-----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, Qgcpb3GotwgSt84V2X2cFZ7ZJjxAvHMAQVa6zDs8oB+q4fVKpNG4XBkCRhNZxM6R BKbVJ8mkWpPa7VW04JIN5g== 0001095811-01-504260.txt : 20010815 0001095811-01-504260.hdr.sgml : 20010815 ACCESSION NUMBER: 0001095811-01-504260 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20010630 FILED AS OF DATE: 20010814 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LYNX THERAPEUTICS INC CENTRAL INDEX KEY: 0000913275 STANDARD INDUSTRIAL CLASSIFICATION: MEDICINAL CHEMICALS & BOTANICAL PRODUCTS [2833] IRS NUMBER: 943161073 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-22570 FILM NUMBER: 1711463 BUSINESS ADDRESS: STREET 1: 3832 BAY CENTER PL CITY: HAYWARD STATE: CA ZIP: 94545 BUSINESS PHONE: 5106709300 MAIL ADDRESS: STREET 1: 3832 BAY CENTER PLACE CITY: HAYWARD STATE: CA ZIP: 94545 10-Q 1 f74786e10-q.txt FORM 10-Q QUARTERLY PERIOD ENDED JUNE 30, 2001 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2001. OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ________________ TO ___________________. COMMISSION FILE NUMBER 0-22570 LYNX THERAPEUTICS, INC. (Exact name of registrant as specified in its charter) DELAWARE 94-3161073 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 25861 INDUSTRIAL BLVD. HAYWARD, CA 94545 (Address of principal executive offices) (510) 670-9300 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant, (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- The number of shares of common stock outstanding as of August 6, 2001 was 13,446,554. 2 LYNX THERAPEUTICS, INC. FORM 10-Q FOR THE QUARTER ENDED JUNE 30, 2001 INDEX
PAGE PART I FINANCIAL INFORMATION (UNAUDITED) ITEM 1. Financial Statements Condensed Consolidated Balance Sheets --- June 30, 2001 and December 31, 2000................................................... 3 Condensed Consolidated Statements of Operations - three and six months ended June 30, 2001 and 2000............................................ 4 Condensed Consolidated Statements of Cash Flows - six months ended June 30, 2001 and 2000............................................ 5 Notes to Condensed Consolidated Financial Statements.................... 6 ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations .......................... 9 ITEM 3. Quantitative and Qualitative Disclosures About Market Risk ............. 17 PART II OTHER INFORMATION ITEM 1. Legal Proceedings....................................................... 18 ITEM 2. Changes in Securities and Use of Proceeds............................... 18 ITEM 3. Defaults Upon Senior Securities......................................... 18 ITEM 4. Submission of Matters to a Vote of Security Holders..................... 18 ITEM 5. Other Information....................................................... 18 ITEM 6. Exhibits and Reports on Form 8-K........................................ 18 SIGNATURES ........................................................................ 19
2 3 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS LYNX THERAPEUTICS, INC. CONDENSED CONSOLIDATED BALANCE SHEETS (IN THOUSANDS)
JUNE 30, DECEMBER 31, 2001 2000* --------- ----------- (UNAUDITED) ASSETS Current assets: Cash and cash equivalents $ 9,285 $ 7,875 Short-term investments 6,466 10,923 Accounts receivable 1,033 1,539 Other current assets 3,185 2,270 -------- -------- Total current assets 19,969 22,607 Property and equipment: Leasehold improvements 12,069 11,718 Laboratory and other equipment 17,382 13,364 -------- -------- 29,451 25,082 Less accumulated depreciation and amortization (11,784) (9,263) -------- -------- Net property and equipment 17,667 15,819 Other non-current assets 811 789 -------- -------- $ 38,447 $ 39,215 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable $ 1,004 $ 1,640 Accrued compensation 1,148 614 Deferred revenues -- current portion 5,479 7,219 Notes payable -- current portion 1,390 1,319 Other accrued liabilities 563 928 -------- -------- Total current liabilities 9,584 11,720 Deferred revenues 15,879 17,467 Notes payable 2,400 3,077 Other non-current liabilities 803 729 Stockholders' equity: Common stock 86,959 75,851 Notes receivable from stockholders (250) (263) Deferred compensation (1,054) (1,557) Accumulated other comprehensive income (loss) 1,052 (1,157) Accumulated deficit (76,926) (66,652) -------- -------- Total stockholders' equity 9,781 6,222 -------- -------- $ 38,447 $ 39,215 ======== ========
* The Balance Sheet amounts at December 31, 2000 have been derived from audited financial statements at that date but do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. See accompanying notes. 3 4 LYNX THERAPEUTICS, INC. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) (UNAUDITED)
THREE MONTHS ENDED SIX MONTHS ENDED JUNE 30, JUNE 30, ----------------------- ----------------------- 2001 2000 2001 2000 -------- -------- -------- -------- Revenues: Technology access and service fees and other $ 4,357 $ 2,834 $ 7,752 $ 5,850 Operating costs and expenses: Cost of service fees revenues and other 1,117 953 1,773 1,398 Research and development 5,866 3,762 11,822 8,766 General and administrative 2,008 1,540 4,009 3,025 ------- ------- -------- ------- Total operating costs and expenses 8,991 6,255 17,604 13,189 ------- ------- -------- ------- Loss from operations (4,634) (3,421) (9,852) (7,339) Interest income, net 10 281 16 595 Other income (loss), net 48 33 (438) 3,216 ------- ------- -------- ------- Loss before provision for income taxes (4,576) (3,107) (10,274) (3,528) Provision for income taxes -- 60 -- 119 ------- ------- -------- ------- Net loss $(4,576) $(3,167) $(10,274) $(3,647) ======= ======== ======== ======= Basic and diluted net loss per share $ (0.37) $ (0.28) $ (0.86) $ (0.32) ======= ======= ======== ======= Shares used in per share computation 12,403 11,338 11,937 11,273 ======= ======= ======== =======
See accompanying notes. 4 5 LYNX THERAPEUTICS, INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS) (UNAUDITED)
SIX MONTHS ENDED JUNE 30, ----------------------- 2001 2000 -------- -------- CASH FLOWS FROM OPERATING ACTIVITIES: Net loss $(10,274) $(3,647) Adjustments to reconcile net loss to net cash used in operating activities: Depreciation and amortization 2,564 1,526 Amortization of deferred compensation 503 468 Gain on sale of antisense program (1,060) (3,119) Loss on writedown of equity investment 1,605 -- Changes in operating assets and liabilities: Accounts receivable 506 (127) Other current assets (915) (1,659) Accounts payable (636) 2,575 Accrued liabilities 169 134 Deferred revenues (3,328) (1,850) Other non-current liabilities 74 249 -------- ------- Net cash used in operating activities (10,792) (5,450) CASH FLOWS FROM INVESTING ACTIVITIES: Purchases of short-term investments (2,807) (7,800) Maturities of short-term investments 8,928 11,544 Leasehold improvements and equipment purchases, net of (4,412) (4,037) retirements Notes receivable from officers and employees (9) 10 -------- ------- Net cash provided by (used in) investing activities 1,700 (283) CASH FLOWS FROM FINANCING ACTIVITIES: Repayment of equipment loan (606) (487) Issuance of common stock 11,108 952 -------- ------- Net cash provided by financing activities 10,502 465 -------- ------- Net increase (decrease) in cash and cash equivalents 1,410 (5,268) Cash and cash equivalents at beginning of period 7,875 18,050 -------- ------- Cash and cash equivalents at end of period $ 9,285 $12,782 ======== ======= SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: INCOME TAXES PAID $ -- $ 137 ======== ======= INTEREST PAID $ 232 $ 212 ======== =======
See accompanying notes. 5 6 LYNX THERAPEUTICS, INC. NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS JUNE 30, 2001 1. NATURE OF BUSINESS We believe that Lynx Therapeutics, Inc. ("Lynx" or the "Company") is a leader in the development and application of novel technologies for the discovery of gene expression patterns and genomic variations important to the pharmaceutical, biotechnology and agricultural industries. Gene expression patterns refer to the number of genes and the extent those genes are expressed in a cell or tissue, and they represent a way to move beyond DNA sequence data to understand the function of genes, the proteins that they encode and the role they play in health and disease. Genomic variations refer to the differences in the genetic sequences in the genomes of different organisms. Lynx's technologies are based on Megaclone(TM), Lynx's unique and proprietary cloning procedure, which transforms a sample containing millions of DNA molecules into one made up of millions of micro-beads, which are microscopic beads of latex, each of which carries approximately 100,000 copies of one of the DNA molecules in the sample. Megaclone(TM) technology is the foundation of Lynx's analytical applications, including: Massively Parallel Signature Sequencing, or MPSS(TM), technology, which provides gene sequence information and high-resolution gene expression data; Megasort(TM) technology, which provides differentially expressed gene sets; and Megatype(TM) technology, which is expected to provide single nucleotide polymorphism, or SNP, disease- or trait-association information. Lynx is also developing a proteomics technology, Protein ProFiler(TM), which aims to provide high-resolution analysis of complex mixtures of proteins from cells or tissues. Currently, Lynx's commercial collaborators and customers are BASF AG, E.I. DuPont de Nemours and Company, Aventis CropScience GmbH, Oxagen Limited, Hybrigenics S.A., Genomics Collaborative Inc., Molecular Engines Laboratories S.A., the Institute of Molecular and Cell Biology, Phytera, Inc., Celera Genomics, AstraZeneca, UroGene S.A., GenoMar ASA and AniGenics, Inc. Additionally, Lynx has provided a license for the use of certain of its technologies to Takara Shuzo Co. Ltd. and BASF-LYNX Bioscience AG. 2. BASIS OF PRESENTATION The accompanying condensed consolidated financial statements included herein have been prepared by the Company without audit, pursuant to the rules and regulations promulgated by the Securities and Exchange Commission (the "SEC"). Certain prior year amounts have been reclassified to conform to current year presentation. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been omitted pursuant to SEC rules and regulations; nevertheless, the Company believes that the disclosures are adequate to make the information presented not misleading. In the opinion of management, the financial statements contain all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the financial position, results of operations and cash flows of the Company for the interim periods presented. The results of operations for the three and six months ended June 30, 2001, are not necessarily indicative of the results for the full year. The unaudited condensed consolidated financial statements include all accounts of the Company and its wholly-owned subsidiary, Lynx Therapeutics GmbH, formed under the laws of the Federal Republic of Germany. All significant intercompany balances and transactions have been eliminated. These financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto for the Company's year ended December 31, 2000, included in its annual report on Form 10-K filed with the SEC. 3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES REVENUE RECOGNITION Revenues from technology access fees have generally resulted from upfront payments from collaborators and customers who are provided access to Lynx's technologies for specified periods. The Company receives service fees from collaborators and customers for genomics discovery services performed by Lynx on the biological samples they send to Lynx. Milestone payments are recognized pursuant to collaborative agreements upon the achievement of specified technology developments, representing the culmination of the earnings process, for financial accounting purposes. Other revenues include product sales and non-contract related revenues. Technology access fees are deferred and recognized as revenues on a straight-line basis over the noncancelable term of the agreement to which they relate. Payments for services and/or materials provided by Lynx are recognized as revenues when earned over the period in which the services are performed and/or materials are delivered, provided no other obligations, refunds or credits to be applied to future work exist. Revenues from the sales of products are recognized upon shipment to the customer. 