{"id":42641,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/orchid-biosciences-affymetrix-collaboration-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"orchid-biosciences-affymetrix-collaboration-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/orchid-biosciences-affymetrix-collaboration-agreement.html","title":{"rendered":"Orchid Biosciences &#8211; Affymetrix: Collaboration Agreement"},"content":{"rendered":"<pre>\n\n                            CONFIDENTIAL TREATMENT\n                            ----------------------\n\nORCHID BIOSCIENCES, INC. HAS REQUESTED THAT THE MARKED PORTIONS OF THIS DOCUMENT\n    BE ACCORDED 406 CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE \n                      SECURITIES ACT OF 1933, AS AMENDED.\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n             EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n\n                                                                  Execution Copy\n\n                            COLLABORATION AGREEMENT\n\n                                 BY AND BETWEEN\n\n                            ORCHID BIOCOMPUTER, INC.\n\n                                      AND\n\n                                AFFYMETRIX, INC.\n\n                               NOVEMBER 05, 1999\n                                        \n\n\n                                                                  Execution Copy\n\n                            COLLABORATION AGREEMENT\n\n          This COLLABORATION AGREEMENT (this \"Agreement\"), effective as of\nNovember 5, 1999 (the \"Effective Date\"), is by and between Orchid Biocomputer,\nInc., a Delaware corporation having a place of business at 303 College Road\nEast, Princeton, New Jersey 08540 (hereinafter referred to as \"ORCHID\") and\nAffymetrix, Inc., a Delaware corporation having its principal place of business\nat 3380 Central Expressway, Santa Clara, California 95051 (hereinafter referred\nto as \"AFFYMETRIX\").\n\n      The Parties hereby agree as follows:\n\n1.    DEFINITIONS\n      -----------\n      As used in this Agreement, the following terms, whether used in the\nsingular or plural, shall have the following meanings:\n\n    \n      1.1 \"AFFYMETRIX Collaboration Technology\" means any Technology developed\nor conceived by employees of or consultants to AFFYMETRIX alone or jointly with\nThird Parties, during the Term in the conduct of the Collaboration.\n\n      1.2 \"Affiliate\" of a Party means any corporation or other business entity,\nwhich controls, is controlled by, or is under common control with, a Party. For\npurposes of this Section, \"control\" shall mean direct or indirect ownership of\nmore than 50% of the voting interest or economic interest in a corporation or\nmore than 50% of the equity interests in the case of any other entity, or such\nother relationship whereby a party controls or has the right to control the\nBoard of Directors or equivalent governing body of a corporation or other\nentity.\n\n      1.3 \"Approved Instruments\" means one or more AFFYMETRIX scanners and\nassociated instruments and software, as such instrumentation is then\ncommercially available from AFFYMETRIX.\n\n      1.4 \"Clinical Use\" means any use of a Product as part of the prevention,\ndiagnosis or treatment of any disease or condition in a patient and all\ngovernment (i.e., FDA or equivalent foreign governmental body) regulated\ndiagnostic uses in which the result is used in treatment of such patient.\n\n      1.5 \"Collaboration\" means the Product research, development and\ncommercialization program jointly conceived, planned, organized, controlled and\nperformed by ORCHID and AFFYMETRIX pursuant to this Agreement.\n\n      1.6 \"Combination Kit\" means any Custom Kit that contains Primers more than\n50% of which are identical to Primers contained in any part of any Standard Kits\nexisting at the time of launch of such Custom Kit, or any combination of\nStandard Kits existing at the time of launch of such Custom Kit.\n\n      1.7 \"Collaboration Management Committee\" or \"CMC\" means the committee\ndefined in Section 2 to aid in the joint collaborative effort to develop and\ncommercialize Products. \n\n      1.8 \"Commercial Probe Arrays\" means TAG Arrays sold by AFFYMETRIX to Third\nParties in conjunction with (although they may be separately packaged from) an\nORCHID OEM Kit.\n\n      1.9 \"Confidential Information\" means all information and materials,\npatentable or otherwise, of a Party and which is disclosed by or on behalf of\nsuch Party (the \"Disclosing Party\") to the other Party (the \"Receiving Party\")\nor developed, learned or obtained by the Receiving Party in connection with the\nCollaboration or otherwise under this Agreement, including, but not limited to,\nbusiness, technical or financial information, DNA sequences, vectors, cells\nsubstances, formulations, techniques, methodology, equipment, data, \n\n                                     Page 1\n\n                                                                  Execution Copy\n \n\nreports, know-how, preclinical and clinical trials and the results thereof,\nsources of supply, patent positioning and business plans, including any negative\ndevelopments, whether or not related to the Collaboration.\n\n      1.10 \"Contract Year\" means any year during the Term of this Agreement\ncommencing on the Effective Date or any anniversary of the Effective Date and\nending on the anniversary thereof.