lessor paid for the Equipment or any part thereof and Lessee has not signed a Certificate of Acceptance with respect to such Equipment, Lessee shall, immediately upon demand, repay the Lessor the amount so paid or execute a Certificate of Acceptance." SECOND: In Section 7, paragraph 2, line 2, delete the second reference to the word "or" and insert "and". THIRD: In Section 8, line 5, after the word "Equipment" insert "prior to redelivery to Lessor" and then in line 8, after the word "repair" insert "Lessor shall first consult with Lessee and then". FOURTH: In Section 8(b), line 15, after the word "charges" insert ", if applicable,". FIFTH: In Section 9, delete section in its entirety and replace with "9. INSURANCE. Commencing on the date risk of loss passes to Lessor from the Supplier and continuing until all of Lessee's obligations under this Lease have been satisfied, Lessee shall, at Lessee's own expense, keep the Equipment and any replacements thereto insured against such risks, in an amount equal to or exceeding the full replacement value of the Equipment, in such form and with such companies as are reasonably satisfactory to Lessor. Such insurance policy or policies shall protect Lessor and Lessee, as their respective interests may appear, and shall provide that all losses shall be payable to and adjusted with Lessor, as its interest may appear. Lessee shall, at Lessee's own expense, also maintain public liability insurance, in such form and with such companies as are reasonably satisfactory to Lessor, insuring Lessor with respect to injury to person or property resulting from the condition, locations, maintenance, and actual or alleged use of the Equipment. Lessee shall, prior to the acceptance of a Schedule by Lessor, deliver to Lessor each of the foregoing policies or satisfactory evidence of such insurance. Each such policy shall contain an endorsement or certificate providing that the insurer will give Lessor not less than 30 days' prior written notice of the effective date of any alteration or cancellation of such policy. Lessee shall furnish annually to Lessor satisfactory evidence of the maintenance of such insurance. Lessee hereby irrevocably appoints Lessor as Lessee's attorney-in-fact, if an Event of Default has occurred and is continuing, to make claim for, receive payment of, and execute any and endorse all documents for loss or damages under any insurance policy as herein specified. In case of the failure of Lessee to maintain any of such insurance, Lessor shall have the right, but shall not be obligated, to obtain such insurance, and therefor, Lessee hereby grants Lessor irrevocable right to select an insurance broker for the procurement and maintenance of such insurance coverage herein specified.". SIXTH: Section 12, at the end of the first paragraph insert "Provided that Lessee is not in Default hereunder, Lessee shall have the right of quiet enjoyment of the Equipment" and then in the second paragraph, line 2, after the word "not" insert ", without Lessor's prior written consent,". SEVENTH: Section 13, delete section in its entirety and replace with "13. INDEMNITY. Lessee shall indemnify and hold Lessor harmless from and against all claims, losses, liabilities (including negligence, tort and strict liability, but excluding gross negligence or willful misconduct of Lessor), damages, judgments, suits, and all legal proceedings, and any and all reasonable costs and expenses in connection therewith (including reasonable attorneys' fees) arising out of or in any way connected with (a) the purchase, financing, ownership, delivery, rejection, nondelivery, possession, use, transportation, storage, operation, maintenance, repair, return or other disposition of the Equipment by Lessee; or (b) this Lease, including, without limitation, claims for injury or death of persons and for damage to property, in each case resulting from the lease of equipment by Lessee from Lessor, and claims for patent, trademark or copyright infringement, and give Lessor prompt notice of any claim or liability.". EIGHTH: Section 15, delete section in its entirety. NINTH: Section 16, line 2, after the word "Lease" insert "and provided that (i) the lease is not renewed or (ii) Lessee does not exercise its option to purchase the Equipment," and then in Section 16(b), line 3, after the word "Lessor" insert "in California,". TENTH: Section 17, line 14 delete sentence that reads "To the extent permitted... remedies under Paragraph 19.". ELEVENTH: Section 18(a), after the word "hereunder" insert ", which failure shall not have been cured within ten (10) days:". TWELFTH: Section 18(b), line 2, after the word "Lessee" insert ", which failure or default shall not have been cured within 20 days after notice to the Lessee, except that, Lessee shall not be entitled to any notice of default and opportunity to cure if the default constitutes a default in (i) maintaining insurance on or in connection with the Equipment and its use as provided in Section 9, (ii) the removal of the Equipment in violation of Section 6, or (iii) the abandonment of the Equipment by Lessee.". THIRTEENTH: Section 18(c), line 1, before the word "representation" insert "material". FOURTEENTH: Section 18(e), after the word "debtors" insert ", provided, however, with respect to an involuntary petition in bankruptcy, such petition shall not have been dismissed with in forty-five (45) days after the filing of such petition;". FIFTEENTH: Section 18(g), after the word "becomes" insert "significantly". SIXTEENTH: Section 18(h), after the word "Lessee," insert "Material adverse change shall mean a change having a material adverse effect upon the financial condition of the Lessee or upon the ability of Lessee to perform its obligations under the Lease or any other agreement relating to the Lease." SEVENTEENTH: Section 19(e)(iv), before the word "estimated" insert "the present value of the" and then after the word "thereof" insert "discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco as of the Default Date". IN WITNESS WHEREOF, the undersigned have executed this Addendum this 17th day of May, 1996. LESSEE: LESSOR: AURORA BIOSCIENCES CORPORATION LEASE MANAGEMENT SERVICES, INC. By: /s/ John T. Hendrick By: -------------------------- --------------------------- Title: VP Finance Title: ----------------------- ------------------------ 1. EX-10.15 23 EXHIBIT 10.15 1 EXHIBIT 10.15 LEASE MANAGEMENT SERVICES, INC. EQUIPMENT FINANCING AGREEMENT (Number 10794) THIS EQUIPMENT FINANCING AGREEMENT NUMBER 10794 ("Agreement") is dated as of the date set forth at the foot hereof and is between LEASE MANAGEMENT SERVICES, INC., ("Secured Party") and AURORA BIOSCIENCES CORPORATION ("Debtor"). 1. EQUIPMENT; SECURITY INTEREST. The terms and conditions of this Agreement cover each item of machinery, equipment and other property (individually an "Item" or "Item of Equipment" and collectively the "Equipment") described in a schedule now or hereafter executed by the parties hereto and made a part hereof (individually a "Schedule" and collectively the "Schedules"). Debtor hereby grants Secured Party a security interest in and to all Debtor's right, title and interest in and to the Equipment under the Uniform Commercial Code, such grant with respect to an Item of Equipment to be as of Debtor's execution of a related Equipment Financing Commitment referencing this Agreement or, if Debtor then has no interest in such Item, as of such subsequent time as Debtor acquires an interest in the Item. Such security interest is granted by Debtor to secure performance by Debtor of Debtor's obligations to Secured Party hereunder and under any other agreements under which Debtor has or may hereafter have obligations to Secured Party. Debtor will ensure that such security interest will be and remain a sole and valid first lien security interest subject only to the lien of current taxes and assessment not in default but only if such taxes are entitled to priority as a matter of law. 2. DEBTOR'S OBLIGATIONS. The obligations of Debtor under this Agreement respecting an Item of Equipment, except the obligation to pay installment payments with respect thereto which will commence as set forth in Paragraph 3 below, commence upon the grant to Secured Party of a security interest in the Item. Debtor's obligations hereunder with respect to an Item of Equipment and Secured Party's security interest therein will continue until payment of all amounts due, and performance of all terms and conditions required hereunder provided, however, that if this Agreement is in default said obligations and security interest will continue during the continuance of said default. Upon termination of Secured Party's security interest in an Item of Equipment, Secured Party will execute such release of interest with respect thereto as Debtor reasonably requests. 3. INSTALLMENT PAYMENTS AND OTHER PAYMENTS. Debtor will repay advances Secured Party makes on account of the Equipment in installment payments in the amounts and at the times set forth in the Schedules, whether or not Secured Party has rendered an invoice therefor, at the office of Secured Party set forth at the foot hereof, or to such person and/or at such other place as Secured Party may from time to time designate by notice to Debtor. Any other amounts required to be paid Secured Party by Debtor hereunder are due upon Debtor's receipt of Secured Party's invoice therefor and will be payable as directed in the invoice. Payments under this Agreement may be applied to Debtor's then accrued obligations to Secured Party in such order as Secured Party may choose. 4. NET AGREEMENT; NO OFFSET, SURVIVAL. This Agreement is a net agreement, and Debtor will not be entitled to any abatement of installment payments or other payments due hereunder or any reduction thereof under any circumstance or for any reason whatsoever. Debtor hereby waives any and all existing and future claims, as offsets, against any installment payments or other payments due hereunder and agrees to pay the installment payments and other amounts due hereunder as and when due regardless of any offset or claim which may be asserted by Debtor or on its behalf. The obligations and liabilities of Debtor hereunder will survive the termination of the Agreement. 5. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT. DEBTOR ACKNOWLEDGES THAT THE EQUIPMENT HAS OR WILL HAVE BEEN SELECTED AND ACQUIRED SOLELY BY DEBTOR FOR DEBTOR'S PURPOSES, THAT SECURED PARTY IS NOT AND WILL NOT BE THE VENDOR OF ANY 2 AURORA BIOSCIENCES, CORPORATION EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 2 OF 8 EQUIPMENT AND THAT SECURED PARTY HAS NOT MADE AND WILL NOT MAKE ANY AGREEMENT, REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALIFICATION OR FITNESS FOR A PARTICULAR PURPOSE OR VALUE OF THE EQUIPMENT OR ANY OTHER MATTER WITH RESPECT THERETO IN ANY RESPECT WHATSOEVER. 6. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO AGENT OF THE MANUFACTURER OR OTHER SUPPLIER OF AN ITEM OF EQUIPMENT OR OF ANY FINANCIAL INTERMEDIARY IN CONNECTION WITH THIS AGREEMENT IS AN AGENT OF SECURED PARTY. SECURED PARTY IS NOT BOUND BY A REPRESENTATION OF ANY SUCH PARTY AND, AS CONTEMPLATED IN PARAGRAPH 27 BELOW, THE ENTIRE AGREEMENT OF SECURED PARTY AND DEBTOR CONCERNING THE FINANCING OF THE EQUIPMENT IS CONTAINED IN THIS AGREEMENT AS IT MAY BE AMENDED ONLY AS PROVIDED IN THAT PARAGRAPH. 7. ACCEPTANCE. Execution by Debtor and Secured Party of a Schedule covering the Equipment or any Items thereof will conclusively establish that such Equipment has been included under and will be subject to all the terms and conditions of this Agreement. If Debtor has not furnished Secured Party with an executed Schedule by the Earlier of fourteen (14) days after receipt thereof or expiration of the commitment period set forth in the applicable Equipment Financing Agreement, Secured Party may terminate its obligation to advance funds as to the applicable Equipment. 8. LOCATION; INSPECTION; USE. Debtor will keep, or in the case of motor vehicles, permanently garage and not remove from the United States, as appropriate, each Item of Equipment in Debtor's possession and control at the Equipment Location designated in the applicable Schedule, or at such other location to which such Item may have been moved with the prior written consent of Secured Party. Whenever requested by Secured Party, Debtor will advise Secured Party as to the exact location of an Item of Equipment. Secured Party will have the right to inspect the Equipment and observe its use during normal business hours, subject to Debtor's security procedures and to enter into and upon the premises where the Equipment may be located for such purpose. The Equipment will at all times be used solely for commercial or business purposes and operated in a careful and proper manner and in compliance with all applicable laws, ordinances, rules and regulations, all conditions and requirements of the policy or policies of insurance required to be carried by Debtor under the terms of this Agreement and all manufacturer's instructions and warranty requirements. Any modifications or additions to the Equipment required by any such governmental edict or insurance policy will be promptly made by Debtor. 9. ALTERATIONS; SECURITY INTEREST COVERAGE. Without the prior written consent of Secured Party, Debtor will not make any alterations, additions or improvements to any Item of Equipment which detract from its economic value or functional utility, except as may be required pursuant to Paragraph 8 above. Secured Party's security interest in the Equipment will include all modifications and additions thereto and replacements and substitutions therefor, in whole or in part. Such reference to replacements and substitutions will not grant Debtor greater rights to replace or substitute than are provided in Paragraph 11 below or as may be allowed upon the prior written consent of Secured Party. 10. MAINTENANCE: Debtor will maintain the Equipment in good repair, condition and working order. Debtor will also cause each Item of Equipment for which a service contract is generally available to be covered by such a contract which provides coverages typical to property of the type involved and is issued by a competent servicing entity. 11. LOSS AND DAMAGE; CASUALTY VALUE. In the event of the loss of, theft of, requisition of, damage to or destruction of an Item of Equipment ("Casualty Occurrence"), Debtor will give Secured Party prompt notice thereof and will thereafter place such Item in good repair, 3 AURORA BIOSCIENCES, CORPORATION EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 3 OF 8 condition and working order, provided, however, that if such Item is determined by Secured Party to be lost, stolen, destroyed or damaged beyond repair, is requisitioned or suffers a constructive total loss as defined in any applicable insurance policy carried by Debtor in accordance with Paragraph 14 below, Debtor, at Secured Party's option, will (a) replace such Item with like Equipment in good repair, condition and working order whereupon such replacement equipment will be deemed such Item for all purposes hereof or (b) pay Secured Party the "Casualty Value" of such Item which will equal the total of (i) all installment payments and other amounts due from Debtor to Secured Party at the time of such payment and (ii) future installment payments due with respect to such Item with each such payment including any final uneven payment discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco from the date due to the date of such payment. Upon such replacement or payment, as appropriate, this Agreement and Secured Party's security interest will terminate with, and only with, respect to the Item of Equipment so replaced or as to which such payment is made in accordance with Paragraph 2 above. 12. TITLING; REGISTRATION. Each item of Equipment subject to title registration laws will at all times be titled and/or registered by Debtor as Secured Party's agent and attorney-in-fact with full power and authority to register (but without power to affect title to) the Equipment in such manner and in such jurisdiction or jurisdictions as Secured Party directs. Debtor will promptly notify Secured Party of any necessary or advisable retitling and/or reregistration of an Item of Equipment in a jurisdiction other than the one in which such Item is then titled and/or registered. Any and all documents of title will be furnished or caused to be furnished Secured Party by Debtor within sixty (60) days of the date any titling or registering or restating or reregistering, as appropriate, is directed by Secured Party. 13. TAXES. Debtor will make all filings as to and pay when due all personal property and other ad valorem taxes and all other taxes, fees, charges and assessments based on the ownership or use of the Equipment and will pay as directed by Secured Party or reimburse Secured Party for all other taxes, including, but not limited to, gross receipt taxes (exclusive of federal and state taxes based on Secured Party's net income, unless such net income taxes are in substitution for or relieve Debtor from any taxes which Debtor would otherwise be obligated to pay under the terms of this Paragraph 13), fees, charges and assessments whatsoever, however designated, whether based on the installment payments or other amounts due hereunder, levied, assessed or imposed upon the Equipment or otherwise related hereto or to the Equipment, now or hereafter levied, assessed or imposed under the authority of a federal, state, or local taxing jurisdiction, regardless of when and by whom payable. Filings with respect to such other amounts will, at Secured Party's option, be made by Secured Party or by Debtor as directed by Secured Party. 14. INSURANCE. Debtor will procure and continuously maintain all risk insurance against loss or damage to the Equipment from any cause whatsoever for not less than the full replacement value thereof naming Secured Party as Loss Payee. Such insurance must be in a form and with companies approved by Secured Party, must provide at least thirty (30) days advance written notice to Secured Party of cancellation, change or modification in any term, condition, or amount of protection provided therein, must provide full breach of warranty protection and must provide that the coverage is "primary coverage" (does not require contribution from any other applicable coverage). Debtor will provide Secured Party with an original policy or certificate evidencing such insurance. In the event of an assignment of this Agreement of which Debtor has notice, Debtor will cause such insurance to provide the same protection to the assignee as its interests may appear. The proceeds of such insurance, at the option of the Secured Party or such assignee, as appropriate, will be applied toward (a) repair or replacement of the appropriate Item or Items of Equipment, (b) payment of the Casualty Value thereof and/or (c) payment of, or as provision for, satisfaction of any other accrued obligations of Debtor hereunder. Debtor hereby appoints Secured Party as Debtor's attorney-in-fact with full power and authority to do all things, including, but not limited to, making claims, receiving payments and endorsing documents, checks or drafts, necessary to secure payments due under any policy contemplated hereby on account of a Casualty 4 AURORA BIOSCIENCES CORPORATION EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 4 OF 8 Occurrence. Debtor and Secured Party contemplate that the jurisdictions where the Equipment will be located will not impose any liability upon Secured Party for personal injury and/or property damage resulting out of the possession, use, operation or condition of the Equipment. In the event Secured Party determines that such is not or may not be the case with respect to a given jurisdiction, Debtor will provide Secured Party with public liability and property damage coverage applicable to the Equipment in such amounts and in such form as Secured Party requires. 15. SECURED PARTY'S PAYMENT. If Debtor fails to pay any amounts due hereunder or to perform any of its other obligations under this Agreement, Secured Party may, at its option, but without any obligation to do so, pay such amounts or perform such obligations, and Debtor will reimburse Secured Party the amount of such payment or cost of such performance, plus interest at 1.5% per month. 16. INDEMNITY. Debtor does hereby assume liability for and does agree to indemnify, defend, protect, save and keep harmless Secured Party from and against any and all liabilities, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including court costs and legal expenses, of whatever kind and nature, imposed on, incurred by or asserted against Secured Party (whether or not also indemnified against by any other person) in any way relating to or arising out of this Agreement or the manufacture, financing, ownership, delivery, possession, use, operation, condition or disposition of the Equipment by Secured Party or Debtor, including, without limitation, any claim alleging latent and other defects, whether or not discoverable by Secured Party or Debtor, and any other claim arising out of strict liability in tort, whether or not in either instance relating to an event occurring while Debtor remains obligated under this Agreement, and any claim for patent, trademark or copyright infringement. Debtor agrees to give Secured Party and Secured Party agrees to give Debtor notice of any claim or liability hereby indemnified against promptly following learning thereof. 17. DEFAULT. Any of the following will constitute an event of default hereunder: (a) Debtor's failure to pay when due any installment payment or other amount due hereunder, which failure continues for ten (10) days after the due date thereof; (b) Debtor's default in performing any other obligation, term or condition of this Agreement or any other agreement between Debtor and Secured Party or default under any further agreement providing security for the performance by Debtor of its obligations hereunder provided such default has continued for more than twenty (20) days, except as provided in (c) and (d) hereinbelow, or, without limiting the generality of subparagraph (l) hereinbelow, default under any lease or any mortgage or other instrument contemplating the provision of financial accommodation applicable to the real property where an Item of Equipment is located; (c) any writ or order of attachment or execution or other legal process being levied on or charged against any Item of Equipment and not being released or satisfied within ten (10) days; (d) Debtor's failure to comply with its obligations under Paragraph 14 above or any transfer by Debtor in violation of Paragraph 21 below; (e) a non-appealable judgment for the payment of money in excess of $100,000 being rendered by a court of record against Debtor which Debtor does not discharge or make provision for discharge in accordance with the terms thereof within ninety (90) days from the date of entry thereof; (f) death or judicial declaration of incompetency of Debtor, if an individual; (g) the filing by Debtor of a petition under the Bankruptcy Code or any amendment thereto or under any other insolvency law or law providing for the relief of debtors, including, without limitation, a petition for reorganization, arrangement or extension, or the commission by Debtor of an act of bankruptcy; (h) the filing against Debtor of any such petition not dismissed or permanently stayed within thirty (30) days of the filing thereof; (i) the voluntary or involuntary making of an assignment of substantial portion of its assets by Debtor for the benefit of creditors, appointment of a receiver or trustee for Debtor or for any of Debtor's assets, institution by or against Debtor or any other type of insolvency proceeding (under the Bankruptcy Code or otherwise) or of any formal or informal proceeding for dissolution, liquidation, settlement of claims against or winding up of the affairs of Debtor, Debtor's cessation of business activities or the making by Debtor of a transfer of all or a material portion of Debtor's assets or inventory not in the ordinary course of business; (j) the occurrence of any event described in parts (e), (f), (g), (h) or (i) hereinabove with respect to any guarantor or 5 AURORA BIOSCIENCES, INC. EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 5 OF 8 other party liable for payment or performance of this Agreement; (k) any certificate, statement, representation, warranty or audit heretofore or hereafter furnished with respect hereto by or on behalf of Debtor or any guarantor or other party liable for payment or performance of this Agreement proving to have been false in any material respect at the time as of which the facts therein set forth were stated or certified or having omitted any substantial contingent or unliquidated liability or claim against Debtor or any such guarantor or other party; (l) breach by Debtor of any lease or other agreement providing financial accommodation under which Debtor or its property is bound; or (m) a transfer of effective control of Debtor, if an organization. 18. REMEDIES. Upon the occurrence of an event of default, Secured Party will have the rights, options, duties and remedies of a Secured Party, and Debtor will have the rights and duties of a debtor, under the Uniform Commercial Code (regardless of whether such Code or a law similar thereto has been enacted in a jurisdiction wherein the rights or remedies are asserted) and, without limiting the foregoing, Secured Party may exercise any one or more of the following remedies: (a) declare the Casualty Value or such lesser amount as may be set by law immediately due and payable with respect to any or all Items of Equipment without notice or demand to Debtor; (b) sue from time to time for and recover all installment payments and other payments then accrued and which accrue during the pendency of such action with respect to any or all Items of Equipment; (c) take possession of and, if deemed appropriate, render unusable any or all Items of Equipment, without demand or notice, wherever same may be located, without any court order or other process of law and without liability for any damages occasioned by such taking of possession and remove, keep and store the same or use and operate or lease the same until sold; (d) require Debtor to assemble any or all Items of Equipment at the Equipment Location therefor, or at such location to which such Equipment may have been moved with the written consent of Secured Party or such other location in reasonable proximity to either of the foregoing as Secured Party designates; (e) upon ten (10) days notice to Debtor or such other notice as may be required by law, sell or otherwise dispose of any Item of Equipment, whether or not in Secured Party's possession, in a commercially reasonable manner at public or private sale at any place deemed appropriate and apply the new proceeds of such sale, after deducting all costs of such sale, including, but not limited to, costs of transportation, repossession, storage, refurbishing, advertising and brokers' fees, to the obligations of Debtor to Secured Party hereunder or otherwise, with Debtor remaining liable for any deficiency and with any excess being returned to Debtor; (f) upon thirty (30) days notice to Debtor, retain any repossessed or assembled Items of Equipment as Secured Party's own property in full satisfaction of Debtor's liability for the installment payments due hereunder with respect thereto, provided that Debtor will have the right to redeem such Items by payment in full of its obligations to Secured Party hereunder or otherwise or to require Secured Party to sell or otherwise dispose of such Items in the manner set forth in subparagraph (e) hereinabove upon notice to Secured Party within such thirty (30) day period; or (g) utilize any other remedy available to Secured Party under the Uniform Commercial Code or similar provision of law or otherwise at law or in equity. No right or remedy conferred herein is exclusive of any other right or remedy conferred herein or by law; but all such remedies are cumulative of every other right or remedy conferred hereunder or at law or in equity, by statute or otherwise, and may be exercised concurrently or separately from time to time. Any sale contemplated by subparagraph (e) of this Paragraph 18 may be adjourned from time to time by announcement at the time and place appointed for such sale, or for any such adjourned sale, without further published notice, Secured Party may bid and become the purchaser at any such sale. Any sale of an Item of Equipment, whether under said subparagraph or by virtue of judicial proceedings, will operate to divest all right, title, interest, claim and demand whatsoever; either at law or in equity, of Debtor in and to said item and will be a perpetual bar to any claim against such Item, both at law and in equity, against Debtor and all persons claiming by, through or under Debtor. 19. DISCONTINUANCE OF REMEDIES. If Secured Party proceeds to enforce any right under this Agreement and such proceedings are discontinued or abandoned for any reason or are 6 AURORA BIOSCIENCES CORPORATION EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 6 OF 8 determined adversely, then and in every such case Debtor and Secured Party will be restored to their former positions and rights hereunder. 20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs and expenses, including attorney's fees and court costs and sales costs not offset against sales proceeds under Paragraph 18 above, incurred by Secured Party in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereof. This obligation includes the payment or reimbursement of all such amounts whether an action is ultimately filed and whether an action is ultimately dismissed. 21. ASSIGNMENT. Without the prior written consent of Secured Party, Debtor will not sell, lease, pledge or hypothecate, except as provided in this Agreement, any Item of Equipment or any interest therein or assign, transfer, pledge, or hypothecate this Agreement or any interest in this Agreement or permit the Equipment to be subject to any lien, charge or encumbrance of any nature except the security interest of Secured Party contemplated hereby. Debtor's interest herein is not assignable and will not be assigned or transferred by operation of law. Consent to any of the foregoing prohibited acts applies only in the given instance and is not a consent to any subsequent like act by Debtor or any other person. All rights of Secured Party hereunder may be assigned, pledged, mortgaged, transferred or otherwise disposed of, either in whole or in part, without notice to Debtor but always, however, subject to the rights of Debtor under this Agreement. If Debtor is given notice of any such assignment, Debtor will acknowledge receipt thereof in writing. In the event Secured Party assigns this Agreement or the installment payments due or to become due hereunder or any other interest herein, whether as security for any of its indebtedness or otherwise, no breach or default by Secured Party hereunder or pursuant to any other agreement between Secured Party and Debtor, should there be one, will excuse performance by Debtor of any provision hereof, it being understood that in the event of such default or breach by Secured Party that Debtor will pursue any rights on account thereof solely against Secured Party. No such assignee, unless such assignee agrees in writing, will be obligated to perform any duty, covenant or condition required to be performed by Secured Party in connection with this Agreement. Subject always to the foregoing, this Agreement inures to the benefit of, and is binding upon, the heirs, legatees, personal representative, successors and assigns of the parties hereto. 22. MARKINGS; PERSONAL PROPERTY. If Secured Party supplies Debtor with labels, plates, decals or other markings stating that Secured Party has an interest in the Equipment, Debtor will affix and keep the same prominently displayed on the Equipment or will otherwise mark the Equipment or its then location or locations, as appropriate, at Secured Party's request to indicate Secured Party's security interest in the Equipment. The Equipment is, and at all times will remain, personal property notwithstanding that the Equipment or any Item thereof may now be, or hereafter become, in any manner affixed or attached to, or embedded in, or permanently resting upon real property or any improvement thereof or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise. If requested by Secured Party, Debtor will obtain and deliver to Secured Party waivers of interest or liens in recordable form satisfactory to Secured Party from all persons claiming any interest in the real property on which an Item of Equipment is or is to be installed or located. 23. LATE CHARGES. Time is of the essence in this Agreement and if any Installment Payment is not paid within ten (10) days after the due date thereof, Secured Party shall have the right to add and collect, and Debtor agrees to pay: (a) a late charge on and in addition to, such Installment Payment equal to five percent (5%) of such Installment Payment or a lesser amount if established by any state or federal statute applicable thereto, and (b) interest on such Installment Payment from thirty (30) days after the due date until paid at the highest contract rate enforceable against Debtor under applicable law but never to exceed eighteen percent (18%) per annum. 7 AURORA BIOSCIENCES, CORPORATION EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 7 OF 8 24. NON-WAIVER. No covenant or condition of this Agreement can be waived except by the written consent of Secured Party. Forbearance or indulgence by Secured Party in regard to any breach hereunder will not constitute a waiver of the related covenant or condition to be performed by Debtor. 25. ADDITIONAL DOCUMENTS. In connection with and in order to perfect and evidence the security interest in the Equipment granted Secured Party hereunder Debtor will execute and deliver to Secured Party such financing statements and similar documents as Secured Party requests. Debtor authorizes Secured Party where permitted by law to make filings of such financing statements without Debtor's signature. Debtor further will furnish Secured Party (a) on a timely basis, Debtor's future financial statements, including Debtor's most recent annual report, balance sheet and income statement, prepared in accordance with generally accepted accounting principles, which reports, Debtor warrants, shall fully and fairly represent the true financial condition of Debtor (b) any other information normally provided by Debtor to the public and (c) such other financial data or information relative to this Agreement and the Equipment, including, without limitation, copies of vendor proposals and purchase orders and agreements, listings of serial numbers or other identification data and confirmations of such information, as Secured Party may from time to time reasonably request. Debtor will procure and/or execute, have executed, acknowledge, have acknowledged, deliver to Secured Party, record and file such other documents and showings as Secured Party deems necessary or desirable to protect its interest in and rights under this Agreement and interest in the Equipment. Debtor will pay as directed by Secured Party or reimburse Secured Party for all filing, search, title report, legal and other fees incurred by Secured Party in connection with any documents to be provided by Debtor pursuant to this Paragraph or Paragraph 22 and any further similar documents Secured Party may procure. 26. DEBTOR'S WARRANTIES. Debtor certifies and warrants that the financial data and other information which Debtor has submitted, or will submit, to Secured Party in connection with this Agreement is, or will be at time of delivery, as appropriate, a true and complete statement of the matters therein contained. Debtor further certifies and warrants: (a) this Agreement has been duly authorized by Debtor and when executed and delivered by the person signing on behalf of Debtor below will constitute the legal, valid and binding obligation, contract and agreement of Debtor enforceable against Debtor in accordance with its respective terms; (b) this Agreement and each and every showing provided by or on behalf of Debtor in connection herewith may be relied upon by Secured Party in accordance with the terms thereof notwithstanding the failure of Debtor or other applicable party to ensure proper attestation thereto, whether by absence of a seal or acknowledgment or otherwise; (c) Debtor has the right, power and authority to grant a security interest in the Equipment to Secured Party for the uses and purposes herein set forth and (d) each Item of Equipment will, at the time such Item becomes subject hereto, be in good repair, condition and working order. 27. ENTIRE AGREEMENT. This instrument with exhibits and related documentation constitutes the entire agreement between Secured Party and Debtor and will not be amended, altered or changed except by a written agreement signed by the parties. 28. NOTICES. Notices under this Agreement must be in writing and must be mailed by United States mail, certified mail with return receipt requested, duly addressed, with postage prepaid, to the party involved at its respective address set forth at the foot hereof or at such other address as each party may provide on notice to the other from time to time. Notices will be effective when deposited. Each party will promptly notify the other of any change in that party's address. 29. GENDER, NUMBER: JOINT AND SEVERAL LIABILITY. Whenever the context of this Agreement requires, the neuter gender includes the feminine or masculine and the singular number includes the plural; and whenever the words "Secured Party" are used herein, they include all assignees of Secured Party, it being understood that specific reference to "assignee" in 8 AURORA BIOSCIENCES CORPORATION EQUIPMENT FINANCING AGREEMENT NUMBER 10794 PAGE 8 OF 8 Paragraph 14 above is for further emphasis. If there is more than one Debtor named in this Agreement, the liability of each will be joint and several. 30. TITLES. The titles to the Paragraphs of this Agreement are solely for the convenience of the parties and are not an aid in the interpretation of the instrument. 31. GOVERNING LAW; VENUE. This Agreement will be governed by and construed in accordance with the laws of the State of California. Venue for any action related to the Agreement will be in an appropriate court in San Mateo County, California, to which Debtor consents, or in another court selected by Secured Party which has jurisdiction over the parties. In the event any provision hereof is declared invalid, such provision will be deemed severable from the remaining provisions of this Agreement, which will remain in full force and effect. 32. TIME. Time is of the essence of this Agreement and for each and all of its provisions. In WITNESS WHEREOF, the undersigned have executed this Agreement as of _________________, 1996. DEBTOR: AURORA BIOSCIENCES CORPORATION 11149 Torrey Pines Road La Jolla, CA 92037 By: _______________________________________________ Title: _______________________________________________ SECURED PARTY: LEASE MANAGEMENT SERVICES, INC. 2500 Sand Hill Road, Suite 101 Menlo Park, CA 94025 By: _______________________________________________ Title: EVP/ General Manager _______________________________________________ 9 ADDENDUM TO EQUIPMENT FINANCING AGREEMENT NUMBER 10794 BETWEEN AURORA BIOSCIENCES CORPORATION AND LEASE MANAGEMENT SERVICES, INC. ("SECURED PARTY") The printed form of Equipment Financing Agreement #10794 between the parties dated May 17, 1996 is amended as follows: 1. In Section 1, line 11 before the word "agreement" insert "equipment lease or equipment financing." 2. In Section 7, change "fourteen (14) days" to "thirty (30) days" in the second sentence. 3. In Section 8, line 5, after the first appearance of the words "Secured Party" insert "which consent shall not be unreasonably withheld, provided that (i) Debtor is not then in default hereunder, (ii) the Equipment will continue to be used by and remain under the dominion and control of Debtor, (iii) the Debtor provides Secured Party with evidence of transit insurance naming Secured Party as loss payee, (iv) Debtor provides Secured Party with a Landlord Waiver in form and substance acceptable to Secured Party and (v) Debtor provides Secured Party with such Financing Statement or Amendment as Secured Party may reasonably require." 4. In Section 11, line 7, after the word "below" insert "Secured Party shall first consult with Debtor and then." 5. In Section 12, line 4, after the words "Secured Party" insert "reasonably." 6. Section 14, delete section in its entirety and replace with "14. INSURANCE. Debtor will procure and continuously maintain insurance against loss (other than by reason of war, acts of God, riot, earthquake, flood or the like) or damage to the Equipment from any reasonable risk whatsoever for not less than the full replacement value thereof naming Secured Party as Loss Payee as its interest may appear. Such insurance must be in a form and with companies approved by Secured Party, must provide at least thirty (30) days advance written notice to Secured Party of cancellation, change or modification in any term, condition, or amount of protection provided therein, must provide full breach of warranty protection and must provide that the coverage is "primary coverage" (does not require contribution from any other applicable coverage). Debtor will provide Secured Party with an original policy or certificate evidencing such insurance. In the event of an assignment of this Agreement of which Debtor has notice, Debtor will cause such insurance to provide the same protection to the assignee as its interest may appear. The proceeds of such insurance, at the option of the Secured Party or such assignee (after consultation with Debtor), as appropriate, will be applied toward (a) repair or replacement of the appropriate Item or items of Equipment (b) payment of the Casualty Value thereof and/or (c) payment of, or as provision for, satisfaction of any other accrued obligations of Debtor hereunder. Debtor hereby appoints Secured Party as Debtor's attorney-in-fact will 1. 10 full power and authority, if an Event of Default has occurred and is continuing, to do all things, including, but not limited to, making claims, receiving payments and endorsing documents, checks or drafts, necessary to secure payments due under any policy contemplated hereby on account of a Casualty Occurrence. Debtor and Secured Party contemplate that the jurisdictions where the Equipment will be located will not impose any liability upon Secured Party for personal injury and/or property damage resulting out of the possession, use, operation or condition of the Equipment. In the event Secured Party determines that such is not or may not be the case with respect to a given jurisdiction, Debtor will provide Secured Party with public liability and property damage coverage applicable to the Equipment in such amounts and in such form as Secured Party reasonably requires, provided, however, that public liability insurance with primary limits of $1,000,000 per occurrence with an excess policy of $2,000,000, shall be deemed to satisfy this requirement." 7. Section 15, at the beginning of the section insert "Subject to Section 23 below,". 8. Section 16, delete section in its entirety and replace with "16. INDEMNITY. Debtor shall indemnify and hold Secured Party harmless from and against all claims, losses, liabilities (including negligence, tort and strict liability, but excluding gross negligence or willful misconduct of Secured Party), damages, judgments, suits, and all legal proceedings, and any and all reasonable cost and expenses in connection therewith (including reasonable attorneys' fees) arising out of or in any way connected with (a) the purchase, financing, ownership, delivery, rejection, nondelivery, possession, use, transportation, storage, operation, maintenance, repair, return or other disposition of the Equipment by Debtor; or (b) this Equipment Financing Agreement, including, without limitation, claims for injury or death of persons and for damage to property, in each case resulting from the Equipment financed by Debtor from Secured Party, and claims for patent, trademark or copyright infringement, and Debtor shall give Secured Party prompt notice of any claim or liability." 9. Section 17, delete clause (d) in its entirety and replace it with "(d) Debtor's continued failure to comply with Paragraph 14 above for three (3) days after notice thereof from Secured Party or any transfer by Debtor in violation of Paragraph 21 below;". 10. Section 17, add a new sentence at the end of the section to read as follows: "Anything in this Agreement to the contrary notwithstanding, until such time as Secured Party has notified Debtor in writing that it has commenced the exercise of its remedies under Section 18. Debtor may cure any event of default under subsections (a), (b) and (l) above and, once any such event of default is so cured, Secured Party shall have no rights or remedies with respect to the particular cured event of default, under Section 18 or otherwise." 11. Section 17(h), delete "thirty (30)" and replace it with "forty-five (45)." 12. Section 17(k), at the end of the clause insert "in excess of $50,000 per item or in the aggregate." 2. 11 13. Section 17(l), delete the section and replace it with "breach, in excess of $50,000 per item or in the aggregate, by Debtor of any lease or other agreement providing financial accommodation under which Debtor or its property is bound, which breach is not cured or with respect to which no provision has been made to cure within twenty (20) days;". 14. Section 18, line 1, insert the following in front of the beginning of the first sentence of the section: "Except as provided otherwise in this Agreement (as amended by this Addendum)." 15. Section 18(d), line 3, after the word "Secured Party" insert ", which consent shall not be unreasonably withheld." 16. Section 20, line 1, at the beginning of the section insert "Upon the occurrence of an Event of Default,". 17. Section 20, line 1, insert "reasonable" between "all" and "cost." 18. Section 20, line 2, "reasonable" between "including" and "attorney's." 19. Section 25, line 4, insert "reasonably" before "requests." 20. Section 25, line 5, after "Secured Party" insert "at the Secured Party's reasonable request." 21. Section 25, line 17, insert "reasonable" between "report," and "legal" and between "other" and "fees." 22. Section 31, delete the second sentence beginning in line 2 and replace it with "Venue for any action related to the Agreement will be in an appropriate court in San Diego County, California." IN WITNESS WHEREOF, the undersigned have executed this Addendum this 17th day of May, 1996. DEBTOR SECURED PARTY: AURORA BIOSCIENCES CORPORATION LEASE MANAGEMENT SERVICES, INC. By: /s/ JOHN T. HENDRICK By: -------------------------- --------------------------- Title: VP Finance Title: ----------------------- ------------------------ 3. 12 LEASE MANAGEMENT SERVICES, INC. ADDENDUM TO EQUIPMENT FINANCING AGREEMENT NUMBER 10794 BY AND BETWEEN AURORA BIOSCIENCES CORPORATION, AS DEBTOR, AND LEASE MANAGEMENT SERVICES, INC., AS SECURED PARTY AURORA BIOSCIENCES CORPORATION, as Debtor, hereby acknowledges its responsibility to pay, and agrees to pay any taxes which may be due to the State of California or where applicable, for the collateral covered under the above referenced agreement. DEBTOR: AURORA BIOSCIENCES CORPORATION By: ____________________________________________ Title: ____________________________________________ Date: ____________________________________________ EX-10.16 24 EXHIBIT 10.16 1 EXHIBIT 10.16 LEASE MANAGEMENT SERVICES, INC. SECURITY DEPOSIT PLEDGE AGREEMENT PLEDGEE: LEASE MANAGEMENT SERVICES, INC. 2500 Sand Hill Road, Suite 101 Menlo Park, California 94025 PLEDGOR: AURORA BIOSCIENCES CORPORATION 11149 No. Torrey Pines Road La Jolla, CA 92037 In consideration of, and as an inducement for Pledgee to enter into a Master Lease Agreement Number 10494 and an Equipment Financing Agreement Number 10794 and all Schedules thereunder (hereinafter collectively referred to as the "Agreements") with Pledgor, and to secure the payment and performance of all Pledgor's obligations under the Agreements, Pledgor hereby grants and assigns to Pledgee, its successors and assigns, a security interest in, and hereby deposits and pledges with Pledgee a Security Deposit in an amount equivalent to 12% of aggregate Equipment cost (including any soft costs) leased or financed for each Schedule. As used herein, "Security Deposit" shall refer to the aggregate of all component deposits made under the applicable Schedules. Such pledge is to be upon the terms and conditions set forth below: 1. Pledgor delivers the Security Deposit to Pledgee to secure the due and punctual payment and performance of the obligations of Pledgor under the Agreements. Pledgee will pay 5% simple interest per annum on the Security Deposit, which interest will be accrued for each respective component of the Security Deposit from the commencement date of the applicable Schedule and paid when the Security Deposit is returned to Pledgor. 2. Upon any default by Pledgor under the Agreements, interest accrual on the Security Deposit shall cease and Pledgee may, at its option, apply the Security Deposit and any interest accrued to that date toward the satisfaction of Pledgor's obligations under the Agreements, and the payment of all costs and expenses incurred by Pledgee as a result of such default, including reasonable attorney's fees. Pledgee is liable to Pledgor only for any surplus remaining from said Security Deposit after the full satisfaction of the foregoing obligations, costs and expenses. 3. Pledgor waives any rights to require Pledgee to (i) proceed against Pledgor or any other party; (ii) proceed against or exhaust any security held from Pledgor; or (iii) pursue any other remedy in Pledgee's power whatsoever before enforcing the provisions of, and proceeding under the provisions of, this Security Deposit Pledge Agreement. The obligations of Pledgor under this Security Deposit Pledge Agreement shall be absolute and unconditional, and shall remain in full force and effect without regard to, and shall not be released or discharged or in any way affected by (a) any amendment or modification of or supplement to the Agreements; (b) any exercise or non-exercise of any right, remedy or privilege under or in respect to this Security Deposit Pledge Agreement, the Agreements, or any other instrument provided for in the Agreements, or any waiver, consent, explanation, indulgence or actions or inaction 2 SECURITY DEPOSIT PLEDGE AGREEMENT AURORA BIOSCIENCES CORPORATION Page 2 of 3 with respect to any such instrument; or (c) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings of Pledgor. 4. Pledgee shall have no obligation to segregate said Security Deposit and Pledgor hereby irrevocably authorizes Pledgee, at Pledgee's sole election, to commingle said Security Deposit with other assets and funds held by or belonging to Pledgee. Pledgor may not assign, pledge or transfer to any party its interest in the Security Deposit and any attempt to do so shall be null and void. 5. Without notice to Pledgor, Pledgee may freely assign its rights and obligations hereunder, in whole or in part, at any time and this Security Deposit Pledge Agreement shall inure to the successors and assignees of Pledgee. In the event Pledgee assigns or transfers one or more Schedules under the Agreements without assigning or transferring the Security Deposit, Pledgor agrees that it will look solely to Pledgee for the return of the Security Deposit and will not assert any claim against any assignee of Pledgee for the return of said Security Deposit and further agrees that it will not assert against any payments due such assignee of Pledgee any offset that Pledgor may have against Pledgee for the return of said Security Deposit. In the event Pledgee assigns or transfers this Security Deposit Pledge Agreement along with the Schedules under the Agreements, Pledgor agrees that it shall look solely to the assignee of Pledgee for the return of said Security Deposit and Pledgee shall have no further liability to Pledgor with respect thereto. 6. Provided that the Pledgor is not then in default of its obligations to the Pledgee under the Agreements or otherwise, Pledgee agrees to return the Security Deposit and accrued interest on a schedule by schedule basis to Pledgor with Pledgor's achievement of the earlier of one of the following: A) At such time, after 12/31/97, that Pledgee's unrestricted cash balance, less debt, is at least $20,000,000; OR B) In the event of an acquisition, if acquiror executes an assignment or guarantee acceptable to Pledgor; OR C) After receipt of 32 prompt rents per schedule and cash sufficient in Pledgor's judgment to assure Pledgee's financial stability through the end of term; OR D) Pledgor produces 3 consecutive quarters of pre-tax income, net of extraordinary items, of at least $1,000,000 per quarter. All accounting terms used herein shall be interpreted in accordance with generally accepted accounting principles. 7. Any reduction/return of the Security Deposit and any payment of interest prior to the Termination of the Agreements (as defined below) is contingent upon the following additional conditions: (a) verification of all benchmarks is to be acceptable to Pledgee; (b) Pledgor has made all payments on a timely basis according to the terms of the Agreements; (c) Pledgor is not, nor ever has been, in default of any financial obligation; (d) Pledgor, if privately held, has provided monthly financial statements to Pledgee within 30 days of each month-end, or if Pledgor is publicly held, has provided quarterly statements as required to be filed by the Securities and Exchange Commission (the "SEC"); (e) Pledgor, if privately held, has provided an annual audited financial statements to Pledgee within 90 days of Pledgor's fiscal year end or if Pledgor is 3 SECURITY DEPOSIT PLEDGE AGREEMENT AURORA BIOSCIENCES CORPORATION Page 3 of 3 publicly held, has provided Pledgee with annual statements as required to be filed by the SEC; and (f) Pledgor has not suffered any material adverse change. The Termination of the Agreements shall be defined as the satisfaction of all Pledgor's obligations under the Agreements. 8. If the Security Deposit has not previously been returned, upon the Termination of the Agreements, Pledgee shall deliver the Security Deposit and accrued interest (less any portion of same cashed, sold, assigned or delivered pursuant to, and under the circumstances specified in, Paragraph 2 hereof) to Pledgor, and this Security Deposit Pledge Agreement shall thereupon be without further effect. PLEDGOR: PLEDGEE: AURORA BIOSCIENCES LEASE MANAGEMENT SERVICES, INC. CORPORATION By: By: --------------------------------- --------------------------------------- Title: Title: EVP/General Manager ------------------------------ ------------------------------------ Date: Date: ------------------------------- -------------------------------------
4 LEASE MANAGEMENT SERVICES, INC. CERTIFICATE OF INCUMBENCY AND AUTHORITY I, Timothy J. Rink, do hereby certify that I am the duly elected, qualified and acting Chief Executive Officer of AURORA BIOSCIENCES CORPORATION, (Lessee/Debtor), a Delaware corporation; that the persons whose names, titles and signatures appear below are duly elected (or appointed) qualified and acting officers of said corporation and hold on the date of this Certificate, and on the date of execution of the Master Lease documents and/or Equipment Financing documents, the offices set opposite their respective names; that the signatures appearing opposite their respective names are the genuine signatures of such officers; that each such officer is duly authorized for and on behalf of said corporation to execute and deliver any Equipment Lease and/or Equipment Financing Agreement between said corporation and said Lessor/Secured Party, LEASE MANAGEMENT SERVICES, INC., and all agreements, documents, and instruments in connection therewith, including without limitation, Rental Schedules and Certificates of Equipment Acceptance, and that the execution and delivery of any such equipment lease and/or financing agreement, and all agreements, documents, and instruments in connection therewith for and on behalf of said corporation is not prohibited by or in any manner restricted by the terms of said corporation's Certificate of Incorporation, its by-laws, or of any loan agreement, indenture or contract to which said corporation is a party or under which it is bound. I do further certify that the foregoing authority shall remain in full force and effect, and LEASE MANAGEMENT SERVICES, INC. shall be entitled to rely upon the same, until written notice of the modification, rescission or revocation of same, in whole or in part, has been delivered to LEASE MANAGEMENT SERVICES, INC., but no such modification, rescission or revocation shall, in any event, be effective with respect to any documents executed or actions taken in reliance upon the foregoing authority prior to the delivery to LEASE MANAGEMENT SERVICES, INC. of said written notice of said modification, rescission or revocation. NAME OF OFFICER TITLE OF OFFICER SIGNATURE OF OFFICER Deborah J. Tower Director, Finance ----------------------------------- & Administration
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of ________, 1996. Lessee/Debtor: AURORA BIOSCIENCES CORPORATION By: _______________________________________________________ Title: Chief Executive Officer _______________________________________________________ 5 LEASE MANAGEMENT SERVICES, INC. CERTIFIED COPY OF RESOLUTIONS OF BOARD OF DIRECTORS I, John T. Hendrick, hereby certify that I am the Corporate Secretary and official custodian of certain records including the Charter, By-Laws, and the Minutes of the Meetings of the Board of Directors of AURORA BIOSCIENCES CORPORATION, a Corporation duly organized and existing under the laws of the State of Delaware, that the following is a true, accurate and compared transcript of the Resolutions contained in the Minute Book of the Corporation, duly adopted by the Board of Directors of said Corporation at a Meeting of the Board of Directors of said Corporation duly held on the ______ day of __________, 19____, at which time a quorum was present and acted throughout and authorized its officers to transact the business hereinafter described, and that the proceedings of said meeting were in accordance with the Charter and By-Laws of said Corporation and that said Resolutions have not been rescinded or amended and are in full force and effect: RESOLVED, that this Corporation enter into a Lease Agreement and/or an Equipment Financing Agreement with LEASE MANAGEMENT SERVICES, INC. for the funding of that certain property as is set forth in the Master Equipment Lease Agreement and/or Equipment Financing Agreement, and it is further RESOLVED, that any officers of this Corporation be and they are hereby authorized and empowered in the name of and on behalf of this Corporation to execute any and all documents as may be required by LEASE MANAGEMENT SERVICES, INC. to effectuate the provisions hereof. I CERTIFY, that I have examined the Articles of Incorporation, the By-Laws of the Corporation, and all amendments therewith and I am fully familiar with all of said documents and that there are no restrictions imposed on the power and authority of the Board of Directors of said Corporation to adopt the foregoing resolutions whereupon the Corporation and its officers are authorized to act in accordance therewith. IN WITNESS WHEREOF, I have hereupon subscribed my name on the ________ day of_______________ , 1996. By: ______________________________________ Corporate Secretary ATTEST: ___________________________________________ Title: ____________________________________ 6 LEASE MANAGEMENT SERVICES, INC. REQUEST FOR CERTIFICATE OF INSURANCE Stephen Downey ISU Downey Insurance Co. 844 Prospect Street La Jolla, CA 92037 We, as Lessee/Debtor, have entered into a Master Equipment Lease Agreement and/or an Equipment Financing Agreement with LEASE MANAGEMENT SERVICES, INC., as Lessor/Secured Party, to finance the purchase of equipment. Accordingly, you are hereby authorized to: 1. Insure said equipment in the name of LEASE MANAGEMENT SERVICES, INC. 2. Issue a written endorsement naming LEASE MANAGEMENT SERVICES, INC., as Additional Insured and First Loss Payee, and provide LMSI with thirty (30) day written notice of material change of coverage, cancellation or non-renewal. LMSI shall have the right to name additional parties as Additional Insured and First Loss Payee and notices will also be provided to those parties upon LMSI's request. 3. INSURANCE MUST INCLUDE COVERAGE AS INDICATED BELOW: (x) Bodily Injury and Property Damage Insurance with limits of no less than $3,500,000 (x) Physical Damage (all risk) from any cause whatsoever, except earthquake and flood. 4. Loss, if any, under this endorsement shall be payable SOLELY to LEASE MANAGEMENT SERVICES, INC., or its assigns and shall not be invalidated due to any violation of any conditional warranty contained in any policy or application therefor by Lessee/Debtor, or by reason of any act of the Lessee/Debtor. 5. THIS POLICY MUST CONTAIN THE FOLLOWING ENDORSEMENT: The insurance under this policy shall be primary insurance, and the company insurer shall be liable under this policy for the full amount of the loss up to and including the total limits of liability herein without right of contribution from any other insurance effected by LEASE MANAGEMENT SERVICES, INC., under any policy with any insurance company covering a loss covered under this policy. Forward evidence of coverage to: LEASE MANAGEMENT SERVICES, INC. 2500 Sand Hill Road, Suite 101 Menlo Park, California 94025 Attn: Insurance Administrator LESSEE/DEBTOR: AURORA BIOSCIENCES CORPORATION By: ________________________________________________________ Title: ______________________________________________________ Date: _______________________________________________________ 7 LEASE MANAGEMENT SERVICES, INC. LANDLORD WAIVER WHEREAS, Nexus Development Corporation a _______________ corporation ("Landlord"), being the owner and landlord of the premises described as 11149 No. Torrey Pines Road, La Jolla, San Diego County, CA 92037; and WHEREAS Landlord and AURORA BIOSCIENCES CORPORATION ("Tenant") have entered into a real property lease wherein Tenant has leased approximately ___________ square feet of space in the building located at 11149 No. Torrey Pines Road, La Jolla, San Diego County, CA 92037; and ("Premises") and WHEREAS, Landlord acknowledges that notice has been received that Tenant has entered into an equipment lease and/or financing agreement that provides a security interest in the personal property leased or to be leased, and/or pledged or to be pledged, from LEASE MANAGEMENT SERVICES, INC. ("Lessor/Secured Party"), under a Master Lease Agreement Number 00000 and all its schedules thereunder, and/or under an Equipment Financing Agreement Number 00000 and all its schedules thereunder, (hereinafter referred to collectively as the "Agreements") for the better utilization of said Premises by said Tenant; NOW, THEREFORE, the Landlord, as an inducement to said Lessor/Secured Party to lease such personal property for said Tenant and/or to finance the acquisition of personal property to said Tenant, and in consideration of the benefit to the undersigned resulting from such better utilization of said Premises, and for other valuable considerations, hereby acknowledged by the undersigned, does hereby agree that: 1. Each and all items of personal property so leased/financed by said Lessor/Secured Party to said Tenant, under said Agreements, or any renewal, extension, or modification thereof, shall not, by reason of its installation or being placed in or upon said Premises, be construed as real property, or as forming part of any building leased by the Landlord to said Tenant, but shall remain personal property at all times, be severable from said Premises and not be construed as a fixture by being placed in or upon, or in any manner annexed, attached or connected to said Premises. 2. Title to, ownership of, and/or the right of possession as provided in the Agreements covering said personal property, shall be and shall remain at all times with said Lessor/Secured Party, its successors and assigns, free of any claim or right of the Landlord. 3. Lessor/Secured Party may enter the Premises at any time or from time to time for purposes of inspecting and/or removing any and all of the personal property in the exercise of its rights and remedies arising from aforesaid Agreements. If it becomes necessary to remove personal property from the Premises, Lessor/Secured Party will take all reasonable care to avoid damage to the Premises. If damage, resulting solely from the Lessor/Secured Party's, and/or its agent(s) act(s) of removing personal property, does occur, then the Lessor/Secured Party will be responsible to pay a reasonable sum, agreed upon by both the Landlord and Lessor/Secured Party, to repair damages resulting to the Premises. 4. Landlord waives and releases any and all rights, however arising, including without limitation, the right to levy, seize, sue, execute or sell for unpaid rent, which Landlord now has or may hereafter acquire with respect to the personal property, whether such property is now or hereafter located on or in the Premises or otherwise, and all claims and demands of every kind against the personal property, during the term of the aforesaid Agreements and any renewal, extension or modification therefor or substitution thereof. 8 LANDLORD WAIVER Aurora Biosciences Corporation Page 2 of 2 5. Landlord agrees to make this Waiver known to any transferee of the Premises and any person who may have any interest or right in the Premises or personal property. 6. Landlord agrees to make best efforts to promptly notify in writing, said Lessor/Secured Party, of any default or termination of its lease with Tenant for any reason or any event which, with the giving of notice or passage of time or both, could result in the creation of the right of Landlord to terminate any lease covering all or any part of the Premises or to accelerate any rent due thereunder. 7. If Landlord notifies Lessor/Secured Party that Tenant has abandoned the personal property and/or that Tenant has defaulted on the real property lease and has been evicted and/or vacated the Premises leaving the personal property thereon; Lessor/Secured Party upon notification of such action from Landlord, will use its best efforts with the Landlord to remove the personal property in a timely manner. Should a timely removal not be possible due to the size or nature of the personal property, or other factors, Lessor/Secured Party and Landlord will make mutually acceptable rental and/or on-site storage arrangements if required. 8. Any disputes arising out of the terms and conditions of this Waiver, shall be resolved before the American Arbitration Association in the City of San Francisco, pursuant to the rules of such Arbitration. 9. Each party represents to the others that it has full power and authority to execute and deliver this Agreement. This waiver shall be binding upon the heirs, administrators, executors, successors and assigns of the Landlord, and shall inure to the benefit of the successors and assigns of said Lessor/Secured Party. In WITNESS WHEREOF, the undersigned has executed, sealed and delivered this Waiver this ________ day of ________________, 1996. LANDLORD: PERSONAL PROPERTY LESSOR/SECURED PARTY: NEXUS DEVELOPMENT LEASE MANAGEMENT SERVICES, INC. CORPORATION By: By: ---------------------------------------- ---------------------------------------------------------- Name: Title: EVP/General Manager -------------------------------------- ------------------------------------------------------- (typed or printed) Title: ------------------------------------- Address: 6333 Greenwich Dr, Suite 150 San Diego, CA 92122 Phone: --------------------------------
EX-10.17 25 EXHIBIT 10.17 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.17 Exclusive License Agreement between The Regents of the University of California and Aurora Biosciences, Corp. for Fluorescent Assay Technologies U.C. Case Nos. 93-289, 95-110, 95-219, 96-044, 96-160, 96-161, 96-162, 96-191 2 Table of Contents
ARTICLE PAGE ------- ---- 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. License Issue Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. Royalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5. Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6. Progress and Royalty Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 7. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8. Life of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 9. Termination by The Regents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 10. Termination by Licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11. Supply of the Biological Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 12. Maintenance of the Biological Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 13. Disposition of the Biological Materials, Biological Products, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 14. Use of Names and Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 15. Limited Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 16. Patent Prosecution and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 17. Patent Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 18. Patent Infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 19. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 21. Assignability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 22. Late Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 23. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 24. Failure to Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 25. Governing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 26. Government Approval or Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 27. Export Control Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 28. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 29. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 30. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3 U.C. Case Nos. 93-289, 95-110, 95-219, 96-044, 96-160, 96-161, 96-162, and 96-191 Exclusive License Agreement for Fluorescent Assay Technologies This license agreement ("Agreement") is effective this ______ day of ____________, 1996, (the Effective Date") by and between The Regents of the University of California ("The Regents"), a California corporation, having its statewide administrative offices at 300 Lakeside Drive, 22nd Floor, Oakland, California 94612-3550 and Aurora Biosciences Corporation ("Licensee"), a Delaware corporation, having a principal place of business at 11149 North Torrey Pines Road, La Jolla, CA 92037. Recitals Whereas, certain inventions, generally characterized as fluorescent assay technologies, including DNA encoding a green fluorescent protein and fluorogenic substrates for Beta-lactamase ("Inventions"), useful for cell screening, were made at the University of California, San Diego ("UCSD") by Dr. Roger Tsien, et al., and are claimed in Patent Rights or within the Property Rights as defined below; Whereas, Licensee entered into secrecy agreements ("Secrecy Agreements") with The Regents covering UC Case Nos. *** on August 10, 1994; *** on January 1, 1995; *** on December 8 1995; and *** on February 22, 1996 for the purpose of evaluating the Invention; ***CONFIDENTIAL TREATMENT REQUESTED 1 4 Whereas, Licensee entered into an option agreement ("Option Agreement") with The Regents on June 1, 1995 and ending on December 1, 1995 in order to evaluate its commercial interest in the Invention; Whereas, Licensee entered into a letter agreement with The Regents on March 6, 1996 covering certain negotiated provisions that are contained in this Agreement and a letter agreement with The Regents on April 26, 1996, with respect to the Biological Materials ("Letter Agreements"); Whereas, the Invention was made under research funding provided in part by the Department of Health and Human Services (DHHS) and in part by the Howard Hughes Medical Institute (HHMI), and as a consequence, this Agreement is subject to overriding obligations to the federal government and to HHMI; Whereas, under 35 USC Section 200-212, The Regents may elect to retain title to any invention (including the Invention) made by it under U.S. Government funding; Whereas, if The Regents elects to retain title to the Invention, then the law requires that The Regents grant to the U.S. Government a nontransferable, paid-up, nonexclusive, irrevocable license to use the Invention by or on behalf of the U.S. Government throughout the world; Whereas, The Regents elected to retain title to the Invention covered by UC Case Nos. *** on November 19, 1993; *** on February 5, 1996; *** on October 25, 1995; and *** and *** on January 8, 1996, and granted the required licenses to the U.S. Government; Whereas, The Regents has acquired the right to grant this license from the Howard Hughes Medical Institute (HHMI) under the terms of the interinstitutional agreement ("Interinstitutional Agreement"), having UC Control No. 86-18-0017; *** CONFIDENTIAL TREATMENT REQUESTED 2 5 Whereas, The Regents is required under the terms of Interinstitutional Agreement to grant to the HHMI a paid-up, non-exclusive, irrevocable license to use the Invention for its non-commercial purposes, but with no right to sublicense; Whereas, the Licensee is a "small entity" as defined in 37 CFR Section 1.9 and a "small-business concern" defined in 15 U.S.C. Section 632; Whereas, it is the intent of the parties to this Agreement to create a bailment (as provided for in Sections 2.2, 2.3 and 2.4 herein), among other things, for the Biological Materials as defined below subject to Licensee's rights as set forth herein; Whereas, both parties recognize that royalties due under this Agreement will be paid on pending patent applications and issued patents; Whereas, Licensee requested certain rights from The Regents to commercialize the Invention; and Whereas, The Regents responded to the request of Licensee by granting the following rights to Licensee so that the products and other benefits derived from the Invention can be enjoyed by the general public. - - oo 0 oo - - The parties agree as follows: 1. Definitions As used in this Agreement, the following terms will have the meaning set forth below: 3 6 1.1 "Patent Rights" means all U.S. patents and patent applications and foreign patents and patent applications assigned to The Regents, and in the case of foreign patents and patent applications, those requested under Section 16.4 herein, including any reissues, extensions, substitutions, continuations, divisions, and continuation-in-part applications (only to the extent, however, 1) that such continuation-in-part applications are covered in Section 1.1.9 below; or 2) that claims in the continuation-in-part applications are entitled to the priority filing date of one or more of the following patent applications listed in Sections 1.1.1 through 1.1.8 below) based on and including any subject matter claimed in or covered by the following: 1.1.1. Pending U.S. Patent Application Serial No. ***, entitled *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.2. Pending U.S. Patent Application Serial No. *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.3. Pending U.S. Patent Application Serial No. *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***. 1.1.4. Pending PCT Application Serial No. ***, filed *** by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.5. Pending U.S. Patent Application Serial No. *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.6. Any U.S. Patent Application based on subject matter described in UC Case Number *** *** CONFIDENTIAL TREATMENT REQUESTED 4 7 *** disclosed by Dr. Roger Tsien, et al. and assigned to The Regents; and 1.1.7. Any U.S. Patent Application based on subject matter described in *** disclosed by Dr. Roger Tsien, et al. and assigned to The Regents; and 1.1.8. Any U.S. Patent Application based on subject matter described in *************************************** *********************************," disclosed by Dr. Roger Tsien, et al. and assigned to The Regents. 1.1.9 Any continuation-in-part applications that are filed by *** where such continuation-in-part applications disclosed Inventions at UCSD and name Roger Tsien or an employee of The Regents in Roger Tsien's laboratory at UCSD as an inventor, and are based on one or more of the patent applications described in Sections 1.1.1 through 1.1.8 immediately above. 1.2. "Biological Materials" means *** 1.3. "Biological Product" means any product containing: (a) a plasmid, a protein structure, a cDNA clone, a promoter, a gene or a chimeric gene, antibodies, or fragments thereof and their sequences derived from or containing the Biological Materials; (b) any protein structure produced or encoded by the Biological Materials; or (c) a compound (substantially similar or identical to a compound in (a) or (b) above), produced by chemical synthesis or by any other method which could not have been produced but for the use of the Biological Materials. Biological Products may either be Patent Products or Proprietary Products. 1.4. "Identified Product" means any product, compound, biological agent, or other material not claimed by the Patent Rights and not comprising a Biological Product, ***CONFIDENTIAL TREATMENT REQUESTED 5 8 but identified by Licensee or a sublicensee using the Biological Materials or Biological Products. 1.5. "Patent Products" means: 1.5.1. any kit, composition of matter, material, product, or Biological Product; 1.5.2. any kit, composition of matter, material, product, or Biological Product to be used in a manner requiring the performance of the Patent Method; or 1.5.3. any kit, composition of matter, material, product, or Biological Product produced by the Patent Method; the extent that the manufacture, use, or sale of such kit, composition of matter, material, product, or Biological Product, in a particular country, would be covered by or infringe, but for the license granted to Licensee pursuant to this Agreement, an unexpired claim of a patent or pending claim of a patent application were it issued as a claim in a patent under Patent Rights in that country in which such patent has issued or application is pending. 1.6. "Patent Method" means any process or method covered by the claims of a patent application or patent within Patent Rights or the use or practice of which would constitute in a particular country, but for the license granted to Licensee pursuant to this Agreement, an infringement of an unexpired claim of a patent or pending claim of a patent application were it issued as a claim in a patent within Patent Rights in that country in which the Patent Method is used or practiced. 1.7. "Proprietary Products" means any kit, composition of matter, material, or product containing a Biological Product, the manufacture, use, or sale of which in a particular country is not within an unexpired, valid claim of a patent or a pending claim of a patent application under Patent Rights in such country. 1.8. "Products" means Patent Products, Identified Product, Proprietary Products, and Services. 6 9 1.9. "Property Rights" means all personal proprietary rights of The Regents covering the tangible personal property in the Biological Materials. In no case, however, will Property Rights include Patent Rights. 1.10. "Research Reagent" means the *** . A Research Reagent may be a Patent Product or a Proprietary Product. 1.11. "Net Sales" means the *** . Where Licensee distributes Products to an Affiliate, a Joint Venture, or a sublicensee for end use by such Affiliate, Joint Venture, or sublicensee, then such distribution will be considered a sale at list price normally charged to independent third parties, and The Regents will be entitled to collect a royalty on such sale in accordance with Article 4. (Royalties). 1.12. "Services" means services provided by Licensee or its sublicensees to its customers when such services require the use of the Patent Rights or Property Rights. 1.13. "Service Revenues" means revenues paid to Licensee or its sublicensees for Services. ***CONFIDENTIAL TREATMENT REQUESTED 7 10 1.14. "Affiliate(s)" of Licensee means any entity which, directly or indirectly, controls Licensee, is controlled by Licensee, or is under common control with Licensee ("control" for these purposes being defined as the actual, present capacity to elect a majority of the directors of such affiliate, or if not, the capacity to elect the members that control forty percent of the outstanding stock or other voting rights entitled to elect directors) provided, however, that in any country where the local law will not permit foreign equity participation of a majority, then an "Affiliate" will include any company in which Licensee will own or control, directly or indirectly, the maximum percentage of such outstanding stock or voting rights permitted by local law. Each reference to Licensee herein will be meant to include its Affiliates. 1.15. "Joint Venture" means any separate entity established pursuant to an agreement between a third party and Licensee to constitute a vehicle for a joint venture, in which the separate entity manufactures, uses, purchases, sells, or acquires Products from Licensee. Each reference to Licensee herein will be meant to include its Joint Venture(s). 2. Grant 2.1. Subject to the limitations set forth in this Agreement and subject to the license granted to the U.S. Government and to HHMI as set forth in the Recitals above, where Patent Rights exists, The Regents hereby *** . 2.2. Subject to the limitations set forth in this Agreement and subject to the licenses granted to the U.S. Government and to HHMI as set forth in the Recitals above, where The Regents may lawfully grant such a license, The Regents hereby ***CONFIDENTIAL TREATMENT REQUESTED 8 11 grants to Licensee ***. 2.3. Licensee acknowledges that title to the tangible material comprising the Biological Materials is owned by The Regents and is not transferred to Licensee under this Agreement, except that Licensee may transfer title of such Biological Materials as are sold as Biological Products or Research Reagents under the terms of this Agreement. 2.4. The licenses granted under Property Rights set forth in Section 2.2 above expressly limit the rights granted to Licensee to those licenses expressly stated in this Agreement and for no other purpose. 2.5. The licenses granted hereunder will be subject to the overriding obligations to the U.S. Government including those set forth in 35 U.S.C. Section 200-212 and applicable governmental implementing regulations. 2.6. The manufacture of Products and the practice of the Patent Method will be subject to applicable government importation laws and regulations. 2.7. The Regents also grants to Licensee the right to issue sublicenses under the rights granted in Sections 2.1 and 2.2 above to third parties, provided Licensee retains current exclusive rights thereto under this Agreement. To the extent applicable, such sublicenses will include all of the rights of and obligations due to The Regents (and, if applicable, the United States Government) that are contained in this Agreement including payment of fees and royalties at the rates provided for in Section 3.2 and Article 4. (Royalties). 2.8. Licensee will notify The Regents of each sublicense granted hereunder and provide The Regents with a copy of each sublicense, which shall be treated as ***CONFIDENTIAL TREATMENT REQUESTED 9 12 Proprietary Information of Licensee as defined in Article 29. (Confidentiality). Licensee will collect and pay all such fees and royalties due The Regents from sublicensees as set forth in Sections 3.2 and 4.1 below (and guarantee all such payments due from sublicensees). Licensee will require sublicensees to provide it with progress and royalty reports in accordance with the provisions herein, and Licensee will collect and deliver to The Regents all such reports due from sublicensees. 2.9. Upon termination of this Agreement for any reason, all sublicenses granted by Licensee in accordance with this Agreement will remain subject to the terms of such sublicenses in effect, and shall be assigned to and assumed by The Regents except that sublicenses which: (i) are in a state of breach as yet uncured by the sublicensee; or (ii) sublicenses which conflict with state, or federal law, or the previously established written policy of The Regents, shall not be assigned to and assumed by The Regents. The Regents will not be bound by any duties and obligations contained in the sublicenses that extend beyond the duties and obligations assumed by The Regents in this Agreement and shall have no right to receive any payment from such sublicensees except the amounts due under this Agreement for the activities of such sublicensees. 2.10. The Regents may, at its own discretion, disclose to Licensee certain chemical and biological materials relating to the Patent Rights and Property Rights that are developed in Dr. Roger Tsien's laboratory at UCSD. The Regents hereby grants to Licensee the right to elect to include under this Agreement any or all of such chemicals and biological materials. 2.11. In accordance with Section 2.10, Licensee will notify The Regents in writing within 60 days of the disclosure by The Regents of any such further chemicals and/or biological materials which Licensee elects to be included under this Agreement, and such chemicals and biological materials shall be Biological Materials for all purposes of this Agreement. 10 13 2.12. Because this Agreement grants the exclusive right to use or sell the Products in the United States, Licensee acknowledges that any component of a Product which embodies a patented Invention or is produced through the use thereof for sale in the United States will be manufactured substantially in the United States to the extent required by 35 U.S.C. Section 204. 2.13. Nothing in this Agreement will be deemed to limit the right of The Regents to publish any and all technical data resulting from any research performed by The Regents relating to the Invention, Biological Materials, Biological Products, and Patent Methods and to make and use the Invention, Biological Materials, Biological Products, and Patent Methods, and associated technology owned by The Regents solely for educational and research purposes. 3. License Issue Fee 3.1. As partial consideration for all the rights and licenses granted to Licensee, Licensee will pay to The Regents a license issue fee of ***, payable according to the following schedule: 3.1.1. *** will be sent by Licensee to The Regents together with two copies of this Agreement executed by Licensee; 3.1.2. *** will be sent by Licensee to The Regents on or before ***; 3.1.3. *** will be sent by Licensee to The Regents on or before ***; 3.1.4. *** will be sent by Licensee to The Regents on or before ***; ***CONFIDENTIAL TREATMENT REQUESTED 11 14 3.1.5. *** will be sent by Licensee to The Regents on or before ***; 3.1.6. *** will be sent by Licensee to The Regents on or before ***; 3.1.7. *** will be sent by Licensee to The Regents on or before ***; and 3.1.8. *** will be sent by Licensee to The Regents on or before ***. 3.2. Licensee will also pay to The Regents fees equal to *** of Service Revenues and *** of the Service Revenues *** received by Licensee from each third party with which it enters into a corporate alliance for screening services using Patent Rights and Property Rights. Notwithstanding the above, Licensee shall have no obligation to pay to The Regents any amounts it receives from a third party for the purchase of equity, research funding, debt financing, reimbursement of patent filing, prosecution, and/or maintenance expenses or other expenses. 3.3. *** 4. Royalties 4.1. As further consideration for all the rights and licenses granted to Licensee, Licensee will also pay to The Regents an earned royalty based on Net Sales according to the following: 4.1.1. (a) A royalty rate of *** of the Net Sales paid to Licensee and its sublicensees with respect to each Identified Product *** ***CONFIDENTIAL TREATMENT REQUESTED 12 15 *** for each Identified Product, and a royalty rate of *** of the Net Sales paid to Licensee and its sublicensees of each Identified Product *** for each such Identified Product. (b) Notwithstanding Section 4.1.1(a) above, if Licensee and a particular sublicensee are unable to agree on a royalty *** of Identified Products by such sublicensee *** and a royalty rate *** of Identified Products for ***, then the royalty due to The Regents *** will be equal to ***, if any, agreed to between Licensee and such sublicensee *** of such Identified Product by such sublicensee. (c) In the event Licensee is unable to negotiate with a particular sublicensee any royalty on the Net Sales of Identified Products, then in such case Licensee will not be entitled to take, in lieu of royalties on Net Sales by such sublicensee of Identified Products, consideration in any form for: (i) equity in Licensee above fair market value; (ii) research funding for screening to identify Identified Products in excess of fully burdened direct and indirect costs therefore; or (iii) reimbursement of patent filing, prosecution, and maintenance expenses; and (d) For the avoidance of doubt, it is understood and agreed that, except as provided in Section 4.1.1(a) and (b) above, The Regents shall not be entitled to any royalty on Net Sales of Identified Products, and if Section 4.1.1(c) applies to a particular sublicense, the consideration received by Licensee from such sublicensee will be in the form of Service Revenues, and the only amounts due The Regents under this Agreement with respect thereto shall be the amounts set forth in Section 3.2, and not a royalty based on the Net Sales of Identified Products. 