6 7 NET LOSS PER SHARE Basic Earnings Per Share ("EPS") is computed by dividing income or loss applicable to common stockholders by the weighted-average number of common shares outstanding for the period, net of certain common shares outstanding that are subject to continued vesting and the Company's right of repurchase. Diluted EPS reflects the potential dilution of securities that could share in the earnings of the Company, to the extent such securities are dilutive. Basic and diluted net loss per share are equivalent for all periods presented herein due to the Company's net loss in all periods. At June 30, 2001, options to purchase approximately 2,646,000 shares of common stock at a weighted-average price of $13.31 per share and warrants to purchase 436,808 shares of common stock at an exercise price of $9.2011 per share have been excluded from the calculation of diluted loss per share for 2001 because the effect of inclusion would be antidilutive. The options will be included in the calculation at such time as the effect is no longer antidilutive, as calculated using the treasury stock method. At June 30, 2001, approximately 8,000 common shares, which are outstanding but are subject to the Company's right of repurchase which expires ratably over five years, have been excluded from the calculation of basic loss per share. The repurchasable shares will be included in the calculation of diluted EPS at such time as the Company's right of repurchase lapses. RECENT ACCOUNTING PRONOUNCEMENTS In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments and Hedging Activities" ("SFAS 133"), which is effective for the year ending December 31, 2001. SFAS 133 establishes accounting and reporting standards requiring that every derivative instrument, including certain derivative instruments embedded in other contracts, be recorded in the balance sheet as either an asset or liability measured at its fair value. The statement also requires that changes in the derivative's fair value be recognized in earnings unless specific hedge accounting criteria are met. Lynx believes the adoption of SFAS 133 on January 1, 2001 had no material effect on the financial statements, since the Company currently does not invest in derivative instruments and engage in hedging activities. In July 2001, the FASB issued Statement of Accounting Standard No. 141, "Business Combinations" ("SFAS 141"). SFAS 141 establishes new standards for accounting and reporting for business combinations initiated after June 30, 2001. Use of the pooling-of-interests method will be prohibited. We expect to adopt this statement during the first quarter of fiscal 2002 and do not believe that SFAS 141 will have a material effect on our operating results or financial position. In July 2001, the FASB issued Statement of Financial Accounting Standard No. 142, "Goodwill and Other Intangible Assets" ("SFAS 142"), which supercedes APB Opinion No. 17, "Intangible Assets". SFAS 142 establishes new standards for goodwill, including the elimination of goodwill amortization to be replaced with methods of periodically evaluating goodwill for impairment. We expect to adopt this statement during the first quarter of fiscal 2002 and do not believe that SFAS 142 will have a material effect on our operating results or financial position. COMPREHENSIVE INCOME (LOSS) The following are the components of comprehensive income (loss): (in thousands)
Three Months Ended June 30, --------------------------- 2001 2000 ------- ------- Net income (loss) $(4,576) $(3,167) Net unrealized gain (loss) on available-for-sale securities 1,065 366 ------- ------- Comprehensive income (loss) $(3,511) $(2,801) ======= =======
Six Months Ended June 30, ------------------------- 2001 2000 -------- ------- Net income (loss) $(10,274) $(3,647) Net unrealized gain (loss) on available-for-sale securities 1,043 (1,347) -------- ------- Comprehensive income (loss) $ (9,231) $(4,994) ======== =======
The components of accumulated other comprehensive income (loss) relate entirely to unrealized gains (losses) on available-for-sale securities and are $1.1 million at June 30, 2001 and $(1.2) million at December 31, 2000. 4. COMMON STOCK In May 2001, Lynx completed a private placement of common stock and warrants to purchase common stock. The financing included the sale of 1,747,248 newly issued shares of common stock at a purchase price of $6.37 per share resulting in net proceeds of approximately $10.5 million, pursuant to a common stock purchase agreement between the Company and certain investors. In connection with this transaction, Lynx issued warrants to purchase up to 436,808 shares of common stock at an exercise price of $9.2011 per share. Lynx has filed with the Securities and Exchange Commission a resale registration statement related to the privately placed securities. 5. CORPORATE COLLABORATIONS AND LICENSE AGREEMENT AstraZeneca In April 2001, the Company entered into a collaboration with AstraZeneca to identify genes that are differentially expressed between different human tissues. AstraZeneca will provide DNA samples from certain human tissues, which Lynx 7 8 will analyze using its Megasort(TM) technology. The differences in the gene expression patterns are expected to provide important information on the physiological processes leading to diseases or conditions involving these tissue types. GenoMar In April 2001, the Company entered into a collaboration with GenoMar ASA to identify genes associated with saltwater tolerance in the tropical fin fish, Tilapia. GenoMar will provide Lynx with RNA samples from Tilapia raised in either freshwater or saltwater, which will then be compared using Lynx's Megasort(TM) technology. Genes associated with growth in saltwater are expected to provide economically important tools in improving the performance of farmed fish through selective breeding. AniGenics In May 2001, the Company entered into a collaboration with AniGenics, Inc. to identify genes associated with commercially valuable traits in certain food animal species. AniGenics will provide Lynx with samples from animals exhibiting desired traits. The samples will then be analyzed for differential gene expression using Lynx's Megasort(TM) technology. AniGenics will also provide animal samples to be analyzed using Lynx's Megatype(TM) technology for single nucleotide polymorphism, or SNP, markers that could be used to identify genes controlling the desired traits. The research collaboration seeks to create gene expression profiles and to identify SNP markers that could impact marker-assisted breeding and result in potentially reduced husbandry costs or increased product differentiation in the supermarket. BASF-LYNX Bioscience AG In June 2001, the Company extended its technology licensing agreement with BASF-LYNX Bioscience AG (BASF-LYNX), a joint venture company established in Heidelberg, Germany, by Lynx and BASF AG in 1996. The license extends BASF-LYNX's right to use Lynx's proprietary MPSS(TM) and Megasort(TM) technologies non-exclusively in BASF-LYNX's neuroscience, toxicology and microbiology programs until December 31, 2007. The agreement also uniquely positions BASF-LYNX to apply Lynx's technologies to specific disorders in the neuroscience field. Under the terms of the agreement, Lynx will receive from BASF-LYNX a multi-million dollar technology license fee. Lynx will furnish BASF-LYNX, initially without charge and later for a fee, with Megaclone(TM) technology micro-beads, other reagents and additional MPSS(TM) technology instruments for use in BASF-LYNX's research programs. Separately, Lynx and BASF AG have agreed to continue their support of BASF-LYNX's growth, including an increase of the capital reserves of BASF-LYNX, Lynx's additional investment in BASF-LYNX will maintain Lynx's ownership interest in BASF-LYNX at more than 40%. 6. EQUITY INVESTMENT During 2001, Lynx incurred a loss of $0.5 million related to its equity investment in Inex Pharmaceuticals Corporation (Inex). This loss was comprised of a $1.6 million writedown for an other-than-temporary decline in the value of its investment, net of a $1.1 million gain recorded from the receipt of shares of common stock from Inex in the first quarter of 2001 as part of the proceeds related to the March 1998 sale of Lynx's former antisense program. 8 9 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS This discussion and analysis should be read in conjunction with the Company's financial statements and accompanying notes included in this report and the Company's 2000 audited financial statements and notes thereto included in its 2000 Annual Report on Form 10-K. Operating results for the three and six months ended June 30, 2001 are not necessarily indicative of results that may occur in future periods. Except for the historical information contained herein, the following discussion contains forward-looking statements that involve risks and uncertainties. When used herein, the words "believe," "anticipate," "expect," "estimate" and similar expressions are intended to identify such forward-looking statements. There can be no assurance that these statements will prove to be correct. Lynx's actual results could differ materially from those discussed here. Factors that could cause or contribute to such differences include, but are not limited to, those discussed in this section, as well as in Lynx's 2000 Annual Report on Form 10-K as filed with the SEC. Lynx undertakes no obligation to update any of the forward-looking statements contained herein to reflect any future events or developments. RESULTS OF OPERATIONS REVENUES Revenues for the second quarter and six-month period ended June 30, 2001, were $4.4 million and $7.8 million, respectively, and for the corresponding second quarter and six-month period of 2000, were $2.8 million and $5.9 million, respectively. These revenues consist primarily of technology access and service fees from Lynx's customers and collaborators. OPERATING COSTS AND EXPENSES Total operating costs and expenses were $9.0 million for the quarter ended June 30, 2001, compared to $6.3 million in the corresponding period in the previous year. For the six-month period ended June 30, 2001, operating costs and expenses were $17.6 million, compared to $13.2 million in the corresponding period in 2000. For the quarter and six-month period ended June 30, 2001, cost of service fees were $1.1 million and $1.8 million, respectively, as compared to $1.0 million and $1.4 million, respectively, for the corresponding quarter and six-month period of 2000. These amounts reflect the costs of providing our genomics discovery services. Research and development expenses were $5.9 million for the quarter ended June 30, 2001, compared to $3.8 million in the corresponding period in 2000. For the six-month period ended June 30, 2001, research and development expenses were $11.8 million, compared to $8.8 million in the corresponding period in 2000. The increase in research and development expenses in the 2001 quarter and six-month period over the corresponding periods in 2000 was due primarily to higher personnel- and facilities-related expenses and an increase in materials consumed in research and development efforts, primarily on the continuing development of the Megatype(TM) and Protein ProFiler(TM) technologies and on Lynx's internal discovery projects. Lynx expects research and development expenses to increase due to planned spending for ongoing technology development and implementation, as well as new applications for our technologies. Lynx's research and development expenses of $11.8 million for the six-month period ended June 30, 2001 are comprised of $3.2 million in research expenses, including costs related to internal discovery projects, and $8.6 million in development expenses, including those related to the continuing development of the Megatype(TM) and Protein ProFiler(TM) technologies. Megatype(TM) technology for DNA analysis is in the late stages of development. As of June 30, 2001, Lynx had provided commercial access to its Megatype(TM) technology to five customers. When fully developed, Lynx believes its Megatype(TM) technology will permit the comparison of collected genomes (all of the DNA coded genetic material in chromosomes) of two populations. Megatype(TM) technology is designed to enable the detection and recovery of DNA fragments with disease- or trait-associated single nucleotide polymorphisms, or SNPs, that distinguish these two populations. SNPs are single nucleotide variations in the genetic code that are believed to occur, on average, about every 1,000 bases along the three billion nucleotides in the human genome. Lynx believes its Megatype(TM) technology, when fully developed, will deliver information on the disease- or trait-association of SNPs, and should provide a cost-effective approach to pharmacogenetics, which is the identification and assessment of genes that are predictive of efficacy and toxicity of drug compounds or that may correlate drug responses to individual genotypes (the particular genetic pattern seen in the DNA of an individual). Lynx will continue its development efforts and expects to enter additional commercial relationships to provide access to its Megatype(TM) technology to customers and collaborators during 2001. Lynx's protein analysis or proteomics technology, Protein ProFiler(TM), is in the late stages of development. Proteomics is the study of the number of proteins and the extent to which they are expressed in cells or tissues. Lynx 9 10 Protein ProFiler(TM) technology aims to provide high-resolution analysis of complex mixtures of proteins from cells or tissues. Lynx's believes its Protein ProFiler(TM) technology, when fully developed, will be used to discover drug targets, validate candidate targets and correlate gene expression with protein expression in cells. While advancing its development efforts, Lynx expects to enter an initial commercialization phase with its Protein ProFiler(TM) technology during 2001. General and administrative expenses increased to $2.0 million for the quarter ended June 30, 2001, compared to $1.5 million in the corresponding period in the previous year. For the six-month period ended June 30, 2001, general and administrative expenses increased to $4.0 million, compared to $3.0 million in the same period in 2000. Contributing factors to the increase in expenses between years include increased personnel-related expenses and higher outside service costs. Lynx expects general and administrative expenses