\n\n      1.11 \"Control\" or \"Controlled\" means, with respect to any Technology, the\npossession by a Party of the ability to grant a license or sublicense of such\nTechnology as provided herein without violating the terms of any agreement or\narrangement between such Party and any Third Party.\n\n      1.12 \"Custom Kit\" means a kit consisting of certain Reagents, certain\nPrimers that have been customized by Orchid or Orchid's subcontractors for use\nin the Field of Use and an End User License, and shall not include use of or\nrefer to any use of TAG Arrays other than for genotyping with GBA.\n\n      1.13 \"Custom Kit Information\" means [*]\n\n      1.14 \"End User\" means any Third Party licensed to use a Product pursuant\nto an End User License received in connection with the purchase by such Third\nParty of a Product.\n\n      1.15 \"End User License\" means a limited non-transferable license in form\nand substance as set forth in Schedule 1.15 hereto, granted by ORCHID to End\n                              -------------\nUsers under ORCHID End User Technology to use only the amount of the material\nincluded in the Product in the Field of Use.\n\n      1.16 \"Field of Use\" means [*]\n\n      1.17 \"Generic Kit\" means a kit consisting of Reagents and an End User\nLicense.\n\n      1.18 \"Joint Technology\" means any Technology (i) developed or conceived by\nemployees of or consultants to one Party as a result of the use by such Party of\nTechnology of the other Party or any Joint Technology or (ii) jointly developed\nby employees of or consultants to both ORCHID and AFFYMETRIX in the conduct of\nthe Collaboration.\n\n      1.19 \"Net Sales\" [*]\n\n      1.20 \"ORCHID End User Technology\" means Technology Controlled by ORCHID as\nof the Effective Date that is useful to practice the End User License, as listed\nor described on Schedule 1.20 attached hereto.\n                -------------\n\n      1.21 \"ORCHID OEM Kits\" means Standard Kits or Generic Kits.\n\n                                     Page 2\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n\n\n                                                                  Execution Copy\n\n      1.22 \"ORCHID Licensed Technology\" means Technology Controlled by ORCHID\nand its Affiliates as of the Effective Date that is useful in the Field of Use,\nas listed or described on Schedule 1.22 attached hereto. ORCHID represents and\n                          -------------\nwarrants that the items listed on Schedule 1.22 hereto comprise all of the\n                                  -------------\nORCHID Licensed Technology as of the Effective Date of this agreement. As of the\nEffective Date the Orchid Licensed Technology does not require payment of\nroyalties to third parties. Orchid and its Affiliates will amend this Schedule\n1.22 from time to time to keep it current. ORCHID and its Affiliates warrant\nthat all Controlled Technology for carrying out the marketing, sale, and other\ndisposition of Products will be included in the ORCHID Licensed Technology.\n\n      1.23 \"ORCHID Collaboration Technology\" means any Technology developed or\nconceived by employees of or consultants to ORCHID alone or jointly with Third\nParties, during the Term in the conduct of the Collaboration.\n\n      1.24 \"Product\" means any of a Standard Kit, a Custom Kit and\/or a Generic\nKit. \n\n      1.25 \"Party\" means AFFYMETRIX or ORCHID; \"Parties\" means AFFYMETRIX and\nORCHID .\n\n      1.26 \"Primer\" means GBA primers [*]\n\n      1.27 \"Project Director(s)\" means the senior scientists for the\nCollaboration designated from time to time by AFFYMETRIX and ORCHID. \n\n      1.28 \"Reagent\" means buffers, enzymes and terminators (but not Primers)\nuseful in GBA.\n\n      1.29 \"Research Purposes\" means the detection and analysis of SNPs in\nsamples, such definition includes all non-government (i.e., FDA or equivalent\nforeign governmental body) regulated diagnostic uses.\n\n      1.30 \"SNP\" means Single Nucleotide Polymorphism. \n\n      1.31 \"Standard Kit\" means a kit consisting of Reagents, CMC Approved\nPrimers for use in the Field of Use and an End User License.\n\n      1.32 \"Technology\" means and includes all inventions, discoveries,\nimprovements, trade secrets and proprietary methods and materials, whether or\nnot patentable, including but not limited to, samples of, methods of production\nor use of, and structural and functional information pertaining to, chemical\ncompounds, proteins or other biological substances; other data; formulations;\ntechniques; and know-how; including any negative results.\n\n      1.33 \"GBA\" means Genetic Bit Analysis, or single nucleotide primer\nextension methods designed to detect the identity of a single nucleotide at a\npredetermined location in the DNA of a sample.\n\n      1.34 \"TAG Array\" means a tag array GeneChip probe array. [*]\n\n      1.35 \"TAG Assay\" means any assays for hybridization to a TAG Array. \n\n                                     Page 3\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n\n                                                                  Execution Copy\n\n      1.36 \"Term\" means the period beginning on the Effective Date and ending on\nthe fifth anniversary thereof unless otherwise extended or terminated as\nprovided herein.