4.1.2. (a) A royalty rate *** by Licensee and its sublicensees of Research Reagents and any other Product that is not an Identified Product or Services. Licensee will be entitled to reduce the royalty due The Regents ***CONFIDENTIAL TREATMENT REQUESTED 13 16 on the Net Sales of such Research Reagents and other Products if Licensee must pay a royalty to The Regents on Patent Rights and Property Rights and a third party with respect to intellectual property rights in which The Regents has no ownership interest. In such event, if the combined royalties due The Regents and the third party(s) ***, Licensee may reduce the royalty due The Regents ***, provided, however, that in no event will the royalty rate due The Regents on the Research Reagent or such Product be ***. (b) For the avoidance of doubt, it is understood and agreed that Licensee shall have no obligation to sell or have sold any Research Reagents except those listed on Appendix E hereto. 4.2. Licensee will not be entitled to apply the royalty reduction specified in Section 4.1.2(a) of this section to royalties due The Regents under Section 4.1.1 of this Article 4. (Royalties) or any other provisions of this Agreement except the provisions set forth in Section 4.1.2(a). 4.3. Sections 1.1, 1.5, and 1.6 define Patent Rights, Patent Products, and Patent Methods so that royalties will be payable on Patent Products and Patent Methods covered by both pending patent applications and issued patents. Earned royalties will accrue on Patent Products on a Product-by-Product basis in each country for the duration of Patent Rights in that country and will be payable to The Regents when Patent Products are invoiced, or if not invoiced, when delivered to a third party or to itself, an Affiliate, Joint Venture, or sublicensee in the case where such delivery of the Patent Products to Licensee, an Affiliate, Joint Venture, or sublicensee is intended for end use. If no Patent Rights exist in a country, earned royalties will accrue on a Proprietary Product, on a Product-by-Product basis, until the *** CONFIDENTIAL TREATMENT REQUESTED 14 17 tenth anniversary of the first commercial sale of a particular Proprietary Product in such country. Earned royalties will accrue on Identified Products, on a Product-by-Product basis, until the tenth anniversary of the first commercial sale of a particular Identified Product in such country. 4.4. Royalties accruing to The Regents will be paid to The Regents ***: # *** # *** # *** # *** Each such payment will be for royalties which accrued ***. 4.5. Beginning ***, and in each succeeding calendar year ***, Licensee will pay *** and thereafter for the life of this Agreement. This *** will be paid to The Regents by *** of each year and will be credited against the earned royalty due and owing for the calendar year in which the minimum payment was made. 4.6. All monies due The Regents will be payable in United States funds collectible at par in San Francisco, California. When Products are sold for monies other than United States dollars, the earned royalties will first be determined in the foreign currency of the country in which such Products were sold and then converted into equivalent United States funds. The exchange rate will be that rate quoted in the Wall Street Journal on the last business day of the reporting period. 4.7. *** Notwithstanding the foregoing, if the Regents *** CONFIDENTIAL TREATMENT REQUESTED 15 18 is required to pay taxes on its royalties under the laws of any country, then Licensee will pay such amounts to the proper authorities, withhold such amounts from royalties paid to The Regents, and provide The Regents with all documents and assistance reasonably necessary to enable The Regents to recover all or part of such amounts pursuant to any double taxation treaty or otherwise. Licensee will also be responsible for all bank transfer charges. 4.8. Notwithstanding the provisions of Article 28. (Force Majeure), if at any time legal restrictions prevent prompt remittance of part or all royalties owed to The Regents by Licensee with respect to any country where a Product is sold or distributed, Licensee will convert the amount owed to The Regents into United States funds and will pay The Regents directly from another source of funds for the amount impounded. 4.9. In the event that any patent or any claim thereof included within the Patent Rights is held invalid or unenforceable in a final decision by a court of competent jurisdiction and last resort and from which no appeal has or can be taken, all obligation to pay royalties based on such patent or claim or any claim patentably indistinct therefrom will cease as of the date of such final decision. Licensee will not, however, be relieved from paying any royalties that accrued before such decision or that are based on another patent or claim that has not expired or that is not involved in such decision or that are based on Property Rights. 4.10. No royalties will be collected or paid hereunder to The Regents on Products sold to the account of the U.S. Government. Licensee and its sublicensee will reduce the amount charged for Products distributed to the United States Government by an amount equal to the royalty for such Products otherwise due The Regents as provided herein. 4.11. *** *** CONFIDENTIAL TREATMENT REQUESTED 16 19 ************************. No royalty shall be payable under Section 4.1 above with respect to sales of Products among Licensee and its sublicensees where such sales are not for end use by such Licensee or its sublicensees, nor shall a royalty be payable under this Article 4. (Royalties) with respect to Products distributed for use in research and/or development in clinical trials, or as promotional samples. 5. Due Diligence 5.1. Licensee, upon execution of this Agreement, will diligently proceed to develop and provide Services, and to develop, manufacture, and sell Research Reagents and will earnestly and diligently market the same after execution of this Agreement and in quantities sufficient to meet the market demands therefor. 5.2. Licensee will be entitled to exercise prudent and reasonable business judgment in the manner in which it meets its due diligence obligations hereunder. In no case, however, will Licensee be relieved of its obligations to meet the due diligence provisions of this Article 5. (Due Diligence). 5.3. Licensee will obtain all necessary governmental approvals in each country in which Licensee elects to manufacture or commercialize Research Reagents and provide Services. 5.4. If Licensee is unable to perform any of the following: 5.4.1. *** 5.4.2. *** 5.4.3. *** *** CONFIDENTIAL TREATMENT REQUESTED 17 20 then The Regents will have the right and option, subject to Section 5.7 below, to terminate this Agreement or reduce the exclusive licenses granted to Licensee to non-exclusive licenses in accordance with Section 5.6 hereof. The exercise of this right and option by The Regents will supersede the rights granted in Article 2 (Grant). 5.5. In addition to the provisions of Section 5.4 above, Licensee shall also market each of the Research Reagents listed on Appendix E attached hereto to nonprofit/academic institutions solely for their internal, noncommercial research use either within: (i) two years following the Effective Date of this Agreement; or (ii) six months following the publication of the first paper describing the use of the Research Reagent, whichever is earlier. This Section 5.5 may be satisified by Licensee or its sublicenseees. 5.6. If Licensee fails to market a particular Research Reagent in accordance with Section 5.5 above, then The Regents will have the right and option, subject to Section 5.7 below, to terminate all rights granted to Licensee under this Agreement with respect to that particular Research Reagent. This termination includes Licensee's right to use the particular Research Reagent for its own internal use. The Regents will thereafter be free to dispose of the particular Research Reagent as it wishes. The exercise of this right and option by The Regents will supersede the rights granted in Article 2 (Grant). 5.7. To exercise either the right to terminate this Agreement in whole or with respect to any portion of Patent Rights or Property Rights, or reduce the exclusive licenses granted to Licensee to non-exclusive licenses for lack of diligence required in this Article 5. (Due Diligence), The Regents will give Licensee written notice of the deficiency stating its intent to terminate this Agreement in whole or with respect to any portion of Patent Rights or Property Rights, or to reduce the licenses to non-exclusive licenses. Licensee thereafter shall have 60 days to cure the deficiency. If The Regents 18 21 has not received written tangible evidence satisfactory to The Regents that the deficiency has been cured by the end of the 60-day period, then The Regents may, at its option, terminate this Agreement in whole or with respect to any portion of Patent Rights or Property Rights, or reduce the exclusive licenses granted to Licensee to non-exclusive licenses by giving written notice to Licensee. These notices will be subject to Article 20. (Notices). 6. Progress and Royalty Reports 6.1. Beginning August 31, 1996, and semi-annually thereafter, Licensee will submit to The Regents a progress report covering activities by Licensee and its sublicensees related to the development and testing of all their Products and the obtaining of the governmental approvals necessary for marketing them, but Licensee will not be required to report on Products for which a royalty is not due The Regents. These progress reports will be provided to The Regents to cover the progress of the research and development of the Products until the first commercial sale of Products in the United States. 6.2. The progress reports submitted under Section 6.1 will include, but not be limited to, the following topics so that The Regents may be able to determine the progress of the development of Products on which a royalty is due The Regents and may also be able to determine whether or not Licensee has met its diligence obligations set forth in Article 5. (Due Diligence) above: # summary of work in progress in anticipation of providing Services and Research Reagents # summary of work completed in anticipation of providing Services and Research Reagents # summary of Services completed # current schedule of anticipated events or milestones specified in Section 5.4 and 5.5 19 22 # anticipated market introduction date of Products on which a royalty is due The Regents # sublicenses granted, if any 6.3. Licensee also will report to The Regents in its immediately subsequent progress and royalty report the date of first commercial sale of each Product for which a royalty is due to The Regents in each country. 6.4. After the first commercial sale of a Product on which a royalty is due The Regents, Licensee will provide The Regents with quarterly royalty reports to The Regents on or before each February 28, May 31, August 31, and November 30 of each year. Each such royalty report will cover the most recently completed calendar quarter of Licensee (October through December, January through March, April through June, and July through September) and will show: 6.4.1. the gross sales and Net Sales of such Products sold by Licensee and reported to Licensee as sold by its sublicensees during the most recently completed calendar quarter; 6.4.2. the number of such Products sold or distributed by Licensee and reported to Licensee as sold or distributed by its sublicensees; 6.4.3. the royalties, in U.S. dollars, payable hereunder with respect to Net Sales; and 6.4.4. the exchange rates used, if any. 6.5. If no sales of Products for which a royalty is due to The Regents have been made during any reporting period after the first commercial sale of such Product, then a statement to this effect is required. 7. Books and Records 7.1. Licensee will keep books and records accurately showing all Products manufactured, used, and/or sold with respect to which Licensee owes royalties to The Regents under the terms of this Agreement. Such books and records will be preserved 20 23 for at least five years after the date of the royalty payment to which they pertain and will be open to inspection by representatives or agents of The Regents during normal business hours at agreed upon times to determine the accuracy of the books and records and to determine compliance by Licensee with the terms of this Agreement. Such independent certified public accountant shall be bound to hold all information in confidence except as necessary to communicate Licensee's non-compliance with this Agreement to The Regents. The only purpose of any inspection and audit pursuant to this Paragraph 7.1 shall be to verify Licensee's royalty statement or payment under this Agreement and to determine Licensee's compliance with the other provisions thereunder. 7.2. The fees and expenses of representatives of The Regents performing such an examination will be borne by The Regents. However, if an error in royalties of *** of the total royalties due for any year is discovered, then the fees and expenses of these representatives will be borne by Licensee. 8. Life of the Agreement 8.1. Unless otherwise terminated by operation of law or by acts of the parties in accordance with the terms of this Agreement, this Agreement will be in force from the Effective Date and will remain in effect for the life of the last-to-expire patent licensed under this Agreement, or until the last patent application licensed under this Agreement is abandoned, or in the event no patent issues, for a period of fifteen (15) years from market introduction for the last to be introduced Proprietary Product in the United States. 8.2. In the event this Agreement remains in effect for the entire term specified in Paragraph 8.1 above, and is not otherwise terminated under the provisions of Articles 5. (Due Diligence), 9. (Termination by The Regents), or 10. (Termination by Licensee), Licensee is hereby granted an option for renewal of this Agreement for a period of *** from the date of its termination. Said option for renewal shall be *** CONFIDENTIAL TREATMENT REQUESTED 21 24 automatically exercised provided that the Licensee has not notified The Regents to the contrary prior to the option renewal date. The renewal licenses will be for the same terms and conditions as set forth in this Agreement, *** . 8.3. Any termination of this Agreement will not affect the rights and obligations set forth in the following Articles: Article 7 Books and Records Article 13 Disposition of Products on Hand Upon Termination Article 14 Use of Names and Trademarks Article 19 Indemnification Article 22 Late Payments Article 24 Failure to Perform Article 29 Confidentiality 8.4. Termination of this Agreement for any reason shall not release any party hereto from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination, or preclude either party from pursuing any rights and remedies it may have hereunder or at law or in equity which accrued or are based upon any event occurring prior to such termination. 9. Termination by The Regents 9.1. If Licensee should violate or fail to perform any term or covenant of this Agreement, then The Regents may give written notice of such default ("Notice of Default") to Licensee. If Licensee should fail to repair such default within 60 days after the date of such notice takes effect, The Regents will have the right to terminate this Agreement and the licenses herein by a second written notice ("Notice of Termination") to Licensee. If a Notice of Termination is sent to Licensee, this Agreement will *** CONFIDENTIAL TREATMENT REQUESTED 22 25 automatically terminate on the date such notice takes effect. Such termination will not relieve Licensee of its obligation to pay any royalty or license fees owing at the time of such termination and will not impair any accrued right of The Regents. These notices will be subject to Article 20. (Notices). 10. Termination by Licensee 10.1. Licensee will have the right at any time to terminate this Agreement in whole or as to any portion of Patent Rights or Property Rights by giving notice in writing to The Regents. Such Notice of Termination will be subject to Article 20. (Notices) and termination of this Agreement in whole or with respect to any portion of the Patent Rights or Property Rights will be effective 60 days after the effective date thereof. 10.2. Any termination pursuant to the above paragraph will not relieve Licensee of any obligation or liability accrued hereunder prior to such termination or rescind anything done by Licensee or any payments made to The Regents hereunder prior to the time such termination becomes effective, and such termination will not affect in any manner any rights of The Regents arising under this Agreement prior to such termination. 11. Supply of the Biological Materials and Biological Products 11.1. The Regents will initially supply Licensee with viable samples of the Biological Materials set forth in Appendix D within thirty (30) days of the Effective Date or as soon as reasonably practicable, and additional Biological Materials elected by Licensee pursuant to Section 2.11 promptly after Licensee's notice to The Regents pursuant to such Section. To the extent Licensee requires and requests additional samples from The Regents during the term hereof (due to failure of the initial supply of Biological Material(s)), and The Regents has such additional samples in its possession, 23 26 The Regents agrees to supply such additional samples. Licensee will pay the actual handling and shipping costs for any additional samples provided. 12. Maintenance of the Biological Materials 12.1. The Regents shall instruct Dr. Roger Tsien that if The Regents circulates any of the Biological Materials to third parties for noncommercial research purposes, it shall only do so under the terms and conditions set forth in the biological material transmission letter attached hereto as Appendix A. The Regents expressly reserves the right to transfer the Biological Materials to non-profit entities strictly for noncommercial research purposes in the manner set forth above. The Regents agrees that it will not otherwise transfer the Biological Materials. The Licensee acknowledges that The Regents' right to so transfer the Biological Materials could lead to the inadvertent loss or diminution of the proprietary commercial value of the Biological Materials. 13. Disposition of the Biological Materials, Biological Products, and Products on Hand Upon Termination 13.1. Upon termination of this Agreement prior to the expiration of its full term, the Licensee shall have the privilege of disposing all previously made or partially made Products, but no more, for a period of one hundred and twenty (120) days following the effective date of termination, provided, however, that the sale of such Products shall be subject to the terms of this Agreement including, but not limited to, the payment of royalties at the rate and at the time provided herein and the rendering of reports in connection therewith. 13.2. Upon termination of this Agreement for any reason, Licensee, at its sole discretion, shall destroy or transfer to The Regents any Biological Materials in its possession within thirty (30) days following the effective date of termination. Licensee 24 27 shall provide The Regents within sixty (60) days following said termination date with written notice that the Biological Materials have been destroyed. 14. Use of Names and Trademarks 14.1. Nothing contained in this Agreement will be construed as conferring any right to use in advertising, publicity, or other promotional activities any name, trade name, trademark, or other designation of either party hereto by the other (including contraction, abbreviation or simulation of any of the foregoing). Unless required by law, the use by Licensee of the name "The Regents of the University of California" or the name of any campus of the University of California for use in advertising, publicity, or other promotional activities is expressly prohibited. 14.2. It is understood that The Regents will be free to release to the inventors, HHMI, and senior administrative officials employed by The Regents the terms of this Agreement upon their request. If such release is made, The Regents will request that such terms will be kept in confidence in accordance with the provisions of Article 29. (Confidentiality) and not be disclosed to others. It is further understood that should a third party inquire whether a license to Patent Rights is available, The Regents may disclose the existence of this Agreement and the extent of the grant in Article 2. (Grant) to such third party, but will not disclose the name of Licensee, except where The Regents is required to release such information under either the California Public Records Act or other applicable law. 15. Limited Warranty 15.1. The Regents warrants to Licensee that it has the lawful right to grant these licenses and bailment. 15.2. This license and the associated Invention, Biological Materials, Products, and Patent Method are provided WITHOUT WARRANTY OF MERCHANTABILITY OR 25 28 FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. THE REGENTS MAKES NO REPRESENTATION OR WARRANTY THAT THE INVENTION, BIOLOGICAL MATERIALS, PRODUCTS, OR PATENT METHOD WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT. 15.3. IN NO EVENT WILL THE REGENTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM EXERCISE OF THIS LICENSE OR THE USE OF THE INVENTION, BIOLOGICAL MATERIALS, PRODUCTS, OR PATENT METHOD. 15.4. Nothing in this Agreement will be construed as: 15.4.1. a warranty or representation by The Regents as to the validity, enforceability, or scope of any Patent Rights or Property Rights; or 15.4.2. a warranty or representation that anything made, used, sold, or otherwise disposed of under any license granted in this Agreement is or will be free from infringement of patents of third parties; or 15.4.3. an obligation to bring or prosecute actions or suits against third parties for patent infringement except as provided in Article 18. (Patent Infringement); or 15.4.4. conferring by implication, estoppel, or otherwise any license or rights under any patents of The Regents other than Patent Rights as defined herein, regardless of whether such patents are dominant or subordinate to Patent Rights; or 15.4.5. an obligation to furnish any know-how not provided in Patent Rights and Property Rights. 16. Patent Prosecution and Maintenance 16.1. The Regents will diligently prosecute and maintain the United States and foreign patents comprising Patent Rights using counsel of its choice. The Regents will promptly provide Licensee with copies of all relevant documentation so that Licensee 26 29 may be currently and promptly informed and apprised of the continuing prosecution, and may comment upon such documentation sufficiently in advance of any initial deadline for filing a response, provided, however, that if Licensee has not commented upon such documentation prior to the initial deadline for filing a response with the relevant government patent office or The Regents must act to preserve Patent Rights, The Regents will be free to respond appropriately without consideration of comments by Licensee, if any. Both parties hereto will keep this documentation in confidence in accordance with the provisions of Article 29. (Confidentiality) herein. Counsel for The Regents will take instructions only from The Regents. 16.2. The Regents will use all reasonable efforts to amend any patent application to include claims requested by Licensee and required to protect the Products contemplated to be sold or Patent Method to be practiced under this Agreement. 16.3. The Regents and Licensee will cooperate in applying for an extension of the term of any patent included within Patent Rights, if appropriate, under the Drug Price Competition and Patent Term Restoration Act of 1984. Licensee will prepare all such documents, and The Regents will execute such documents and will take such additional action as Licensee may reasonably request in connection therewith. 16.4. The Regents will, at the request of Licensee, file, prosecute, and maintain patent applications and patents covered by Patent Rights in foreign countries if available. Licensee must notify The Regents within seven months of the filing of the corresponding United States application of its decision to request The Regents to file foreign counterpart patent applications. This notice concerning foreign filing must be in writing and must identify the countries desired. The absence of such a notice from Licensee to The 27 30 Regents within the seven-month period will be considered an election by Licensee not to request The Regents to secure foreign patent rights on behalf of Licensee; provided, however, that the absence of such notice from Licensee to The Regents within the seven-month period with respect to United States applications filed within eight months prior to the Effective Date of this Agreement will not be considered an election by licensee not to request The Regents not to secure foreign patent rights. In such event, Licensee must notify The Regents of its decision to request The Regents to file foreign counterpart patent applications within ninety (90) days of the conventional filing date of such applications. The Regents will have the right to file patent applications at its own expense in any country Licensee has not included in its list of desired countries, and such applications and resultant patents, if any, will not be included in the licenses granted under this Agreement. 16.5. All past, present and future costs of preparing, filing, prosecuting and maintaining all United States and foreign patent applications and all costs and fees relating to the preparation and filing of patents covered by Patent Rights in Section 1.1 will be borne by Licensee. This includes patent preparation and prosecution costs for this Invention incurred by The Regents prior to the execution of this Agreement. Such costs will be due upon execution of this Agreement and will be payable at the time that the license issue fee is payable. The costs of all interferences and oppositions will be considered prosecution expenses and also will be borne by Licensee. Licensee will reimburse The Regents for all costs and charges within 30 days following receipt of an itemized invoice from The Regents for same. 16.6. The obligation of Licensee to underwrite and to pay patent preparation, filing, prosecution, maintenance, and related costs will continue for costs incurred until three months after receipt by either party of a Notice of Termination with respect to a particular patent application or patent within the Patent Rights provided, however, that The Regents provides Licensee with written notification, at least three months prior to the effective date of the termination, that such costs are anticipated. Licensee will reimburse The Regents for all patent costs incurred during the term of the Agreement and for three months thereafter whether or not invoices for such costs are received during the three-month period after receipt of a Notice of Termination. Licensee may 28 31 with respect to any particular patent application or patent terminate its obligations with the patent application or patent in any or all designated countries upon three months written notice to The Regents. The Regents may continue prosecution and/or maintenance of such application(s) or patent(s) at its sole discretion and expense, provided, however, that Licensee will have no further right or licenses thereunder. 16.7. Licensee will notify The Regents of any change of its status as a small entity (as defined by the United States Patent and Trademark Office) and of the first sublicense granted to an entity that does not qualify as a small entity as defined therein. 16.8. The Regents acknowledges that Licensee will be conducting independent research and development activities with respect to the Biological Materials, Biological Products, and/or the Patent Rights, and recognizes that such independent research and development may result in patentable inventions and other intellectual property owned by Licensee. The Regents hereby consents to the filing of any patent applications, even if any Biological Materials or Biological Products are within the scope of one or more claims of any such patent application. 17. Patent Marking 17.1. Licensee will mark all Products made, used, or sold under the terms of this Agreement, or their containers, in accordance with the applicable patent marking laws. 18. Patent Infringement 18.1. In the event that Licensee, or The Regents' licensing associate responsible for administering this Agreement, or Resident Counsel of the Regents' Office of Technology Transfer learns of the substantial infringement of any patent licensed under this Agreement, to the extent contractually able to, it will call the attention to the other party hereto in writing and will provide reasonable evidence of 29 32 such infringement. Both parties to this Agreement acknowledge that during the period and in a jurisdiction where Licensee has exclusive rights under this Agreement, neither will notify a third party of the infringement of any of Patent Rights without first obtaining consent of the other party, which consent will not be unreasonably withheld. Both parties will use their best efforts in cooperation with each other to terminate such infringement without litigation. 18.2. Licensee may request that The Regents take legal action against the infringement of Patent Rights. Such request must be made in writing and must include reasonable evidence of such infringement and damages to Licensee. If the infringing activity has not been abated within 90 days following the effective date of such request, The Regents will have the right to elect to: 18.2.1. commence suit on its own account; or 18.2.2. refuse to participate in such suit. 18.3. The Regents will give notice of its election in writing to Licensee by the end of the 100th day after receiving notice of such request from Licensee. Licensee may thereafter bring suit for patent infringement if and only if The Regents elects not to commence suit and if the infringement occurred during the period and in a jurisdiction where Licensee had exclusive rights under this Agreement. However, in the event Licensee elects to bring suit in accordance with this paragraph, The Regents may thereafter join such suit at its own expense. 18.4. Such legal action as is decided upon will be at the expense of the party on account of whom suit is brought and all recoveries recovered thereby will belong to such party, provided, however, that legal action brought jointly by The Regents and Licensee and participated in by both will be at the joint expense of the parties and all recoveries will be allocated in the following order: *** *** CONFIDENTIAL TREATMENT REQUESTED 30 33 *** 18.5. Each party will cooperate with the other in litigation proceedings instituted hereunder but at the expense of the party on account of whom suit is brought. Such litigation will be controlled by the party bringing the suit, except that The Regents may be represented by counsel of its choice in any suit brought by Licensee. 19. Indemnification 19.1. Licensee will (and require its sublicensees to) indemnify, hold harmless, and defend The Regents and HHMI, their officers, employees, and agents; the sponsors of the research that led to the Invention; the inventors of any invention covered by patents or patent applications in Patent Rights (including the Products and Patent Method contemplated thereunder) and their employers against any and all claims, suits, losses, damage, costs, fees, and expenses resulting from or arising out of exercise of this license or any sublicense. This indemnification will include, but will not be limited to, any product liability. 19.2. Licensee, at its sole cost and expense, will insure its activities in connection with the work under this Agreement and obtain, keep in force, and maintain insurance as follows: (or an equivalent program of self insurance) Comprehensive or Commercial Form General Liability Insurance (contractual liability included) with limits as follows: # Each Occurrence $1,000,000 # Products/Completed Operations Aggregate $1,000,000 *** CONFIDENTIAL TREATMENT REQUESTED 31 34 # Personal and Advertising Injury $1,000,000 # General Aggregate (commercial form only) $1,000,000 19.3. As of and following the date of commencement of any clinical trial with respect to a Product marketed by Licensee, Licensee shall increase insurance coverage under Section 19.2 immediately above from $1,000,000 to an aggregate of $3,000,000. As of and following the date of commencement of any sales of such Products, Licensee shall increase insurance coverage under Section 19.2 to an aggregate of $5,000,000. It should be expressly understood, however, that the coverages and limits referred to under the above will not in any way limit the liability of Licensee. Licensee will furnish The Regents with certificates of insurance evidencing compliance with all requirements. Such certificates will: 19.3.1. Provide for 30 day advance written notice to The Regents of any modification; 19.3.2. Indicate that The Regents has been endorsed as an additional Insured under the coverages referred to under the above; and 19.3.3. Include a provision that the coverages will be primary and will not participate with nor will be excess over any valid and collectable insurance or program of self-insurance carried or maintained by The Regents. 19.4. The Regents will promptly notify Licensee in writing of any claim or suit brought against The Regents in respect of which The Regents intends to invoke the provisions of this Article 19. (Indemnification). Licensee will keep The Regents informed on a current basis of its defense of any claims pursuant to this Article 19. (Indemnification). It is understood that Licensee shall have the right to control the defense and settlement of any such claim or suit, except Licensee shall not enter into any settlement which (i) makes any admission of wrongdoing on the part of The Regents, or (ii) admits that any of the Patent Rights of The Regents are invalid, unenforceable, or not infringed without prior written consent of The Regents. 32 35 20. Notices 20.1. Any notice or payment required to be given to either party will be deemed to have been properly given and to be effective (a) on the date of delivery if delivered in person or (b) five days after mailing if mailed by first-class certified mail, postage paid, to the respective addresses given below, or to another address as it may designate by written notice given to the other party. In the case of Licensee: AURORA BIOSCIENCES, CORP. 11149 North Torrey Pines Road La Jolla, CA 92037 Attention: President (619) 452-5000 In the case of The Regents: THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 1320 Harbor Bay Parkway, Suite 150 Alameda, California 94502 Tel: (510) 748-6600 Fax: (510) 748-6639 Attention: Executive Director; Research Administration and Office of Technology Transfer Referring to: U.C. Case Nos. 93-289, 95-110, 95-219, 96-044, 96-160, 96-161, 96-162, and 96-191 21. Assignability 21.1. This Agreement is binding upon and will inure to the benefit of The Regents, its successors and assigns, but shall be personal to Licensee and assignable by Licensee only with the written consent of The Regents, which consent shall not be unreasonably withheld; provided, however, Licensee may assign this Agreement to an Affiliate or Joint Venture or in connection with the sale or transfer of substantially all the 33 36 assets of Licensee relating to the subject matter of this Agreement, without written consent of The Regents. 22. Late Payments 22.1. In the event royalty payments or fees or patent prosecution costs are not received by The Regents when due, Licensee will pay to The Regents interest charges at a rate of ten percent (10%) simple interest per annum. Such interest will be calculated from the date payment was due until actually received by The Regents. Acceptance by The Regents of any late payment interest from Licensee under this Section 22.1 will in no way affect the provision of Article 23. (Waiver) herein. 23. Waiver 23.1. 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 will be deemed a waiver as to any subsequent and/or similar breach or default. 24. Failure to Perform 24.1. In the event of a failure of performance due under the terms of this Agreement and if it becomes necessary for either party to undertake legal action against the other on account thereof, then the prevailing party will be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. 25. Governing Laws 25.1. THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, excluding any choice of law rules that would direct the application of the laws of another jurisdiction, 34 37 but the scope and validity of any patent or patent application will be governed by the applicable laws of the country of such patent or patent application. 26. Government Approval or Registration 26.1. If this Agreement or any associated transaction is required by the law of any nation to be either approved or registered with any governmental agency, Licensee will assume all legal obligations to do so. Licensee will notify The Regents if it becomes aware that this Agreement is subject to a United States or foreign government reporting or approval requirement. Licensee will make all necessary filings and pay all costs including fees, penalties, and all other out-of-pocket costs associated with such reporting or approval process. 27. Export Control Laws 27.1. Licensee will observe all applicable United States and foreign laws with respect to the transfer of Products and related technical data to foreign countries, including, without limitation, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. 28. Force Majeure 28.1. The parties to this Agreement will be excused from any performance required hereunder if such performance is rendered impossible or unfeasible due to any acts of God, catastrophes, or other major events beyond their reasonable control, including, without limitation, war, riot, and insurrection; laws, proclamations, edicts, ordinances, or regulations; strikes, lock-outs, or other serious labor disputes; and floods, fires, explosions, or other natural disasters. However, any party to this Agreement will have the right to terminate this Agreement upon 30 days' prior written notice if either party is unable to fulfill its obligations under this Agreement due to any of 35 38 the causes mentioned above and such inability continues for a period of one year. Notices will be subject to Article 20. (Notices). When such events have abated, the parties' respective obligations hereunder shall resume. 29. Confidentiality 29.1. Licensee and The Regents respectively will treat and maintain the proprietary business, patent prosecution, software, engineering drawings, process and technical information, and other proprietary information ("Proprietary Information") of the other party in confidence using at least the same degree of care as that party uses to protect its own proprietary information of a like nature for a period from the date of disclosure until five years after the date of termination of this Agreement. This confidentiality obligation will apply to the information defined as "Data" under the Secrecy Agreement, and such Data will be treated as Proprietary Information hereunder. 29.2. All Proprietary Information will be labeled or marked confidential or as otherwise similarly appropriate by the disclosing party, or if the Proprietary Information is orally disclosed, it will be reduced to writing or some other physically tangible form, marked and labeled as set forth above by the disclosing party, and delivered to the receiving party within 30 days after the oral disclosure as a record of the disclosure and the confidential nature thereof. Notwithstanding the foregoing, Licensee and The Regents may use and disclose Proprietary Information to its employees, agents, consultants, contractors, and, in the case of Licensee, its sublicensees, provided that any such parties are bound by a like duty of confidentiality. 29.3. Nothing contained herein will in any way restrict or impair the right of Licensee or The Regents to use, disclose, or otherwise deal with any Proprietary Information: 36 39 29.3.1. that recipient can demonstrate by written records was previously known to it; 29.3.2. that is now, or becomes in the future, public knowledge other than through acts or omissions of recipient; 29.3.3. that is lawfully obtained without restrictions by recipient from sources independent of the disclosing party; 29.3.4. that is required to be disclosed to a governmental entity or agency in connection with seeking any governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency; 29.3.5. that is furnished to a third party by the recipient with similar confidentiality restrictions imposed on such third party, as evidenced in writing; or 29.3.6. that The Regents is required to disclose pursuant to the California Public Records Act or other applicable law. 29.4. Upon termination of this Agreement, Licensee and The Regents will destroy or return to the disclosing party proprietary information received from the other in its possession within 15 days following the effective date of termination. Licensee and The Regents will provide each other, within 30 days following termination, with a written notice that Proprietary Information has been returned or destroyed. Each party may, however, retain one copy of Proprietary Information for archival purposes in nonworking files. 30. Miscellaneous 30.1. The headings of the several sections are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. 30.2. This Agreement will not be binding upon the parties until it has been signed below on behalf of each party, in which event, it will be effective as of the date recited on page one. 37 40 30.3. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed on behalf of each party. 30.4. This Agreement embodies the entire understanding of the parties and will supersede all previous communications, representations or understandings, either oral or written, between the parties relating to the subject matter hereof. The Letter Agreements, the Option Agreement, and the Secrecy Agreements specified in the Recitals of this Agreement are hereby terminated. 30.5. In case any of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provisions hereof, but this Agreement will be construed as if such invalid or illegal or unenforceable provisions had never been contained herein. The Regents and Licensee execute this Agreement in duplicate originals by their respective, authorized officers on the date indicated. Aurora Biosciences Corporation The Regents of the University of California By__________________________________ By_________________________________ (Signature) (Signature) Name________________________________ Name Terence A. Feuerborn (Please Print) Title_______________________________ Title Executive Director Research Administration and Office of Technology Transfer Date________________________________ Date_______________________________ 38 41 APPENDIX A - PAGE 1A University of California/San Diego (UCSD) Instructions for Standard Letter Transmitting Biological Materials to Universities and Non-Profit Institutions The attached letter is authorized for use by University of California, UCSD Principal Investigators and Administrators only with Scientists and other universities and nonprofit research institutions when transmitting cell lines, plasmids and the like for non-commercial research purposes. 1. Choose the appropriate form of university or nonprofit research institution in paragraph 2. 2. Choose whether or not to include the phrase "our cooperative" in paragraph 2. 3. Insert in paragraph 4 the amount of processing charge. If the material is to be shipped at no charge, insert the words "no charge". 4. Send the letter in duplicate to the other scientists. 5. Do not send biological materials until you receive the duplicate copy executed by both the scientist and the other institution. 6. Send a copy of the fully executed letter agreement to: Terence A. Feuerborn Executive Director Research Administration and Technology Transfer 1320 Harbor Bay Parkway Suite 150 Alameda, CA 94501 7. Any changes in the wording of this standard letter must be reviewed by the Executive Director of the Office of Technology Transfer before acceptance. Note: Do not use this letter for the exchange of living plants. A separate "Testing Agreement for the Plant Varieties" is available for that purpose. 39 42 APPENDIX A - PAGE 2A SAMPLE LETTER FOR USE PRIOR TO TRANSMISSION OF BIOLOGICAL MATERIALS TO INVESTIGATORS AT UNIVERSITIES OR NON-PROFIT RESEARCH INSTITUTIONS (date) IN DUPLICATE To:_____________________ This is to (acknowledge receipt of your letter) (confirm our telephone conversation) in which you requested certain research materials developed in this laboratory be sent to you for scientific research purposes. The materials concerned, which belong to The Regents of the University of California/San Diego Campus (UCSD) are _______________. While I cannot transfer ownership of these materials to you, I will be pleased to permit your use of these materials within your (university) (Non-Profit Research Institution) laboratory for (our cooperative) scientific research. However, before forwarding them to you, I require your agreement that the materials will be received by you only for use in (our cooperative work) (scientific research), that you will bear all risk to you or any others resulting from your use, and that you will not pass these materials, their progeny or derivatives, on to any other party or use them for commercial purposes without the express written consent of The Regents of the University of California. You understand that no other right or license to these materials, their progeny or derivatives, is granted or implied as a result of our transmission of these materials to you. These materials are to be used with caution and prudence in any experimental work, since all of their characteristics are not known. As you recognize, there is a processing cost to us involved in providing these materials to you. We will bill you for our processing costs, which will amount to $_________________. If you agree to accept these materials under the above conditions, please sign the enclosed duplicate copy of this letter, then have it signed by an authorized representative of your institution, and return it to me. Upon receipt of that confirmation I will forward the material(s) to you. 40 43 APPENDIX A - PAGE 3A (Note: other paragraphs discussing the relevant literature, the nature of the work, hazards relating to materials to be sent etc. may be appropriate. These will vary depending on the individual circumstances and the relationship between the two parties previously established. Be sure to retain a signed copy when received and send a photocopy of the completed agreement to the University of California Patent Administrator, Office of Technology Transfer, Systemwide Administration, 1320 Harbor Bay Parkway, Suite 150, Alameda, CA 94502) Sincerely yours, ACCEPTED: RESEARCH INVESTIGATOR ______________________ Printed Name ______________________ (Signature) ______________________ Date RESEARCH UNIVERSITY OR NON-PROFIT INSTITUTION ______________________ Printed Name _______________________ (Signature) _______________________ Date 41 44 APPENDIX B - PAGE 1B The INVENTORS listed below understand and agree to abide by the terms and conditions of Article 12 (MAINTENANCE OF THE BIOLOGICAL MATERIALS) of the Exclusive License Agreement between The Regents of the University of California and Aurora Biosciences, Corp. effective ______________________, 1996, and to instruct all relevant personnel working within their laboratory to act accordingly. Said paragraph reads, in part, as follows: "12.1 The Regents shall instruct Roger Tsien that if The Regents circulates any of the Biological Materials to third parties for noncommercial research purposes, it shall only do so under the terms and conditions set forth in the biological material transmission letter attached hereto as Appendix A. The Regents expressly reserves the right to transfer the Biological Materials to non-profit entities strictly for noncommercial research purposes in the manner set forth above. The Regents agrees that it will not otherwise transfer the Biological Materials. The Licensee acknowledges that The Regents' right to so transfer the Biological Materials could lead to the inadvertent loss or diminution of the proprietary commercial value of the Biological Materials." The Biological Materials is defined in said Agreement as follows: "1.2 Biological Materials" means (i) the chemical reagents and biological materials owned by The Regents and listed in Appendix D attached hereto and provided to Licensee by The Regents pursuant to the April 26, 1996 Letter Agreement, and (ii) any other chemical reagents or biological materials elected for inclusion under this Agreement by Licensee pursuant to Section 2.11 below." By: ______________________________ _____________________________ (Inventor) Date 42 45 APPENDIX C - PAGE 1C CHANCELLOR APPROVAL OF COMMERCIAL RESTRICTIONS OF TANGIBLE RESEARCH PRODUCTS In May 1989, the University of California issued the Guidelines on University-Industry Relations ("Guidelines"). Guideline 10 entitled "Tangible Research Products" requires that when the commercial availability of tangible research products resulting from the conduct of research are restricted by a license, approval must be obtained from the Chancellor of the campus where the research took place. The License Agreement between THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ("The Regents") and AURORA BIOSCIENCES, CORP. ("Licensee") entitled "Fluorescent Assay Technologies" contains provisions that restrict the transfer of certain tangible research products to commercial competitors of the Aurora Biosciences, Corp. and requires that tangible research products transferred for educational and research purposes be conveyed under a biological material transfer agreement that permits the University to retain the discretion to publish any results of research at any time and to disseminate the tangible materials for educational and research purposes. Approval of the provisions of the License Agreement that restrict the commercial availability of tangible research products is indicated below. Approval: ______________________________ _____________________________ Majorie C. Caserio Date Interim Chancellor 43 46 APPENDIX D - PAGE 1D *** CONFIDENTIAL TREATMENT REQUESTED 44 47 APPENDIX D - PAGE 2D *** CONFIDENTIAL TREATMENT REQUESTED 45 48 APPENDIX D - PAGE 3D *** CONFIDENTIAL TREATMENT REQUESTED 46 49 APPENDIX D - PAGE 4D ***CONFIDENTIAL TREATMENT REQUESTED 47 50 APPENDIX D - PAGE 5D ***CONFIDENTIAL TREATMENT REQUESTED 48 51 APPENDIX D - PAGE 6D ***CONFIDENTIAL TREATMENT REQUESTED 49 52 APPENDIX D - PAGE 7D ***CONFIDENTIAL TREATMENT REQUESTED 50 53 APPENDIX D - PAGE 8D ***CONFIDENTIAL TREATMENT REQUESTED 51 54 APPENDIX D - PAGE 9D ***CONFIDENTIAL TREATMENT REQUESTED 52 55 APPENDIX D - PAGE 10D ***CONFIDENTIAL TREATMENT REQUESTED 53 56 APPENDIX D - PAGE 11D ***CONFIDENTIAL TREATMENT REQUESTED 54 57 APPENDIX D - PAGE 12D ***CONFIDENTIAL TREATMENT REQUESTED 55 58 APPENDIX D - PAGE 13D ***CONFIDENTIAL TREATMENT REQUESTED 56 59 APPENDIX D - PAGE 14D ***CONFIDENTIAL TREATMENT REQUESTED 57 60 APPENDIX D - PAGE 15D ***CONFIDENTIAL TREATMENT REQUESTED 58 61 APPENDIX D - PAGE 16D ***CONFIDENTIAL TREATMENT REQUESTED 59 62 APPENDIX D - PAGE 17D ***CONFIDENTIAL TREATMENT REQUESTED 60 63 APPENDIX D - PAGE 18D ***CONFIDENTIAL TREATMENT REQUESTED 61 64 APPENDIX D - PAGE 19D ***CONFIDENTIAL TREATMENT REQUESTED 62 65 APPENDIX D - PAGE 20D ***CONFIDENTIAL TREATMENT REQUESTED 63 66 APPENDIX D - PAGE 21D ***CONFIDENTIAL TREATMENT REQUESTED 64 67 APPENDIX E - PAGE 1E Research Reagents *** 060596 ***CONFIDENTIAL TREATMENT REQUESTED 66 EX-10.18 26 EXHIBIT 10.18 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.18 LICENSE AGREEMENT This AGREEMENT (the "Agreement") is effective as of the 2nd day of August, 1996 (the "Effective Date"), between California Institute of Technology, 1201 East California Boulevard, Pasadena, California 91125 ("CALTECH") and Aurora Biosciences Corporation, a Delaware corporation, having a principal place of business at 11149 North Torrey Pines Road, La Jolla, California 92037 (hereinafter called "LICENSEE"). WHEREAS, CALTECH has been engaged in basic research in biotechnology conducted for the National Institutes of Health ("NIH") under Grant No. GM 34236 between CALTECH and NIH; WHEREAS, that research led to that United States provisional patent application described in Paragraph 1.6.2, which is owned by CALTECH; WHEREAS, LICENSEE is desirous of obtaining, and CALTECH wishes to grant to LICENSEE, an exclusive license to the Licensed Patent Rights (as defined in Paragraph 1.6); and WHEREAS, on an even date herewith LICENSEE and CALTECH have entered into a Stock Transfer Agreement pursuant to which CALTECH shall receive shares of LICENSEE's common stock. 2 NOW, THEREFORE, the parties agree as follows: ARTICLE I DEFINITIONS I.1 "Confidential Information" means (i) any proprietary or confidential nformation or material in tangible form disclosed hereunder that is marked as "Confidential" at the time it is delivered to the receiving party, or (ii) proprietary or confidential information disclosed orally hereunder which is identified as confidential or proprietary when disclosed and such disclosure of confidential information is confirmed in writing within thirty (30) days by the disclosing party. To protect the confidentiality of such information, LICENSEE may request the Principal Investigator, who has the right to refuse to accept such information, to sign a confidentiality agreement with LICENSEE in the form of Exhibit B hereto. I.2 "Dominating Patent" means an unexpired patent that has not been invalidated by a court or governmental agency which is owned by a third party under circumstances such that the LICENSEE or its sublicensee has no commercially reasonable alternative to obtaining a royalty-bearing license under such patent in order to practice the Licensed Methods or make, use, sell or otherwise commercialize Licensed Products. I.3 "Field" means *** *** CONFIDENTIAL TREATMENT REQUESTED -2- 3 candidates. I.4 "Licensed Method" means any method, procedure, or process, the use of which is covered by any Valid Claim. I.5 "Licensed Product" means *** . I.6 "Licensed Technology" means Licensed Know-How and Licensed Patent Rights. I.6.1 "Licensed Know-How" means all information and data, processes, formulas, and materials, including but not limited to those which relate to nucleic acid constructions, genes, DNA or RNA fragments, gene sequences, bacterial or yeast strains, mammalian cell lines, biological material, chemical compounds, proteins, products, substances, experimental plans, formulations, techniques, methods, designs, and drawings which are conceived, reduced to practice, or otherwise developed (i) in the laboratory of Dr. Melvin I. Simon ("Dr. Simon"), a faculty member CALTECH, or by Dr. Simon or another person employed by or affiliated with CALTECH who is working under Dr. Simon's supervision, or (ii) jointly by any of the foregoing and any person employed by or affiliated with LICENSEE, and which are specifically and directly related to experiments or embodiments of inventions covered by or within the scope of a Valid Claim of the Licensed Patent Rights. ***CONFIDENTIAL TREATMENT REQUESTED -3- 4 I.6.2 "Licensed Patent Rights" means (i) U.S. provisional patent application ***, filed ***, and entitled ***; (ii) any patent application claiming an invention useful in the Field which is conceived, reduced to practice, or otherwise developed on or before *** in Dr. Simon's laboratory or by Dr. Simon and/or another person employed by or affiliated with CALTECH who is working under Dr. Simon's supervision; (iii) any patent application claiming an invention useful in the Field which is conceived, reduced to practice, or otherwise developed on or before *** in jointly by Dr. Simon and/or another person employed by or affiliated with CALTECH who is working under Dr. Simon's supervision and any person employed by or affiliated with LICENSEE; (iv) any substitution, provisional, regular utility application, division, or continuation (in whole or in part) claiming priority to any patent application in (i), (ii), or (iii); (v) any patent issuing on any of the preceding, including without limitation any reissue, re-examination, or extension; and (vi) any foreign patent application or patent claiming priority to any of the foregoing, including any confirmation, registration, revalidation, or addition. I.7 "Related Company" means any corporation or other entity which is directly or indirectly controlling, controlled by, or under the common control with LICENSEE. For the purpose of this Agreement, "control" shall mean the direct or indirect ownership of at least fifty percent (50%) of the outstanding shares or other voting rights of the subject entity to elect *** CONFIDENTIAL TREATMENT REQUESTED -4- 5 directors, or if not meeting the preceding, any entity owned or controlled by or owning or controlling at the maximum control or ownership right permitted in the country where such entity exists. I.8 "Stock Transfer Agreement" means that certain Stock Transfer Agreement entered into by the parties on an even date herewith, a copy of which is appended hereto as Exhibit A. I.9 "Valid Claim" means a claim of (i) a pending patent application within the Licensed Patent Rights, or (ii) an issued and unexpired patent included within the Licensed Patent Rights. ARTICLE II PATENT LICENSE GRANT II.1 CALTECH hereby grants to LICENSEE an *** II.1.1 the reservation of CALTECH's right, on the part of itself and the Jet *** CONFIDENTIAL TREATMENT REQUESTED -5- 6 Propulsion Laboratory ("JPL"), to make, have made, and use Licensed Methods for noncommercial educational and research purposes, but not for sale, licensure, or other distribution to third parties; II.1.2 the rights of the U.S. Government under Title 35, United States Code, Sections 203-204, including but not limited to the grant to the U.S. Government of a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced any invention conceived or first actually reduced to practice in the performance of work under NIH Grant GM 34236 for or on behalf of the U.S. Government throughout the world; and II.1.3 with respect to any technology developed after the effective date, the right of any third party which sponsors research in Dr. Simon's laboratory at CALTECH. It is understood and agreed that CALTECH will use all reasonable efforts to assist LICENSEE in obtaining an exclusive license or other transfer of such third party rights in and to the results and related intellectual property which arise from or in connection with the research sponsored by such third party. II.2 This license is not transferable by LICENSEE except as provided in Paragraph 13.2, but LICENSEE shall have the right to grant and authorize nonexclusive and/or exclusive sublicenses hereunder, provided that LICENSEE shall furnish CALTECH within thirty (30) days of the execution thereof a true and complete copy of each sublicense and any changes or additions -6- 7 thereto. Any such sublicense (including, without limitation, any non-exclusive sublicense) shall remain in effect in the event of any termination of this Agreement. II.3 The license granted herein, and the term of this Agreement, shall commence on the Effective Date and continue, unless terminated in accordance with the provisions of this Agreement, until the last of the patents within the Licensed Patent Rights expires. II.4 LICENSEE shall have a paid-up option to acquire, upon mutually agreeable terms, *** license, including the right to sublicense, to make, have made, use, lease, and sell products and services embodying or produced through the use of any inventions, discoveries, or improvements in the Field conceived, reduced to practice or otherwise developed in Dr. Simon's laboratory at CALTECH in the period from *** until ***, subject to the rights of any third party which sponsors research in Dr. Simon's laboratory at CALTECH. Said option must be exercised by written notice to CALTECH ***. If LICENSEE elects to exercise its option to acquire a license on mutually agreeable terms within the prescribed time period, both parties agree to negotiate license terms in good faith. All such negotiations, including the execution of a license agreement, shall be completed within six (6) months of written notice to CALTECH of LICENSEE's exercise of said option. If LICENSEE fails to agree to terms and conditions within the six (6) month time period, LICENSEE shall be *** CONFIDENTIAL TREATMENT REQUESTED -7- 8 deemed to have waived said option, and CALTECH shall be free to license a third party; provided, however, that for a period of ***, CALTECH shall not agree to license a third party on more favorable terms than were last offered to LICENSEE without first offering LICENSEE a license on those more favorable terms and providing LICENSEE with ninety (90) days in which to accept such offer. If LICENSEE fails to notify CALTECH within the ninety (90) days that it has accepted such terms, LICENSEE shall be deemed to have rejected the offer, and CALTECH shall, thereafter, be free to license its rights in such invention, discovery, or improvement to other parties. If LICENSEE notifies CALTECH within the ninety (90) days that it accepts such an offer, CALTECH shall be deemed to have entered into a binding license agreement with LICENSEE with respect to such terms. ARTICLE III USE OF NAME III.1 LICENSEE agrees that it shall not use the name of CALTECH, the California Institute of Technology, the Jet Propulsion Laboratory, or JPL in any advertising or publicity material, or make any form of representation or statement which would constitute an express or implied endorsement by CALTECH of any Licensed Product, and that it shall not authorize others to do so, without first having obtained written approval from CALTECH. LICENSEE may make further disclosures containing information previously approved for release by CALTECH without *** CONFIDENTIAL TREATMENT REQUESTED -8- 9 any need for further approvals by CALTECH. III.2 Notwithstanding Paragraph 3.1, LICENSEE may make such disclosures as may be required by law or court order, and disclose to its professional advisors and actual and prospective investors that it has entered into this Agreement with CALTECH. ARTICLE IV DUE DILIGENCE IV.1 LICENSEE shall have discretion over the commercialization of Licensed Methods and Licensed Products. LICENSEE shall be deemed to have satisfied its obligations under this Paragraph if LICENSEE has an ongoing and active research program or marketing program, as appropriate, directed toward the use of Licensed Methods in the Field. Any efforts of LICENSEE's sublicensees shall be considered efforts of LICENSEE for the purpose of determining LICENSEE's compliance with its obligation under this Paragraph. IV.2 ***, CALTECH shall have the right, exercisable no more often than ***, to require LICENSEE to report to CALTECH in writing on its progress in using Licensed Methods in the United States. ARTICLE V *** CONFIDENTIAL TREATMENT REQUESTED -9- 10 INFRINGEMENT BY THIRD PARTY V.1 CALTECH shall, at its expense, have the initial right, but not the obligation, to protect Licensed Technology solely owned by CALTECH from infringement or misappropriation and prosecute infringers or others when, in its sole judgment, such action may be reasonably necessary, proper, and justified. Notwithstanding the foregoing, LICENSEE shall have the right to sublicense any alleged infringer pursuant to Paragraph 2.2. LICENSEE shall, at its expense, have the initial right, but not the obligation, to protect Licensed Technology jointly owned by CALTECH and LICENSEE from infringement or misappropriation and prosecute infringers or others when, in its sole judgment, such action may be reasonably necessary, proper, and justified. V.2 If LICENSEE shall have supplied CALTECH with evidence of infringement or misappropriation by a third party of Licensed Technology solely owned by CALTECH, LICENSEE may by notice request CALTECH to take steps to enforce such Licensed Technology. If LICENSEE does so, and CALTECH does not, within three (3) months of the receipt of such notice, either (i) cause the infringement or misappropriation to terminate or (ii) initiate a legal action against the infringer or misappropriating third party, LICENSEE may, upon notice to CALTECH, initiate an action against the infringer or misappropriating third party at LICENSEE's expense, either in LICENSEE's name or in CALTECH's name if so required by law. If LICENSEE does so for infringement or misappropriation within the Field, LICENSEE shall have sole control of the action. -10- 11 V.3 If a declaratory judgment action alleging invalidity, unenforceability, or noninfringement of any of the Licensed Patent Rights is brought against LICENSEE and/or CALTECH, LICENSEE shall have sole control of the action if LICENSEE agrees to bear all the costs of the action. V.4 In the event one party shall carry on a legal action pursuant to Paragraph 5.2 or 5.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such action, including by using its best efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraph 5.2 or 5.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party controlling such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. V.5 The party controlling any action referred to in this Article V shall have the right to settle any claim, but only upon terms and conditions that are reasonably acceptable to the other party. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed -11- 12 upon between the parties. V.6 Any amounts paid to a party hereto by a third party as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including, without limitation, attorneys' and expert fees) incurred by either party. Any remainder shall be divided between the parties as follows: V.6.1 *** V.6.2 *** ARTICLE VI ALLEGATION OF INFRINGEMENT AGAINST LICENSEE VI.1 If the practice by LICENSEE of the license granted herein results in any allegation or claim of infringement of an intellectual property right of third party against LICENSEE, LICENSEE shall have the exclusive right to defend any such claim, suit, or proceeding, at its own expense, by counsel of its own choice, and shall have the sole right and authority to settle any such suit; provided, however, that CALTECH shall cooperate with *** CONFIDENTIAL TREATMENT REQUESTED -12- 13 LICENSEE, at LICENSEE's reasonable request, in connection with the defense of such claim. ARTICLE VII PAYMENT OF PATENT COSTS VII.1 Starting from the Effective Date, LICENSEE shall, in connection with the preparation, filing, prosecution, issuance, and maintenance of the Licensed Patent Rights both in the United States and foreign jurisdictions: VII.1.1 pay all reasonable attorneys fees for services performed to obtain the issuance of the Licensed Patent Rights, and all patent and government fees for services performed after the issuance of Licensed Patent Rights, and VII.1.2 pay all domestic and foreign patent office maintenance fees. VII.2 Payment shall be made to CALTECH within thirty (30) days following receipt by LICENSEE from CALTECH of (i) an invoice covering such fees and (ii) evidence reasonably satisfactory to LICENSEE that such fees were paid. To the extent that LICENSEE terminates this Agreement pursuant to Paragraph 9.1, LICENSEE shall have no further liability under Paragraph 7.1 for fees relating to applications or patents affected by the termination. -13- 14 VII.3 CALTECH shall apply for, prosecute, and maintain during the term of this Agreement the Licensed Patent Rights; provided, however, that LICENSEE shall have reasonable opportunity to advise and consult with CALTECH on such matters and may instruct CALTECH to take such action as LICENSEE reasonably believes necessary to protect the Licensed Patent Rights. The preparation, filing, prosecution, maintenance, and payment of all fees and expenses, including legal fees, relating to such Licensed Patent Rights shall be the responsibility of CALTECH, provided that LICENSEE shall reimburse CALTECH for all reasonable fees and expenses, including reasonable legal fees, incurred by CALTECH in such application preparation filing, prosecution, and maintenance preparation, as provided in Paragraph 7.1. Patent attorneys chosen by CALTECH and acceptable to LICENSEE shall handle all patent preparation, filing, prosecution, and maintenance on behalf of CALTECH; provided, however, that LICENSEE shall be entitled to review and comment upon and approve all actions undertaken in the prosecution of all patents and applications. Patent counsel shall concurrently provide CALTECH and LICENSEE with copies of all material correspondence related to the prosecution and maintenance of the patent applications and patents within the Licensed Patent Rights. In the event CALTECH declines to apply for, prosecute, or maintain any Licensed Patent Rights as requested by LICENSEE, LICENSEE shall have the right to pursue the same in CALTECH's name and at LICENSEE's expense, and CALTECH shall give sufficient and timely notice to LICENSEE so as to permit LICENSEE to apply for, prosecute, and/or maintain such Licensed Patent Rights. ARTICLE VIII -14- 15 CONFIDENTIALITY VIII.1 Dr. Simon shall provide to LICENSEE copies of any proposed publication or abstract relating to Licensed Technology prior to the submission of such documents. Proposed publications and abstracts shall be supplied at least thirty (30) days in advance of submission to a journal, editor, or third party. In addition, if Dr. Simon submits a copy of the proposed publication to LICENSEE less than thirty (30) days prior to submission for publication, then LICENSEE can request CALTECH to file, at CALTECH's expense, a provisisonal patent application enabling the technology disclosed in the proposed publication at the United States Patent and Trademark Office, and shall provide LICENSEE with evidence of the filing of such provisional patent application. All such documents are to be forwarded to the address given in Paragraph 13.8. LICENSEE may request reasonable changes and/or deletions be made in any proposed publication. The Principal Investigator will consider such changes but retains the sole right to determine whether such changes or deletions will be made. Dr. Simon agrees that he will honor LICENSEE's reasonable requests to remove Confidential Information of LICENSEE included in any such public disclosure. If LICENSEE believes that the subject matter to be published warrants patent protection, it will identify the subject matter requiring protection and notify CALTECH. CALTECH agrees to use its best efforts to file a U.S. patent application prior to any date that would result in preventing the obtaining of valid patent rights throughout the world when LICENSEE so identifies subject matter requiring patent protection from a review of the planned publication. Notwithstanding any other provision of this Paragraph 8.1, if CALTECH is unable to -15- 16 file a U.S. patent application in accordance with the preceding sentence, CALTECH shall file a U.S. provisional patent application prior to the date that would result in preventing the obtaining of valid patent rights throughout the world when LICENSEE so identifies subject matter requiring patent protection from a review of a planned publication. VIII.2 Except as expressly provided herein, each party agrees not to disclose any terms of this Agreement to any third party without the consent of the other party; provided, however, that disclosures may be made as required by securities or other applicable laws, or to actual or prospective investors or corporate partners, or to a party's accountants, attorneys, and other professional advisors. ARTICLE IX TERMINATION IX.1 If either party materially breaches this Agreement, the other party may elect to give the breaching party written notice describing the alleged breach. If the breaching party has not cured such breach within sixty (60) days after receipt of such notice, the notifying party will be entitled, in addition to any other rights it may have under this Agreement, to terminate this Agreement effective immediately; provided, however, that if either party receives notification from the other of a material breach and if the party alleged to be in default notifies the other party in writing within thirty (30) days of receipt of such default notice that it disputes the asserted -16- 17 default, the matter will be submitted to arbitration as provided in Article XI of this Agreement. In such event, the nonbreaching party shall not have the right to terminate this Agreement until it has been determined in such arbitration proceeding that the other party materially breached this Agreement, and the breaching party fails to cure such breach within ninety (90) days after the conclusion of such arbitration proceeding. IX.2 LICENSEE shall have the right to terminate this Agreement either in its entirety or as to any jurisdiction or any part of the Licensed Technology upon sixty (60) days written notice. IX.3 Termination of this Agreement for any reason shall not release any party hereto from any liability which, at the time of such termination, has already accrued to the other party or which 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 which accrued or are based upon any event occurring prior to such termination. IX.4 In the event of any termination of this Agreement, it is understood that LICENSEE shall retain its ownership interest in any jointly owned intellectual property within the Licensed Technology and shall have the right to exploit the same for any purpose without having to account to CALTECH therefor. IX.5 The last sentence of Paragraph 2.2, Paragraphs 9.3, 9.4, and 9.5, and -17- 18 Articles III, VIII, XI, XII, and XIII of this Agreement shall survive termination of this Agreement for any reason. ARTICLE X WARRANTIES AND NEGATION OF WARRANTIES, IMPLIED LICENSES AND AGENCY X.1 CALTECH represents and warrants that: (i) it owns all right, title, and interest in and to the Licensed Technology, subject to the license and march-in rights of the United States Government under Title 35, United States Code, Sections 203-204, and ARPA Grant No. MDA972-93-1-0009, except as for such right, title, and interest as may be owned by LICENSEE; (ii) it has complied with all of its obligations under NIH Grant No. GM 34236, such as those described in Title 35, United States Code, Section 202, with respect to all of the Licensed Patent Rights; (iii) it has not granted and during the term of this Agreement will not grant any right or interest in any of the Licensed Technology that is inconsistent with the rights granted to LICENSEE herein; (iv) the execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate action on the part of CALTECH; (v) it is the sole and exclusive owner of all right, title, and interest in the Licensed Technology, except for such right, title, and interest therein as may be owned by LICENSEE; (vi) it has the right to grant the rights and licenses granted herein, and the Licensed Technology is free and clear of any lien, encumbrance, security interest, or restriction on license; and (vii) there are no threatened or pending actions, suits, investigations, claims, or proceedings in any way relating to the Licensed -18- 19 Technology. X.2 Nothing in this Agreement shall be construed as: X.2.1 a representation or warranty of CALTECH as to the validity or scope of Licensed Patent Rights or any claim thereof; or X.2.2 a representation or warranty that any Licensed Product is or will be free from infringement of rights of third parties; or X.2.3 an obligation to bring or prosecute actions or suits against third parties for infringement; or X.2.4 conferring by implication, estoppel, or otherwise any license or rights under any patents of CALTECH other than Licensed Patent Rights, regardless of whether such other patents are dominant or subordinate to the Licensed Patent Rights. X.3 CALTECH MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ASSUMES NO RESPONSIBILITIES WHATEVER WITH RESPECT TO THE USE, SALE, OR OTHER DISPOSITION BY LICENSEE OF LICENSED PRODUCT(S). -19- 20 ARTICLE XI ARBITRATION XI.1 CALTECH and LICENSEE agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the validity, enforceability, construction, performance or breach hereof, shall be settled by binding arbitration in Los Angeles, California, United States of America, under the then-current Commercial Arbitration Agreement Rules of the American Arbitration Association by one (1) arbitrator appointed in accordance with such Rules. The arbitrators shall determine what discovery will be permitted, based on the principle of limiting the cost and time which the parties must expend on discovery; provided, however, that the arbitrator shall permit such discovery as he/she deems necessary to achieve an equitable resolution of the dispute. The decision and/or award rendered by the arbitrator shall be written, final, and non-appealable and may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties. Each party shall bear the cost of its own attorneys' fees and expert fees. ARTICLE XII PRODUCT LIABILITY -20- 21 XII.1 LICENSEE agrees that CALTECH shall have no liability to LICENSEE or to any purchasers or users of Licensed Products made or sold by LICENSEE or its sublicensees for any claims, demands, losses, costs, or damages suffered by LICENSEE, or purchasers or users of Licensed Products, or any other party, which may result from personal injury, death, or property damage related to the manufacture, use, or sale of such Licensed Products ("Claims"). LICENSEE agrees to defend, indemnify, and hold harmless CALTECH, its trustees, officers, agents, and employees from any such Claims, provided that (i) LICENSEE is notified promptly of any Claims, (ii) LICENSEE has the sole right to control and defend or settle any litigation within the scope of this indemnity, and (iii) all indemnified parties cooperate fully in the defense of any Claims. No indemnified party shall voluntarily make any payment or incur any expense with respect to any claims without the prior written consent of LICENSEE. XII.2 At such time as LICENSEE begins to sell or distribute or sublicense Licensed Products (other than for the purpose of obtaining regulatory approvals) based upon use of Licensed Methods, LICENSEE shall, at its sole expense, procure and maintain policies of comprehensive general liability insurance in amounts not less than $2,000,000 per incident and $2,000,000 in annual aggregate and naming those indemnified under Paragraph 12.1 as additional insureds. Such comprehensive general liability insurance shall provide (i) product liability coverage and (ii) broad form contractual liability coverage for LICENSEE's indemnification under Paragraph 12.1. In the event the aforesaid product liability coverage does not provide for -21- 22 occurrence liability, LICENSEE shall maintain such comprehensive general liability insurance for a reasonable period of not more than seven (7) years after it has ceased commercial distribution or use of any Licensed Product or Licensed Method. XII.3 LICENSEE shall provide CALTECH with written evidence of such insurance upon request of CALTECH. LICENSEE shall provide CALTECH with notice at least fifteen (15) days prior to any cancellation, non-renewal, or material change in such insurance, to the extent LICENSEE receives advance notice of such matters from its insurer. If LICENSEE does not obtain replacement insurance providing comparable coverage within sixty (60) days following the date of such cancellation, non-renewal, or material change, CALTECH shall have the right to terminate this Agreement effective at the end of such sixty (60) day period without any additional waiting period; provided, however, that if LICENSEE uses reasonable efforts but is unable to obtain the required insurance at commercially reasonable rates, CALTECH shall not have the right to terminate this Agreement, and CALTECH instead shall cooperate with LICENSEE to either grant a waiver of LICENSEE's obligations under this Article XII, assist LICENSEE in identifying a carrier to provide such insurance, or in developing a program for self-insurance or other alternative measures. ARTICLE XIII MISCELLANEOUS -22- 23 XIII.1 This Agreement sets forth the complete agreement of the parties concerning the subject matter hereof. No claimed oral agreement in respect thereto shall be considered as any part hereof. No waiver of or change in any of the terms hereof subsequent to the execution hereof claimed to have been made by any representative of either party shall have any force or effect unless in writing, signed by duly authorized representatives of the parties. XIII.2 This Agreement shall be binding upon and inure to the benefit of any successor or assignee of CALTECH. This Agreement is not assignable by LICENSEE without the prior written consent of CALTECH, except that LICENSEE may assign this Agreement without the prior written consent of CALTECH to (i) any Related Company, or (ii) any successor or purchaser of a substantial part of the assets of the business to which this Agreement pertains. Any permitted assignee shall succeed to all of the rights and obligations of LICENSEE under this Agreement. XIII.3 CALTECH and LICENSEE are independent parties in this Agreement. Accordingly, there is no agency relationship between CALTECH and LICENSEE under this Agreement with respect to any products made or sold, or any methods used, by LICENSEE under this Agreement. XIII.4 Nothing in this Agreement will impair LICENSEE's right to independently acquire, license, develop for itself, or have others develop for it, intellectual property and technology performing similar functions as the Licensed Technology or to market and distribute -23- 24 products other than Licensed Products based on such other intellectual property and technology. XIII.5 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY. XIII.6 This Agreement is subject in all respects to the laws and regulations of the United States of America, including the Export Administration Act of 1979, as amended, and any regulations thereunder. XIII.7 This Agreement shall be deemed to have been entered into in California and shall be construed and enforced in accordance with California law. XIII.8 Any notice or communication required or permitted to be given or made under this Agreement shall be addressed as follows: CALTECH: Office of Technology Transfer California Institute of Technology 1201 East California Boulevard (MC 315-6) Pasadena, California 91125 FAX No.: (818) 577-2528 LICENSEE: Aurora Biosciences Corporation 11149 Torrey Pines Road La Jolla, CA 92037 Phone No.: (619) 452-5000 FAX No.: (619) 452-5723 -24- 25 Either party may notify the other in writing of a change of address or FAX number, in which event any subsequent communication relative to this Agreement shall be sent to the last said notified address or number. All notices and communications relating to this Agreement shall be deemed to have been given when received. XIII.9 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, 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 or intentional conduct or misconduct of the nonperforming 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. XIII.10 In the event that any provisions of this Agreement are determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect without said provision. The parties shall in good faith negotiate a substitute clause for any provision declared invalid or unenforceable, which shall most nearly approximate the intent of the parties in entering this Agreement. XIII.11 This Agreement may not be altered, amended, or modified in any way except by a writing signed by both parties. The failure of a party to enforce any provision of -25- 26 the Agreement shall not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed: CALIFORNIA INSTITUTE OF TECHNOLOGY (CALTECH) Date: _______________ By: ------------------------------------ Name: Lawrence Gilbert Title: Director, Office of Technology Transfer AURORA BIOSCIENCES CORPORATION Date: _______________ By: ------------------------------------ Name: Tim Rink Title: President and CEO -26- 27 EXHIBIT A STOCK TRANSFER AGREEMENT 28 AURORA BIOSCIENCES CORPORATION STOCK TRANSFER AGREEMENT THIS AGREEMENT is made as of August , 1996 in San Diego, California, between AURORA BIOSCIENCES CORPORATION, a Delaware corporation (the "Company"), and the California Institute of Technology (the "Purchaser"). WHEREAS, The Company and Purchaser have entered into a license agreement of even date herewith regarding the use of certain Promiscuous G-protein technology (the "License Agreement"); and WHEREAS, as partial consideration for Purchaser's execution of the License Agreement, the Company has agreed to issue shares of the Company's Common Stock to Purchaser according to the terms and conditions contained herein. NOW, THEREFORE, the parties agree as follows: 1. ISSUANCE OF STOCK. As partial consideration for Purchaser's execution of the License Agreement and the Company's rights thereunder, the Company hereby agrees to issue to Purchaser an aggregate of 35,000 shares of the Company's Common Stock (the "Shares"). Upon execution of this Agreement, the Company shall promptly issue and deliver to Purchaser a share certificate evidencing the Shares in accordance with the terms of this Agreement. 2. RESTRICTIONS ON TRANSFER. (a) The Shares may not be sold, offered for sale, pledged, hypothecated or otherwise transferred in the absence of an effective registration Statement under the Securities Act of 1933, as amended (the "Securities Act"), with respect to such Shares or an opinion of counsel reasonably acceptable to the Company that such registration is not required. The Company shall not be required to transfer on its books any portion of such Shares purchased hereunder which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or to treat as the owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares shall have been so transferred. (b) The Purchaser hereby agrees that if so requested by the Company or any representative of the underwriters in connection with any registration of the offering of any securities of the Company under Section 7 of the Securities Act, the Purchaser shall not sell, transfer or otherwise dispose of any Shares or other securities of the Company during a period of up to 180 days (as specified by such representative) following the effective date of a registration statement of the Company filed under the Securities Act; provided, however, that such restriction shall only apply to the first two registration statements of the Company to become effective 1 29 under the Securities Act which include securities to be sold on behalf of the Company to the public in an underwritten public offering under the Securities Act. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such 180-day period. (c) The Shares are subject to a Right of First Refusal as set forth in Article XIV of the Company's Bylaws. 3. ADJUSTMENT FOR STOCK SPLIT. All references to the number of Shares and the purchase price of the Shares in this Agreement shall be appropriately adjusted to reflect any stock split, stock dividend or other change in the Shares which may be made by the Company after the date of this Agreement. 4. GENERAL PROVISIONS. (a) Purchaser acknowledges that it is aware that the Shares have not been registered under the Securities Act of 1933, as amended (the "Act") and that the Shares are deemed to constitute "restricted securities" under Rule 144 and Rule 701 promulgated under the Act. In this connection, Purchaser warrants and represents to the Company that Purchaser is purchasing the Shares for Purchaser's own account and Purchaser has no present intention of distributing or selling said Shares except as permitted under the Act and Section 25102(f) of the California Corporations Code. Purchaser further warrants and represents that Purchaser has either (i) preexisting personal or business relationships with the Company or any of its officers, directors or controlling persons, or (ii) the capacity to protect its own interests in connection with the purchase of the Shares by virtue of the business or financial expertise of Purchaser or of any professional advisors to Purchaser who are unaffiliated with and who are not compensated by the Company or any of its affiliates, directly or indirectly. Purchaser further acknowledges that the exemption from registration under Rule 144 will not be available for at least three years from the date of sale of the Shares unless at least two years from the date of sale (i) a public trading market then exists for the Common Stock of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 are complied with; and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions. (b) All certificates representing any shares of Common Stock of the Company subject to the provisions of this Agreement shall have endorsed thereon legends in substantially the following form: (i) The securities represented by this certificate have not been registered under the Act. They may not be sold or offered for sale or otherwise distributed unless the securities are registered under the Act or an exemption therefrom is available. 2 30 (ii) Any other legend required to be placed thereon by the Company's Bylaws or applicable state, federal or foreign securities laws. (c) This Agreement shall inure to the benefit of, and be enforceable by, the successors and assigns of the Company, and, subject to the restrictions on transfer herein set forth, shall be binding upon Purchaser, its successors and assigns. (d) Any notice, demand or request required or permitted to be given by either the Company or the Purchaser pursuant to the terms of this Agreement shall be in writing and shall be deemed given when delivered personally or deposited in the U.S. Mail, First Class with postage prepaid, and addressed to the parties at the addresses of the parties set forth at the end of this Agreement or such other address as a party may request by notifying the other in writing. (e) The Purchaser agrees to execute upon request any further documents or instruments necessary or desirable to carry out the purposes or intent of this Agreement. (f) This Agreement shall be governed by and determined and interpreted in accordance with the laws of the State of California as such laws are applied by California courts to contracts made and to be performed entirely in California by residents of that state. (g) This Agreement sets forth the entire understanding between the Company and Purchaser regarding shares of the Company's securities, and supersedes all prior agreements and/or understandings regarding the same. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first set forth above. AURORA BIOSCIENCES CORPORATION CALIFORNIA INSTITUTE OF TECHNOLOGY By:___________________________________ By:_________________________ Timothy J. Rink President Name:_______________________ 11149 North Torrey Pines Road Address:____________________ La Jolla, CA 92037 ____________________________ 3 31 EXHIBIT B CONFIDENTIALITY AGREEMENT 32 CONFIDENTIAL MUTUAL NONDISCLOSURE AGREEMENT This MUTUAL NONDISCLOSURE AGREEMENT ("Agreement") is made effective as of the ______________, 1997, by and between AURORA BIOSCIENCES CORPORATION AND MELVIN I. SIMON, PH.D., to assure the protection and preservation of the confidential and/or proprietary nature of information to be disclosed or made available between the parties in connection with certain negotiations or discussions in contemplation or furtherance of a business or scientific relationship between the parties. WHEREAS, in order to pursue these negotiations or discussions, the parties have agreed to mutual disclosures of certain data and other information which are of a proprietary and confidential nature (as defined in paragraph 1 below and referred to herein as "Confidential Information"). NOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any information, process, technique, compound, library, bioreagents, chemical probes, instrumentation, imaging technology, software, biological assays, high throughput and ultra-high throughput synthesis and screening, method of synthesis, program, design, drawing, formula or test data relating to any research project, work in process, development, engineering, manufacturing, marketing, servicing, financing or personnel matter relating to the disclosing party, its present or future products, suppliers, employees, investors, or business. In order to be deemed Confidential Information hereunder, all information disclosed shall be in some type of written form, including graphic or electronic, and marked "Confidential" or; if disclosed orally, visually and/or in another tangible form, shall be identified as confidential prior to, or within a reasonable time of, disclosure and summarized in a writing marked "Confidential" and provided by the disclosing party to the recipient within forty-five (45) days of the initial disclosure. 2. The term "Confidential Information" shall not be deemed to include information which, to the extent that the recipient can establish by competent written proof: a. at the time of disclosure is in the public domain; b. after disclosure, becomes part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or (ii) disclosure by any person or affiliate company to whom Confidential Information was disclosed under this Agreement. 33 CONFIDENTIAL c. was (i) in recipient's possession in documentary form at the time of disclosure by the disclosing party or (ii) independently developed by or for recipient by people who had no knowledge of or access to the Confidential Information. d. recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not obtain the Confidential Information either directly or indirectly from the disclosing party; or e. is required by law or regulation to be disclosed. In the event that Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the other party to allow that other party to assess whatever exclusions or exemptions may be available to the other party under such law or regulation. 3. Each party shall maintain in trust and confidence and not disclose to any third party or use for any unauthorized purpose any Confidential Information received from the other party. Each party may use such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not be used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation, the export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement and no Confidential Information disclosed by Aurora Biosciences Corporation will be used by Melvin I. Simon, Ph.D. to file a patent application. 4. Confidential Information supplied shall not be reproduced in any form, except as required to continue discussions or to accomplish the purposes described herein. 5. The responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use or disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature thereof. No Confidential Information shall be disclosed to any officer, employee or agent of either party who does not have a need to know such information for the purposes described herein and who is not bound by a written agreement with that party to maintain Confidential Information in confidence. 6. All Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party after the recipient's need for it to accomplish the purposes of this Agreement has expired, or within twenty (20) days of a written request by the disclosing party. However, the recipient may retain one complete copy of the Confidential Information in a secure location for recipient's archival purposes to assure compliance with this Agreement. 2. 34 CONFIDENTIAL 7. This Agreement may be terminated at any time upon ten (10) days written notice to the other party. The termination of this Agreement shall not relieve either party of the obligations imposed by this Agreement with respect to Confidential Information disclosed prior to the effective date of such termination and the provisions hereof shall survive for a period of seven (7) years from the date hereof. 8. This Agreement shall be governed by the laws of the State of California as those laws are applied to contracts entered into and to be performed in California. 9. Neither party shall reveal the fact that Confidential Information has been disclosed pursuant to this Agreement, nor that either party is conducting, or has conducted, discussions or negotiations in contemplation or furtherance of a business relationship. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any product, but is made for the limited purposes relating to potential joint business activities stated herein. 10. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented, except by a written instrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict such party from disclosing any of its Confidential Information to any third party. 11. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, including, without limitation, the actual or threatened disclosure of a disclosing party's Confidential Information without the prior express written consent of the disclosing party, the disclosing party will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each party hereby agrees that the other party shall be entitled to specified performance of recipient's obligations under this Agreement, as well as such further injunctive relief as may be granted by a court of competent jurisdiction. AGREED TO AS OF THE FIRST DATE ABOVE: AURORA BIOSCIENCES CORPORATION MELVIN I. SIMON, PH.D. 11149 N. Torrey Pines Road La Jolla, CA 92037 By: __________________________ By: __________________________ Print Name: __________________ Print Name: __________________ Title: _______________________ Title: _______________________ Initial if authorized to bind the Company: 3 EX-10.19 27 EXHIBIT 10.19 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.19 EXCLUSIVE LICENSE AGREEMENT BETWEEN THE UNIVERSITY OF OREGON AND AURORA BIOSCIENCES CORPORATION FOR LONG WAVELENGTH ENGINEERED FLUORESCENT PROTEINS 2 CONFIDENTIAL LICENSE AGREEMENT This Agreement is made this 4th day of October, 1996, by and between the State of Oregon, acting by and through the State Board of Higher Education on behalf of the University of Oregon, an institute of higher education located in Eugene, Oregon ("OREGON"), and Aurora Biosciences Corporation ("LICENSEE"), a Delaware corporation with principal offices at 11149 North Torrey Pines Road, La Jolla, CA 92037 to license certain technology. RECITALS WHEREAS, OREGON and LICENSEE seek commercialization of certain inventions, technology, and intellectual property owned by OREGON and LICENSEE which form the basis of U.S. Patent Application; *** and WHEREAS, LICENSEE is well-positioned in the Biotechnology industry and intends to use its best efforts to utilize the licensed technology; and WHEREAS, UNIVERSITY wishes to grant LICENSEE and LICENSEE wishes to accept from UNIVERSITY a license under any and all inventions embodied in the patent application(s). The parties do agree as follows: 1.0 DEFINITIONS 1.1 The term "INVENTIONS" means the novel useful ideas, reduced to practice, which form the basis of U.S. Patent Application ***, filed on ***, any follow-on patent applications, patents issuing worldwide, and patents claiming priority based thereon. 1.2 "Licensed Product" means *** 1.3 The term "Field of Use" means *** *** CONFIDENTIAL TREATMENT REQUESTED 3 CONFIDENTIAL applications, domestically and internationally, to which the INVENTIONS may be put. 1.5 "Affiliate" or "Affiliated Company" means any corporation or other business entity controlled by or in common control of LICENSEE. Control as used herein means the ownership directly or indirectly of fifty percent (50%) or the maximum interest permitted by local law of the voting stock of the corporation or fifty percent (50%) or greater interest in the income of such corporation or other business entity or the ability otherwise of LICENSEE to secure that the affairs of such corporation or other business entity are managed in accordance with LICENSEE's wishes. 2.0 LICENSE 2.1 Grant. OREGON grants *** 2.2 Royalties. Royalties shall be payable as follows: 2.2.1 An up-front fee of *** . Payments due under this paragraph shall be paid to OREGON in addition to any other royalty payments arising under this Agreement and may not be credited toward, or made in lieu of, any other such payments. 2.2.2 An *** until *** the first such payment being due on *** . Upon *** , an *** of *** payable *** 2.2.3 Upon *** LICENSEE grants OREGON the rights to *** shares of common stock in LICENSEE. LICENSEE will issue these shares at OREGON's direction to OREGON's *** CONFIDENTIAL TREATMENT REQUESTED 3 4 CONFIDENTIAL institution foundation for the benefit of OREGON, or to such other person or entity as OREGON may designate. LICENSEE may require OREGON's designee to sign such representations as will demonstrate compliance with securities laws. 2.3 Due Diligence. LICENSEE shall use reasonable efforts to bring Licensed Products to market or provide services using the Licensed Products in an expedient and timely fashion (in the context of necessary regulatory approvals) or to sublicense entities which will use their reasonable efforts to bring Licensed Products to market on the same timely basis, and to provide Licensed Products in quantities sufficient to meet the market demands therefor. 2.3.1 At least annually, beginning one year after the date this Agreement is signed, LICENSEE shall report to OREGON concerning the commercialization of Licensed Products. All reports given by LICENSEE to OREGON shall be regarded as Confidential Information hereunder. 2.5 Residual Rights. Notwithstanding any grant provision to the contrary in this Agreement, OREGON retains the non-transferable right to use the INVENTIONS for its instructional and noncommercial research purposes. 2.6 Infringement 2.6.1 Should a third party appear to infringe any of the intellectual property rights embodied in the INVENTIONS licensed herein, LICENSEE shall have the right, fully at its expense, to challenge such infringement, and may use OREGON's name if required by applicable law, and may retain the proceeds recovered thereby. However, that should LICENSEE fail to challenge a commercially significant instance of alleged infringement within six (6) months from its initial discovery by or disclosure to LICENSEE, OREGON shall have the right to challenge such infringement and 4 5 CONFIDENTIAL retain all proceeds recovered thereby; provided further that the parties can agree to proceed jointly against such an infringer on terms to be negotiated. 2.6.2 Should a third party claim that any patents, know-how, or intellectual property licensed to LICENSEE under or as a result of the terms of this Agreement infringes its intellectual property rights, at Licensee's request LICENSEE and OREGON shall (i) engage in negotiations for a settlement and license, (ii) use their best efforts to obtain for LICENSEE all rights necessary for it to continue using the INVENTIONS and licensed patent rights, and (iii) otherwise assist each other in resolving reasonably any such dispute. LICENSEE shall pay all reasonable out-of-pocket expenses related to these endeavors including related license fees. 5 6 CONFIDENTIAL 2.7 Warranty Disclosure and Limitation of Liability 2.7.1 OREGON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL SUCH WARRANTIES, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY INVENTION(S) OR LICENSED PRODUCTS, WHETHER TANGIBLE OR INTANGIBLE, SUBJECT TO THIS AGREEMENT AND INCLUDING THE OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR ANY SUCH INVENTION OR PRODUCT OR THAT THE USE OF LICENSED PRODUCT WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHTS. OREGON SHALL NOT BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL OR OTHER DAMAGES SUFFERED BY ANY LICENSEE, INCLUDING SUBLICENSEE, OR ANY THIRD PARTIES TO THE EXTENT THAT THEY RESULT FROM THE USE OF THE INVENTION AND DISCOVERY, PROVIDED THAT THE INVENTION AND DISCOVERY WAS NOT PROVIDED TO THE THIRD PARTY BY OREGON. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT. 2.7.2 The provisions of this paragraph shall survive the termination of this Agreement. 2.7.3 At the time of the execution of this Agreement, LICENSEE represents and warrants to OREGON as follows: 2.7.3.1 LICENSEE is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. LICENSEE has all requisite corporate power and authority to carry on business, to execute and deliver this Agreement, and to perform its obligations hereunder. The execution and delivery of this Agreement by LICENSEE and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of LICENSEE, and this Agreement constitutes a valid and legally binding obligation of LICENSEE enforceable against it in accordance with its respective terms. 6 7 CONFIDENTIAL 2.7.4 OREGON represents and warrants that: (i)it owns all rights, title, and interest in and to the INVENTIONS, except as for such right, title, and interest as may be owned by LICENSEE and the University of California, (ii) it has not granted and during the term of this Agreement will not grant any right or interest in any of the Licensed Products that is inconsistent with the rights granted to LICENSEE herein; (iii) the execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate action on the part of OREGON; (iv) it is the sole and exclusive owner of all right, title, and interest therein as may be owned by LICENSEE and the University of California; (v) it has the right to grant the rights and licenses granted herein, and the Licensed Products is free and clear of any lien, encumbrance, security interest, or restriction on license; and (vi) there are no threatened or pending actions, suits, investigations, claims, or proceedings in any way relating to the Licensed Products. 2.8 Indemnification and Insurance 2.8.1 LICENSEE shall indemnify and hold OREGON and its officers, employees and agents harmless against all costs, damages, judgments, attorney fees, license fees, settlement costs, and other defense expenses incurred, arising out of claims brought by third parties, including, but not limited to, personal injury, property damage, intellectual property infringement, dilution, or misappropriation, due to LICENSEE'S development, manufacture, use, clinical trials, testing, marketing or sale of Licensed Products, or sublicensing of INVENTIONS. 2.8.2 In the event any third-party claim is made or lawsuit is initiated, the party against whom such lawsuit is brought or claim is made shall promptly notify the other party hereto in writing, and shall cooperate fully in the defense of such lawsuit. 7 8 CONFIDENTIAL 2.8.3 During the term of this Agreement, LICENSEE shall maintain in effect commercial general liability insurance and (in any period when LICENSEE is commercially transferring Licensed Products to third parties) products liability insurance in the combined amount of One Million Dollars ($1,000,000) per occurrence, or such greater amount as may be usual and customary for companies selling or testing similar products. The general liability insurance required hereunder shall cover contractual liability and bodily injury, death and property damage against any claims, demands, or causes of action or damages, including reasonable attorney fees. The products liability insurance shall cover similar claims and forms of damage arising out of negligent design or manufacture, including without limitation failure to warn, deficient use instruction or any alleged defects in Licensed Products or the use or possession of Licensed Products. The policy(ies) shall name OREGON as a co-insured, and provide that notice shall be given to OREGON at least thirty (30) days prior to cancellation, non-renewal or material change in the form of such policy(ies). If any of the required liability insurance is arranged on a "claims made" basis, "tail" coverage will be required at the completion of that insurance contract for a duration of 24 months or the maximum time period the insurer will provide if less than 24 months. 2.8.4 The provisions of this section shall survive the termination of this Agreement. 2.9 Protection and Maintenance of Patent Rights 2.9.1 LICENSEE shall use all reasonable efforts to continue to prosecute Patent Application ***, to file continuations-in-part ("CIP's") based upon that Application, and to pay all maintenance fees necessary to protect the INVENTIONS where patents have issued. 2.9.2 LICENSEE shall control the prosecution of all patent applications related to the Inventions. OREGON may provide the Licensee with comments on the *** CONFIDENTIAL TREATMENT REQUESTED 8 9 CONFIDENTIAL prosecution of the patent applications. 2.9.3 LICENSEE agrees to keep OREGON informed in a timely manner of the contents, status and progress of all amended patent applications and CIP's filed by LICENSEE. LICENSEE agrees to notify OREGON in writing in a timely manner that it does not desire to support the continued prosecution or appeals or maintenance of such amended application, CIP or patent. In the event LICENSEE declines to provide, or is delinquent in providing, support for filing, prosecution, and maintenance of any Patent Rights in any country other than the U.S.A., LICENSEE forfeits its associated licensing rights and OREGON shall have the right, but not an obligation, to file for, prosecute and maintain such patent rights at Oregon's expense. 2.10 Sublicenses. Any sublicenses shall not be inconsistent with the terms of this license (including, but not limited to, OREGON's disclaimers and rights to terminate) and in case of conflict, the rights of OREGON as against any sublicensee shall be governed by this license. Any sublicenses granted by LICENSEE shall survive the expiration of this agreement and be assigned to OREGON. 2.11 Termination 2.11.1 This Agreement shall be continued on a country by country basis, unless sooner terminated as provided in this Section 2.11, until the last expiration date of all patents licensed under this Agreement. 2.11.2 If LICENSEE materially breaches any term, condition or agreement hereof, or if LICENSEE fails to pay the minimum royalties due under clause 2.3.1, OREGON may serve written notice of a breach upon LICENSEE and unless such breach is fully cured within ninety (90) days from the receipt of notice by LICENSEE, OREGON may thereupon, at its option, serve notice of cancellation on LICENSEE, whereupon this Agreement shall immediately terminate. 9 10 CONFIDENTIAL 2.11.3 Termination of this Agreement for any reason whatsoever shall not excuse LICENSEE from paying to OREGON all royalties earned and all patent costs incurred prior to the date of such termination, and all royalties thus earned, but unpaid, shall immediately become due and payable. LICENSEE may terminate at will with respect to any country or patent with sixty (60) days notice OREGON. 2.11.4 Upon expiration of this license or termination as outlined in this 2.11, OREGON shall be free to license its INVENTIONS to any other party. 3.0 MISCELLANEOUS 3.1 Merger Clause. This Agreement constitutes the entire understanding between the parties with respect to the subject matter within and supersedes all previous agreements, whether written or oral, relating to the subject matter herein. Amendments to this Agreement shall be effective only if in writing and signed by an authorized representative of both OREGON and LICENSEE. 3.2 Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party, except that LICENSEE may assign this Agreement to an Affiliate or any successor to substantially all the assets and business of LICENSEE, whether by sale, merger or otherwise. 3.3 Relationship of the Parties. For the purposes of this Agreement, the parties shall be deemed to be independent contractors and not agents or employees of the other party. Neither party shall have authority to make any representations or commitments of any kind or to take any action which shall be binding on the other party, except as may be explicitly provided for herein or authorized by the other party in writing and except as required by law. 3.4 Manufacturing. LICENSEE agrees that, to the extent required by Federal laws or regulations then in effect and 10 11 CONFIDENTIAL to the extent Licensed Products are sold within the United States, if such Licensed Products are based upon INVENTIONS developed through research supported by a Federal Agency, such Licensed Products will be manufactured substantially in the United States. 3.5 Exporting. LICENSEE assures OREGON it does not intend and will not knowingly, without prior written consent and approvals (if required) of the Office of Export Administration of the U.S. Department of Commerce, transmit, transfer, sell, give, or deliver directly or indirectly any INVENTIONS or Licensed Products to any foreign government, or to any company or entity operating under the aegis of, or on behalf of, any foreign government, or to any other entity whose purpose is to facilitate the transfer of INVENTIONS or Licensed Products to any foreign government, in any manner contrary to or in violation of the Export Administration Regulations of the U.S. Department of Commerce or the International Traffic in Arms Regulations of the U.S. Department of Defense or the U.S. State Department. The obligations under this clause shall survive notwithstanding termination of this Agreement. 3.6 Effect of Waiver. No waiver of any default, condition, provisions or breach of this Agreement shall be deemed to imply or constitute a waiver of any other like default, condition, provision or breach of this Agreement. 3.7 Confidential Information. To the extent permitted by law, each party shall use the same degree of care as it employs in protecting its own confidential information to maintain in confidence and not use or disclose, other than for purposes in accordance with this Agreement, all information provided by the other party that are identified in writing as confidential and acknowledged to be confidential, except to the extent the party receiving the information establishes that such information or materials (a) are already in the public domain or (b) otherwise became known to the receiving party from a third party who has the right to disclose such information. The foregoing obligations of the parties with respect to any confidential information shall survive any termination of this Agreement 11 12 CONFIDENTIAL and shall continue for a period of three (3) years from the date such confidential information was disclosed hereunder. 3.7.1 If the inventor or OREGON desires to disclose any confidential information received from LICENSEE in publications or presentations at scientific meetings, the inventor or OREGON shall provide LICENSEE a copy of such manuscript to be published or presented. Upon receipt of the manuscript, LICENSEE shall have thirty (30) days to review and determine whether or not to seek a patent therefor. If LICENSEE determines that it does wish to seek a patent, it may require delay in publication or presentation to permit filing of the patent, provided that such delay will not exceed thirty days after notifying OREGON of its desire to patent the disclosed invention. LICENSEE will work with OREGON in good faith to accommodate shorter deadlines, if needed by OREGON and reasonably possible for LICENSEE. 3.8 Notices. All Notices under this Agreement shall be given in writing and shall be addressed to the parties at the following addresses: For OREGON: Director, Technology Transfer 1238 University of Oregon Eugene, OR 97403-1238 For LICENSEE: Director, Business Development 11149 North Torrey Pines Road La Jolla California 3.8.1 Notices shall be in writing and shall be deemed delivered when received, if delivered by a courier, or 12 13 CONFIDENTIAL on the second business day following mailing, if sent by first-class certified or registered mail, postage prepaid. 3.9 Governing Law. This Agreement shall be governed by the laws of the state of OREGON. 3.10 Use of Names. LICENSEE shall not use OREGON'S name in any advertising, promotional or sales literature without the prior written assent to such use by OREGON. 3.11 Severability. In the event that any provision hereof is found to be invalid or unenforceable pursuant to a final judgment or decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. 3.12 OREGON and LICENSEE agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the validity, enforceability, construction, performance or breach hereof, shall be settled by binding arbitration under the then- current American Arbitration Association by one (1) arbitrator appointed in accordance with such Rules. The arbitrator shall permit such discovery as he/she deems necessary to achieve an equitable resolution of this dispute. The decision and/or award rendered by the abritrator shall be written, final, and non-appealable and may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. The cost of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties. Each party shall bear the cost of its own attorney's fees and expert fees. 3.13 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTIAL, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY. 3.14 Neither party shall lose any rights hereunder or be 13 14 CONFIDENTIAL 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 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 or intentional conduct or misconduct of the nonperforming 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. IN WITNESS WHEREOF, the parties have executed this Agreement. By:__________________________ Timothy J. Rink President, CEO and Chairman Aurora Bioscience Corporation Date:________________________ STATE OF OREGON, ACTING BY AND THROUGH THE OREGON STATE BOARD OF HIGHER EDUCATION ON BEHALF OF THE UNIVERSITY OF OREGON By:___________________________ Melinda Grier OSSHE Contracts Officer Date:________________________ By:___________________________ Steadman Upham 14 15 CONFIDENTIAL Vice Provost for Research and Graduate Education Date:__________________________ 15 EX-10.20 28 EXHIBIT 10.20 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.20 RESEARCH AGREEMENT THIS RESEARCH AGREEMENT("Agreement") is entered into as of this 2nd day of April 1996 (the "Effective Date") by and between AURORA BIOSCIENCES CORPORATION, a company organized under the laws of the State of Delaware, having an office at 1020 Prospect Street, Suite 405, La Jolla, CA 92037 (hereinafter referred to as "Aurora"), and SEQUANA THERAPEUTICS, INC., a California corporation having its principal place of business at 11099 North Torrey Pines Road, Suite 160, La Jolla, CA 92037 (hereinafter referred to as "Sequana"). RECITALS WHEREAS, Aurora is a start-up drug discovery company focused on exploiting novel, highly sensitive fluorescence assays for use in genetically engineered mammalian cells and the development of ultra-high throughput screening systems. Aurora desires to obtain additional capital resources and customers with novel genomic based targets for developing cell-based assays in high-throughput screens. WHEREAS, Sequana is a company engaged in the discovery, characterization and positional cloning of disease genes, which desires to extend its discovery capabilities into functional analysis of newly identified genes, cell-based or other systems for screening such gene targets and methods for high throughput screening of potential drug candidates. WHEREAS, In connection with the execution of this Agreement, Sequana will purchase Preferred Stock of Aurora as set forth in a separate Stock Purchase Agreement between the parties of even date herewith (the "Stock Purchase Agreement"). NOW, THEREFORE, the parties agree as follows: AGREEMENT ARTICLE 1 - DEFINITIONS As used in this Agreement, the following terms shall have the following meanings. 1.1 "AFFILIATE" shall mean any entity that directly or indirectly owns, is owned by, or is under common ownership, with a party, where "owns" or "ownership" means direct or indirect possession and/or control of at least 50% of the outstanding voting securities of a corporation or a comparable equity interest in any other type of entity. 1. 2 1.2 "AURORA PATENT" means the rights granted by any governmental authority under a Patent which covers a Product or a method of use, apparatus, material or manufacture useful in the discovery, development, manufacture, use or sale of a Product, which Patent Aurora (i) owns, controls or has a license to (with a right to sublicense) as of the Effective Date or (ii) acquires ownership, control or license rights to (with a right to sublicense) during the term of the Agreement or in the course of carrying out the Research Program. 1.3 "AURORA TECHNOLOGY" shall mean the *** 1.4 "COMPOUND" means a compound provided by Sequana to Aurora to be used in screening activities in the Research Program. 1.5 "FTE" means 1880 hours of work per year by a full time equivalent scientific or technical researcher, appropriately qualified for the tasks assigned under the Research Plan. 1.6 "FUNCTIONAL ANALYSIS" means background research *** 1.7 "NET SALES" means the *** 1.8 "PATENT" means (i) unexpired letters patent (including inventor's certificates and utility models, petty patents and similar intellectual property rights) which have not been held invalid or unenforceable by a court of competent jurisdiction from which no appeal can be taken or has been taken within the required time period, including without limitation any substitution, extension, registration, confirmation, reissue, re-examination, renewal or any like filing thereof and (ii) pending applications for letters patent, including without limitation any continuation, division or continuation-in-part thereof and any provisional applications. 1.9 "PRODUCT" shall have the meaning assigned in Section 4.2. 1.10 "RESEARCH PLAN" shall mean the plan established pursuant to Section 3.3 describing the research activities to be undertaken regarding a particular Target. 1.11 "RESEARCH PROGRAM" means the program described in Article 3. ***CONFIDENTIAL TREATMENT REQUESTED 2. 3 1.12 "SEQUANA PATENT" means the rights granted by any governmental authority under a Patent which covers a Product or a method of use, apparatus, material or manufacture useful in the discovery development, manufacture, use or sale of a Product, which Patent Sequana (i) owns, controls or has a license to (with a right to sublicense) as of the Effective Date or (ii) acquires ownership, control or license rights to (with a right to sublicense) during the term of the Agreement or in the course of carrying out the Research Program. 1.13 "SEQUANA TECHNOLOGY" shall mean the Sequana Patents and all know-how, technology, trade secrets, processes, data, methods or other information and any physical, chemical or biological material that is useful in the discovery development, manufacture, use or sale of Products which Sequana (i) owns, controls or has a license to (with a right to sublicense) as of the Effective Date or (ii) acquires ownership, control or license rights to (with a right to sublicense) in the course of carrying out the Research Program. 1.14 "TARGET" means a positionally cloned disease gene referred to in Section 2.1 or an additional target gene referred to in Section 2.2, or the protein-encoded by such a gene. 1.15 "TECHNICAL COMMITTEE" shall have the meaning assigned in Section 3.2. ARTICLE 2 - SELECTION OF TARGETS 2.1 POSITIONALLY CLONED DISEASE GENES. Sequana may select *** genes or genetically validated molecular targets, discovered as a result of positional cloning or statistical genetics of specified familial lineages, to which Aurora will apply all scientifically applicable Aurora Technology, including Functional Analysis, screen development and screening, pursuant to an agreed Research Plan as provided in Section 3.2, during the term of this Agreement. 2.2 ADDITIONAL TARGET GENES. During the term of this Agreement, Aurora will also apply all scientifically applicable Aurora Technology including, related to Functional Analysis, screen development and screening for *** additional newly identified genes or genetically validated molecular targets, discovered by any method, including but not limited to positional cloning, provided that: (i) Sequana specifies each such Target in writing to Aurora; (ii) notwithstanding any other provision of this Agreement (including but not limited to Section 3.3), within of the date of such notice the parties agree on an appropriate Research Plan for such Target (which agreement shall not be unreasonably withheld by Aurora); and (iii) prior to Sequana's delivery of any such notice Aurora has not already commenced work for, or good faith negotiations with, another party, as demonstrated by written correspondence, with respect to such Target. With regard to the foregoing clause (iii), if negotiations are not concluded with such a third party within months of delivery of Sequana's notice, Sequana shall be entitled to include the relevant additional target gene in the Research Program subject to the terms of this Agreement. 2.3 CHANGE IN CONTROL. Notwithstanding Section 2.2, in the event of a Sequana change in control (defined below) at any time during the term of this Agreement, Sequana's rights ***CONFIDENTIAL TREATMENT REQUESTED 3. 4 and Aurora's obligations to include Targets in the Research Program shall thereafter be limited to Targets discovered by positional cloning or statistical genetics of specified familial lineages. In such event, new Targets not discovered by positional cloning or statistical genetics of specified familial lineages may not be added to the Research Program. Work in progress under the Research Program on Targets not discovered by positional cloning or statistical genetics of specified familial lineages shall continue according to the agreed Research Plan. Each party's rights and obligations under this Agreement shall continue following an Aurora change in control. For purposes of this Section 2.3, "change in control" of an entity shall mean (i) a merger or consolidation in which the shareholders of such entity immediately prior to such merger or consolidation do not own at least fifty percent (50%) of the surviving entity, (ii) the sale, transfer or other disposition of all or substantially all of the assets of such entity, or (iii) any transaction or series of related transactions in which a third party acquires the beneficial ownership (as defined under the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) of the voting power of such entity's outstanding voting securities. ARTICLE 3 - RESEARCH PROGRAM 3.1 OBJECTIVES; DILIGENCE. Following the selection of Targets in accordance with Article 2, the parties agree to conduct a research program (the "Research Program") in accordance with this Article 3 involving Functional Analysis by Aurora of Targets, development of screens for such Targets, screening of Compounds or any combination thereof. Aurora shall use commercially reasonable diligence to pursue work under the Research Program so long as Sequana is in compliance with its funding commitments under Section 4.1. 3.2 TECHNICAL COMMITTEE. A technical committee (the "Technical Committee") consisting of two senior research and development executives from each of Sequana and Aurora shall review opportunities for research projects to be conducted under this Agreement and monitor and assess the status of work being conducted pursuant to this Agreement. The Technical Committee shall provide a quarterly written report regarding such matters to each party. The Technical Committee shall meet at least quarterly at such times and places as shall be mutually agreed upon by the members of the Technical Committee. 3.3 RESEARCH PLANS. The Research Program will be conducted in accordance with a research plan (the "Research Plan") for each Target. Each Research Plan shall by devised by the Technical Committee in accordance with the terms of this Agreement, but Sequana shall have the determining vote on disputed decisions (subject to clause (ii) of Section 2.2 and except with respect to the allocation of work among Aurora, Sequana and/or third parties under Research Plans as provided in Section 3.4 below). Each Research Plan shall provide for *** to perform such work through the term of such Research Plan, however in the event of early completion of the Research Plan or a determination by Sequana that a Target is not commercially viable, Sequana will have the right to substitute a new Target under the Research Plan. Work may additionally be done by Sequana scientists or third parties to the extent the parties agree that such work is more appropriately done by Sequana or such third parties, and Sequana and/or such *** CONFIDENTIAL TREATMENT REQUESTED 4. 5 third parties shall have a non-exclusive, non-assignable, royalty-free license for the term of the applicable research contract to Aurora Technology to the extent necessary to perform such work. It is the understanding of the parties, however, that Aurora will be primarily responsible for performing research under applicable Research Plans. Notwithstanding the foregoing, however, to the extent any Research Plan with respect to Targets selected under Section 2.1 or Section 2.2 is directed solely toward Functional Analysis, then such Research Plan shall involve *** through the term of such Research Plan, however in the event of early completion of the Research Plan, or a determination by Sequana that a Target is not commercially viable, Sequana will have the right to substitute a new Target under the Research Plan. 3.4 RESEARCH COMMITMENTS. Aurora shall not be required to provide, at any one time, *** Aurora appropriately qualified scientists at any one time under this Agreement for research programs directed to Targets selected under Section 2.1 above or *** Aurora appropriately qualified scientists at any one time under this Agreement for research programs directed to Targets selected under Section 2.2 above. Further, Aurora shall not be obligated to provide *** appropriately qualified scientists at any one time under this Agreement for Functional Analysis of Targets where the Research Plans under which such scientists are working are directed solely toward Function Analysis. 3.5 SPECIAL EQUIPMENT. Aurora may require Sequana to provide to Aurora, at Sequana's expense (including but not limited to delivery charges to and from Aurora's facilities, and insurance costs), any specific equipment (to be owned by Sequana) that Aurora requires for work under a Research Plan. Aurora shall not use such equipment for other purpose except with the consent of Sequana. 3.6 *** 3.7 RESEARCH LICENSE TO AURORA. Sequana hereby grants to Aurora a non-exclusive, non-transferable, fully-paid license under the Sequana Technology solely for the purpose of carrying out the Research Program in accordance with this Agreement. ***CONFIDENTIAL TREATMENT REQUESTED 5. 6 ARTICLE 4 - COMPENSATION 4.1 RESEARCH PAYMENTS. Sequana shall make research funding payments to Aurora a rate equal to *** per FTE for each FTE provided for in any Research Plan. Such payments shall be made on a quarterly basis in advance. If the Agreement is extended as provided in Section 7.1, the research funding rate per FTE for such extension years will be *** 4.2 MILESTONES AND ROYALTIES. (A) If any Compound screened by Aurora under the Research Program, or any derivative thereof, is developed and commercialized as a drug product, or any assay development or screening work performed by Aurora under this Agreement otherwise directly or indirectly leads to the development and commercialization of any drug products (collectively, "Products"), Aurora shall be entitled to receive from Sequana, subject to paragraph (c) below, *** of all license fees, milestone payments and other fees and compensation received by Sequana from third parties (if any) with respect to such Products and (ii) royalties on Net Sales of such Products equal to the *** (if any) with respect to such Products; provided, however, that with respect to any Product, the amounts to which the percentages under the foregoing clauses (i) and (ii) are applied shall be *** in connection with the discovery, development or commercialization of such Product. (B) With respect to any Target on which Aurora performs Functional Analysis but not screening or assay development work referred to under Section 4.2(a), if the Functional Analyses of any such Targets performed by Aurora under this Agreement directly or indirectly lead to the development or commercialization of any Products acting substantially on any such Target, Aurora shall be entitled to receive from Sequana, subject to paragraph (c) below, (i) *** of all license fees, milestone fees and other fees and compensation received by Sequana from third parties (if any) with respect to such Products and (ii) royalties on Net Sales of such Products equal to *** (if any) with respect to such Products; provided, however, that the amounts to which the percentages under the foregoing clauses (i) and (ii) are applied shall be ********* in connection with the discovery, development or commercialization of such Products. In no event shall any license fees, milestone payments, royalties or other payments paid by Sequana and referred to in the provisos in Sections 4.2(a) and 4.2(b) be applied on more than one occasion to reduce the amounts upon which percentages are payable to Aurora under this Section 4.2. ***CONFIDENTIAL TREATMENT REQUESTED 6. 7 (C) Aurora shall not be entitled to receive any amount of (i) license fees, milestone payments, royalties or other fees or compensation received by Sequana from third party collaborators to the extent such payments are received solely and specifically in consideration of Sequana's research activities in connection with and including discovering the gene with respect to which screening services are being provided by Aurora to Sequana, or (ii) payments from third party collaborators (a) for research or development work performed by Sequana or (b) as reimbursement of patient collection costs, or (iii) equity investments in Sequana even if at a premium to market price. The provisions of this paragraph (c) and the provisos contained in Sections 4.2(a) and 4.2(b) shall not apply to the extent the parties shall both otherwise agree in writing to an alternative compensation arrangement with respect to any Products, such as in the event that Sequana has not entered into a separate gene discovery agreement with a commercial partner, after considering in good faith the relative contributions by the parties (Aurora, Sequana and third parties) of intellectual property, specialist know how and prior work done and any unusual or special features of the contractual arrangements to which Sequana is subject for a particular project, including but not limited to the fact that no substantial milestones or royalties are payable to Sequana pursuant to such arrangements. Notwithstanding anything in this Agreement to the contrary, Aurora shall not be entitled to receive any amounts of any payments received by Sequana under the following agreements as in effect on the date hereof: (i) the Collaborative Research Agreement between Sequana and Glaxo Wellcome Inc. dated July 27, 1994; (ii) the Collaborative Research Agreement dated June 30, 1995 between Sequana and Corange International, Ltd.; and (iii) the Collaborative Research Agreement dated June 12, 1995 between Sequana and Boehringer Ingelheim International GmbH; provided, however, that notwithstanding any other provision of this Agreement, Aurora shall not be required to provide screening or assay development services or Functional Analysis under this Agreement with respect to any genes or molecular targets identified (or with respect to which Sequana may otherwise receive compensation) under such agreements unless, with respect to any such gene or molecular target under any such agreement, such agreement is hereafter amended to provide for the payment of compensation to Sequana for the provision of such services or Functional Analysis, in which case this sentence shall no longer apply with respect to such agreement (it being understood that the payments payable to Sequana under such agreements as in effect on the date hereof shall be deemed to be payments referred to under clauses (i), (ii) and (iii) of this Section 4.2(c)). 4.3 PAYMENTS. Sequana shall provide reports to Aurora within 60 days after the end of each calendar quarter during this Agreement stating the quantity and description of Products subject to royalty sold the preceding calendar half year, the Net Sales thereof and the calculation of the royalty due, as well the amount of any other payments due under Section 4.2 and the basis for determining such amount. All payments due hereunder shall be paid simultaneously with the submission of such reports. Payments shall be made in United States Dollars. If any taxes are imposed and required to be withheld from such payments, the taxes withheld shall be for the account of Aurora and shall reduce the payments required to be made hereunder. Sequana shall make any required withholding payments to appropriate tax authorities and forward to Aurora all appropriate receipts and other documents necessary to enable Aurora to recover such withheld taxes to the extent permissible under applicable law. 7. 8 4.4 RECORDS AND AUDITS. Sequana shall keep true and accurate records and/or books of account containing information reasonably required for the computation and verification of all payments to be made hereunder, which records and/or books shall at all reasonable and mutually convenient times during ordinary business hours be open for periodic inspection, not more than once each calendar year and for inspection of no more than the three prior years of records and/or books, by an independently certified public accounting firm of nationally recognized standing selected by Aurora who is reasonably acceptable to Sequana, for the sole purpose of and only to the extent reasonably necessary for verification of the amounts due and payable under this Agreement. The accounting firm shall disclose to Sequana all information gathered or concluded, and to Aurora only whether the records are correct or not and the specific details concerning any discrepancies. The expense of the audit shall be borne by Aurora, unless the audit reveals a deficiency *** in payments due hereunder, in which case Sequana shall bear the expenses of the audit. The results of the audit shall be binding on both parties. Any deficiency in payments revealed by the audit shall be due and payable within thirty (30) days of the audit results being disclosed to the parties, with simple interest from the date originally due at a rate of eight percent (8%) per annum. ARTICLE 5 - INTELLECTUAL PROPERTY RIGHTS 5.1 INVENTIONS AND DATA. Inventions made by Aurora using Compounds supplied by Sequana under this Agreement, all data generated by Aurora in connection with the evaluation of Compounds pursuant to this Agreement and all rights in such inventions and data shall be owned by Sequana and Sequana shall have the right to obtain Patents thereon at its own expense and using counsel of its selection. Inventions made by Aurora pertaining generally to assay development technology and screening technology shall be owned by Aurora and Aurora shall have the right to obtain Patents thereon at its own expense and using counsel of its selection. Aurora's rights shall, however, be subject to any Patent rights owned by Sequana and no rights or license under Sequana Patents shall inure to Aurora except as expressly provided in this Agreement. All inventions made by Sequana in connection with the Research Program shall be owned by Seqana. For the avoidance of doubt, as between Aurora and Sequana, Sequana shall own all rights to any Compounds identified as potential drug candidates, and any assays containing a Target developed, in the course of the Research Program. 5.2 COMMERCIAL LICENSE TO SEQUANA. Sequana shall use commercially reasonable diligence to pursue product opportunities arising out of the Research Program. Subject to the terms of this Agreement, Aurora hereby grants to Sequana a worldwide, exclusive license under the Aurora Technology to develop, make, use and sell Products covered by Section 4.2. Sequana may sublicense such rights to third parties, provided that payments received by Sequana pursuant to such sublicenses shall be covered by Section 4.2. 5.3 *** ***CONFIDENTIAL TREATMENT REQUESTED 8. 9 *** The licenses granted under this Section 5.3 shall terminate upon the expiration of the Agreement, provided that following the expiration of the Agreement, Aurora and Sequana shall negotiate in good faith with regard to extending the licenses set forth above on reasonable terms to be mutually agreed upon by the parties. 5.4 PATENT ENFORCEMENT. Each party shall have the right at its own expense to protect the Patents owned by it and licensed to the other party under this Agreement from infringement by third parties and to control any litigation initiated to prosecute such infringers. The decision to undertake litigation shall be in the sole discretion of such party and its decision to enter into litigation shall be binding on the other party. In the event that party shall recover profits and/or damages from an infringer based upon the infringer's sales of a Product, such party agrees to pay the other party a percentage of such profit and/or damages equal to the percentage the other party would have received hereunder in the absence of infringement, after deducting the recovering party's expenses of litigation, including costs and legal fees incurred therein. ***CONFIDENTIAL TREATMENT REQUESTED 9. 10 ARTICLE 6 - CONFIDENTIALITY 6.1 The parties contemplate that during the course of their relationship arising under this Agreement, it may be necessary to provide the other with confidential information to facilitate the performance of their obligations pursuant to this Agreement. The parties agree, therefore, that information received from the other shall be maintained in confidence and that reasonable and prudent practices shall be followed to maintain the information in confidence, including, where necessary, obtaining written confidentiality agreement from employees and consultants not already bound by such agreements who have access to the confidential information. Information received in confidence shall be used by a party only for the purpose of and in connection with its performance of this Agreement. The obligation to maintain information in confidence shall survive expiration or termination of this Agreement for a period of five (5) years thereafter. However, a party shall not be obliged to maintain information in confidence which it can show by written documentation: (a) to have been publicly known prior to submission to it by the other party; (b) to have been known or available to it prior to submission by the other party; (c) to have become publicly known without fault on its part subsequent to submission by the other party; (d) to have been received by it from a third party having possession of the information without obligations of confidentiality; (e) to have independently developed it without reference to or use of the confidential information; or (f) to be required to be disclosed pursuant to applicable law or the order of any court or governmental agency having jurisdiction thereof after notice to the other party sufficient to afford it an opportunity to intervene in the proceeding where disclosure is required. ARTICLE 7 - TERM AND TERMINATION 7.1 TERM OF AGREEMENT; OPTION TO EXTEND. The term of the Agreement shall be three years from the effective date of the UC License Agreement, subject to Sequana's right to extend such term *** for a fee of *** (but only for an additional *** Targets discovered by Sequana as a result of positional cloning or statistical genetics of specified familial lineages under Section 2.1 and an additional *** under Section 2.2 per *** ; *** of such extension fee *** . In the event that Aurora has not established fluorescence- based screening equipment referred to in the Recitals to this Agreement with a capacity of tests per week within months of the Effective Date, no fee will be payable upon any extension of the Agreement under this Section 7.1. Following the expiration of the initial three year term, or any extension thereof, Sequana shall retain the license granted in Section 5.2 of this Agreement and shall remain subject to the terms of Section 4.2, 4.3 and 4.4, as well as Articles 6 and 8. 7.2 TERMINATION FOR MATERIAL BREACH. Each party can terminate this Agreement in the event of a material breach of this Agreement by the other party by giving the other party notice of its intention to terminate if within ninety (90) days of such notice such party does not cure the breach. *** CONFIDENTIAL TREATMENT REQUESTED 10. 11 7.3 CONSEQUENCES OF TERMINATION FOR MATERIAL BREACH. (A) BREACH BY SEQUANA. If Aurora terminates this Agreement pursuant to Section 7.2, then in addition to any other remedies that may be available, all rights and obligations of the parties under this Agreement (including but not limited to all licenses) shall terminate as of the effective date of such termination and each party shall promptly return to the other party all documentation and materials in such party's possession; provided, however, that Sequana shall remain obligated to pay milestones and royalties under this Agreement, and the provisions of Sections 4.2, 4.3, 4.4 and 5.2 of this Agreement shall survive such termination, with respect to work done hereunder by Aurora through the effective date of such termination, and nothing shall relieve any party of any payment obligations accrued prior to the effective date of such termination. (B) BREACH BY AURORA. If Sequana terminates this Agreement pursuant to Section 7.2, then in addition to any other remedies that may be available, all rights and obligations of the parties under this Agreement (including but not limited to all licenses) shall terminate as of the effective date of such termination and each party shall promptly return to the other party all documentation and materials in such party's possession; provided, however, that (i) the provisions of Sections 4.2, 4.3, 4.4, and 5.2 of this Agreement shall survive such termination, with respect to work done hereunder by Aurora through the effective date of such termination (Section 5.3 shall survive for 3 years from the effective date of the UC License Agreement and thereafter as Sequana may elect subject to clause (ii) of this Section 7.3(b) below) and (ii) Sequana may elect to continue the license grant under Section 5.3 and Aurora's exclusivity obligation under Section 3.6 *** after expiration of the initial 3 year period after the effective date of the UC License Agreement following such termination by delivery to Aurora on or prior to the effective date of such termination cash in the amount of *** for *** and (iii) nothing shall relieve any party of any payment obligations accrued prior to the effective date of such termination. The provisions of Sections 5.1, 5.2, 5.4, 6.1, this 7.3 and 8.1 and Article 9 shall in any event survive termination of this Agreement. 7.4 DISPUTE RESOLUTION. In the event of any disputes under this Agreement, the Technical Committee shall first attempt to resolve such disputes in gook faith. If the members of the Technical Committee cannot resolve such matters, such matters shall be referred to the Chief Executive Officers of each party for resolution. If such persons are unable to resolve such matters, then such matters shall be resolved by Arbitration pursuant to Section 9.6. ARTICLE 8 - INDEMNIFICATION 8.1 INDEMNIFICATION. Sequana shall defend, indemnify and hold Aurora harmless from and against all claims and expenses, including reasonable attorneys' fees, arising out of the development, manufacture, use or sale of Products by Sequana and its Affiliates and sublicensees, except to the extent caused by the negligence or misconduct of Aurora; provided that (i) Aurora *** CONFIDENTIAL TREATMENT REQUESTED 11. 12 provides Sequana prompt notice of any such claim, (ii) Sequana shall not be obligated to indemnify Aurora for any loss in connection with any settlement unless Sequana consents in writing to such settlement and (iii) Sequana shall have the exclusive right to defend and settle any such claim. 8.2 INDEMNIFICATION. Aurora shall defend, indemnify and hold Sequana harmless from and against all claims and expenses, including reasonable attorneys' fees, arising out of the development, manufacture, use or sale of Products by Aurora and its Affiliates and sublicensees, except to the extent caused by the negligence or misconduct of Sequana; provided that (i) Sequana provides Aurora prompt notice of any such claim, (ii) Aurora shall not be obligated to indemnify Sequana for any loss in connection with any settlement unless Aurora consents in writing to such settlement and (iii) Aurora shall have the exclusive right to defend and settle any such claim. ARTICLE 9 - MISCELLANEOUS 9.1 NO AGENCY OR PARTNERSHIP. Neither party shall be deemed to be an agent of the other party as the result of any transaction under or related to this Agreement and shall not in any way incur any obligations on behalf of the other party. This Agreement shall not constitute a partnership or a joint venture, and neither party may be bound by the other to any contract, arrangement or understanding except as specifically stated herein. 9.2 PUBLICITY. Neither party shall, in connection with its activities under this Agreement, use the name of the other party in any advertising, promotional sales literature, or other publicity without prior written consent obtained from the other party, which consent shall not be unreasonably withheld. 9.3 NOTICES. All written notices, payment, reports and the like required or permitted hereunder shall be deemed to be effective when mailed, postage prepaid, by first class, registered or certified mail to the address of the applicable party set forth above or to such other person or by such other means as to which the parties may from time to time have agreed. 9.4 ASSIGNMENT. This Agreement, in whole or in part, shall be assignable by each party in the case of a transfer of all the assets of such party or to a successor entity by merger, acquisition or other reorganization. Any other assignment shall require the consent of the other party, which consent shall not be unreasonably withheld, and any attempted assignment other than is provided herein without such consent shall be void. 9.5 GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of California as applied to contracts entered into and performed entirely in California among California residents. 9.6 ARBITRATION. Subject to Section 7.4, any and all disputes arising hereunder shall be resolved through binding and nonappealable arbitration to be held in San Diego County administered by the American Arbitration Association ("AAA"). Any such arbitration shall be 12. 13 conducted before a single arbitrator to be appointed by the parties from the AAA roster. If the parties fail to agree as to the identity of the single arbitrator within fifteen (15) days after notice by any party of any dispute hereunder, the AAA shall make such appointment within ten (10) days of the expiration of such fifteen (15) day period, provided that in any event the arbitrator shall be an active member of the California bar who is reasonably familiar with the biotechnology industry and is experienced with transactions of this type. The conduct of the arbitration hearing and discovery prior thereto shall be in accordance with the California Code of Civil Procedure, California Rules of Court, and California Rules of Evidence. The arbitrator shall be empowered to make appropriate orders and rulings and shall be empowered to award legal and equitable relief deemed appropriate thereby; provided that notwithstanding any other provision of this Agreement, in no event shall punitive damages be awarded. The parties shall complete any and all discovery with respect to any such dispute within thirty (30) days after the selection of the arbitrator and the arbitrator shall be instructed to issue any and all orders and/or rulings within sixty (60) days after selection of the arbitrator (subject in each case to extension if the arbitrator determines extenuating circumstances exist which justify such extension). Notwithstanding the foregoing provisions of this paragraph 9.6 however, the parties shall be entitled to seek and obtain appropriate injunctive relief with respect to Article 6 in any court of competent jurisdiction pending the results of the arbitration. 9.7 NO WAIVER. The failure of either party to enforce at any time any of the provisions of this Agreement, or any rights in respect thereto, or to exercise any election herein provided, shall in no way be considered to be a waiver of such provisions, rights or elections, or in any way to affect the validity of this Agreement. Exercise by either party any of its rights herein or any of its elections under the terms or covenants herein shall not preclude either party from exercising the same or any other rights in this Agreement, irrespective of any previous action or proceeding taken by either party hereunder. 9.8 SEVERABILITY. If any provision of this Agreement is judicially determined to be void or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain in full force and effect. Either party may request that a provision otherwise void or unenforceable be reformed so as to be valid and enforceable to the maximum extent permitted by law. 9.9 FORCE MAJEURE. No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, civil unrest, labor unrest, or shortage of or inability to obtain material as equipment. 9.10 ASSURANCES AND WARRANTIES. The parties agree to execute, acknowledge and deliver all such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the intent and purpose of this Agreement. Each party warrants that it has the authority to enter into this Agreement on the basis of the terms and conditions herein and that it has not made any other Agreement inconsistent with its obligations under this Agreement. 13. 14 9.11 ENTIRE AGREEMENT; AMENDMENTS. The terms and conditions herein constitute the entire Agreement between the parties and shall supersede all previous Agreements, either oral or written, between the parties hereto with respect to the subject matter hereof. No amendment, modification or other understanding bearing on this Agreement shall be binding upon either party hereto unless it shall be in writing and signed by the duly authorized officer or representative of each of the parties and shall expressly refer to this Agreement. 9.12 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. IN WITNESS WHEREO, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives. AURORA BIOSCIENCES CORPORATION By: ------------------------------------ Name: ---------------------------------- Title: -------------------------------- SEQUANA THERAPEUTICS, INC. By: ------------------------------------ Name: ---------------------------------- Title: -------------------------------- 14. EX-10.21 29 EXHIBIT 10.21 1 EXHIBIT 10.21 COLLABORATION AND LICENSE AGREEMENT THIS AGREEMENT, effective as of April 24, 1996 ("Effective Date"), is made by and between: PACKARD INSTRUMENT COMPANY, INC., a State of Delaware corporation, having its principal office at 800 Research Parkway, Meriden, Connecticut 06450 (hereinafter referred to as "PACKARD"). and AURORA BIOSCIENCES CORPORATION, a State of Delaware corporation, with its principal office at 11149 Torrey Pines Road, La Jolla, California 92037 (hereinafter referred to as "AURORA"). RECITALS WHEREAS, AURORA possesses bioreagents, chemical probes, instrumentation and imaging technology for miniaturization and high-throughput analysis of cell-based and biochemical assays. WHEREAS, PACKARD possesses instrumentation, reagents and assay technology for the high-throughput sample preparation and analysis of biological assays. WHEREAS, PACKARD and AURORA desire to collaborate to develop and commercialize high-throughput systems using miniaturized automated screens. In consideration for the payments and mutual undertakings detailed herein, PACKARD and AURORA agree as follows: I. DEFINITIONS In this Agreement, the following terms shall have the following meanings: 1.1 "AFFILIATE" shall mean any entity which controls, is controlled or is under common control with AURORA or PACKARD. An entity shall be regarded as in control of another entity if it owns or controls at least fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority). 1.2 "ASSAY" shall mean any *** *** CONFIDENTIAL TREATMENT REQUESTED 2 1.3 "AURORA REAGENTS" shall mean *** *** *** . For purposes of the foregoing, "controlled by" means possession of the ability to grant a license or sublicense as provided for herein without violating the terms of any agreement with or other arrangement with any third party. 1.4 "AURORA TECHNOLOGY" shall mean ***. For purposes of the foregoing, "controlled by" means possession of the ability to grant a license or sublicense as provided for herein without violating the terms of any agreement with or other arrangement with any third party. 1.5 "AURORA UC REAGENTS" shall mean *** 1.6 *** 1.7 "CONFIDENTIAL INFORMATION" shall mean (i) any proprietary or confidential information or material in tangible form disclosed hereunder that is marked as "Confidential" at the time it is delivered to the receiving party, or (ii) proprietary or confidential information disclosed orally hereunder which is identified as confidential or proprietary when disclosed and such disclosure of confidential information is confirmed in writing within thirty (30) days by the disclosing party. 1.8 "DETECTOR" shall mean a *** 1.9 "HTS" shall mean the *** 1.10 "IMAGER" shall mean a high resolution fluorescence imager and associated software. *** CONFIDENTIAL TREATMENT REQUESTED 3 1.11 "JOINT TECHNOLOGY" shall have the meaning set forth in Article 8.1.2. 1.12 "LIQUID-HANDLING HEAD" shall mean a device containing arrays of two (2) or more PIEZO-DEVICES. 1.13 "NANO-PLATE" shall mean *** 1.14 "NET SALES" shall mean the *** . A "sale" shall also include a transfer or other disposition for consideration other than cash, in which case such consideration shall be valued at the fair market value thereof. 1.15 "PACKARD TECHNOLOGY" shall mean *** . For purposes of the foregoing, "controlled by" means possession of the ability to grant a license or sublicense as provided for herein without violating the terms of any agreement with or other arrangement with any third party. 1.16 "PIEZO-DEVICE" shall mean *** 1.17 "PRODUCT(S)" shall mean the LIQUID-HANDLING HEADS, DETECTORS, and NANO-PLATES which are jointly developed by AURORA and PACKARD under this Agreement. 1.18 "UC LICENSE" shall mean a license agreement entered by AURORA and the Regents of the University of California ("UC") which shall be attached hereto as Addendum 2, based on that certain Letter Agreement dated March 4, 1996 between AURORA and UC, a copy of which is attached as Addendum 1. II. COLLABORATION PROGRAM 2.1 OBJECTIVE. PACKARD and AURORA hereby commit to undertake and pursue a collaboration program with the primary objective to develop and commercialize ***CONFIDENTIAL TREATMENT REQUESTED 4 high-throughput screening systems using PRODUCTS and ASSAYS for the purpose of drug or agrochemical discovery in the pharmaceutical, biotechnology and agrochemical market sectors (the "Collaboration Program"). It is understood that the initial goal of the Collaboration Program shall be the development of PRODUCTS, but the parties anticipate that the Collaboration Program will be expanded to include the development of improved versions of the initial PRODUCTS. 2.2 STANDARD. AURORA and PACKARD each will use commercially reasonable efforts to achieve the objectives of the Collaboration Program as specified in this Agreement. 2.3 MANAGEMENT. 2.3.1 A research and development steering committee (the "R&D Steering Committee") and a marketing steering committee (the "Marketing Steering Committee") will be established after the Effective Date. Each Committee shall consist of two (2) members from each of AURORA and PACKARD, and each of the parties may replace their respective Committee members at any time, upon written notice to the other party. With respect to each Committee, AURORA and PACKARD shall have one vote on the respective Committee and decisions of each Committee shall be made by unanimous vote; provided, however, that any matter that a Committee is unable to resolve shall be referred to the president of each of AURORA and PACKARD, who shall meet within thirty (30) days to resolve such matter. 2.3.2 The R&D Steering Committee shall annually prepare a written description and plan of the research and development activities to be conducted pursuant to the Collaboration Program, oversee the implementation of the research and development to be undertaken, monitor and review the progress thereof, and redirect the activities of the Collaboration Program as may be required during the term of this Agreement. The Marketing Steering Committee shall be responsible for providing guidance, support and coordination of the PRODUCT commercialization activities of the parties and the activities of PACKARD with regard to AURORA UC REAGENTS. 2.3.3 During the term of this Agreement, each Committee shall meet at least quarterly, or as otherwise agreed. Such meetings shall alternate between the parties' principal places of business, or may be held at such other locations as the parties agree. Each party shall pay its own expenses associated with such meetings. 2.3.4 AURORA and PACKARD will each designate a liaison officer, each of whom shall be a member of the R&D Steering Committee to lead an alliance management team to ensure effective communication and collaboration. The alliance management team will submit a quarterly written report to the Board of Directors of each company. 2.3.5 During the term of this Agreement, the president of each of AURORA and PACKARD will meet annually at a mutually agreed location. The R&D Steering 5 Committee and Marketing Steering Committee shall each make a presentation at such meeting describing their activities in the past year and proposed activities in the next year. 2.4 RECORDS. Each party shall maintain records of the Collaboration Program (or cause such records to be maintained) in sufficient detail so as to properly reflect all work done and results achieved in the performance of the Collaboration Program. 2.5 INVENTIONS AND DISCOVERIES. During the term of this Agreement and for a period of one (1) year thereafter, each party shall promptly notify the other party in writing of any invention or discovery, whether or not patentable, conceived, reduced to practice, or otherwise developed in connection with the Collaboration Program. In addition, each party shall promptly provide the R&D Steering Committee with a detailed written description of any such invention or discovery. III. OBLIGATIONS 3.1 OBLIGATIONS OF AURORA. 3.1.1 AURORA shall use commercially reasonable efforts to achieve the objectives of the Collaboration Program and, shall cooperate with and assist PACKARD in the performance of its obligations hereunder. Without limiting the generality of the foregoing, AURORA shall seek to achieve the following milestones: (a) ***. (b) *** after the Effective Date, *** or more. (c) *** 3.1.2 UC REAGENT SUPPLY. AURORA will supply PACKARD with initial aliquots of the AURORA UC REAGENTS listed on Addendum 4 hereto, and such other AURORA UC REAGENTS as the parties may agree in writing, in sufficient amounts to facilitate the manufacture and commercialization of such AURORA UC REAGENTS by PACKARD under this Agreement. 3.2 OBLIGATIONS OF PACKARD. *** CONFIDENTIAL TREATMENT REQUESTED 6 3.2.1 PACKARD shall use commercially reasonable efforts to achieve the objective of the Collaboration Program and, to that end, shall cooperate with and assist AURORA in the performance of AURORA's obligations hereunder. Without limiting the generality of the foregoing, PACKARD shall seek to achieve the following milestones: (a) ***, as specified in and subject to the conditions of this Agreement. (b) *** (c) *** (i) *** (ii) *** (iii) *** (iv) *** In addition, PACKARD shall *** As used herein, a "functional prototype" shall mean a prototype instrument which (i) is fully operational and (ii) meets sufficient performance specifications to permit effective beta-testing by AURORA or a third party. As soon as practicable, but in any case within ninety (90) days following the delivery of a functional prototype for a particular PRODUCT, AURORA shall notify PACKARD (a) that the *** CONFIDENTIAL TREATMENT REQUESTED 7 functional prototype conforms in all respects to the applicable PRODUCT performance specifications set forth in Addendum 3, in which case such prototype design shall be deemed an "accepted functional prototype", or (b) that the functional prototype fails to perform in accordance with the applicable performance specifications, identifying specific deficiencies. In the event that AURORA provides PACKARD notice pursuant to (a) above, the date of dispatch of such notice shall be the Acceptance Date for such accepted functional prototype PRODUCT. PACKARD shall use its best efforts to correct any deficiencies identified by AURORA pursuant to (b) above and provide AURORA a corrected functional prototype within such period , but in the event that despite such efforts PACKARD is unable to provide AURORA with an accepted functional prototype within such ninety (90) day period, then the parties shall negotiate appropriate and reasonable changes to the Development Program Schedule, pursuant to Section 3.4. All prototypes delivered by PACKARD pursuant to this Article 3.2.1(c) shall be deemed for all purposes to have been consigned by PACKARD to AURORA and title and ownership thereto shall remain with PACKARD. At PACKARD's election, AURORA shall execute and deliver to PACKARD such financing statements or other notices or other documentation required to reflect PACKARD's interest and to reflect and secure PACKARD's interest. 3.2.2 PACKARD shall provide AURORA, at AURORA's request, with a reasonable quantity (of at least six (6) and such greater quantity as may be mutually agreed) of additional accepted functional prototypes of LIQUID-HANDLING HEADS and DETECTORS for development, evaluation, and use by AURORA or its customers, at ***. 3.2.3 Upon delivery of a subsequent generation of functional prototype for a particular PRODUCT or PACKARD's notice of availability of a production model of a particular PRODUCT, the previous generation functional prototype of such PRODUCT provided under Article 3.2.1 shall within ninety (90) days, at AURORA's election, be returned to PACKARD or purchased by AURORA at PACKARD's fully burdened manufacturing cost. 3.3 JOINT OBLIGATIONS. AURORA and PACKARD will use commercially reasonable efforts to have designed and arranged for evaluation, production and delivery of experimental NANO-PLATES to AURORA *** after the Effective Date and to arrange for commencement of manufacture of NANO-PLATES *** after the Effective Date. PACKARD and AURORA contemplate that the development and production of NANO-PLATES will be outsourced to a suitable manufacturer acceptable to both AURORA and PACKARD. PACKARD shall be responsible for any costs associated with such development and manufacture. It is understood and agreed that AURORA and PACKARD will each own an undivided one-half interest in all intellectual property relating to the NANO-PLATES. 3.4 MODIFICATIONS TO DEVELOPMENT SCHEDULE. The parties recognize that circumstances may require adjustment to or modification of the development schedules set forth *** CONFIDENTIAL TREATMENT REQUESTED 8 above. Any such adjustment or modification shall be subject to mutual agreement by AURORA and PACKARD. 3.5 SPECIFICATIONS. The parties shall use commercially reasonable efforts to ensure that the PRODUCTS will meet AURORA's requirements as defined in Addendum 3 hereto. 3.6 STAFF. The projects may involve AURORA staff being temporarily assigned to work at PACKARD facilities and/or PACKARD staff being temporarily assigned to work at AURORA facilities. Each party will bear the costs of its own staff and any liabilities incurred thereby. IV. FINANCING 4.1 GENERAL. Except as expressly provided herein, AURORA and PACKARD each agrees to bear all costs and expenses incurred in complying with its obligations under this Agreement. 4.2 PACKARD CONTRIBUTION. On the Effective Date, PACKARD will purchase *** of AURORA preferred stock *** ***, per the Preferred Stock Purchase Agreement attached as Addendum 5. 4.3 AURORA CONTRIBUTIONS. AURORA shall pay to PACKARD the following amounts during the Collaboration Program: 4.3.1 *** shall be paid *** the ***. 4.3.2 *** shall be paid ***. 4.3.3 *** the *** for *** shall be paid *** the *** shall be paid *** ***CONFIDENTIAL TREATMENT REQUESTED 9 4.3.4 If the scope of the Collaboration Program shall be modified by mutual agreement, for example, to encompass the development of a technically distinct imaging system for NANO-PLATES, then the parties shall negotiate on a case-by-case basis such further contributions by AURORA as may be mutually agreed. Any agreement by AURORA to make additional contributions may include such other terms as shall be mutually agreed, such as, for example, the payment of additional negotiated royalties. V. LICENSES 5.1 UC LICENSE. AURORA agrees to use its best efforts to negotiate and execute on or before June 30, 1996 an exclusive license agreement with UC as contemplated by the Letter Agreement attached as Addendum 1. Within seven (7) days after execution thereof, AURORA shall deliver to PACKARD a true copy of such UC LICENSE and the parties shall also cause a true copy thereof to be attached to this Agreement as Addendum 2. 5.2 UC REAGENTS. 5.21 SUBLICENSE. Subject to the terms and conditions of this Agreement and the execution of the UC License, effective upon execution of the UC LICENSE, AURORA *** 5.2.2 RUNNING ROYALTIES. In consideration of the foregoing sublicense, PACKARD hereby agrees to pay to AURORA royalties on the sale of AURORA UC REAGENTS to non-profit organizations pursuant to this sublicense equal to *** *** of such AURORA UC REAGENTS. It is understood and agreed that AURORA shall be solely responsible for all royalties and other payments due or payable to the UC under the UC LICENSE, and AURORA hereby agrees to indemnify, defend, and hold PACKARD harmless from and against any claim or liability arising from any failure of AURORA to fulfill its obligations to the UC, except if caused by any action or inaction by PACKARD. ***CONFIDENTIAL TREATMENT REQUESTED 10 5.2.3 *** ROYALTIES. PACKARD shall exercise reasonable diligence to market AURORA UC REAGENTS hereunder and, for so long as the sublicense remains exclusive, agrees to pay to AURORA *** royalties according to the following schedule: *** Such amounts shall be paid on the applicable anniversary of the UC License Effective Date, and shall be fully creditable against running royalties due in the year such minimum annual royalty payment is made. 5.2.4 *** 5.3 ADDITIONAL RIGHTS. PACKARD will have the right of first negotiation with respect to: 5.3.1 the right to make, have made and/or sell AURORA UC REAGENTS to for-profit organizations; and 5.3.2 the right to make, have made and/or sell AURORA REAGENTS other than AURORA UC REAGENTS, including, but not limited to, promiscuous G-proteins which AURORA may own or otherwise control, in the event that AURORA wishes such AURORA REAGENTS to be sold and does not wish to conduct such activities itself. 5.3.3 If PACKARD wishes to exercise its right of first negotiation with respect to a particular AURORA REAGENT, including any AURORA UC REAGENT, it shall notify AURORA, and in such event AURORA and PACKARD shall negotiate exclusively in good faith for a period of ninety (90) days with respect to an agreement with respect thereto. If AURORA and PACKARD fail to enter into a written letter of intent for such an agreement or agreement within such period, or such longer period as the parties may agree, then AURORA shall be free to enter into negotiations and definitive agreements with a third party regarding such a license to such AURORA REAGENTS, and PACKARD shall have no further rights with respect thereto. 5.4 CROSS LICENSES. *** CONFIDENTIAL TREATMENT REQUESTED 11 5.4.1 AURORA hereby grants *** *** *** 5.4.2 PACKARD hereby grants *** VI. PRODUCT COMMERCIALIZATION AND EXCLUSIVITY 6.1 MANUFACTURING RIGHTS. During the term of this Agreement, PACKARD shall *** During the term of this Agreement, the parties agree that production quality NANO-PLATES shall be produced by a mutually agreed independent third party manufacturer. 6.2 SUPPLY AGREEMENT. During the term of this Agreement, PACKARD agrees to sell to AURORA such PRODUCTS as AURORA may wish to purchase. At least three (3) months prior to the launch of any PRODUCT, AURORA and PACKARD shall negotiate in good faith and enter into a Supply Agreement which shall contain reasonable terms for the purchase by AURORA of PRODUCTS from PACKARD including warranties, indemnities and the like. 6.3 PRODUCT COMMERCIALIZATION. 6.3.1 Unless otherwise agreed by the parties, all production PRODUCTS purchased by AURORA from PACKARD shall be sold by PACKARD *** 6.3.2 PACKARD will have responsibility for distribution, installation, and service support for all production PRODUCTS in line with PACKARD's customary practice in territories where PACKARD has a subsidiary as of the Effective Date, or as otherwise mutually agreed. The parties agree that PACKARD shall have responsibility for such activities in Korea. *** CONFIDENTIAL TREATMENT REQUESTED 12 6.4 LIQUID-HANDLING HEADS. 6.4.1 For a period of *** from and after the Acceptance Date of an accepted functional prototype LIQUID-HANDLING HEAD containing arrays of ninety-six (96) or more PIEZO-DEVICES, AURORA shall have the *** After the foregoing *** , PACKARD and AURORA *** 6.4.2 If within *** 6.4.3 Except as provided in Articles 6.4.1 and 6.4.2, PACKARD shall *** 6.4.4 For purposes of this Article 6.4, "accepted functional prototype" shall have the meaning set forth in the last paragraph of Article 3.2.1. 6.5 DETECTOR. 6.5.1 For a period of *** *** CONFIDENTIAL TREATMENT REQUESTED 13 ***. For purposes of this Article 6.5, "accepted functional prototype" shall have the meaning set forth in the last paragraph of Article 3.2.1. 6.5.2 Except as provided in Article 6.5.1, PACKARD shall have the exclusive worldwide rights to make, have made and sell (including the right to sublicense others) DETECTORS for all assays, applications, sample densities and markets. 6.6 NANO-PLATES. 6.6.1 For a period of ***. After the foregoing ***. During the initial term of this Agreement, neither party may grant any third party a license with respect to any intellectual property relating to the NANO-PLATES or have the NANO-PLATES made by a third party, without the prior written consent of the other party hereto. 6.6.2 PACKARD shall pay royalties to AURORA of *** of NANO-PLATES to third parties. 6.6.3 AURORA and PACKARD will equally share ownership and the right to use the "NANO-PLATE" trademark and any variant thereof. Each party shall notify the other and provide the other samples of any intended use of such trademarks, and agrees to make any changes reasonably requested by the other party in order to protect the value of such trademarks. Neither party shall grant any third party any right to use any such trademarks without the prior written consent of the other party, and neither shall attempt to solely register any trademarks, service marks, logos or tradenames confusingly similar to the "NANO-PLATE" or any variant thereof. 6.7 AURORA RIGHTS. 6.7.1 If a DETECTOR which does not use any AURORA TECHNOLOGY, including, without limitation, any AURORA patent rights, is developed based upon JOINT TECHNOLOGY, and if AURORA shall contribute financially, as mutually agreed, in excess of its initial financial contribution set forth in Article 4.3, PACKARD shall pay to AURORA royalties on the Net Sales of such DETECTORS in an amount to be negotiated in ***CONFIDENTIAL TREATMENT REQUESTED 14 good faith and agreed to by the parties at the time of such further contribution, ***. ***. 6.7.2 If the parties shall co-develop IMAGERS or DETECTORS that substantially use any AURORA TECHNOLOGY, which the parties agree may require a further financial contribution from AURORA in excess of its initial contribution set forth in Article 4.3, PACKARD shall pay to AURORA royalties on the Net Sales of such IMAGERS or DETECTORS in an amount to be negotiated in good faith and agreed to by the parties *** 6.7.3 If PACKARD decides within six (6) months of delivery of a DETECTOR which meets agreed performance specifications not to commercialize such DETECTOR, AURORA shall have a right, exercisable for a period of three (3) months, to obtain from PACKARD an exclusive license, with the right to grant and authorize sublicenses, to make, have made and sell such DETECTOR. Such license shall provide for payment of royalties to PACKARD on net sales of such DETECTORS by AURORA, its AFFILIATES and sublicensees in an amount to be mutually agreed upon equal to the sum of *** to ***. In the event of exercise of such right, PACKARD will provide, at AURORA's cost, all specifications, plans, protocols, technical drawings, component lists, etc. required for the manufacture, quality control and service support of the DETECTOR. 6.7.4 AURORA will have the right of first negotiation with respect to the co-development or commercialization of any PRODUCT which PACKARD does not wish to commercialize for HTS or AUTOMATED CHEMISTRY which utilizes any PACKARD TECHNOLOGY, provided AURORA shall have made a contribution to development costs of those new technologies as mutually agreed. If AURORA wishes to exercise its right of first negotiation, it shall notify PACKARD, and in such event PACKARD and AURORA shall negotiate exclusively in good faith for a period of ninety (90) days with respect to an agreement with respect thereto. If PACKARD and AURORA fail to enter into a written letter of intent for such an agreement or agreement within such period, or such longer period as the parties may agree, then PACKARD shall be free to enter into negotiations and definitive agreements with a third party regarding a co-development or commercialization of such technology and AURORA shall have no further rights with respect thereto. 6.7.5 If AURORA desires to purchase PACKARD's proprietary reagents for its *** be ***. AURORA's access to such PACKARD reagents will not be subject to a licensing fee or royalty. On a case-by-case basis, AURORA will have first right of negotiation for exclusive rights for the use, market and sell PACKARD'S HTRF homogenous time resolved fluorescence technology, associated reagents, and instrumentation and/or luminescent technology and associated reagents for HTS in NANO PLATES for a period of *** from the ***CONFIDENTIAL TREATMENT REQUESTED 15 Effective Date, but AURORA may not sublicense such intellectual property without prior written consent from PACKARD. 6.8 RESIDUAL RIGHTS. Except as hereinabove expressly granted to AURORA, PACKARD shall have the exclusive rights with respect to the PRODUCTS. VII. ROYALTY REPORTS AND PAYMENTS 7.1 After the first commercial sale of a PRODUCT or AURORA'S UC REAGENTS on which royalties are required hereunder, PACKARD shall make quarterly written reports to AURORA within thirty (30) days after the end of each calendar quarter, stating in each such report the aggregate Net Sales of the PRODUCTS and AURORA UC REAGENTS sold during the calendar quarter upon which a royalty is payable hereunder, and an annual report on or before February 28 of each year stating the number, description and aggregate Net Sales of PRODUCTS and AURORA UC REAGENTS sold during the preceding calendar year. AURORA shall treat all such reports as confidential information of PACKARD. Concurrently with the making of such reports, PACKARD shall pay to AURORA the applicable royalties specified in this Agreement. 7.2 Royalties due hereunder shall be paid in U.S. dollars. All checks and bank drafts shall be drawn on United States banks and shall be payable to AURORA at the address listed herein. 7.3 If any currency conversion shall be required in connection with the calculation of royalties hereunder, such conversion shall be made using the selling exchange rate for conversion of the foreign currency into U.S. dollars, quoted for current transactions reported in The Wall Street Journal for the last business day of the calendar quarter to which such payment pertains. 