to increase in support of its research and development, commercial and business development efforts. INTEREST INCOME, NET Net interest income was $10,000 and $16,000 for the quarter and six-month periods ended June 30, 2001, respectively, compared to $281,000 and $595,000, respectively, in the corresponding periods in 2000. The 2001 periods reflect a decrease in interest income due lower average cash, cash equivalents and investment balances and investment rates. OTHER INCOME (LOSS), NET Other income was $48,000 in the quarter ended June 30, 2001, compared to other income of $33,000 in the 2000 period. These amounts are primarily related to sublease rental income. For the six-month period ended June 30, 2001, the other loss was $0.4 million, compared to other income of $3.2 million in the same period in 2000. The other loss for the six-month period in 2001 was related primarily to a $1.6 million writedown for an other-than-temporary decline in the value of Lynx's equity investment in Inex Pharmaceuticals Corporation (Inex), net of a $1.1 gain recorded from the receipt of shares of common stock from Inex in the first quarter of 2001 as part of the proceeds related to the March 1998 sale of Lynx's former antisense program. The other income for the six-month period in 2000 was primarily related to a $3.1 million gain recognized from the receipt of 400,000 shares of common stock of Inex pursuant to the terms of a 1998 agreement for the sale of Lynx's antisense program to Inex. INCOME TAXES There were no provisions made for income taxes for the quarter and six-month period ended June 30, 2001. The provision for income taxes for the quarter and six-month period ended June 30, 2000 consists entirely of alternative minimum tax. LIQUIDITY AND CAPITAL RESOURCES Net cash used in operating activities was $10.8 million for the six-month period ended June 30, 2001, as compared to net cash used in operating activities of $5.5 million for the same period in 2000. This change was primarily due to a higher net loss in the 2001 period, the change in accounts payable and the change in deferred revenues, partially offset by the difference between the 2001 loss and the 2000 gain related to the common stock of Inex received from the sale of Lynx's antisense program to Inex, and higher depreciation and amortization expense for fixed assets and leasehold improvements. Net cash used in operating activities of $10.8 million for the six-month period in 2001 differed from the net loss for the same period in 2000 primarily due to the decrease in deferred revenues, offset partially by depreciation and amortization expense. Net cash provided by investing activities of $1.7 million for the six-month period ended June 30, 2001 related primarily to the net maturities of short-term investments, offset partially by expenditures for capital assets. Net cash provided by financing activities of $10.5 million for the six-month period ended June 30, 2001 related primarily to the issuance of common stock pursuant to a common stock purchase agreement between the Company and certain investors, partially offset by repayment of principal under an equipment loan arrangement. Cash, cash equivalents, short-term investments and marketable securities were $15.8 million at June 30, 2001. In May 2001, Lynx completed a private placement of common stock and warrants to purchase common stock. The financing included the sale of 1,747,248 newly issued shares of common stock at a purchase price of $6.37 per share resulting in net proceeds of approximately $10.5 million, pursuant to a common stock purchase agreement between the Company and certain investors. In connection with this transaction, Lynx issued warrants to purchase up to 436,808 shares of common stock at an exercise price of $9.2011 per share. Lynx has filed with the Securities and Exchange Commission a resale registration statement related to the privately placed securities. 10 11 Lynx expects to use the net proceeds from the financing to support ongoing commercial, business development and research and development activities. Lynx's research and development efforts will focus on the continuing development of the Megatype(TM) and Protein ProFiler(TM) technologies, as well as internal discovery projects. In late 1998, the Company entered into a financing agreement with a financial institution, Transamerica Business Credit Corporation, under which Lynx drew down $4.8 million during 1999 for the purchase of equipment and certain other capital expenditures. Lynx granted the lender a security interest in all items financed by it under this agreement. Each draw down under the loan has a term of 48 months from the date of the draw down. As of June 30, 2001, the principal balance under loans outstanding under this agreement was approximately $3.8 million. The draw down period under the agreement expired on March 31, 2000. Lynx plans to use available funds for ongoing commercial and research and development activities, working capital and other general corporate purposes and capital expenditures. Lynx expects capital investments during 2001 will be comprised primarily of equipment purchases required in the normal course of business and expenditures for leasehold improvements. Lynx intends to invest its excess cash in investment-grade, interest-bearing securities. Lynx has obtained funding for its operations primarily through sales of preferred and common stock to venture capital investors, institutional investors and collaborators, payments under contractual arrangements with customers, collaborators and licensees and interest income. The cost, timing and amount of funds required for specific uses by Lynx cannot be precisely determined at this time and will be based upon the progress and the scope of its collaborative and independent research and development projects; payments received under customer, collaborative and license agreements; Lynx's ability to establish and maintain customer, collaborative and license agreements; costs of protecting intellectual property rights; legal and administrative costs; additional facilities capacity needs; and the availability of alternate methods of financing. Lynx expects to incur substantial and increasing research and development expenses and intends to seek additional financing, as needed, through arrangements with customers, collaborators and licensees and equity or debt offerings. There can be no assurance that any additional financing required by Lynx will be available on favorable terms, or at all. The Company believes that its existing capital resources, and interest income thereon, will enable it to maintain its current and planned operations through at least the next 12 months. ADDITIONAL BUSINESS RISKS WE HAVE A HISTORY OF NET LOSSES. WE EXPECT TO CONTINUE TO INCUR NET LOSSES, AND WE MAY NOT ACHIEVE OR MAINTAIN PROFITABILITY. We have incurred net losses each year since our inception in 1992, including net losses of approximately $4.3 million in 1998, $6.7 million in 1999 and $13.3 million in 2000. As of June 30, 2001, we had an accumulated deficit of approximately $76.9 million. We expect these losses to continue for at least the next several years. The size of these net losses will depend, in part, on the rate of growth, if any, in our revenues and on the level of our expenses. Our research and development expenditures and general and administrative costs have exceeded our revenues to date, and we expect research and development expenses to increase due to planned spending for ongoing technology development and implementation, as well as new applications. As a result, we will need to generate significant additional revenues to achieve profitability. Even if we do increase our revenues and achieve profitability, we may not be able to sustain profitability. Our ability to generate revenues and achieve profitability depends on many factors, including: - our ability to enter into additional corporate collaborations and agreements; - our ability to discover genes and targets for drug discovery; - our collaborators' ability to develop diagnostic and therapeutic products from our drug discovery targets; and - the successful clinical testing, regulatory approval and commercialization of such products. The time required to reach profitability is highly uncertain. We may not achieve profitability on a sustained basis, if at all. WE WILL NEED ADDITIONAL FUNDS IN THE FUTURE, WHICH MAY NOT BE AVAILABLE TO US. We have invested significant capital in our scientific and business development activities. Our future capital requirements will be substantial as we expand our operations, and will depend on many factors, including: 11 12 - the progress and scope of our collaborative and independent research and development projects; - payments received under collaborative agreements; - our ability to establish and maintain collaborative arrangements; - the progress of the development and commercialization efforts under our collaborations and corporate agreements; - the costs associated with obtaining access to samples and related information; and - the costs involved in preparing, filing, prosecuting, maintaining and enforcing patent claims and other intellectual property rights. We anticipate that our current cash and cash equivalents, short-term investments and funding to be received from collaborators and customers will enable us to maintain our currently planned operations for at least the next 12 months. Changes to our current operating plan may require us to consume available capital resources significantly sooner than we expect. If our capital resources are insufficient to meet future capital requirements, we will have to raise additional funds. We do not know if we will be able to raise sufficient additional capital on acceptable terms, or at all. If we raise additional capital by issuing equity or convertible debt securities, our existing stockholders may experience substantial dilution. If we are unable to obtain adequate funds on reasonable terms, we may have to curtail operations significantly or to obtain funds by entering into financing or collaborative agreements on unattractive terms. OUR TECHNOLOGIES ARE NEW AND UNPROVEN AND MAY NOT ALLOW US OR OUR COLLABORATORS TO IDENTIFY GENES OR TARGETS FOR DRUG DISCOVERY. Our technologies are new and unproven. The application of these technologies is in too early a stage to determine whether it can be successfully implemented. These technologies assume that information about gene expression and gene sequences may enable scientists to better understand complex biological processes. Relatively few therapeutic products based on gene discoveries have been successfully developed and commercialized. Our technologies may not enable us or our collaborators to identify genes or targets for drug discovery. To date, no targets for drug discovery have been identified based on our technologies. WE ARE DEPENDENT ON OUR COLLABORATIONS AND WILL NEED TO FIND ADDITIONAL COLLABORATORS IN THE FUTURE TO DEVELOP AND COMMERCIALIZE DIAGNOSTIC OR THERAPEUTIC PRODUCTS. Our strategy for the development and commercialization of our technologies and potential products includes entering into collaborations, subscription arrangements or licensing arrangements with pharmaceutical, biotechnology and agricultural companies. We do not have the resources to develop or commercialize diagnostic or therapeutic products on our own. If we cannot negotiate additional collaborative arrangements or contracts on acceptable terms, or at all, or such collaborations or relationships are not successful, we may never become profitable. Substantially all of our revenues have been derived from corporate collaborations and agreements. Revenues from collaborations and related agreements depend upon continuation of the collaborations, the achievement of milestones and royalties derived from future products developed from our research and technologies. To date, we have received a significant portion of our revenues from a small number of collaborators and customers. For the six months ended June 30, 2001, revenues from DuPont, BASF, Takara and the Institute of Molecular and Cell Biology accounted for 36%, 22%, 17% and 10%, respectively, of our total revenues. For the year ended December 31, 2000, revenues from DuPont, BASF and Aventis CropScience accounted for 51%, 29% and 11%, respectively, of our total revenues. For the year ended December 31, 1999, revenues from DuPont, Aventis CropScience and BASF accounted for 81%, 13% and 5%, respectively, of our total revenues. For the year ended December 31, 1998, revenues from BASF-LYNX Bioscience AG, BASF and DuPont accounted for 61%, 33% and 5%, respectively, of our total revenues. If we are unable to successfully achieve milestones or our collaborators fail to develop successful products, we will not earn the revenues contemplated under such collaborative agreements. If our collaborators or customers do not renew existing agreements, we lose one of these collaborators or customers and we do not attract new collaborators or customers or we are unable to enter into new collaborative agreements on commercially acceptable terms, our revenues may decrease, and our activities may fail to lead to commercialized products. Our dependence on collaborative arrangements with third parties subjects us to a number of risks. We have limited or no control over the resources that our collaborators may choose to devote to our joint efforts. Our collaborators may breach or terminate their