\n\n      1.37 \"Specifications\" means the specifications for ORCHID OEM Kits\nestablished by the CMC and set forth on Schedule 1.37 attached hereto, as such\n                                        -------------\nspecifications may be amended from time to time by the CMC.\n\n      1.38 \"Third Party\" means any person or entity other than ORCHID and\nAFFYMETRIX and their respective Affiliates.\n\n      1.39 \"Workplan\" means any CMC-approved plan for collaborative research and\ndevelopment of Products to be conducted under this Agreement. The Initial\nWorkplan is set forth in Schedule 1.39 to this Agreement and shall commence upon\n                         -------------\napproval by the newly formed CMC.\n\n2.    THE COLLABORATION \n      ------------------ \n   \n      2.1 Purpose.\n\n      The purpose of the Collaboration is to develop, manufacture, market and\nsell (i) Products, and (ii) software applications for Approved Instruments all\nas set forth in Schedule 1.39. The purpose of the Collaboration may be modified\nand\/or extended upon mutual agreement of the Parties in writing.\n\n      2.2 Collaboration Management Committee and General Operations. \n\n            (a) CMC. Each Party shall appoint a Project Director who shall serve\n                ---\n      as such Party's primary liaison with the other Party to discuss technical\n      matters pertaining to the Collaboration. The Parties shall also establish\n      the CMC composed of two or more representatives appointed by AFFYMETRIX\n      and two or more representatives appointed by ORCHID. A Party's\n      representatives shall serve at the discretion of such Party and may be\n      replaced at any time by such Party. Each Party, by its representative(s),\n      shall have one vote on the CMC. The CMC will coordinate the joint\n      collaborative efforts to achieve the purpose of the Collaboration. The CMC\n      will have general responsibility for directing both the commercial\n      development of ORCHID OEM Kits developed and supplied hereunder, and the\n      research effort of the Collaboration, and for monitoring the work done and\n      costs incurred pursuant to the Collaboration. In addition, the CMC shall\n      establish the mechanism and procedures through which each Standard Kit is\n      approved for, and developed under, the Collaboration; [*] The initial\n      meeting of the CMC shall occur no later then 30 days after the Effective\n      Date of this Agreement, and among other things, such initial meeting shall\n      consist of formal approval of the Initial Workplan (and each of the\n      parties hereby agrees to cause its representatives on the CMC to vote in\n      favor of such Initial Workplan, without modification.) The CMC will review\n      the Workplans for the subsequent Contract Years during the Term of the\n      Collaboration at least 60 days prior to the start of each subsequent\n      Contract Year and make any modifications as may be required prior to\n      granting its approval. \n\n            (b) Meetings. During the Collaboration, the CMC shall meet at least\n                --------\n      quarterly. The site of CMC meetings shall alternate between the offices of\n      AFFYMETRIX and ORCHID (or any other site or by teleconference as mutually\n      agreed upon by the CMC). Whenever any action by the CMC is called for\n      hereunder during a time period in which the CMC is not scheduled to meet,\n      a representative of either Party may cause the CMC to take the action in\n      the requested time period by calling a special meeting or written\n      agreement to take such by action without a meeting. The proceedings of all\n      meetings of the CMC shall be summarized in writing and sent to both\n      Parties. The Party hosting the meeting shall be responsible for the\n      preparation and circulation of such summaries. Draft summaries shall be\n      issued in final form only upon approval by the CMC at a subsequent meeting\n      or as evidenced by the signature of a majority of the representatives of\n      the CMC. Each Party shall bear all expenses of their respective CMC\n      representatives related to their participation on the CMC and attendance\n      at CMC meetings. \n\n                                     Page 4\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n\n                                                                  Execution Copy\n\n\n            (c) Collaboration Operations. The Collaboration shall be conducted\n                ------------------------\n      at and\/or coordinated from the facilities of each Party under the\n      supervision and direction of its Project Director. Each Party shall be\n      responsible for the administrative management, fiscal control, and\n      expenses incurred by it for tasks assigned to it in each Workplan. Each\n      Party shall assemble a team of scientists, engineers, technical associates\n      and\/or assistants. So long as the Collaboration continues, any Party\n      performing work under a Workplan that is funded by the other Party shall\n      periodically (at least quarterly) provide to the other Party written\n      progress reports summarizing the technical progress of such work, and\n      associated costs relating to such work. Each Party also shall provide the\n      other Party through the CMC with additional oral progress reports as\n      requested from time to time by the other Party. \n\n            (d) Generic Kit and Standard