7.4 PACKARD shall keep complete, true, and accurate books of account and records, including number and description of PRODUCTS and AURORA UC REAGENTS sold, for the purpose of determining the royalty amounts payable under this Agreement. Such books and records shall be kept at the principal place of business of PACKARD for at least three (3) years following the end of the calendar quarter to which such books and records pertain. Such books and records shall be open for inspection at the principal place of business of PACKARD during such three (3) year period by a representative selected by AURORA for the purpose of verifying the royalty statements. Such inspections shall be made at reasonable times as mutually agreed. The representative will be obliged to execute a reasonable confidentiality agreement on terms consistent with the terms of this Agreement prior to commencing any such inspection. Inspections conducted under this Article shall be at the expense of AURORA, unless a variation or error producing *** of the amount stated as having been due by PACKARD for any period covered by the inspection is established in the course of any such inspection, or through arbitration under Article 12.1, whereupon all costs relating to the inspection for such period and any unpaid amounts that are so established shall be paid by PACKARD. *** CONFIDENTIAL TREATMENT REQUESTED 16 VIII. INTELLECTUAL PROPERTY RIGHTS 8.1 OWNERSHIP. 8.1.1 Except as otherwise expressly provided in this Agreement, AURORA shall retain all right, title and interest in and to any intellectual property invented, developed or acquired solely by AURORA employees during the term of this Agreement, and PACKARD shall retain all right, title and interest in and to any intellectual property invented, developed or acquired solely by PACKARD employees during the term of this Agreement. 8.1.2 Except as provided in Article 8.1.3, all right, title and interest in and to intellectual property, whether or not patentable, that is invented or developed by at least one employee or agent of AURORA and at least one employee or agent of PACKARD in connection with the Collaboration Program shall be owned jointly by PACKARD and AURORA ("JOINT TECHNOLOGY"). Inventorship of inventions and other intellectual property conceived and reduced to practice in connection with the Collaboration Program, and the rights of ownership with respect to such inventions and other intellectual property, whether such JOINT TECHNOLOGY is patentable or not, shall be determined in accordance with United States patent law. 8.1.3 All right, title and interest to the JOINT TECHNOLOGY having specific and direct application only to the PACKARD TECHNOLOGY and any new techniques and methods used to apply the PACKARD TECHNOLOGY and having specific and direct application only to the PACKARD TECHNOLOGY, whether made solely by PACKARD or by AURORA, or jointly by any employees or agents of any of PACKARD and AURORA, and resulting from the collaboration hereunder shall be owned exclusively by PACKARD, and all rights, title and interests to any JOINT TECHNOLOGY having specific and direct application only to the AURORA TECHNOLOGY and any new techniques and methods used to apply the AURORA TECHNOLOGY and having specific and direct application only to the AURORA TECHNOLOGY, whether made solely by AURORA or by PACKARD, or jointly by any employees or agents of any of AURORA and PACKARD, and resulting from the collaboration hereunder shall be owned exclusively by AURORA. Each party shall, upon the request of the other, execute and deliver to the requesting party an assignment and release, or other appropriate document, with respect to all such rights owned by the requesting party. 8.2 PATENT PROSECUTION. 8.2.1 AURORA will be responsible for the preparation, prosecution and maintenance of the AURORA TECHNOLOGY and conducting oppositions, re-examination and interferences with respect thereto, using patent counsel of its choice and according to AURORA's reasonable business and scientific judgment. AURORA will pay all costs of conducting such activities with respect to the AURORA TECHNOLOGY. 8.2.2 PACKARD will be responsible for the preparation, prosecution and maintenance of the PACKARD TECHNOLOGY and conducting oppositions, 17 re-examination and interferences with respect thereto, using patent counsel of its choice and according to PACKARD's reasonable business and scientific judgment. PACKARD will pay all costs of conducting such activities with respect to the PACKARD TECHNOLOGY. 8.2.3 Each party will cooperate with the other as reasonably requested in obtaining patent protection for JOINT TECHNOLOGY and shall agree on which party shall have principal authority for conducting such activities with respect to such patent application. Each party shall keep the other informed as to material developments in this regard. AURORA and PACKARD shall equally share the expenses related to obtaining and maintaining patents with regard to any inventions within the JOINT TECHNOLOGY in the names of AURORA and PACKARD; provided, with ninety (90) days notice either party may decline to fund such activities with regard to any patent application or patent within the JOINT TECHNOLOGY, in which event the other party shall have ninety (90) days to decide to pursue such patent application or patent at its expense. 8.3 PATENT ENFORCEMENT. 8.3.1 AURORA and PACKARD will immediately inform each other of any actual or suspected infringement of the AURORA TECHNOLOGY, PACKARD TECHNOLOGY or JOINT TECHNOLOGY by third parties which such party hereto would reasonably believe would effect the commercial success of a PRODUCT or an AURORA REAGENT. 8.3.2 Unless otherwise agreed between the parties, each shall have the right, but not the obligation, to bring proceedings against any infringer of the technology solely owned by it, at its risk and expense, and shall be entitled to retain any award or damages obtained in any such suit or proceeding. At the request and expense of either party, the other party shall give the requesting party all reasonable assistance required to institute and carry on any such suit or proceeding. 8.3.3 The parties shall confer to determine how to abate any infringement with respect to JOINT TECHNOLOGY, and how any recovery from such an action shall be allocated between the parties. 8.4 COOPERATION. The parties shall cooperate with each other and keep each other informed of all material developments regarding activities relating to preparation, filing, prosecution and maintenance of patents and patent applications in the JOINT TECHNOLOGY and in AURORA TECHNOLOGY and PACKARD TECHNOLOGY, to the extent such technology was conceived, reduced to practice, or otherwise developed after the Effective Date and which relates to the Collaboration Program. 8.5 INFRINGEMENT CLAIMS. 8.5.1 If the manufacture, sale or use of a UC REAGENT results in any claim, suit or proceeding brought by a third party alleging patent infringement against a party 18 hereto, such party shall promptly notify the other party. AURORA shall have the initial right, but not the obligation, to defend and control the defense of any such claim, suit or proceeding, using counsel of its own choice, and at its expense. If any such claim, suit or proceeding is made or brought against PACKARD, AURORA shall promptly confirm to PACKARD in writing that it is undertaking the defense thereof hereunder. If AURORA shall not elect to defend any claim, suit or proceeding, or fails to so confirm to PACKARD, PACKARD may elect to defend and control the defense of such claim, suit or proceeding at its expense and with counsel of its choice, but shall have no obligation to provide a defense for AURORA. Each party shall cooperate with the other in any matter arising hereunder and shall keep the other reasonably informed of all material developments in connection with any such claim, suit or proceeding. 8.5.2 If the manufacture, sale or use of a PRODUCT results in any claim, suit or proceeding alleging patent infringement against a party hereto, such party shall promptly notify the other party. PACKARD shall defend and control the defense of any such claim, suit or proceeding, using counsel of its own choice, and shall keep AURORA reasonably informed of all material developments in connection with any such claim, suit or proceeding. IX. INDEMNITY 9.1 AURORA. AURORA shall indemnify, defend and hold harmless PACKARD and its AFFILIATES, and the directors, officers, employees, agents and counsel of PACKARD and such AFFILIATES, and the successors and assigns of any of the foregoing (the "PACKARD Indemnitees"), from and against any and all liabilities, damages, losses, costs or expenses (including reasonable attorneys' and professional fees and other expenses of litigation and/or arbitration) resulting from a claim, suit or proceeding brought by a third party against a PACKARD Indemnitee, arising from or occurring as a result of (a) activities performed by AURORA in the Collaboration Program, except to the extent caused by the negligence or willful misconduct of a PACKARD Indemnitee; or (b) use by PACKARD of AURORA TECHNOLOGY (other than patent rights subject to the UC LICENSE as to which no indemnification is provided); or (c) the use by PACKARD of, or the manufacture or commercialization by PACKARD of, any AURORA REAGENTS (other than AURORA UC REAGENTS as to which no indemnification is provided) or any PRODUCT to the extent it embodies AURORA TECHNOLOGY (other than patent rights subject to the UC LICENSE as to which no indemnification is provided). 9.2 PACKARD. PACKARD shall indemnify, defend and hold harmless AURORA and its AFFILIATES and the directors, officers, employees, agents and counsel of AURORA and such AFFILIATES and the successors and assigns of any of the foregoing (the "AURORA Indemnitees"), from and against any and all liabilities, damages, losses, costs or expenses (including reasonable attorneys' and professional fees and other expenses of litigation and/or arbitration) resulting from a claim, suit or proceeding brought by a third party against a AURORA Indemnitee, arising from or occurring as a result of (a) activities performed by PACKARD in the Collaboration Program, except to the extent caused by the negligence or willful misconduct of an AURORA Indemnitee; or (b) use by AURORA of PACKARD 19 TECHNOLOGY; or (c) the use by AURORA of, or the commercialization by AURORA of, any PRODUCT to the extent it embodies PACKARD TECHNOLOGY. 9.3 PROCEDURE. If any party intends to claim indemnification under this Article IX, it shall promptly notify the other party (the "Indemnitor") in writing of any loss, claim, damage, liability or action and the Indemnitor shall have the right to assume the defense thereof with counsel mutually satisfactory to the parties. The indemnity agreement in this Article IX shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article IX. At the Indemnitor's request, the Indemnitee under this Article IX, and its employees and agents, shall cooperate fully with the Indemnitor and its legal representatives in the investigation of any action, claim or liability covered by this indemnification and provide full information with respect thereto. X. TERM; TERMINATION 10.1 TERM. 10.1.1 The initial term of this Agreement shall be for ten (10) years from the Effective Date, unless terminated earlier pursuant to Section 10.2. The parties may renew the Agreement beyond ten (10) years if key objectives are substantially achieved, on terms to be negotiated in good faith. 10.1.2 If this Agreement is not terminated pursuant to Section 10.2 or the mutual consent of the parties prior to the end of the initial term, at the end of the initial term, except as otherwise expressly set forth herein, all rights granted under this Agreement shall terminate; provided, the license granted PACKARD under Section 5.2.1 shall convert to a non-exclusive license and shall remain in effect, subject to the royalty and other obligations set forth in this Agreement, until the expiration of the last to expire patent within the UC LICENSE relating to the AURORA UC REAGENTS being sold at the end of the initial term. 10.2 TERMINATION FOR BREACH. 10.2.1 Either party shall have the right to terminate this Agreement at any time for a material breach of this Agreement by the other party, provided that the non-breaching party shall have first given ninety (90) days prior written notice to the breaching party describing such breach and stating the non-breaching party's intention to terminate this Agreement if such breach remains uncured, and the breaching party thereafter fails to cure same. Upon any such termination of this Agreement, all licenses and sublicenses in force at the time of termination shall terminate concurrently. 20 10.2.2 Either party shall have the right to terminate this Agreement pursuant to this Section 10.2 if the other party has failed to meet any milestone applicable to it as specified in Article 3.1.1 or 3.2.1 above and the parties fail to reach a mutually satisfactory resolution after good faith negotiation within ninety (90) days after such failure; provided, in the event that the party which failed to meet the milestone used reasonable good faith efforts to accomplish such milestone, then the Agreement shall not terminate, but, at the election of the non-breaching party may be modified as follows: (a) *** (b) *** 10.3 SURVIVAL. No termination hereunder shall constitute a waiver of any rights or causes of action that either party may have for any acts or omissions or breach hereunder by the other party prior to the termination date. Articles 2.5, 4.1, 6.6.3, 6.8, 8.1, 8.2, 8.4, 8.5, and VII, IX, X, XI and XII (all paragraphs) shall survive any termination of this Agreement. 10.4 RETURN OF MATERIALS. Upon any termination of this Agreement, each party shall promptly return to the other party all CONFIDENTIAL INFORMATION received from the other party (except one copy of which may be retained for archival purposes). 10.5 FORCE MAJEURE. Except as expressly provided otherwise herein, any delays in or failures of performance by either party under this Agreement shall not be considered a breach of this Agreement if and to the extent caused by occurrences beyond the reasonable control of the party affected, including but not limited to: acts of God, earthquake, new regulations or laws of any government; strikes or other concerted acts of workers; fire, floods, explosions; riots; wars; rebellion; and, sabotage, and any time for performances hereunder shall be extended by the time of delay reasonable occasioned by such occurrence. XI. CONFIDENTIALITY 11.1 CONFIDENTIAL INFORMATION. Except as expressly provided herein, the parties agree that, for the term of this Agreement and for five (5) years thereafter, the receiving party shall keep completely confidential and shall not publish or otherwise disclose and shall not use for any purpose except for the purposes contemplated by this Agreement any CONFIDENTIAL INFORMATION furnished to it by the disclosing party hereto pursuant to this ***CONFIDENTIAL TREATMENT REQUESTED 21 Agreement, except that to the extent that it can be established by the receiving party by competent proof that such CONFIDENTIAL INFORMATION: 11.1.1 was already known to the receiving party, other than under an obligation of confidentiality, at the time of disclosure; 11.1.2 was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party; 11.1.3 became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of this Agreement; or 11.1.4 was subsequently lawfully disclosed to the receiving party by a person other than a party hereto. 11.2 PERMITTED USE AND DISCLOSURES. Each party hereto may use or disclose CONFIDENTIAL INFORMATION disclosed to it by the other party to the extent such use or disclosure is reasonably necessary in prosecuting or defending litigation, or complying with applicable governmental regulations or otherwise submitting information to tax or other governmental authorities, provided that if a party is required to make any such disclosure of another party's confidential information, other than pursuant to a confidentiality agreement, it will give reasonable advance notice to the latter party of such disclosure and, save to the extent inappropriate in the case of patent applications, will use its best efforts to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise). 11.3 PUBLICITY. Neither party shall, in connection with its activities under this Agreement, use the name of the other party in any advertising, promotional or sales literature, or other publicity, without prior written consent obtained from the other party, which consent shall not be unreasonably withheld; provided, once consent is obtained with respect to a particular disclosure, further disclosures which do not materially differ may be made without any requirement for the further consent of the other party. 11.4 CONFIDENTIAL TERMS. Except as expressly provided herein, each party agrees not to disclose any terms of this Agreement to any third party without the consent of the other party; provided, disclosures may be made as required by securities or other applicable laws, or to actual or prospective investors or corporate partners, or to a party's accountants, attorneys and other professional advisors. XII. GENERAL 12.1 ARBITRATION. Except as otherwise provided specifically herein, any controversy or claim under this Agreement shall be settled by arbitration by one arbitrator pursuant to the Commercial Arbitration Rules of the Association of the American Arbitration Association (the 22 "Association"); provided that the parties shall first use their best efforts to resolve such dispute by negotiation. The arbitration shall be conducted in Dallas, Texas, or such other site as may be agreed by the parties. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days of the date of a request for arbitration, the selection shall be made pursuant to the rules of the Association. The decision reached by the arbitrator shall be conclusive and binding upon the parties hereto and may be filed with the clerk of any court of competent jurisdiction, and a judgment confirming such decision may, if desired by any party to the arbitration, be entered in such court. Each of the parties shall pay its own expenses of arbitration and the expenses of the arbitrator(s) shall be equally shared; provided, however, that if in the opinion of the arbitrator(s) any claim hereunder or any defense or objection thereto was unreasonable, the arbitrator(s) may assess, as part of the award, all or any part of the arbitration expenses (including reasonable attorneys' fees) against the party raising such unreasonable claim, defense or objection. Nothing herein set forth shall prevent the parties from settling any dispute by mutual agreement at any time. 12.2 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon the parties' respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any such attempted assignment shall be void; provided, that either party may assign this Agreement as part of a merger or consolidation in which the surviving entity assumes all of such party's rights and obligations hereunder or a sale of substantially all of the assets of such party to which this Agreement relates. 12.3 NOTICES. Any legal or other formal notices under this Agreement shall be in writing and shall be hand delivered, or sent either by registered mail, return receipt requested, or other method capable of providing reasonable proof of receipt thereof, to the attention of the party receiving such communication at the address first set forth or at such other address as either party may in the future specify to the other party. 12.4 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard or giving effect to its principles of conflict of laws. 12.5 AMENDMENT. No modification, supplement to or waiver of this Agreement or any Addendum hereto or any of their provisions shall be binding upon a party hereto unless made in writing and duty signed by the party to be charged herewith. In no event may the terms of this Agreement be changed, deleted, supplemented or waived by any notice, purchase order, receipt, acceptance, bill of lading or other similar form of document. A failure of either party to exercise any right or remedy hereunder, in whole or in party, or on one or more occasions, shall not be deemed either a waiver of such right or remedy to the extent not exercised, or of any other right or remedy, on such occasion or a waiver of any right or remedy on any succeeding occasion. 12.6 ENTIRE AGREEMENT. This Agreement, and each Addendum attached hereto, and each supplemental written agreement contemplated hereunder, sets forth the entire understanding and agreement of the parties as to the subject matter thereof, and there are no other 23 understandings, representations or promises, written or verbal, not set forth therein or on which either party has relied. If any provisions of any such Addendum or supplemental written agreement conflict with any provisions set forth in this Agreement, the provisions of this Agreement shall take precedence, unless such Addendum or supplemental written agreement expressly refers to the specific provision(s) of this Agreement that it is intended to replace or modify (and which shall be limited in force and effect to such Addendum or supplemental written agreement only). 12.7 SEVERABILITY. This Agreement is intended to be severable. If any provision(s) of this Agreement are or become invalid, are ruled illegal by a court of competent jurisdiction or are deemed unenforceable under the current applicable law from time to time in effect during the term hereof, it is the intention of the parties that the remainder of the Agreement shall not be affected thereby and shall continue to be construed to the maximum extent permitted by law at such time. It is further the intention of the parties that in lieu of each such provision which is invalid, illegal, or unenforceable, there shall be substituted or added as part of this Agreement by such court of competent jurisdiction a provision which shall be as similar as possible, in economic and business objectives as intended by the parties to such invalid, illegal or unenforceable provision, but shall be valid, legal and enforceable. 12.8 INDEPENDENT CONTRACTORS. The parties hereto are acting as independent contractors and shall not be considered partners, joint venturers or agents of the other. Neither shall have the right to act on behalf of, or to bind, the other. 12.9 PATENT MARKING. PACKARD agrees to mark all AURORA UC REAGENTS sold pursuant to this Agreement in accordance with the applicable statute or regulations relating to patent marking in the country or countries of manufacture and sale thereof. 12.10 HEADINGS. Captions and paragraph headings are for convenience only and shall not form an interpretative part of this Agreement. Unless otherwise specifically provided, all references to an Article incorporate all Articles or subsections thereunder. This Agreement shall not be strictly construed against either party hereto. 24 IN WITNESS WHEREOF, the undersigned parties, acting through their duly authorized representatives, have executed this Agreement in multiple counterparts. PACKARD INSTRUMENT COMPANY, INC. By:____________________________________ Name: _________________________________ Title: __________________________________ Date: __________________________________ AURORA BIOSCIENCES CORPORATION By: ____________________________________ Name: __________________________________ Title: __________________________________ Date: ___________________________________ 25 APPENDIX A *** CONFIDENTIAL TREATMENT REQUESTED 26 ADDENDUM 1 [UNIVERSITY OF CALIFORNIA LETTERHEAD] OFFICE OF THE SENIOR VICE-PRESIDENT-- OFFICE OF TECHNOLOGY TRANSFER BUSINESS AND FINANCE 1320 Harbor Bay Parkway,Suite 150 Alameda, California 94302 tel.: (510) 748-6600 fax: (510) 748-6639 March 4 1996 Michael Rabson, Esq. Wilson, Sonsini, Goodrich, & Rosati Two Palo Alto Square Palo Alto, CA 94304 Re: Roger Tsien's Technologies UCC Case No. *** Dear Michael: The purpose of this letter agreement ("Letter Agreement") is to confirm the offer by The Regents of the University of California ("The Regents") to license Aurora Biosciences Corporation. ("Aurora") the exclusive patent rights of The Regents in the inventions described in *** generally referred to as GFP and Beta Lactamase technologies ("Regents' Patent Rights") and property rights covering the associated biological materials owned by The Regents ("Regents' Property Rights"), under, but not limited to, those terms and conditions specified in this Letter Agreement. During the period that this Letter Agreement is in effect, The Regents will not license Regents' Patent Rights and Regents' Property Rights to any other party other than the U.S. Government, and will otherwise not encumber Regents' Patent Rights and Regents' Property Rights in a manner inconsistent with the provisions of this Letter Agreement. The license agreement resulting from the negotiations will contain the following terms and conditions: GRANT: *** U.C. AGREEMENT CONTROL NUMBER 96-30-0558 **CONFIDENTIAL TREATMENT REQUIRED 27 *** License Issue Fee: Aurora will pay to The Regents a license issue fee of [***] payable according to the following schedule: [***] [***] [***] [***] Such amounts paid to The Regents will not be refundable, creditable, or reimbursable against any other fees, royalties, and reimbursements due The Regents. Milestone Payments: Aurora will pay to The Regents [***] and [***] from each third party with which it enters into a corporate alliance for screening services utilizing Regents' Patent Rights and Regents' Property Rights. Aurora will not pay to The Regents any royalty on any amounts it receives for equity, research funding, debt financing, reimbursement of patent filing, prosecution, and maintenance expenses, or other expenses (as agreed upon by the parties). The amounts paid to The Regents under this section will not be creditable or reimbursable against any other royalties and fees due The Regents. Royalties: Aurora will pay to The Regents the following royalties: A. A royalty of [***] by Aurora or its sublicensees of each product identified with the use of the technology covered by Regents' Patent Rights and Regents' Property Rights, and a royalty of [***] of each such product; provided, however, that *** [***] as specified immediately above, then the royalty due to The Regents will be [***]. In the event Aurora is unable to negotiate a royalty based on the net sales of a product identified with the use of the technology covered by Regents' Patent Rights and Regents' Property Rights, then in no case will Aurora be entitled to take, in lieu of royalties on net sales of identified products, consideration in any form for equity in Aurora above fair market value, research funding for screening to identify products in excess of fully *** CONFIDENTIAL TREATMENT REQUESTED 2 28 burdened direct and indirect costs therefore, or reimbursement of patent filing, prosecution, and maintenance expenses, or other expenses (as agreed upon by the parties.) B. A royalty of *** and its sublicensees of a research reagent and any other product covered by Regents' Patent Rights and Regents' Property Rights. Aurora will be entitled to reduce the royalty due The Regents on the sale of such products if Aurora must license Regents' Patent Rights, Regents' Property Rights, and intellectual property rights in which The Regents has no ownership interest from a third party. In such event, *** Aurora may *** provided, however, that *** . Aurora will not be entitled to apply the royalty reduction specified in Paragraph B of this section to royalties due The Regents under Paragraph A of this section or any other sections of the Letter Agreement. Minimum Annual Royalties: Beginning *** of the license agreement, Aurora will pay to The Regents ***. The *** will be paid to The Regents whether or not a product covered by the license agreement is available for sale in any country on that date. Such amount will be credited against earned royalties due The Regents. Patent Prosecution Reimbursement: Aurora will reimburse The Regents for all legal costs associated with obtaining U.S. and foreign patent protection comprising The Regents' Patent Rights. Research Reagents: The Parties have also agreed to the following: A. Aurora will make available, or have made available, the research reagents listed on Exhibit A which comprise biological materials covered by Regents' Property Rights to nonprofit/academic institutions solely for this internal, noncommercial research use within one year following the effective date of the license agreement or six months after *** CONFIDENTIAL TREATMENT REQUESTED 3 29 publication of the first paper describing the use of the reagent, whichever is later. B. The Regents will initially supply Aurora with aliquots of chemical and biological materials and reagents covered by the Regents' Patent Rights and Regents' Property Rights currently held in Dr. Tsien's laboratory at UCSD, in sufficient amounts (to be agreed upon by the parties), to facilitate the development and commercialization by Aurora of products and services contemplated under the license agreement. In addition to the terms and conditions specified in this Letter Agreement, the license agreement will also contain other terms and conditions agreed upon by the parties that are normally found in exclusive license agreements executed by The Regents. Unless otherwise terminated by the parties hereto, the term of this Letter Agreement will be for a period commencing on February 6, 1996, and terminating on June 30, 1996, unless terminated by Aurora prior to that date. If Aurora and The Regents have not executed the licence agreement on or before June 30, 1996, The Regents will withdraw its offer to license Aurora under the terms and conditions specified in this Letter Agreement on that date without further obligation to Aurora. If you accept The Regents' offer under the terms and conditions stated herein, please execute this Letter Agreement, signifying your acceptance, below and return both fully-executed originals of this Letter Agreement to me. We will co-execute the Letter Agreement and return one fully-executed original to you. Agreed to by: AURORA BIOSCIENCES CORPORATION THE REGENTS OF THE UNIVERSITY OF CALIFORNIA By Timothy V. Rink By Candace Voelker --------------------------- --------------------------------- (Signature) (Signature) Name: Timothy V. Rink Name: Candace Voelker ------------------------- (Please Print) Title: President and CEO Title: Licensing Manager ------------------------ Office of Technology Transfer Date: 3/6/96 Date: 3/6/96 ------------------------- ----------------------------- 30 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. Exclusive License Agreement between The Regents of the University of California and Aurora Biosciences, Corp. for Fluorescent Assay Technologies U.C. Case Nos. 93-289, 95-110, 95-219, 96-044, 96-160, 96-161, 96-162, 96-191 31 Table of Contents
ARTICLE PAGE ------- ---- 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. License Issue Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. Royalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5. Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6. Progress and Royalty Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 7. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8. Life of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 9. Termination by The Regents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 10. Termination by Licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11. Supply of the Biological Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 12. Maintenance of the Biological Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 13. Disposition of the Biological Materials, Biological Products, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 14. Use of Names and Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 15. Limited Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 16. Patent Prosecution and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 17. Patent Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 18. Patent Infringement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 19. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 21. Assignability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 22. Late Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 23. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 24. Failure to Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 25. Governing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 26. Government Approval or Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 27. Export Control Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 28. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 29. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 30. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
32 U.C. Case Nos. 93-289, 95-110, 95-219, 96-044, 96-160, 96-161, 96-162, and 96-191 Exclusive License Agreement for Fluorescent Assay Technologies This license agreement ("Agreement") is effective this ______ day of ____________, 1996, (the Effective Date") by and between The Regents of the University of California ("The Regents"), a California corporation, having its statewide administrative offices at 300 Lakeside Drive, 22nd Floor, Oakland, California 94612-3550 and Aurora Biosciences Corporation ("Licensee"), a Delaware corporation, having a principal place of business at 11149 North Torrey Pines Road, La Jolla, CA 92037. Recitals Whereas, certain inventions, generally characterized as fluorescent assay technologies, including DNA encoding a green fluorescent protein and fluorogenic substrates for Beta-lactamase ("Inventions"), useful for cell screening, were made at the University of California, San Diego ("UCSD") by Dr. Roger Tsien, et al., and are claimed in Patent Rights or within the Property Rights as defined below; Whereas, Licensee entered into secrecy agreements ("Secrecy Agreements") with The Regents covering UC Case Nos. *** on August 10, 1994; *** on January 1, 1995; *** on December 8 1995; and *** on February 22, 1996 for the purpose of evaluating the Invention; ***CONFIDENTIAL TREATMENT REQUESTED 1 33 Whereas, Licensee entered into an option agreement ("Option Agreement") with The Regents on June 1, 1995 and ending on December 1, 1995 in order to evaluate its commercial interest in the Invention; Whereas, Licensee entered into a letter agreement with The Regents on March 6, 1996 covering certain negotiated provisions that are contained in this Agreement and a letter agreement with The Regents on April 26, 1996, with respect to the Biological Materials ("Letter Agreements"); Whereas, the Invention was made under research funding provided in part by the Department of Health and Human Services (DHHS) and in part by the Howard Hughes Medical Institute (HHMI), and as a consequence, this Agreement is subject to overriding obligations to the federal government and to HHMI; Whereas, under 35 USC Section 200-212, The Regents may elect to retain title to any invention (including the Invention) made by it under U.S. Government funding; Whereas, if The Regents elects to retain title to the Invention, then the law requires that The Regents grant to the U.S. Government a nontransferable, paid-up, nonexclusive, irrevocable license to use the Invention by or on behalf of the U.S. Government throughout the world; Whereas, The Regents elected to retain title to the Invention covered by UC Case Nos. *** on November 19, 1993; *** on February 5, 1996; *** on October 25, 1995; and *** and *** on January 8, 1996, and granted the required licenses to the U.S. Government; Whereas, The Regents has acquired the right to grant this license from the Howard Hughes Medical Institute (HHMI) under the terms of the interinstitutional agreement ("Interinstitutional Agreement"), having UC Control No. 86-18-0017; *** CONFIDENTIAL TREATMENT REQUESTED 2 34 Whereas, The Regents is required under the terms of Interinstitutional Agreement to grant to the HHMI a paid-up, non-exclusive, irrevocable license to use the Invention for its non-commercial purposes, but with no right to sublicense; Whereas, the Licensee is a "small entity" as defined in 37 CFR Section 1.9 and a "small-business concern" defined in 15 U.S.C. Section 632; Whereas, it is the intent of the parties to this Agreement to create a bailment (as provided for in Sections 2.2, 2.3 and 2.4 herein), among other things, for the Biological Materials as defined below subject to Licensee's rights as set forth herein; Whereas, both parties recognize that royalties due under this Agreement will be paid on pending patent applications and issued patents; Whereas, Licensee requested certain rights from The Regents to commercialize the Invention; and Whereas, The Regents responded to the request of Licensee by granting the following rights to Licensee so that the products and other benefits derived from the Invention can be enjoyed by the general public. - - oo 0 oo - - The parties agree as follows: 1. Definitions As used in this Agreement, the following terms will have the meaning set forth below: 3 35 1.1 "Patent Rights" means all U.S. patents and patent applications and foreign patents and patent applications assigned to The Regents, and in the case of foreign patents and patent applications, those requested under Section 16.4 herein, including any reissues, extensions, substitutions, continuations, divisions, and continuation-in-part applications (only to the extent, however, 1) that such continuation-in-part applications are covered in Section 1.1.9 below; or 2) that claims in the continuation-in-part applications are entitled to the priority filing date of one or more of the following patent applications listed in Sections 1.1.1 through 1.1.8 below) based on and including any subject matter claimed in or covered by the following: 1.1.1. Pending U.S. Patent Application Serial No. ***, entitled *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.2. Pending U.S. Patent Application Serial No. *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.3. Pending U.S. Patent Application Serial No. *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***. 1.1.4. Pending PCT Application Serial No. ***, filed *** by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.5. Pending U.S. Patent Application Serial No. *** filed ***, by Dr. Roger Tsien, et al. and assigned to The Regents ***; 1.1.6. Any U.S. Patent Application based on subject matter described in UC Case Number *** *** CONFIDENTIAL TREATMENT REQUESTED 4 36 *** disclosed by Dr. Roger Tsien, et al. and assigned to The Regents; and 1.1.7. Any U.S. Patent Application based on subject matter described in *** disclosed by Dr. Roger Tsien, et al. and assigned to The Regents; and 1.1.8. Any U.S. Patent Application based on subject matter described in *************************************** *********************************," disclosed by Dr. Roger Tsien, et al. and assigned to The Regents. 1.1.9 Any continuation-in-part applications that are filed by *** where such continuation-in-part applications disclosed Inventions at UCSD and name Roger Tsien or an employee of The Regents in Roger Tsien's laboratory at UCSD as an inventor, and are based on one or more of the patent applications described in Sections 1.1.1 through 1.1.8 immediately above. 1.2. "Biological Materials" means *** 1.3. "Biological Product" means any product containing: (a) a plasmid, a protein structure, a cDNA clone, a promoter, a gene or a chimeric gene, antibodies, or fragments thereof and their sequences derived from or containing the Biological Materials; (b) any protein structure produced or encoded by the Biological Materials; or (c) a compound (substantially similar or identical to a compound in (a) or (b) above), produced by chemical synthesis or by any other method which could not have been produced but for the use of the Biological Materials. Biological Products may either be Patent Products or Proprietary Products. 1.4. "Identified Product" means any product, compound, biological agent, or other material not claimed by the Patent Rights and not comprising a Biological Product, ***CONFIDENTIAL TREATMENT REQUESTED 5 37 but identified by Licensee or a sublicensee using the Biological Materials or Biological Products. 1.5. "Patent Products" means: 1.5.1. any kit, composition of matter, material, product, or Biological Product; 1.5.2. any kit, composition of matter, material, product, or Biological Product to be used in a manner requiring the performance of the Patent Method; or 1.5.3. any kit, composition of matter, material, product, or Biological Product produced by the Patent Method; the extent that the manufacture, use, or sale of such kit, composition of matter, material, product, or Biological Product, in a particular country, would be covered by or infringe, but for the license granted to Licensee pursuant to this Agreement, an unexpired claim of a patent or pending claim of a patent application were it issued as a claim in a patent under Patent Rights in that country in which such patent has issued or application is pending. 1.6. "Patent Method" means any process or method covered by the claims of a patent application or patent within Patent Rights or the use or practice of which would constitute in a particular country, but for the license granted to Licensee pursuant to this Agreement, an infringement of an unexpired claim of a patent or pending claim of a patent application were it issued as a claim in a patent within Patent Rights in that country in which the Patent Method is used or practiced. 1.7. "Proprietary Products" means any kit, composition of matter, material, or product containing a Biological Product, the manufacture, use, or sale of which in a particular country is not within an unexpired, valid claim of a patent or a pending claim of a patent application under Patent Rights in such country. 1.8. "Products" means Patent Products, Identified Product, Proprietary Products, and Services. 6 38 1.9. "Property Rights" means all personal proprietary rights of The Regents covering the tangible personal property in the Biological Materials. In no case, however, will Property Rights include Patent Rights. 1.10. "Research Reagent" means the *** . A Research Reagent may be a Patent Product or a Proprietary Product. 1.11. "Net Sales" means the *** . Where Licensee distributes Products to an Affiliate, a Joint Venture, or a sublicensee for end use by such Affiliate, Joint Venture, or sublicensee, then such distribution will be considered a sale at list price normally charged to independent third parties, and The Regents will be entitled to collect a royalty on such sale in accordance with Article 4. (Royalties). 1.12. "Services" means services provided by Licensee or its sublicensees to its customers when such services require the use of the Patent Rights or Property Rights. 1.13. "Service Revenues" means revenues paid to Licensee or its sublicensees for Services. ***CONFIDENTIAL TREATMENT REQUESTED 7 39 1.14. "Affiliate(s)" of Licensee means any entity which, directly or indirectly, controls Licensee, is controlled by Licensee, or is under common control with Licensee ("control" for these purposes being defined as the actual, present capacity to elect a majority of the directors of such affiliate, or if not, the capacity to elect the members that control forty percent of the outstanding stock or other voting rights entitled to elect directors) provided, however, that in any country where the local law will not permit foreign equity participation of a majority, then an "Affiliate" will include any company in which Licensee will own or control, directly or indirectly, the maximum percentage of such outstanding stock or voting rights permitted by local law. Each reference to Licensee herein will be meant to include its Affiliates. 1.15. "Joint Venture" means any separate entity established pursuant to an agreement between a third party and Licensee to constitute a vehicle for a joint venture, in which the separate entity manufactures, uses, purchases, sells, or acquires Products from Licensee. Each reference to Licensee herein will be meant to include its Joint Venture(s). 2. Grant 2.1. Subject to the limitations set forth in this Agreement and subject to the license granted to the U.S. Government and to HHMI as set forth in the Recitals above, where Patent Rights exists, The Regents hereby *** . 2.2. Subject to the limitations set forth in this Agreement and subject to the licenses granted to the U.S. Government and to HHMI as set forth in the Recitals above, where The Regents may lawfully grant such a license, The Regents hereby ***CONFIDENTIAL TREATMENT REQUESTED 8 40 grants to Licensee ***. 2.3. Licensee acknowledges that title to the tangible material comprising the Biological Materials is owned by The Regents and is not transferred to Licensee under this Agreement, except that Licensee may transfer title of such Biological Materials as are sold as Biological Products or Research Reagents under the terms of this Agreement. 2.4. The licenses granted under Property Rights set forth in Section 2.2 above expressly limit the rights granted to Licensee to those licenses expressly stated in this Agreement and for no other purpose. 2.5. The licenses granted hereunder will be subject to the overriding obligations to the U.S. Government including those set forth in 35 U.S.C. Section 200-212 and applicable governmental implementing regulations. 2.6. The manufacture of Products and the practice of the Patent Method will be subject to applicable government importation laws and regulations. 2.7. The Regents also grants to Licensee the right to issue sublicenses under the rights granted in Sections 2.1 and 2.2 above to third parties, provided Licensee retains current exclusive rights thereto under this Agreement. To the extent applicable, such sublicenses will include all of the rights of and obligations due to The Regents (and, if applicable, the United States Government) that are contained in this Agreement including payment of fees and royalties at the rates provided for in Section 3.2 and Article 4. (Royalties). 2.8. Licensee will notify The Regents of each sublicense granted hereunder and provide The Regents with a copy of each sublicense, which shall be treated as ***CONFIDENTIAL TREATMENT REQUESTED 9 41 Proprietary Information of Licensee as defined in Article 29. (Confidentiality). Licensee will collect and pay all such fees and royalties due The Regents from sublicensees as set forth in Sections 3.2 and 4.1 below (and guarantee all such payments due from sublicensees). Licensee will require sublicensees to provide it with progress and royalty reports in accordance with the provisions herein, and Licensee will collect and deliver to The Regents all such reports due from sublicensees. 2.9. Upon termination of this Agreement for any reason, all sublicenses granted by Licensee in accordance with this Agreement will remain subject to the terms of such sublicenses in effect, and shall be assigned to and assumed by The Regents except that sublicenses which: (i) are in a state of breach as yet uncured by the sublicensee; or (ii) sublicenses which conflict with state, or federal law, or the previously established written policy of The Regents, shall not be assigned to and assumed by The Regents. The Regents will not be bound by any duties and obligations contained in the sublicenses that extend beyond the duties and obligations assumed by The Regents in this Agreement and shall have no right to receive any payment from such sublicensees except the amounts due under this Agreement for the activities of such sublicensees. 2.10. The Regents may, at its own discretion, disclose to Licensee certain chemical and biological materials relating to the Patent Rights and Property Rights that are developed in Dr. Roger Tsien's laboratory at UCSD. The Regents hereby grants to Licensee the right to elect to include under this Agreement any or all of such chemicals and biological materials. 2.11. In accordance with Section 2.10, Licensee will notify The Regents in writing within 60 days of the disclosure by The Regents of any such further chemicals and/or biological materials which Licensee elects to be included under this Agreement, and such chemicals and biological materials shall be Biological Materials for all purposes of this Agreement. 10 42 2.12. Because this Agreement grants the exclusive right to use or sell the Products in the United States, Licensee acknowledges that any component of a Product which embodies a patented Invention or is produced through the use thereof for sale in the United States will be manufactured substantially in the United States to the extent required by 35 U.S.C. Section 204. 2.13. Nothing in this Agreement will be deemed to limit the right of The Regents to publish any and all technical data resulting from any research performed by The Regents relating to the Invention, Biological Materials, Biological Products, and Patent Methods and to make and use the Invention, Biological Materials, Biological Products, and Patent Methods, and associated technology owned by The Regents solely for educational and research purposes. 3. License Issue Fee 3.1. As partial consideration for all the rights and licenses granted to Licensee, Licensee will pay to The Regents a license issue fee of ***, payable according to the following schedule: 3.1.1. *** will be sent by Licensee to The Regents together with two copies of this Agreement executed by Licensee; 3.1.2. *** will be sent by Licensee to The Regents on or before ***; 3.1.3. *** will be sent by Licensee to The Regents on or before ***; 3.1.4. *** will be sent by Licensee to The Regents on or before ***; ***CONFIDENTIAL TREATMENT REQUESTED 11 43 3.1.5. *** will be sent by Licensee to The Regents on or before ***; 3.1.6. *** will be sent by Licensee to The Regents on or before ***; 3.1.7. *** will be sent by Licensee to The Regents on or before ***; and 3.1.8. *** will be sent by Licensee to The Regents on or before ***. 3.2. Licensee will also pay to The Regents fees equal to *** of Service Revenues and *** of the Service Revenues *** received by Licensee from each third party with which it enters into a corporate alliance for screening services using Patent Rights and Property Rights. Notwithstanding the above, Licensee shall have no obligation to pay to The Regents any amounts it receives from a third party for the purchase of equity, research funding, debt financing, reimbursement of patent filing, prosecution, and/or maintenance expenses or other expenses. 3.3. *** 4. Royalties 4.1. As further consideration for all the rights and licenses granted to Licensee, Licensee will also pay to The Regents an earned royalty based on Net Sales according to the following: 4.1.1. (a) A royalty rate of *** of the Net Sales paid to Licensee and its sublicensees with respect to each Identified Product *** ***CONFIDENTIAL TREATMENT REQUESTED 12 44 *** for each Identified Product, and a royalty rate of *** of the Net Sales paid to Licensee and its sublicensees of each Identified Product *** for each such Identified Product. (b) Notwithstanding Section 4.1.1(a) above, if Licensee and a particular sublicensee are unable to agree on a royalty *** of Identified Products by such sublicensee *** and a royalty rate *** of Identified Products for ***, then the royalty due to The Regents *** will be equal to ***, if any, agreed to between Licensee and such sublicensee *** of such Identified Product by such sublicensee. (c) In the event Licensee is unable to negotiate with a particular sublicensee any royalty on the Net Sales of Identified Products, then in such case Licensee will not be entitled to take, in lieu of royalties on Net Sales by such sublicensee of Identified Products, consideration in any form for: (i) equity in Licensee above fair market value; (ii) research funding for screening to identify Identified Products in excess of fully burdened direct and indirect costs therefore; or (iii) reimbursement of patent filing, prosecution, and maintenance expenses; and (d) For the avoidance of doubt, it is understood and agreed that, except as provided in Section 4.1.1(a) and (b) above, The Regents shall not be entitled to any royalty on Net Sales of Identified Products, and if Section 4.1.1(c) applies to a particular sublicense, the consideration received by Licensee from such sublicensee will be in the form of Service Revenues, and the only amounts due The Regents under this Agreement with respect thereto shall be the amounts set forth in Section 3.2, and not a royalty based on the Net Sales of Identified Products. 4.1.2. (a) A royalty rate *** by Licensee and its sublicensees of Research Reagents and any other Product that is not an Identified Product or Services. Licensee will be entitled to reduce the royalty due The Regents ***CONFIDENTIAL TREATMENT REQUESTED 13 45 on the Net Sales of such Research Reagents and other Products if Licensee must pay a royalty to The Regents on Patent Rights and Property Rights and a third party with respect to intellectual property rights in which The Regents has no ownership interest. In such event, if the combined royalties due The Regents and the third party(s) ***, Licensee may reduce the royalty due The Regents ***, provided, however, that in no event will the royalty rate due The Regents on the Research Reagent or such Product be ***. (b) For the avoidance of doubt, it is understood and agreed that Licensee shall have no obligation to sell or have sold any Research Reagents except those listed on Appendix E hereto. 4.2. Licensee will not be entitled to apply the royalty reduction specified in Section 4.1.2(a) of this section to royalties due The Regents under Section 4.1.1 of this Article 4. (Royalties) or any other provisions of this Agreement except the provisions set forth in Section 4.1.2(a). 4.3. Sections 1.1, 1.5, and 1.6 define Patent Rights, Patent Products, and Patent Methods so that royalties will be payable on Patent Products and Patent Methods covered by both pending patent applications and issued patents. Earned royalties will accrue on Patent Products on a Product-by-Product basis in each country for the duration of Patent Rights in that country and will be payable to The Regents when Patent Products are invoiced, or if not invoiced, when delivered to a third party or to itself, an Affiliate, Joint Venture, or sublicensee in the case where such delivery of the Patent Products to Licensee, an Affiliate, Joint Venture, or sublicensee is intended for end use. If no Patent Rights exist in a country, earned royalties will accrue on a Proprietary Product, on a Product-by-Product basis, until the *** CONFIDENTIAL TREATMENT REQUESTED 14 46 tenth anniversary of the first commercial sale of a particular Proprietary Product in such country. Earned royalties will accrue on Identified Products, on a Product-by-Product basis, until the tenth anniversary of the first commercial sale of a particular Identified Product in such country. 4.4. Royalties accruing to The Regents will be paid to The Regents ***: # *** # *** # *** # *** Each such payment will be for royalties which accrued ***. 4.5. Beginning ***, and in each succeeding calendar year ***, Licensee will pay *** and thereafter for the life of this Agreement. This *** will be paid to The Regents by *** of each year and will be credited against the earned royalty due and owing for the calendar year in which the minimum payment was made. 4.6. All monies due The Regents will be payable in United States funds collectible at par in San Francisco, California. When Products are sold for monies other than United States dollars, the earned royalties will first be determined in the foreign currency of the country in which such Products were sold and then converted into equivalent United States funds. The exchange rate will be that rate quoted in the Wall Street Journal on the last business day of the reporting period. 4.7. *** Notwithstanding the foregoing, if the Regents *** CONFIDENTIAL TREATMENT REQUESTED 15 47 is required to pay taxes on its royalties under the laws of any country, then Licensee will pay such amounts to the proper authorities, withhold such amounts from royalties paid to The Regents, and provide The Regents with all documents and assistance reasonably necessary to enable The Regents to recover all or part of such amounts pursuant to any double taxation treaty or otherwise. Licensee will also be responsible for all bank transfer charges. 4.8. Notwithstanding the provisions of Article 28. (Force Majeure), if at any time legal restrictions prevent prompt remittance of part or all royalties owed to The Regents by Licensee with respect to any country where a Product is sold or distributed, Licensee will convert the amount owed to The Regents into United States funds and will pay The Regents directly from another source of funds for the amount impounded. 4.9. In the event that any patent or any claim thereof included within the Patent Rights is held invalid or unenforceable in a final decision by a court of competent jurisdiction and last resort and from which no appeal has or can be taken, all obligation to pay royalties based on such patent or claim or any claim patentably indistinct therefrom will cease as of the date of such final decision. Licensee will not, however, be relieved from paying any royalties that accrued before such decision or that are based on another patent or claim that has not expired or that is not involved in such decision or that are based on Property Rights. 4.10. No royalties will be collected or paid hereunder to The Regents on Products sold to the account of the U.S. Government. Licensee and its sublicensee will reduce the amount charged for Products distributed to the United States Government by an amount equal to the royalty for such Products otherwise due The Regents as provided herein. 4.11. *** *** CONFIDENTIAL TREATMENT REQUESTED 16 48 ************************. No royalty shall be payable under Section 4.1 above with respect to sales of Products among Licensee and its sublicensees where such sales are not for end use by such Licensee or its sublicensees, nor shall a royalty be payable under this Article 4. (Royalties) with respect to Products distributed for use in research and/or development in clinical trials, or as promotional samples. 5. Due Diligence 5.1. Licensee, upon execution of this Agreement, will diligently proceed to develop and provide Services, and to develop, manufacture, and sell Research Reagents and will earnestly and diligently market the same after execution of this Agreement and in quantities sufficient to meet the market demands therefor. 5.2. Licensee will be entitled to exercise prudent and reasonable business judgment in the manner in which it meets its due diligence obligations hereunder. In no case, however, will Licensee be relieved of its obligations to meet the due diligence provisions of this Article 5. (Due Diligence). 5.3. Licensee will obtain all necessary governmental approvals in each country in which Licensee elects to manufacture or commercialize Research Reagents and provide Services. 5.4. If Licensee is unable to perform any of the following: 5.4.1. *** 5.4.2. *** 5.4.3. *** *** CONFIDENTIAL TREATMENT REQUESTED 17 49 then The Regents will have the right and option, subject to Section 5.7 below, to terminate this Agreement or reduce the exclusive licenses granted to Licensee to non-exclusive licenses in accordance with Section 5.6 hereof. The exercise of this right and option by The Regents will supersede the rights granted in Article 2 (Grant). 5.5. In addition to the provisions of Section 5.4 above, Licensee shall also market each of the Research Reagents listed on Appendix E attached hereto to nonprofit/academic institutions solely for their internal, noncommercial research use either within: (i) two years following the Effective Date of this Agreement; or (ii) six months following the publication of the first paper describing the use of the Research Reagent, whichever is earlier. This Section 5.5 may be satisified by Licensee or its sublicenseees. 5.6. If Licensee fails to market a particular Research Reagent in accordance with Section 5.5 above, then The Regents will have the right and option, subject to Section 5.7 below, to terminate all rights granted to Licensee under this Agreement with respect to that particular Research Reagent. This termination includes Licensee's right to use the particular Research Reagent for its own internal use. The Regents will thereafter be free to dispose of the particular Research Reagent as it wishes. The exercise of this right and option by The Regents will supersede the rights granted in Article 2 (Grant). 5.7. To exercise either the right to terminate this Agreement in whole or with respect to any portion of Patent Rights or Property Rights, or reduce the exclusive licenses granted to Licensee to non-exclusive licenses for lack of diligence required in this Article 5. (Due Diligence), The Regents will give Licensee written notice of the deficiency stating its intent to terminate this Agreement in whole or with respect to any portion of Patent Rights or Property Rights, or to reduce the licenses to non-exclusive licenses. Licensee thereafter shall have 60 days to cure the deficiency. If The Regents 18 50 has not received written tangible evidence satisfactory to The Regents that the deficiency has been cured by the end of the 60-day period, then The Regents may, at its option, terminate this Agreement in whole or with respect to any portion of Patent Rights or Property Rights, or reduce the exclusive licenses granted to Licensee to non-exclusive licenses by giving written notice to Licensee. These notices will be subject to Article 20. (Notices). 6. Progress and Royalty Reports 6.1. Beginning August 31, 1996, and semi-annually thereafter, Licensee will submit to The Regents a progress report covering activities by Licensee and its sublicensees related to the development and testing of all their Products and the obtaining of the governmental approvals necessary for marketing them, but Licensee will not be required to report on Products for which a royalty is not due The Regents. These progress reports will be provided to The Regents to cover the progress of the research and development of the Products until the first commercial sale of Products in the United States. 6.2. The progress reports submitted under Section 6.1 will include, but not be limited to, the following topics so that The Regents may be able to determine the progress of the development of Products on which a royalty is due The Regents and may also be able to determine whether or not Licensee has met its diligence obligations set forth in Article 5. (Due Diligence) above: # summary of work in progress in anticipation of providing Services and Research Reagents # summary of work completed in anticipation of providing Services and Research Reagents # summary of Services completed # current schedule of anticipated events or milestones specified in Section 5.4 and 5.5 19 51 # anticipated market introduction date of Products on which a royalty is due The Regents # sublicenses granted, if any 6.3. Licensee also will report to The Regents in its immediately subsequent progress and royalty report the date of first commercial sale of each Product for which a royalty is due to The Regents in each country. 6.4. After the first commercial sale of a Product on which a royalty is due The Regents, Licensee will provide The Regents with quarterly royalty reports to The Regents on or before each February 28, May 31, August 31, and November 30 of each year. Each such royalty report will cover the most recently completed calendar quarter of Licensee (October through December, January through March, April through June, and July through September) and will show: 6.4.1. the gross sales and Net Sales of such Products sold by Licensee and reported to Licensee as sold by its sublicensees during the most recently completed calendar quarter; 6.4.2. the number of such Products sold or distributed by Licensee and reported to Licensee as sold or distributed by its sublicensees; 6.4.3. the royalties, in U.S. dollars, payable hereunder with respect to Net Sales; and 6.4.4. the exchange rates used, if any. 6.5. If no sales of Products for which a royalty is due to The Regents have been made during any reporting period after the first commercial sale of such Product, then a statement to this effect is required. 7. Books and Records 7.1. Licensee will keep books and records accurately showing all Products manufactured, used, and/or sold with respect to which Licensee owes royalties to The Regents under the terms of this Agreement. Such books and records will be preserved 20 52 for at least five years after the date of the royalty payment to which they pertain and will be open to inspection by representatives or agents of The Regents during normal business hours at agreed upon times to determine the accuracy of the books and records and to determine compliance by Licensee with the terms of this Agreement. Such independent certified public accountant shall be bound to hold all information in confidence except as necessary to communicate Licensee's non-compliance with this Agreement to The Regents. The only purpose of any inspection and audit pursuant to this Paragraph 7.1 shall be to verify Licensee's royalty statement or payment under this Agreement and to determine Licensee's compliance with the other provisions thereunder. 7.2. The fees and expenses of representatives of The Regents performing such an examination will be borne by The Regents. However, if an error in royalties of *** of the total royalties due for any year is discovered, then the fees and expenses of these representatives will be borne by Licensee. 8. Life of the Agreement 8.1. Unless otherwise terminated by operation of law or by acts of the parties in accordance with the terms of this Agreement, this Agreement will be in force from the Effective Date and will remain in effect for the life of the last-to-expire patent licensed under this Agreement, or until the last patent application licensed under this Agreement is abandoned, or in the event no patent issues, for a period of fifteen (15) years from market introduction for the last to be introduced Proprietary Product in the United States. 8.2. In the event this Agreement remains in effect for the entire term specified in Paragraph 8.1 above, and is not otherwise terminated under the provisions of Articles 5. (Due Diligence), 9. (Termination by The Regents), or 10. (Termination by Licensee), Licensee is hereby granted an option for renewal of this Agreement for a period of *** from the date of its termination. Said option for renewal shall be *** CONFIDENTIAL TREATMENT REQUESTED 21 53 automatically exercised provided that the Licensee has not notified The Regents to the contrary prior to the option renewal date. The renewal licenses will be for the same terms and conditions as set forth in this Agreement, *** . 8.3. Any termination of this Agreement will not affect the rights and obligations set forth in the following Articles: Article 7 Books and Records Article 13 Disposition of Products on Hand Upon Termination Article 14 Use of Names and Trademarks Article 19 Indemnification Article 22 Late Payments Article 24 Failure to Perform Article 29 Confidentiality 8.4. Termination of this Agreement for any reason shall not release any party hereto from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination, or preclude either party from pursuing any rights and remedies it may have hereunder or at law or in equity which accrued or are based upon any event occurring prior to such termination. 9. Termination by The Regents 9.1. If Licensee should violate or fail to perform any term or covenant of this Agreement, then The Regents may give written notice of such default ("Notice of Default") to Licensee. If Licensee should fail to repair such default within 60 days after the date of such notice takes effect, The Regents will have the right to terminate this Agreement and the licenses herein by a second written notice ("Notice of Termination") to Licensee. If a Notice of Termination is sent to Licensee, this Agreement will *** CONFIDENTIAL TREATMENT REQUESTED 22 54 automatically terminate on the date such notice takes effect. Such termination will not relieve Licensee of its obligation to pay any royalty or license fees owing at the time of such termination and will not impair any accrued right of The Regents. These notices will be subject to Article 20. (Notices). 10. Termination by Licensee 10.1. Licensee will have the right at any time to terminate this Agreement in whole or as to any portion of Patent Rights or Property Rights by giving notice in writing to The Regents. Such Notice of Termination will be subject to Article 20. (Notices) and termination of this Agreement in whole or with respect to any portion of the Patent Rights or Property Rights will be effective 60 days after the effective date thereof. 10.2. Any termination pursuant to the above paragraph will not relieve Licensee of any obligation or liability accrued hereunder prior to such termination or rescind anything done by Licensee or any payments made to The Regents hereunder prior to the time such termination becomes effective, and such termination will not affect in any manner any rights of The Regents arising under this Agreement prior to such termination. 11. Supply of the Biological Materials and Biological Products 11.1. The Regents will initially supply Licensee with viable samples of the Biological Materials set forth in Appendix D within thirty (30) days of the Effective Date or as soon as reasonably practicable, and additional Biological Materials elected by Licensee pursuant to Section 2.11 promptly after Licensee's notice to The Regents pursuant to such Section. To the extent Licensee requires and requests additional samples from The Regents during the term hereof (due to failure of the initial supply of Biological Material(s)), and The Regents has such additional samples in its possession, 23 55 The Regents agrees to supply such additional samples. Licensee will pay the actual handling and shipping costs for any additional samples provided. 12. Maintenance of the Biological Materials 12.1. The Regents shall instruct Dr. Roger Tsien that if The Regents circulates any of the Biological Materials to third parties for noncommercial research purposes, it shall only do so under the terms and conditions set forth in the biological material transmission letter attached hereto as Appendix A. The Regents expressly reserves the right to transfer the Biological Materials to non-profit entities strictly for noncommercial research purposes in the manner set forth above. The Regents agrees that it will not otherwise transfer the Biological Materials. The Licensee acknowledges that The Regents' right to so transfer the Biological Materials could lead to the inadvertent loss or diminution of the proprietary commercial value of the Biological Materials. 13. Disposition of the Biological Materials, Biological Products, and Products on Hand Upon Termination 13.1. Upon termination of this Agreement prior to the expiration of its full term, the Licensee shall have the privilege of disposing all previously made or partially made Products, but no more, for a period of one hundred and twenty (120) days following the effective date of termination, provided, however, that the sale of such Products shall be subject to the terms of this Agreement including, but not limited to, the payment of royalties at the rate and at the time provided herein and the rendering of reports in connection therewith. 13.2. Upon termination of this Agreement for any reason, Licensee, at its sole discretion, shall destroy or transfer to The Regents any Biological Materials in its possession within thirty (30) days following the effective date of termination. Licensee 24 56 shall provide The Regents within sixty (60) days following said termination date with written notice that the Biological Materials have been destroyed. 14. Use of Names and Trademarks 14.1. Nothing contained in this Agreement will be construed as conferring any right to use in advertising, publicity, or other promotional activities any name, trade name, trademark, or other designation of either party hereto by the other (including contraction, abbreviation or simulation of any of the foregoing). Unless required by law, the use by Licensee of the name "The Regents of the University of California" or the name of any campus of the University of California for use in advertising, publicity, or other promotional activities is expressly prohibited. 14.2. It is understood that The Regents will be free to release to the inventors, HHMI, and senior administrative officials employed by The Regents the terms of this Agreement upon their request. If such release is made, The Regents will request that such terms will be kept in confidence in accordance with the provisions of Article 29. (Confidentiality) and not be disclosed to others. It is further understood that should a third party inquire whether a license to Patent Rights is available, The Regents may disclose the existence of this Agreement and the extent of the grant in Article 2. (Grant) to such third party, but will not disclose the name of Licensee, except where The Regents is required to release such information under either the California Public Records Act or other applicable law. 15. Limited Warranty 15.1. The Regents warrants to Licensee that it has the lawful right to grant these licenses and bailment. 15.2. This license and the associated Invention, Biological Materials, Products, and Patent Method are provided WITHOUT WARRANTY OF MERCHANTABILITY OR 25 57 FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. THE REGENTS MAKES NO REPRESENTATION OR WARRANTY THAT THE INVENTION, BIOLOGICAL MATERIALS, PRODUCTS, OR PATENT METHOD WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT. 15.3. IN NO EVENT WILL THE REGENTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM EXERCISE OF THIS LICENSE OR THE USE OF THE INVENTION, BIOLOGICAL MATERIALS, PRODUCTS, OR PATENT METHOD. 15.4. Nothing in this Agreement will be construed as: 15.4.1. a warranty or representation by The Regents as to the validity, enforceability, or scope of any Patent Rights or Property Rights; or 15.4.2. a warranty or representation that anything made, used, sold, or otherwise disposed of under any license granted in this Agreement is or will be free from infringement of patents of third parties; or 15.4.3. an obligation to bring or prosecute actions or suits against third parties for patent infringement except as provided in Article 18. (Patent Infringement); or 15.4.4. conferring by implication, estoppel, or otherwise any license or rights under any patents of The Regents other than Patent Rights as defined herein, regardless of whether such patents are dominant or subordinate to Patent Rights; or 15.4.5. an obligation to furnish any know-how not provided in Patent Rights and Property Rights. 16. Patent Prosecution and Maintenance 16.1. The Regents will diligently prosecute and maintain the United States and foreign patents comprising Patent Rights using counsel of its choice. The Regents will promptly provide Licensee with copies of all relevant documentation so that Licensee 26 58 may be currently and promptly informed and apprised of the continuing prosecution, and may comment upon such documentation sufficiently in advance of any initial deadline for filing a response, provided, however, that if Licensee has not commented upon such documentation prior to the initial deadline for filing a response with the relevant government patent office or The Regents must act to preserve Patent Rights, The Regents will be free to respond appropriately without consideration of comments by Licensee, if any. Both parties hereto will keep this documentation in confidence in accordance with the provisions of Article 29. (Confidentiality) herein. Counsel for The Regents will take instructions only from The Regents. 16.2. The Regents will use all reasonable efforts to amend any patent application to include claims requested by Licensee and required to protect the Products contemplated to be sold or Patent Method to be practiced under this Agreement. 16.3. The Regents and Licensee will cooperate in applying for an extension of the term of any patent included within Patent Rights, if appropriate, under the Drug Price Competition and Patent Term Restoration Act of 1984. Licensee will prepare all such documents, and The Regents will execute such documents and will take such additional action as Licensee may reasonably request in connection therewith. 16.4. The Regents will, at the request of Licensee, file, prosecute, and maintain patent applications and patents covered by Patent Rights in foreign countries if available. Licensee must notify The Regents within seven months of the filing of the corresponding United States application of its decision to request The Regents to file foreign counterpart patent applications. This notice concerning foreign filing must be in writing and must identify the countries desired. The absence of such a notice from Licensee to The 27 59 Regents within the seven-month period will be considered an election by Licensee not to request The Regents to secure foreign patent rights on behalf of Licensee; provided, however, that the absence of such notice from Licensee to The Regents within the seven-month period with respect to United States applications filed within eight months prior to the Effective Date of this Agreement will not be considered an election by licensee not to request The Regents not to secure foreign patent rights. In such event, Licensee must notify The Regents of its decision to request The Regents to file foreign counterpart patent applications within ninety (90) days of the conventional filing date of such applications. The Regents will have the right to file patent applications at its own expense in any country Licensee has not included in its list of desired countries, and such applications and resultant patents, if any, will not be included in the licenses granted under this Agreement. 16.5. All past, present and future costs of preparing, filing, prosecuting and maintaining all United States and foreign patent applications and all costs and fees relating to the preparation and filing of patents covered by Patent Rights in Section 1.1 will be borne by Licensee. This includes patent preparation and prosecution costs for this Invention incurred by The Regents prior to the execution of this Agreement. Such costs will be due upon execution of this Agreement and will be payable at the time that the license issue fee is payable. The costs of all interferences and oppositions will be considered prosecution expenses and also will be borne by Licensee. Licensee will reimburse The Regents for all costs and charges within 30 days following receipt of an itemized invoice from The Regents for same. 16.6. The obligation of Licensee to underwrite and to pay patent preparation, filing, prosecution, maintenance, and related costs will continue for costs incurred until three months after receipt by either party of a Notice of Termination with respect to a particular patent application or patent within the Patent Rights provided, however, that The Regents provides Licensee with written notification, at least three months prior to the effective date of the termination, that such costs are anticipated. Licensee will reimburse The Regents for all patent costs incurred during the term of the Agreement and for three months thereafter whether or not invoices for such costs are received during the three-month period after receipt of a Notice of Termination. Licensee may 28 60 with respect to any particular patent application or patent terminate its obligations with the patent application or patent in any or all designated countries upon three months written notice to The Regents. The Regents may continue prosecution and/or maintenance of such application(s) or patent(s) at its sole discretion and expense, provided, however, that Licensee will have no further right or licenses thereunder. 16.7. Licensee will notify The Regents of any change of its status as a small entity (as defined by the United States Patent and Trademark Office) and of the first sublicense granted to an entity that does not qualify as a small entity as defined therein. 16.8. The Regents acknowledges that Licensee will be conducting independent research and development activities with respect to the Biological Materials, Biological Products, and/or the Patent Rights, and recognizes that such independent research and development may result in patentable inventions and other intellectual property owned by Licensee. The Regents hereby consents to the filing of any patent applications, even if any Biological Materials or Biological Products are within the scope of one or more claims of any such patent application. 17. Patent Marking 17.1. Licensee will mark all Products made, used, or sold under the terms of this Agreement, or their containers, in accordance with the applicable patent marking laws. 18. Patent Infringement 18.1. In the event that Licensee, or The Regents' licensing associate responsible for administering this Agreement, or Resident Counsel of the Regents' Office of Technology Transfer learns of the substantial infringement of any patent licensed under this Agreement, to the extent contractually able to, it will call the attention to the other party hereto in writing and will provide reasonable evidence of 29 61 such infringement. Both parties to this Agreement acknowledge that during the period and in a jurisdiction where Licensee has exclusive rights under this Agreement, neither will notify a third party of the infringement of any of Patent Rights without first obtaining consent of the other party, which consent will not be unreasonably withheld. Both parties will use their best efforts in cooperation with each other to terminate such infringement without litigation. 18.2. Licensee may request that The Regents take legal action against the infringement of Patent Rights. Such request must be made in writing and must include reasonable evidence of such infringement and damages to Licensee. If the infringing activity has not been abated within 90 days following the effective date of such request, The Regents will have the right to elect to: 18.2.1. commence suit on its own account; or 18.2.2. refuse to participate in such suit. 18.3. The Regents will give notice of its election in writing to Licensee by the end of the 100th day after receiving notice of such request from Licensee. Licensee may thereafter bring suit for patent infringement if and only if The Regents elects not to commence suit and if the infringement occurred during the period and in a jurisdiction where Licensee had exclusive rights under this Agreement. However, in the event Licensee elects to bring suit in accordance with this paragraph, The Regents may thereafter join such suit at its own expense. 18.4. Such legal action as is decided upon will be at the expense of the party on account of whom suit is brought and all recoveries recovered thereby will belong to such party, provided, however, that legal action brought jointly by The Regents and Licensee and participated in by both will be at the joint expense of the parties and all recoveries will be allocated in the following order: *** *** CONFIDENTIAL TREATMENT REQUESTED 30 62 *** 18.5. Each party will cooperate with the other in litigation proceedings instituted hereunder but at the expense of the party on account of whom suit is brought. Such litigation will be controlled by the party bringing the suit, except that The Regents may be represented by counsel of its choice in any suit brought by Licensee. 19. Indemnification 19.1. Licensee will (and require its sublicensees to) indemnify, hold harmless, and defend The Regents and HHMI, their officers, employees, and agents; the sponsors of the research that led to the Invention; the inventors of any invention covered by patents or patent applications in Patent Rights (including the Products and Patent Method contemplated thereunder) and their employers against any and all claims, suits, losses, damage, costs, fees, and expenses resulting from or arising out of exercise of this license or any sublicense. This indemnification will include, but will not be limited to, any product liability. 19.2. Licensee, at its sole cost and expense, will insure its activities in connection with the work under this Agreement and obtain, keep in force, and maintain insurance as follows: (or an equivalent program of self insurance) Comprehensive or Commercial Form General Liability Insurance (contractual liability included) with limits as follows: # Each Occurrence $1,000,000 # Products/Completed Operations Aggregate $1,000,000 *** CONFIDENTIAL TREATMENT REQUESTED 31 63 # Personal and Advertising Injury $1,000,000 # General Aggregate (commercial form only) $1,000,000 19.3. As of and following the date of commencement of any clinical trial with respect to a Product marketed by Licensee, Licensee shall increase insurance coverage under Section 19.2 immediately above from $1,000,000 to an aggregate of $3,000,000. As of and following the date of commencement of any sales of such Products, Licensee shall increase insurance coverage under Section 19.2 to an aggregate of $5,000,000. It should be expressly understood, however, that the coverages and limits referred to under the above will not in any way limit the liability of Licensee. Licensee will furnish The Regents with certificates of insurance evidencing compliance with all requirements. Such certificates will: 19.3.1. Provide for 30 day advance written notice to The Regents of any modification; 19.3.2. Indicate that The Regents has been endorsed as an additional Insured under the coverages referred to under the above; and 19.3.3. Include a provision that the coverages will be primary and will not participate with nor will be excess over any valid and collectable insurance or program of self-insurance carried or maintained by The Regents. 19.4. The Regents will promptly notify Licensee in writing of any claim or suit brought against The Regents in respect of which The Regents intends to invoke the provisions of this Article 19. (Indemnification). Licensee will keep The Regents informed on a current basis of its defense of any claims pursuant to this Article 19. (Indemnification). It is understood that Licensee shall have the right to control the defense and settlement of any such claim or suit, except Licensee shall not enter into any settlement which (i) makes any admission of wrongdoing on the part of The Regents, or (ii) admits that any of the Patent Rights of The Regents are invalid, unenforceable, or not infringed without prior written consent of The Regents. 32 64 20. Notices 20.1. Any notice or payment required to be given to either party will be deemed to have been properly given and to be effective (a) on the date of delivery if delivered in person or (b) five days after mailing if mailed by first-class certified mail, postage paid, to the respective addresses given below, or to another address as it may designate by written notice given to the other party. In the case of Licensee: AURORA BIOSCIENCES, CORP. 11149 North Torrey Pines Road La Jolla, CA 92037 Attention: President (619) 452-5000 In the case of The Regents: THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 1320 Harbor Bay Parkway, Suite 150 Alameda, California 94502 Tel: (510) 748-6600 Fax: (510) 748-6639 Attention: Executive Director; Research Administration and Office of Technology Transfer Referring to: U.C. Case Nos. 93-289, 95-110, 95-219, 96-044, 96-160, 96-161, 96-162, and 96-191 21. Assignability 21.1. This Agreement is binding upon and will inure to the benefit of The Regents, its successors and assigns, but shall be personal to Licensee and assignable by Licensee only with the written consent of The Regents, which consent shall not be unreasonably withheld; provided, however, Licensee may assign this Agreement to an Affiliate or Joint Venture or in connection with the sale or transfer of substantially all the 33 65 assets of Licensee relating to the subject matter of this Agreement, without written consent of The Regents. 22. Late Payments 22.1. In the event royalty payments or fees or patent prosecution costs are not received by The Regents when due, Licensee will pay to The Regents interest charges at a rate of ten percent (10%) simple interest per annum. Such interest will be calculated from the date payment was due until actually received by The Regents. Acceptance by The Regents of any late payment interest from Licensee under this Section 22.1 will in no way affect the provision of Article 23. (Waiver) herein. 23. Waiver 23.1. 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 will be deemed a waiver as to any subsequent and/or similar breach or default. 24. Failure to Perform 24.1. In the event of a failure of performance due under the terms of this Agreement and if it becomes necessary for either party to undertake legal action against the other on account thereof, then the prevailing party will be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. 25. Governing Laws 25.1. THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, excluding any choice of law rules that would direct the application of the laws of another jurisdiction, 34 66 but the scope and validity of any patent or patent application will be governed by the applicable laws of the country of such patent or patent application. 26. Government Approval or Registration 26.1. If this Agreement or any associated transaction is required by the law of any nation to be either approved or registered with any governmental agency, Licensee will assume all legal obligations to do so. Licensee will notify The Regents if it becomes aware that this Agreement is subject to a United States or foreign government reporting or approval requirement. Licensee will make all necessary filings and pay all costs including fees, penalties, and all other out-of-pocket costs associated with such reporting or approval process. 27. Export Control Laws 27.1. Licensee will observe all applicable United States and foreign laws with respect to the transfer of Products and related technical data to foreign countries, including, without limitation, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. 28. Force Majeure 28.1. The parties to this Agreement will be excused from any performance required hereunder if such performance is rendered impossible or unfeasible due to any acts of God, catastrophes, or other major events beyond their reasonable control, including, without limitation, war, riot, and insurrection; laws, proclamations, edicts, ordinances, or regulations; strikes, lock-outs, or other serious labor disputes; and floods, fires, explosions, or other natural disasters. However, any party to this Agreement will have the right to terminate this Agreement upon 30 days' prior written notice if either party is unable to fulfill its obligations under this Agreement due to any of 35 67 the causes mentioned above and such inability continues for a period of one year. Notices will be subject to Article 20. (Notices). When such events have abated, the parties' respective obligations hereunder shall resume. 