agreements with us or fail to perform their obligations thereunder. Further, our collaborators may elect not to develop products arising out of our collaborative arrangements or may fail to devote sufficient resources to the development, manufacture, marketing or sale of such products. While we do not currently compete directly with any of our collaborators, some of our collaborators could become our competitors in the future if they internally develop DNA or protein analysis technologies or if they acquire other genomics or proteomics companies and move into the genomics and proteomics industries. We will not earn the revenues contemplated under our collaborative arrangements, if our collaborators: ~ do not develop commercially successful products using our technologies; ~ develop competing products; 12 13 ~ preclude us from entering into collaborations with their competitors; ~ fail to obtain necessary regulatory approvals; or ~ terminate their agreements with us. WE ARE AN EARLY STAGE COMPANY, SO OUR PROFITABILITY IS UNCERTAIN, AND THERE IS A HIGH RISK OF FAILURE. You must evaluate us in light of the uncertainties and complexities affecting an early stage genomics company. Our products and services are still in the early stages of commercialization. Our technologies depend on the successful integration of independent technologies, each of which has its own development risks. If we do not continue to successfully develop our technologies, our services do not continue to be sought by customers or products developed from our technologies do not prove to be commercially successful, we may fail to achieve profitability. Further, we may not successfully expand the scope of our research into new areas of pharmaceutical, biotechnology or agricultural research. Development of commercially viable products from our technologies will require significant research and development, financial resources and personnel. Commercialization of our technologies, whether through the sales of services, royalties or other arrangements, may not generate sufficient or sustainable revenues to enable us to be profitable. WE DEPEND ON A SOLE SUPPLIER TO MANUFACTURE FLOW CELLS USED IN OUR MPSS TECHNOLOGY. We use flow cells, which are glass plates that are micromachined to create a grooved chamber for immobilizing microbeads in a planar microarray, in our Massively Parallel Signature Sequencing, or MPSS, technology. We currently purchase the flow cells used in our MPSS technology from a single supplier, although the flow cells are potentially available from multiple suppliers. While we believe that alternative suppliers for flow cells exist, identifying and qualifying new suppliers could be an expensive and time-consuming process. Our reliance on outside vendors involves several risks, including: - the inability to obtain an adequate supply of required components due to manufacturing capacity constraints, a discontinuance of a product by a third-party manufacturer or other supply constraints; - reduced control over quality and pricing of components; and - delays and long lead times in receiving materials from vendors. WE OPERATE IN AN INTENSELY COMPETITIVE INDUSTRY WITH RAPIDLY EVOLVING TECHNOLOGIES, AND OUR COMPETITORS MAY DEVELOP PRODUCTS AND TECHNOLOGIES THAT MAKE OURS OBSOLETE. The biotechnology industry is highly fragmented and is characterized by rapid technological change. In particular, the area of genomics research is a rapidly evolving field. Competition among entities attempting to identify genes associated with specific diseases and to develop products based on such discoveries is intense. Many of our competitors have substantially greater research and product development capabilities and financial, scientific, and marketing resources than we do. We face, and will continue to face, competition from pharmaceutical, biotechnology and agricultural companies, as well as academic research institutions, clinical reference laboratories and government agencies. Some of our competitors, such as Affymetrix, Inc., Celera Genomics Group, Incyte Genomics, Inc., Gene Logic, Inc., Genome Therapeutics Corporation and Hyseq, Inc., may be: - attempting to identify and patent randomly sequenced genes and gene fragments; - pursuing a gene identification, characterization and product development strategy based on positional cloning; which uses disease inheritance patterns to isolate the genes that are linked to the transmission of disease from one generation to the next; and - using a variety of different gene expression analysis methodologies, including the use of chip-based systems, to attempt to identify disease-related genes. In addition, numerous pharmaceutical, biotechnology and agricultural companies are developing genomic research programs, either alone or in partnership with our competitors. Our future success will depend on our ability to maintain a competitive position with respect to technological advances. Rapid technological development by others may make our technologies and future products obsolete. Any products developed through our technologies will compete in highly competitive markets. Our competitors may be more effective at using their technologies to develop commercial products. Further, our competitors may obtain intellectual property rights that would limit the use of our technologies or the commercialization of diagnostic or therapeutic products using our technologies. As a result, our competitors' products or technologies may render our technologies and products, and those of our collaborators, obsolete or noncompetitive. 13 14 IF WE FAIL TO ADEQUATELY PROTECT OUR PROPRIETARY TECHNOLOGIES, THIRD PARTIES MAY BE ABLE TO USE OUR TECHNOLOGY, WHICH COULD PREVENT US FROM COMPETING IN THE MARKET. Our success depends in part on our ability to obtain patents and maintain adequate protection of the intellectual property related to our technologies and products. The patent positions of biotechnology companies, including our patent position, are generally uncertain and involve complex legal and factual questions. We will be able to protect our proprietary rights from unauthorized use by third parties only to the extent that our proprietary technologies are covered by valid and enforceable patents or are effectively maintained as trade secrets. The laws of some foreign countries do not protect proprietary rights to the same extent as the laws of the U.S., and many companies have encountered significant problems in protecting and defending their proprietary rights in foreign jurisdictions. We have applied and will continue to apply for patents covering our technologies, processes and products as and when we deem appropriate. However, third parties may challenge these applications, or these applications may fail to result in issued patents. Our existing patents and any future patents we obtain may not be sufficiently broad to prevent others from practicing our technologies or from developing competing products. Furthermore, others may independently develop similar or alternative technologies or design around our patents. In addition, our patents may be challenged or invalidated or fail to provide us with any competitive advantage. We also rely on trade secret protection for our confidential and proprietary information. However, trade secrets are difficult to protect. We protect our proprietary information and processes, in part, with confidentiality agreements with employees, collaborators and consultants. However, third parties may breach these agreements, we may not have adequate remedies for any such breach or our trade secrets may still otherwise become known by our competitors. In addition, our competitors may independently develop substantially equivalent proprietary information. LITIGATION OR THIRD-PARTY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT COULD REQUIRE US TO SPEND SUBSTANTIAL TIME AND MONEY AND ADVERSELY AFFECT OUR ABILITY TO DEVELOP AND COMMERCIALIZE OUR TECHNOLOGIES AND PRODUCTS. Our commercial success depends in part on our ability to avoid infringing patents and proprietary rights of third parties and not breaching any licenses that we have entered into with regard to our technologies. Other parties have filed, and in the future are likely to file, patent applications covering genes, gene fragments, the analysis of gene expression and the manufacture and use of DNA chips or microarrays, which are tiny glass or silicon wafers on which tens of thousands of DNA molecules can be arrayed on the surface for subsequent analysis. We intend to continue to apply for patent protection for methods relating to gene expression and for the individual disease genes and drug discovery targets we discover. If patents covering technologies required by our operations are issued to others, we may have to rely on licenses from third parties, which may not be available on commercially reasonable terms, or at all. Third parties may accuse us of employing their proprietary technology without authorization. In addition, third parties may obtain patents that relate to our technologies and claim that use of such technologies infringes these patents. Regardless of their merit, such claims could require us to incur substantial costs, including the diversion of management and technical personnel, in defending ourselves against any such claims or enforcing our patents. In the event that a successful claim of infringement is brought against us, we may be required to pay damages and obtain one or more licenses from third parties. We may not be able to obtain these licenses at a reasonable cost, or at all. Defense of any lawsuit or failure to obtain any of these licenses could adversely affect our ability to develop and commercialize our technologies and products and thus prevent us from achieving profitability. WE HAVE LIMITED EXPERIENCE IN SALES AND MARKETING AND THUS MAY BE UNABLE TO FURTHER COMMERCIALIZE OUR TECHNOLOGIES AND PRODUCTS. Our ability to achieve profitability depends on attracting collaborators and customers for our technologies and products. There are a limited number of pharmaceutical, biotechnology and agricultural companies that are potential collaborators and customers for our technologies and products. To market our technologies and products, we must develop a sales and marketing group with the appropriate technical expertise. We may not be able to build such a sales force. If our sales and marketing efforts are not successful, our technologies and products may fail to gain market acceptance. OUR SALES CYCLE IS LENGTHY, AND WE MAY SPEND CONSIDERABLE RESOURCES ON UNSUCCESSFUL SALES EFFORTS OR MAY NOT BE ABLE TO ENTER INTO AGREEMENTS ON THE SCHEDULE WE ANTICIPATE. Our ability to obtain collaborators and customers for our technologies and products depends in significant part upon the perception that our technologies and products can help accelerate their drug discovery and genomics efforts. Our sales cycle is typically lengthy because we need to educate our potential collaborators and customers and sell the benefits of our products to a variety of constituencies within such companies. In addition, we may be required to negotiate agreements containing terms unique to each collaborator or customer. We may expend substantial funds and management effort with no assurance that we will successfully sell our technologies and products. Actual and proposed consolidations of pharmaceutical companies have negatively affected, and may in the future negatively affect, the timing and progress of our sales efforts. 