Kit Proposals. During the Term,\n                --------------------------------------\n      AFFYMETRIX may designate up to [*] Standard Kits that are each\n      comprised of a standard assay with up to [*], and other components, all of\n      which are selected by AFFYMETRIX, and the transfer price of such new\n      Standard Kits. Schedule 1.39 more particularly identifies such kits\n                     -------------\n      including the markers and transfer price [*] and shall be deemed Standard\n      Kits that have been approved by the CMC, except that such transfer prices\n      shall be [*], and the parties shall use all commercially reasonable\n      efforts to promptly complete development of such kits and the CMC shall\n      agree on the transfer price. In addition, during the Term of the\n      Collaboration, either Party may, in its sole discretion, propose that new\n      Generic Kits or new Standard Kits be developed by the Collaboration by\n      providing written notice thereof (including the transfer price of each\n      such kit) to the CMC (such notice being referred to herein as the \"New Kit\n      Notice\"), which notice shall include a reasonable description of the\n      proposed specifications, components and the transfer price of such new\n      Generic Kit or Standard Kit. If ORCHID is the Party proposing the\n      development of a new Generic Kit or Standard Kit, and Affymetrix does not,\n      within sixty (60) days after receipt of such New Kit Notice expressly\n      agree to co-develop the new Generic Kit or Standard Kit described therein,\n      then ORCHID may pursue development of the new Generic Kit or Standard Kit\n      independently of AFFYMETRIX (provided that no express or implied license\n      to AFFYMETRIX intellectual property is conveyed thereby.) If AFFYMETRIX is\n      the Party proposing the development of a new Generic Kit or a new Standard\n      Kit, and Orchid does not, within sixty (60) days after receipt of such New\n      Kit Notice expressly agree to co-develop the new Generic Kit or new\n      Standard Kit described therein, then AFFYMETRIX may pursue development of\n      the new Generic Kit or new Standard Kit independently of ORCHID,and the\n      licenses granted to AFFYMETRIX under Section 3.1 (and Section 4.1(b))\n      shall include the right to directly and indirectly develop, make, use,\n      market, sell and distribute such kits. In such case, AFFYMETRIX shall pay\n      ORCHID a royalty of [*] of Net Sales of such kit unless the Parties agree\n      in writing to a lower rate; provided, that [*] provided that reductions\n      shall roll forward, if necessary, so that payments to ORCHID are not\n      reduced to less than [*] of what they would have been in the absence of\n      this provision.\n\n            (e) Custom Kits. ORCHID shall provide AFFYMETRIX with quarterly\n                -----------\n      written reports containing Custom Kit Information relating to Custom Kits\n      sold by ORCHID; subject, in each case, to any confidentiality obligations\n      of ORCHID to such customers of such Custom Kits. Either Party will be free\n      to use it to promote the sale of other products or services with such\n      information. \n\n                  (i) Royalties on Combination Kits. ORCHID shall pay to\n                      -----------------------------\n            AFFYMETRIX a per kit royalty on ORCHID's Net Sales of Combination\n            Kits equal to [*] of Net Sales of each Combination Kit, reduced by\n            the fraction:\n            [*]\n\n                  (ii) Conversion of Custom Kits to Standard Kits. ORCHID agrees\n                       ------------------------------------------\n            that, at AFFYMETRIX's option upon written notice to ORCHID at any\n            time after the Conversion Date (as defined below), any Custom Kit\n            sold to a given customer or group of customers for which sales in\n            any Contract Year \n\n                                     Page 5\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n\n                                                                  Execution Copy\n \n            exceeds [*] will, effective the first day of the first\n            calendar quarter following the Contract Year in which such event\n            occurred (the \"Conversion Date\") become a Standard Kit (each, a\n            \"Converted Kit\"); provided that, the Parties hereby agree that (i)\n                              -------------\n            under no circumstances shall a Custom Kit convert to a Converted Kit\n            if such conversion would violate the terms of the applicable\n            agreement between ORCHID and such customer or customers or if such\n            Custom Kit contains primers for the analysis of SNPs that are owned\n            either by such customer or owned by ORCHID but limited to use by\n            such customer, and are subject to restrictions on use by third\n            parties (provided, however, ORCHID shall use commercially reasonable\n            efforts to ensure that any primers contained in such Custom Kits are\n            free of restrictions on use), and (ii) Custom Kits shall convert to\n            Converted Kits on an individual basis, with reference to the\n            Specifications of such Custom Kit. If, with respect to a Converted\n            Kit, the CMC concludes