29. Confidentiality 29.1. Licensee and The Regents respectively will treat and maintain the proprietary business, patent prosecution, software, engineering drawings, process and technical information, and other proprietary information ("Proprietary Information") of the other party in confidence using at least the same degree of care as that party uses to protect its own proprietary information of a like nature for a period from the date of disclosure until five years after the date of termination of this Agreement. This confidentiality obligation will apply to the information defined as "Data" under the Secrecy Agreement, and such Data will be treated as Proprietary Information hereunder. 29.2. All Proprietary Information will be labeled or marked confidential or as otherwise similarly appropriate by the disclosing party, or if the Proprietary Information is orally disclosed, it will be reduced to writing or some other physically tangible form, marked and labeled as set forth above by the disclosing party, and delivered to the receiving party within 30 days after the oral disclosure as a record of the disclosure and the confidential nature thereof. Notwithstanding the foregoing, Licensee and The Regents may use and disclose Proprietary Information to its employees, agents, consultants, contractors, and, in the case of Licensee, its sublicensees, provided that any such parties are bound by a like duty of confidentiality. 29.3. Nothing contained herein will in any way restrict or impair the right of Licensee or The Regents to use, disclose, or otherwise deal with any Proprietary Information: 36 68 29.3.1. that recipient can demonstrate by written records was previously known to it; 29.3.2. that is now, or becomes in the future, public knowledge other than through acts or omissions of recipient; 29.3.3. that is lawfully obtained without restrictions by recipient from sources independent of the disclosing party; 29.3.4. that is required to be disclosed to a governmental entity or agency in connection with seeking any governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency; 29.3.5. that is furnished to a third party by the recipient with similar confidentiality restrictions imposed on such third party, as evidenced in writing; or 29.3.6. that The Regents is required to disclose pursuant to the California Public Records Act or other applicable law. 29.4. Upon termination of this Agreement, Licensee and The Regents will destroy or return to the disclosing party proprietary information received from the other in its possession within 15 days following the effective date of termination. Licensee and The Regents will provide each other, within 30 days following termination, with a written notice that Proprietary Information has been returned or destroyed. Each party may, however, retain one copy of Proprietary Information for archival purposes in nonworking files. 30. Miscellaneous 30.1. The headings of the several sections are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. 30.2. This Agreement will not be binding upon the parties until it has been signed below on behalf of each party, in which event, it will be effective as of the date recited on page one. 37 69 30.3. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed on behalf of each party. 30.4. This Agreement embodies the entire understanding of the parties and will supersede all previous communications, representations or understandings, either oral or written, between the parties relating to the subject matter hereof. The Letter Agreements, the Option Agreement, and the Secrecy Agreements specified in the Recitals of this Agreement are hereby terminated. 30.5. In case any of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provisions hereof, but this Agreement will be construed as if such invalid or illegal or unenforceable provisions had never been contained herein. The Regents and Licensee execute this Agreement in duplicate originals by their respective, authorized officers on the date indicated. Aurora Biosciences Corporation The Regents of the University of California By__________________________________ By_________________________________ (Signature) (Signature) Name________________________________ Name Terence A. Feuerborn (Please Print) Title_______________________________ Title Executive Director Research Administration and Office of Technology Transfer Date________________________________ Date_______________________________ 38 70 APPENDIX A - PAGE 1A University of California/San Diego (UCSD) Instructions for Standard Letter Transmitting Biological Materials to Universities and Non-Profit Institutions The attached letter is authorized for use by University of California, UCSD Principal Investigators and Administrators only with Scientists and other universities and nonprofit research institutions when transmitting cell lines, plasmids and the like for non-commercial research purposes. 1. Choose the appropriate form of university or nonprofit research institution in paragraph 2. 2. Choose whether or not to include the phrase "our cooperative" in paragraph 2. 3. Insert in paragraph 4 the amount of processing charge. If the material is to be shipped at no charge, insert the words "no charge". 4. Send the letter in duplicate to the other scientists. 5. Do not send biological materials until you receive the duplicate copy executed by both the scientist and the other institution. 6. Send a copy of the fully executed letter agreement to: Terence A. Feuerborn Executive Director Research Administration and Technology Transfer 1320 Harbor Bay Parkway Suite 150 Alameda, CA 94501 7. Any changes in the wording of this standard letter must be reviewed by the Executive Director of the Office of Technology Transfer before acceptance. Note: Do not use this letter for the exchange of living plants. A separate "Testing Agreement for the Plant Varieties" is available for that purpose. 39 71 APPENDIX A - PAGE 2A SAMPLE LETTER FOR USE PRIOR TO TRANSMISSION OF BIOLOGICAL MATERIALS TO INVESTIGATORS AT UNIVERSITIES OR NON-PROFIT RESEARCH INSTITUTIONS (date) IN DUPLICATE To:_____________________ This is to (acknowledge receipt of your letter) (confirm our telephone conversation) in which you requested certain research materials developed in this laboratory be sent to you for scientific research purposes. The materials concerned, which belong to The Regents of the University of California/San Diego Campus (UCSD) are _______________. While I cannot transfer ownership of these materials to you, I will be pleased to permit your use of these materials within your (university) (Non-Profit Research Institution) laboratory for (our cooperative) scientific research. However, before forwarding them to you, I require your agreement that the materials will be received by you only for use in (our cooperative work) (scientific research), that you will bear all risk to you or any others resulting from your use, and that you will not pass these materials, their progeny or derivatives, on to any other party or use them for commercial purposes without the express written consent of The Regents of the University of California. You understand that no other right or license to these materials, their progeny or derivatives, is granted or implied as a result of our transmission of these materials to you. These materials are to be used with caution and prudence in any experimental work, since all of their characteristics are not known. As you recognize, there is a processing cost to us involved in providing these materials to you. We will bill you for our processing costs, which will amount to $_________________. If you agree to accept these materials under the above conditions, please sign the enclosed duplicate copy of this letter, then have it signed by an authorized representative of your institution, and return it to me. Upon receipt of that confirmation I will forward the material(s) to you. 40 72 APPENDIX A - PAGE 3A (Note: other paragraphs discussing the relevant literature, the nature of the work, hazards relating to materials to be sent etc. may be appropriate. These will vary depending on the individual circumstances and the relationship between the two parties previously established. Be sure to retain a signed copy when received and send a photocopy of the completed agreement to the University of California Patent Administrator, Office of Technology Transfer, Systemwide Administration, 1320 Harbor Bay Parkway, Suite 150, Alameda, CA 94502) Sincerely yours, ACCEPTED: RESEARCH INVESTIGATOR ______________________ Printed Name ______________________ (Signature) ______________________ Date RESEARCH UNIVERSITY OR NON-PROFIT INSTITUTION ______________________ Printed Name _______________________ (Signature) _______________________ Date 41 73 APPENDIX B - PAGE 1B The INVENTORS listed below understand and agree to abide by the terms and conditions of Article 12 (MAINTENANCE OF THE BIOLOGICAL MATERIALS) of the Exclusive License Agreement between The Regents of the University of California and Aurora Biosciences, Corp. effective ______________________, 1996, and to instruct all relevant personnel working within their laboratory to act accordingly. Said paragraph reads, in part, as follows: "12.1 The Regents shall instruct Roger Tsien that if The Regents circulates any of the Biological Materials to third parties for noncommercial research purposes, it shall only do so under the terms and conditions set forth in the biological material transmission letter attached hereto as Appendix A. The Regents expressly reserves the right to transfer the Biological Materials to non-profit entities strictly for noncommercial research purposes in the manner set forth above. The Regents agrees that it will not otherwise transfer the Biological Materials. The Licensee acknowledges that The Regents' right to so transfer the Biological Materials could lead to the inadvertent loss or diminution of the proprietary commercial value of the Biological Materials." The Biological Materials is defined in said Agreement as follows: "1.2 Biological Materials" means (i) the chemical reagents and biological materials owned by The Regents and listed in Appendix D attached hereto and provided to Licensee by The Regents pursuant to the April 26, 1996 Letter Agreement, and (ii) any other chemical reagents or biological materials elected for inclusion under this Agreement by Licensee pursuant to Section 2.11 below." By: ______________________________ _____________________________ (Inventor) Date 42 74 APPENDIX C - PAGE 1C CHANCELLOR APPROVAL OF COMMERCIAL RESTRICTIONS OF TANGIBLE RESEARCH PRODUCTS In May 1989, the University of California issued the Guidelines on University-Industry Relations ("Guidelines"). Guideline 10 entitled "Tangible Research Products" requires that when the commercial availability of tangible research products resulting from the conduct of research are restricted by a license, approval must be obtained from the Chancellor of the campus where the research took place. The License Agreement between THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ("The Regents") and AURORA BIOSCIENCES, CORP. ("Licensee") entitled "Fluorescent Assay Technologies" contains provisions that restrict the transfer of certain tangible research products to commercial competitors of the Aurora Biosciences, Corp. and requires that tangible research products transferred for educational and research purposes be conveyed under a biological material transfer agreement that permits the University to retain the discretion to publish any results of research at any time and to disseminate the tangible materials for educational and research purposes. Approval of the provisions of the License Agreement that restrict the commercial availability of tangible research products is indicated below. Approval: ______________________________ _____________________________ Majorie C. Caserio Date Interim Chancellor 43 75 APPENDIX D - PAGE 1D *** CONFIDENTIAL TREATMENT REQUESTED 44 76 APPENDIX D - PAGE 2D *** CONFIDENTIAL TREATMENT REQUESTED 45 77 APPENDIX D - PAGE 3D *** CONFIDENTIAL TREATMENT REQUESTED 46 78 APPENDIX D - PAGE 4D ***CONFIDENTIAL TREATMENT REQUESTED 47 79 APPENDIX D - PAGE 5D ***CONFIDENTIAL TREATMENT REQUESTED 48 80 APPENDIX D - PAGE 6D ***CONFIDENTIAL TREATMENT REQUESTED 49 81 APPENDIX D - PAGE 7D ***CONFIDENTIAL TREATMENT REQUESTED 50 82 APPENDIX D - PAGE 8D ***CONFIDENTIAL TREATMENT REQUESTED 51 83 APPENDIX D - PAGE 9D ***CONFIDENTIAL TREATMENT REQUESTED 52 84 APPENDIX D - PAGE 10D ***CONFIDENTIAL TREATMENT REQUESTED 53 85 APPENDIX D - PAGE 11D ***CONFIDENTIAL TREATMENT REQUESTED 54 86 APPENDIX D - PAGE 12D ***CONFIDENTIAL TREATMENT REQUESTED 55 87 APPENDIX D - PAGE 13D ***CONFIDENTIAL TREATMENT REQUESTED 56 88 APPENDIX D - PAGE 14D ***CONFIDENTIAL TREATMENT REQUESTED 57 89 APPENDIX D - PAGE 15D ***CONFIDENTIAL TREATMENT REQUESTED 58 90 APPENDIX D - PAGE 16D ***CONFIDENTIAL TREATMENT REQUESTED 59 91 APPENDIX D - PAGE 17D ***CONFIDENTIAL TREATMENT REQUESTED 60 92 APPENDIX D - PAGE 18D ***CONFIDENTIAL TREATMENT REQUESTED 61 93 APPENDIX D - PAGE 19D ***CONFIDENTIAL TREATMENT REQUESTED 62 94 APPENDIX D - PAGE 20D ***CONFIDENTIAL TREATMENT REQUESTED 63 95 APPENDIX D - PAGE 21D ***CONFIDENTIAL TREATMENT REQUESTED 64 96 APPENDIX E - PAGE 1E Research Reagents *** 060596 ***CONFIDENTIAL TREATMENT REQUESTED 66 97 ADDENDUM 3A "LIQUID HANDLING HEAD" PRODUCT REQUIREMENT SPECIFICATIONS I. GENERAL A. The specifications set forth herein are preliminary and reflect the parties' expectations as of the Effective Date of the minimum performance requirements for the PRODUCTS. However, the parties recognize that in the course of the Collaboration Program the specifications herein may need to be revised in consideration of (i) engineering or manufacturing difficulties or costs, and/or (ii) to fulfill commercial expectations of demands. B. *** C. *** D. It is understood that "Best Effort..." statements imply optimization of desirable characteristics of performance. The efforts surrounding any one parameter may be inconsistent with, and in some cases detrimental to, the performance of other features of the system. PACKARD will make every effort to keep AURORA informed of these tradeoffs and negotiate improvement goals in good faith. II. PIEZO-DEVICE SPECIFICATIONS A. *** B. *** *** CONFIDENTIAL TREATMENT REQUESTED 1 98 *** *** CONFIDENTIAL TREATMENT REQUESTED 4 99 ADDENDUM 3B "DETECTOR" PRODUCT REQUIREMENT SPECIFICATIONS I. GENERAL A. The specifications set forth herein are preliminary and reflect the parties' expectations as of the Effective Date of the minimum performance requirements for the PRODUCTS. However, the parties recognize that in the course of the Collaboration Program the specifications herein may need to be revised in considerations of (i) engineering or manufacturing difficulties or costs, and/or (ii) to fulfill commercial expectations of demands. B. [***] C. It is understood that "Best Effort" statements imply optimization of desirable characteristics of performance. These efforts surrounding one parameter may be inconsistent with, and in some cases detrimental to, the performance of other features of the system. PACKARD will make every effort to keep AURORA informed of such possible tradeoffs and negotiate improvements goals in good faith. II. CAMERA A. [***] B. [***] C. [***] D. [***] ***CONFIDENTIAL TREATMENT REQUESTED 5 100 III. OPTICS A. *** B. [***] C. [***] D. [***] E. [***] F. [***] G. [***] IV. DETECTOR A. [***] B. [***] C. [***] D. [***] E. [***] ***CONFIDENTIAL TREATMENT REQUESTED 6 101 ADDENDUM 3C "NANO-PLATES" PRODUCT REQUIREMENT SPECIFICATIONS I. GENERAL A. The specifications set forth herein are preliminary and reflect the parties' expectations as of the Effective Date of the minimum performance requirements for the PRODUCTS. However, the parties recognize that in the course of the Collaboration Program the specifications herein may need to be revised in consideration of (i) engineering or manufacturing difficulties or costs, and/or (ii) to fulfill commercial expectations of demands. B. Since the NANO-PLATE will be jointly developed by AURORA and PACKARD, both will jointly define the final NANO-PLATE specification. C. *** II. REQUIREMENTS A. *** B. *** C. *** D. *** *** CONFIDENTIAL TREATMENT REQUESTED 102 ADDENDUM 4 AURORA UC REAGENTS *** *** *** *** *** CONFIDENTIAL TREATMENT REQUESTED 103 ADDENDUM 5 104 EXHIBIT 10.11 AURORA BIOSCIENCES CORPORATION PREFERRED STOCK PURCHASE AGREEMENT MARCH 8, 1996 105 SECTION 1 Sale of Shares....................................................1 1.2 Closing Date.......................................................1 1.3 Delivery...........................................................2 SECTION 2 Representations and Warranties of the Company.....................2 2.1 Organization and Standing..........................................2 2.2 Corporate Power....................................................3 2.3 Subsidiaries.......................................................3 2.4 Capitalization.....................................................3 2.5 Authorization......................................................4 2.6 Contracts and Other Commitments....................................5 2.7 Compliance with Other Instruments, etc.............................5 2.8 Litigation, etc....................................................5 2.9 Registration Rights................................................6 2.10 Permits...........................................................6 2.11 Governmental Consent, etc.........................................6 2.12 Disclosure........................................................6 2.13 Offering..........................................................7 2.14 Liabilities.......................................................7 2.15 Changes...........................................................7 2.16 Title to Properties and Assets; Liens, Leases, etc................9 2.17 Patents and Trademarks............................................9 2.18 Tax Returns; Taxes...............................................10 2.19 Employees........................................................10 2.20 No Defaults......................................................11 2.21 Insurance........................................................11 2.22 Brokers or Finders...............................................12 2.23 Environmental and Safety Laws....................................12 2.24 No Dividends.....................................................12 2.25 Employee Benefit Plan Obligations................................12 2.26 Qualification as a Qualified Small Business......................12 2.27 Financial Statements.............................................12 2.28 Transactions with Affiliates.....................................12 2.29 Proprietary Information and Inventions Agreements................13 2.30 U.S. Real Property Holding Corporation...........................13 SECTION 3 Investment Representations.......................................13 3.1 Power and Authority...............................................13 3.2 Due Execution.....................................................13 3.3 Experience; Accredited Investor...................................14 3.4 Investment........................................................14 3.5 Rule 144..........................................................14 3.6 No Public Market..................................................14
i. 106 3.7 Disclosure of Information.........................................14 SECTION 4 Conditions of the Purchaser's Obligations at Closing ............15 4.1 Representations and Warranties....................................15 4.2 Covenants.........................................................15 4.3 No Material Adverse Change........................................15 4.4 Securities Laws...................................................15 4.5 Compliance Certificate............................................15 4.6 Opinion of Counsel................................................15 4.7 Investors' Rights Agreement.......................................15 4.8 Proceedings and Documents.........................................15 4.9 Supporting Documents..............................................16 4.10 Management Rights Agreements.....................................16 4.11 Voting Agreement.................................................16 4.12 Amendment to Employment Agreement................................17 4.13 Charter..........................................................17 4.14 Bylaws...........................................................17 4.14 Proprietary Information Agreements...............................17 4.15 Election of Directors............................................17 4.16 Certificate as to Disqualified Persons...........................17 4.18 Fees of Purchasers' Counsel......................................17 SECTION 5 Conditions of the Company's Obligations at Closing...............18 5.1 Representations and Warranties....................................18 5.2 Covenants.........................................................18 SECTION 6 Miscellaneous....................................................18 6.1 Governing Law.....................................................18 6.2 Successors and Assigns............................................18 6.3 Entire Agreement..................................................18 6.4 Notices, etc......................................................18 6.5 Expenses..........................................................19 6.6 Counterparts......................................................19 6.7 Severability......................................................19 6.8 Survival of Agreements............................................19 6.9 Brokerage.........................................................19 6.10 Amendments.......................................................20
ii. 107
EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION B SCHEDULE OF EXCEPTIONS C INVESTORS' RIGHTS AGREEMENT D FORM OF MANAGEMENT RIGHTS LETTER E FORM OF VOTING AGREEMENT F FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT G FORM OF LEGAL OPINION OF COMPANY COUNSEL
iii. 108 AURORA BIOSCIENCES CORPORATION PREFERRED STOCK PURCHASE AGREEMENT THIS AGREEMENT is made as of March 8, 1996 between Aurora Biosciences Corporation, a Delaware corporation (the "COMPANY"), with its principal office at 1020 Prospect Street, Suite 405, La Jolla, California 92037, and the purchasers listed on Schedule A hereto who execute this Agreement (each a "Purchaser", and collectively, the "Purchasers"). WHEREAS, the Company has authorized the issuance and sale of up to 10,239,115 shares of its Series A Preferred Stock (the "SERIES A PREFERRED"), 555,555 shares of Series B Preferred Stock (the "SERIES B PREFERRED"), and 750,000 shares of Series C Preferred Stock (the "SERIES C PREFERRED") (collectively, the "SHARES") having the rights, preferences, privileges and restrictions set forth in the Restated Certificate of Incorporation of the Company in the form attached to this Agreement as Exhibit A (the "RESTATED CERTIFICATE"). NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and conditions set forth below, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows: SECTION 1 SALE OF SHARES 1.1 SALE OF SHARES. Subject to the terms and conditions hereof, at the Closing (as hereinafter defined), each Purchaser (severally but not jointly) agrees to purchase from the Company, and the Company agrees to sell and issue, shares of Preferred Stock of the Company being of the number, Series, and price per share as set forth opposite each Purchaser's name on Schedule A hereto. 1.2 CLOSING DATE. The purchase and sale of the Shares hereunder shall take place in up to three (3) closings, each of which shall be held at the law offices of Cooley Godward Castro Huddleson & Tatum, 4365 Executive Drive, Suite 1100, San Diego, California 92121. The first closing of such purchase and sale hereunder, at which the shares of Series A Preferred to be purchased and sold hereunder shall be so purchased and sold (the "FIRST CLOSING"), shall be held on the date of this Agreement or at such other time upon which the Company and the Purchasers participating in the First Closing shall agree. The closing of the purchase and sale of the Series B Preferred hereunder (the "SERIES B CLOSING") and the closing of the purchase and sale of the Series C Preferred hereunder (the "SERIES C CLOSING") (the Series B Closing and the Series C Closing are 1 109 hereinafter collectively referred to as the "SUBSEQUENT Closings" and the First Closing and the Subsequent Closings are hereinafter collectively referred to as the "Closings") shall be held as soon as practicable but in each case not more than thirty (30) days following the date hereof as agreed upon by the Company and Purchasers purchasing at least a majority of the Shares to be purchased and sold in such Subsequent closing. Upon delivery of a duly executed copy of this Agreement, the Investor's Rights Agreement (defined below) and the Voting Agreement (defined below), any purchaser of Shares at a Subsequent Closing shall be deemed to be a party to this Agreement, the Investors' Rights Agreement and the Voting Agreement, such purchaser shall be deemed to be a "Purchaser" for purposes of this Agreement, a "Stockholder" for purposes of the Investor's Rights Agreement and a "Purchaser" for purposes of the Voting Agreement, and the Shares acquired by such purchaser shall be deemed to have been acquired pursuant to this Agreement. 1.3 DELIVERY. At each Closing, the Company will deliver to each Purchaser purchasing Shares in such Closing a certificate representing the Shares being purchased upon payment of the aggregate purchase price therefor (as set forth opposite each Purchaser's name on Schedule A hereto) by (i) check payable to the order of the Company, (ii) wire transfer of immediately available funds made payable to the order of the Company or (iii) cancellation of outstanding principal and accrued interest under promissory notes issued by the Company, or any combination of the foregoing, as provided on Schedule A. Section 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as set forth in the Schedule of Exceptions attached hereto as Exhibit B, the Company hereby represents and warrants to the Purchasers as follows: 2.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized and validly existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has all requisite corporate power to own and operate its assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification or where the failure to so qualify would have a Material Adverse Effect. As used in this Agreement, "Material Adverse Effect" shall mean material adverse effect on the Company's business as presently conducted or planned to be conducted or the Company's financial condition, operations or prospects. 2 110 2.2 CORPORATE POWER. The Company has, and at the time of each Closing will have, all requisite legal and corporate power to execute and deliver this Agreement, the Investors' Rights Agreement in substantially the form attached hereto as Exhibit C (the "INVESTORS' RIGHTS AGREEMENT"), the Management Rights letter agreements between the Company and certain of the Purchasers substantially in the form attached hereto as Exhibit D (the "MANAGEMENT RIGHTS AGREEMENTS") and the Voting Agreement in substantially the form attached hereto as Exhibit E (this Agreement, the Investors' Rights Agreement, the Management Rights Agreements and the Voting Agreement are hereinafter collectively referred to as the "AGREEMENTS"), to sell and issue the Shares under this Agreement, to issue the Common Stock issuable upon conversion of the Shares and to carry out and perform its obligations under the terms of the Agreements, including all exhibits and schedules hereto and thereto. 2.3 SUBSIDIARIES. The Company does not own (of record or beneficially) or control, directly or indirectly, any equity interest in any other corporation, association or business entity (other than investments in marketable securities). The Company is not a participant in any joint venture, partnership or similar arrangement. 2.4 CAPITALIZATION. The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, of which 2,508,500 shares will be issued and outstanding immediately prior to the First Closing, and 25,000,000 shares of Preferred Stock, of which 10,500,000 are designated Series A Preferred Stock, 600,000 are designated Series B Preferred Stock, and 800,000 are designated Series C Preferred Stock, none of which will be issued and outstanding immediately prior to the First Closing. No other shares of capital stock or other securities of the Company are outstanding. All such issued and outstanding shares have been duly authorized and validly issued and are fully paid and nonassessable and have been offered, issued, sold and delivered by the Company in compliance with applicable federal and state securities laws. The Shares have the rights, preferences and privileges set forth in the Restated Certificate, and all such rights, preferences and privileges are valid, binding and enforceable in accordance with all applicable laws. The stockholders of record and holders of subscriptions, warrants, options, convertible securities and other rights to purchase or otherwise acquire equity securities of the Company, and the number of shares of Common Stock and the number of such subscriptions, warrants, options, convertible securities, and other such rights held by each are as set forth in Exhibit B. All of the outstanding shares of stock held by each such holder are subject to vesting as described in Exhibit B, and the Company has the right to repurchase unvested shares upon the termination of such holder's employment or other business relationship with the Company at the original purchase price per share paid to the Company by such holder. The Company has reserved 1,000,000 shares of its Common Stock (the "Reserved Shares") for issuance pursuant to the Company's 1996 Stock Plan. Except for the transactions contemplated in the Agreements, the conversion privileges of the Company's 3 111 Series A, Series B and Series C Preferred Stock specified in the Restated Certificate, and as set forth in Exhibit B, there are no options, warrants, conversion privileges or other rights or agreements presently outstanding to purchase or otherwise acquire any authorized but unissued shares of the Company's capital stock or other securities of the Company and there is no commitment by the Company to issue shares, options, warrants, convertible securities or other rights to purchase or otherwise acquire shares of the Company's capital stock or other securities of the Company. Except as set forth in Section 45 of the Company's Bylaws and as contemplated by the Agreements or as provided for in Exhibit B, to the best of the Company's knowledge, there are no voting trusts or agreements, stockholders' agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to securities of the Company (whether or not the Company is a party thereto). The Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities. 2.5 AUTHORIZATION. All corporate action on the part of the Company, its directors and shareholders necessary for the authorization, execution, delivery and performance of the Agreements by the Company, the authorization, sale, issuance and delivery of the Shares (and the Common Stock issuable upon conversion of the Shares) and the performance of the Company's obligations under the Agreements has been taken or will be taken prior to the First Closing. The Agreements, when executed and delivered by the Company, will constitute valid and binding obligations of the Company enforceable in accordance with their terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors, general equity principles and limitations upon rights to indemnity. This Agreement has been duly executed and delivered by the Company. The Shares, when issued in compliance with the provisions of this Agreement, will be duly and validly issued, fully paid and nonassessable and will be free and clear of all liens, encumbrances or restrictions imposed by or through the Company. The Common Stock issuable upon conversion of the Shares has been duly and validly reserved and, when issued in compliance with the provisions of the Restated Certificate, will be duly and validly issued, fully paid and nonassessable and will be free and clear of all liens, encumbrances or restrictions imposed by or through the Company. The issuance of the Shares (and the Common Stock issuable upon conversion of the Shares) is not subject to any preemptive rights, rights of first refusal or similar rights that have not been waived; provided, however, that the Shares (and the Common Stock issuable upon conversion of the Shares) are subject to a right of first refusal as set forth in Section 45 of the Company's Bylaws, and may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein. 4 112 2.6 CONTRACTS AND OTHER COMMITMENTS. The Company does not have any contract, agreement, lease, commitment, or proposed transaction, written or oral, absolute or contingent, other than contracts for the purchase of supplies and services that were entered into in the ordinary course of business and that do not involve more than $25,000 individually or $50,000 in the aggregate. For the purpose of this paragraph, employment and consulting contracts (including any severance arrangements), license agreements and any other agreements relating to the acquisition or disposition of the Company's technology (other than pursuant to the Company's standard form of Proprietary Information and Inventions Agreement (the "PROPRIETARY INFORMATION AGREEMENT")) shall not be considered to be contracts entered into in the ordinary course of business. The Company is not a party to or bound by any judgment, order, writ or decree restricting or affecting the development, manufacture or distribution of the Company's products or services or proposed products or services or limiting or restricting the Company's right to compete with any person in any respect. 2.7 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. The Company is not, and will not by virtue of entering into and performing the Agreements and the transactions contemplated thereunder be, in violation (with or without the passage of time or giving of notice or both) of any term of the Restated Certificate or its Bylaws or any term or provision of any material mortgage, indenture, contract, agreement, instrument, judgment or decree to which it is a party or by which it is bound, and is not, and will not by virtue of entering into and performing the Agreements and the transactions contemplated thereunder be, in violation of any material order, statute, rule or regulation applicable to the Company, other than any of the foregoing such violations that do not impair the Company's ability to enter into or perform its obligations under the Agreements or which, either individually or in the aggregate, do not have a Material Adverse Effect. Entering into and performing the Agreements and the transactions contemplated thereunder by the Company will not result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to the Company or its properties or business. 2.8 LITIGATION, ETC. There is neither pending nor, to the Company's knowledge and belief, threatened any action, suit, proceeding, investigation, governmental inquiry, or claim, or any basis therefor or threat thereof, whether or not purportedly on behalf of the Company, to which the Company is or may be named as a party or its property is or may be subject or, to the Company's knowledge, to which any officer, key employee, key consultant, or principal shareholder of the Company is subject; and the Company has no knowledge (i) of any unasserted claim, the assertion of which is likely and which, if asserted, will seek damages, an injunction or other legal, equitable, monetary or nonmonetary relief, which claim individually or collectively with other such unasserted claims if granted would have a Material Adverse Effect, or (ii) that there exists, or there is 5 113 pending or planned, any patent, trademark, tradename, invention, device, application or principle, or any statute, rule, law, regulation, standard or code which would result in a Material Adverse Effect. There is no pending or, to the Company's knowledge and belief, threatened claim or litigation against or affecting the Company contesting, or which if adversely determined might materially impair, its right to produce, manufacture, sell or use any product, process, method, substance, part or other material presently produced, manufactured, sold or used or planned to be produced, manufactured, sold or used by the Company in connection with the operations of the Company. The Company has no current plans to initiate any action, suit or proceeding. 2.9 REGISTRATION RIGHTS. Except as set forth in the Investors' Rights Agreement, the Company is not under any obligation to register (as defined in the Investors' Rights Agreement), and has not granted any rights to register, any of its presently outstanding securities or any of its securities that may hereafter be issued. 2.10 PERMITS. The Company has all franchises, permits, licenses, and any similar authority necessary for the conduct of its business as now being conducted by it and as proposed to be conducted, the lack of which would have a Material Adverse Effect. The Company is not in default or violation in any material respect under any of such franchises, permits, licenses, or other similar authority, and the execution and delivery of the Agreements will not result in any such default or violation, with or without the passage of time or giving of notice or both. 2.11 GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Company is required in connection with the valid execution and delivery of the Agreements, or the offer, sale or issuance of the Shares (and the Common Stock issuable upon conversion of the Shares) or the consummation of any other transaction contemplated thereby, except the filing of the Restated Certificate in the Office of the Secretary of State of the State of Delaware and the qualification (or taking such action as may be necessary to secure an exemption from qualification, if available) of the offer and sale of the Shares (and the Common Stock issuable upon conversion of the Shares) under the California Corporate Securities Law, which filing and qualification, if required, will be accomplished in a timely manner prior to or promptly upon completion of the First Closing. 2.12 DISCLOSURE. The Company has provided each Purchaser with all the information reasonably available to it without undue expense that such Purchaser has requested or could reasonably be expected to be material in deciding whether to purchase the Shares. The Agreements and the Exhibits thereto as well as any other document, certificate, schedule, financial, business or other statement furnished to such Purchaser by or on behalf of the Company in connection with the transactions contemplated hereby, 6 114 including, without limitation, the Business Plan dated January 8, 1996, do not contain any untrue statement of a material fact and do not omit to state a material fact necessary in order to make the statements contained herein or therein not misleading; provided, however, that with respect to any projections, expressions of opinion, forecasts, predictions or the like (collectively, "Projections") contained in such Business Plan, the Company represents only that such Projections were made in good faith and that the Company believes there is a reasonable basis therefor. 2.13 OFFERING. Subject to the accuracy of the representations set forth in Section 3 hereof, the offer, sale and issuance of the Shares pursuant to this Agreement and the issuance of the Common Stock to be issued upon conversion of the Shares constitute transactions exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the "SECURITIES ACT"), and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption. 2.14 LIABILITIES. The Company has no indebtedness for borrowed money that the Company has directly or indirectly created, incurred, assumed, or guaranteed, or with respect to which the Company has otherwise become directly or indirectly liable, other than obligations not in excess of $25,000 individually or in the aggregate. The Company has not assumed, guaranteed, endorsed or otherwise become directly or contingently liable on any indebtedness of any other person (including, without limitation, liability by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor, or otherwise to assure the creditor against loss), except for guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business. 2.15 CHANGES. Since December 31, 1995, there has not been: (a) any change in the assets, liabilities, financial condition, or operating results of the Company except changes in the ordinary course of business that have not been, in the aggregate, materially adverse; (b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (c) any waiver or compromise by the Company of a valuable right or of a material debt owed to it; 7 115 (d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and that is not material to the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (e) to the best of the Company's knowledge, any material change to a material contract or arrangement by which the Company or any of its assets is bound or subject; (f) any material change in any compensation arrangement or agreement with any employee, consultant, officer, director or shareholder; (g) any sale, assignment, license or transfer of any patents, trademarks, copyrights, trade secrets, Proprietary Information (as defined herein) or other intangible assets; (h) any resignation or termination of employment of any key officer of the Company or termination of engagement of any key consultant of the Company; and the Company, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer or termination of engagement of any such consultant; (i) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company; (j) any mortgage, pledge, transfer of a security interest in, or lien created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable; (k) any loans or guarantees made by the Company to or for the benefit of any person, other than travel advances to employees and/or consultants and other advances to employees and/or consultants made in the ordinary course of its business; (l) to the best of the Company's knowledge, any other event or condition of any character that might, individually or in the aggregate, materially and adversely affect the business, properties, prospects, or financial condition of the Company (as such business is presently conducted and as it is proposed to be conducted); (m) any amount borrowed or any liability (absolute, accrued or contingent) incurred, or to which the Company has become subject, except liabilities not in excess of $25,000 individually or $50,000 in the aggregate and except current liabilities incurred 8 116 and liabilities under contracts entered into in the ordinary course of business which have not been, individually or in the aggregate materially adverse; (n) any transaction except in the ordinary course of business or as otherwise contemplated hereby; or (o) any agreement or commitment by the Company to do any of the things described in this paragraph 2.15. 2.16 TITLE TO PROPERTIES AND ASSETS; LIENS, LEASES, ETC. The Company has good and marketable title to its properties and assets and has good title to all of its leasehold interests, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (i) the lien of current taxes not yet due and payable, and (ii) possible minor liens and encumbrances that do not in any case materially detract from the value of the property subject thereto or materially impair the operations of the Company and which have not arisen otherwise than in the ordinary course of business. Set forth on Exhibit B is a correct and complete list (including the amount of rents called for and a description of the leased property) of all material leases (involving more than $25,000 either individually or in the aggregate if such leases are of a similar nature or with the same lessor) under which the Company is a lessee. The Company enjoys peaceful and undisturbed possession under all such leases, all of such leases are valid and subsisting and, except as would not result in a Material Adverse Effect, the Company and, to the Company's knowledge, each other party to such leases is not in default thereunder. 2.17 PATENTS AND TRADEMARKS. The Company has sufficient title and ownership of all patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights, trade secrets, information, proprietary rights and processes (collectively "PROPRIETARY INFORMATION"), or has, or believes to the best of its knowledge that it has the ability to acquire on comercially reasonable terms, valid licenses to such Proprietary Information (as described further on Exhibit B), as necessary for its business as now conducted and as proposed to be conducted without any conflict with or infringement of the rights of others. The Schedule of Exceptions contains a complete list of patents and pending patent applications of the Company or of which the Company is a licensee. There are no outstanding options, licenses, or agreements of any kind relating to Proprietary Information owned by the Company, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other person or entity. The Company is not aware of any impropriety with regard to the granting of any licenses of Proprietary Information to or from the Company, and no claim is pending or, to the Company's knowledge, threatened to the effect that any such Property Information owned or licensed by the Company, or which the Company otherwise has the right to use, is 9 117 invalid or unenforceable by the Company (and to the Company's knowledge, there is no basis for any such claim). Neither the Company nor, to the Company's knowledge, any of its employees or consultants has received any written communications alleging, nor does the Company know of any grounds for any claims or allegations now or in the future, that the Company or its employees or consultants has violated or infringed or that the Company or its employees or consultants would, by conducting its business as proposed, violate or infringe any of the patents, trademarks, service marks, applications for each of the foregoing, trade names, copyrights or trade secrets or other proprietary rights of any other person or entity. The Company is not aware that any of its employees or consultants is obligated under any contract (including licenses, covenants, or commitments of any nature) or other agreement, or subject to any judgment, decree, or order of any court or administrative agency, that would, in the case of employees, interfere with the use of such employee's best efforts to promote the interests of the Company or that would conflict with the Company's business as proposed to be conducted or, in the case of consultants, which would conflict with their obligations in serving as consultants to the Company. No third party, including the employers or former employers of the Company's employees and consultants, has asserted any rights or claims to the Proprietary Information or any inventions used or proposed to be used in the Company's business, and the Company does not believe that any such third party has a right to assert any such rights or claims, except to the extent that such Proprietary Information or such inventions are licensed to or from such third party. Except pursuant to the terms of the Proprietary Information Agreements, there are no agreements, understandings, instruments, or contracts to which the Company is a party or by which it is bound that involve the license of any patent, copyright, trade secret or other similar proprietary right to or from the Company. 2.18 TAX RETURNS; TAXES. The Company has accurately prepared and timely filed all federal, state and other tax returns which are required to be filed and has timely paid all taxes covered by such returns which have become due and payable. The Company has not been advised that any of its returns, federal, state or other, have been or are being audited as of the date hereof. The Company is not delinquent in taxes or assessments and has no tax deficiency proposed or assessed and has made no waiver of the statute of limitations regarding assessments or collections. All taxes, if any, imposed by law in connection with the issuance, sale and delivery of the Shares shall have been paid, and all laws imposing such taxes shall have been fully complied with, prior to the First Closing. Neither the Company nor any of its present or former stockholders has ever filed an election pursuant to Section 1362 of the Internal Revenue Code of 1986, as amended (the "Code"), that the Company be taxed as an S corporation. 2.19 EMPLOYEES. None of the Company's employees belongs to any union or collective bargaining unit. To the best of its knowledge, the Company has complied in all material respects with all applicable state and federal equal opportunity and other laws related to employment. To the best of the Company's knowledge, no employee of or 10 118 consultant to the Company is or will be in violation of any judgment, decree, or order, or any term of any employment contract, patent disclosure agreement, proprietary information and inventions agreement, or any restrictive covenant, or any other common law obligation to a former employer, or any other contract or agreement relating to the relationship of any such person with the Company, or any other party, or to the use of trade secrets or proprietary information of others, because of the nature of the business conducted or to be conducted by the Company or the use by any such employee of his best efforts with respect to such business or the performance by any such consultant of his obligations to the Company. To the knowledge of the Company, no third party has claimed or has reason to claim that any employee of or consultant to the Company has disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information or documentation of such third party, or interfered or may be interfering in the employment relationship between such third party and any of its present or former employees and, to the Company's knowledge, no such person proposes to do any of such things. The Company is not a party to or bound by any currently effective employment contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan, retirement agreement, or other employee compensation agreement, other than with respect to the Company's 1996 Stock Plan, a true and correct copy of which has been provided to each Purchaser. The Company is not aware that any officer, key employee or key consultant, or that any group of key employees or key consultants, intends to terminate their employment or consultancy with the Company, nor does the Company have a present intention to terminate the employment or engagement as a consultant of any of the foregoing. Subject to general principles related to wrongful termination of employees, the employment of each officer and employee of the Company is terminable at the will of the Company. The Company has delivered to counsel for the Purchasers a copy of each consulting agreement to which it is a party. 2.20 NO DEFAULTS. The Company has, in all material respects, performed all material obligations required to be performed by it to date and is not in default under any of the contracts, loans, notes, mortgages, indentures, licenses, security agreements, agreements, leases, documents, commitments or other arrangements to which it is a party or by which it is otherwise bound, except for such defaults which in the aggregate would not have a Material Adverse Effect, and no event or condition has occurred which, with the lapse of time or the giving of notice, or both, would constitute such a default. 2.21 INSURANCE. The Company maintains adequate insurance on its properties of a character and in such amounts and on such terms usually insured by corporations engaged in the same or a similar business against loss or damage resulting from fire or other risks insured against by such corporations, and maintains in full force and effect public liability insurance against claims for personal injury, death or property damage occurring upon, in, about or in connection with the use of any of its properties, products 11 119 or services and maintains such other insurance as may be required by law or other agreement to which the Company is a party. 2.22 BROKERS OR FINDERS. The Company has not incurred, and will not incur, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with the Agreements. 2.23 ENVIRONMENTAL AND SAFETY LAWS. To the best of its knowledge, the Company is not in violation of any applicable statute, law or regulation relating to the environment or occupational health and safety, and to the best of its knowledge, no material expenditures are or will be required in order to comply with any such existing statute, law or regulation. 2.24 NO DIVIDENDS. The Company has never made any declaration, setting aside for payment or other distribution in respect of any of the Company's capital stock or any direct or indirect redemption, repurchase or other acquisition of any of such stock. 2.25 EMPLOYEE BENEFIT PLAN OBLIGATIONS. The Company does not maintain or have any obligations with respect to any employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")). The Company is not, nor was it at any time, obligated to contribute to any employee pension benefit plan which is or was a multi-employer plan within the meaning of Section 3(37) of ERISA. 2.26 QUALIFICATION AS A QUALIFIED SMALL BUSINESS. The Company is a "qualified small business," as defined in Section 1202(b) of the Internal Revenue Code (the "Code") and the Shares constitute "qualified small business stock" as defined in Section 1202(c) of the Code. The Company covenants and agrees to comply with the reporting and recordkeeping requirements of Section 1202 of the Code and any regulations promulgated thereunder and to execute and deliver to the Purchasers and the Internal Revenue Service, from time to time, such forms, documents, schedules and other instruments as may be reasonably requested thereby to cause the Shares and the shares of Common Stock issuable upon conversion of the Shares to qualify as a "qualified small business stock," as defined in Section 1202(c) of the Code. 2.27 FINANCIAL STATEMENTS. The Company has furnished to the Purchasers the unaudited balance sheet of the Company as of January 31, 1996 and the related unaudited statement of income for the period from the Company's inception through January 31, 1996. All such financial statements fairly present the financial position of the Company as of January 31, 1996, and the results of operations during such period. 2.28 TRANSACTIONS WITH AFFILIATES. No director or officer or, to the Company's knowledge, employee or stockholder of the Company, or, to the Company's knowledge, 12 120 member of the family of any such person, or, to the Company's knowledge, any corporation, partnership, trust or other entity in which any such person, or any member of the family of any such person, has a substantial interest or is an officer, director, trustee, partner or holder of more than 5% of the outstanding capital stock thereof, is a party to any material transaction with the Company, including any contract, agreement or other arrangement providing for the employment of, furnishing of services by, rental of real or personal property from or otherwise requiring payments to any such person or firm, other than employment-at-will arrangements in the ordinary course of business. 2.29 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each of the officers of the Company, each key employee and each other employee now employed by the Company who has access to confidential information of the Company has executed the Proprietary Information Agreement substantially in the form of Exhibit F (collectively, the "Proprietary Information Agreements"), and such agreements are in full force and effect. The Company is not aware that any of such persons is in violation of any such agreement. 2.30 U.S. REAL PROPERTY HOLDING CORPORATION. The Company is not now and has never been a "United States real property holding corporation," as defined in Section 897(c)(2) of the Code and Section 1.897-2(b) of the Regulations promulgated by the Internal Revenue Service, and the Company has filed with the Internal Revenue Service all statements, if any, with its United States income tax returns which are required under Section 1.897-2(h) of such Regulations. SECTION 3 INVESTMENT REPRESENTATIONS Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as follows: 3.1 POWER AND AUTHORITY. Such Purchaser has the requisite power and authority to enter into this Agreement, to purchase the Shares hereunder, to convert the Shares into Common Stock, and to carry out and perform its obligations under the terms of this Agreement. 3.2 DUE EXECUTION. This Agreement has been duly authorized, executed and delivered by such Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of such Purchaser, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and general equity principles. 13 121 3.3 EXPERIENCE; ACCREDITED INVESTOR. Such Purchaser has, from time to time, evaluated investments in start-up companies and has, either individually or through the personal experience of one or more of its current officers or partners, experience in evaluating and investing in start-up companies. Such Purchaser is an "accredited investor" as defined in Regulation D promulgated under the Securities Act. 3.4 INVESTMENT. Such Purchaser is acquiring the Shares (and any Common Stock issuable upon conversion of the Shares) for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. Such Purchaser understands that the Shares (and any Common Stock issuable upon conversion of the Shares) to be purchased have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. 3.5 RULE 144. Such Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. Such Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than two years after a party has purchased and paid for the securities to be sold, the sale being through a "BROKER'S TRANSACTION" or in transactions directly with a "MARKET MAKER" (as provided by Rule 144(f)) and the number of shares being sold during any three-month period not exceeding specified limitations. Such Purchaser is aware that the conditions for resale set forth in Rule 144 have not been satisfied and that the Company has no plan to satisfy these conditions in the foreseeable future. 3.6 NO PUBLIC MARKET. Such Purchaser understands that no public market now exists for the Shares and that a public market may never exist for the Shares. 3.7 DISCLOSURE OF INFORMATION. Such Purchaser believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Shares. Such Purchaser further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares. 14 122 SECTION 4 CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT CLOSING Each Purchaser's obligation to purchase the Shares at each Closing, as applicable, is subject to the fulfillment on or prior to such Closing of the following conditions: 4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company contained in Section 2 shall be true when made and on and as of the date of such Closing with the same effect as though such representations and warranties had been made on and as of the date of such Closing. 4.2 COVENANTS. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to such Closing shall have been performed or complied with in all material respects. 4.3 NO MATERIAL ADVERSE CHANGE. There shall have been no material adverse change in the Company's business or financial condition or affairs between the date of this Agreement and the date of such Closing, if different. 4.4 SECURITIES LAWS. The Company shall have obtained all necessary permits and qualifications, or secured exemptions therefrom, required under the Securities Act or by any state for the offer and sale of the Shares and Common Stock issuable upon conversion of the Shares. 4.5 COMPLIANCE CERTIFICATE. The Company shall have delivered on the date of such Closing a certificate signed by the President and Chief Financial Officer of the Company certifying that the conditions specified in Sections 4.1, 4.2, 4.3, 4.7, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 have been fulfilled. 4.6 OPINION OF COUNSEL. The Purchasers purchasing shares in such Closing shall have received from Cooley Godward Castro Huddleson & Tatum, counsel for the Company, an opinion dated as of such Closing in substantially the form attached hereto as Exhibit G. 4.7 INVESTORS' RIGHTS AGREEMENT. The Company shall have executed and delivered the Investors' Rights Agreement. 4.8 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection with the transactions contemplated at such Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchasers' counsel, 15 123 which shall have received all such counterpart original and certified or other copies of such documents as it may reasonably request. 4.9 SUPPORTING DOCUMENTS. The Purchasers purchasing shares in such Closing and their counsel shall have received copies of the following documents: (i) (A) the Certificate of Incorporation of the Company, certified as of a recent date by the Secretary of State of the State of Delaware and (B) a certificate of said Secretary dated as of a recent date as to the due incorporation and good standing of the Company, the payment of all excise taxes by the Company and listing all documents of the Company on file with said Secretary. (ii) a certificate of the Secretary or an Assistant Secretary of the Company dated the date of such Closing and certifying: (A) that attached thereto is a true and complete copy of the Bylaws of the Company as in effect on the date of such certification; (B) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors or the stockholders of the Company authorizing the execution, delivery and performance of the Agreements, the issuance, sale and delivery of the Shares, and the reservation, issuance and delivery of the shares of Common Stock issuable upon conversion of the Shares, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by the Agreements; (C) that the Certificate of Incorporation has not been amended since the date of the last amendment referred to in the certificate delivered pursuant to clause (i)(B) above, except for the filing of the Restated Certificate; and (D) to the incumbency and specimen signature of each officer of the Company executing the Agreements, the stock certificates representing the Shares and any certificate or instrument furnished pursuant hereto, and a certification by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii); and (iii) such additional supporting documents and other information with respect to the operations and affairs of the Company as the Purchasers or their counsel reasonably may request. 4.10 MANAGEMENT RIGHTS AGREEMENTS. The Company shall have executed and delivered the Management Rights Agreements to those Purchasers participating in such Closing who have made a request to the Company therefor and are subject in any manner with respect to their investment in the Company to ERISA. 4.11 VOTING AGREEMENT. The Company and the other parties thereto shall have executed and delivered the Voting Agreement. 16 124 4.12 AMENDMENT TO EMPLOYMENT AGREEMENT. Timothy J. Rink and the Company shall have entered into an amendment (the "EMPLOYMENT AMENDMENT") to the terms of his employment arrangements with the Company in a form satisfactory to Dr. Rink, the Purchasers and their counsel, and a copy thereof shall have been delivered to counsel for the Purchasers. 4.13 CHARTER. The Certificate of Incorporation of the Company shall read in its entirety as set forth in Exhibit A. 4.14 BYLAWS. The Company's Bylaws shall have been amended, if necessary, to provide that (i) any three directors shall have the right to call a meeting of the Board of Directors and (ii) the number of directors fixed in accordance therewith shall in no event conflict with any of the terms or provisions of the Series A Preferred Stock. Series B Preferred Stock and Series C Preferred Stock as set forth in the Restated Certificate. 4.15 PROPRIETARY INFORMATION AGREEMENTS. Copies of the Proprietary Information Agreements shall have been delivered to counsel for the Purchasers. 4.16 ELECTION OF DIRECTORS. The number of directors constituting the entire Board of Directors shall have been fixed at seven (7) and the following persons shall have been elected as the directors and shall each hold such position as of the First Closing: Timothy J. Rink and Lubert Stryer, as the directors elected solely by the holders of the Common Stock, and Kevin J. Kinsella, Timothy J. Wollaeger, Stephen Bunting, James C. Blair and Hugh Y. Rienhoff, Jr., as the directors elected solely by the holders of the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock. 4.17 CERTIFICATE AS TO DISQUALIFIED PERSONS. The Company shall have executed and delivered to New Enterprise Associates VI, Limited Partnership ("NEA VI") a Certificate as to Disqualified Persons, as requested by NEA VI, dated the Closing Date, in form and substance satisfactory to NEA VI. 4.18 FEES OF PURCHASERS' COUNSEL. The Company shall have paid in accordance with Section 6.5 the reasonable fees and disbursements of Testa, Hurwitz and Thibeault in connection with this Agreement and related transactions as specified on a reasonably detailed invoice, detailing all time entries and costs, submitted to counsel to the Company a reasonable time in advance of such Closing. 17 125 SECTION 5 CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING The Company's obligation to issue and sell the Shares at each Closing is subject to the fulfillment on or prior to such Closing of the following conditions: 5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Purchasers contained in Section 3 shall be true when made and on and as of the date of such Closing with the same effect as though such representations and warranties had been made on and as of the date of such Closing. 5.2 COVENANTS. All covenants, agreements and conditions contained in this Agreement to be performed by the Purchasers on or prior to the date of such Closing shall have been performed or complied with in all respects. SECTION 6 MISCELLANEOUS 6.1 GOVERNING LAW. This Agreement shall be governed by the laws of the State of California as applicable to contracts entered into and performed entirely within the State of California by residents of California. 6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto; provided, however, that the rights of the Purchasers to purchase the Shares shall not be assignable (other than to a corporation a majority of whose outstanding voting shares are owned or controlled, directly or indirectly, by the Purchaser) without the consent of the Company, and the Company's obligations hereunder shall not be assignable without the consent of the Purchasers. 6.3 ENTIRE AGREEMENT. This Agreement, its Exhibits, and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. 6.4 NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile or mailed by registered or 18 126 certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a Purchaser, to the address set forth on Schedule A hereto, or at such other address as shall have been furnished to the Company in writing by such Purchaser, or (b) if to the Company, one copy to its address set forth above and addressed to the attention of the President, or at such other address or addresses as the Company shall have furnished in writing to the Purchasers, and one copy to Cooley Godward Castro Huddleson & Tatum, 4365 Executive Drive, Suite 1100, San Diego, CA 92121, Attn: Thomas A. Coll, Esq. All notices and other communications pursuant to the provisions of this Section 6.4 shall be deemed delivered when mailed or sent by facsimile or delivered by hand or messenger. Notwithstanding the foregoing, any notice or communication to an address outside the United States shall be sent by facsimile and confirmed in writing contemporaneously sent by two-day guaranteed international courier. 6.5 EXPENSES. Each party to this Agreement shall bear its own expenses and legal fees incurred by it with respect to this Agreement and all related transactions; provided, however, that the Company shall pay the reasonable fees and expenses of the Purchasers' special counsel, Testa, Hurwitz and Thibeault, in connection with this Agreement and such transactions and any subsequent amendment, waiver, consent or enforcement thereof. 6.6 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be enforceable against the party actually executing such counterpart, and which together shall constitute one instrument. 6.7 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 without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party. 6.8 SURVIVAL OF AGREEMENTS. All covenants, agreements, representations and warranties made herein or in the other Agreements, or any certificate or instrument delivered to the Purchasers pursuant to or in connection with the Agreements, shall survive the execution and delivery of the Agreements, the issuance, sale and delivery of the Shares, and the issuance and delivery of the shares of Common Stock issuable upon conversion of the Shares, and all statements contained in any certificate or other instrument delivered by the Company hereunder or thereunder or in connection herewith or therewith shall be deemed to constitute representations and warranties made by the Company. 6.9 BROKERAGE. Each party hereto will indemnify and hold harmless the others against and in respect of any claim for brokerage or other commissions relative to this 19 127 Agreement or to the transactions contemplated hereby, based in any way on agreements, arrangements or understandings made or claimed to have been made by such party with any third party. 6.10 AMENDMENTS. This Agreement may not be amended or modified, and no provisions hereof may be waived, without the written consent of the Company and the holders of at least two-thirds of the shares of Common Stock issued or issuable upon conversion of the Shares. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 20 128 The foregoing Preferred Stock Purchase Agreement is hereby executed as of the date first above written. THE COMPANY: AURORA BIOSCIENCES CORPORATION By: __________________________ Title: _______________________ THE PURCHASERS: AVALON MEDICAL PARTNERS, L.P. By: __________________________ Title: _______________________ AVALON BIOVENTURES II, L.P. By: __________________________ Title: _______________________ 21 129 KINGSBURY CAPITAL PARTNERS, L.P. II By: Kingsbury Associates, L.P. By: __________________________ Title: General Partner ABINGWORTH BIOVENTURES SICAV By: __________________________ Title: _______________________ NEW ENTERPRISES ASSOCIATES VI, LIMITED PARTNERSHIP By: NEA Partners VI, Limited Partnership, its General Partner By: __________________________ Title: General Partner NEA VENTURES 1996, L.P. By: __________________________ Title: Authorized Signatory 22 130 DP III ASSOCIATES, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: __________________________ General Partner DOMAIN PARTNERS III, L.P. By: One Palmer Square Associates III, L.P., its General Partner By: __________________________ General Partner BIOTECHNOLOGY INVESTMENTS LIMITED By: Old Court Limited By: __________________________ Attorney - in - Fact PACKARD INSTRUMENT COMPANY, INC. By: __________________________ Title: _______________________ [SIGNATURE PAGE FOR PREFERRED STOCK PURCHASE AGREEMENT] 23 131 SEQUANA THERAPEUTICS, INC. By: __________________________ Title: _______________________ GC&H INVESTMENTS By: __________________________ Title: _______________________ ______________________________ KEVIN J. KINSELLA ______________________________ ROGER Y. TSIEN ______________________________ THERESA E. GLOBE ______________________________ CHARLES S. ZUKER 24 132 ______________________________ MICHAEL G. ROSENFELD ______________________________ JOHN A. PORCO, JR. ______________________________ LUBERT STRYER ______________________________ ANDREA S. STRYER ______________________________ WALTER LUETOLF FOR ADRIAN J.R. LANGINGER ______________________________ NORMAND F. SMITH ______________________________ HUGH Y. RIENHOFF, JR. ______________________________ JANICE THOMPSON 25 133 THE GREENE FAMILY TRUST By: __________________________ HOWARD E. GREENE, JR., TRUSTEE By: __________________________ ARLINE GREENE, TRUSTEE ______________________________ TIMOTHY J. RINK HAMBRECHT & QUIST GROUP By: __________________________ Dennis J. Purcell Title: _______________________ 26 134 SCHEDULE A PURCHASERS OF PREFERRED STOCK
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- AVALON MEDICAL PARTNERS L.P. $424,998.84 319,548 Ser A $1.33 CD 1020 Prospect Street, Suite 405 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- AVALON BIOVENTURES II L.P. 499,998.87 375,939 Ser A $1.33 CD 1020 Prospect Street, Suite 405 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- KINGSBURY CAPITAL PARTNERS, L.P. II 999,999.07 751,879 Ser A $1.33 C/W 3655 Nobel Drive, Suite 490 San Diego, CA 92122 Fax: (619) 677-0800 - --------------------------------------------------------------------------------------------------------------------------------- ABINGWORTH BIOVENTURES SICAV 3,499,998.74 2,631,578 Ser A $1.33 C/W c/o Sanne & Cie Boite Postale 566 L-2015 Luxemberg Attn: Karl Sanne Fax: 352-43-54-10 with a copy to: Stephen Bunting Abingworth Management Ltd. 26 St. James Street London SW1A1HA Fax: 44-171-930-1891 Daniel P. Finkelman Testa Hurwitz & Thibeault 125 High Street Boston, MA 02110 Fax: (617) 248-7100 - ---------------------------------------------------------------------------------------------------------------------------------
135
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- NEW ENTERPRISE ASSOCIATES VI 2,749,999.77 2,067,669 Ser A $1.33 C/W LIMITED PARTNERSHIP 1119 St. Paul Street Baltimore, MD 21202 Fax: (410) 752-7721 - --------------------------------------------------------------------------------------------------------------------------------- NEA VENTURES 1996, L.P. 9,998.94 7,518 Ser A $1.33 C/W 1119 St. Paul Street Baltimore, MD 21202 Fax: (410) 752-7721 - --------------------------------------------------------------------------------------------------------------------------------- DP III ASSOCIATES, L.P. 95,301.15 71,655 Ser A $1.33 C/W One Palmer Square, Suite 515 Princeton, NJ 08542 Fax: (609) 683-9789 - --------------------------------------------------------------------------------------------------------------------------------- DOMAIN PARTNERS III., L.P. 2,754,698.66 2,071,202 Ser A $1.33 C/W One Palmer Square, Suite 515 Princeton, NJ 08542 Fax: (609) 683-9789 - --------------------------------------------------------------------------------------------------------------------------------- BIOTECHNOLOGY INVESTMENTS LIMITED 1,899,999.43 1,428,571 Ser A $1.33 C/W One Palmer Square, Suite 515 Princeton, NJ 08542 Fax: (609)683-9789 - --------------------------------------------------------------------------------------------------------------------------------- KEVIN J. KINSELLA 49,998.69 37,593 Ser A $1.33 C/W Avalon Ventures 1020 Prospect Street, Suite 405 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- ROGER Y. TSIEN 199,500.00 150,000 Ser A $1.33 C/W 8535 Nottingham Place La Jolla, CA 92037 Fax: (619) 534-5270 - --------------------------------------------------------------------------------------------------------------------------------- THERESA E. GLOBE 50,540.00 38,000 Ser A $1.33 C/W 142 Bessborough Drive Toronto, Ontario M4G3J6 Fax: (416) 864-3361 - ---------------------------------------------------------------------------------------------------------------------------------
136
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- CHARLES S. ZUKER 79,800.00 60,000 Ser A $1.33 C/W UCSD Cellular & Molecular Medicine West La Jolla, CA 92037 Fax: (619) 534-8510 - --------------------------------------------------------------------------------------------------------------------------------- MICHAEL G. ROSENFELD 29,999.48 22,556 Ser A $1.33 C/W UCSD Eukaryotic Regulatory Biology Program Room 345 C.M.M. 9500 Gilman Drive La Jolla, CA 92093 Fax: (619) 534-8180 - --------------------------------------------------------------------------------------------------------------------------------- JOHN A. PORCO, JR. 4,999.47 3,759 Ser A $1.33 C/W Argonaut Technologies, Inc. 887-G Industrial Rd., Ste. G San Carlos, CA 94070-3305 Fax: (415) 598-1359 - --------------------------------------------------------------------------------------------------------------------------------- LUBERT STRYER 37,499.35 28,195 Ser A $1.33 C/W 843 Sonoma Terrace Stanford, CA 94305 Fax: (415) 498-5351 - --------------------------------------------------------------------------------------------------------------------------------- ANDREA S. STRYER 37,499.35 28,195 Ser A $1.33 C/W 843 Sonoma Terrace Stanford, CA 94305 Fax: (415) 498-5351 - --------------------------------------------------------------------------------------------------------------------------------- ADRIAN J.R. LANGINGER 53,200.00 40,000 Ser A $1.33 C/W c/o WALTER LUTOLF ATAG Vermogensverwaltung AG 8022 Zurich Bleicherweg 21 Postfach 5272 Fax: 01-202 33 49 - ---------------------------------------------------------------------------------------------------------------------------------
137
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- GC&H INVESTMENTS 49,998.69 37,593 Ser A $1.33 C/W Cooley Godward Castro Huddleson & Tatum 4365 Executive Drive, Suite 1100 San Diego, CA 92121 Fax: (619) 453-3555 - --------------------------------------------------------------------------------------------------------------------------------- NORMAND F. SMITH 24,998.68 18,796 Ser A $1.33 C/W Perkins, Smith & Cohen One Beacon Street Boston, MA 02108-3106 Fax: (617) 854-4040 - --------------------------------------------------------------------------------------------------------------------------------- HUGH Y. RIENHOFF, JR. 4,999.47 3,759 Ser A $1.33 C/W New Enterprise Associates 1119 St. Paul Street Baltimore, MD 21202 Fax: (410) 752-7721 - --------------------------------------------------------------------------------------------------------------------------------- JANICE THOMPSON 9,998.94 7,518 Ser A $1.33 C/W P.O. Box 3471 16360 La Gracia Rancho Santa Fe, CA 92067 Fax: (619) 756-4320 - --------------------------------------------------------------------------------------------------------------------------------- THE GREENE FAMILY TRUST 24,998.68 18,796 Ser A $1.33 C/W C/O HOWARD E. GREENE, JR. 9373 Towne Centre Drive San Diego, CA 92121 Fax: (619) 552-2212 - --------------------------------------------------------------------------------------------------------------------------------- TIMOTHY J. RINK 24,998.68 18,796 Ser A $1.33 C/W 5666 La Jolla Boulevard, #5 La Jolla, CA 92037 Fax: (619) 454-5329 - --------------------------------------------------------------------------------------------------------------------------------- PACKARD INSTRUMENT COMPANY, INC. 999,999.00 555,555 Ser B $1.80 C/W 800 Research Parkway Meriden, CT 06450 Fax: (203) 235-1347 - ---------------------------------------------------------------------------------------------------------------------------------
138
- --------------------------------------------------------------------------------------------------------------------------------- AMOUNT OF SHARES PRICE PER METHOD OF SHAREHOLDER INVESTMENT PURCHASED CLASS SHARE PAYMENT(1) - --------------------------------------------------------------------------------------------------------------------------------- SEQUANA THERAPEUTICS, INC. 1,500,000.00 750,000 Ser C $2.00 C/W 11099 North Torrey Pines Rd., Ste. 160 La Jolla, CA 92037 Fax: (619) 452-6653 - --------------------------------------------------------------------------------------------------------------------------------- HAMBRECHT & QUIST GROUP 499,998.60 277,777 Ser B $1.80 C/W 230 Park Ave., 21st Fl. New York, NY 10169 Attn: Dennis J. Purcell Fax: (212) 207-1519 - --------------------------------------------------------------------------------------------------------------------------------- TOTALS $16,618,020.55 11,822,447 - ---------------------------------------------------------------------------------------------------------------------------------