14 15 WE MAY HAVE DIFFICULTY MANAGING OUR GROWTH. We expect to continue to experience significant growth in the number of our employees and the scope of our operations. This growth may place a significant strain on our management and operations. As our operations expand, we expect that we will need to manage additional relationships with various collaborators and customers, suppliers and other third parties. Our ability to manage our operations and growth effectively requires us to continue to improve our operational, financial and management controls, reporting systems and procedures. We may not be able to successfully implement improvements to our management information and control systems in an efficient or timely manner and may discover deficiencies in existing systems and controls. THE LOSS OF KEY PERSONNEL OR THE INABILITY TO ATTRACT AND RETAIN ADDITIONAL PERSONNEL COULD IMPAIR THE GROWTH OF OUR BUSINESS. We are highly dependent on the principal members of our management and scientific staff. The loss of any of these persons' services might adversely impact the achievement of our objectives and the continuation of existing collaborations. In addition, recruiting and retaining qualified scientific personnel to perform future research and development work will be critical to our success. There is currently a shortage of skilled executives and employees with technical expertise, and this shortage is likely to continue. As a result, competition for skilled personnel is intense and turnover rates are high. Competition for experienced scientists from numerous companies, academic and other research institutions may limit our ability to attract and retain such personnel. We are dependent on our President and Chief Executive Officer, Norman J.W. Russell, Ph.D., the loss of whose services could have a material adverse effect on our business. Although we have executed an employment agreement with Dr. Russell, currently we do not maintain key person insurance for him or any other key personnel. WE USE HAZARDOUS CHEMICALS AND RADIOACTIVE AND BIOLOGICAL MATERIALS IN OUR BUSINESS. ANY CLAIMS RELATING TO IMPROPER HANDLING, STORAGE OR DISPOSAL OF THESE MATERIALS COULD BE TIME CONSUMING AND COSTLY. Our research and development processes involve the controlled use of hazardous materials, including chemicals and radioactive and biological materials. Our operations produce hazardous waste products. We cannot eliminate the risk of accidental contamination or discharge and any resultant injury from these materials. Federal, state and local laws and regulations govern the use, manufacture, storage, handling and disposal of hazardous materials. We may be sued for any injury or contamination that results from our use or the use by third parties of these materials, and our liability may exceed our insurance coverage and our total assets. Compliance with environmental laws and regulations may be expensive, and current or future environmental regulations may impair our research, development and production efforts. ETHICAL, LEGAL AND SOCIAL ISSUES MAY LIMIT THE PUBLIC ACCEPTANCE OF, AND DEMAND FOR, OUR TECHNOLOGIES AND PRODUCTS. Our collaborators and customers may seek to develop diagnostic products based on genes we discover. The prospect of broadly available gene-based diagnostic tests raises ethical, legal and social issues regarding the appropriate use of gene-based diagnostic testing and the resulting confidential information. It is possible that discrimination by third-party payors, based on the results of such testing, could lead to the increase of premiums by such payors to prohibitive levels, outright cancellation of insurance or unwillingness to provide coverage to individuals showing unfavorable gene expression profiles. Similarly, employers could discriminate against employees with gene expression profiles indicative of the potential for high disease-related costs and lost employment time. Finally, government authorities could, for social or other purposes, limit or prohibit the use of such tests under certain circumstances. These ethical, legal and social concerns about genetic testing and target identification may delay or prevent market acceptance of our technologies and products. Although our technology does not depend on genetic engineering, genetic engineering plays a prominent role in our approach to product development. The subject of genetically modified food has received negative publicity, which has aroused public debate. Adverse publicity has resulted in greater regulation internationally and trade restrictions on imports of genetically altered agricultural products. Public attitudes may be influenced by claims that genetically engineered products are unsafe for consumption or pose a danger to the environment. Such claims may prevent genetically engineered products from gaining public acceptance. The commercial success of our future products may depend, in part, on public acceptance of the use of genetically engineered products, including drugs and plant and animal products. IF WE DEVELOP PRODUCTS WITH OUR COLLABORATORS, AND IF PRODUCT LIABILITY LAWSUITS ARE SUCCESSFULLY BROUGHT AGAINST US, WE COULD FACE SUBSTANTIAL LIABILITIES THAT EXCEED OUR RESOURCES. We may be held liable, if any product we develop with our collaborators causes injury or is otherwise found unsuitable during product testing, manufacturing, marketing or sale. Although we have general liability and product liability insurance, this insurance may become prohibitively expensive or may not fully cover our potential liabilities. Inability to obtain sufficient 15 16 insurance coverage at an acceptable cost or to otherwise protect us against potential product liability claims could prevent or inhibit the commercialization of products developed with our collaborators. HEALTHCARE REFORM AND RESTRICTIONS ON REIMBURSEMENTS MAY LIMIT OUR RETURNS ON DIAGNOSTIC OR THERAPEUTIC PRODUCTS THAT WE MAY DEVELOP WITH OUR COLLABORATORS. If we successfully validate targets for drug discovery, products that we develop with our collaborators based on those targets may include diagnostic or therapeutic products. The ability of our collaborators to commercialize such products may depend, in part, on the extent to which reimbursement for the cost of these products will be available from government health administration authorities, private health insurers and other organizations. In the U.S., third-party payors are increasingly challenging the price of medical products and services. The trend towards managed healthcare in the U.S., legislative healthcare reforms and the growth of organizations such as health maintenance organizations that may control or significantly influence the purchase of healthcare products and services, may result in lower prices for any products our collaborators may develop. Significant uncertainty exists as to the reimbursement status of newly approved healthcare products. If adequate third-party coverage is not available in the future, our collaborators may not be able to maintain price levels sufficient to realize an appropriate return on their investment in research and product development. OUR FACILITIES ARE LOCATED NEAR KNOWN EARTHQUAKE FAULT ZONES; AN EARTHQUAKE OR OTHER CATASTROPHIC DISASTER COULD CAUSE DAMAGE TO OUR FACILITIES AND EQUIPMENT, WHICH COULD REQUIRE US TO CEASE OPERATIONS. Our facilities are located near known earthquake fault zones and are vulnerable to damage from earthquakes. We are also vulnerable to damage from other types of disasters, including fire, floods, power loss, communications failures and similar events. If any disaster were to occur, our ability to operate our business at our facilities would be seriously, or potentially completely, impaired. In addition, the unique nature of our research activities could cause significant delays in our programs and make it difficult for us to recover from a disaster. The insurance we maintain may not be adequate to cover our losses resulting from disasters or other business interruptions. Accordingly, an earthquake or other disaster could materially and adversely harm our ability to conduct business. OUR STOCK PRICE MAY BE EXTREMELY VOLATILE. We believe that the market prices of our common stock will remain highly volatile and may fluctuate significantly due to a number of factors. The market prices for securities of many publicly-held, early-stage biotechnology companies have in the past been, and can in the future be expected to be, especially volatile. For example, during the two-year period from June 30,1999 to 2001, the closing sales price of our common stock as quoted on the Nasdaq National Market fluctuated from a low of $5.01 to a high of $96.875 per share. In addition, the securities markets have from time to time experienced significant price and volume fluctuations that may be unrelated to the operating performance of particular companies. The following factors and events may have a significant and adverse impact on the market price of our common stock: - fluctuations in our operating results; - announcements of technological innovations or new commercial products by us or our competitors; - release of reports by securities analysts; - developments or disputes concerning patent or proprietary rights; - developments in our relationships with current or future collaborators or customers; and - general market conditions. Many of these factors are beyond our control. These factors may cause a decrease in the market price of our common stock, regardless of our operating performance. ANTI-TAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS AND UNDER DELAWARE LAW MAY MAKE IT MORE DIFFICULT TO ACQUIRE US OR TO EFFECT A CHANGE IN OUR MANAGEMENT, EVEN THOUGH AN ACQUISITION OR MANAGEMENT CHANGE MAY BE BENEFICIAL TO OUR STOCKHOLDERS. Under our certificate of incorporation, our board of directors has the authority, without further action by the holders of our common stock, to issue 2,000,000 additional shares of preferred stock from time to time in series and with preferences and rights as it may designate. These preferences and rights may be superior to those of the holders of our common stock. For example, the holders of preferred stock may be given a preference in payment upon our liquidation or for the payment or accumulation of dividends before any distributions are made to the holders of common stock. Although we have no present intention to authorize or issue any additional series of preferred stock, any authorization or issuance, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could also have the effect of making it more difficult for a third party to acquire a majority of our outstanding voting stock or making 16 17 it more difficult to remove directors and effect a change in management. The preferred stock may have other rights, including economic rights senior to those of our common stock, and, as a result, an issuance of additional preferred stock could lower the market value of our common stock. Provisions of Delaware law may also discourage, delay or prevent someone from acquiring or merging with us. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The primary objective of our investment activities is to preserve principal while at the same time maximizing yields without significantly increasing risk. To achieve this objective, we invest in highly liquid and high-quality debt securities. Lynx's investments in debt securities are subject to interest rate risk. To minimize the exposure due to adverse shifts in interest rates, Lynx invests in short-term securities and maintains an average maturity of less than one year. As a result, we believe that we are not subject to significant interest rate risks. 17 18 PART II OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS None ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS (c) On May 24, 2001, we sold 1,747,248 newly issued shares of our common stock at a purchase price of $6.37 per share and warrants to purchase up to 436,808 shares of our common stock at an exercise price of $9.2011 per share to seven accredited investors in a private placement, for an aggregate purchase price of approximately $11,129,970. We issued the shares of common stock and the warrants in reliance upon an exemption from the registration requirements of the Securities Act by virtue of Section 4(2) thereof and Regulation D promulgated thereunder. We have filed a registration statement on Form S-3 with the SEC related to the resale of the securities. ITEM 3. DEFAULTS UPON SENIOR SECURITIES None ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS At the Company's 2001 Annual Meeting of Stockholders held on May 24, 2001, stockholders voted on the following matters: PROPOSAL I - The following seven directors were each elected for a one-year term expiring at the Company's 2002 Annual Meeting of Stockholders:
Nominee For Withheld ------- --- -------- Craig C. Taylor 8,902,411 249,773 Norman J.W. Russell 8,099,979 1,052,205 William K. Bowes, Jr. 7,733,262 1,418,922 Sydney Brenner 8,943,646 208,538 Leroy Hood 8,950,622 201,562 James C. Kitch 8,902,499 249,685 David C. U'Prichard 8,949,385 202,799
PROPOSAL II - Approval of the Company's 1992 Stock Option Plan, as amended, to increase the aggregate number of shares of common stock available for issuance under such plan by 700,000 shares:
For Against Abstain Broker Non-Vote --- ------- ------- --------------- 3,354,973 1,849,868 9,762 3,937,583
PROPOSAL III - Ratification of the selection of Ernst & Young LLP as the Company's independent auditors for the fiscal year ended December 31, 2001:
For Against Abstain Broker Non-Vote --- ------- ------- --------------- 9,117,235 29,047 5,902 --
ITEM 5. OTHER INFORMATION None ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K. a) Exhibits - The following documents are filed as Exhibits to this report: EXHIBIT NUMBER DESCRIPTION -------------- ----------- 10.15 Securities Purchase Agreement, dated as of May 24, 2001, by and among Lynx Therapeutics, Inc. and the investors listed therein.(1) 10.16 Registration Rights Agreement, dated as of May 24, 2001, by and among Lynx Therapeutics, Inc. and the investors listed therein.(1) 10.17 Form of Warrant issued by Lynx Therapeutics, Inc. in favor of each investor.(1) 10.18 Joint Venture Agreement, dated as of June 29, 2001, by and between BASF Aktiengesellschaft and Lynx Therapeutics, Inc.** 10.19 Technology License Agreement, dated as of June 1, 2001, by and between BASF-LYNX Bioscience AG and Lynx Therapeutics, Inc.** - -------------------- (1) Incorporated by reference from Lynx's Current Report on Form 8-K, filed with the SEC on June 4, 2001. ** Confidential treatment requested for certain portions of this exhibit. b) Reports on Form 8-K --- The Company filed a Current Report on Form 8-K on June 4, 2001, reporting under Item 5 that the Company completed an $11.1 million private placement of common stock and warrants to purchase common stock to seven accredited investors. 18 19 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. LYNX THERAPEUTICS, INC. /s/ Norman J.W. Russell -------------------------------------------- By: Norman J.W. Russell, Ph.D. President and Chief Executive Officer Date: August 14, 2001 /s/ Edward C. Albini -------------------------------------------- By: Edward C. Albini Chief Financial Officer (Principal Financial and Accounting Officer) Date: August 14, 2001 19 20