that at the Conversion Date ORCHID has not\n            recovered the [*] incurred by ORCHID in developing such Custom Kit,\n            then the CMC may require AFFYMETRIX to pay a conversion fee in an\n            amount not to exceed [*]) in an amount and payment schedule\n            determined by the CMC. ORCHID may until the end of the sixth month\n            following immediately after the Conversion Date sell its inventory\n            of Converted Kits. Thereafter, ORCHID will cease all distribution\n            activities relating to such Converted Kit, and shall transfer all\n            remaining inventory of Converted Kits to AFFYMETRIX at the transfer\n            price established for such Converted Kit by the CMC. Once a\n            conversion occurs, the parties will negotiate reasonable commercial\n            performance standards for AFFYMETRIX's sales of Converted Kits.\n\n                  (iii) Standard Kits Analyte Specific Reagents Status. Within\n                        ----------------------------------------------\n            180 days after commercial release of each Standard Kit, but not\n            before nine month anniversary of the Effective Date, ORCHID will use\n            all commercially reasonable efforts to ensure that each Standard Kit\n            shall be manufactured as an analyte specific reagent in accordance\n            with 21 CFR 864. In addition, ORCHID will use all commercially\n            reasonable efforts to take all steps necessary or desirable to\n            ensure that the Standard Kits manufactured and sold hereunder meet\n            other applicable standards, such as ISO 9000, as soon as\n            practicable.\n\n      2.3 Specific Development Duties. \n\n      (a) Development Obligations. The Parties shall use commercially reasonable\n          -----------------------\nefforts to fulfill their respective obligations as set forth in each Workplan in\naccordance with the time schedules set forth therein. AFFYMETRIX and ORCHID\nagree to work cooperatively and expeditiously to make such modifications to the\ndesign of Products as may be required to reduce total costs and\/or improve\nProduct performance. Notwithstanding the foregoing, it is hereby agreed that\nORCHID shall have sole responsibility for the development of Custom Kits. With\nrespect to the Initial Workplan, ORCHID shall be responsible for over-all ORCHID\nOEM Kit development, including, assay development and optimization,\namplification technology development, and regulatory approval, as the CMC\ndetermines to be appropriate. Specifically ORCHID shall (1) develop generic and\nstandard TAG Assays with consultation from Affymetrix, (2) provide AFFYMETRIX\nthe GBA specific analysis algorithms as set forth in Schedule 1.39, and (3)\nassist AFFYMETRIX in integrating the foregoing into the AFFYMETRIX Approved\nInstrument systems. With respect to the Initial Workplan, AFFYMETRIX shall be\nresponsible for TAG Array design and production and Approved Instrument software\nintegration and analysis. \n\n      (b) Development Costs of ORCHID OEM Kits, Custom Kits and Certain Standard\n          ----------------------------------------------------------------------\nKits. As between the Parties, (i) ORCHID shall be responsible for all\n----\ndevelopment costs and expenses associated with the development of the ORCHID\nGeneric Kits (exclusive of any internal development costs and expenses incurred\nby AFFYMETRIX), (ii) the Parties shall share all development costs and expenses\nassociated with the development of Standard Kits for which development has been\napproved by the CMC in the manner and proportion agreed upon by the CMC and\n(iii) AFFYMETRIX shall be responsible for all of its own development costs and\nexpenses associated with the development of the software for the ORCHID OEM\nKits. With respect to any Kit developed pursuant to Section 2.2(d), the Party\ndeveloping such Standard Kit shall be solely responsible for all costs and\nexpenses associated with developing such Standard Kit. \n\n      (c) Training. ORCHID will provide AFFYMETRIX reasonable training in the\n          --------\nuse of ORCHID OEM Kits at ORCHID's facility in Princeton, New Jersey. It is\nanticipated that such training will take place over approximately a two- week\nperiod and will involve two scientists from AFFYMETRIX and 2 scientists from\nORCHID. AFFYMETRIX will provide ORCHID reasonable training in the use of its TAG\nArrays at AFFYMETRIX's facility in Santa Clara, California. It is anticipated\nthat such training will take place over \n\n                                     Page 6\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n \n                                                                  Execution Copy\n\n\napproximately a two-week period and will involve 2 scientists from ORCHID and\ntwo scientists from AFFYMETRIX \n\n      (d) Use of Instruments and TAG Arrays During Development. During\n          ----------------------------------------------------\ndevelopment of an ORCHID OEM Kit pursuant to a Workplan, ORCHID may purchase TAG\nArrays and Approved Instruments from AFFYMETRIX; provided, that any TAG Arrays\npurchased from AFFYMETRIX may be used only to perform internally (without the\nassistance of Third Party unless AFFYMETRIX gives its prior written agreement)\nthe development activities expressly described in the Workplan, and for no other\npurpose. AFFYMETRIX agrees to sell such items to ORCHID at the list prices set\nforth in Schedule 2.3(d). All payments due hereunder to AFFYMETRIX shall be paid\nto AFFYMETRIX within thirty (30) days following of the date of the applicable\nAFFYMETRIX invoice.