1 "C/W" indicates check or wire transfer; "CD" indicates cancellation of indebtedness. 139 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 140 EXHIBIT B SCHEDULE OF EXCEPTIONS 141 EXHIBIT C INVESTORS' RIGHTS AGREEMENT 142 EXHIBIT D FORM OF MANAGEMENT RIGHTS LETTER 143 EXHIBIT E FORM OF VOTING AGREEMENT 144 EXHIBIT F FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT 145 EXHIBIT G FORM OF LEGAL OPINION OF COMPANY COUNSEL EX-10.22 30 EXHIBIT 10.22 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.22 COLLABORATIVE RESEARCH AND LICENSE AGREEMENT between BRISTOL-MYERS SQUIBB PHARMACEUTICAL RESEARCH INSTITUTE and AURORA BIOSCIENCES CORPORATION 2 COLLABORATIVE RESEARCH AND LICENSE AGREEMENT THIS AGREEMENT is entered into as of the Effective Date (as defined below) by and between BRISTOL-MYERS SQUIBB PHARMACEUTICAL RESEARCH INSTITUTE, a division of E.R. Squibb & Sons, Inc., a Delaware corporation, having offices at Route 206 at Province Line Road, P.O. Box 4000, Princeton, New Jersey 08543-4000 ("BMS"), and between AURORA BIOSCIENCES CORPORATION, a Delaware corporation having offices at 11149 North Torrey Pines Road, La Jolla, California 92037 ("Aurora"). RECITALS WHEREAS, Aurora has expertise in the development of automated ultra-high throughput screening systems and screening biologies/chemistries used therein; and WHEREAS, Aurora has the scientific expertise and capacity to undertake the alliance activities described below; and WHEREAS, BMS has the capability to undertake screening and development of drug products for the prevention, treatment and diagnosis of diseases and disorders. NOW, THEREFORE, in consideration of the foregoing premises and of the covenants, representations and agreements set forth below, the parties agree as follows: 1.0 DEFINITIONS As used herein, the following terms shall have the following meanings: "Acceptance" has the meaning set forth in section 2.1.3. "Activity" means, with *** "Affiliate" means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by, or is under common control with, such Person. A Person shall be regarded as in control of another Person if it/he/she owns, or directly or indirectly controls, more than fifty percent (50%) of the voting securities (or comparable equity interests) or other ownership interests of the other Person, or if it/he/she directly or indirectly possesses the power to direct or cause the direction of the management or policies of the other Person, whether through the ownership of voting securities, by contract or any other means whatsoever. *** CONFIDENTIAL TREATMENT REQUESTED 3 "Agreement" means this agreement, together with all appendices, exhibits and schedules hereto, and as the same may be amended or supplemented from time to time hereafter by a written agreement duly executed by authorized representatives of each party hereto. "Analog" of a compound shall mean any other compound created by or for BMS in which *** "Aurora Copyrights" means all copyright rights *** "Aurora Patent Rights" means the Aurora Reporter System Patent Rights and the Aurora UHTSS Patent Rights. "Aurora Reporter System Technology" means all Technology *** "Aurora Reporter System Patent Rights" means all Patent Rights which are owned by or come under the Control of Aurora or its Affiliates during the term of this Agreement which relate to the Reporter System or to the full exercise of the rights and benefits accorded BMS under this Agreement pertaining to the Reporter System. "Aurora Technology" means the Aurora Reporter System Technology and the Aurora UHTSS Technology. "Aurora UHTSS Patent Rights" means all Patent Rights *** "Aurora UHTSS Technology" means all Technology under the Control of Aurora or any of its Affiliates during the term of this Agreement which relates to the UHTSS or to the full exercise of the rights and benefits accorded BMS under this Agreement pertaining to the UHTSS. "BMS Materials Library" means the *** "BMS Test Materials" means samples selected by BMS from its Materials Library. ***CONFIDENTIAL TREATMENT REQUESTED 4 "Confidential Information" means all information, compounds, data, and materials received by either party from the other party pursuant to this Agreement and all information, compounds, data, and materials developed in the course of the Collaboration, including, without limitation, Know-How and Technology of each party, subject to the exceptions set forth in Article 9.1. "Contract Term" means the period beginning on the Effective Date and ending on the date on which this Agreement terminates. "Control" means possession by a party or its Affiliates of the ability to grant a license or sublicense or to provide Materials or Technology in accordance with the terms of this Agreement, and without violating the terms of any agreement by such party with any Third Party. "Covered Product" means a Product approved for marketing in a country for the diagnosis, treatment or prevention of human disease indications, other than a Product: *** "Deliverables" has the meaning set forth in section 2.1.2.1 hereof. "Development Phases" has the meaning set forth in section 2.1.2.1 hereof. ***CONFIDENTIAL TREATMENT REQUESTED 3 5 "Drug Development Program" means that program conducted by BMS at its cost and in the exercise of its sole and absolute discretion pertaining to the pre-clinical and clinical development, regulatory filings, and commercialization of a Lead Compound. "Effective Date" means the date that this Agreement is executed by the last party to so execute. "Exclusive Screening Program" or "ESP" and "Exclusive Screen" shall have the meanings set forth in section 3.1. "FDA" shall mean the United States Food and Drug Administration, or any successor agency having regulatory jurisdiction over the manufacture, distribution and sale of drugs in the United States, and its counterpart(s) in other countries of the world. "Field" means the use of a compound, Material, or Product by BMS *** "First Commercial Sale" of a Covered Product shall mean the first commercial sale for use or consumption of such Covered Product in a country after required marketing and, if applicable, pricing approval has been granted by the applicable regulatory authority(ies) of such country. "Hit" means any BMS Test Material: *** "IND" means an Investigational New Drug application filed with the United States Food and Drug Administration ("FDA") or its equivalent, and any corresponding application filed in any country other than the United States. "Invention" means any new and useful process, machine, manufacture, or composition of matter, or improvement thereto, whether or not patentable. ***CONFIDENTIAL TREATMENT REQUESTED 4 6 "Know-How" means all information and data which is not generally known to the public, including without limitation, information or data either pertaining to or comprising: materials and chemicals, Inventions, designs, concepts, algorithms, formulae, software in any stage of development, supplies, techniques, practices, machinery and equipment, reagents, processes, methods, knowledge, know-how, skill, experience and expertise, data (including preclinical, clinical, technical, analytical, and quality control data), technical information, patent application data or descriptions, and marketing, sales and manufacturing data. "Lead Compound" means a Hit approved by BMS for development in a Lead Compound Development Program or an Analog of such Lead Compound. "Lead Compound Development Program" means that program, conducted by or through BMS for the further characterization and pre-clinical development of a Lead Compound *** "Manufacturing Cost" shall mean *** "Materials" shall mean any material having a biological or chemical activity, including, but not limited to, reagents, probes, structural genes, genetic sequences, promoters, enhancers, probes, linkage probes, vectors, plasmids, transformed cell lines, transgenic animals, proteins and fragments thereof, peptides, biological modifiers, antigens, antibodies, cell lines, antagonists, agonists, inhibitors, chemicals, compounds, and other biologically or chemically active materials or substances. "NDA" means a New Drug Application or Product License Application, as appropriate, and all supplements filed pursuant to the requirements of the FDA, including all documents, data and other information concerning Covered Products which are necessary for full FDA approval to market a Covered Product, or the equivalent in any other country. "Net Sales" of a Covered Product shall mean *** *** CONFIDENTIAL TREATMENT REQUESTED 5 7 *** "Nonexclusive Screening Program", "NSP", and "Nonexclusive Screen" have the meanings set forth in section 3.2 hereof. *** CONFIDENTIAL TREATMENT REQUESTED 6 8 "Patent Rights" means all U.S. or foreign (including regional authorities such as the European Patent Office) regular or provisional patent applications, including any continuation, continuation-in-part, or division thereof or any substitute application therefor or equivalent thereof, and any patent issuing thereon, including any reissue, reexamination or extension thereof and any confirmation patent or registration patent or patent of additions based on any such patent, containing one or more claims to an Invention (and in the case of an issued patent, containing one or more Valid Claims), and which a party hereto owns or Controls, individually or jointly, any title thereto or rights thereunder. "Person" shall mean an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, governmental authority, or any other form of entity not specifically listed herein. "PLP" means *** "Product" means any final form or dosage of any drug product that incorporates a Lead Compound and that will be sold or used within the Field. "Reporter System" mean a *** "Royalty Term" means, in the case of any Covered Product *** *** CONFIDENTIAL TREATMENT REQUESTED 7 9 *** "Software" has the meaning set forth in Exhibit 4.1. "Specifications" of the UHTSS shall have the meaning set forth in section 2.1 hereof. "Technology" means and includes all inventions, equipment, supplies, materials (including Materials), software in any stage of development, technology, Know-How, and trade secrets. "Territory" means all countries of the world. "Third Party" means any entity other than (i) Aurora and any of its Affiliates, and (ii) BMS and any of its Affiliates. "Third Party Contractee" and "Aurora-Third Party Contracts" have the meanings set forth in section 11.2.6. "*** License" means Exclusive License Agreement for *** between Aurora ***a *** (as the same may be amended or supplemented hereafter). "UHTSS" means the *** . "UHTSS Target Delivery Date" has the meaning set forth in section 2.1.2.1 hereof. "Valid Claim" means: (a) an issued claim under an issued patent within the Patent Rights, which has not (i) expired or been canceled, (ii) been declared invalid by an unreversed and unappealable decision of a court or other appropriate body of competent jurisdiction, (iii) been admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, and/or (iv) been abandoned in accordance with or as permitted by the terms of this Agreement or by mutual written agreement; or (b) a claim included in a pending patent application within the Patent Rights that is being actively prosecuted in accordance with this Agreement and which has not been (v) canceled, (vi) withdrawn from consideration, (vii) finally determined to be unallowable by the applicable governmental authority for whatever reason (and from which no appeal is or can be taken), and/or (viii) abandoned in accordance with or as permitted by the terms of this Agreement or by mutual written consent. ***CONFIDENTIAL TREATMENT REQUESTED 8 10 2.0 COLLABORATIVE RESEARCH AND TECHNOLOGY TRANSFER Aurora and BMS shall collaborate on the development of the UHTSS and the transfer of the Aurora Technology to BMS, as follows: 2.1 UHTSS Development. Aurora will develop the UHTSS in collaboration with BMS and in accordance with the terms of this Agreement (including the work plan and Specifications set forth in Exhibit 1.1 attached hereto and the development phases set forth below). Aurora will be responsible for the design, development, manufacture, supply, delivery and installation of the UHTSS, and will use its best efforts to complete same within the time frames for each Development Phase set forth below. The Specifications for the Deliverables to be provided by Aurora, as customized for BMS, are set forth in Exhibit 1.1 hereto, and may be changed or supplemented hereafter by mutual written agreement. The parties agree to diligently review such Specifications from time to time in order to ensure that the Specifications for the UHTSS will meet the reasonable needs of commercial users and the specific customizations required by BMS. 2.1.1 Project Management. Each party will designate an employee who will serve as the principal contact point for such party in order to ensure due coordination of the effort in the development, installation, training, and use of the UHTSS. The parties will meet and confer as needed, but in any event not less frequently than quarterly, at a location to be chosen by each party alternately to discuss the development of the UHTSS and resolution of any ongoing issues. Aurora shall also submit progress reports at such time(s) as BMS may reasonably request, but in any event will provide a quarterly written update of its work on the development of the UHTSS (including discussion of any significant problems encountered and significant changes in strategy or design). If requested by BMS, such progress/update reports will detail work performed to date and estimated time to complete a Development Phase. The parties will also consult with each other as needed to evaluate and recommend scientific criteria to be implemented within the UHTSS and the Exclusive Screening Program. From time to time during the term of this Agreement, BMS representatives shall have the right, upon reasonable advance notice to Aurora and its contractors, to visit the facilities where the UHTSS development is being performed in order to verify the stage of completion of the work performed under a schedule and audit compliance with the terms of this Agreement. Individuals assigned by Aurora to perform work hereunder at BMS' premises shall observe the business hours, policies, security rules and holiday schedule of BMS while working on its premises. Adherence to BMS' business hours and holiday schedules shall not constitute justification for the failure to deliver conforming Deliverables within the applicable time frames. 2.1.2 Development Phases; Priority; Delivery. 9 11 2.1.2.1 Development Phases. Aurora will design and develop the UHTSS in accordance with the following development phases ("Development Phases"), as more fully described in Exhibit 1.1 hereto. Aurora will develop and install the deliverables ("Deliverables") contemplated by each such Development Phase (all such Deliverables for a Development Phase comprising a "Module") not later than the dates set forth below (each such date referred to as a "UHTSS Target Delivery Date"): i) *** ii) *** iii) *** It is understood and agreed that BMS' input on the design and use of such Modules is an essential element of this collaboration, and the parties will cooperate to ensure that such input is solicited and provided on a timely basis. The parties will cooperate in integrating such Modules and the Deliverables developed under each Development Phase into the then current BMS high throughput screening environment until such time as the UHTSS is fully completed and installed at BMS, and Aurora will provide BMS with assistance and support in the use and maintenance of such Modules and Deliverables in such environment without additional charge (other than the payments otherwise due under this Agreement). Aurora will further provide onsite transfer of the Aurora UHTSS Technology to BMS personnel during the installation and Acceptance Testing of each Module to be delivered hereunder to assure BMS' ability to fully operate and maintain the UHTSS and such Modules. In addition, within a reasonable time after the Effective Date, Aurora will schedule training classes, including course materials, for BMS personnel with respect to the use of the Aurora UHTSS Technology. The number of such individuals as shall be jointly determined by BMS and Aurora, but shall be a number sufficient to allow for BMS to effect rapid scale-up in its use of the Aurora UHTSS Technology. If more individuals need to be trained than can be reasonably accommodated in the first training session, the parties will jointly schedule additional sessions as reasonably necessary. Each party will bear its own costs in connection with such training sessions. All such Modules and other Deliverables to be sold by Aurora and purchased by BMS hereunder shall be subject to the terms and conditions of this Agreement, and the parties hereby agree that the terms and conditions of this Agreement shall ***CONFIDENTIAL TREATMENT REQUESTED 10 12 supersede and control any conflicting terms in any purchase order, acknowledgment, invoice, shipping document, or other preprinted form issued by either party relating to the purchase and sale of the Modules and any other Deliverables hereunder. 2.1.2.2 Priority. In allocating its internal resources, Aurora agrees that BMS will be entitled to priority status over any Third Party with regard to the development, manufacture, delivery and installation of the UHTSS. 2.1.2.3 Shipment, Delivery and Installation. Aurora shall be responsible at its expense for appropriately packaging and transporting all Deliverables to BMS, all of which shall be delivered F.O.B. the BMS facility designated by BMS at time of shipment. All risk of damage or loss to any Deliverable for whatever reason shall rest with Aurora until such item is safely set upon the loading dock at BMS's installation site, at which time it shall pass to BMS. Aurora will give BMS not less than *** days' written notice of any proposed shipment. Aurora will be responsible for installing all Deliverables, unless otherwise mutually agreed to in writing. Aurora will begin such installation within *** working days of delivery and will use all reasonable efforts to complete same as promptly as possible thereafter. *** BMS may also elect that the Deliverables to be provided under the Development Phase for any Module (and any additional Module ordered by BMS pursuant to section 2.1.3.2) shall be held by Aurora until such time as BMS is prepared to receive the applicable Module (in which event the Acceptance testing for such Module(s) will be conducted at Aurora in accordance with section 2.1.3.1 hereof and BMS will pay for the Module(s) that are Accepted by it); ***. The parties do not expect that any delay in delivery requested by BMS for the Deliverables relating to a Module should delay delivery of any Deliverables to be provided for any future Module to be provided in a subsequent Development Phase; provided, however, that where Aurora can demonstrate that any such delay in such delivery requested by BMS will adversely affect Aurora's ability to meet any such future time line(s) set forth in sections 2.1.2.1 and 2.1.5.6 hereof, the pertinent time line(s) shall be extended by the period of delay demonstrated by Aurora as is reasonably occasioned by BMS' request to delay delivery. ***CONFIDENTIAL TREATMENT REQUESTED 11 13 *** Once all such approvals and permits are received, BMS' right to delay delivery as provided above shall cease, and any Modules previously Accepted by BMS that are then being held by Aurora shall be shipped to BMS. 2.1.3 Acceptance Testing. 2.1.3.1 All Deliverables shall be subject to acceptance testing by BMS to verify whether such Deliverables meet in all material respects the Specifications for such Deliverables in Exhibit 1.1 hereto, as the same may be amended or supplemented in writing by the parties from time to time hereafter. Aurora representatives shall have the right to be present at any such acceptance testing conducted by BMS. BMS will consult with Aurora regarding the acceptance testing, although the nature and number of the actual tests to be conducted shall be determined by BMS. If, *** , (i) Aurora is unable to install at BMS all of the Deliverables required by a Development Phase (or is unable to install same at Aurora, where BMS has elected to test the Deliverables relating to a Module at Aurora as opposed to conducting such tests following installation at BMS) and (ii) such Deliverables, if installed, do not meet in all material respects the Specifications for such Deliverables, *** . Acceptance testing shall commence by BMS, using such acceptance tests as BMS considers necessary, to determine whether the corrected Deliverables meet in all material respects the Specifications for such Deliverables, as soon as practicable following installation by Aurora of all Deliverables to be provided by Aurora for a Module in a Development Phase (and delivery of written certification by Aurora to BMS that such Deliverables are ready for testing), and shall continue for such period of time as may be reasonably required by BMS for it to determine whether all such Deliverables meet in all material respects the Specifications for such Deliverables; provided, however, that the acceptance testing following installation of all Deliverables to be provided for a given Module shall not exceed *** ***; and provided, further, that BMS may elect, on written notice setting forth the specific and reasonable basis for same, to extend the acceptance testing required for the Deliverables for Module Two and/or Module Three by up to an additional *** ***, in which event the time periods in section 2.1.5.6 shall be ***CONFIDENTIAL TREATMENT REQUESTED 12 14 extended by the same amount of additional time requested by BMS for such acceptance testing. If any Deliverable does not conform in all material respects to Specifications for such Deliverables, BMS shall so inform Aurora in writing promptly and cooperate with Aurora in identifying in what respects the Deliverable(s) have failed to conform to the Specifications. Aurora will use its best efforts to promptly correct any deficiencies which prevent such Deliverable(s) from so conforming to the Specifications. Upon completion of the corrective action and installation by Aurora of the revised Deliverable(s), BMS will again conduct such acceptance tests as BMS considers necessary to determine whether the corrected Deliverables has successfully conformed in all material respects to the Specifications for such Deliverables, and BMS shall be entitled to use the same amount of time to test such corrected Deliverable as it was entitled to use with respect to the previous nonconforming Deliverables. When BMS has determined that all Deliverables for a Module have successfully conformed to or satisfied the Specifications in all material respects (and regardless of whether such acceptance testing is conducted at BMS or at Aurora), BMS shall give Aurora written notice thereof ("Acceptance"), in which event BMS shall become obligated to pay such amounts as may be triggered under this Agreement as a result thereof. Upon receipt of payment by BMS, Aurora shall issue a bill of sale to BMS, the terms of which shall be consistent with the terms of this Agreement (including without limitation Article 5 hereof), confirming transfer of title to BMS of the Module and any other Deliverables so purchased by BMS. 2.1.3.2 Upon payment by BMS for the first Module Two to be installed hereunder, Aurora shall be obligated to sell and supply to BMS, and BMS will be deemed to have firm ordered, an identical Module Two to the first one so purchased and accepted by BMS. Aurora agrees to manufacture and install such second Module Two at BMS ***. BMS shall have *** to accept or reject such Module Two, using the same Specifications and Acceptance procedures as applied to its testing of the initial Module Two (except that the acceptance tests must be completed *** , and that BMS shall have only *** to run such tests again if such Module Two fails to meet the Specifications therefor during the initial acceptance testing). Upon Acceptance by BMS of such second Module Two, BMS shall pay to Aurora *** as the purchase price therefor within *** days thereafter; provided, however, that if Aurora shall have failed to install a Second Module Two that meets the Specifications therefor by not later than *** following payment by BMS of such initial Module Two (without regard to any event or circumstance otherwise entitling Aurora to delay performance under section 14.3), then BMS shall be entitled to *** ***CONFIDENTIAL TREATMENT REQUESTED 13 15 *** *** *** The second Module Two shall be shipped F.O.B. the BMS facility designated by BMS. Upon receipt of payment by BMS, Aurora shall issue a bill of sale to BMS, the terms of which shall be consistent with the terms of this Agreement (including without limitation Article 5 hereof), confirming transfer of title to BMS of the Second Module Two so purchased by BMS. 2.1.4 Force Majeure Deadline Limitation. Notwithstanding section 14.3, in no event shall any time frame, due date, or deadline arising under this Agreement with respect to the development, manufacture, delivery, installation or acceptance of any Module, Deliverable, Reporter System component, or Exclusive Screen be extended by Aurora, by reason of an event or circumstance entitling Aurora otherwise to extend same under section 14.3, beyond the date that is *** following the applicable time frame, due date, or deadline. 2.1.5 Payments Relating to Development of the UHTSS. BMS will make the following payments to Aurora in consideration of the development, completion, purchase, and installation of the UHTSS: 2.1.5.1 A payment of *** shall be made *** in consideration of the design and development of the UHTSS by Aurora hereunder. 2.1.5.2 A payment of *** shall be made *** of *** 2.1.5.3 A payment of *** shall be made *** of *** 2.1.5.4 A payment of *** shall be made *** BMS of *** 2.1.5.5 In consideration of the design, development, manufacture, installation and support of the UHTSS, payments of *** *** shall be made, the first payment to be made *** occurring after the Effective Date and *** which payments shall *** provided, however, that: ***CONFIDENTIAL TREATMENT REQUESTED 14 16 2.1.5.5.1 If BMS shall have *** under the preceding sentence and a fully operational and complete UHTSS has not then been installed and accepted by BMS, Aurora shall continue to develop an acceptable UHTSS unless and until BMS withdraws from further development upon written notice to Aurora as herein provided, and no further payments shall be due or payable by BMS under this Agreement *** that ***in respect of such development, supply, and installation of an acceptable UHTSS and its use by BMS in accordance with this Agreement. 2.1.5.5.2 If BMS shall have accepted a fully operational, complete UHTSS ***, BMS shall pay to Aurora ***. 2.1.5.5.3 If BMS shall have withdrawn from development of the UHTSS pursuant to section *** or *** hereof, any payments to be made thereafter pursuant to *** shall be governed by the terms of sections ***. 2.1.5.6 In addition to any payments to be made under sections *** following payments shall be made ***: 2.1.5.6.1 *** or *** BMS will pay *** to Aurora ***. 2.1.5.6.2 ***, BMS will pay *** to Aurora ***. 2.1.5.6.3 ***. 2.1.5.6.4 The time periods set forth in sections 2.1.5.6.1-2.1.5.6.3 shall not be extended by reason of any event of force majeure referred to in section 14.3. *** CONFIDENTIAL TREATMENT REQUESTED 15 17 2.1.6 *** 2.1.7 Withdrawal by BMS From UHTSS Development Without Cause. BMS may elect at any time prior to Acceptance to cease further participation in the development of the UHTSS for any reason without good cause ("good cause" being defined in section 2.1.8), effective upon written notice of same to Aurora. In such event: 2.1.7.1 Aurora shall be free to continue further development of the UHTSS at its discretion and expense, and to change the design or specifications therefor as Aurora shall determine. 2.1.7.2 *** to ***, BMS shall pay to Aurora the sum of *** and shall not be required to make any further payments under ***; otherwise, BMS shall pay to Aurora *** so that BMS will have ***. 2.1.7.3 BMS shall pay to Aurora an amount equal to *** of the milestone payment that would next have been made under section *** be). Except for such payment (and any payments not previously made that were then due and owing under any of *** as of the date of BMS' withdrawal), no further payments under any of sections *** shall be due or made. 2.1.7.4 *** provided, however, that 2.1.7.4.1 BMS may, for ***, continue to make and use any one or more Nonexclusive *** CONFIDENTIAL TREATMENT REQUESTED 16 18 Screen(s) and to use any Aurora Patent Rights and Copyright rights necessary therefor and any Reporters provided by Aurora in connection therewith, so long as BMS gives written notice to Aurora, *** as to the Nonexclusive Screen(s) so elected for such continued use by BMS and pays Aurora *** for each such Nonexclusive Screen so elected. No withdrawal under this section 2.1.7.4 shall affect or relieve BMS of *** or, to the extent elected by BMS herein, following such withdrawal; and 2.1.7.4.2 BMS shall be entitled to use thereafter in internal research (including screening and drug development) those Accepted components of the UHTSS as to which BMS has made the payments required under *** hereof and to exercise a nonexclusive, irrevocable, and fully paid-up right and license under any Aurora UHTSS Patent Rights and Aurora UHTSS Copyrights existing as of the date of such BMS withdrawal that are needed in connection therewith, for so long as BMS may conduct such internal research; and 2.1.7.4.3 No such withdrawal shall affect BMS' right to continue to make and use thereafter in internal research (including screening and drug development) any Exclusive Screen as was developed prior to the date of such withdrawal or which the parties may develop thereafter based on any agreement to develop same that was agreed upon prior to the date of such withdrawal or otherwise (and to continue to use any Aurora Patent Rights and Copyrights covering the manufacture and use of such Exclusive Screen(s) that are needed for such purpose), for so long as BMS may conduct such internal research; provided, that *** payments that BMS would otherwise be obligated to make *** shall not be affected thereby and shall continue to be made by BMS; and provided, further, that no such withdrawal shall affect either party's obligations and rights under (including without limitation Aurora's obligation to develop and supply and BMS' right to use thereafter any Exclusive Screen developed under) any ESP Work Plan entered into prior to the date of such withdrawal; and 2.1.7.4.4 No such withdrawal shall limit or restrict BMS and its Affiliates in any way from continuing to research, develop, manufacture, use and sell Hits identified prior to such withdrawal or which are identified thereafter in accordance with the rights retained by BMS under this section 2.1.7.4 (and any Lead Compounds, Approved PLP Compounds, and Products derived from such Hits), and to use any Aurora ***CONFIDENTIAL TREATMENT REQUESTED 17 19 Patent Rights and Copyrights as may be needed to make, use and sell same, provided that BMS shall remain obligated to pay Aurora *** 2.1.7.4.5 In the event such withdrawal occurs after BMS has ordered, but not yet accepted, the second Module Two under paragraph 2.1.3.2 hereof, then the parties shall continue to fulfill their obligations under such paragraph without regard to such withdrawal. If accepted, BMS shall be entitled to use thereafter in internal research (including screening and drug development) such second Module Two so long as BMS shall have made the payment *** of and to exercise a nonexclusive, irrevocable, and fully paid-up right and license under any Aurora UHTSS Patent Rights and Aurora UHTSS Copyrights existing as of the date of delivery of such second Module Two that are needed in connection therewith, for so long as BMS may conduct such internal research. 2.1.7.5 Nothing in this section 2.1.7 is intended to prevent or restrict, or shall be construed as preventing or restricting, BMS and its Affiliates from using in any internal research (including drug development): (i) any Reporters supplied to BMS by Aurora prior to such withdrawal, or (ii) any Aurora Technology disclosed to it by Aurora prior to such withdrawal to the extent that the manufacture, use or sale of such Aurora Technology is not covered by a Valid Claim under the Aurora Patent Rights or the Aurora Copyrights; provided, however, that notwithstanding the foregoing, BMS may not use in its internal research thereafter any tangible embodiments of Aurora's Confidential Information pertaining to the Aurora Reporter System Technology. It is further understood that nothing in this section 2.1.7 alters any confidentiality obligations of the parties under this Agreement with respect to disclosures to Third Parties. 2.1.8 Withdrawal by BMS From UHTSS Development With Cause. In the event that BMS elects prior to Acceptance to cease further participation in the development of the UHTSS for good cause (as defined below), it shall give written notice of same to Aurora. In such event: 2.1.8.1 Aurora shall be free to continue further development of the UHTSS and to change the design or specifications therefor as Aurora shall determine. 2.1.8.2 BMS shall have no obligation to make any remaining payments (other than payments already due and owing as of the date of BMS' withdrawal) under *** . ***CONFIDENTIAL TREATMENT REQUESTED 18 20 2.1.8.3 No further payments under any of sections *** - *** shall be due or made, other than any payments not previously made that were then due and owing under such section(s) as of the date of BMS' withdrawal. 2.1.8.4 All Aurora Patent Rights licensed to BMS under Article 5 hereof shall terminate (other than such Aurora Patent Rights and Copyright rights as are necessary to allow BMS to effectuate its rights under sections 2.1.8.4.1-2.1.8.4.5 below), and BMS shall cease thereafter development of any new Nonexclusive Screens for which the manufacture or use of same is covered by such Aurora Patent Rights or Copyrights; provided, however, that 2.1.8.4.1 BMS shall be entitled without additional charge therefor to continue to make and use thereafter in its internal research (including screening and drug development), and to use any Aurora Patent Rights and Copyright rights needed to make and use same, any Nonexclusive Screens incorporating any Reporters provided by Aurora and/or that covered by any Aurora Patent Rights or Copyrights where such Nonexclusive Screens were developed by BMS prior to such withdrawal date, for so long as BMS may conduct such internal research. No good cause withdrawal under this section 2.1.8.4 shall affect or relieve BMS of *** or as permitted hereunder thereafter following such withdrawal; and 2.1.8.4.2. BMS shall be entitled to use thereafter in internal research (including screening and drug development) those Accepted components of the UHTSS as to which BMS has made the payments required *** and to exercise a nonexclusive, irrevocable, and fully paid-up right and license under any Aurora UHTSS Patent Rights and Aurora UHTSS Copyrights existing as of the date of such BMS withdrawal that are needed in connection therewith, for so long as BMS may conduct such internal research; and 2.1.8.4.3 No such withdrawal shall affect BMS' right to continue to make and use thereafter in internal research (including screening and drug development) any Exclusive Screen as was developed prior to the date of such withdrawal or which the parties may develop thereafter based on any agreement to develop same that was agreed upon prior to the date of such withdrawal or otherwise (and to continue to use any Aurora Patent Rights and Copyrights covering the manufacture and use of such Exclusive Screen(s) for such purpose), for so long as BMS may conduct such internal research; provided, that any *** payments that BMS would otherwise be obligated to make *** *** CONFIDENTIAL TREATMENT REQUESTED 19 21 shall not be affected thereby and shall continue to be made by BMS; and provided, further, that no such withdrawal shall affect either party's obligations and rights under (including without limitation Aurora's obligation to develop and supply and BMS' right to use thereafter any Exclusive Screen developed under) any ESP Work Plan entered into prior to the date of such withdrawal; and 2.1.8.4.4 No such withdrawal shall limit or restrict BMS and its Affiliates in any way from continuing to research, develop, manufacture, use and sell Hits identified prior to such withdrawal or which are identified thereafter in accordance with the rights retained by BMS under this section 2.1.8.4 (and any Lead Compounds, Approved PLP Compounds, and Products derived from such Hits), and to use any Aurora Patent Rights and Copyrights as may be needed to make, use and sell same; provided, that BMS shall remain obligated to pay Aurora *** 2.1.8.4.5 In the event such withdrawal occurs after BMS has ordered, but not yet accepted, the second Module Two under paragraph 2.1.3.2 hereof, then the parties shall continue to fulfill their obligations under such paragraph without regard to such withdrawal. If accepted, BMS shall be entitled to use thereafter in internal research (including screening and drug development) such second Module Two so long as BMS shall have made the payment *** and to exercise a nonexclusive, irrevocable, and fully paid-up right and license under any Aurora UHTSS Patent Rights and Aurora UHTSS Copyrights existing as of the date of delivery of such second Module Two that are needed in connection therewith, for so long as BMS may conduct such internal research. 2.1.8.5 Nothing in this section 2.1.8 is intended to prevent or restrict, or shall be construed as preventing or restricting, BMS and its Affiliates from using for any internal research (including screening and drug development) purpose, following any such withdrawal with good cause: (i) any Reporters supplied to it by Aurora prior to the withdrawal date or (ii) any Aurora Technology disclosed to it by Aurora prior to the withdrawal date where the manufacture, use or sale of such Aurora Technology is not covered by a Valid Claim under the Aurora Patent Rights or Aurora Copyrights. It is further understood that nothing in this section 2.1.8 alters any confidentiality obligations of the parties under this Agreement with respect to disclosures to Third Parties. *** *** CONFIDENTIAL TREATMENT REQUESTED 20 22 *** 2.1.9 Syndicate Formation and Limitations. It is anticipated that Aurora may seek to collaborate with, develop and supply to, and/or grant certain license rights to Third Parties with respect to the development, use and/or supply of a UHTSS to such Third Party. Notwithstanding the foregoing, Aurora covenants and agrees that, so long as BMS is not in default of any payment obligation hereunder and has not terminated its participation in the development of the UHTSS, then, until the date that is *** following the date that BMS shall have accepted a fully operational, complete UHTSS pursuant to section 2.1.3., Aurora will not, without BMS' prior written consent, (A) enter into agreements with more than *** Third Parties (i) under which Aurora grant a license rights to such Third Party to use the Aurora UHTSS Patent Rights or Copyrights or Aurora UHTSS Technology rights so that such Third Party may make or use any ultra- *** CONFIDENTIAL TREATMENT REQUESTED 21 23 high throughput screening system similar to the UHTSS, and/or (ii) under which Aurora will develop, sell (whether by purchase, financial lease, lease with option to purchase, or otherwise), and/or supply, whether (or not) in collaboration with such Third Party or otherwise, any ultra-high throughput screening system similar to the UHTSS to such Third Party, and (B) enter into any operating lease for a UHTSS with a Third Party or license any Aurora UHTSS Technology or Aurora UHTSS Patent Rights to a Third Party in order to allow such Third Party to build its own UHTSS without infringing such rights. Subject to section 2.1.10 (where applicable), nothing in this section 2.1.9 is intended to limit or restrict: - the number of parties to whom Aurora may supply or grant licenses with respect to any Reporters, the Aurora Reporter System Patent Rights, or the Aurora Reporter System Technology, and/or - Aurora's ability to provide screening services using the Aurora Patent Rights and Aurora Technology to Third Parties, provided that such screening services do not involve a screen that is exclusive to BMS under section 3.1.2 hereof or otherwise conflict with any provisions of this Agreement. *** *** CONFIDENTIAL TREATMENT REQUESTED 22 24 *** *** CONFIDENTIAL TREATMENT REQUESTED 23 25 *** 2.1.10.3 In the event of any dispute between BMS and Aurora under this section 2.1.10 as to any financial issue or determination, the parties agree to use non-binding arbitration first in an effort to resolve any such dispute, as follows: Aurora shall select a independent accountant reasonably acceptable to BMS (who is neither Aurora's nor BMS' normal independent accountant) who will review the facts and circumstances surrounding the dispute and render an opinion on such matter. The parties will reasonably cooperate with such independent accountant's efforts, and will evenly share the fees and expenses of such independent accountant during the pendency of such proceedings, with the loser to be responsible for all such fees and expenses and to reimburse the winner for its share paid. The independent accountant will execute a confidentiality agreement with each party prior to obtaining each party's relevant confidential information and which will only be used for the purpose of rendering such accountant's opinion. Neither party shall have any obligation to provide any information, however, which would effect a waiver of any privileges available to either party. 2.1.11 Supply of Reporters and Related Reagents/Tools. So long as BMS has made payments in accordance with section 2.1.12 hereof, then, at BMS' request, Aurora will supply to BMS, and will use reasonable efforts to supply same within 30 days after receipt of a written purchase order therefor, such Reporters then available to Aurora and other reagents/tools pertaining thereto (e.g., plasmids) as BMS may require in order to use the Reporter System in a Nonexclusive Screening Program conducted by BMS. BMS will be charged for all supplies so delivered at *** . BMS will pay for all supplies so ordered within *** days after delivery and acceptance by BMS. All such supplies shall be delivered F.O.B. the destination point designated by BMS. Any supplies that BMS receives that are damaged, defective or inactive shall be returned by BMS (or destroyed if so designated by Aurora), and an appropriate exchange of, or credit or refund for, same shall be made by Aurora, as BMS may elect. 2.1.12 Payments in Consideration of the Use of the Aurora Reporter System Technology and Reporter System Patent Rights. 2.1.12.1 Until such time as BMS shall have accepted, if at all, a fully operational, complete UHTSS in accordance with the provisions of this Agreement, BMS' right to continue to use any Reporters supplied by Aurora and to continue to use the Aurora Reporter System Patent Rights licensed to BMS hereunder shall be conditioned upon the payment by BMS, at BMS' election annually, to Aurora of *** . If BMS elects to continue such rights, such amount *** CONFIDENTIAL TREATMENT REQUESTED 24 26 shall be paid *** during each such calendar year. If BMS affirmatively notifies Aurora that BMS no longer will exercise such rights or if it fails to make a payment, then BMS' right to use the Aurora Reporter System Patent Rights licensed to BMS hereunder shall terminate; provided, that before any such termination for nonpayment shall be effective, Aurora shall have first notified BMS in writing of such failure to pay, and BMS fails within *** days thereafter to pay the amount required to maintain such rights. If and once BMS has accepted a fully operational, complete UHTSS in accordance with the provisions of this Agreement, BMS' right to continue to use any Reporters supplied by Aurora and to continue to use the Aurora Reporter System Patent Rights licensed to BMS hereunder shall be conditioned upon the payment by BMS, at BMS' election annually, to Aurora of ***. If BMS so elects to continue such rights, such amount shall be paid *** during each such calendar year. If BMS affirmatively notifies that it no longer will exercise such rights or if it fails to make a payment, then BMS' right to use the Aurora Reporter System Patent Rights licensed to BMS hereunder shall terminate; provided, that before any such termination for nonpayment shall be effective, Aurora shall have first notified BMS in writing of such failure to pay, and BMS shall have failed within *** days thereafter to pay the amount required to maintain such rights. 2.1.12.2 Nothing in this section 2.1.12 is intended to prevent or restrict, or shall be construed as preventing or restricting, BMS and its Affiliates from using for any internal research (including drug development) purpose, following any termination of rights pursuant to this section 2.1.12: (i) any Reporters supplied to BMS by Aurora prior to the applicable termination date or (i) any Aurora Technology disclosed to it by Aurora prior to the applicable termination date where the manufacture, use or sale of such Aurora Technology is not covered by a Valid Claim under the Aurora Patent Rights or by any Aurora Copyrights. It is further understood that nothing in this section 2.1.12 alters any confidentiality obligations of the parties under this Agreement with respect to disclosures to Third Parties. 2.1.13 Option to Purchase Additional UHTSS Components. BMS and its Affiliates shall have the right to purchase one or more additional UHTSS's (or any of the components comprising same) from Aurora, and Aurora agrees to manufacture and supply same, upon issuance of a firm purchase order to Aurora for same, subject to the following terms and conditions: 2.1.13.1 Such option may be exercised by BMS for one or more additional UHTSS's (or any of the components comprising same) at any time after payment for the first UHTSS (or the payment for the components comprising same) under *** CONFIDENTIAL TREATMENT REQUESTED 25 27 section 2.1.5 and prior to the date that is ***. 2.1.13.2 The price of each such additional UHTSS (or component) shall be ***. In the event that the applicable price is determined by reference to (C)(i) above, Aurora shall provide reasonable substantiation of such costs to BMS. BMS will reimburse Aurora for any reasonable shipping, packaging and insurance costs as are not included within the foregoing pricing. The UHTSS (and any such components) shall be shipped F.O.B. such BMS facility as is designated by BMS and shall be subject to the terms of the purchase order and to the same terms and conditions, including Acceptance, as are set forth herein for the initial UHTSS. 2.1.13.3 BMS will pay to Aurora *** of the estimated purchase price within *** after *** by Aurora, with another *** to be paid within *** following *** (or applicable components) covered by the purchase order, and the balance to be paid within *** same by BMS. Upon receipt of payment by BMS, Aurora shall issue a bill of sale to BMS, the terms of which shall be consistent with the terms of this Agreement (including without limitation Article 5 hereof), confirming transfer of title to BMS of any such UHTSS component so purchased by BMS 2.1.13.4 All items so ordered by BMS shall be manufactured by Aurora and delivered to BMS not later than *** following receipt of the purchase order for same from BMS; provided, that the delivery date for such additional UHTSS's or components so ordered by BMS may not be earlier than *** following the applicable UHTSS Target Delivery Date corresponding to same. 2.1.13.5 All items so purchased by BMS under this section 2.1.13 shall be eligible for maintenance service under the same terms as apply to the purchase of the UHTSS components hereunder. Such maintenance shall be provided *** acceptance of such item by BMS, and thereafter, may be purchased by BMS at its election *** by *** of such item. 3.0 EXCLUSIVE AND NONEXCLUSIVE SCREENING PROGRAMS *** CONFIDENTIAL TREATMENT REQUESTED 26 28 3.1 Exclusive Screening Program. The parties will collaborate in developing and conducting an Exclusive Screening Program (ESP), as follows: 3.1.1 Scope. Under the ESP, BMS and Aurora will collaborate, using the Aurora Screening Technology, to develop high throughput and/or ultra high throughput screens for BMS' use in accordance with this Agreement and which will be manufactured by Aurora and delivered to BMS on *** selected by BMS (which targets must be reasonably acceptable to Aurora, such consent not to be unreasonably withheld). The parties will collaborate on the specifications for, and development of, the particular screens (each screen, together with all of the reagents and any other materials to be delivered by Aurora in connection therewith, is referred to hereinafter as an "ESP Screen"), which shall be manufactured by Aurora and delivered to BMS (the "ESP Collaborative Activities"). BMS will propose the targets and the parties will use all reasonable efforts to select two targets within *** following the Effective Date, and the remaining target within *** after the Effective Date; provided, however, that BMS shall not be obligated to propose (i) more than *** targets with respect to the *** targets to be agreed upon during said *** (and if the parties are unable to agree upon *** targets from ***, this section 3.1.1 shall apply only to the ***, on which the parties have been able to agree), and (ii) more than *** with respect to the *** target to be agreed upon within said *** period (and if the parties are unable to agree upon such *** target, neither party shall be under any obligation with respect to the joint development of an ESP Screen for such *** target). Promptly following mutual agreement on the selection of each target, the parties will jointly prepare an "ESP Work Plan", which shall set forth in detail the respective responsibilities of the parties in the development of each ESP Screen, and which must be executed by both parties to be effective. Each such ESP Work Plan will contain, where applicable, a description of the tasks to be performed by each party, location, the specific deliverables (including number of reagents and any other materials to be provided for each ESP Screen and any specifications therefor) and documentation to be produced by Aurora, acceptance criteria for each ESP Screen, any warranty periods, a schedule of performance, fees (as determined in accordance with this section 3.1.1), a schedule of payments, and any other relevant work specifications (including the "closely-related target" definition contemplated by section 3.1.2). Promptly following the execution of each ESP Work Plan, the parties will commence their respective duties under the ESP Work Plan for the development, manufacture, and delivery of the applicable ESP Screen. All work under an ESP Work Plan shall be performed in accordance with the provisions of this Agreement, and each party will use its reasonable best efforts to complete its obligations under the ESP Work Plan as expeditiously as practicable. If any provisions of any such ESP Work Plan should conflict with any provisions set forth in this Agreement, the provisions of this Agreement shall take precedence, unless such ESP Work Plan expressly refers to the specific provision(s) of this Agreement that it is intended to replace or modify (and which shall be ***CONFIDENTIAL TREATMENT REQUESTED 27 29 limited in force and effect to such ESP Work Plan only). During the development of an ESP Screen, Aurora will update BMS quarterly in reasonable detail in writing with respect to its development activities with respect to each such ESP Screen and will update BMS verbally at more frequent intervals. In developing each ESP Work Plan, the parties will jointly determine and agree upon the fee to be paid by BMS to Aurora for development, manufacture and delivery of an ESP Screen acceptable to BMS for the target in question. The parties understand and agree that the total fee for such effort ***. The *** shall be paid within *** following execution of the ESP Work Plan, the *** shall be reimbursed to Aurora by BMS monthly in arrears ***, and the *** shall be paid *** following ***. In the event that BMS pays, in whole or in part, for any work to be performed and materials to be delivered as part of an ESP Work Plan, and Aurora is unable to deliver an ESP Screen and related reagents and other materials acceptable to BMS for the target in question by the date called for in the ESP Work Plan ***, then BMS may elect in its sole discretion either: (i) to extend the delivery date (but only a writing signed by an officer of BMS shall be sufficient); (ii) not to continue further development of that target or a substitute target, in which event the parties will be deemed to have fulfilled their obligation to develop ***; or (iii) to propose an additional target in substitution of such target for which an acceptable ESP Screen could not be developed (which target shall be reasonably *** CONFIDENTIAL TREATMENT REQUESTED 28 30 acceptable to Aurora), in which event, in determining the fee to be paid by BMS for such ESP Work Plan, Aurora shall not be entitled to ***, and BMS shall be entitled to *** of such unusable ESP Screen against the *** to be charged BMS under such substitute ESP Work Plan developed for any such other target. All Materials provided by BMS in furtherance of a ESP Work Plan shall be used in accordance with Exhibit 3.1.1 attached hereto. 3.1.2 Exclusivity. Following selection by BMS and Aurora of a target for an ESP Work Plan and until the date that is *** following the date that an ESP Screen for such target is delivered to and accepted by BMS, Aurora agrees that it and its Affiliates will not provide to any Third Party or use for the benefit of any Third Party, and will not collaborate or contract with any Third Party on the development of, any screens for the same target or any target that is "closely-related" to the target so selected, nor grant license rights to any Third Party that would conflict with the foregoing by allowing such Third Party to use any Aurora Patent Rights, Copyrights or Aurora Technology to make or use any such screen. Notwithstanding anything that the preceding sentence might imply to the contrary, BMS does not waive or relinquish any cause of action it may have relating to infringement of, nor shall the foregoing be construed to imply or create in any way any rights in Aurora following such *** period under, any patent rights that may be owned or Controlled by BMS and its Affiliates pertaining to the manufacture, use or sale of any such ESP Screen, to any BMS Materials or other substances contained therein or used to make such ESP Screen, or to any processes used to make such ESP Screen. It is understood that, to the extent that Aurora has granted a Third Party a license to use the Aurora Reporter System Technology and Aurora Reporter System Patent Rights on an unrestricted basis, Aurora cannot guarantee or warrant that such Third Party's will not use such rights in accordance with such grant to develop and use a screen that competes with an ESP Screen developed by Aurora for BMS hereunder; provided, that where Aurora and BMS are contemplating or performing an ESP Work Plan for an ESP Screen that Aurora is aware is also under development by a Third Party to whom Aurora has licensed unrestricted rights that allow such Third Party to develop same or with whom Aurora is then collaborating on the development thereof, Aurora will inform BMS of such competitive development (but shall not be required to identify the Third Party) so that BMS may decide whether to pursue another ESP Screen or to enter into or continue the ESP Work Plan for such ESP Screen anyway. For purposes of this section 3.1.2, *** *** CONFIDENTIAL TREATMENT REQUESTED 29 31 3.1.3 Acceptance of Screen. Promptly following receipt of each such ESP Screen, BMS will test same for acceptability to BMS in terms of effectiveness, accuracy, reliability, and conformity to specifications as set forth in the ESP Work Plan. BMS shall notify Aurora in writing as to whether BMS accepts each such ESP Screen based on the foregoing criteria *** (and if not, BMS will provide Aurora with a list of the deficiencies found by BMS so that Aurora may develop an acceptable ESP Screen). Aurora will promptly remedy such deficiencies and provide an acceptable ESP Screen within a reasonable time *** thereafter. If at any time during the Contract Term an ESP Screen for whatever reason loses its effectiveness or efficacy or is no longer biologically active, Aurora will replace same as promptly as practicable at no additional cost to BMS (unless the replacement is required as a result of negligence on the part of BMS, in which event BMS will reimburse Aurora ***). 3.1.4 Improvements. Improvements to an ESP Screen that may be made by Aurora during the Contract Term following delivery to and acceptance by BMS of such Screen shall be made available to BMS, upon written request from BMS, for a fee equal to *** incurred by Aurora to improve and optimize same, plus ***. At BMS' request, and prior to commencing such work, Aurora will provide BMS with a firm estimate *** Payment shall be made by BMS following acceptance of same, using the same acceptance procedure as set forth in section 3.1.3 for the initial ESP Screen. 3.1.5 Deployment of Screen by BMS. BMS will employ each such accepted ESP Screen to screen such BMS Test Materials as BMS deems appropriate for such purpose in the exercise of its sole and absolute discretion. 3.1.6 Additional Screens. Subject to the same terms and conditions as are set forth in this section 3.1 (e.g., mutual acceptability of the target, exclusivity, development of a mutually acceptable ESP Work Plan for same, etc.), BMS may elect that the number of ESP Screens on which BMS and Aurora shall collaborate to develop and deliver to BMS be increased to *** *** during each year of this Agreement until the date that BMS accepts a complete, fully operational UHTSS pursuant to section 2.1.3 or the date that is *** following the Effective Date, whichever is the later date. 3.1.7 Rights in BMS Compounds. All right, title and interest in any Inventions relating in any way to any BMS Test Materials and any BMS Hits or Lead Compounds which arise out of, or are conceived or reduced to practice as a result of, the development or use of an ESP Screen by or for BMS shall be owned solely by BMS, and to the extent that Aurora or any of its employees or contractors might be considered a co-inventor of any such Invention, Aurora hereby assigns to BMS all rights, title and interest in and to any such Invention made by it, its employees or contractors. Aurora agrees to execute any instruments or other documents, at BMS' reasonable request and expense, to confirm and *** CONFIDENTIAL TREATMENT REQUESTED 30 32 vest same, and agrees to maintain appropriate contractual arrangements with its employees and contractors to effectuate same. 3.1.8 Payments to Aurora. In addition to such payments as are made by BMS to Aurora pursuant to section 3.1.1 hereof, the following payments shall be made to Aurora with respect to the delivery and use of the ESP Screens by BMS: 3.1.8.1 Milestones. BMS will pay to Aurora: 3.1.8.1.1 Where BMS has determined that a Hit identified in an ESP Screen should become a Lead Compound and enter a Lead Compound Development Program conducted by BMS, BMS will promptly notify Aurora in writing of same and will pay to Aurora *** for each such Lead Compound. Payments shall be wired to a bank account specified by Aurora within *** following such notification from BMS. 3.1.8.1.2 BMS will promptly notify Aurora in writing of each Approved PLP Compound approved by the BMSPGOC. BMS will pay Aurora *** for each Approved PLP Compound so approved for further development by the BMSPGOC; provided, that if a Hit under section 3.1.8.1.1 should be approved as an Approved PLP Compound without first having been approved to enter a Lead Compound Development Program (such that Aurora did not receive any payment under section 3.1.8.1.1), then BMS shall pay Aurora *** upon any such Hit so approved for further development as an Approved PLP Compound by the BMSPGOC. Payments shall be wired to a bank account specified by Aurora within *** following such notification from BMS. 3.1.8.1.3 If an Approved PLP Compound should reach the following milestones, BMS will promptly notify Aurora of same and will pay the following amounts to Aurora: Event Payment (US$) *** *** CONFIDENTIAL TREATMENT REQUESTED 31 33 *** provided, however, that if a Hit identified using a particular ESP Screen and on which milestones payment(s) above have been made should be dropped from further development by BMS, for whatever reason, then no more milestone payments shall be due with respect to any subsequent Hit so identified in the same ESP Screen, unless and until such subsequent Hit reaches the milestone next following the last milestone on which a payment was made for the abandoned compound. Payments shall be wired to a bank account specified by Aurora *** days following the date that any such milestone is reached. 3.1.8.2 Royalties. With respect to each Covered Product identified as a Hit in a Exclusive Screen, BMS shall pay a royalty on Net Sales of such Covered Product during the Royalty Term for such Covered Product, as follows *** *** *** ; provided, however, that where the potential use or application for a disease indication of any compound or Analog thereof (or the active substance therein) was identified (whether in laboratory notebooks, patent application(s), or otherwise) by BMS prior to the date that such compound, Analog or active substance was identified as a Hit hereunder, then no royalty shall be due on a Covered Product incorporating same to the extent sold for the treatment or prevention of diseases or conditions for which such compound, Analog or Product is being sold, being developed, or planned for development by BMS at the time of such identification. *** CONFIDENTIAL TREATMENT REQUESTED 32 34 Royalties for Net Sales of any Covered Product in any given country shall be due and payable only during the Royalty Term for such Covered Product in such country; thereafter, BMS shall be entitled to continue to sell such Covered Product in such country without further compensation to Aurora. 3.2 Nonexclusive Screening Payments. As part of the rights licensed under section 5.1.1 hereof, BMS and its Affiliates shall be entitled to use and practice the Aurora Reporter System Technology and Aurora Reporter System Patent Rights and Copyrights licensed to it under section 5.1.1 hereof and to use any Reporters or other reagents/tools covered thereby that are supplied to BMS by Aurora pursuant to this Agreement for internal research and drug development, including to develop, make and use in internal research and drug development any high throughput and ultra high throughput screens targeting any targets as BMS in its discretion may select (collectively, such activities referred to as the "Nonexclusive Screening Program" or "NSP", and any such screen, the manufacture or use of which is covered by the Aurora Patent Rights or Copyrights or in which the Reporters supplied by Aurora are used, referred to as a "Nonexclusive Screen"). BMS shall be entitled to conduct any internal research, development and commercialization thereafter of any Hits arising out of any such NSP activities as BMS in its discretion may elect to conduct. Promptly following the Effective Date, Aurora will commence training of BMS personnel at Aurora in the use and application of the Aurora Reporter System Technology and any Reporters or other reagents/tools to be supplied to BMS by Aurora pursuant to this Agreement so that BMS may develop, make and use Nonexclusive Screens for use by BMS in accordance with this Agreement. The number of such individuals shall be jointly determined by BMS and Aurora but shall be a number sufficient to allow for BMS to effect rapid scale-up in its use of the Aurora Reporter System Technology. If more individuals need to be trained than can be reasonably accommodated in the first training session, the parties will jointly schedule additional sessions as reasonably necessary. Each party will bear its own costs in connection with such training sessions. Subject to section 3.2.4 below, BMS shall make milestone payments to Aurora with respect to such Hits as arise out of any use of a Nonexclusive Screen by BMS or its Affiliates, as follows: 3.2.1 Where BMS has determined that a Hit identified through the use of any such Nonexclusive Screen should become a Lead Compound and enter a Lead Compound Development Program conducted by BMS, BMS will promptly notify Aurora of same and will pay to Aurora *** for each such Lead Compound. Payments shall be wired to a bank account specified by Aurora within *** following such notification from BMS. 3.2.2 BMS will promptly notify Aurora of each Lead Compound arising out of section 3.2.1 that becomes an Approved PLP Compound, and will pay Aurora *** for each Approved PLP Compound so approved for further development by the BMSPGOC; provided, that if a Hit under section 3.2.1 should be approved as an Approved PLP Compound without first having been approved to enter a *** CONFIDENTIAL TREATMENT REQUESTED 33 35 Lead Compound Development Program (such that Aurora did not receive any payment under section 3.2.1), then BMS shall pay Aurora *** upon any such Hit so approved for further development as an Approved PLP Compound by the BMSPGOC. Payments shall be wired to a bank account specified by Aurora within *** following such notification from BMS. 3.2.3 If an Approved PLP Compound in section 3.2.2 should reach the following milestones, BMS will promptly notify Aurora of same and will pay the following amounts to Aurora: Event Payment (US$) *** ; provided, however, that if a Hit identified using a particular Nonexclusive Screen and on which milestones payment(s) above have been made should be dropped from further development by BMS, for whatever reason, then no more milestone payments shall be due with respect to any subsequent Hit so identified in the same Nonexclusive Screen, unless and until such subsequent Hit reaches the milestone next following the last milestone on which a payment was made for the abandoned compound. Payments shall be wired to a bank account specified by Aurora within *** following the date that any such milestone is reached. 3.2.4 The milestone payments in this section 3.2 shall apply only to Hits obtained prior to the delivery of the complete, fully operational UHTSS to BMS and only with respect to such Hits as are obtained in the *** Nonexclusive Screens developed by BMS; provided, however, that if BMS enters into an agreement with Aurora to develop more than *** ESP Screens under section 3.1 hereof, then each such additional ESP Screen in excess of *** shall reduce, by the same excess number, the number of Nonexclusive Screens under this section 3.2 for which payments might otherwise be required to be made under sections *** above. For example, if BMS enters into *** CONFIDENTIAL TREATMENT REQUESTED 34 36 ESP Work Plans for *** ESP Screens, then the milestone payments under *** shall apply only to a Hit (that is subsequently approved as a Lead Compound and that occurs prior to the date that a complete, fully operational UHTSS is delivered to BMS) in the *** Nonexclusive Screens developed by BMS. 3.2.5 All right, title and interest in any Inventions relating in any way to any BMS Test Materials and any Hits or Lead Compounds which arise out of, or are conceived or reduced to practice as a result of, the development or use of an Nonexclusive Screen by or for BMS shall be owned solely by BMS, and to the extent that Aurora or any of its employees or contractors might be considered a co- inventor of any such Invention, Aurora hereby assigns to BMS all rights, title and interest in and to any such Invention made by it, its employees or contractors. Aurora agrees to execute any instruments or other documents, at BMS' reasonable request and expense, to confirm and vest same, and agrees to maintain appropriate contractual arrangements with its employees and contractors to effectuate same. 3.3 Ownership of Data. All results and data generated by BMS, its Affiliates and its and their contractors arising out of the use by any of them of the UHTSS and any ESP Screen or Nonexclusive Screen, the use of any of the rights licensed under article 5 hereof, or otherwise arising out of this Agreement with respect to any Hits, Lead Compounds and Approved PLP Compounds (and Analogs of any of the foregoing made or obtained by BMS) or otherwise out of the internal research and development conducted by or for BMS and its Affiliates shall be owned exclusively by BMS and shall be treated as BMS Confidential Information hereunder. 3.4 Development of Products. BMS will in its sole and absolute discretion determine which, if any, such Hit(s) will be approved as Lead Compounds and developed further in a Lead Compound Development Program conducted by BMS. BMS shall be responsible for all pre-clinical (including medicinal chemistry) activities during the course of the Lead Compound Development Program for such Lead Compound, as well as following any approval of an Approved PLP Compound. The conduct of the Lead Compound Development Program shall be solely within the control and discretion of BMS, and BMS may in its discretion suspend or terminate, in whole or in part, the Lead Compound Development Program for a Lead Compound at any time. BMS will be responsible for all pre-clinical and clinical development, including all regulatory filings, of Hits, Lead Compounds, and Approved PLP Compounds arising out of this Agreement. BMS shall have sole and absolute discretion and control over the conduct of, and all activities associated with, the development or abandonment of any Hit or Lead Compound, the approval of a Lead Compound as an Approved PLP Compound, the development or abandonment of any Approved PLP Compound, all regulatory activities relating to the manufacture, use or sale of any Approved PLP Compound or Product, and the commercialization and marketing of any Product in any country. All INDs, NDAs and other regulatory filings made or filed by BMS for any Approved PLP Compound or Product shall be owned solely by BMS. BMS will provide summary annual reports to Aurora on the development status of any Approved PLP Compound then in development arising out of the ESP Screening Program and which shall *** CONFIDENTIAL TREATMENT REQUESTED 35 37 be treated as BMS Confidential Information hereunder. Other than royalty reports required hereunder, no reports shall be required of BMS with respect to any activities connected with the commercialization of any Product approved for marketing in any country. 3.5 Laboratory Facilities and Personnel. Aurora and BMS shall each, at their respective cost and expense, provide suitable and sufficient laboratory facilities and equipment, and will devote sufficient, experienced personnel, as is needed to carry out their respective obligations under this Agreement. 3.6 Payments to Third Parties by Aurora. Aurora shall be solely responsible for the performance by, and any payments of any nature whatsoever due to, Third Parties relating to the following: 3.6.1 The use by Aurora and by BMS (where used by BMS in accordance with this Agreement) of any patent rights, copyrights, Know-How or other intellectual property rights owned or controlled by such Third Party that are licensed to Aurora and which are included within the Aurora Patent Rights and Aurora Technology that are sublicensed to BMS hereunder; and 3.6.2 Any Third Party used by Aurora to provide goods or services to make, have made, sell, deliver, install and/or provide maintenance for the UHTSS and any UHTSS components supplied hereunder; and 3.6.3 Any Third Party used by Aurora to provide goods or services in connection with the preparation, manufacture, use, sale, and delivery of an applicable ESP Screen or any Reporters hereunder. 4.0 SERVICE AND SUPPORT 4.1 Service and Support. For a period until (i) *** after Acceptance of a complete, fully operational UHTSS pursuant to section 2.1.3.1 (including during the period prior to Acceptance of same during which Modules One and Two of such UHTSS are being installed and used) , (ii) *** after Acceptance of the Second Module Two pursuant to section 2.1.3.2 (or until expiration of the *** in (i), whichever is the later), and (iii) for *** after Acceptance of each additional UHTSS or component thereof as may be ordered by BMS pursuant to section 2.1.13, Aurora will provide, ***, service and support for the applicable system and all system components, as such service and support is more fully described on Exhibit 4.1 attached hereto ("Service and Support"). Aurora will be responsible for providing and paying for this Service and Support, whether provided by Aurora itself or through third party contractors (including those providing any UHTSS components to Aurora). Aurora will designate an appropriate Aurora employee to coordinate such Service and Support. Following the applicable period pertaining to (i)-(iii) under the preceding paragraph, BMS may elect to purchase Service and Support annually for up to *** thereafter (or *** CONFIDENTIAL TREATMENT REQUESTED 36 38 such longer period as the parties may mutually agree upon in writing) for such UHTSS's (or components thereof) for a fee that is *** Maintenance payments shall be payable in ***. Alternatively, BMS may utilize its own designated internal resources for some or all of such components, in combination with additional support provided directly by Aurora and/or Aurora's technology partners, at Aurora and such partners' then prevailing rates, in which event the annual maintenance fee shall be equitably prorated for the items still subject to maintenance. Following such ***. 5.0 INTELLECTUAL PROPERTY RIGHTS 5.1 License Rights. 5.1.1 *** *** CONFIDENTIAL TREATMENT REQUESTED 37 39 *** Subject to sections 2.1.9, 3.1.2, and 3.1.7 hereof, the rights granted under this section 5.1.1 shall be non-exclusive and Aurora shall be entitled to grant licenses to such rights to Third Parties upon such terms as Aurora shall determine and/or to use such rights for the benefit of itself or any Third Party. The rights granted hereunder shall be subject to any and all payments required in articles 2 and 3 hereof, and shall continue until, and to the extent, terminated in accordance with the provisions of this Agreement. 5.1.2 Notwithstanding section 5.1.1, the rights granted thereunder do not include: 5.1.2.1 Improvements to the Aurora Reporter System Technology developed after the date that is the later of *** other than those improvements that represent incremental improvements to the existing Aurora Reporter System Technology developed after such date (for example, a novel Reporter developed after such date would not fall within the improvements licensed to BMS after such date); and 5.1.2.2 Inventions pertaining to the Aurora Reporter System Technology that are made after the date that is *** any *** ); provided, that the foregoing shall not apply to Inventions that constitute incremental improvements under section 5.1.2.1; and provided, further, that any Inventions made after such date that are embodied in a division or substitute application for an Invention made prior to such date shall be included within the rights licensed to BMS hereunder. 5.1.2.3 The right to use any Reporter as a drug or tool as part of any commercial contract service or bureau to treat or diagnose diseases or conditions or to detect analytes as part of a diagnostic program for Third Parties; however, the right to use any Reporter for research (including screening and drug development) purposes, including as a drug or tool to detect analytes for research purposes, shall not be limited or restricted in any way by the foregoing. 5.2 Ownership Rights. 5.2.1 Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended to convey or transfer ownership by one party to the other of any ***CONFIDENTIAL TREATMENT REQUESTED 38 40 rights, title or interest in any Confidential Information, Technology, or patent rights owned or Controlled by a party. Except as expressly provided for in this Agreement, nothing in this Agreement shall be construed as a license or sublicense by one party to the other of any rights in any Biological Materials, Technology, Copyrights, or Patent Rights owned or Controlled by a party or its Affiliates. 5.2.2 BMS shall own all Inventions and other Technology made solely by its employees and agents, and all patent applications and patents claiming such Inventions. Subject to section 3.1.7, 3.2.5, and 5.2.3, Aurora shall own all Inventions and other Technology made solely by its employees and agents, and all patent applications and patents claiming such Inventions. Subject to Sections 3.1.7, 3.2.5, and 5.2.3, all Inventions and other Technology made jointly by employees or agents of BMS and employees or agents of Aurora shall be owned jointly by BMS and Aurora. Subject to the terms of this Agreement, all joint Inventions (and all patent rights obtained thereon) and all Technology jointly developed by Aurora and BMS during the Research Term may be freely exploited by either party without further obligation to the other. Determinations of inventorship shall be made in accordance with U.S. patent law. 5.2.3 All rights, title and interests owned or Controlled by Aurora or its Affiliates in any Inventions and Technology pertaining to any indication or use of any Hit, Lead Compound, Approved PLP Compound or Covered Product (or of Analogs of the class of compounds to which the same may pertain) that may be conceived or reduced to practice at any time during the Contract Term solely by Aurora employees or by a Third Party under contract with Aurora, or jointly by any of them with others, in connection with the activities conducted by Aurora under this Agreement, and all rights, title and interest Aurora may have in any Patent Rights that may be obtained on any of the foregoing (collectively, "Product Invention Rights"), shall be owned exclusively by BMS, and shall be deemed to be and have been automatically assigned to BMS by reason of Aurora's execution of this Agreement. Aurora shall promptly report any such Invention to BMS in sufficient detail to enable BMS to assess whether a patent application should be filed. If BMS desires to file patent applications on any such Invention, it will do so at its option and expense, and Aurora will provide reasonable cooperation as BMS may request (with BMS reimbursing Aurora for any out-of-pocket costs so incurred) in obtaining and filing for any patent protection thereon in BMS' name and will execute any documents or other instruments as may be reasonably requested by BMS to fully vest exclusive ownership of such Product Invention Rights in BMS. BMS shall be under no obligation, express or implied, to develop, market, or otherwise utilize any such Product Invention Rights. 5.3 Sublicensing. BMS shall have the right to sublicense any of the rights licensed to it by Aurora hereunder to any Affiliate of BMS, provided that such Affiliate is bound by all pertinent terms and conditions of this Agreement and provided that BMS shall not be relieved of any of its obligations under this Agreement. Nothing in this section 5.3 or otherwise in this Agreement shall restrict, or is intended to restrict, BMS in any way from collaborating with a Third Party on the development, 39 41 manufacture, or use of any Non-Exclusive Screen (or with respect to the use of an Exclusive Screen at BMS); provided, that such Third Party shall have executed an appropriate confidentiality agreement with BMS to keep in confidence any disclosures of Aurora Confidential Information that BMS may need to make in connection therewith, and provided that such Third Party shall have agreed that the use by such Third Party of any such Aurora Confidential Information or rights licensed to BMS hereunder is limited solely to developing, making, supplying, or using any such Non-Exclusive Screens (and using any such Exclusive Screens) solely in furtherance of BMS' research and drug development activities or of such collaboration as BMS may have with such Third Party; and provided, further, that BMS may not provide any Reporters to any such Third Party without Aurora's prior written consent, and may not disclose any Confidential Information pertaining to any Aurora Reporter System Technology to any such Third Party, other than to consultants and contractors working at BMS facilities who have reason to know same and in accordance with article 9. 5.4 Software. Aurora shall provide to BMS a copy of the source code and object code for any Software provided with the UHTSS (or any Module or other component) to the extent available to and under the Control of Aurora, and, if such source or object code is licensed to Aurora from a third party, upon the same terms as apply to Aurora's use of such source or object code. BMS may, in its discretion, adapt, reproduce, and modify such software and prepare derivative works based upon the software, as well as enhance or improve functionality of the software through new modules or subroutines developed by BMS for use with the software (all of the foregoing collectively, "Modifications"), all of which, as well as any rights (including copyright rights therein) shall be owned by BMS. Aurora shall have no ownership interest in, nor any right to license, use or disclose, or any obligation to support, any such Modifications developed by BMS, all of which (and the title and rights therein) shall be owned by BMS; provided, however, that BMS shall not acquire by reason of the foregoing ownership of any portions of the software code provided by Aurora or any interest in any copyright owned or held by Aurora or its licensors therein. 6.0 PAYMENTS OF ROYALTIES, ACCOUNTING FOR ROYALTIES, RECORDS 6.1 Payment Term. All royalties required to be paid by BMS hereunder shall be paid with respect to each country of the world from *** 6.2 Payment Dates. Royalties shall be paid by BMS on Net Sales within *** *** Such payments shall be accompanied by a statement showing all relevant sales information including the information employed to calculate Net Sales of each Covered Product in each country, and the calculation of the amount of royalty due. 6.3 Accounting. The Net Sales used for computing the royalties payable to Aurora by BMS shall be computed in U.S. dollars and paid by wire transfer or other mutually acceptable *** CONFIDENTIAL TREATMENT REQUESTED 40 42 means. For purposes of determining the amount of royalties due, the amount of Net Sales in any foreign currency shall be computed by converting such amount into dollars *** 6.4 Records. BMS shall keep for *** complete and accurate records of sales and all other information necessary to calculate Net Sales of each Covered Product in sufficient detail to allow the accrued royalties to be determined accurately. Aurora shall have the right to cause an independent, certified public accountant (who has executed a confidentiality agreement with BMS reasonably acceptable to BMS) to audit such records at the place or places of business where such records are customarily kept in order to verify the accuracy of the reports of Net Sales and royalty payments for the preceding two years. Such audits may be exercised during normal business hours *** . Aurora shall bear the full cost of such audit unless such audit discloses a variance of *** from the amount of the royalties due under this Agreement, in which event, *** . Aurora agrees not to disclose confidential information concerning royalty payments and reports, and all information learned in the course of any audit or inspection, except to the extent necessary for Aurora to reveal such information in order to enforce its rights under this Agreement or if disclosure is required by law. 6.5 Withholding Required by Law. If provision is made in law or regulation for taxes to be withheld by BMS, such tax shall be deducted from the royalty or other payment to be made by BMS hereunder and shall be remitted to the proper taxing authority. Payment of the royalty or other payment due to Aurora shall be net of such withholding. BMS and Aurora agree to assist the other party in claiming any exemption available from such deduction or withholdings under any double taxation or similar agreement or treaty from time to time in force. 7.0 INFRINGEMENT BY THIRD PARTIES 7.1 Actual or Threatened Infringement of BMS Materials and Products. If information comes to the attention of BMS or Aurora to the effect that any patent rights owned or Controlled by BMS or its Affiliates relating to a BMS Material, Hit, Lead Compound, Approved PLP Compound or Product are being, have been or are threatened to be infringed by a Third Party not Affiliated with BMS, BMS shall have the sole right, *** ,to take and control all action as BMS may deem necessary or appropriate to prosecute or prevent such unlawful infringement, including the right to bring, defend, settle, compromise, or appeal any suit, action or proceeding involving any such infringement. If BMS determines that it is necessary or desirable to bring an infringement action and for Aurora to join any such suit, action or proceeding, Aurora shall, *** , execute all papers, provide full cooperation and assistance to BMS in connection with such proceeding, and, if necessary, take such other actions as may be reasonably required to permit BMS to act in Aurora's name (including the furnishing of a power of attorney), and *** ; provided, however, that BMS may not settle any patent infringement *** CONFIDENTIAL TREATMENT REQUESTED 41 43 litigation under this Section 7.1 in a manner that adversely affects the scope or enforceability of Aurora's Patent Rights or that would constitute an amendment of this Agreement without Aurora's written consent (not to be unreasonably withheld or delayed). *** 7.2 Actual or Threatened Infringement of Aurora Patent Rights. 7.2.1 BMS and Aurora shall promptly notify the other in writing of any alleged or threatened infringement of any Aurora Patent Rights licensed to BMS under this Agreement of which either becomes aware. Both parties shall use reasonable efforts in cooperating with each other to terminate such infringement without litigation. Aurora shall have the first right to bring and control any action or proceeding with respect to such infringement *** and by counsel of its own choice as to any such Aurora Patent Rights, and BMS shall have the right, *** to be represented in any action involving any such Aurora Patent Rights using counsel of its own choice. 7.2.2 If Aurora fails to bring an action or proceeding within (i) *** following receipt of written notice from BMS with respect to an alleged infringement of any Aurora UHTSS Patent Rights or of any Aurora Reporter System Patent Rights used in an Exclusive Screen hereunder, or (ii) *** , set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, with respect to such Aurora UHTSS Patent Rights or any such Aurora Reporter System Patent Rights used in an Exclusive Screen hereunder, BMS shall have the right to bring and control any such action *** and by counsel of its own choice, and Aurora shall have the right, *** to be represented in any such action by counsel of its own choice. 7.2.3 In the event a party brings an infringement action under this section 7.2, the other party shall provide all reasonable cooperation, including if required to bring such action, the furnishing of a power of attorney. Neither party shall have the right to settle any proceedings under this Section 7.2 in a manner that diminishes the rights licensed to the other party hereunder or which would constitute an amendment of this Agreement, without the consent of such other party (not to be unreasonably withheld or delayed). Except as otherwise agreed to by the parties as part of a cost sharing arrangement *** *** CONFIDENTIAL TREATMENT REQUESTED 42 44 *** 7.2.4 The parties acknowledge that Aurora's ability to comply with section 7.2.1-7.2.3 above may be subject to rights and obligations under Third Party Contracts as of the Effective Date that have provided patent right, copyrights and Know-How that are included within the Aurora Patent Rights and Aurora Technology licensed to BMS hereunder. Such Third Party Contracts and the provisions therein containing such restrictions are set forth in Exhibit 7.2.4, and Aurora represents and warrants as of the Effective Date that there are no other restrictions under any such Third Party Contracts not set forth on such Exhibit that would affect its ability to perform sections 7.2.1-7.2.3 hereof and that it will not agree to any changes to such restrictions hereafter without the prior written consent of BMS (except where such changes eliminate same or make such restrictions less restrictive). 8.0 DEFENSE OF INFRINGEMENT CLAIMS 8.1 Defense of Infringement Claims Pertaining to Lead Compounds, Approved PLP Compounds, and Products. Subject to section 11.4 (to the extent applicable), Aurora will cooperate with BMS, *** , in the defense of any suit, action or proceeding against Aurora, BMS, any BMS Affiliate, or any licensee of BMS alleging the infringement of the intellectual property rights of a Third Party by reason of the manufacture, use or sale of a BMS Material, Hit, Lead Compound, Approved PLP Compound, or Product. Aurora shall give to BMS all authority (including the right to exclusive control of the defense of any such suit, action or proceeding and the exclusive right to compromise, litigate, settle or otherwise dispose of any such suit, action or proceeding), information and assistance necessary to defend or settle any such suit, action or proceeding; provided, however, BMS shall obtain Aurora's prior written consent (not to be unreasonably withheld) if any part of any proposed settlement would have an adverse effect on the scope or enforceability of the Aurora Patent Rights; *** 8.2 Defense of Infringement Claims Pertaining to Patent Rights Owned or Controlled by Aurora. Subject to section 11.3 (to the extent applicable), BMS will cooperate with Aurora, *** , in the defense of any suit, action or proceeding against Aurora, any Aurora Affiliate, BMS, any BMS Affiliate, or any licensee of BMS alleging the infringement of the intellectual property rights of a Third Party by reason of the use of the UHTSS, the Exclusive or Non-Exclusive Screens or of any Aurora Patent Rights and Aurora Technology licensed to BMS under this Agreement. Aurora shall give BMS prompt written notice of the commencement of *** CONFIDENTIAL TREATMENT REQUESTED 43 45 any such suit, action, proceeding or claim of infringement and will furnish BMS a copy of each communication relating to the alleged infringement. BMS shall give to Aurora all authority (including the right to exclusive control of the defense of any such suit, action or proceeding and the exclusive right, after consultation with BMS, to compromise, litigate, settle or otherwise dispose of any such suit, action or proceeding), information and assistance necessary to defend or settle any such suit, action or proceeding; provided, however, Aurora shall obtain BMS's prior written consent to all or such part of any settlement which requires payment or other action by BMS, its Affiliates, or licensees, or which would conflict with or have an adverse effect on the continuing use of such Screens or the rights granted hereunder to BMS, its Affiliates or licensees. *** 9.0 TREATMENT OF CONFIDENTIAL INFORMATION; PUBLICITY, AND CHANGE OF CONTROL 9.1 Confidentiality 9.1.1 Subject to the terms and conditions of this Agreement, BMS and Aurora each agree that, during the term of this Agreement and for five (5) years thereafter, each will use all reasonable efforts to keep confidential, and will cause its Affiliates to use reasonable efforts to keep confidential, all Aurora Confidential Information or BMS Confidential Information, as the case may be, that is disclosed to it or to any of its Affiliates by the other party in connection with the performance of this Agreement. Neither BMS nor Aurora nor any of their respective Affiliates shall use the other party's Confidential Information except as expressly permitted in this Agreement. 9.1.2 BMS and Aurora each agree that any disclosure of the other's Confidential Information to any officer, employee, contractor, consultant, sublicensee, or agent of the other party or of any of its Affiliates shall be made only if and to the extent necessary to carry out its responsibilities under this Agreement and to exercise the rights granted to it hereunder, shall be limited to the extent consistent with such responsibilities and rights, and shall be provided only to such persons or entities who are bound to maintain same in confidence in a like manner as the party receiving same hereunder is so required. Each party shall use reasonable efforts to take such action, and to cause its Affiliates to take such action, to preserve the confidentiality of each other's Confidential Information, including not less than such efforts as it would customarily take to preserve the confidentiality of its own Confidential Information. Each party, upon the other's request, will return all the Confidential Information disclosed to the other party pursuant to this Agreement, including all copies and extracts of documents, within sixty (60) days of the request of the other party following any termination of this Agreement, except for one (1) *** CONFIDENTIAL TREATMENT REQUESTED 44 46 copy which may be kept for the purpose of ascertaining and complying with continuing confidentiality obligations under this Agreement, and except for such copies as a party may retain in order to continue to exercise its rights hereunder (for example, under sections 2.1.7.4, 2.1.7.5, 2.1.8.4, 2.1.8.5, 2.1.12.2, 12.5.2, or 12.5.3) following termination of this Agreement. 9.1.3 Confidential Information shall not include any information which the receiving party can prove by competent evidence: i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; ii) is known by the receiving party at the time of receiving such information, as evidence by its records; iii) is hereafter furnished to the receiving party without restriction as to disclosure or use by a Third Party lawfully entitled to so furnish same; iv) is independently developed by the employees, agents or contractors of the receiving party without the aid, application or use of the disclosing party's Confidential Information; or v) is the subject of a written permission to disclose provided by the disclosing party; or vi) is provided by the disclosing party to a Third Party without restriction as to confidentiality. A party may also disclose Confidential Information of the other where required to do so by law or legal process, provided that, in such event, the party required to so disclose shall give maximum practical advance notice of same to the other party and will cooperate with the other party's efforts to seek, at the request and expense of the other party, all confidential treatment and protection for such disclosure as is permitted by applicable law. The parties agree that the material financial terms of this Agreement will be considered Confidential Information of both parties. Notwithstanding the foregoing, either party may disclose such terms in legal proceedings or as are required to be disclosed in its financial statements, by law, or under strictures of confidentiality to bona fide potential sublicensees. Either party shall have the further right to disclose the material financial terms of this Agreement under strictures of confidentiality to any potential acquiror, merger partner, bank, venture capital firm, or other financial institution to obtain financing, or other bona fide potential strategic partner or collaborator. 9.2 Publication of Results. Notwithstanding any term in this Agreement that may state or imply to the contrary, but subject to section 9.1 hereof, results and data obtained by BMS in 45 47 the course of the Exclusive and Nonexclusive Screening Programs or through the use of the Reporters or the UHTSS may be submitted for publication in accordance with BMS' customary practices. 9.3 Publicity. Except as required by law and as provided in this article 9, neither party may make any public announcement or otherwise disclose the terms of this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. 9.4 Change in Control. If, prior to the Acceptance of the first complete, fully operational UHTSS: (i) Aurora merges or consolidates with a Third Party, or (ii) *** or more of Aurora's outstanding voting stock or equity interests at any time is held, owned or controlled by a Third Party, or (iii) Aurora should sell or otherwise transfer all or substantially all of its assets that are the subject of this Agreement to a Third Party, which Third Party, in the good faith determination of BMS, is, or is an Affiliate of, a substantial competitor of BMS in the manufacture, use or sale of drugs to prevent or treat diseases in human beings, BMS may elect as follows: 9.4.1 BMS may elect to treat such event as an event entitling BMS to withdraw from further development of the UHTSS for good cause; or 9.4.2 BMS may, without affecting or altering Aurora's or BMS' continuing obligations under this Agreement, elect to require that Aurora provide, and Aurora agrees in such event to provide, reasonable assurances that it will continue, and will devote the necessary resources and efforts to ensure, the conduct of the research activities contemplated by this Agreement, that Aurora will adopt appropriate measures to ensure that Confidential Information of BMS is not disclosed to the acquiring or merging entity (or its Affiliates), and that, if necessary and appropriate to ensure the due performance of its obligations under the Research Plan and this Agreement, Aurora will take such steps and measures as may be reasonably be required to segregate its business operations and assets to which this Agreement pertains from the activities to be conducted by it in the future for the benefit of such acquiring or merging entity. BMS shall also be entitled to cease the provision of any and all reports thereafter to Aurora with respect to BMS' ESP and NSP activities and BMS research and development activities as to any Hit, Lead Compound, Approved PLP Compound, or Product, except for milestone payments and royalty reports required hereunder and such other reports as Aurora may reasonably request for purposes of ascertaining whether any events have occurred that would require BMS to make any other payment required of it hereunder. ***CONFIDENTIAL TREATMENT REQUESTED 46 48 10.0 PROVISIONS CONCERNING THE FILING, PROSECUTION AND MAINTENANCE OF PATENT RIGHTS; COPYRIGHTS 10.1 Sole Inventions. For Inventions made solely by a party, such party shall, subject to Sections 3.1.7, 3.2.5, and 5.2.3, be solely responsible at its expense for making decisions regarding the scope and content of application(s) to be filed and the prosecution thereof, as well as in what country(ies) such applications should be filed, prosecuted, and maintained. With respect to any Aurora Patent Rights licensed to BMS hereunder, Aurora shall provide to BMS copies of all patent applications, (including any continuations, continuations- in-part or divisions thereof or any substitute applications therefor or equivalents thereof) relating thereto, and, shall also provide to BMS copies of all documents and correspondence received or proposed to be filed in connection with the filing and prosecution of all such Aurora Patent Rights in a timely manner. Aurora shall also provide a report every six (6) months detailing their status. With respect to any Aurora UHTSS Patent Rights: 10.1.1 Aurora shall provide to BMS' patent counsel any patent applications pertaining to such Patent Rights and any papers or other documents pertaining thereto (such as responses to office action, requests for terminal disclaimer, and requests for reissue or reexamination of any patent issuing from such application) that Aurora proposes to file sufficiently in advance of filing for the purpose of obtaining substantive comment of BMS' patent counsel and shall consider in good faith the requests and suggestions of BMS with respect to strategies for filing and prosecuting such patent applications; and 10.1.2 If Aurora decides not to pursue filing or prosecution of any Invention conceived or made solely by it pertaining to such Patent Rights in a given country, it shall give BMS reasonable notice to this effect, and thereafter BMS may, at its discretion and expense, file, prosecute, maintain and enforce in Aurora's name a patent application or patent covering such Invention in such country. Each party shall fully cooperate with the other party controlling such filing, prosecution and maintenance, and will execute such documents or other instruments as may be requested by the controlling party in order to fully vest the rights associated with any such Invention as set forth herein. The controlling party will reimburse the other party for any out-of-pocket costs incurred by the other party in connection therewith. 