EXHIBIT NUMBER DESCRIPTION -------------- ----------- 10.15 Securities Purchase Agreement, dated as of May 24, 2001, by and among Lynx Therapeutics, Inc. and the investors listed therein.(1) 10.16 Registration Rights Agreement, dated as of May 24, 2001, by and among Lynx Therapeutics, Inc. and the investors listed therein.(1) 10.17 Form of Warrant issued by Lynx Therapeutics, Inc. in favor of each investor.(1) 10.18 Joint Venture Agreement, dated as of June 29, 2001, by and between BASF Aktiengesellschaft and Lynx Therapeutics, Inc.** 10.19 Technology License Agreement, dated as of June 1, 2001, by and between BASF-LYNX Bioscience AG and Lynx Therapeutics, Inc.**
- -------------------- (1) Incorporated by reference from Lynx's Current Report on Form 8-K, filed with the SEC on June 4, 2001. ** Confidential treatment requested for certain portions of this exhibit. EX-10.18 3 f74786ex10-18.txt EXHIBIT 10.18 1 EXHIBIT 10.18 ***TEXT OMITTED AND FILED SEPARATELY CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SS.SS. 200.80(B)(4), 200.83 AND 240.24B-2* JOINT VENTURE AGREEMENT between LYNX Therapeutics Inc., 25861 Industrial Boulevard, Hayward, California, 94545, USA (hereinafter referred to as "LYNX") and BASF Aktiengesellschaft, 67056 Ludwigshafen, Deutschland (hereinafter referred to as "BASF") PREAMBLE WHEREAS, BASF and LYNX have concluded the "Joint Venture Agreement" of October 23, 1996, as amended by the "First Amendment to Joint Venture Agreement" of October 23, 1998, according to which a joint venture company ("JVC") was established in Heidelberg, Germany under the name "BASF LYNX Bioscience AG" by BASF Biotechnology Holding GmbH, a company wholly owned by BASF ("BASF Holding"), and LYNX Therapeutics GmbH, a company wholly owned by LYNX ("Lynx Holding"). BASF Holding holds 51 percent of the JVC's voting stock and Lynx Holding holds 49 percent of the JVC's voting stock and each of them holds certain preferred shares in the JVC which are destined to be offered to the JVC's employees, members of its Executive Board and Scientific Advisory Board and certain other collaborators. The JVC conducts certain research and development services for BASF Holding and Lynx Holding on the basis of the "Technology License and Development Agreement" of January 1, 1997 between the JVC on the one hand and BASF Holding and Lynx Holding on the other hand, as amended by the "First Amendment to Technology License and Development Agreement" and the results of such research and development conducted by the JVC under that agreement are owned jointly by BASF Holding and Lynx Holding (the "Old License Agreement"). The exploitation of these results is governed by the "Joint Venture Operating Agreement" between BASF Holding and Lynx Holding of January 1, 1997. In Article 7 of the Joint Venture Agreement the parties envisaged to merge BASF Holding and 2 Lynx Holding into the JVC after [...***...], inter alia with regard to a possible initial public offering ("IPO") of the JVC's shares. WHEREAS, the parties now intend to make an IPO for the JVC's shares as early as reasonably possible [...***...], the exact timing taking into account the JVC's performance as well as the prevailing stock market conditions for comparable companies. NOW, THEREFORE, in order to prepare the JVC for and to initiate and complete such an IPO, BASF and LYNX agree as follows: 1. CHANGE OF THE CORPORATE NAME OF THE JVC The JVC's corporate name shall be changed from "BASF LYNX Bioscience AG" to a name to be proposed by the JVC's CEO and agreed upon by the parties. BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding shall vote for the respective proposal and change of the Articles of Association of the JVC at the next general meeting of JVC's shareholders. 2. GOVERNANCE OF THE JVC The Advisory Board of the JVC shall be dissolved with effect as of the end of the next general meeting of the JVC's shareholders. The Supervisory Board of the JVC shall consist of six members, with effect as of the end of the next general meeting of the JVC's shareholders. BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding shall vote for the respective proposal and change of the Articles of Association of the JVC at the next general meeting of the JVC's shareholders. Each party may propose three members of the Supervisory Board of the JVC, it being understood that the parties shall be in agreement on the nomination of all members prior to their election. BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding shall vote for the election of the agreed members at the next general meeting of JVC's shareholders. ______________________ *CONFIDENTIAL TREATMENT REQUESTED -2- 3 3. LICENSES LYNX shall on the date of execution of this Agreement enter into the Technology License Agreement attached as Annex 1 hereto with the JVC. 4. JVC SHARES HELD BY EMPLOYEES The parties agree that the aggregate [...***...] percent of the JVC's share capital destined for the JVC's employees, members of its Executive Board and Scientific Advisory Board and certain other collaborators should be fully distributed to these qualified groups by [...***...] and the parties shall procure that the JVC shall make the required offers as soon as reasonably possible. 5. INCREASES OF THE SHARE CAPITAL OF THE JVC 5.1 The share capital of the JVC shall be increased by [...***...] to [...***...], the shares shall be converted into ordinary bearer shares with a nominal value of [...***...] each. BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding shall vote for the respective proposal and change of the Articles of Association of the JVC at the next general meeting of JVC's shareholders. 5.2 BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding shall subscribe for shares according to their current shareholding in the JVC. 5.3 BASF shall procure that BASF Holding pays [...***...] and LYNX shall procure that Lynx Holding pays [...***...] to the JVC into the capital reserve (Kapitalrucklage) on or prior to [...***...]. Upon the subscription by BASF Holding and Lynx Holding to their shares in the increased capital pursuant to Section 5.1.1 above, such capital reserve shall be converted into equity (Grundkapital) in the nominal amounts subscribed by BASF Holding and Lynx Holding respectively and the remainder shall remain booked as capital reserve (Kapitalrucklage) and is to be used by the JVC for the purpose of providing the funds to the holders of the Employee Shares to subscribe to the increased capital attributable to the Employee Shares. 5.4 The holders of the Employee Shares shall receive the funds to subscribe to the increased capital as [...***...] loans from the JVC the repayment of which shall be waived ______________________ *CONFIDENTIAL TREATMENT REQUESTED -3- 4 by the JVC in fractions of [...***...] % ([...***...]) per full year of employment or function with JVC. 5.5 The parties shall endeavor to have one or more investor(s) subscribe a further capital increase at a price to be agreed upon between the parties and such investors(s), resulting in a participation of such investor(s) in the order of magnitude of [...***...] percent of the JVC's issued share capital. 6. MERGER BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding (after spinning off all other activities except its holding of the JVC shares) conclude a merger contract with the JVC in a form to be approved by the parties essentially containing the following provisions: a) BASF Holding and Lynx Holding shall be dissolved without liquidation and transfer their entire assets and liabilities to the JVC (Section 2, no. 1 UmwG) with effect as of [...***...]. b) In return, BASF shall receive the shares in the JVC formerly held by BASF Holding and LYNX shall receive the shares in the JVC formerly held by Lynx Holding. The parties undertake to approve such contract at the general shareholders' meeting of BASF Holding and Lynx Holding respectively. BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding approve such merger contract at the next general shareholder's meeting of the JVC. The parties hereby waive the merger report pursuant to Section 8 (3) UmwG and shall procure that BASF Holding and Lynx Holding respectively will do so as well. The parties hereby waive the merger audit pursuant to Sections 8 (3), 9 (3) UmwG and shall procure that BASF Holding and Lynx Holding respectively will do so as well. BASF shall procure that BASF Holding, and LYNX shall procure that Lynx Holding, have no assets other than shares in the JVC, cash, receivables or rights from the Old License Agreement and the "Joint Venture Operating Agreement" between BASF Holding and Lynx Holding of January 1, 1997 and no liabilities other than owner's equity. ______________________ *CONFIDENTIAL TREATMENT REQUESTED -4- 5 7. IPO The parties agree that they will initiate and agree to a further increase of the JVC's capital to be agreed upon (estimated to be in the order of magnitude of [...***...]) in case of an IPO. The parties agree that the JVC will take the necessary steps for the preparation of the IPO and make proposals to BASF and LYNX about the o business plan of the JV o selection of the investment banks as Lead Manager (Bookrunner) of the IPO, o syndicate structure (Co-Manager) of the IPO, o size of offering (number of shares, Greenshoe) and the pricing (bookbuilding range), o listing place (stock exchange), o timetable for the IPO including Investor Relations activities (Road Shows etc.). The parties agree that the IPO will be composed of newly issued shares but in case of the execution of the "greenshoe option" the parties may provide shares from their portfolios for this purpose only. The parties will assist and give advice to the JVC in the preparation of the IPO. 8. ENTIRE AGREEMENT The "Joint Venture Agreement" of October 23, 1996, as amended by the "First Amendment to Joint Venture Agreement" of October 23, 1998 and the "Joint Venture Operating Agreement" between BASF Holding and Lynx Holding of January 1, 1997 shall be terminated upon this Agreement coming into effect. 9. CONFLICT RESOLUTION 9.1 In the event that LYNX and BASF cannot reach agreement on any matter pursuant to this Agreement, the matter will be referred to further review, discussion and resolution between a senior officer of each BASF and LYNX (the "Decision-Makers"). The Decision-Makers will attempt in good faith to resolve the matter in dispute for a period of thirty (30) days. If no successful resolution of the dispute has been mutually agreed to, ______________________ *CONFIDENTIAL TREATMENT REQUESTED -5- 6 the dispute will be settled according to the arbitration procedures of Sections 9.2 and 9.3 of this Agreement. 9.2 Any controversy arising which cannot be resolved pursuant to Section 10.1 of this Agreement will be submitted to arbitration pursuant to the Arbitration Rules of the Deutsche Institution fur Schiedsgerichtsbarkeit e.V., then in effect, by three arbitrators knowledgeable as to pharmaceutical industry standards. The place of arbitration shall be Heidelberg, Germany. The arbitrators will be appointed by mutual agreement of the Decision-Makers within thirty (30) days of the filing of an arbitration claim. In the event the Decision-Makers fail to mutually agree to the arbitrators, three qualified arbitrators will be appointed by the Deutsche Institution fur Schiedsgerichtsbarkeit. The arbitrators will be instructed to consider, in making any determination, the customary practices in the biotechnology and pharmaceutical industry to the extent such practices exist. The language of the arbitration shall be English. 9.3 The arbitrators will be instructed to issue detailed written findings of fact and law. The arbitrators will be authorized to provided for interim and final injunctive relief and the parties acknowledge and agree that such arbitration will be the sole forum for such interim and final injunctive relief. The arbitrators will have the right but not the obligation to award to the prevailing party the cost of resolving any dispute regarding this Agreement or the formation, breach, enforcement or performance hereof, including any reasonable fees of attorneys, accountants and expert witnesses incurred by the prevailing party. Punitive damages will not be recoverable in any arbitration initiated pursuant to this Agreement. Judgement upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 10. EFFECTIVE DATE This Agreement shall become effective by being signed by both parties (the "Effective Date"). 11. MISCELLANEOUS 11.1 Any amendment, modification or supplement to this Agreement or its Annexes shall be void unless it is made by written documents duly signed by the parties. 11.2 In the event that any of the provisions of this Agreement or its Annexes are invalid because they are inconsistent with the applicable laws this shall in no manner affect the validity of the other provisions of this Agreement or its Annexes. The parties hereto shall be obliged to replace such invalid provisions by new provisions having similar economic effects. -6- 7 11.3 This Agreement and any rights and obligations hereunder shall not be assigned either whole or in part by either party hereto without the prior written approval of the other party which shall not be unreasonably withheld. 11.4 This Agreement shall be governed by, and construed in accordance with the laws of the Federal Republic of Germany. 11.5 Each party shall pay its own legal, accounting and other expenses incident to the preparation, negotiation and execution of this Agreement and the consummation of its obligations hereunder.