\n\n3.    DISTRIBUTION AND MARKETING\n      --------------------------\n\n      3.1 Marketing Rights and Responsibilities. \n\n      (a) ORCHID OEM Kit License Grants. ORCHID hereby grants AFFYMETRIX, under\n          -----------------------------\nthe ORCHID Licensed Technology and upon the terms and subject to the conditions\nspecified herein, an exclusive, non-transferable, worldwide, royalty-free right\nand license to (a) use ORCHID OEM Kits internally for research and development\npurposes, and (b) directly and indirectly offer for sale, market, distribute,\ndemonstrate and sell ORCHID OEM Kits. \n\n      (b) ORCHID Information License Grant. ORCHID hereby grants AFFYMETRIX\n          --------------------------------\nunder ORCHID's intellectual property rights, and upon the terms and subject to\nthe conditions specified herein, an exclusive, non-transferable, worldwide,\nroyalty-free right and license to use, reproduce and modify information and\nmaterials provided by ORCHID to create marketing and related sales materials for\nthe Orchid OEM Kits, and to directly and indirectly distribute such information\nand materials (whether in modified or unmodified form) to third parties. \n\n      (c) The transfer price for ORCHID OEM Kits developed under the Initial\nWorkplan and to be paid by AFFYMETRIX to ORCHID is set forth in Schedule 2.3(d)\n                                                                ---------------\nattached hereto, which transfer price may be reviewed every Contract Year during\nthe Term by ORCHID upon sixty (60) days written notice to AFFYMETRIX. The\ntransfer price to be paid to ORCHID by AFFYMETRIX for ORCHID OEM Kits developed\nunder other Workplans shall be established and set forth in such Workplans.\nAFFYMETRIX may from time to time request a discount for ORCHID OEM Kits with\nrespect to large volume customers or other special situations and the Parties\nshall negotiate any such discount in good faith. AFFYMETRIX shall assume the\nrisk of payment from purchasers of ORCHID OEM Kits and AFFYMETRIX shall be free\nto determine the price at which it resells ORCHID OEM Kits to such purchasers.\nIn the event AFFYMETRIX sells an ORCHID OEM Kit for more than [*] then\nAFFYMETRIX agrees to pay ORCHID an amount equal to [*] provided, however, that\nif AFFYMETRIX sells an ORCHID OEM Kit for more [*], then AFFYMETRIX agrees to\npay ORCHID an additional amount equal to [*] No employee or representative of\nORCHID shall have any authority to dictate to AFFYMETRIX or its dealers the\nresale prices for ORCHID OEM Kits or in any way to inhibit their pricing\ndiscretion with respect to ORCHID OEM Kits; provided, that, AFFYMETRIX shall\n                                            --------  ----\nremain liable and responsible for the performance and observance of all of its\nauthorized dealer's duties and obligations in accordance with the terms of this\nAgreement. AFFYMETRIX shall have responsibility for marketing and providing\nsupport directly to customers for ORCHID OEM Kits.\n\n            (i) During the Term of this Agreement, AFFYMETRIX shall obtain\n      ORCHID OEM Kits exclusively from ORCHID and may not and therefore shall\n      not manufacture ORCHID OEM Kits except as otherwise permitted by this\n      Agreement. \n\n                                     Page 7\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n\n                                                                  Execution Copy\n\n\n            (ii) The Parties hereby acknowledge and agree that all sales of\n      ORCHID OEM Kits to AFFYMETRIX shall be controlled by the terms contained\n      in this Agreement and the terms and conditions of the respective business\n      forms of the Parties shall not form part of this Agreement. \n\n      (d) Minimum Sales Amounts. The CMC will establish minimum sales amounts\n          ---------------------\nfor ORCHID OEM Kits at least thirty (30) days prior to the end of each Contract\nYear during the Term for the following Contact Year, which minimum sales shall\nbe included in the Initial Workplan and in each subsequent Workplan approved by\nthe CMC. If AFFYMETRIX does not achieve established minimum sales amounts for\ntwo consecutive calendar quarters, then ORCHID, in its sole discretion, may\nconvert the exclusive license granted pursuant to section 3.1(a) to a\nnon-exclusive license with respect to that certain ORCHID OEM Kit. AFFYMETRIX\nmay terminate its exclusive license or convert said licenses to a non-exclusive\nlicense at any time. In the event that the license is converted to a\nnon-exclusive license pursuant to this section, AFFYMETRIX's minimum sales\nrequirements for such ORCHID OEM Kit will no longer apply. \n\n      (e) Marketing and Distribution of Custom Kits. Except as otherwise\n          -----------------------------------------\ndescribed in this Agreement, ORCHID shall be solely responsible for\nmanufacturing, marketing and distributing Custom Kits to customers throughout\nthe world. \n\n      (f) Customer Ordering Procedure; Website. ORCHID may provide a website for\n          ------------------------------------\ncustomers to order Custom Kits. If customer