10.2 Joint Inventions. Subject to sections 3.1.7, 3.2.5, 5.2.3, and 10.3, for Inventions conceived or made jointly by BMS and Aurora in the performance of this Agreement, the parties agree to meet and confer in order to discuss whether, and in what countries, patent rights claiming such Joint Inventions should be filed and which party(ies) should bear the cost of filing, prosecuting and maintaining same. With respect to any patent rights filed, prosecuted or maintained under this section 10.2, each patent application, office action, response to office action, request for terminal disclaimer, request for reissue or reexamination of any patent issuing from such application, and any other papers or documents received or proposed to be filed in connection therewith shall be provided by the party responsible for the filing, request or response 47 49 to the other party sufficiently prior to the filing of such application, response or request to allow for review and comment by the other party. The parties shall discuss patent filing, prosecution, defense and maintenance costs from time to time and shall agree in advance before the expenditure of monies for special transactions (such as the cost of interference, litigation and appeals). 10.3 Exclusive Screens. It is understood and agreed that all receptors and other targets provided by BMS to Aurora for use in developing an Exclusive Screen, and title and all intellectual property rights and interests in and to such receptors and other targets, shall remain the exclusive property of BMS. All such Exclusive Screens shall be treated as BMS Confidential Information hereunder, and Aurora may not transfer such Exclusive Screen to any Third party or use such Exclusive Screen for the benefit of itself or any Third Party, without the prior written consent of BMS. Regardless of which party shall be considered an inventor under applicable patent law of any inventions pertaining to any such Exclusive Screen, the parties agree to cooperate to file such patent protection on any such Exclusive Screen on such countries as BMS may request (in the names of either BMS or Aurora, or jointly, as the parties respective patent counsel jointly agree is appropriate, or, if no agreement is reached, then in the names of both parties). For countries that BMS requests patent applications be filed, BMS will be responsible for, and for the cost of, filing, prosecuting and maintaining same. With respect to any patent rights filed, prosecuted or maintained under this section 10.3, each patent application, office action, response to office action, request for terminal disclaimer, request for reissue or reexamination of any patent issuing from such application, and any other papers or documents received or proposed to be filed in connection therewith shall be provided by the party responsible for the filing, request or response to the other party sufficiently prior to the filing of such application, response or request to allow for review and comment by the other party. Where BMS has not requested a patent application to be filed in a give country, the parties shall discuss patent filing, prosecution, defense and maintenance costs from time to time and shall agree in advance before the expenditure of monies for special transactions (such as the cost of interference, litigation and appeals). 10.4 Copyrights. For purposes of Articles 5, 7, 8, and 10 hereof, the parties agree to treat and handle, to the maximum practical extent, any copyrights owned or Controlled by a party in the same manner as Patent Rights owned or Controlled by such party. 48 50 11.0 REPRESENTATIONS, WARRANTIES AND COVENANTS 11.1 Mutual Representations and Warranties. The parties make the following representations and warranties to each other: 11.1.1 Corporate Power. Each party hereby represents and warrants that such party (a) is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) has the requisite power and authority and the legal right to own and operate its property and assets, to lease the property and assets it operates under lease, and to carry on its business as it is now being conducted; and (c) is in compliance with all requirements of applicable law, except to the extent that any noncompliance would not have a material adverse effect on the properties, business, financial or other condition of it and would not materially adversely affect its ability to perform its obligations under the Agreement. 11.1.2 Due Authorization. Each party hereby represents and warrants that such party (a) has the requisite power and authority and the legal right to enter into the Agreement and to perform its obligations and grant the rights extended by it hereunder; and (b) has taken all necessary action on its part to authorize the execution and delivery of the Agreement and to authorize the performance of its obligations hereunder and the grant of rights extended by it hereunder. 11.1.3 Binding Agreement. Each party hereby represents and warrants to the other that: (a) this Agreement has been duly executed and delivered on its behalf and is a legal and valid obligation binding upon it and is enforceable in accordance with its terms; (b) the execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having authority over it; and (c) all necessary consents, approvals and authorizations of all governmental authorities and other persons required to be obtained by it in connection with the Agreement have been obtained. 11.2 Aurora Technology Representations and Warranties. Aurora represents and warrants to BMS as of the Effective Date the following: 11.2.1 The Patent Rights and Copyrights listed on Exhibit 11.2.1 list all Aurora Patent Rights and registered Copyrights owned or Controlled by Aurora, and such Exhibits specify the jurisdiction(s) by or in which each such right has been issued or registered or in which an application for such issuance or registration has been filed, including respective registration or application numbers. To the best knowledge of the current officers and directors of Aurora, the issued claims under any issued Patent Rights are valid and in full force and effect. 49 51 11.2.2 Except as disclosed on Exhibit 11.2.1, (i) to the best knowledge of Aurora's current officers and directors, the use of the Aurora Technology and any Aurora Patent Rights and Copyrights in the exercise by BMS of the rights granted to it hereunder will not infringe upon any patent rights, copyrights or other proprietary rights of any Affiliate of Aurora or of any Third Party; (ii) Aurora has no knowledge of any infringement by any Third Party of any of the Aurora Patent Rights or Copyrights; and (iii) Aurora and each of its Affiliates are not subject to any outstanding order, judgment or decree of any court or administrative agency, and each has not entered into any stipulation or agreement, restricting (A) its use of the Aurora Patent Rights, Aurora Technology or Copyrights in connection with the manufacture, development, use, or licensing of the UHTSS, the Reporter System or any Reporters, any Exclusive Screens, or any Nonexclusive Screen as contemplated by this Agreement, provided, however, that the foregoing shall not be construed as encompassing any representation or warranty either that the receptors or other targets selected by BMS for use in an Exclusive or Nonexclusive Screen will or will not infringe the rights of any Third Party pertaining to such receptors or that assay systems and screening systems components and methods, instruments, equipment, software, reagents, and other components (but excluding Reporters covered by Aurora's Patent Rights or Aurora's Technology) provided by BMS for use in conjunction with the UHTSS, any Exclusive Screen, or any Nonexclusive Screen will or will not infringe the rights of any Third Party, or (B) Aurora's ability to perform its obligations or to grant rights in accordance with this Agreement. 11.2.3 There is no action, suit or proceeding pending or, to the knowledge of its current officers and directors, that has been threatened in writing by any Third Party against Aurora or its Affiliates which, if adversely determined, would have a material adverse effect upon Aurora's ability to grant to BMS, or upon the ability of BMS to fully utilize or exercise, the Aurora Patent Rights, Copyrights, or Technology licensed or sublicensed to BMS hereunder. To the knowledge of Aurora's current officers and directors, there is no action, suit or proceeding pending or that has been threatened in writing by any Third Party against a Third Party Licensor which, if adversely determined, would have a material adverse effect upon Aurora's ability to grant to BMS, or upon the ability of BMS to fully utilize or exercise, the Aurora Patent Rights, Copyrights, or Technology licensed or sublicensed to BMS hereunder. 11.2.4 The Aurora Technology and Aurora Patent Rights and Copyrights licensed or sublicensed by Aurora to BMS pursuant to this Agreement have not been obtained by Aurora or its Affiliates in violation of any contractual or fiduciary obligation to which Aurora or any of its Affiliates or any of its or their employees or, to the best knowledge of the current officers and directors of Aurora, its or their contractors or predecessors-in-interest (and the employees of such contractors or predecessors-in-interests), is or was a party, or by misappropriation of the trade secrets of any Third Party, and the exercise by BMS or its Affiliates of the rights licensed or sublicensed by Aurora to it hereunder will not violate any such contractual or fiduciary obligation owed by any of the foregoing persons or entities to any such Third Party or render BMS liable for the payment of any 50 52 royalty attributable to or arising out of any such contractual or fiduciary obligation or any such misappropriation. 11.2.5 Aurora has not (i) licensed to any Third Party any Aurora Technology or Aurora Patent Rights to allow such Third Party to make or use, nor agreed to supply to a Third Party or otherwise permit a Third Party to use, any Reporters in substantially the same manner as BMS is entitled is to use such Reporters hereunder, and (ii) has not entered into any agreement with a Third Party, which, if such agreement were entered into after this Agreement is signed, would be an agreement falling within the scope of section 2.1.10. 11.2.6 Exhibit 11.2.6 lists all agreements as of the Effective Date between Aurora and a Third Party involving the license to Aurora of any inventions, patent rights, copyrights, Reporters, tangible materials, UHTSS components, or Technology to Aurora that are included within the Aurora Patent Rights, Copyrights and Technology, or that will be used or incorporated in the development and/or supply of any Reporters or any UHTSS components, the termination or breach of which would have a material adverse effect upon (i) Aurora's ability to grant to BMS, or upon BMS' ability to fully utilize or exercise, in accordance with this Agreement the Aurora Patent Rights, Copyrights, or Technology licensed or sublicensed to BMS hereunder or (ii) Aurora's ability to develop, make or supply, or upon the ability of BMS to obtain or fully utilize, the UHTSS (or its material components) or the Reporters in accordance with the terms of this Agreement, or (iii) Aurora's ability to develop and supply to BMS any Exclusive Screen or BMS' ability to develop, make and use any Nonexclusive Screen and to conduct NSP activities in accordance with this Agreement (all such agreements, referred to collectively, as the "Aurora-Third Party Contracts" and all such Third Parties referred to as "Aurora-Third Party Contractees"); provided, however, that the foregoing shall not be construed as encompassing any representation or warranty that the receptors or other targets selected by BMS for use in an Exclusive or Nonexclusive Screen will infringe the rights of any Third Party pertaining to such receptors or other targets or that assay systems and screening systems components and methods, instruments, equipment, software, reagents, and other components (but excluding Reporters covered by Aurora's Patent Rights or Aurora's Technology) provided by BMS for use in conjunction with the UHTSS, any Exclusive Screen, or any Nonexclusive Screen will or will not infringe the rights of any Third Party. 11.2.7 Except as disclosed on Exhibit 11.2.6: (i) to the best knowledge of Aurora, each of the Aurora-Third Party Contracts is valid and enforceable by Aurora in accordance with its terms, except where (A) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights generally, and (B) the remedy of specific performance and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court or arbitrator before which any proceeding therefor may be brought; (ii) neither Aurora nor, to the best knowledge of Aurora any such Third Party Contractee, is in default in the performance, observance, or fulfillment of any material obligation, 51 53 covenant or condition contained therein, and (iii) to the best knowledge of Aurora, no event has occurred which (with or without the giving of notice or lapse of time or both) would constitute a default thereunder entitling such Third Party to terminate same. 11.3 *** ***CONFIDENTIAL TREATMENT REQUESTED 52 54 *** 11.4 BMS Product Indemnification. *** 11.5 Enforcement of Aurora-Third Party Contracts. Aurora agrees that it will not breach, will make all required payments, and will use all reasonable efforts to maintain and keep in force and effect, all Aurora Third Party Contracts (including *** *** CONFIDENTIAL TREATMENT REQUESTED 53 55 *** as the same may exist from time to time during the term of this Agreement. Notwithstanding the foregoing, Aurora may, following consultation with BMS and giving due consideration to any comments provided by BMS, terminate any such Aurora Third Party Contracts where the termination of same would not have a material adverse effect upon (i) the grant to BMS of, or upon BMS' ability to fully utilize or exercise, in accordance with this Agreement the Aurora Patent Rights, Copyrights, or Technology then licensed or sublicensed to BMS hereunder, or (ii) Aurora's ability to develop, make or supply, or upon the ability of BMS to obtain or fully utilize, the UHTSS (or its material components) or the Reporters in accordance with the terms of this Agreement, or (iii) Aurora's ability to develop and supply to BMS any Exclusive Screen or BMS' ability to develop, make and use any Nonexclusive Screen, to use any Exclusive Screen, and to conduct ESP and NSP activities in accordance with this Agreement. 12.0 TERM AND TERMINATION 12.1 Term. The term of this Agreement will begin on the Effective Date and shall continue until terminated in accordance with the provisions of Sections 12.2-12.4 hereof. 12.2 Termination By Mutual Agreement. The parties may at any time terminate this Agreement, in whole or in part, by written agreement executed by both Aurora and BMS. In such event, the document effecting such termination shall specify the continuation or termination of any license rights granted hereunder, as well as any other terms agreed to by both parties. 12.3 Termination for Cause. 12.3.1 Termination by BMS. In the event that Aurora materially breaches any of the rights granted to it, or any of the duties or obligations imposed on Aurora, under this Agreement, and such breach is not cured within 90 days following receipt of written notice from BMS to Aurora specifying such breach, then: 12.3.1.1 BMS may terminate this Agreement and/or seek any damages and remedies available to it at law or in equity, or 12.3.1.2 BMS may seek any damages and remedies available to it at law or in equity, and/or may, without affecting or altering Aurora's continuing obligations under this Agreement and without affecting or altering any rights granted to or remedies available to BMS under this Agreement: 12.3.1.2.1 terminate any rights licensed by BMS to Aurora under this Agreement, in whole or in part, and/or 12.3.1.2.2 if BMS desires that Aurora cease further development of the UHTSS, terminate all remaining payments (other than payments already due and owing as of the date of termination) under section 2.1.5, except that all bonus payments that BMS might otherwise be required to make to Aurora under section 2.1.5.6 shall be void and of no effect. 54 56 12.3.2 Termination by Aurora. In the event that BMS materially breaches any of the rights granted to it, or any of the material duties and obligations imposed on it, under this Agreement, and such breach is not cured within 90 days following receipt of written notice from Aurora to BMS specifying such breach, then, subject to sections 12.3.2.3 and 12.3.3, Aurora may: 12.3.2.1 pursue any remedies and damages available to it at law or in equity and/or 12.3.2.2 terminate this Agreement and/or any rights licensed or sublicensed to BMS hereunder; provided, that in such event: 12.3.2.2.1 BMS shall not be required to make any further payments under any provision of this Agreement, other than those payments that had accrued as of the date of such termination or which are payable under section 12.3.2.2.2 below; and 12.3.2.2.2 such termination shall not restrict or preclude BMS and its Affiliates in any way from continuing to research, develop, manufacture, use and commercialize any Hits, Lead Compounds, Approved PLP Compounds, Covered Products and products, provided, that no such termination shall relieve BMS of, and BMS shall remain obligated to pay to Aurora, such milestone payments and royalties as BMS would otherwise have paid to Aurora under article 3 hereof with respect to Hits and Lead Compounds identified prior to the date of termination; and 12.3.2.2.3 BMS may exercise the same rights as it would be entitled to exercise under sections 2.1.7.4 and 2.1.7.5 as would apply if BMS had withdrawn from development of the UHTSS without cause. 12.3.2.3 Notwithstanding the foregoing, where a breach by BMS entitling Aurora to terminate under this section 12.3.2 involves a breach pertaining to (i) the use of the Reporters, a Nonexclusive Screen or Exclusive Screen by BMS or the Aurora Reporter System Patent Rights or Aurora Reporter System Technology rights licensed or sublicensed to BMS hereunder for use in connection therewith, but not a breach by BMS involving (ii) the use or development of the UHTSS or the Aurora UHTSS Patent Rights or Aurora UHTSS Technology licensed or sublicensed to BMS hereunder, or vice-versa as the case may be, then termination of this Agreement and any rights hereunder shall be limited to those rights granted by Aurora under this Agreement that pertain to (i) or (ii), as the case may be, that pertain to such breach but not the rights and obligations of the parties under (i) or (ii), as the case may be, that do not pertain to such breach. 12.3.3 In the event that the breach by BMS involves a milestone payment or royalty payment under any of sections 3.1.8 or 3.2 hereof, Aurora shall not be entitled to terminate this Agreement or any rights licensed or sublicensed to BMS hereunder with 55 57 respect thereto pursuant to section 12.3.2.2 or otherwise, but shall be entitled to exercise any and all other rights that it may exercise under article 12.3.2.1. 12.4 Effect of Bankruptcy. If a party becomes insolvent or admits in writing its inability to pay its debts as they mature or applies for or consents to the appointment of a receiver or trustee for any of its properties; or a receiver or trustee is appointed for such party or a substantial portion of its properties and is not discharged within ninety (90) days; or any bankruptcy, reorganization, debt arrangement, dissolution, liquidation or other proceeding under any bankruptcy or insolvency law is instituted by or against such party and, if instituted against such party, it is consented to by such party or remains undismissed for ninety (90) days, then 12.4.1 Notwithstanding any such event, such party shall remain obligated to fulfill its obligations and covenants hereunder, and any failure to do so or other breach hereunder shall entitle the other party to terminate this Agreement in accordance with section 12.3 hereof; and 12.4.2 It is the parties desire that, if any such receiver, trustee, judge, arbitrator or other adjudicator conducting or controlling such proceedings on behalf of a party should hold that any obligations, covenants or duties of such party hereunder should be suspended or declared unenforceable, in whole or in part, then the rights and benefits granted to the other party hereunder shall remain in full force and effect, and that any such obligations, covenants or duties shall be reformed by such receiver, trustee, judge, arbitrator or other adjudicator so as to be enforceable to the maximum extent permitted by applicable law and to permit any suspension to be lifted at the earliest practicable time. 12.5 Effect of Expiration or Termination. 12.5.1 Expiration or termination of this Agreement shall not relieve the parties of any obligation accruing prior to such expiration or termination. The obligations and rights of the parties under sections and articles 2.1.7, 2.1.8, 2.1.12.2, 3.1.7, 3.2.5, 3.3, 3.4, 5.2, 6.4, 7, 8, 9.1, 9.2, 9.3, 10, 11.3, 11.4, 12.5.2, 12.5.3, 13. and 14 hereof, as well as any provisions, which, by their intent or meaning are intended to so survive, shall survive termination or expiration of this Agreement. Except as otherwise expressly provided in this Agreement, the rights and obligations of the parties under sections 5.1 and 5.3 hereof shall terminate and be of no further force or effect whatsoever upon any termination of this Agreement. 12.5.2 Nothing in this Agreement (including this article 12) is intended to prevent or restrict, or shall be construed as preventing or restricting, BMS and its Affiliates from using, following any termination of this Agreement pursuant to this Article 12, for any internal research and drug development purpose (i) any Reporters or other reagents supplied to BMS by Aurora prior to the applicable termination date or (ii) any Aurora Technology disclosed to it by Aurora prior to the applicable termination date where the manufacture or use of such Technology is not covered by a Valid Claim under the Aurora Patent Rights or by any Aurora Copyrights. It is further understood that nothing in this 56 58 section 12.5.2 alters any confidentiality obligations of the parties under this Agreement with respect to disclosure to Third Parties. 12.5.3 Nothing in this Agreement is intended to prevent or restrict, or shall be construed as preventing or restricting, BMS and its Affiliates from researching, developing, making, using or selling any compound, drug or other product for the prevention, diagnosis or treatment of diseases and disorders following any termination of this Agreement, where the research, development, manufacture, use or sale of such compound, drug or other product is not covered by a Valid Claim under the Aurora Patent Rights and/or restricted by section 2.1.7.5 hereof. 13.0 DISPUTE RESOLUTION 13.1 Disputes. The parties recognize that disputes as to certain matters may from time to time arise during the term of this Agreement which relate to either party's rights and/or obligations hereunder or thereunder. It is the objective of the parties to establish procedures to facilitate the resolution of disputes arising under or in connection with this Agreement, including without limitation all financial disputes and any disputes as to the validity, construction, performance, default, or breach hereof, in an expedient manner by mutual cooperation and without resort to litigation. To accomplish this objective, but subject to section 13.2.3 below, the parties agree to follow the procedures set forth in this Article 13 if and when such disputes arise under or in connection with this Agreement between the parties. 13.2 Dispute Resolution Procedures. 13.2.1 If the parties cannot resolve the dispute within 30 days of formal request by either party to the other, any party may, by written notice to the other, have such dispute referred to their respective officers designated below or their successors, for attempted resolution by good faith negotiations within 30 days after such notice is received. Said designated officers are as follows: For BMS: President of the BMS Pharmaceutical Research Institute For Aurora: President 13.2.2 Any such dispute arising out of or relating to this Agreement which is not resolved between the parties or the designated officers of the parties pursuant to section 13.2.1 shall be resolved by final and binding arbitration conducted in Wilmington, Delaware under the then current Licensing Agreement Arbitration Rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted by one arbitrator who is knowledgeable in the subject matter which is at issue in the dispute and who is selected by mutual agreement of the parties or, failing such agreement, shall be selected according to the AAA rules. In conducting the arbitration, the arbitrator shall determine what discovery will be permitted, consistent with the goal of limiting the cost and time which the parties must expend for discovery (and provided that the arbitrators shall 57 59 permit such discovery he/she/they deem necessary to permit an equitable resolution of the dispute), and shall be able to decree any and all relief of an equitable nature, including but not limited to such relief as a temporary restraining order, a preliminary injunction, a permanent injunction, or replevin of property. The arbitrator shall also be able to award actual, general or consequential damages, but shall not award any other form of damage (e.g., punitive or exemplary damages). The parties shall share equally the arbitrator's fees and expenses pending the resolution of the arbitration unless the arbitrator, pursuant to its right but not its obligations, requires the non-prevailing party to bear all or any portion of the costs of the prevailing party. The decision of the arbitrator shall be final and may be sued on or enforced by the party in whose favor it runs in any court of competent jurisdiction at the option of such party. 13.2.3 Notwithstanding anything to the contrary in this Article 13, either party may seek immediate injunctive or other interim relief from any court of competent jurisdiction with respect to any breach of articles 5 or 9 hereof, or otherwise to enforce and protect the patent rights, copyrights, trademarks, or other intellectual property rights owned or controlled by a party or its Affiliates. 14.0 MISCELLANEOUS 14.1 Assignment. Notwithstanding any provision of this Agreement to the contrary, either party may assign any of its rights or obligations under this Agreement in any country to any Affiliates; provided, however, that such assignment shall not relieve the assigning party of its responsibilities for performance of its obligations under this Agreement. Subject to section 9.4, either party may also assign its rights or obligations under this Agreement in connection with the sale of all or substantially all of its assets, or may otherwise assign its rights or obligations under this Agreement with the prior written consent of the other party. Subject to Section 9.4, this Agreement shall survive any merger or consolidation of either party with or into another party and no consent for any such merger, consolidation or similar reorganization shall be required hereunder; provided, that in the event of such merger, consolidation or similar reorganization or in the event of a sale of substantially all of the assets of a party, no intellectual property rights of the acquiring or merging corporation shall be included in the technology licensed hereunder. 14.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. 14.3 Force Majeure. Subject to section 2.1.4 or as otherwise expressly provided in a section hereunder, neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by war, fire, explosion, flood, strike, lockout, embargo, act of God, or any other similar cause beyond the control of the defaulting party, provided that the party claiming force majeure has exerted all reasonable efforts to avoid or remedy such force majeure and thereafter 58 60 takes all reasonable steps to mitigate any such delay in performance hereunder and any damages that may be incurred by the other party thereby. 14.4 Notices. Any notices or communications provided for in this Agreement to be made by either of the parties to the other shall be in writing, in English, and shall be made by prepaid air mail with return receipt addressed to the other at its address set forth below. Any such notice or communication may also be given by hand, or facsimile to the appropriate designation. Notices shall be sent: If to BMS, to: Bristol-Myers Squibb Pharmaceutical Research Institute P.O. Box 4000 Route 206 & Province Line Road Princeton, NJ 08543-4000 Attention: Senior Vice President, Exploratory Research & Drug Discovery If to Aurora, to: Aurora Biosciences Corporation 11149 No. Torrey Pines Road La Jolla, CA 92037 Attention: President provided that if such notice or communication relates to an amendment to this Agreement or to any notice pursuant to section 12 hereof, a copy shall also be sent to: If to BMS, to the attention of the Vice President & Senior Counsel, Pharmaceutical Research Institute and Worldwide Strategic Business Planning, at the address set forth above for BMS. If to Aurora, to the attention of ___________________________ Either party may by like notice specify or change an address to which notices and communications shall thereafter be sent. Notices sent by mail, facsimile or cable shall be effective upon receipt and notices given by hand shall be effective when delivered. 14.5 Governing Law. This Agreement shall be governed by the laws of the State of Delaware, as such laws are applied to contracts entered into and to be performed within such state. 14.6 Waiver. Except as specifically provided for herein, the waiver from time to time by either of the parties of any of their rights or their failure to exercise any remedy shall not operate or be construed as a continuing waiver of same or of any other of such party's rights or remedies provided in this Agreement. 14.7 Severability. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall, to any extent, be held to be invalid or 59 61 unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law; and the parties hereto covenant and agree to renegotiate any such term, covenant or application thereof in good faith in order to provide a reasonably acceptable alternative to the term, covenant or condition of this Agreement or the application thereof that is invalid or unenforceable, it being the intent of the parties that the basic purposes of this Agreement are to be effectuated. 14.8 Independent Contractors. It is expressly agreed that Aurora and BMS shall be independent contractors and that the relationship between the two parties shall not constitute a partnership, joint venture relationship, or agency of any kind. Neither Aurora nor BMS shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other, without the prior written authorization of the party to do so. 14.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 14.10 Entire Agreement. This Agreement between the parties of even date herewith set forth all of the covenants, promises, agreements, warranties, representations, conditions and understandings between the parties hereto, and supersede and terminate all prior agreements and understanding between the parties, with respect to the subject matter hereof. There are no covenants, promises, agreements, warranties, representations conditions or understandings, either oral or written, between the parties other than as set forth herein and therein. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by the respective authorized officers of the parties. This Agreement shall not be strictly construed against either party hereto. Any conflict between the terms set forth in the text of this Agreement and the terms of any Exhibit hereto shall be resolved in favor of the text of this Agreement. 14.11 No Third Party Beneficiaries. No third party including any employee of any party to this Agreement, shall have or acquire any rights by reason of this Agreement. 14.12 Construction. References to Articles or Sections hereunder shall be deemed to include the sections and subsections thereunder. The use of the word "including" shall be deemed to mean "including but not limited to". IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. BRISTOL-MYERS SQUIBB AURORA BIOSCIENCES PHARMACEUTICAL RESEARCH CORPORATION 60 62 INSTITUTE By: By: ------------------------------- ------------------------------------ Title: Title: ---------------------------- --------------------------------- Date: November ___, 1996 Date: November ___, 1996 ----------------------------- ---------------------------------- 61 63 LIST OF EXHIBITS Exhibit 1.1 - UHTSS Description and Specifications Exhibit 1.2 - Description of Existing Reporters Exhibit 3.1.1 - Terms and Conditions Pertaining to Use of BMS Materials in the Development of ESP Screens Exhibit 4.1 - Service and Support Exhibit 7.2.4 - *** Exhibit 11.2.1 - List of Aurora Patent Rights and *** Exhibit 11.2.6 - List of Material Third Party Licensor Agreements *** CONFIDENTIAL TREATMENT REQUESTED 62 64 EXHIBIT 1.1 * * * *** CONFIDENTIAL TREATMENT REQUESTED 65 Exhibit 1.2 *** ***CONFIDENTIAL TREATMENT REQUESTED 66 Exhibit 3.1.1 Use of BMS Materials by Aurora *** ***CONFIDENTIAL TREATMENT REQUESTED 67 Exhibit 4.1 Service and Support *** *** CONFIDENTIAL TREATMENT REQUESTED 68 *** *** CONFIDENTIAL TREATMENT REQUESTED 69 *** ***CONFIDENTIAL TREATMENT REQUESTED 70 *** ***CONFIDENTIAL TREATMENT REQUESTED 71 *** ***CONFIDENTIAL TREATMENT REQUESTED 72 *** ***CONFIDENTIAL TREATMENT REQUESTED 73 TABLE OF CONTENTS 1.0 DEFINITIONS 1 2.0 COLLABORATIVE RESEARCH AND TECHNOLOGY TRANSFER 8 2.1 UHTSS Development 9 3.0 EXCLUSIVE AND NONEXCLUSIVE SCREENING PROGRAMS 27 3.1 Exclusive Screening Program 27 3.2 Nonexclusive Screening Payments 33 3.3 Ownership of Data 35 3.4 Development of Products 35 3.5 Laboratory Facilities and Personnel 36 3.6 Payments to Third Parties by Aurora. 36 4.0 SERVICE AND SUPPORT 37 4.1 Service and Support 37 5.0 INTELLECTUAL PROPERTY RIGHTS 37 5.1 License Rights. 37 5.2 Ownership Rights. 39 5.3 Sublicensing. 40 5.4 Software. 40 6.0 PAYMENTS OF ROYALTIES, ACCOUNTING FOR ROYALTIES, RECORDS 41 6.1 Payment Term. 41 6.2 Payment Dates. 41 6.3 Accounting. 41 6.4 Records. 41 6.5 Withholding Required by Law. 41 7.0 INFRINGEMENT BY THIRD PARTIES 42 7.1 Actual or Threatened Infringement of BMS Materials and Products. 42 7.2 Actual or Threatened Infringement of Aurora Patent Rights 42 8.0 DEFENSE OF INFRINGEMENT CLAIMS 43 8.1 Defense of Infringement Claims Pertaining to Lead Compounds, Approved PLP Compounds, and Products. 43 8.2 Defense of Infringement Claims Pertaining to Patent Rights Owned or Controlled by Aurora 44 9.0 TREATMENT OF CONFIDENTIAL INFORMATION; PUBLICITY, AND CHANGE OF CONTROL 44 9.1 Confidentiality 44 9.2 Publication of Results. 46 9.3 Publicity. 46
74 9.4 Change in Control 46 10.0 PROVISIONS CONCERNING THE FILING, PROSECUTION AND MAINTENANCE OF PATENT RIGHTS; COPYRIGHTS 47 10.1 Sole Inventions 47 10.2 Joint Inventions 48 10.3 Exclusive Screens 48 10.4 Copyrights 49 11.0 REPRESENTATIONS, WARRANTIES AND COVENANTS 49 11.1 Mutual Representations and Warranties. 49 11.2 Aurora Technology Representations and Warranties. 50 11.3 Aurora Indemnification. 52 11.4 BMS Product Indemnification. 53 11.5 Enforcement of Aurora-Third Party Contracts 54 12.0 TERM AND TERMINATION 54 12.1 Term. 54 12.2 Termination By Mutual Agreement. 54 12.3 Termination for Cause. 54 12.4 Effect of Bankruptcy. 56 12.5 Effect of Expiration or Termination. 56 13.0 DISPUTE RESOLUTION 57 13.1 Disputes. 57 13.2 Dispute Resolution Procedures. 57 14.0 MISCELLANEOUS 58 14.1 Assignment. 58 14.2 Binding Effect. 59 14.3 Force Majeure. 59 14.4 Notices. 59 14.5 Governing Law. 60 14.6 Waiver. 60 14.7 Severability. 60 14.8 Independent Contractors. 60 14.9 Counterparts. 60 14.10 Entire Agreement. 60 14.11 No Third Party Beneficiaries. 61 14.12 Construction. 61
75 EXHIBIT 7.2.4 *** *** CONFIDENTIAL TREATMENT REQUESTED 76 EXHIBIT 11.2.1 *** *** CONFIDENTIAL TREATMENT REQUESTED 77 EXHIBIT 11.2.6 *** *** CONFIDENTIAL TREATMENT REQUESTED EX-10.23 31 EXHIBIT 10.23 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.23 COLLABORATIVE RESEARCH AND LICENSE AGREEMENT BETWEEN ELI LILLY AND COMPANY AND AURORA BIOSCIENCES CORPORATION 2 TABLE OF CONTENTS 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. LILLYUHTSS DEVELOPMENT AND DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.1. LILLYUHTSS Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3. COLLABORATIVE SCREENING PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3.1. Collaborative Screening Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3.2. Lilly Screening Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 3.3. Ownership of Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3.4. Development of Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3.5. Laboratory Facilities and Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 4. SERVICE AND SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.1. Service and Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5. INTELLECTUAL PROPERTY RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5.1. Grant of Rights from Aurora to Lilly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5.2. Grant of Rights from Lilly to Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 5.3. Ownership of Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 6. PAYMENTS OF ROYALTIES, ACCOUNTING FOR ROYALTIES, AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 6.1. Payment and Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 6.2. Payment Dates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 6.3. Accounting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 6.4. Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 7. INTELLECTUAL PROPERTY ENFORCEMENT AND DEFENSE OF INFRINGEMENT CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . 34 7.1. Intellectual Property Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 7.2. Defense of Infringement Claims Pertaining to Lilly Hits, Approved PTAC Compounds, and Covered Products. . . . . . . 34 7.3. Defense of Infringement Claims Pertaining to Aurora Technology and Aurora Patent Rights . . . . . . . . . . . . . . 35 8. TREATMENT OF CONFIDENTIAL INFORMATION; PUBLICITY, AND CHANGE OF CONTROL . . . . . . . . . . . . . . . . . . . . . . . . 35
2 3 8.1. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 8.2. Publication of Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 8.3. Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 9. PATENT PROSECUTION AND COPYRIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 9.1. Patents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 9.2. Copyrights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
TABLE OF CONTENTS, CONTINUED 10. WARRANTIES AND INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 10.1. Mutual Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 10.2. Warranties and Aurora Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 10.3. Aurora Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 10.4. Warranties and Lilly Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 10.5. Lilly Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 11. TERM, PARTIAL PERFORMANCE AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 11.1. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 11.2. Termination By Mutual Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 11.3. Termination Without Cause by Lilly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 11.4. Partial Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 11.5. Termination for Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 11.6. Effect of Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 11.7. Effect of Expiration or Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 12.1. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 12.2. Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 12.3. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 12.4. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 12.5. Governing Law and Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 12.6. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 12.7. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 12.8. Independent Contractors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 12.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 12.10. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 12.11. No Third Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 12.12. Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 12.13. Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3 4 4 5 COLLABORATIVE RESEARCH AND LICENSE AGREEMENT THIS AGREEMENT is entered into as of the Effective Date (as defined below) by and between ELI LILLY AND COMPANY, an Indiana corporation, having offices at Lilly Corporate Center, Indianapolis, Indiana 46285 ("Lilly"), and between AURORA BIOSCIENCES CORPORATION, a Delaware corporation having offices at 11149 North Torrey Pines Road, La Jolla, California 92037 ("Aurora"). RECITALS WHEREAS, Aurora has expertise in the development of automated ultra-high throughput screening systems and screening biologies/chemistries used therein; and WHEREAS, Aurora has the scientific expertise and capacity to undertake the alliance activities described below; and WHEREAS, Lilly has the capability to undertake screening and development of drug products for the prevention, treatment and diagnosis of diseases and disorders. NOW, THEREFORE, in consideration of the foregoing premises and of the covenants, representations and agreements set forth below, the parties agree as follows: 1. DEFINITIONS As used herein, the following terms shall have the following meanings: "Activity" means a ***. "Affiliate" means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by, or is under common control with, such Person. A Person shall be regarded as in control of another Person if it/he/she owns, or directly or indirectly controls, more than fifty percent (50%) of the voting securities (or comparable equity interests) or other ownership interests of the other Person, or if it/he/she directly or indirectly possesses the power to direct or cause the direction of the management or policies of the other Person, whether through the ownership of voting securities, by contract or any other means whatsoever. "Agreement" means this agreement, together with all appendices, exhibits and schedules hereto, and as the same may be amended or supplemented from time to time hereafter by a written agreement duly executed by authorized representatives of each party hereto. *** CONFIDENTIAL TREATMENT REQUESTED 5 6 "Approved PTAC Compound" means a *** "Aurora Copyrights" means all copyrights throughout *** "Aurora Patent Rights" means the Aurora Reporter System Patent Rights and the Aurora UHTSS Patent Rights. "Aurora Reporter" means *** The Aurora Reporters available as of the Effective Date are described on Exhibit 1.2 attached hereto. "Aurora Reporter System Technology" means all Technology owned or Controlled by Aurora or its Affiliates that relates to the Aurora Reporter Systems. "Aurora Reporter System Patent Rights" means all Patent Rights owned or Controlled by Aurora or its Affiliates which relate to the Aurora Reporter Systems. "Aurora Technology" means the Aurora Reporter System Technology and the Aurora UHTSS Technology. "Aurora UHTSS Patent Rights" means all Patent Rights *** "Aurora UHTSS Technology" means all Technology *** "Collaborative Screening Program" and "Collaborative Screen" shall have the meanings set forth in Section 3.1. "Completion" or "Completed" has the meaning set forth in Section 2.1.3. ***CONFIDENTIAL TREATMENT REQUESTED 6 7 "Confidential Information" means all information, compounds, data, and materials received by either party from the other party pursuant to this Agreement and all information, compounds, data, and materials developed in the course of the collaboration, including, without limitation, Technology of each party, subject to the exceptions set forth in Sections 8.1. "Control" or "Controlled" means possession by a party or its Affiliates of the ability to grant a license or sublicense in accordance with the terms of this Agreement, and without violating the terms of any agreement by such party with any Third Party. "Covered Product" means *** "CSP Steering Committee" shall have the meaning set forth in Section 3.1.1. "Deliverables" has the meaning set forth in Section 2.1.2.1 hereof. "Derivative" means *** "Development Phases" has the meaning set forth in Section 2.1.2.1 hereof. "Effective Date" means the date that this Agreement is executed by the last party to so execute. "FDA" shall mean the United States Food and Drug Administration, or any successor agency having regulatory jurisdiction over the manufacture, distribution and sale of drugs in the United States and equivalent in any other jurisdiction. "First Commercial Sale" of a Covered Product shall mean the first commercial sale for use or consumption of such Covered Product in a country after required marketing and, if applicable, pricing approval has been granted by the applicable regulatory authority(ies) of such country. "Hit" means *** ; *** ***CONFIDENTIAL TREATMENT REQUESTED 7 8 *** "IND" means an Investigational New Drug application filed with and accepted by the FDA and any corresponding application filed in any country other than the United States. "Internal Research" means any *** "Invention" means any new and useful process, machine, manufacture, or composition of matter, or improvement thereto, whether or not patentable. "Know-How" means information and data which is not generally known to the public, comprising: Inventions, designs, concepts, algorithms, formulae, software, supplies, techniques, practices, processes, methods, knowledge, skill, experience, expertise and technical information. "Lilly Patent Rights" means Patent Rights owned or Controlled by Lilly and relating to the Collaborative Screening Program or Aurora Reporter Systems. "Lilly Screening Program," "LSP" or "Lilly Screen" have the meanings set forth in Section 3.2 hereof. "Lilly Technology" means Technology owned or Controlled by Lilly and relating to the Collaborative Screening Program. "Lilly Test Materials" *** "LILLYUHTSS" means the *** *** CONFIDENTIAL TREATMENT REQUESTED 8 9 *** "LILLYUHTSS Steering Committee" shall have the meaning set forth in Section 2.1.1. "LILLYUHTSS Target Delivery Date" has the meaning set forth in Section 2.1.2.1 hereof. Manufacturing Cost" *** "Materials" means any reagents, probes, genetic sequences, promoters, enhancers, probes, linkage probes, vectors, plasmids, proteins and fragments thereof, peptides, biological modifiers, antigens, antibodies, antagonists, agonists, inhibitors, chemicals, and compounds. "Module One" has the meaning set forth in Section 2.1.2.1 (i) hereof. "Module Two" has the meaning set forth in Section 2.1.2.1 (ii) hereof. "Module Three" has the meaning set forth in Section 2.1.2.1 (iii) hereof. "NDA" means a New Drug Application or Product License Application, as appropriate, and all supplements pursuant to the requirements of the FDA, including all documents, data and other information concerning Covered Products which are necessary for full FDA approval to market a Covered Product, or the equivalent in any other country. "Net Sales" shall mean, with respect to Covered Product(s), *** *** *** CONFIDENTIAL TREATMENT REQUESTED 9 10 *** *** Such amounts shall be determined from the books and records of Lilly maintained in accordance with generally accepted accounting principles ("GAAP") consistently applied. *** "Patent Rights" means all U.S. or foreign (including regional authorities such as the European Patent Office) regular or provisional patent applications, including any continuation, continuation-in-part, or division thereof or any substitute application therefor or equivalent thereof, and any patent issuing thereon, including any reissue, reexamination or extension thereof and any confirmation patent or registration patent or patent of additions based on any such patent, containing one or more claims to an Invention (and in the case of an issued patent, containing one or more Valid Claims), and which a party hereto owns or Controls, individually or jointly, any title thereto or rights thereunder. "Person" shall mean an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole *** CONFIDENTIAL TREATMENT REQUESTED 10 11 proprietorship, unincorporated organization, governmental authority, or any other form of entity not specifically listed herein. "Phase III Clinical Trial" means that portion of a clinical development program which provides for the trial of an Approved PTAC Compound on sufficient numbers of patients and which is designed to establish the safety and efficacy of such a product in order to support an NDA. "PTAC" means *** or its equivalent. "Product" means any *** "Royalty Term" means *** "Specifications" of the LILLYUHTSS shall have the meaning set forth in Section 2.1 hereof. "Technology" means Materials and Know-How. "Term" means the period beginning on the Effective Date and terminating in accordance with this Agreement, as in Section 11. "Territory" means all countries of the world. "Third Party" means any entity other than (i) Aurora and any of its Affiliates, and (ii) Lilly and any of its Affiliates. "Valid Claim" means: (a) an issued claim under an issued patent within the Patent Rights, which has not (i) expired or been canceled, (ii) been declared invalid by an unreversed and unappealable decision of a court or other appropriate body of competent jurisdiction, (iii) been admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, and/or (iv) been abandoned; or (b) a claim included in a pending patent application within the Patent Rights that is being actively prosecuted in accordance with this Agreement and which has not been (v) canceled, (vi) withdrawn from consideration, (vii) finally determined to be unallowable by the applicable governmental authority for whatever reason (and from which no appeal is or can be taken), and/or (viii) abandoned. *** CONFIDENTIAL TREATMENT REQUESTED 11 12 "Validation" has the meaning set forth in Section 2.1.3. 2. LILLYUHTSS DEVELOPMENT AND DELIVERY 2.1. LILLYUHTSS Development. Aurora will be responsible for the design, development, manufacture, supply, delivery and installation of the LILLYUHTSS, and will use its best efforts to complete same within the time frames for each Development Phase set forth below. The Specifications for the Deliverables to be provided by Aurora, as customized for Lilly, are set forth in Exhibit 1.1 hereto ("Specifications"). 12 13 2.1.1. Project Management. The parties shall establish a committee that will use reasonable efforts to coordinate the development, training, completion, and validation of the LILLYUHTSS (the "LILLYUHTSS Steering Committee"). The LILLYUHTSS Steering Committee will be established not later than thirty (30) days after the Effective Date. The LILLYUHTSS Steering Committee shall consist of three (3) representatives designated by Lilly and three (3) representatives designated by Aurora. Each representative will have one vote and each party will have exactly three votes. The LILLYUHTSS Steering Committee will meet at least three times per year at mutually agreed upon times and locations using mutually agreed upon meeting formats, including tele- and video- conferencing. A material change in the Specifications will be approved by simple majority vote of the LILLYUHTSS Steering Committee. In the event of a deadlock by the LILLYUHTSS Steering Committee on the approval of a material change in the Specifications proposed by Lilly, Aurora shall have the right to approve such material change to the Specifications. In the event of a deadlock by the LILLYUHTSS Steering Committee on the approval of a material change in the Specifications proposed by Aurora, Lilly shall have the right to approve such material change to the Specifications. The Validation or Completion of the LILLYUHTSS will be approved by simple majority vote of the LILLYUHTSS Steering Committee. In the event of a deadlock by the LILLYUHTSS Steering Committee of the approval of the Validation or Completion of the LILLYUHTSS, Lilly's Vice President of Research Technologies and Proteins and Aurora's president will meet in person or by video-conferencing to resolve the approval of the Validation or Completion of the LILLYUHTSS. Aurora shall also submit progress reports to the LILLYUHTSS Steering Committee at such time(s) as Lilly may reasonably request, but in any event will provide a written update of its work on the development of the LILLYUHTSS (including discussion of any significant problems encountered and significant changes in strategy or design) every six (6) months. From time to time during the term of this Agreement, Lilly representatives shall have the right, upon reasonable advance written notice to Aurora, to 13 14 visit the facilities where the LILLYUHTSS development is being performed. 14 15 2.1.2. Development Phases; Delivery. 2.1.2.1. Development Phases. Aurora will design and develop the LILLYUHTSS in accordance with the following development phases ("Development Phases"), as more fully described in Exhibit 1.1 hereto. Aurora will develop and install the deliverables for the LILLYUHTSS ("Deliverables") contemplated by each such Development Phase (all such Deliverables for a Development Phase comprising a "Module") not later than the dates set forth below (each such date referred to as a "LILLYUHTSS Target Delivery Date"): i) Module One - Automated Storage and Retrieval - ***; and ii) Module Two - Liquid handling, Screening Formats, Detection and Screen Development Stage - ***; and iii) Module Three - Informatics and Integration ("Module Three"), and Installation of a Fully Operational, Complete LILLYUHTSS System - *** 2.1.2.2. Shipment, and Installation. Aurora shall be responsible for the appropriate packaging of all Deliverables to be delivered to Lilly. Lilly will be responsible for associated delivery charges. Aurora will be responsible for installing all Deliverables, unless otherwise mutually agreed to in writing. Aurora will begin such installation within 15 working days of delivery to Lilly and will use its best efforts to complete the same as promptly as possible thereafter and Lilly will use best efforts to prepare in advance for such installation and to facilitate such installation after delivery. *** CONFIDENTIAL TREATMENT REQUESTED 15 16 2.1.3. Validation and Completion Testing. All Deliverables shall be subject to testing by or for Aurora prior to delivery to Lilly. When all Deliverables for a Module have successfully conformed to or satisfied the Specifications for such Deliverables ("Validation") in Exhibits 1.1 hereto, or as the same may be amended or supplemented in writing by mutual agreement of the parties from time to time hereafter, Aurora shall give Lilly written notice. Upon installation by Aurora of all Deliverables for a particular Development Phase at Lilly, additional testing shall commence by Aurora and Lilly and shall continue for such period of time as may be reasonably required to verify in the opinion of the LILLYUHTSS Steering Committee whether all such Deliverables meet the Specifications for such Deliverables ("Completion") in Exhibits 1.1 hereto, or as the same may be amended or supplemented in writing by the parties from time to time hereafter therefor. Upon Completion of all Deliverables for a Module at Lilly, Aurora shall give Lilly written notice thereof, in which event Lilly shall become obligated to pay such amounts provided in Section 2.1.4. Upon the payment by Lilly of such amounts, Lilly will take ownership the associated Deliverable. 2.1.4. Payments Relating to Development of the LILLYUHTSS. Lilly will make the following payments to Aurora in consideration of the design, development, delivery, manufacture, support, Validation and Completion of the LILLYUHTSS and its modules: 2.1.4.1. A payment *** shall be made within fifteen (15) business days after the Effective Date in consideration for the design and development of the LILLYUHTSS by Aurora hereunder. 2.1.4.2. Module One: A *** shall be made within thirty (30) days following Completion of all Deliverables required by Section 2.1.2.1 (i). *** CONFIDENTIAL TREATMENT REQUESTED 16 17 2.1.4.3. Module Two: *** shall be made within thirty (30) days following Completion of all Deliverables required by Section 2.1.2.1 (ii). 2.1.4.4. Module Three: *** *** shall be within thirty (30) days following Completion of all Deliverables required by Section 2.1.2.1 (iii). 2.1.4.5. Ongoing payments of *** shall be made for the design and development of the LILLYUHTSS, the first payment to be made on or before January 15, April 15, July 15 or October 15 occurring after the Effective Date and then every three months thereafter, which payments shall cease upon the first to occur of *** of *** ; provided, however, that if *** 2.1.4.6. In addition to any payments to be made under Sections 2.1.4.1-2.1.4.5, the following payments shall be made depending upon the date of Completion of Module Three of the LILLYUHTSS pursuant to Section 2.1.3: 2.1.4.6.1. *** ***CONFIDENTIAL TREATMENT REQUESTED 17 18 2.1.4.6.2. *** 2.1.4.6.3. *** 2.1.5. Penalty for Late Completion of LILLYUHTSS. If Completion of the LILLYUHTSS under Section 2.1.2.1 (iii) occurs more than *** following the Effective Date, then as penalty therefor, Aurora will pay to Lilly *** even *** for *** following the date that is *** after the Effective Date until such Completion occurs (if at all); provided, that such payments shall not in any case exceed *** . *** ***CONFIDENTIAL TREATMENT REQUESTED 18 19 *** 2.1.6.2. Syndicate Formation and Limitations. It is understood that Aurora is seeking to collaborate with, and supply to, and grant certain license rights to Third Parties with respect to the use and supply of a system similar to the LILLYUHTSS to such Third Party. Notwithstanding the foregoing, Aurora covenants and agrees that, so long as Lilly is not in default of any payment obligation hereunder and has not ***CONFIDENTIAL TREATMENT REQUESTED 19 20 terminated its participation in the development of the LILLYUHTSS, then, until the date that is *** following the date of Completion by Aurora of the fully operational LILLYUHTSS pursuant to Section 2.1.3, Aurora will not, without Lilly's prior written consent, provide more than *** Parties with license rights to the Aurora UHTSS Patent Rights or Aurora Copyrights or Aurora UHTSS Technology to use any ultra-high throughput screening system made by Aurora that is similar to the LILLYUHTSS and the right to purchase such ultra-high throughput screening system. 2.1.7. Supply of Reporters. Aurora shall deliver all of the Aurora Reporters listed in Exhibit 1.2 to Lilly within *** of the Effective Date. So long as Lilly has made payments in accordance with Section 2.1.8 hereof, then, at Lilly's request, Aurora will use reasonable efforts to supply within *** receipt of a written purchase order therefor, reagents/tools pertaining to the Aurora Reporter Systems as Lilly may require in order to use the Aurora Reporter Systems in a Lilly Screening Program conducted by Lilly. Lilly will be charged for all supplies so delivered *** . Lilly will pay for all supplies so ordered within *** after delivery to Lilly. 2.1.8. Payments in Consideration of the Use of the Aurora Reporter System Technology and Aurora Reporter System Patent Rights. Lilly's right to use Aurora Reporters requires that Lilly pay to Aurora *** ). Half of *** will be made within ten (10) business days of the Effective Date and the second half of *** shall be made *** after the Effective Date. All other *** for Aurora Reporters will be distributed as a *** Three years after the Effective Date, Lilly may elect to renew its yearly license for Aurora Reporters for an *** and for consecutive one ***CONFIDENTIAL TREATMENT REQUESTED 20 21 year periods thereafter. Lilly will provide Aurora with sixty (60) days written notice of Lilly's intent to renew or not renew its yearly license. *** after the Effective Date, *** ). 2.1.8.1. Option to Additional Aurora Reporters. So long as Lilly satisfies its payment obligations under Section 2.1.8 for Aurora Reporters, Aurora agrees to negotiate in good faith with Lilly to use additional reporters, which are not listed in Exhibit 1.2 and developed by Aurora, for Lilly's Internal Research for terms comparable to those offered by Aurora to a Third Party. 3. COLLABORATIVE SCREENING PROGRAMS 3.1. Collaborative Screening Program The parties will collaborate in developing and validating Collaborative Screens as part of a Collaborative Screening Program (CSP), as follows: 3.1.1. Collaborative Screen Program Management. Under the CSP, Lilly and Aurora will collaborate to develop high throughput and/or ultra high throughput screens for Lilly's use in accordance with this Agreement. Lilly shall propose *** targets, one molecular target at a time, and Aurora may, within thirty (30) days of such proposal, choose to select such molecular target. Lilly shall continue to propose molecular targets until Aurora has selected a total of *** targets for screen development. The *** molecular targets proposed by Lilly shall be targets that Lilly reasonably believes to be amenable for the development of a high throughput screen using Aurora Technology. The parties will use reasonable efforts to select *** following the Effective Date, and the remaining target *** after the Effective Date. No later that thirty (30) days after the Effective Date, the parties shall establish a CSP Steering Committee (the "CSP Steering Committee"). The CSP Steering Committee shall consist of three (3) representatives designated by Lilly and three (3) representatives designated by Aurora. ***CONFIDENTIAL TREATMENT REQUESTED 21 22 Each representative will have one vote and each party will have exactly three votes. The CSP Steering Committee will meet at least three times per year at mutually agreed upon times and locations using mutually agreed upon meeting formats, including tele- and video-conferencing. The CSP Steering Committee will coordinate screen development (including the formation and management of a CSP Work Plan for each CSP Screen within thirty (30) days of Aurora choosing to accept a Lilly proposed molecular target), and approve the validation of each CSP screen. Each screen, together with all of the reagents to be delivered by Aurora in connection therewith, is referred to hereinafter as a "CSP Screen", which shall be manufactured by Aurora and delivered to Lilly. The validation of each CSP Screen at Aurora will be approved by a simple majority vote of the CSP Steering Committee. In the event of a deadlock by the CSP Steering Committee of the approval of the validation of a CSP Screen, Lilly shall have the right to approve the validation of the CSP Screen. Promptly following mutual agreement on the selection of each target, the CSP Steering Committee will jointly prepare an "CSP Work Plan", which shall set forth the respective responsibilities of the in the development of each CSP Screen, and which must be approved by the CSP Steering Committee. Each such CSP Work Plan will contain, where applicable, a description of the tasks to be performed by each party, location, the specific deliverables and documentation to be produced by Aurora, validation criteria for each CSP Screen, a schedule of performance, fees (as determined in accordance with this Section 3.1.1), a schedule of payments, and any other relevant work specifications. Promptly following the approval of each CSP Work Plan, the parties will commence their respective duties under the CSP Work Plan for the development of the applicable CSP Screen. All work under a CSP Work Plan shall be performed in accordance with the provisions of this Agreement, and each party will use reasonable efforts to complete its obligations under the CSP Work Plan as expeditiously as practicable. In developing each CSP Work Plan, the CSP Steering Committee will determine and agree upon the fee to be paid by Lilly to Aurora for development, manufacture and delivery of an CSP Screen to Lilly for the target in question. The parties understand and agree that the exact fee per target will be determined as the sum of the following: *** ***CONFIDENTIAL TREATMENT REQUESTED 22 23 *** In the event of a deadlock by the CSP Steering Committee of the approval of the CSP Work Plan, Lilly shall have the right to approve the validation of the CSP Screen. Alternatively, Aurora may elect to accept to undertake the development of such CSP Screen for *** . The *** (i) shall be reimbursed to Aurora by Lilly monthly in arrears *** an *** by *** , and the *** shall be paid within thirty (30) days following *** ***. If Aurora elects to undertake the CSP for *** , such payment shall be paid within thirty (30) days following the delivery of a validated Collaborative Screen as per the CSP Work Plan. If the expenses for an approved CSP Work Plan exceed the amount approved for such CSP Screen, then a simple majority vote of the CSP Steering Committee will approve additional funds for such CSP Work Plan and require Lilly to provide the same. If the CSP Steering Committee does not approve additional funds in excess of the amount approved for such CSP Screen for such CSP Work Plan, then Lilly will notify Aurora in writing of one of the following options within ten (10) days: i) Lilly can elect to not pursue such Collaborative Screen and Aurora can optionally a) complete such Collaborative Screen and submit it for validation to the CSP Steering Committee or b) Aurora can abandon the Collaborative Screen, in either case such Collaborative Screen will count as one of the Collaborative Screens of the CSP, ii) Lilly can elect to pursue such Collaborative Screen as a Lilly Screen, provided, however that Aurora can optionally a) continue to develop such Collaborative Screen for no more than an additional three months and submit it for validation to the CSP Steering Committee or b) Aurora can abandon the Collaborative ***CONFIDENTIAL TREATMENT REQUESTED 23 24 Screen (in all such cases under 3.1.1 (ii) such Collaborative Screen will count as one of the Collaborative Screens of the CSP), or iii) Lilly can elect to complete such Collaborative Screen, Aurora will transfer all Materials developed by Aurora pursuant to the CSP Work Plan for such Collaborative Screen, and upon completion will then be submitted to the CSP Steering Committee for validation, and such Collaborative Screen will count as one of the Collaborative Screens of the CSP. If at any time during the Term a CSP Screen for whatever reason loses its effectiveness or efficacy or is no longer biologically active, Aurora will replace same as promptly as practicable, in which event Lilly will reimburse Aurora for *** . 3.1.2. Deployment of Screen by Lilly. Lilly will use reasonable efforts to employ each such accepted CSP Screen to screen Lilly Test Materials, using Lilly's then current screening practices. 3.1.3. Additional Screens. Subject to the same terms and conditions as are set forth in this Section 3.1, Lilly may elect that the number of CSP Screens on which Lilly and Aurora shall collaborate to develop and deliver to Lilly be increased *** . 3.1.4. Rights in Lilly Compounds. All right, title and interest in any Inventions relating in any way to any Lilly compounds or any Lilly Test Materials and which arise out of, or are conceived or reduced to practice as a result of, the development or use of an CSP Screen by or for Lilly shall be owned solely by Lilly. ***CONFIDENTIAL TREATMENT REQUESTED 24 25 3.1.5. Payments to Aurora. In addition to such payments as are made by Lilly to Aurora pursuant to Section 3.1.1 hereof, the following payments shall be made to Aurora with respect to the delivery and use of the CSP Screens by Lilly: 3.1.5.1. Milestones. Lilly will pay to Aurora: 3.1.5.1.1. *** 3.1.5.1.2. For each Approved PTAC Compound identified in a CSP Screen that achieves the following milestones, Lilly will promptly notify Aurora of same and will pay the following amounts to Aurora: *** CONFIDIENTIAL TREATMENT REQUESTED 25 26
Event Payment (US$) ----- ---------------- *** *** *** *** ***
provided, however, that for a given milestone, Lilly will only make one such payment per CSP Screen. All payments shall be paid to Aurora within thirty (30) days following such notification from Lilly. 3.1.5.2. Royalties. With respect to each Covered Product based on a Collaborative Screen Lilly shall pay a royalty on Net Sales of such Covered Product during the Royalty Term for such Covered Product, as follows, the sum of the worldwide Net Sales ***); provided, however, that cumulative royalties paid for a Covered Product will not exceed ***. 3.2. Lilly Screening Payments As part of the rights licensed under Section 5.1.1 hereof, Lilly and its Affiliates shall have a license and right to use the Aurora Reporter System Technology and Aurora Reporter System Patent Rights licensed to it under Section 5.1.1 hereof, and to use any Aurora Reporters or other reagents/tools supplied to Lilly by Aurora pursuant to Section 2.1.7, to develop, make and use in Internal Research targeting any targets as Lilly in its discretion may select (collectively, such activities referred to as the "Lilly Screening Program" or "LSP", and any such screen, the manufacture or use of which is covered by the Aurora Reporter System *** CONFIDENTIAL TREATMENT REQUESTED 26 27 Technology and the Aurora Reporter System Patent Rights or in which the Reporters supplied by Aurora are used, referred to as a "Lilly Screen"). Lilly may further conduct any Internal Research, development and commercialization thereafter of any Hits arising out of any such LSP activities, or Derivatives of such Hits, as Lilly in its discretion may elect to conduct. Subject to Section 3.2.3 below, Lilly shall make milestone payments to Aurora with respect to such Hits as arise out of any use of a Lilly Screen by Lilly or its Affiliates, as follows: 3.2.1. Subject to Section 3.2.3, for *** , Lilly shall promptly notify Aurora of such PTAC approval and will pay Aurora *** . Payment shall be paid to Aurora within thirty (30) days following such notification from Lilly. 3.2.2. If an Approved PTAC Compound for which Lilly has made a payment to Aurora under Section 3.2.1 reaches the following milestones, Lilly will promptly notify Aurora of same and will pay the following amounts to Aurora:
Event Payment (US$) ----- ---------------- *** *** *** ***
Payments shall be made to Aurora within sixty (60) days following such notification from Lilly. *** CONFIDENTIAL TREATMENT REQUESTED 27 28 3.2.2.1 Royalties. With respect to each Covered Product based on a Hit or Derivative identified through the use of any Lilly Screen and where the development, manufacture, or use the Lilly Screen is covered by a Valid Claim of the patent application listed in Exhibit 5.2, Lilly shall pay a royalty on Net Sales of such Covered Product during the Royalty Term for such Covered Product, as follows, *** 3.2.3. If Lilly enters into an agreement with Aurora to develop *** CSP Screens under Section 3.1 hereof, then each such additional CSP Screen in excess of *** shall reduce the number of Lilly Screens under this Section 3.2 for which payments may need to be made under Sections 3.2.1 above. For example, if Lilly enters into CSP Work Plans for *** *** CSP Screens, then the milestone payments under Section 3.2.1 shall apply only to *** PTAC Approved Compounds identified through the use of any Lilly Screen. 3.3. Ownership of Data. All results and data solely with respect to any Hits and Approved PTAC Compounds (and Derivatives of any of the foregoing made or obtained by Lilly) generated by Lilly, its Affiliates and its and their contractors arising out of the use by any of them of the LILLYUHTSS and any CSP Screen or Lilly Screen, the use of any of the rights licensed under Section 5 hereof, or otherwise arising out of this Agreement shall be owned exclusively by Lilly and shall be treated as Lilly Confidential Information hereunder. 3.4. Development of Products Lilly will in its discretion determine which, if any, such Hit(s), or Derivative(s) of Hit(s), will be approved as an Approved PTAC Compound. Lilly will be responsible for all pre-clinical and clinical development, including all regulatory filings, of Hits and Approved PTAC Compounds arising out of this Agreement. Lilly shall have discretion and control over the conduct of, and all activities associated with, the development or abandonment of any Approved *** CONFIDENTIAL TREATMENT REQUESTED 28 29 PTAC Compound, all regulatory activities relating to the manufacture, use or sale of any Approved PTAC Compound or Product, and the commercialization and marketing of any Product in any country. All INDs, NDAs and other regulatory filings made or filed by Lilly for any Approved PTAC Compound or Product shall be owned solely by Lilly. Lilly will provide, at a minimum, written notification to Aurora once every six (6) months on the development status of any Approved PTAC Compound then in development arising out of any CSP Screening Program or Lilly Screens that may be subject to milestones or royalties and which shall be treated as Lilly Confidential Information hereunder. Other than royalty reports required hereunder, no reports shall be required of Lilly with respect to any activities connected with the commercialization of any Covered Product approved for marketing in any country. 3.5. Laboratory Facilities and Personnel Aurora and Lilly shall each, at their respective cost and expense, provide suitable and sufficient laboratory facilities and equipment, and will devote sufficient, experienced personnel, as is needed to carry out their respective obligations under this Agreement. 29 30 4. SERVICE AND SUPPORT 4.1. Service and Support For a period of twelve (12) months after Completion of a complete, fully operational LILLYUHTSS pursuant to Section 2.1.3, Aurora will provide, without additional charge to Lilly, service and support for the applicable system and all system components, as such service and support is more fully described on Exhibit 4.1 attached hereto ("Service and Support"). Aurora will be responsible for providing and paying for this Service and Support, whether provided by Aurora itself or through third party contractors (including those providing any LILLYUHTSS components to Aurora). Aurora will designate an appropriate Aurora employee to coordinate such Service and Support. Following the applicable twelve (12) month period, Lilly may elect to purchase Service and Support annually thereafter for such LILLYUHTSS (or component thereof) for fee of *** . This purchased annual Service and Support will be available to Lilly until *** pursuant to Section 2.1.3, after which period Lilly and Aurora will negotiate in good faith for further Service and Support. 5. INTELLECTUAL PROPERTY RIGHTS. 5.1. Grant of Rights from Aurora to Lilly *** CONFIDENTIAL TREATMENT REQUESTED 30 31 5.1.1. *** 5.2. Grant of Rights from Lilly to Aurora. 5.2.1. Lilly grants to Aurora and its Affiliates a nonexclusive, worldwide license, without the right to sublicense, under Lilly Patent Rights and Lilly Technology to perform its obligations under this Agreement relating to the Collaborative Screens. Lilly also grants to Aurora and its Affiliates a nonexclusive, worldwide license, with the right to sublicense, under Lilly Patent Rights that are filed as patent applications or are conceived as inventions during any given year for which Lilly has made an annual payment for Aurora Reporters as set forth in Section 2.1.8, to make, use or sell Aurora Reporters in any other reporter assays. The rights granted hereunder shall continue until terminated in accordance with the provisions of this Agreement. 5.3. Ownership of Intellectual Property *** CONFIDENTIAL TREATMENT REQUESTED 31 32 5.3.1. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended to convey or transfer ownership by one party to the other of any rights, title or interest in any Confidential Information, Technology, copyrights or Patent Rights owned or Controlled by a party. Except as expressly provided for in this Agreement, nothing in this Agreement shall be construed as a license or sublicense by one party to the other of any rights in any Technology, copyrights, or Patent Rights owned or Controlled by a party or its Affiliates. 5.3.2. Lilly shall own all Inventions and other Technology made solely by its employees and agents, and all patent applications and patents claiming such Inventions. Aurora shall own all Inventions and other Technology made solely by its employees and agents, and all patent applications and patents claiming such Inventions. All Inventions and other Technology made jointly by employees or agents of Lilly and employees or agents of Aurora shall be owned jointly by Lilly and Aurora, provided, however, that all patentable Inventions shall be owned in accordance with U.S. patent law. 6. PAYMENTS OF ROYALTIES, ACCOUNTING FOR ROYALTIES, AND RECORDS 6.1. Payment and Term In consideration of the rights granted herein to Lilly by Aurora and services provided to Lilly by Aurora relating to the Collaborative Screening Program, Lilly agrees to pay Aurora as set forth in Section 3.0 and as follows in Section 6.0. All royalties required to be paid by Lilly in this Agreement shall be paid ***; thereafter, Lilly shall be entitled to continue to sell such Covered Product in such country without further compensation to Aurora hereunder. If Lilly is required by the United States government or other authorities to withhold any tax on the amounts payable to Aurora under this agreement, Lilly shall be allowed to do so, and shall in such case remit royalty payments to Aurora net of such withheld amount, provided that Lilly furnishes Aurora with proof of payment of such withholdings as soon as practicable after such withholding in order that Aurora may use the withholding tax paid as a tax credit. *** CONFIDENTIAL TREATMENT REQUESTED 32 33 6.2. Payment Dates. Royalties shall be paid by Lilly on Net Sales within sixty (60) days after the end of each calendar quarter in which such Net Sales are made. Such payments shall be accompanied by a statement showing all relevant sales information, including the information employed to calculate Net Sales of each Covered Product in each country, and the calculation of the amount of royalty due. 6.3. Accounting. The Net Sales used for computing the royalties payable to Aurora by Lilly shall be paid in U.S. dollars by wire transfer or other mutually acceptable means. Lilly's current standard exchange rate methodology will be employed for the translation of foreign currency sales into United States dollars. This methodology is used by Lilly in the translation of its foreign currency operating results for external reporting, is consistent with generally acceptable accounting principles, and is approved and reviewed by Lilly's independent certified public accountants. To enable Lilly to comply with applicable tax laws and regulation, Aurora shall provide to Lilly a report, within 60 days following the close of each calendar year, detailing the dollar amount of the funds that were expended on CSP research activities during the year for which the report is made. 6.4. Records. During the Royalty Term and for one (1) year from the date of each payment of royalties, Lilly shall keep complete and accurate records of sales and all other information necessary to calculate Net Sales of each Covered Product in sufficient detail to allow the accrued royalties to be determined accurately. Aurora, with reasonable written notice to Lilly, shall have the right to cause Lilly's independent, certified public accountant to audit such records at the place or places of business where such records are customarily kept in order to verify the accuracy of the reports of Net Sales and royalty payments. Aurora shall bear the full cost of such audit unless such audit discloses a variance of *** from the amount of the royalties due under this Agreement, in which event, Lilly shall bear the full cost of such audit. Aurora agrees not to disclose confidential information concerning royalty payments and reports, and all information learned in the course of any audit or inspection, except to the extent necessary for Aurora to reveal such information in order to enforce its rights under this Agreement or if disclosure is required by law. Upon reasonable request of Aurora and at a minimum once every six (6) months, Lilly shall provide Aurora ***CONFIDENTIAL TREATMENT REQUESTED 33 34 with a summary of, Approved PTAC Compounds and Covered Products that are required to calculate Royalties or Milestones. 7. INTELLECTUAL PROPERTY ENFORCEMENT AND DEFENSE OF INFRINGEMENT CLAIMS 7.1. Intellectual Property Enforcement. Lilly and Aurora shall have the right, but not the obligation, to bring proceedings against any Third Party for the inappropriate use, including patent infringement, of Technology or Patent Rights solely owned or Controlled by it, and at its own risk and expense. Such party shall be entitled to retain any and all awards or damages obtained in any such proceeding. At the request and expense of either party, the other party shall give the requesting party all reasonable assistance required to file and conduct any such proceeding. For jointly owned Technology or Patent Rights, Lilly and Aurora shall use their best efforts to coordinate pursuing a commercially reasonable action to address inappropriate use, including patent infringement, by Third Parties of such Technology and Patent Rights and to determine how expenses and any recovery from such action shall be allocated between the parties. Lilly, as a non-exclusive licensee, will make reasonable efforts to provide Aurora with any information known to Lilly relating to the suspected or actual inappropriate use, including patent infringement, of Aurora Technology and Aurora Patent Rights. 7.2. Defense of Infringement Claims Pertaining to Lilly Hits, Approved PTAC Compounds, and Covered Products. Aurora will cooperate with Lilly, at Lilly's expense, in the defense of any suit, action or proceeding against Aurora and its Affiliates, or Lilly and its Affiliates alleging the infringement of the intellectual property rights of a Third Party by reason of the manufacture, use or sale of a Covered Product by Lilly. Lilly shall give Aurora prompt written notice of the commencement of any such suit, action, proceeding or claim of infringement. Aurora shall give to Lilly all authority, information and assistance necessary to defend or settle any such suit, action or proceeding; provided, however, that if Aurora or its Affiliates or licensees should join in any such suit, action or proceeding pursuant to this Section 7.2 and at the request of Lilly, Lilly shall hold Aurora or any such Aurora Affiliate or licensee, as applicable, free, clear and harmless from any and all costs and expenses of such litigation, including reasonable attorneys' fees, and Aurora shall execute all documents, provide pertinent records, and take all other actions, including 34 35 requiring persons within its control to give testimony, which may be reasonably required in connection with such litigation. 7.3. Defense of Infringement Claims Pertaining to Aurora Technology and Aurora Patent Rights Lilly will cooperate with Aurora, at Aurora's expense, in the defense of any suit, action or proceeding against Aurora or Aurora Affiliate alleging the infringement of the intellectual property rights of a Third Party by reason of Aurora's use any of Aurora Patent Rights and Aurora Technology licensed to Lilly under this Agreement. Aurora shall give Lilly prompt written notice of the commencement of any such suit, action, proceeding or claim of infringement. Lilly shall give to Aurora all authority, information and assistance necessary to defend or settle any such suit, action or proceeding; provided, however, that if Lilly or its Affiliates or licensees should join in any such suit, action or proceeding pursuant to this Section 7.3 and at the request of Aurora, Aurora shall hold Lilly, or any such Lilly Affiliate, free, clear and harmless from any and all costs and expenses of such litigation, including reasonable attorneys' fees, and Aurora shall execute all documents, provide pertinent records, and take all other actions, including requiring persons within its control to give testimony, which may be reasonably required in connection with such litigation. 8. TREATMENT OF CONFIDENTIAL INFORMATION; PUBLICITY, AND CHANGE OF CONTROL 8.1. Confidentiality 8.1.1. Subject to the terms and conditions of this Agreement, Lilly and Aurora each agree that, during the term of this Agreement and for five (5) years thereafter, it will use all reasonable efforts to keep confidential, and will cause its Affiliates to use reasonable efforts to keep confidential, all Aurora Confidential Information or Lilly Confidential Information, as the case may be, that is disclosed to it or to any of its Affiliates by the other party in connection with the performance of this Agreement. Neither Lilly nor Aurora nor any of their respective Affiliates shall use the other party's Confidential Information except as expressly permitted in this Agreement. 8.1.2. Lilly and Aurora each agree that any disclosure of the other's Confidential Information to any officer, employee, contractor, 35 36 consultant, sublicensee, or agent of the other party or of any of its Affiliates shall be made only if and to the extent necessary to carry out its responsibilities under this Agreement and to exercise the rights granted to it hereunder, shall be limited to the extent consistent with such responsibilities and rights, and shall be provided only to such persons or entities who are bound to maintain same in confidence in a like manner as the party receiving same hereunder is so required. Each party shall use reasonable efforts to take such action, and to cause its Affiliates to take such action, to preserve the confidentiality of each other's Confidential Information, including not less than such efforts as it would customarily take to preserve the confidentiality of its own Confidential Information. Lilly Confidential Information shall not be disclosed, without Lilly's written consent, in a patent application filed by Aurora or an Aurora Affiliate. Aurora Confidential Information shall not be disclosed, without Aurora's written consent, in a patent application filed by Lilly or a Lilly Affiliate. Each party, upon the other's request, will return all the Confidential Information disclosed to the other party pursuant to this Agreement, including all copies and extracts of documents, within sixty (60) days of the request of the other party following any termination of this Agreement, except for one (1) copy which may be kept for the purpose of ascertaining and complying with continuing confidentiality obligations under this Agreement. 8.1.3. Confidential Information shall not include any information which the receiving party can prove by competent evidence: i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; ii) is known by the receiving party at the time of receiving such information, as evidenced by its records; iii) is hereafter furnished to the receiving party without restriction as to disclosure or use by a Third Party lawfully entitled to so furnish same; iv) is independently developed by the employees, agents or contractors of the receiving party without the aid, application or use of the disclosing party's Confidential Information; or 36 37 v) is the subject of a written permission to disclose provided by the disclosing party; or vi) is provided by the disclosing party to a Third Party without restriction as to confidentiality. A party may also disclose Confidential Information of the other where required to do so by law or legal process, provided that, in such event, the party required to so disclose shall give maximum practical advance written notice of same to the other party and will cooperate with the other party's efforts to seek, at the request and expense of the other party, all confidential treatment and protection for such disclosure as is permitted by applicable law. The parties agree that the material financial terms of this Agreement will be considered Confidential Information of both parties. Notwithstanding the foregoing, either party may disclose such terms in legal proceedings or as are required to be disclosed in its financial statements, by law, or under strictures of confidentiality to bona fide potential sublicensees. Either party shall have the further right to disclose the material financial terms of this Agreement under strictures of confidentiality to any potential acquirer, merger partner, bank, venture capital firm, or other financial institution to obtain financing; provided, further, that either party shall have the right to disclose the material financial terms of this Agreement under strictures of confidentiality to any bona fide potential strategic partner or collaborator with the prior written notice of the other. 