Ludwigshafen, dated as of this June 29, 2001 Hayward, dated as of this June 28, 2001 BASF AKTIENGESELLSCHAFT LYNX THERAPEUTICS INC. By: /s/ Joachim Scholz By: /s/ Edward C. Albini ---------------------------------------- ----------------------------------- Name: Joachim Scholz Name: Edward C. Albini -------------------------------------- --------------------------------- Title: Director, Legal Title: Chief Financial Officer -------------------------------------- --------------------------------
-7- EX-10.19 4 f74786ex10-19.txt EXHIBIT 10.19 1 EXHIBIT 10.19 ***TEXT OMITTED AND FILED SEPARATELY CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SS.SS. 200.80(B)(4), 200.83 AND 240.24B-2* TECHNOLOGY LICENSE AGREEMENT THIS TECHNOLOGY LICENSE AGREEMENT (the "Agreement"), is entered into as of June 1, 2001 (the "Effective Date"), by and between BASF-LYNX BIOSCIENCE AG, a corporation established under the laws of Germany, with its principal place of business at Heidelberg, Germany (the "Joint Venture"), and LYNX THERAPEUTICS, INC., a Delaware corporation, with its principal place of business at Hayward, California ("Lynx"). RECITALS WHEREAS, Lynx and BASF AG have formed, through wholly-owned subsidiaries, the Joint Venture to conduct a research program in the areas of neurological diseases, toxico-pharmacology, and the development of production strains of microorganisms for fermentations; WHEREAS, the Joint Venture has been conducting its research program using Lynx Licensed Technology under the Technology License and Development Agreement dated January 1, 1997, as amended by the First Amendment to Technology License and Development Agreement of October 23, 1998, between BASF Biotechnologies Beteiligungs-und Verwertungsgesellschaft mbH and Lynx Therapeutics GmbH (the "Old License Agreement"); and WHEREAS, the parties desire to terminate the Old License Agreement and enter into this Agreement upon the Effective Date in accordance with the terms and conditions hereinafter stated. NOW, THEREFORE, Lynx and the Joint Venture hereby agree as follows: 1. DEFINITIONS 1.1 "BEADS" shall mean the combitag beads that have covalently attached to their surface oligonucleotide polymers of at least [...***...] bases, which beads are useful in the conduct of MPSS and Megasort analyses. 1.2 "NEUROSCIENCE FIELD" shall mean the diagnosis, treatment or prevention of neurological diseases associated with the loss or structural alterations of neurons or glial cells, including epilepsy, Alzheimer`s Disease, Parkinson`s Disease, stroke, head trauma, multiple sclerosis, dystonia and Lou Gehrig`s Disease and other motorneuron diseases. 1.3 "INSTRUMENT IMPROVEMENTS" shall mean all modifications and improvements to the MPSS equipment that are made by or on behalf of Lynx and incorporated in the then current standard model of such MPSS equipment for production or commercial use during the term of this Agreement. 1.4 "JOINT VENTURE INVENTIONS" shall mean any invention, discovery, development, concept, or idea, whether or not patentable or copyrightable, that is made by or on behalf of the Joint Venture (including by any of its employees, agents, contractors or collaborators) during the term of ______________________ *CONFIDENTIAL TREATMENT REQUESTED 1. 2 the Agreement, and including without limitation processes, methods, software, formulae, data, techniques, compositions of matter, and devices, and all improvements thereof and know-how and trade secrets relating thereto. 1.5 "LYNX LICENSED TECHNOLOGY" shall mean Lynx's proprietary technologies for conducting MPSS and Megasort analyses, as existing on the Effective Date and as improved by Lynx during the term of this Agreement, including but not limited to the Lynx Patents and the Lynx Know-How and the Lynx Bioinformatics. 1.6 "LYNX BIOINFORMATICS" shall mean the software and other proprietary means owned or controlled by Lynx during the term of the Agreement that is useful for analyzing data obtained through the application of Lynx Licensed Technology. 1.7 "MASSIVELY PARALLEL SIGNATURE SEQUENCING" or "MPSS" shall mean the technology owned and/or controlled by Lynx for simultaneously generating signature sequences of cDNAs in a Megaclone(TM) Library disposed in a flow cell using the ligation-based sequencing method described in Brenner et al. Nature Biotechnology, 18: 630-634 (2000). 1.8 "LYNX KNOW-HOW" shall mean the information, data, knowledge, methods, procedures, processes, and techniques owned or controlled by Lynx (a) that comprise the method of performing Megasort analyses, (b) that comprise the MPSS method or that are directly related to using the MPSS Instruments in conducting MPSS analyses, or (c) that comprise the Lynx Bioinformatics. The term "Lynx Know-How" shall not include any information or trade secrets relating to the manufacture of the Beads or other proprietary Reagents and which are not necessary to know in order to perform MPSS or Megasort analyses using Reagents supplied by Lynx. 1.9 "MEGASORT" shall mean Lynx's methodology for detecting and isolating cDNA molecules that are differentially expressed in two samples using fluorescence activated cell sorting. 1.10 "MPSS INSTRUMENT" shall mean the equipment, designed and developed by Lynx, that can conduct MPSS analyses of templates sampled from a given cell culture or tissue cDNA library, and all Instrument Improvements to such equipment made or acquired by Lynx during the term of the Agreement. 1.11 "LYNX PATENTS" shall mean (a) any and all U.S. and corresponding foreign patent applications, whether now existing or hereafter filed, that are owned or controlled by Lynx and that claim MPSS Instruments, Reagents and/or Lynx Bioinformatics, or the use thereof, or the methods of MPSS or Megasort, and (b) any divisions, continuations, continuations-in-part, reissues or substitute applications arising from, and based upon, any of the foregoing patent applications, and (c) any patent(s) issuing from any of the foregoing, and including all reexaminations, reissues or extensions of such patents. 1.12 "REAGENTS" shall mean the Beads and such other proprietary reagents, diluents, or materials that are necessary for operating the MPSS Instruments and conducting MPSS or Megasort analyses of template samples, to the extent that such materials are not reasonably available for purchase on the open market. 1.13 "RESEARCH PROGRAM" shall mean the research and drug discovery program to be conducted by the Joint Venture directed to the areas of: (a) discovering novel drug targets and ______________________ *CONFIDENTIAL TREATMENT REQUESTED 2. 3 identifying drugs useful in diseases or disorders of the nervous system that are associated with the loss or structural alterations of neurons or glial cells, including Alzheimer`s Disease, Parkinson`s Disease, epilepsy, stroke, head trauma, multiple sclerosis, dystonia and Lou Gehrig`s Disease and other motorneuron diseases; (b) evaluating the use of "dynamic imaging" approach to predicting the toxico-pharmacology of chemical substances; (c) generating gene expression databases from tissues and cells of interest in the Neuroscience Field; and (d) developing production strains of microorganisms for fermentations. 2. LICENSES AND RIGHTS 2.1 LYNX LICENSE GRANT. Lynx hereby grants to the Joint Venture, during the term of this Agreement, a non-exclusive, royalty-free license, without the right to assign or to grant sublicenses, under the Lynx Licensed Technology solely in order to conduct the Research Program, including but not limited to the right to use the MPSS Instruments provided by Lynx hereunder and to practice the method of MPSS using said instruments and the Reagents. 2.2 LIMITED [...***...] LICENSE. In consideration of the license fee set forth in Section 3, the license under Lynx Licensed Technology set forth in Section 2.1, insofar as it grants rights under Lynx Licensed Technology to use the MPSS Instruments currently in its possession and the [...***...] next-generation MPSS Instruments to be supplied to the Joint Venture pursuant to Section 4.1 below to perform MPSS analyses in the Research Program, shall be [...***...]. 2.3 RESTRICTIONS ON USE OF LYNX LICENSED TECHNOLOGY. The Joint Venture covenants that the Joint Venture shall not utilize the Lynx Licensed Technology, the MPSS Instruments, any Reagents and any other instrumentation provided to the Joint Venture by Lynx, except as specifically required to conduct the Research Program. In particular, but without limiting the foregoing, the Joint Venture agrees that it shall not use the MPSS Instruments or any such other Lynx instrumentation, or use or practice the Lynx Licensed Technology, to provide analysis services for any third party, including BASF AG and/or any of its affiliates. For purposes of clarity, it is understood and agreed that (a) the Joint Venture may pursue the Research Program in collaboration with other commercial companies, and in connection therewith to analyze samples provided by the collaborator, pursuant to agreements under which the MPSS or Megasort analysis of collaborator samples is incidental to, and constitutes a minor part of the Joint Venture's work in connection with, a broader research and drug discovery program to be conducted by the Joint Venture in the collaboration and under which the Joint Venture retains a significant economic interest in any subsequent commercial exploitation of the results of the collaboration and (b) the Joint Venture, in connection with efforts to secure such an agreement, may perform MPSS or Megasort analyses on samples provided by a potential collaborator in order to demonstrate the capability of the Lynx Technology, provided that no more than [...***...] such analyses are performed for any potential collaborator and, absent execution of a formal collaboration agreement consistent with (a) above, the potential collaborator will have no right to use the results of such analyses for any purposes. The Joint Venture shall not, and shall not engage, permit or encourage any third party to, copy, reverse engineer or modify the MPSS Instruments or any Reagents or other Lynx instrumentation or decompile, translate or otherwise attempt to obtain the source code for any software included therein or in the Lynx Bioinformatics. Notwithstanding the foregoing, decompiling such software is permitted to the extent the laws of the Joint Venture's jurisdiction give the Joint Venture the right to do so to obtain information necessary to render the software interoperable with other software; ______________________ *CONFIDENTIAL TREATMENT REQUESTED 3. 4 provided, however, that the Joint Venture must first request such information from Lynx and Lynx may, in its discretion, either provide such information to the Joint Venture or impose reasonable conditions, including a reasonable fee, on such use of the source code for the software to ensure that Lynx's proprietary rights in the source code for the software are protected. Lynx shall have the right from time to time to have an independent expert, who shall be reasonably acceptable to the Joint Venture, visit and inspect the facilities of the Joint Venture and copies of any Joint Venture agreements with collaborators and potential collaborators for the purpose of verifying the Joint Venture's compliance with the limitations on the Joint Venture's license rights under this Agreement. A copy of the expert's report shall be sent to the Joint Venture. If the expert finds that the Joint Venture is in compliance, such expert's report shall be limited to confirming the Joint Venture's compliance. 2.4 LYNX COVENANT; RIGHTS RETAINED. Lynx hereby covenants and agrees that it will not prior to [...***...] years after shipment of the last of the [...***...] next generation MPSS Instruments to the Joint Venture pursuant to Section 4.1 below establish an internal biology capability or enter into a collaboration with another company that is competitive with the capabilities of the Joint Venture to conduct research directed to the discovery or development of treatments for [...***...] or provide MPSS Instruments to any third party for use in establishing an internal capacity to perform MPSS analyses in support of such third party's research directed to the discovery or development of treatments for [...***...]. Except as expressly provided by the foregoing, Lynx shall retain all rights to use the Lynx Licensed Technology and the Lynx Bioinformatics, and to use and practice MPSS and Megasort for all research or commercial purposes. 2.5 MEGATYPE. The parties acknowledge that Lynx is developing an application of its Bead-based analytical technologies, currently referred to as Megatype, which is expected to provide single nucleotide polymorphism disease or trait association information. If during the term of this Agreement Lynx successfully reduces this technology to practice and deploys it for commercial use, Lynx (a) agrees to review with the Joint Venture the capabilities of this technology and its potential uses in the Neuroscience Field and (b) if requested by the Joint Venture, to discuss in good faith the terms and conditions under which this technology may be made available for use in selected projects in the Neuroscience Field to be identified by agreement of the parties. 3. LICENSE FEE 3.1 In consideration of the [...***...] license rights provided by Lynx under Section 2.2, the Joint Venture hereby agrees to pay Lynx a non-refundable license fee in the amount of [...***...]. Such payment shall be made by bank wire transfer in immediately available funds in U.S. Dollars to an account designated by Lynx on or before [...***...]. 4. INSTRUMENTS, REAGENTS AND SERVICES 4.1 LYNX LOAN OF MPSS INSTRUMENTS. The parties acknowledge that Lynx Germany has provided the Joint Venture with [...***...] MPSS Instruments for use as permitted in Section 2.1. Lynx is currently developing a next-generation MPSS Instrument and will provide [...***...] such instruments to the Joint Venture for use under Section 2.1 once the pertinent developments have been reduced to practice and successfully implemented at Lynx. The Joint Venture shall reimburse Lynx for Lynx's costs to ship and install instruments in the Joint Venture's facility. During the term of this ______________________ *CONFIDENTIAL TREATMENT REQUESTED 4. 