indicates on such website that\ncustomer desires to purchase an ORCHID OEM Kit, ORCHID shall transfer such\ncustomer to AFFYMETRIX's designated website through a hyperlink in the manner\nrequested by AFFYMETRIX and to the location within AFFYMETRIX's website\ndesignated by AFFYMETRIX. If a customer indicates that it desires to purchase a\nCustom Kit, and ORCHID desires to sell such customer a Custom Kit, ORCHID shall\nwithin 5 days of receipt of such order provide to AFFYMETRIX all Custom Kit\nInformation related to such customer's purchase (including, but not limited to\nprojected delivery dates) to enable AFFYMETRIX to coordinate sale of applicable\nAFFYMETRIX products to such customer. At such time, ORCHID shall provide\nAFFYMETRIX with the complete written specifications of such Custom Kit, subject\nin each such case to any confidentiality obligation ORCHID may have to any Third\nParty (and provided that ORCHID shall use commercially reasonable efforts to\nminimize such obligations), which information AFFYMETRIX may use to determine\nappropriate instrumentation and to promote the sale of other AFFYMETRIX\nproducts. To the extent that such information is Confidential Information of\nORCHID, AFFYMETRIX shall not disclose such information to any third party. In\naddition, to assist AFFYMETRIX with its marketing efforts with respect to the\nCustom Kits, ORCHID shall on a regular basis (at least once each calendar\nquarter) provide AFFYMETRIX with current marketing and sales information\nrelating to the Custom Kits, which may include research, analysis, customer and\ndistribution information and competitive analysis, to the extent not subject to\nconfidentiality obligations to Third Parties. All such materials shall remain\nthe property of ORCHID. AFFYMETRIX also shall be responsible for distributing\nand selling the TAG Arrays and Approved Instruments identified in Schedule 1.39\nas required for use of such Custom Kits to purchasers of Custom Kits, provided\nthat such customers order and pay for such items according to AFFYMETRIX's\nstandard terms and conditions therefor. \n\n      (g) Joint Marketing Activities. Through the CMC, the Parties shall\n          --------------------------\ncoordinate all marketing and promotion of Products and tag arrays distributed by\nthe respective Parties to potential customers of SNP analysis products.\n\n      3.2 Product Maintenance and Support.\n          -------------------------------\n\n      (a) Generic Kit and Standard Kit. The CMC shall determine the specific\n          ----------------------------\nmechanics of providing maintenance and support for the products marketed and\ndistributed pursuant to this Agreement. However, AFFYMETRIX shall be generally\nresponsible for front-line customer support for all Products except the Custom\nKits, and ORCHID shall provide backline support, as and when requested by\nAFFYMETRIX, for ORCHID OEM Kits. Specifically, ORCHID shall provide such support\ndirectly to one or more designated support managers of AFFYMETRIX. With respect\nto ORCHID OEM Kits, ORCHID shall provide support and maintenance services to\nAFFYMETRIX as further specified by and consistent with the level of support\nprovided by AFFYMETRIX with respect to AFFYMETRIX instruments, and there shall\nbe no fee to ORCHID (other than the transfer price for the kits) for rendering\nsuch support. \n\n                                     Page 8\n\n                                                                  Execution Copy\n\n      (b) Custom Kits. ORCHID shall have responsibility for marketing and\n          -----------\nsupporting Custom Kits. ORCHID shall use commercially reasonable efforts to\nmarket (including, without limitation, inclusion of the Custom Kits in ORCHID's\ncatalogs and other promotional materials), distribute and support the Custom\nKits (including installation, training, and agrees to provide reasonable support\nfor customers and AFFYMETRIX as reasonably requested by AFFYMETRIX), and shall\nuse commercially reasonable efforts to meet market demands for Custom Kits, and\nto provide support for Custom Kits. However, AFFYMETRIX shall provide backline\nsupport, as and when requested by ORCHID for AFFYMETRIX instruments and tag\narrays used by purchasers of Custom Kits. Specifically, AFFYMETRIX shall provide\nsuch support directly to one or more designated support managers of ORCHID\nconsistent with the level of support provided by AFFYMETRIX with respect to\nAFFYMETRIX Approved instruments and Tag Arrays, and there shall be no fee to\nAFFYMETRIX for rendering such support. If at any time during the Term of this\nAgreement, ORCHID elects to discontinue or transfer to a third party the\nmanufacture, sale or marketing any Custom Kit pursuant to this Agreement, ORCHID\nshall notify AFFYMETRIX in writing, and AFFYMETRIX shall have 30 days to advise\nORCHID of its interest in manufacturing and\/or distributing and selling such\nCustom Kit during the Term. If AFFYMETRIX advises ORCHID of its interest, then\nthe Parties shall negotiate for 60 days in good faith to determine the\nappropriate royalty or other fee (if any) that AFFYMETRIX shall pay to ORCHID.