8.2. Publication of Results Notwithstanding any term in this Agreement that may state or imply to the contrary, but subject to Section 8.1 hereof, results and data obtained by Lilly in the course of the Collaborative Screening Program and Lilly Screen Program or through Lilly's use of the Aurora Reporters or the LILLYUHTSS may be submitted for publication in accordance with Lilly's customary practices, provided, however, that Lilly credit Aurora in such publication as the provider of the technology that produced, in part, the published results or data. 37 38 8.3. Publicity Except as required by law and as provided in this Section 8, neither party may make any public announcement or otherwise disclose the terms of this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. 9. PATENT PROSECUTION AND COPYRIGHTS 9.1. Patents. The control and expense of the filing, prosecution (including an opposition or interference) and maintenance of applications claiming jointly owned Inventions will be equally shared by Lilly and Aurora. Both Aurora and Lilly will use their best efforts to coordinate the filing prosecution and maintenance of applications claiming jointly owned Inventions. Should one party elect not to share in the control, filing, prosecution or maintenance of such applications, the other party with thirty (30) days written notice may elect to gain sole control of the filing, prosecution or maintenance of such application or applications and have sole responsibility for prosecution or maintenance expenses. The control and expense of the filing, prosecution (including an opposition or interference) and maintenance of applications claiming solely owned Inventions will be at the discretion of the owner. At Lilly's reasonable request, not to exceed more than one request every three months, Aurora shall timely provide to Lilly updates regarding the patent applications related to Aurora Patent Rights licensed under Section 5.1. 9.2. Copyrights The parties agree to treat and handle, to the maximum practical extent, any copyrights owned or Controlled by a party in the same manner as Patent Rights owned or Controlled by such party. 38 39 10. WARRANTIES AND INDEMNIFICATION. 10.1. Mutual Representations and Warranties The parties make the following representations and warranties to each other: 10.1.1. Corporate Power. Each party hereby represents and warrants that such party (a) is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) has the requisite power and authority and the legal right to own and operate its property and assets, to lease the property and assets it operates under lease, and to carry on its business as it is now being conducted; and (c) is in compliance with all requirements of applicable law, except to the extent that any noncompliance would not have a material adverse effect on the properties, business, financial or other condition of it and would not materially adversely affect its ability to perform its obligations under the Agreement. 10.1.2. Due Authorization. Each party hereby represents and warrants that such party (a) has the requisite power and authority and the legal right to enter into the Agreement and to perform its obligations and grant the rights extended by it hereunder; and (b) has taken all necessary action on its part to authorize the execution and delivery of the Agreement and to authorize the performance of its obligations hereunder and the grant of rights extended by it hereunder. 10.1.3. Binding Agreement. Each party hereby represents and warrants to the other that: (a) this Agreement has been duly executed and delivered on its behalf and is a legal and valid obligation binding upon it and is enforceable in accordance with its terms; (b) the execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument 39 40 or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having authority over it; and (c) all necessary consents, approvals and authorizations of all governmental authorities and other persons required to be obtained by it in connection with the Agreement have been obtained. 10.2 Warranties and Aurora Technology. Aurora warrants to Lilly as of the Effective Date the following: 10.2.1. To the best knowledge of Aurora *** 10.2.2. Except as set forth in Section 10.2.1 above, Sections 3.1 and 3.2 relating to Collaborative Screening Programs and Lilly Screening Programs and Section 2 relating to LILLYUHTSS, Aurora (including its officers, employees and agents) expressly disclaim any representations and warranties, whether express or implied, relating to Aurora Patent Rights and Aurora Technology. Aurora further disclaims i) any express or implied warranty of merchantability or fitness for a particular purpose of Aurora Technology except as set forth in Sections 2 and 3 to Collaborative Screening Programs and LILLYUHTSS, ii) practice of Aurora Technology or Aurora Patent Rights will not infringe a patent, copyright, trademark or other right of a Third Party, and iii) the patentability of any Aurora Technology, including Aurora Technology claimed in patent applications as part of Aurora Patent Rights. 10.3. Aurora Indemnification. *** CONFIDENTIAL TREATMENT REQUESTED 40 41 Aurora hereby agrees to indemnify, defend and hold Lilly and its Affiliates, and their respective officers, directors, employees, and agents (collectively, the "Lilly Indemnitees") harmless from and against all damages or other amounts payable to a Third Party, including reasonable attorneys' fees and costs of litigation, resulting from a suit brought by a Third Party against a Lilly Indemnitee *** In no event shall Aurora be liable for any incidental or consequential damages resulting from the exercise of any rights granted in accordance with this Agreement. 10.4. Warranties and Lilly Technology. ---------------------------------------- Lilly warrants to Aurora as of the Effective Date the following: 10.4.1. To the best knowledge of Lilly as of the Effective Date, Lilly has the lawful right to license to Aurora in accordance with this Agreement Lilly Patent RightS To the best knowledge of Lilly as of the Effective Date, Lilly Patent Rights were properly filed and prosecuted and no Third Party suit exists relating to Lilly Patent Rights. 10.4.2. Except as set forth in Section 10.4.1 above, Sections 3.1 and 3.2 relating to Collaborative Screening Programs and Lilly Screening Programs and Section 2 relating to LILLYUHTSS, Lilly (including its officers, employees and agents) expressly disclaim any representations and warranties, whether express or implied, relating to Lilly Patent Rights and Lilly Technology. Lilly further disclaims i) any express or implied warranty of merchantability or fitness for a particular purpose of Lilly Technology except as set forth in Sections 2 and 3 relating to Collaborative Screening Programs and LILLYUHTSS, ii) practice of Lilly Technology or *** CONFIDENTIAL TREATMENT REQUESTED 41 42 Lilly Patent Rights will not infringe a patent, copyright, trademark or other right of a Third Party, and iii) the patentability of any Lilly Technology, including Lilly Technology claimed in patent applications as part of Lilly Patent Rights. 10.5. Lilly Indemnification. Lilly hereby agrees to indemnify, defend and hold Aurora and its Affiliates, and their respective officers, directors, employees, and agents (collectively, the "Aurora Indemnitees") harmless from and against all damages or other amounts payable to a Third Party, including reasonable attorneys' fees and costs of litigation, resulting from a suit brought by a Third Party against a Aurora Indemnitee ***; except to the extent such damages or other amounts payable are attributable to: (i) a violation of law, regulation or court order by any Aurora Indemnitee, (ii) a violation of any contractual or fiduciary duty owed by any Aurora Indemnitee to a Third Party, (iii) the misappropriation by any such Aurora Indemnitee of the trade secrets of any Third Party, (iv) any negligent or wrongful act or omission of any Aurora Indemnitee, (v) any infringement of any third party intellectual property rights by Aurora or any Aurora Affiliate, or (vi) any breach of this Agreement by an Aurora Indemnitee or misrepresentation contained herein. In no event shall Lilly be liable for any incidental or consequential damages resulting from the exercise of any rights granted in accordance with this Agreement. 11. TERM, PARTIAL PERFORMANCE AND TERMINATION. 11.1. Term. The term of this Agreement will begin on the Effective Date and shall continue, unless terminated in accordance with the provisions of Sections 11.2-11.4 hereof, until the later of: (i) the last to expire Royalty Term; or (ii) Lilly is no longer making payment for Aurora Reporters under Section 2.1.8. *** CONFIDENTIAL TREATMENT REQUESTED 42 43 11.2. Termination By Mutual Agreement. ---------------------------------------- The parties may at any time terminate this Agreement, in whole or in part, by written agreement executed by both Aurora and Lilly. In such event, the document effecting such termination shall specify the continuation or termination of any license rights granted hereunder, as well as any other terms agreed to by both parties. 11.3. Termination Without Cause by Lilly. ------------------------------------------- Lilly may elect at any time set forth in accordance with this Agreement to terminate this Agreement for any reason without cause, provided, however, that Lilly provide Aurora with written notice at least forty-five (45) days prior to such termination. In the event of termination without cause by Lilly: 11.3.1. Lilly shall either: (i) pay to Aurora within thirty days of such notice an amount equal *** *** ***; or (ii) pay to Aurora within thirty days of such notice an amount equal to the *** *** CONFIDENTIAL TREATMENT REQUESTED 43 44 *** . In addition to payments made under Section 11.3.1 (i) and Section 11.3.1 (ii), Lilly shall also pay to Aurora within thirty days of such notice *** 11.3.2. Upon termination of this Agreement without cause by Lilly, all licenses and sublicenses granted in accordance with this Agreement shall be terminated and all Materials transferred in accordance with this Agreement shall be returned to Aurora or destroyed at the discretion of Aurora by Lilly; provided, however, Lilly shall be entitled i) to use thereafter in Internal Research Completed components of the LILLYUHTSS that (a) Lilly has determined to be Completed for at least 60 days prior to written notice of such termination and to which Lilly has made the payments required under Section 2 and (b) to which Lilly has made payments required under Section 11.3.1 (ii) hereof and ii) to exercise a nonexclusive, irrevocable, and fully paid-up right and license under any Aurora UHTSS Patent Rights and Aurora UHTSS Copyrights existing as of the date of such written notification of Lilly's termination without cause or provided under Section 11.3.1 (ii). 11.4. Partial Performance. ---------------------------- Lilly and Aurora agree that Aurora may, under certain circumstances, partially perform under this Agreement, without terminating the Agreement, as set forth below: 11.4.1. In the event that Aurora is i) unable to deliver to Lilly the LILLYUHTSS by the Target Delivery Date as specified in Section 2.1.2.1 or ii) Aurora is unable to Complete a Module as specified in Section 2.1.3, Aurora shall permit Lilly to continue to use the rights granted in accordance with this Agreement to conduct the Collaborative Screening Program and the Lilly Screening Program, so long as Lilly has no outstanding payments to Aurora, and Lilly continues to permit Aurora to cure the delivery of the LILLYUHTSS by the Target Delivery Date as specified in Section 2.1.2.1 or the Completion of a Module as specified in Section 2.1.3 and Lilly notifies in writing Aurora within 30 days of such partial *** CONFIDENTIAL TREATMENT REQUESTED 44 45 performance that it desires Aurora to cure under this Section 12.2.3. 11.5. Termination for Cause. Either party shall have the right to terminate this Agreement at any time for a material breach of this Agreement by the other party, provided that the non-breaching party shall have given the breaching party (90) days written notice of the breach and intention to terminate this Agreement in the absence of a cure within ninety (90) days of receipt of such notice by the beaching party. Upon termination of this Agreement for cause, all licenses and sublicenses granted in accordance with this Agreement shall be terminated and all Materials transferred in accordance with this Agreement shall be returned to the supplying party or destroyed at the discretion of such party. The non-breaching party, upon termination of this Agreement may seek actual or general damages and remedies available to it at law or in equity. 11.6. Effect of Bankruptcy If a party becomes insolvent or admits in writing its inability to pay its debts as they mature or applies for or consents to the appointment of a receiver or trustee for any of its properties; or a receiver or trustee is appointed for such party or a substantial portion of its properties and is not discharged within ninety (90) days; or any bankruptcy, reorganization, debt arrangement, dissolution, liquidation or other proceeding under any bankruptcy or insolvency law is instituted by or against such party and, if instituted against such party, it is consented to by such party or remains undismissed for ninety (90) days, then 11.6.1. Notwithstanding any such event, such party shall remain obligated to fulfill its obligations and covenants hereunder, and any failure to do so or other breach hereunder shall entitle the other party to terminate this Agreement in accordance with Section 12.3 hereof; and 11.6.2. It is the parties desire that, if any such receiver, trustee, judge, arbitrator or other adjudicator conducting or controlling such proceedings on behalf of a party should hold that any obligations, covenants or duties of such party hereunder should be suspended or declared unenforceable, in whole or in part, then the rights and benefits granted to the other party hereunder shall remain in full force and effect, and that any such obligations, covenants or duties 45 46 shall be reformed by such receiver, trustee, judge, arbitrator or other adjudicator so as to be enforceable to the maximum extent permitted by applicable law and to permit any suspension to be lifted at the earliest practicable time. 11.7. Effect of Expiration or Termination 11.7.1. Expiration or termination of this Agreement shall not relieve the parties of any obligation accruing prior to such expiration or termination. The obligations and rights of the parties under Sections 3.1.5 to 3.2.3, 6.0, 8.0, 9.0, 12.0, and 13.0 thereof, as well as any provisions, which, by their intent or meaning are intended to so survive, shall survive termination or expiration of this Agreement. Except as otherwise expressly provided in this Agreement, the rights and obligations of the parties under Sections 5.1, and 5.2 hereof shall terminate and be of no further force or effect whatsoever upon any termination of this Agreement. 12. MISCELLANEOUS 12.1. Assignment. Notwithstanding any provision of this Agreement to the contrary, either party may assign any of its rights or obligations under this Agreement in any country to any Affiliates; provided, however, that such assignment shall not relieve the assigning party of its responsibilities for performance of its obligations under this Agreement. Either party may also assign its rights or obligations under this Agreement in connection with the sale of all or substantially all of its assets, or may otherwise assign its rights or obligations under this Agreement with the prior written consent of the other party. This Agreement shall survive any merger or consolidation of either party with or into another party and no consent for any such merger, consolidation or similar reorganization shall be required hereunder; provided, that in the event of such merger, consolidation or similar reorganization or in the event of a sale of all assets, no intellectual property rights of the acquiring corporation shall be included in the technology licensed hereunder. 12.2. Binding Effect. 46 47 This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. 12.3. Force Majeure. Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by war, fire, explosion, flood, strike, lockout, embargo, act of God, or any other similar cause beyond the control of the defaulting party, provided that the party claiming force majeure has exerted all reasonable efforts to avoid or remedy such force majeure and thereafter takes all reasonable steps to mitigate any such delay in performance hereunder and any damages that may be incurred by the other party thereby. 12.4. Notices. Any notices or communications provided for in this Agreement to be made by either of the parties to the other shall be in writing, in English, and shall be made by prepaid air mail with return receipt addressed to the other at its address set forth below. Any such notice or communication may also be given by hand, or 47 48 facsimile to the appropriate designation. Notices shall be sent: If to Lilly, to: Eli Lilly and Company Lilly Corporate Center Indianapolis, Indiana 46285 Attention: Vice President of Research Technologies and Proteins Copy: General Patent Counsel If to Aurora, to: Aurora Biosciences Corporation. 11149 N. Torrey Pines Road La Jolla, CA 92037 Attention: Timothy J. Rink, M.D., Sc.D. Chairman, CEO, and President Copy: Paul Grayson Director, Business Development
provided that if such notice or communication relates to an amendment to this Agreement or to any notice pursuant to Section 11 hereof, a copy shall also be sent to: If to Lilly, to: Eli Lilly and Company Lilly Corporate Center Indianapolis, Indiana 46285 Attention: Executive Vice President, Science and Technology Copy: General Patent Counsel If to Aurora, to: Timothy J. Rink, M.D., Sc.D. Chairman, CEO, and President Copy: Paul Grayson Director, Business Development
Either party may by like notice specify or change an address to which notices and communications shall thereafter be sent. Notices sent by mail, facsimile or cable shall be effective upon receipt and notices given by hand shall be effective when delivered. 12.5. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California, as such laws are applied to contracts entered into and to be performed within such state. 48 49 Any dispute arising from this Agreement, including non-binding arbitration or litigation, shall be resolved in Denver, Colorado. 12.6. Waiver. Except as specifically provided for herein, the waiver from time to time by either of the parties of any of their rights or their failure to exercise any remedy shall not operate or be construed as a continuing waiver of same or any of other of such party's rights or remedies provided in this Agreement. 12.7. Severability. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall, to any extent, be held to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law; and the parties hereto covenant and agree to renegotiate any such term, covenant or application thereof in good faith in order to provide a reasonably acceptable alternative to the term, covenant or condition of this Agreement or the application thereof that is invalid or unenforceable, it being the intent of the parties that the basic purposes of this Agreement are to effectuated. 12.8. Independent Contractors. It is expressly agreed that Aurora and Lilly shall be independent contractors and that the relationship between the two parties shall not constitute a partnership or agency of any kind. Neither Aurora nor Lilly shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other, without the prior written authorization of the party to do so. 12.9. Counterparts This Agreement shall be executed in two (2) counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. 49 50 12.10. Entire Agreement This Agreement between the parties of even date herewith set forth all of the covenants, promises, agreements, warranties, representations, conditions and understandings between the parties hereto, and supersede and terminate all prior agreements and understanding between the parties, with respect to the subject matter hereof. There are no covenants, promises, agreements, warranties, representations conditions or understandings, either oral or written, between the parties other than as set forth herein and therein. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by the respective authorized officers of the parties. This Agreement shall not be strictly construed against either party hereto. Any conflict between the terms set forth in the text of this Agreement and the terms of any Exhibit hereto shall be resolved in favor of the text of this Agreement. 12.11. No Third Party Beneficiaries. No third party, including any employee of any party to this Agreement, shall have or acquire any rights by reason of this Agreement. Nothing contained in this Agreement shall be deemed to constitute the parties partners with each other or any third party. 12.12. Construction. The term "Section" can refer to any single paragraph level found herein or any collection of multiple paragraphs. 12.13. Dispute Resolution. The parties recognize that disputes as to certain matters may from time to time arise during the term of this Agreement which relate to either party's rights and/or obligations hereunder. It is the objective of the parties to establish procedures to facilitate the resolution of disputes arising under this Agreement in an expedient manner by mutual cooperation and without resort to litigation or arbitration. The parties agree that prior to any litigation or arbitration concerning this Agreement, Lilly's Executive Vice President of Science and Technology and Aurora's 50 51 president will meet in person or by video-conferencing in a good faith effort to resolve any disputes concerning this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. ELI LILLY AND COMPANY AURORA BIOSCIENCES CORPORATION By: By: ---------------------------------------- ---------------------------------------- Title: Title: ------------------------------------- ------------------------------------- Date: Date: -------------------------------------- --------------------------------------
51 52 LIST OF EXHIBITS EXHIBIT 1.0: PROJECT TEAM APPROVAL COMMITTEE (PTAC) INFORMATION EXHIBIT 1.1: PERFORMANCE SPECIFICATIONS EXHIBIT 1.2: EXHIBIT OF REPORTERS EXHIBIT 4.1: SERVICE AND SUPPORT EXHIBIT 5.1: LIST OF AURORA PATENT RIGHTS EXHIBIT 5.2: OTHER AURORA PATENT RIGHTS 52 53 EXHIBIT 1.0 PROJECT TEAM APPROVAL COMMITTEE (PTAC) INFORMATION I. *** II. *** PROJECT TEAM APPROVAL COMMITTEE (PTAC) INFORMATION I. *** II. *** III. *** IV. *** V. *** *** CONFIDENTIAL TREATMENT REQUESTED 53 54 EXHIBIT 1.1 - PAGE 1 PERFORMANCE SPECIFICATIONS MODULE 1 AUTOMATED SAMPLE PRESENTATION SYSTEM (ASPS) *** *** CONFIDENTIAL TREATMENT REQUESTED 54 55 EXHIBIT 1.1 - PAGE 2 PERFORMANCE SPECIFICATIONS MODULE 2 MICROFLUIDICS *** *** CONFIDENTIAL TREATMENT REQUESTED 55 56 *** *** CONFIDENTIAL TREATMENT REQUESTED 56 57 EXHIBIT 1.1 - PAGE 3 PERFORMANCE SPECIFICATIONS MODULE 2 DETECTOR (CONTINUED) *** UHTSS ASSAY TYPES *** SCREEN DEVELOPMENT STAGE ("SDS") *** *** CONFIDENTIAL TREATMENT REQUESTED 57 58 *** *** CONFIDENTIAL TREATMENT REQUESTED 58 59 EXHIBIT 1.1 - PAGE 4 PERFORMANCE SPECIFICATIONS MODULE 3 (INTEGRATION, INFORMATICS AND CONTROL SYSTEMS) *** ***CONFIDENTIAL TREATMENT REQUESTED 59 60 EXHIBIT 1.2 DESCRIPTION OF REPORTERS *** ***CONFIDENTIAL TREATMENT REQUESTED 60 61 EXHIBIT 4.1 SERVICE AND SUPPORT *** *** CONFIDENTIAL TREATMENT REQUESTED 61 62 *** *** CONFIDENTIAL TREATMENT REQUESTED 62 63 *** *** CONFIDENTIAL TREATMENT REQUESTED 63 64 *** *** CONFIDENTIAL TREATMENT REQUESTED 64 65 EXHIBIT 5.1 LIST OF AURORA PATENT RIGHTS *** *** CONFIDENTIAL TREATMENT REQUESTED 65 66 EXHIBIT 5.2 OTHER AURORA PATENT RIGHTS *** *** CONFIDENTIAL TREATMENT REQUESTED 66 EX-10.24 32 EXHIBIT 10.24 1 Certain confidential portions of this Exhibit were omitted by means of blackout of the text (the "Mark"). This Exhibit has been filed separately with the Secretary of the Commission without the Mark pursuant to the Company's Application Requesting Confidential Treatment under Rule 406 under the Securities Act. EXHIBIT 10.24 COLLABORATION AGREEMENT BETWEEN ALLELIX BIOPHARMACEUTICALS INC. AND AURORA BIOSCIENCES CORPORATION 2 TABLE OF CONTENTS ARTICLE 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE 2. SCREEN DEVELOPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.1 Collaboration Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.1.1 Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.1.2 Membership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.1.3 Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2.1.4 CC Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2.2 Screen Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2.2.1 Screen Selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2.2.2 Screen Development Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2.2.3 Screen Development Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.2.4 Screen Validation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.3 Payments for Screen Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.3.1 Funding for Two (2) Screens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.3.2 Funding for Additional Screens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE 3. SCREENING PROGRAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1 Screening Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1.1 Screening by Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1.2 Compound Supply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1.3 Screening Program Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.2 Screening Supplies for Lead Optimization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.2.1 Supplies from Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.2.2 Shipping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.2.3 Limited Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.3 Screening Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.3.1 Base Screening Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 4. DEVELOPMENT AND COMMERCIALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 5. LICENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5.1 License to Allelix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5.2 License to Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5.3 No Implied Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5.4 Covenant Not to Assert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE 6. MILESTONES AND ROYALTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6.1 Milestone Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6.2 Royalties to Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 6.2.1 Sales by Licensees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 6.2.2 Sales by Allelix or its Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 6.2.3 Trade Secret Royalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 6.2.4 Royalty Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -2- 3 6.2.5 Other Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE 7. PAYMENTS; BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 7.1 Royalty Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 7.2 Screen Development and Screening Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 7.3 Payment Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 7.4 Currency Conversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 7.5 Records; Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 7.6 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 7.7 Refunds or Credits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ARTICLE 8. INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8.1 Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8.1.1 Sole Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8.1.2 Joint Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8.1.3 U.S. Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 8.1.4 Retained Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 8.2 Patent Filing and Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 8.2.1 Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 8.2.2 Failure to Prosecute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 8.3 Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 8.4 Defense of Infringement Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 8.4.1 Claims Relating to Agreement Compounds and Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 8.4.2 Claims Relating to Aurora Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ARTICLE 9. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 9.1 Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 9.2 Permitted Use and Disclosures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 9.3 Nondisclosure of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ARTICLE 10. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 10.1 Allelix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 10.2 Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 10.3 Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 ARTICLE 11. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 11.1 Allelix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 11.2 Aurora. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 11.3 Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ARTICLE 12. TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 12.1 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 12.2 Termination for Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 12.3 Termination for Insolvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 12.4 Permissive Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 12.5 Effect of Breach or Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 12.5.1 Accrued Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 12.5.2 Return of Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -3- 4 12.5.3 Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 12.6 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ARTICLE 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 13.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 13.2 Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 13.2.1 Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 13.2.2 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 13.3 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 13.4 Independent Contractors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 13.5 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 13.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 13.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 13.8 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 13.9 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 13.10 Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 13.11 No Consequential Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 13.12 Complete Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 13.13 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -4- 5 COLLABORATION AGREEMENT This COLLABORATION AGREEMENT (the "Agreement"), effective as of January 21, 1997, (the "Effective Date"), is made by and between Aurora Biosciences Corporation, a Delaware corporation, having a principal place of business at 11149 North Torrey Pines Road, La Jolla, California 92037, United States ("Aurora"), and Allelix Biopharmaceuticals Inc., a corporation organized under the laws of Canada and having a principal place of business at 6850 Goreway Drive, Mississauga, Ontario, Canada L4V 1V7 ("Allelix"). BACKGROUND WHEREAS, Aurora designs, develops, and manufactures proprietary fluorescent bioassay technologies and chemistries used therein for screening systems, useful for the acceleration of novel drug discovery and to increase the productivity of drug discovery programs; WHEREAS, Aurora and Allelix desire to enter into a collaborative research and development program to develop screens against agreed targets, and use such screens to identify compounds having activity against one or more of such targets; WHEREAS, Allelix will then proceed with a medicinal chemistry program to develop drug candidates from which pharmaceutical products may be derived, all in accordance with the terms and conditions set forth below. NOW, THEREFORE, Aurora and Allelix agree as follows: ARTICLE 1. DEFINITIONS The following terms shall have the meanings provided below when used herein: 1.1 "Affiliate" shall mean a person or entity, other than an entity jointly owned or controlled by the parties, that directly or indirectly controls, is controlled by, or is under common control with the person or entity specified. For purposes of this definition, "control" means the direct or indirect ownership of greater than fifty percent (50%) of the outstanding shares or other voting rights of the specified entity to elect directors or other management authority, or if not meeting the preceding, that level of control which is the maximum ownership right permitted in the jurisdiction where such entity exists. 1.2 "Agency" shall mean the U.S. Food and Drug Administration ("FDA") or its successor, or an agency of any other government of another country having jurisdiction over the development, manufacturing, and/or marketing of pharmaceutical products. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -5- 6 1.3 "Agreement Compound" shall mean any Hit or Derivative. 1.4 "Allelix Technology" shall mean Allelix Patent Rights and Allelix Know-How. 1.5 "Allelix Patent Rights" shall mean Patent Rights owned, licensed or Controlled by Allelix (including its Affliates, Licensors or its Licensees) which relate to Compounds, Agreement Compounds, Aurora Technology, Derivatives, Hits, Products or Screens. 1.6 "Allelix Know-How" shall mean *** 1.7 "Aurora Technology" shall mean Aurora Reporter Patents and Aurora Reporter Know-How. 1.8 "Aurora Reporter Patents" shall mean Patent Rights owned or Controlled by Aurora relating to fluorescent reporters. 1.9 "Aurora Reporter Know-How" shall mean *** 1.10 "Collaboration Committee" or "CC" shall have the meaning set forth in Section 2.1. 1.11 "Collaboration Period" shall begin on the Effective Date and last until the third anniversary of the Effective Date, and can extended by mutual agreement of the parties. 1.12 "Compound" shall mean *** 1.13 "Confidential Information" shall mean information or material disclosed hereunder by one party (the "Disclosing Party") to the other party (the "Receiving Party") and as further defined in Section 9.1. 1.14 "Control" or "Controlled" shall mean possession by a party or its Affiliates of the ability to grant a license or sublicense in accordance with the terms of this Agreement, and without violating the terms of any agreement by such party with a Third Party. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREAMENT REQUESTED -6- 7 1.15 "CPI" shall mean the Consumer Price Index, All Urban Consumers, as published by the U.S. Bureau of Labor Statistics. 1.16 "Derivative" shall mean *** . It is understood that "Derivative" shall include any compound derived from another Derivative. 1.17 "Development Candidate" shall mean *** 1.18 "Full Time Equivalent" or "FTE" shall mean the full time equivalent of one (1) Aurora researcher, based on a minimum of one thousand seven hundred sixty (1,760) hours per year. 1.19 "Hit" shall mean *** 1.20 "Joint Technology" shall have the meaning set forth in Section 8.1.2. 1.21 "Licensee" shall mean any Third Party (other than an Affiliate of Allelix) to whom Allelix grants a license, sublicense or other right to manufacture, use, sell, offer for sale, distribute and/or import one or more Products or Agreement Compounds. 1.22 "Licensor" shall mean any Third Party that grants Allelix a license, sublicense or other right to manufacture, use, sell, offer for sale, distribute and/or import one or more Products or Compounds. 1.23 "Manufacturing Cost" shall mean *** 1.24 "NDA" shall mean a New Drug Application ("NDA") or Product License Application ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 ***CONFIDENTIAL TREATMENT REQUESTED -7- 8 ("PLA"), as defined in the U.S. Food, Drug, and Cosmetic Act and the regulations promulgated thereunder, or any equivalent foreign application. 1.25 "Net Royalty Revenue" shall mean all consideration, including without limitation, royalties, profit sharing, or other payments of any nature, whether such consideration is in cash, payment in kind, exchange or another form, received by Allelix, from a Third Party, Licensor, or Licensee in respect of the sale or other distribution of any Product. 1.26 "Net Sales" shall mean *** Net Sales shall also include *** 1.27 "Patent Rights" shall mean all U.S. or foreign jurisdiction (including the European Patent Convention) patent applications, including any regular, or provisional applications and any continuation (in whole or in part), division, or substitute thereof, or any equivalent of any of the foregoing, and any patent issuing thereon, including any reissue, re-examination, or extension thereof. 1.28 "Phase I," "Phase II," and "Phase III" shall mean Phase I, Phase II, or Phase III clinical trials, respectively, in each case as customarily related to applicable FDA Investigational New Drug ("IND") regulations, or any corresponding foreign statutes, rules, or regulations. 1.29 "Product" shall mean *** 1.30 "Screen" shall mean *** 1.31 "Screen Development Plan" shall have the meaning set forth in Section 2.2.2. 1.31 "Screening Program" shall have the meaning set forth in Section 3.1.1. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -8- 9 1.32 "Screening Supplies" shall have the meaning set forth in Section 3.2.1. 1.33 "Term" shall have the meaning set forth in Section 12.1. 1.34 "Third Party" shall mean any person or entity other than (i) Aurora and any of its Affiliates, and (ii) Allelix and any of its Affiliates. 1.35 "Valid Claim" shall mean (a) an issued claim under an issued patent within the Patent Rights, which has not (i) expired or been canceled, (ii) been declared invalid by an unreversed and unappealable decision of a court or other appropriate body of competent jurisdiction, (iii) been admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, and/or (iv) been abandoned; or (b) a claim included in a pending patent application within the Patent Rights that is being actively prosecuted in accordance with this Agreement and which has not been (i) canceled, (ii) withdrawn from consideration, (iii) finally determined to be unallowable by the applicable governmental authority for whatever reason (and from which no appeal is or can be taken), and/or (iv) abandoned. 1.36 "Validation Criteria" shall mean criteria established pursuant to Section 2.2.2 for a particular Screen for the assessment of whether such Screen is suitable for specifically identifying Hits. ARTICLE 2. SCREEN DEVELOPMENT 2.1 Collaboration Committee. 2.1.1 Responsibilities. Within thirty (30) days after the Effective Date, Aurora and Allelix shall establish a committee (the "Collaboration Committee" or "CC"), to review and coordinate the design and development of Screens pursuant to Article 2 and the conduct of Screening Programs pursuant to Article 3. 2.1.2 Membership. The CC shall be comprised of two (2) representatives from Allelix and two (2) representatives from Aurora. Each party may select and replace its CC representatives at any time, with written notice to the other party. Each party shall each appoint one of its CC representatives to be responsible for coordinating ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -9- 10 communications between the parties. 2.1.3 Meetings. During the Collaboration Period, the CC shall meet at least quarterly, or more often as mutually agreed, in person, by telephone or televideo conference. Each party shall pay its own expenses incurred in connection with participation at CC meetings. With the consent of the parties, other representatives of Allelix and/or Aurora may attend CC meetings as nonvoting observers. On an alternating basis, one party shall promptly prepare and deliver to the members of the CC minutes in respect thereof, for review and approval by both parties. 2.1.4 CC Decisions. Decisions of the CC shall be made by simple majority approval. In the event that approval is not obtained within the CC, the undecided matter will be referred to a Business Development officer of each party, who shall promptly meet in person or by telephone or by televideo conference to endeavor to resolve the dispute. In the event such individuals are unable to resolve such dispute within thirty (30) days, the matter shall be referred to the Chief Executive Officers or equivalent of the parties, who shall promptly meet in person or by televideo conference to endeavor to resolve the dispute. If such officers are unable to resolve the dispute in a timely manner, at the request of either party, it shall be settled by binding arbitration pursuant to Section 13.2 below, or as otherwise mutually agreed in writing. 2.2 Screen Development. 2.2.1 Screen Selection. (i) Target Proposals. Within thirty (30) days of the Effective Date, Allelix will propose in writing to Aurora at least one molecular target for a Screen. During each year of the Collaboration Period, Allelix will propose in writing to Aurora additional molecular targets for a total of *** Screens per year and possibly *** Screens per year if expanded pursuant to Section 2.2.1 (ii). For each proposed molecular target, Allelix will provide Aurora with a written proposal describing such target, and a listing of all Patent Rights identified by Allelix using its reasonable efforts, relating to such target. Within ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -10- 11 thirty (30) days of receiving such information, and further information as Aurora may reasonably request regarding a proposed molecular target, Aurora shall notify Allelix in writing whether Aurora reasonably believes that the development of a Screen based on the proposed molecular target is consistent with Aurora's Third Party obligations and if it is legally feasible (e.g., infringement of Third Party patent rights). (ii) Number of Screens. Each year, during the Collaboration Period, Aurora shall use reasonable efforts to develop *** ) Screens for Allelix, pursuant to the terms and conditions herein. During the Collaboration Period, Allelix may, with notice, request that *** ) Screens be developed by Aurora per year pursuant to this Agreement, and with the agreement of the parties Aurora shall develop such additional Screens. 2.2.2 Screen Development Plans. (i) Within thirty (30) days of the date of notification by Aurora to Allelix that a molecular target is acceptable to Aurora in accordance with Section 2.2.1 (i), the CC will meet to review whether the CC reasonably believes that it is financially and/or technically feasible to develop a Screen based on the proposed molecular target. If the CC determines that it is not feasible to develop a Screen based on such proposed target, it shall notify Allelix in writing thereof, and in such case Aurora shall have no obligation to develop a Screen based on such proposed target. If the CC determines that it is feasible to develop a Screen based on such proposed target, the CC will develop a written research and development program, and schedule for the Screen (in each case, a "Screen Development Plan"). Each Screen Development Plan shall also contain the validation criteria ("Validation Criteria") and the Hit rate criteria for each Screen. (ii) Promptly after development of a Screen Development Plan, the parties will collaborate and use reasonable efforts to develop and validate the Screen relating thereto within the schedule provided in the Screen Development Plan. Each party agrees to conduct its respective activities in a prudent and skillful manner. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 ***CONFIDENTIAL TREATMENT REQUESTED -11- 12 2.2.3 Screen Development Reports. During the course of the development of each Screen, individuals from Allelix and Aurora, to be appointed by the CC, will discuss and review monthly, if not more frequently, the progress of and any issues relating to the development of each Screen. During the Collaboration Period, the CC will review and, if necessary, prepare quarterly reports for each Screen in progress at that time. Each progress report shall provide a written update of work performed, results achieved in respect of the Screen development activities, and any other information desired by the CC. 2.2.4 Screen Validation. When Aurora completes the development of a Screen which meets the applicable Validation Criteria, it shall provide the CC with a written report describing the Screen and the data demonstrating compliance with the Screen Development Plan and applicable Validation Criteria and Aurora will submit to Allelix an invoice for *** ). Within thirty (30) days of receipt of such invoice, provided that Aurora has satisfied its obligations under this Section 2.2, Allelix will pay Aurora *** ). 2.3 Payments for Screen Development. 2.3.1 Funding for Two (2) Screens. In consideration for Aurora's development of *** Screens each year during the Collaboration Period, Allelix shall pay to Aurora *** , in *** installments. The first payment shall be made on the Effective Date, and subsequent payments shall be paid to Aurora no later than the *** the *** to which such payment pertains. 2.3.2 Funding for Additional Screens. If Aurora determines that the expenses which would be incurred by Aurora with respect to the development of *** ) or more Screens in any year in the Collaboration Period would exceed *** ), it shall notify Allelix, and in such event the parties shall in good faith determine the amount of additional funding to be provided to Aurora by Allelix for the applicable Screen development activities. Such additional funding shall be calculated based on *** in ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 ***CONFIDENTIAL TREATMENT REQUESTED -12- 13 *** Such amount shall be *** ARTICLE 3. SCREENING PROGRAM 3.1 Screening Program. 3.1.1 Screening by Aurora. During the Collaboration Period, Aurora shall use each Screen validated pursuant to Section 2.2.2 to test the activity of Compounds provided by Allelix or agreed by the parties pursuant to Section 3.1.2. Aurora shall, with regard to each such Screen, screen Compounds as determined by the CC and provide retests of Compounds or putative Hits, and determination of crude IC50's as determined by the CC (the "Screening Program"). 3.1.2 Compound Supply. Allelix shall, at its expense, supply to Aurora Compounds selected by Allelix for a Screening Program. In the event Allelix desires to have Aurora test in a Screening Program a Compound (including a library of compounds) owned, accessed or Controlled by Aurora, the parties agree to negotiate in good faith the terms and conditions under which such compound may be screened. Any compounds supplied by Allelix for use in a Screening Program will be provided to Aurora in 96-well microtiter plates, in the quantities, form and format as agreed by the CC. Aurora agrees not to transfer any compounds received from Allelix for use in connection with the Screening Program to any Third Party or to use such compounds for purposes not contemplated herein without Allelix's prior written consent. 3.1.3 Screening Program Reports. During the course of each Screening Program, individuals from Allelix and Aurora, appointed by the CC, will discuss and review monthly, if not more frequently, the progress and any issues relating to each Screening Program. During the Collaboration Period, the CC will review and prepare quarterly reports for each Screening Program in progress at that time. Each progress report shall provide a ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -13- 14 written update of work performed, any Hits identified, and all available supporting data. 3.2 Screening Supplies for Lead Optimization. 3.2.1 Supplies from Aurora. Upon demonstrating compliance with the Screen Development Plan and applicable Validation Criteria for a Screen and Aurora receiving the payment provided for under Section 2.2.4 for such Screen, Aurora will ship the Screen to Allelix, including biological materials and samples of reagents required for Allelix to begin lead optimization or characterization of Hits identified by Aurora in a Screening Program ("Screening Supplies"). Allelix may request that Aurora supply Allelix with additional biological materials and reagents required to conduct lead optimization or characterization of Hits identified by Aurora in a Screening Program and within thirty (30) days of receipt of a written purchase order from Allelix therefor, Aurora will supply to Allelix agreed quantities of any biological materials and reagents required to conduct such lead optimization and Hit characterization. Allelix will pay Aurora for any such additional Screen Supplies based on a *** ***. Such *** *** shall be consistently calculated in relation to *** for similar quantities and periods of time. 3.2.2 Shipping. All Screening Supplies delivered pursuant to the terms of this Agreement shall be suitably packed for surface or air shipment, in Allelix's discretion, in Aurora's standard shipping cartons, and delivered to Allelix or its carrier agent F.O.B. at a shipping location designated by Aurora and agreed to by Allelix, at which location risk of loss shall pass to Allelix. All freight, insurance, and other shipping expenses, and all applicable taxes, duties and similar charges, as well as any special packing expenses incurred by Aurora at the request of Allelix shall be paid by Allelix. 3.2.3 Limited Use. Allelix may use any Screening Supplies provided hereunder for use with the Screens solely to conduct lead optimization or characterization of Hits identified by Aurora in a Screening Program, subject to the terms and conditions herein; provided, however, ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -14- 15 that in no event shall Allelix use any Screen or Screening Supplies on behalf of a Third Party without the prior written consent of Aurora. 3.3 Screening Payments. 3.3.1 Base Screening Fee. In partial consideration for Aurora's performance of the Screening Program in accordance with Article 3, Allelix will pay to Aurora *** per Screening Program within thirty (30) days of receipt of an invoice from Aurora. Upon receipt of such payment, Aurora will proceed with testing Compounds in such Screening Program pursuant to Section 3.1. Such amount shall be *** to ***. If such Screening Program exceeds thirty (30) days ***, provided, however, that Aurora notifies Allelix in writing of the same and Allelix consents in writing to the same. In the event Allelix does not agree to allow Aurora to continue the Screen beyond such thirty (30) day period, it shall so notify Aurora within seven (7) days of the date it receives the foregoing notice from Aurora. Allelix will be deemed to have agreed to allow Aurora to continue the Screen beyond the thirty (30) day period if it fails to provide notice to Aurora of its decision with respect thereto within the seven (7) day period. If such Screening Program is completed prior to thirty (30) days, ***. Alternatively, Allelix may request in writing to Aurora that the CC develop and approve an additional screening plan or lead optimization plan that includes the appropriate amount of FTE funding for such additional screening or characterization of Hits. Such request shall be made within seven (7) days of Aurora's above notification to Allelix. ARTICLE 4. DEVELOPMENT AND COMMERCIALIZATION The selection of Hit(s), Derivative(s), Development Candidate(s), and Product(s) for development and commercialization will be at the discretion of Allelix. Allelix will, at no expense to Aurora, be responsible for conducting or arranging all development and commercialization of Product(s). ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -15- 16 Allelix will use reasonable efforts to commercialize Products as expeditiously as practicable and take such other actions as is necessary and to obtain government approvals to market the Product(s) in significant markets throughout the world selected by Allelix, and thereafter to promote or have promoted such Product(s) and meet the market demand therefor. Allelix will promptly notify Aurora at such time as any Agreement Compound becomes a Development Candidate, or otherwise achieves any milestone for which Allelix will owe Aurora a milestone payment pursuant to Section 6.1. During the period in which an Agreement Compound or a Product is under development by Allelix (or its designee), within thirty (30) days of the end of a calendar quarter, or within fifteen (15) days of receipt of such information from a Third Party, Allelix agrees to provide Aurora with a written summary of the development progress made in respect of an Agreement Compound or a Product during such calendar quarter. ARTICLE 5. LICENSES 5.1 License to Allelix. Subject to the terms and conditions of this *** 5.2 License to Aurora. Subject to the terms and conditions of this Agreement, Allelix grants to Aurora, on a Screen-by-Screen basis, a world-wide, non- transferable, nonexclusive, license under Allelix Technology, without the right to grant sublicenses, to make and use for Allelix any Screen under Article 2 or 3 and for the Term of Aurora's performance under Article 2 or 3. 5.3 No Implied Licenses. Only those licenses expressly granted in Sections 5.1 and 5.2 shall be of any force and effect. No license or other right in the Aurora Technology or Allelix Technology shall be created hereunder by implication, estoppel, or otherwise. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 ***CONFIDENTIAL TREATMENT REQUESTED -16- 17 5.4 Covenant Not to Assert. *** ARTICLE 6. MILESTONES AND ROYALTIES 6.1 Milestone Payments. Allelix will pay to Aurora the following amounts upon achievement of each of the following milestones by Allelix, its Affiliates, its Licensors, its Licensees, or any party designated by Allelix to develop Agreement Compounds with respect to the first Hit, Development Candidate, or Derivative identified through the use of a particular Screen to reach such milestone:
Milestone Per Screen Payment -------------------- ------- *** *** *** *** *** *** *** *** *** ***
Allelix will notify Aurora in writing within fifteen (15) days of the achievement of, or within fifteen (15) days of Allelix receiving notification from a Third Party of the achievement of any milestones with respect to which a payment is due to Aurora pursuant to this Section 6.1. All payments made by Allelix pursuant to this Section 6.1 shall be made within thirty (30) days after achievement of the applicable milestone. If in the course of compound ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -17- 18 development any of the above Phases are combined, Aurora will receive the above milestone payments as if each Phase were initiated separately. 6.2 Royalties to Aurora. 6.2.1 Sales by Licensees. With respect to Product(s) sold or otherwise distributed by or on behalf of a Licensee, or a Licensor, Allelix shall pay Aurora *** of the Net Royalty Revenue received by Allelix from the Licensee or Licensor in respect of Net Sales; provided, however, that such amount payable to Aurora pursuant to this Section 6.2.1 *** 6.2.2 Sales by Allelix or its Affiliates. Allelix shall pay to Aurora a royalty equal to *** of Net Sales of Product(s) by Allelix or its Affiliates. 6.2.3 Trade Secret Royalty. The parties acknowledge that the principal value contributed by Aurora under this Agreement is the enhanced probability of identifying leads for human pharmaceutical products (or other products having commercial value) and the potential to generate multiple leads, either or both of which the parties reasonably believe will lessen the time required to bring pharmaceutical products to market and increase the efficiency of drug discovery and development processes and technologies. Additionally, the parties acknowledge that Aurora may not own or control patent applications or patents covering the manufacture, sale, use, or importation of a particular Agreement Compound or Product. Allelix acknowledges and agrees that the value it receives hereunder is in the access and use of the Screens and the Aurora Technology. Accordingly, Allelix agrees to pay those royalties and other amounts at the applicable rate specified in this Section 6.2, regardless of whether a Product is covered by a patent application or patent within the Aurora Technology. 6.2.4 Royalty Term. Allelix's obligation to pay royalties to Aurora pursuant to this Section 6.2 shall continue on a Product-by-Product and country-by-country basis until *** ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -18- 19 *** 6.2.5 Other Revenues. In the event that Allelix or an Allelix Affiliate receives an up front payment from a Third Party for any rights (including intellectual property or marketing rights) for Product(s) or Agreement Compound(s), Aurora may elect one of the following payment schedules: (i) Aurora will receive the milestone payments, as those milestones are satisfied according to Section 6.1; or (ii) Aurora will receive *** %) of any up front payment (including cash, payment in kind, equity in such Third Party, premium on equity purchased by such Third Party or any other form) by a Third Party to Allelix or an Allelix Affiliate for any rights (including intellectual property or marketing rights) for Product(s) or Agreement Compound(s). Provided, however, Allelix shall not be obligated to pay Aurora any portion of any up front payment paid to Allelix or an Allelix Affiliate by a Third Party specifically allocated to the future research and development of such Product(s) or Agreement Compound(s); provided, further, that Allelix shall not be obligated to pay Aurora any milestone payment under Section 6.1 that is due after the date Aurora receives such up front payment under this Section 6.2.5 (ii) and that any milestone payments paid by Allelix to Aurora for such Product(s) or Agreement Compound(s) under Section 6.1 prior to Aurora receiving such up front payment under this Section 6.2.5 (ii) shall be deducted from such up front payment to be paid by Allelix to Aurora. Allelix will report in writing to Aurora the amount of any such up front payment within fifteen (15) days of receiving such payment. After receipt of such report, Aurora will notify Allelix in writing of its election under this Section 6.2.5 within fifteen (15) days. ARTICLE 7. PAYMENTS; BOOKS AND RECORDS 7.1 Royalty Reports. After the first commercial sale of a Product on which royalties are payable hereunder to ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 *** CONFIDENTIAL TREATMENT REQUESTED -19- 20 Aurora by Allelix, Allelix shall make quarterly written reports to Aurora within thirty (30) days after the end of each calendar quarter or fifteen (15) days from the receipt of such information from a Third Party, stating in each such report, on a country-by-country basis, the number, description, and aggregate Net Sales of each Product sold in a country during the calendar quarter upon which a royalty is payable under Section 6.2 above. 7.2 Screen Development and Screening Payments. Any payments due pursuant to Sections 2.2.4, 3.2.1, 3.3.1, 6.1, or 6.2 shall be paid within thirty (30) days of receipt of an invoice therefor. 7.3 Payment Method. All payments due under this Agreement shall be made by bank wire transfer when due in immediately available funds to an account designated by Aurora. Any payments that are not paid on the date such payments are due under this Agreement shall bear interest to the extent permitted by applicable law at the prime rate as reported by the Bank of America, San Francisco, on the date such payment is due, plus an additional two percent (2%) per annum, calculated on the number of days such payment is delinquent. 7.4 Currency Conversion. All payments outlined in this Agreement are in U.S. Dollars. If any currency conversion shall be required in connection with the calculation of royalties or any other payments hereunder, such conversion shall be made using the selling exchange rate for conversion of the foreign currency into U.S. Dollars, quoted for current transactions as reported in The Wall Street Journal for the last reported day of the calendar quarter to which such payment pertains. 7.5 Records; Inspection. Allelix and its Affiliates shall keep complete, true, and accurate books of account and records for the purpose of determining the royalty amounts payable under this Agreement. Such books and records shall be kept at the principal place of business of such party for at least three (3) years following the end of the calendar quarter to which they pertain. Such records will be open for inspection during such three (3) year period by an accounting firm appointed by Aurora. Such inspections may be made no more than once each calendar year, at reasonable times and on reasonable notice. Inspections conducted under this Section 7.5 shall be at the expense of Aurora, unless a variation or error producing *** of the amount stated for any period covered by the inspection is established in the course of any such inspection, whereupon all costs relating to the inspection for such period and any unpaid amounts that are discovered will be paid promptly by Allelix, together ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 ***CONFIDENTIAL TREATMENT REQUESTED -20- 21 with interest thereon from the date such payments were due at the prime rate as reported by the Bank of America, San Francisco, California, plus an additional two percent (2%) per annum. 7.6 Tax Matters. All royalty amounts required to be paid to Aurora pursuant to this Agreement shall be paid without deduction for withholding for or on account of any taxes, including any sales, use, value added, or transfer tax, or similar governmental charge imposed by a jurisdiction other than the United States. Payment of any such tax or similar governmental charge, including any due in connection with the transfer of the Screens hereunder, shall be the sole responsibility of Allelix. In the event that Aurora is required to pay any such tax or other similar charge, Allelix shall promptly reimburse Aurora for payment of such amounts. 7.7 Refunds or Credits. Any payment made to Aurora pursuant to this Agreement shall be non-refundable and shall be creditable only against another payment payable hereunder in the case of early completion of a Screening Program as outlined in Section 3.3.1. ARTICLE 8. INTELLECTUAL PROPERTY 8.1 Ownership. 8.1.1 Sole Ownership. Allelix shall be the sole owner of all intellectual property conceived and reduced to practice or otherwise developed solely by its employees and agents, and all patent applications and patents claiming such intellectual property; provided, however, that intellectual property relating to improvements to Aurora Technology will be assigned by Allelix to Aurora. Aurora shall be the sole owner of any intellectual property conceived and reduced to practice or otherwise developed solely by its employees and agents and all patent applications and patents claiming such intellectual property; provided, however, that intellectual property derived from Compounds provided by Allelix, including but not limited to information contained in the quarterly reports prepared by the CC provided for in Section 3.1.3, and relating to the use of Agreement Compounds and Products will be assigned by Aurora to Allelix. 8.1.2 Joint Technology. If, during the Collaboration Period, one or more employees or consultants of Aurora, ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -21- 22 together with one or more employees or consultants of Allelix, jointly conceive any intellectual property (the "Joint Technology"), each of the parties shall own an undivided one-half interest in the Joint Technology; provided, however, that Joint Technology relating to Aurora Technology will be assigned by Allelix to Aurora; provided, further, that intellectual property derived from Compounds provided by Allelix and relating to the use of Agreement Compounds and Products will be assigned by Aurora to Allelix. 8.1.3 U.S. Law. Inventorship and rights of ownership with respect to Aurora Technology, Allelix Technology, and Joint Technology shall be determined in accordance with the patent laws of the United States. 8.1.4 Retained Rights. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended to convey or transfer ownership by one party to the other of any rights, title or interest in any Confidential Information, technology or Patents Rights owned or Controlled by a party. Except as expressly provided for in this Agreement, nothing in this Agreement shall be construed as a license or sublicense by one party to the other of any rights in any technology or Patent Rights owned or Controlled by a party or its Affiliates. 8.2 Patent Filing and Prosecution. 8.2.1 Cooperation. Allelix and Aurora shall consult together upon all matters relating to the filing, prosecution, and maintenance of patents within Joint Technology. This shall include giving the other party the opportunity to review and comment upon the text of any priority application before filing; consultation about the decision whether or not to foreign file, and if so, in which countries; and giving the other party the opportunity, as far in advance of filing dates as feasible, to fully review and comment on the basic foreign filing text. Each party shall provide to the other copies of any search reports and official actions, including notice of all interferences, reissues, re-examinations, and oppositions received from the relevant patent offices promptly after receipt. Each party shall reasonably cooperate with and assist the other in connection with activities subject to this Section 8.2.1, at the other's request. Each party shall execute and procure that its employee inventors shall execute all documents reasonably required in connection with the filing, prosecution, or maintenance of patents within the Joint ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -22- 23 Technology. Patent counsel designated by each party will meet in person or by telephone or video conference at least on a semi-annual basis during (i) the Collaboration Period, and (ii) the pendency of any of the patent applications within the scope of this Section 8.2.1 to coordinate, discuss, review, and implement patent filing and prosecution strategy. 8.2.2 Failure to Prosecute. Either party may elect upon sixty (60) days prior notice to discontinue prosecution or maintenance of any patent within Joint Technology in any or all countries. In such case, the other party shall have the right to prosecute and maintain such patent applications and patents in such countries it deems appropriate, at its sole expense. 8.3 Enforcement. Allelix and Aurora shall separately have the right, but not the obligation, to bring proceedings against any Third Party for the inappropriate use, including patent infringement, of technology, trade secrets or Patent Rights solely owned or Controlled by it, and at its own risk and expense. Such party shall be entitled to retain any and all awards or damages obtained in any such proceeding. At the request and expense of either party, the other party shall give the requesting party all reasonable assistance required to file and conduct any such proceeding. For Joint Technology, Allelix and Aurora shall use their best efforts to coordinate pursuing a commercially reasonable action to address inappropriate use, including patent infringement, by third parties of such Joint Technology and to determine how expenses and any recovery from such action shall be allocated between the parties. Allelix, as a non-exclusive licensee, will make reasonable efforts to provide Aurora with any information known to Allelix relating to the suspected or actual inappropriate use, including patent infringement, of the Aurora Technology. 8.4 Defense of Infringement Claims. 8.4.1 Claims Relating to Agreement Compounds and Products. Aurora will cooperate with Allelix, at Allelix's expense, in the defense of any suit, action or proceeding against Aurora and its Affiliates, or Allelix and its Affiliates, Licensees or Licensors alleging the infringement of the intellectual property rights of a Third Party by reason of the manufacture, use or sale of a Product by Allelix. Allelix shall give Aurora prompt written notice of the commencement of any such suit, action, proceeding or claim of infringement. Aurora shall give to Allelix all authority, information and assistance necessary to defend or settle any such suit, action or proceeding; provided, however, that if Aurora or its Affiliates or licensees should join in any such suit, action or proceeding pursuant to this Section 8.4.1 and at ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -23- 24 the request of Allelix but subject to Section 11.2, Allelix shall hold Aurora or any such Affiliate or licensee, as applicable, free, clear and harmless from any and all costs and expenses of such litigation, including reasonable attorneys' fees. Allelix shall have the right to control the conduct and settlement of any such litigation; provided, however, that (i) Allelix shall not enter into any settlement of such claim, suit, or proceeding which admits or concedes that any aspect of the Aurora Technology or Joint Technology is invalid or unenforceable without the prior written consent of Aurora. 8.4.2 Claims Relating to Aurora Technology. Allelix will cooperate with Aurora, at Aurora's expense, in the defense of any suit, action or proceeding against Aurora or its Affiliates alleging the infringement of the intellectual property rights of a Third Party by reason of Aurora's use of any Aurora Patent Rights and Aurora Technology in performing its obligations to Allelix under this Agreement. Aurora shall give Allelix prompt written notice of the commencement of any such suit, action, proceeding or claim of infringement. Allelix shall give to Aurora all authority, information and assistance necessary to defend or settle any such suit, action or proceeding; provided, however, that if Allelix should join in any such suit, action or proceeding pursuant to this Section 8.4.2 and at the request of Aurora, but subject to Section 11.1, Aurora shall hold Allelix free, clear and harmless from any and all costs and expenses of such litigation, including reasonable attorneys' fees. ARTICLE 9. CONFIDENTIALITY 9.1 Confidential Information. Except as expressly provided herein, the parties agree that, for the Term of this Agreement and for five (5) years thereafter, the Receiving Party, except as expressly provided in this Article 9, shall not disclose to any Third Party or use for any purpose any Confidential Information of the Disclosing Party, except to the extent that it can be established by the Receiving Party by competent proof that such information: (i) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -24- 25 (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (iv) was independently developed by the Receiving Party; (v) was, subsequently, lawfully disclosed to the Receiving Party by a person other than the Disclosing Party; or (vi) was approved in writing by the Disclosing Party for public disclosure by the Receiving Party. 9.2 Permitted Use and Disclosures. Each party hereto may use or disclose Confidential Information disclosed to it by the other party to the extent such information is included in the Aurora Technology, Allelix Technology or Joint Technology, and to the extent such use or disclosure is reasonably necessary and permitted in the exercise of the rights granted hereunder in filing or prosecuting patent applications, prosecuting or defending litigation, complying with applicable governmental regulations, or court orders or otherwise submitting information to tax or other governmental authorities, conducting clinical trials, or making a permitted sublicense or otherwise exercising license rights expressly granted to the other party pursuant to the terms of this Agreement, provided that if a party is required to make any such disclosure of the other party's Confidential Information, other than pursuant to a confidentiality agreement, it will give reasonable advance notice of such disclosure to the other party and, save to the extent inappropriate in the case of patent applications, will use its reasonable efforts to secure confidential treatment of such Confidential Information in consultation with the other party prior to such disclosure (whether through protective orders or otherwise) and disclose only the minimum necessary to comply with such requirements. 9.3 Nondisclosure of Terms. Each of the parties hereto agrees not to disclose to any Third Party the terms of this Agreement without the prior written consent of the other party hereto, except to such party's attorneys, advisors, investors, and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law. Notwithstanding the foregoing, the parties shall agree upon a press release to announce the execution of this Agreement. Thereafter, Aurora and Allelix may each disclose to Third Parties the information contained in such press release without the need for further approval ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -25- 26 by the other. In addition, Aurora may (i) make public statements regarding Development Candidates or Products by announcing the achievement of milestones and fees therefor, following consultation with Allelix and with the written consent of Allelix to the form and content of the public statement, and (ii) without the prior consent of Allelix, make public statements regarding the overall success rate(s) achieved by and/or for its customers with the use of Aurora Technology, and Allelix Technology, provided it may not disclose any Screens or Allelix's identity. Allelix shall be free to make public statements, press releases, and the like with respect to Agreement Compounds, Development Candidates, and Products. ARTICLE 10. REPRESENTATIONS AND WARRANTIES 10.1 Allelix. As of the Effective Date, Allelix warrants and represents on its own behalf and on behalf of its Affiliates that: (i) it has the legal power, authority and right to enter into this Agreement, and to perform all of its obligations hereunder; (ii) it has the legal right and power to extend to Aurora the rights granted in this Agreement; and (iii) 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 Allelix Technology. 10.2 Aurora. As of the Effective Date, Aurora represents and warrants that: (i) it has the full legal power, authority, and right to enter into this Agreement, and to perform all of its obligations hereunder; (ii) it has the legal right and power to extend the rights to Allelix granted in this Agreement; and (iii) 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 Aurora Technology. 10.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, AURORA AND ALLELIX MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO AURORA TECHNOLOGY, ALLELIX TECHNOLOGY, SCREENS, COMPOUNDS, AGENTS, DEVELOPMENT CANDIDATES, DERIVATIVES, PRODUCTS, OR INFORMATION DISCLOSED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF ANY AURORA TECHNOLOGY OR ALLELIX TECHNOLOGY, PATENTED OR UNPATENTED, OR ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -26- 27 NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. ARTICLE 11. INDEMNIFICATION 11.1 Allelix. Allelix agrees to indemnify, defend, and hold Aurora, its Affiliates, and the directors, officers, employees, and agents of each of them (the "Aurora Indemnitees") harmless from and against any losses, costs, claims, damages, liabilities or expenses (including reasonable attorneys' and professional fees and court and other expenses of litigation) (collectively, "Liabilities") arising out of or in connection with Third Party claims relating to (i) any Agreement Compounds or Products developed, manufactured, used, sold, or otherwise distributed by or on behalf of Allelix, its Affiliates, Licensors, Licensees, or other designees (including, without limitation, product liability claims), (ii) the possession and/or use by Aurora of any Compounds or Compound libraries provided by Allelix to Aurora hereunder; (iii) the performance (by any party other than Aurora) of Screens by or on behalf of Allelix; or (iv) any breach by Allelix of its obligations under or the representations and warranties made in this Agreement, except, in each case, to the extent such Liabilities result from the negligence or intentional misconduct of Aurora. 11.2 Aurora. Aurora agrees to indemnify, defend, and hold Allelix, its Affiliates, Licensors and Licensees, and the directors, officers, employees, and agents of each of them (the "Allelix Indemnitees") harmless from and against any Liabilities arising out of or in connection with Third Party claims relating to *** 11.3 Procedure. In the event that any Indemnitee intends to claim indemnification under this Article 11, 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 using counsel of its choice; provided, ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 ***CONFIDENTIAL TREATMENT REQUESTED -27- 28 however, that any Indemnitee shall have the right to retain its own counsel at its own expense, for any reason, including if representation of any Indemnitee by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party reasonably represented by such counsel in such proceeding. The affected Indemnitees shall cooperate with the indemnifying party and its legal representatives in the investigation of any action, claim, or liability covered by this Article 11. The indemnified party shall not, except at its own cost, voluntarily make any payment or incur any expense with respect to any claim or suit without the prior written consent of the indemnifying party, which such party shall not be required to give. ARTICLE 12. TERM AND TERMINATION 12.1 Term. The term of this Agreement shall begin as of the Effective Date and, unless terminated earlier as provided in this Article 12, continue in full force and effect until the expiration of the royalty payments due under this Agreement (the "Term"). 12.2 Termination for Cause. Either party hereto may terminate this Agreement in the event the other party has materially breached or defaulted in the performance of any of its material obligations hereunder, and such default shall have continued for thirty (30) days after written notice thereof was provided to the breaching party by the nonbreaching party. Any termination shall become effective at the end of such thirty (30) day period, unless the breaching party has cured any such breach or default prior to the expiration of the thirty (30) day cure period or has provided a written plan to cure any such breach or default that is acceptable to the other party. 12.3 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 or the dissolution of such party, which proceedings, if involuntary, shall not have been dismissed within sixty (60) days 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 sixty (60) days thereafter, the other party may immediately terminate this ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -28- 29 Agreement effective upon giving notice of such termination to such party. 12.4 Permissive Termination. During the Collaboration Period, Allelix shall have the right to terminate this Agreement with six (6) months written notice. Upon such notice, Aurora's obligations to provide screen development and screening services will be fulfilled, and all Screen Development Plans and Screening Programs in progress shall terminate. 12.5 Effect of Breach or Termination. 12.5.1 Accrued Obligations. Termination of this Agreement for any reason shall not release any party hereto from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination nor preclude either party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement. 12.5.2 Return of Confidential Information. In the event of termination, but not expiration, of this Agreement, Aurora and Allelix shall promptly return to the other party all Confidential Information received from the other party (except one (1) copy of which may be retained for archival purposes), and neither party shall be entitled to use any Confidential Information of the other party for any purpose during the Term such Confidential Information is to remain confidential, as provided in Section 9.1. Upon any such termination all materials provided by Allelix to Aurora, including but not limited to Compounds, shall be returned to Allelix or destroyed at the discretion of Allelix. For any termination by Aurora for cause, all materials provided by Aurora to Allelix shall be returned to Aurora or destroyed at the discretion of Aurora. 12.5.3 Licenses. The licenses granted to Allelix and Aurora hereunder shall terminate in the event of termination of this Agreement; provided, however, that in the event that Allelix shall terminate with cause under Section12.2 or permissive termination under Section 12.4, the licenses granted by Aurora to Allelix under Section 5.1 shall remain in effect. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -29- 30 12.6 Survival. Sections 5.3, 5.4, 10.3, 12.5 and 12.6, and Articles 1, 6, 7, 8, 9, 11 and 13 shall survive expiration or termination of this Agreement for any reason. ARTICLE 13. MISCELLANEOUS 13.1 Governing Law. This Agreement and any dispute arising from the construction, performance, or breach hereof shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado, without reference to conflicts of laws principles. 13.2 Dispute Resolution. 13.2.1 Mediation. In the event of any dispute or claim arising out of or related to this Agreement, the parties will attempt in good faith to resolve such dispute or claim by mediation in Denver, Colorado, in accordance with the American Arbitration Association Commercial Mediation Rules. Nothing herein, however, shall prohibit either party from initiating arbitration proceedings pursuant to Section 13.2.2, if such party would be substantially prejudiced by a failure to act during the time that such good faith efforts are being made to resolve the dispute or claim through negotiation or mediation. The costs of mediation shall be shared equally by the parties to the mediation. 13.2.2 Arbitration. Any dispute or claim arising out of or related to this Agreement, or the interpretation, making, performance, breach, validity, or termination hereof, which has not been resolved by negotiation or mediation as set forth above, shall be finally settled by binding arbitration in Denver, Colorado under the Commercial Arbitration Rules and the Supplementary Procedures for Large Complex Disputes of the American Arbitration Association (together the "AAA Rules") by one arbitrator appointed in accordance with the AAA Rules. The arbitration proceedings shall be governed procedurally by federal arbitration law and by the AAA Rules, without reference to ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -30- 31 state arbitration law, and at the request of either party, the arbitrator will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. The judgment of the arbitrator shall be in the form of a reasoned, written opinion, and shall be issued within sixty (60) days of the conclusion of the arbitration proceeding. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim relief, as necessary, without breach of this arbitration provision and without any abridgment of the powers of the arbitrator. The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, its costs and fees, including, without limitation, AAA administrative fees, arbitrator fees, travel expenses, out-of-pocket expenses, witness fees, and reasonable attorneys' fees. 13.3 Assignment. This Agreement shall not be assignable by either party to any Third Party without the written consent of the other party hereto; provided, however, that either party may assign this Agreement, without the other's consent, to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, operation of law, acquisition, sale, or otherwise. In the event that Aurora assigns this Agreement, without Allelix's consent, to an entity that acquires all or substantially all of the business or assets of Aurora, whether by merger, reorganization, operation of law, acquisition, sale or otherwise, Allelix may terminate this Agreement immediately by notice in writing to Aurora. This Agreement shall be binding upon and inure to the benefit of any permitted assignee or other transferee, and any such party shall agree to perform the obligations of the assignor or transferor. 13.4 Independent Contractors. The relationship of the parties hereto is that of independent contractors. Neither party hereto is to be deemed to be an agent, partner, or joint venturer of the other party for any purpose as a result of this Agreement or the transactions contemplated thereby. 13.5 Compliance with Laws. In exercising their rights under this Agreement, 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 Agreement, ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -31- 32 including, without limitation, those applicable to the discovery, development, manufacture, distribution, import and export, and sale of pharmaceutical products. 13.6 Notices. Legal notices, requests, and other communications hereunder shall be in writing and shall be delivered personally or by registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below or such other address as may be specified in writing to the other party hereto, and shall be deemed to have been given upon receipt: If to Aurora: Aurora Biosciences Corporation 11149 North Torrey Pines Road La Jolla, CA 92037 U.S.A. Attn.: President and CEO CC: Legal and Business Development If to Allelix: Allelix Biopharmaceuticals Inc. 6850 Goreway Drive Mississauga, Ontario L4V 1V7 Canada Attn.: President and CEO 13.7 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. 13.8 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. No waiver shall be effective unless in a writing signed by the party having the waived right. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -32- 33 13.9 Force Majeure. Nonperformance of any party shall be excused to the extent that performance is rendered impossible by strike, fire, earthquake, flood, 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 or intentional conduct or misconduct of the nonperforming party, provided such party uses its best efforts to resume performance as promptly as possible. 13.10 Advice of Counsel. This Agreement has been negotiated by the parties and their respective counsel and shall be fairly interpreted in accordance with its terms and without any rules of construction relating to which party drafted the Agreement being applied in favor or against either party. 13.11 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT HAVE ANY LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY. 13.12 Complete Agreement. This Agreement, 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, expressed 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 unless reduced to writing and executed by a duly authorized representative of each of Aurora and Allelix. 13.13 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. ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -33- 34 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. AURORA BIOSCIENCES CORPORATION ALLELIX BIOPHARMACEUTICALS INC. By: By: ---------------------- -------------------------- Name: J. Gordon Foulkes Name: Graham Strachan Title: Chief Technical Officer Title: President and CEO ALLELIX.AURORA COLLABORATION AGREEMENT JANUARY 21, 1996 -34- EX-11.1 33 EXHIBIT 11.1 1 EXHIBIT 11.1 AURORA BIOSCIENCES CORPORATION STATEMENT RE COMPUTATION OF NET LOSS PER SHARE
Period from May 8, 1995 (inception) to Year ended December 31, 1995 December 31, 1996 ----------------- ----------------- Net loss ................................................................... $ (411,727) $(2,933,480) Computation of common and common equivalent shares outstanding: Weighted average common shares outstanding ............................... 0 1,710,515 Convertible preferred stock assuming conversion from date of issuance ........................................ 0 6,669,412 ---------- ---------- 8,379,927 Shares related to SAB 83 (1): Common stock ............................................................. 994,043 994,043 Convertible preferred stock .............................................. 1,319,804 1,319,804 Warrants (2) ............................................................. 47,095 47,095 Common stock options granted (2) ......................................... 519,327 519,327 ---------- ---------- 2,880,269 2,880,269 Shares used in computing pro forma net loss per share ....................................................................... 2,880,269 11,260,196 ========= ========== Pro forma net loss per share ................................................. $ (.14) $ (.26) ========== ==========
- ------------ (1) Using the treasury stock method. (2) All warrants and common stock options were granted after March 14, 1996 and are included in this calculation as SAB 83 shares. EX-23.1 34 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the captions "Selected Financial Data" and "Experts" and to the use of our report dated March 13, 1997 (except Note 11, as to which the date is ), in the Registration Statement (Form S-1) and related Prospectus of Aurora Biosciences Corporation for the registration of 3,450,000 shares of its common stock. ERNST & YOUNG LLP San Diego, California - -------------------------------------------------------------------------------- The foregoing consent is in the form that will be signed upon the completion of the four-for-five reverse stock split discussed in Note 11 to the financial statements. ERNST & YOUNG LLP San Diego, California March 13, 1997 EX-23.3 35 EXHIBIT 23.3 1 EXHIBIT 23.3 CONSENT OF FISH & RICHARDSON P.C. March 14, 1997 The Board of Directors and Stockholders of Aurora Biosciences Corporation: We consent to the reference to our firm under the caption "Experts" and to the use of our name wherever appearing in the Registration Statement (Form S-1 dated March 14, 1997) and related Prospectus of Aurora Biosciences Corporation, and any amendment thereto. ------------------------ FISH & RICHARDSON P.C. EX-27 36 FINANCIAL DATA SCHEDULE
5 1,000 6-MOS YEAR DEC-31-1995 DEC-31-1996 MAY-08-1995 JAN-01-1996 DEC-31-1995 DEC-31-1996 11 3,914 0 9,253 0 1,117 0 0 0 0 99 14,681 11 2,060 (2) (159) 115 17,515 527 1,219 0 0 0 0 0 10 0 3 0 18,516 115 17,515 0 0 0 2,217 0 0 412 5,671 0 0 0 0 0 59 (412) (2,933) 0 0 0 0 0 0 0 0 0 0 (412) (2,933) (.14) (.26) 0 0
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