5 Agreement, if the Joint Venture demonstrates that it has the capability, need, and resources to utilize, consistent with the Research Program plans and goals, additional MPSS Instruments, Lynx shall at such time use reasonable efforts to arrange to provide the Joint Venture with one or more additional MPSS Instruments for use under Section 2.1 on such terms and conditions as are applicable at the time to the supply of equivalent instruments to others. Unless otherwise agreed Lynx USA shall retain the entire right, title and interest in and to all MPSS Instruments provided by Lynx hereunder. The Joint Venture shall use, and shall require all its employees, agents or contractors to use, all reasonable efforts to keep such MPSS Instruments in good working order and not to modify or permit modification of or cause harm or loss to come to such equipment, or any software associated with such equipment provided by Lynx. 4.2 LYNX REAGENTS SUPPLY. During the term of the Agreement, Lynx shall supply the Joint Venture with its reasonable requirements of Reagents for use in performing the Research Program as permitted under Section 2.1. Delivery of the Reagents will be based on orders provided once each calendar quarter by the Joint Venture in writing, with delivery times and methods of delivery to be agreed by the parties. Each quarterly order shall be only for the quantities of Reagents necessary to conduct the estimated number of MPSS runs and/or Megasort analyses during the upcoming calendar quarter, after taking into account all remaining quantities of Reagents held by the Joint Venture from prior orders of Reagents. Each quarterly order shall include information on the number of MPSS runs and/or Megasort analyses conducted in each prior quarter and estimated to be conducted in future quarters. Additionally, each order should include information on the quantities of Reagents actually consumed in each prior quarter and the estimated quantities of Reagents to be held as inventory by the Joint Venture as of the beginning of the upcoming quarter. Lynx agrees to supply Reagents free of charge for up to [...***...] MPSS runs to be conducted by the Joint Venture during the period from [...***...]. Any additional Reagents required by the Joint Venture for use during such period shall be purchased from Lynx at [...***...]. Any Reagents to be used by the Joint Venture after [...***...] (including any inventory of free Reagents held by the Joint Venture on [...***...]) shall be purchased from Lynx at the prices and on the terms and conditions applicable to purchases of Reagents by other customers of Lynx at the time. 4.3 LYNX TECHNICAL SUPPORT. Lynx shall provide during the term of this Agreement technical assistance as reasonably requested by the Joint Venture to assist the Joint Venture in its utilization in the Lynx Licensed Technology, to the extent the Joint Venture has rights to use or practice such Lynx Licensed Technology as provided in Article 2 hereof. 4.4 MAINTENANCE OF MPSS INSTRUMENTS. The Joint Venture shall be responsible for the day-to-day maintenance and upkeep of all MPSS Instruments provided hereunder. Lynx shall provide, or shall arrange to be provided, reasonable service and repair of such MPSS Instruments to the extent the Joint Venture, using reasonable efforts, is not able to address any such service or maintenance needs of the MPSS Instruments. 4.5 MAINTENANCE AND SUPPORT FEE CHARGES. In consideration of Lynx's support and maintenance services under Sections 4.3 and 4.4, the Joint Venture shall pay to Lynx [...***...] spent by each Lynx employee in connection with performing such services and in addition will reimburse Lynx for its out-of-pocket travel and other costs incurred in providing support and maintenance. ______________________ *CONFIDENTIAL TREATMENT REQUESTED 5. 6 4.6 PAYMENT TERMS; LATE PAYMENT. All payments shall be net payments without deduction of any bank or transfer charges or similar payments with the exception of the withholding taxes payable in Germany under the law in force at the time of the payment, if applicable. The Joint Venture shall be entitled to withhold these taxes in the name and for the account of Lynx and shall immediately render to Lynx the tax receipt(s) setting forth the amount thus paid. If upon application of the beneficiary any withholding tax can be reduced, the Joint Venture will file on behalf of Lynx for such reduction. Lynx will provide the Joint Venture with a proxy. Except as otherwise specified herein, payments to be made to Lynx under this Agreement shall be due net [...***...] days after Lynx's invoice and shall be made in US Dollars by wire transfer to an account specified by Lynx. Each payment will reference the applicable Lynx invoice or otherwise describe in reasonable detail the obligation to which such payment relates. Any payment not paid on or before the payment due date shall bear interest, to the extent permitted by applicable law, at [...***...] rate of interest as reported, from time to time, by Bank of America NT&SA in San Francisco, California, until paid in full. 5. JOINT VENTURE INVENTIONS 5.1 ASSIGNMENT OF JOINT VENTURE INVENTIONS. The Joint Venture hereby assigns and conveys to Lynx all right, title and interest in and to all Joint Venture Inventions relating to Lynx Licensed Technology, MPSS, Megasort or Reagents or uses thereof subject only to the Joint Venture's right to continue to use and practice such Joint Venture Inventions, solely as needed to further conduct the Research Program during the term of this Agreement. The Joint Venture agrees to execute all documents and instruments and take all other reasonable actions, at Lynx's expense, as are necessary to assign and transfer to Lynx, and to perfect title in Lynx, all such inventions. 5.2 DISCLOSURE OF INVENTIONS. As soon as practicable under the circumstances, the Joint Venture shall describe to Lynx any Joint Venture Inventions made during the term of the Agreement that are to be assigned to Lynx under Section 5.1. For any such Joint Venture Inventions that the Joint Venture or Lynx believes may be patentable (a "Patentable Invention"), the Joint Venture shall also provide a complete written disclosure for each and every such Patentable Invention. The Joint Venture also shall, at Lynx's request, provide Lynx copies of, and/or the right to inspect and copy, all results and raw data of the Research Program and other activities of the Joint Venture that may pertain to such Joint Venture Inventions. 5.3 NON-ENCUMBRANCE. The Joint Venture hereby covenants and agrees that the Joint Venture shall not permit any lien, encumbrance, burden or claim by any Third Party upon any such Joint Venture Inventions, except for any statutory rights of its employees. 6. CONFIDENTIALITY 6.1 CONFIDENTIALITY. The Joint Venture shall use its best efforts to keep the Lynx Licensed Technology and all information relating thereto, including all Joint Venture Inventions that are assignable to Lynx pursuant to Section 5.1 strictly confidential and shall only use such information to the extent reasonably necessary to further the purposes of this Agreement. The Joint Venture may disclose the Lynx Licensed Technology and/or such Joint Venture Inventions only to those of its employees and collaborators with a need to know such information in order to perform the Research Program as contemplated herein. Confidential Disclosure Agreements related to the ______________________ *CONFIDENTIAL TREATMENT REQUESTED 6. 7 disclosure or distribution of confidential information by the Joint Venture or its employees may be executed only by the Executive Board. 6.2 NON-DISCLOSURE AGREEMENTS. All employees of the Joint Venture shall be required to enter into non-disclosure agreements governing the use of confidential information. 6.3 SURVIVAL. Except as otherwise provided in Article 9, the provisions of this Article 6 shall survive any termination of this Agreement for a period of [...***...] years after such termination. 7. WARRANTIES AND REPRESENTATIONS 7.1 LYNX REPRESENTATION. Lynx represents that to the best of its knowledge it has the unencumbered right to grant the licenses to the Joint Venture under the Lynx Licensed Technology granted hereunder and that to the best of its knowledge it has the authority and capacity to enter into this Agreement and to perform its obligations hereunder. 7.2 IP REPRESENTATION. Lynx represents and warrants to the best of its knowledge that the use by the Joint Venture of the Lynx Licensed Technology as provided for hereunder will not infringe the intellectual property rights of third parties. 7.3 OTHER THAN THE REPRESENTATIONS IN SECTIONS 7.1 AND 7.2, LYNX MAKES NO OTHER, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE LYNX LICENSED TECHNOLOGY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL SUCH INFORMATION AND MATERIALS ARE PROVIDED "AS IS". 8. INDEMNITY 8.1 INDEMNIFICATION. The Joint Venture shall defend, indemnify and hold harmless Lynx from and against any and all claims, damages, losses and expenses of any nature (including reasonable attorney's fees), included, but not limited to death, personal injury, illness, property damage or products liability arising from or in connection with any of the following: (a) the use by the Joint Venture of any method or process related to MPSS, the MPSS Instruments, Megasort or the Lynx Licensed Technology except for negligence or willful misconduct by Lynx; or (b) the breach by the Joint Venture or its employees, agents or collaborators of any material obligation under this Agreement. (c) any third party patent infringement actions brought against the Joint Venture which are not based on Lynx Licensed Technology. 9. TERM AND TERMINATION; RENEWAL ______________________ *CONFIDENTIAL TREATMENT REQUESTED 7. 8 9.1 TERM. This Agreement shall enter in force from and after the Effective Date hereof and expires on December 31, 2007, unless sooner terminated in accordance with the provisions of Section 9.2 below. 9.2 TERMINATION FOR BREACH. Any party may terminate the Agreement upon [...***...] days written notice in the event the other party breaches a material term of the Agreement and fails to cure such breach within such [...***...] -day period after receiving such notice. 9.3 RETURN OF LYNX TECHNOLOGY. Upon expiration or termination of this Agreement, absent a renewal pursuant to Section 9.4, the Joint Venture shall return to Lynx all Lynx Licensed Technology, including any MPSS Instruments and Reagents, in its possession at the time. 9.4 RENEWAL. In the event the Joint Venture desires to continue to have access to the Lynx Licensed Technologies after December 31, 2007, Lynx agrees to provide such access on a nonexclusive basis at prices and on terms and conditions equivalent to those being extended by Lynx to comparable customers at the time. 10. MISCELLANEOUS 10.1 NON-ASSIGNMENT. This Agreement and the rights and benefits conferred upon a party hereunder, or any part hereof, may not be assigned or transferred directly, indirectly, by operation of law or otherwise by such party without the express written consent of the other party, provided that such consent shall not be unreasonably withheld to any such assignment or transfer that is in connection with a merger or other acquisition of such party or all of its relevant business assets. It is expressly understood that Lynx may in its discretion withhold its consent to any such assignment or transfer by the Joint Venture to any entity that competes with Lynx. 10.2 BINDING. This Agreement shall be binding upon and inure to the benefit of the permitted successors, representatives and assigns of the parties hereto. 10.3 NOTICES. Any payment, notice or other communication required or permitted to be given by either party hereto shall be deemed to have been properly given and be given and be effective on the date of delivery if delivered, in writing, in person, by facsimile transmission or by a recognized over-night delivery service to the respective addresses set forth below, or to such other address as either party shall designate by written notice given to the other party: In the case of Lynx: Lynx Therapeutics, Inc. 25861 Industrial Boulevard Hayward, CA 94545 USA Attn: President Fax: (510) 670-9302 In the case of the Joint Venture: BASF-LYNX Bioscience AG Im Neuenheimer Feld 515 69120 Heidelberg, Germany ______________________ *CONFIDENTIAL TREATMENT REQUESTED 8. 9 10.4 GOVERNING LAW. This Agreement shall be construed in accordance with, and its performance shall be governed by, the laws of the State of California. 10.5 DISPUTE RESOLUTION. If a dispute or controversy regarding any right or obligation under this Agreement arises between the Parties, the Parties will seek to resolve such dispute or controversy by good faith negotiation between senior management representatives of the Parties, to be commenced promptly after such dispute or controversy arises. If such dispute or controversy is not resolved by such negotiation within [...***...] days of notice by one party to the other, then the Parties shall proceed as follows. Any unresolved dispute, controversy, action, claim or proceeding initiated by either Party (other than a third party action, claim, or proceeding) relating to, arising out of, or resulting from this Agreement, or the performance by either Party of its obligations hereunder, whether before or after termination of this Agreement, shall be finally resolved by binding arbitration. Any arbitration hereunder shall be conducted under the Rules of conciliation and Arbitration of the International Chamber of Commerce. Each such arbitration shall be conducted in the English language by a panel of three arbitrators appointed in accordance with such rules, and shall be held in San Francisco, California. The arbitrators will be instructed to issue detailed written findings of fact and law. The arbitrators will be authorized to provide for interim and final injunctive relief and the parties acknowledge and agree that such arbitration will be the sole forum for such interim and final injunctive relief. The arbitrators will have the right but not the obligation to award to the prevailing party the cost of resolving any dispute regarding this Agreement or the formation, breach, enforcement or performance hereof, including any reasonable fees of attorneys, accountants and expert witnesses incurred by the prevailing party. Punitive damages will not be recoverable in any arbitration initiated pursuant to this Agreement. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. 10.6 HEADINGS. The headings of the several sections of this Agreement are inserted for convenience and reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. 10.7 AMENDMENT. No amendment or modification hereof shall be valid or binding upon the parties unless made in writing signed by both parties. 10.8 INTEGRATION. This Agreement, along with any written addenda, amendments, or modifications signed by both parties referencing this Section 10.8, embodies the entire, complete and exclusive understanding of the parties hereto and supersedes all previous communications, representations or understandings, either oral or written, between the parties hereto relating to the subject matter hereof. 10.9 TERMINATION OF OLD AGREEMENT. The Old License Agreement is hereby terminated as of the Effective Date (except as to the agreements contained therein between the Joint Venture and BASF, which are not affected by this Agreement). 10.10 WAIVER. Any waiver by either party of any breach of this Agreement shall not constitute a waiver of any subsequent or other breach. ______________________ *CONFIDENTIAL TREATMENT REQUESTED 9. 10 10.11 SEVERABILITY. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. IN WITNESS WHEREOF, Lynx and the Joint Venture have executed this Agreement, in triplicate originals but collectively evidencing only a single contract. LYNX THERAPEUTICS INC. By: /s/ Edward C. Albini ---------------------------------------------- Edward C. Albini Title: Chief Financial Officer ------------------------------------------- BASF-LYNX BIOSCIENCE AG By: /s/ Dr. Alfred Bach ---------------------------------------------- Dr. Alfred Bach Title: Vorstand (CEO) ------------------------------------------- 10. -----END PRIVACY-ENHANCED MESSAGE-----