\nIf the parties cannot reach agreement within such period, then ORCHID may\ndiscontinue manufacture and sale of such Custom Kit or transfer such kit to a\nthird party, provided that if ORCHID elects to transfer such kit to a third\nparty, the royalty or other fees paid by such third party must be higher than\nthe royalty or other fees last offered by AFFYMETRIX. \n\n      (c) Reports. Each Party shall provide the other Party with such\n          -------\ninformation about their respective products and services as is reasonably\nnecessary to support the development and marketing of technical support\nmaterials, and the training of technical support personnel for ORCHID OEM Kits.\n(d) Rights to Sell Kits. ORCHID represents, warrants and covenants that the\nrestrictions set forth in the Security Agreement dated September 11, 1998 by and\namong ORCHID and GeneScreen, Inc. (\"GeneScreen Security Interest\") are the only\nrestrictions imposed on ORCHID with respect to the manufacture, use,\ndistribution, modification or sale by AFFYMETRIX or use by AFFYMETRIX's end\nusers of ORCHID OEM Kits or the Custom Kits. In the event that the obligations\nof ORCHID with respect to any such restriction is reduced, ORCHID shall promptly\nnotify AFFYMETRIX, and promptly provide AFFYMETRIX with any information\nrequested by AFFYMETRIX with respect to such restriction. If Orchid believes\nthat it needs to access third party intellectual property in order to avoid\nencumbering its ability to sell Orchid OEM Kits to AFFYMETRIX, it will discuss\nthis with the CMC. If no CMC agreement is reached within 30 days, then Orchid\ncan enter into a license at its discretion, provided that Affymetrix's rights\nunder this agreement will not be limited by such license. \n\n      (d) Rights to Sell Kits. ORCHID represents, warrants and covenants that\n          -------------------\nthe restrictions set forth in the [*] are the only restrictions imposed on\nORCHID with respect to the manufacture, use, distribution, modification or sale\nby AFFYMETRIX or use by AFFYMETRIX's end users of ORCHID OEM Kits or the Custom\nKits. In the event that the obligations of ORCHID with respect to any such\nrestriction is reduced, ORCHID shall promptly notify AFFYMETRIX, and promptly\nprovide AFFYMETRIX with any information requested by AFFYMETRIX with respect to\nsuch restriction. If Orchid believes that it needs to access third party\nintellectual property in order to avoid encumbering its ability to sell Orchid\nOEM Kits to AFFYMETRIX, it will discuss this with the CMC. If no CMC agreement\nis reached within 30 days, then Orchid can enter into a license at its\ndiscretion, provided that Affymetrix's rights under this agreement will not be\nlimited by such license.\n\n[*]\n\n4.    MANUFACTURING \n      ------------- \n\n      4.1 Forecast and Supply. \n          -------------------\n\n      (a) Forecasts. At the end of each calendar quarter during the term of this\n          ---------\nagreement, AFFYMETRIX shall submit to ORCHID a [*] month rolling\nforecast of its then current estimates of its requirements of ORCHID OEM Kits.\nAFFYMETRIX's forecasts shall reflect its good-faith expectations of customer\ndemand and AFFYMETRIX shall act in a commercially reasonable manner to schedule\norders to avoid creating production capacity problems for ORCHID. At the end of\neach calendar quarter during the Term of this Agreement, ORCHID shall submit to\nAFFYMETRIX a [*] month rolling forecast of its then current estimates of\nsales of Custom Kit, which forecast shall be delineated by prospective customer,\nso as to permit AFFYMETRIX to validate such customers and reasonably anticipate\nthe quantities of AFFYMETRIX products that \n\n                                     Page 9\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n\n                                                                  Execution Copy\n\nAFFYMETRIX may make available that are associated with such Custom Kit. ORCHID's\nforecasts shall reflect its good-faith expectations of customer demand. \n\n      (b) Supply. ORCHID shall supply ORCHID OEM Kits to AFFYMETRIX in\n          ------\naccordance with the purchase orders submitted to ORCHID by AFFYMETRIX, including\nthe delivery schedules specified therein; provided, that ORCHID shall not be\nrequired to fill any purchase orders from AFFYMETRIX requesting a delivery date\nearlier than [*] after receipt of such orders by ORCHID. ORCHID will maintain\nadequate production capacity to ensure delivery of ORCHID OEM Kits in accordance\nwith such purchase orders and shall ensure that ORCHID OEM Kits meet the\nSpecifications set by the CMC. ORCHID hereby grants AFFYMETRIX a, worldwide,\nnon-transferable, non-exclusive license under ORCHID Licensed Technology, to,\n(1) develop Generic Kits and Standard Kits as authorized in Section 2.2(d), (2)\nmake, have made, and use (which use includes the right to modify) Orchid OEM\nKits and (3) distribute, market and sell such ORCHID OEM Kits (\"OEM License\")\npursuant to the license granted to AFFYMETRIX as set forth in Section 3.1 (a).\nAFFYMETRIX agrees to forbear from the use and exercise of the OEM License unless\nand until ORCHID fails to fill any purchase order within [*] after receipt of\nsuch order, ORCHID has otherwise breached this Agreement, or ORCHID sells\nsubstantially all of ORCHID's business that relates to the subject matter of\nthis Agreement to a third party which Affymetrix believes in good faith\nmaterially competes with Affymetrix, or which Affymetrix believes in good faith\ncould not or would not satisfy its obligation hereunder. If AFFYMETRIX' use and\nexercise of the OEM License is caused by ORCHID'S failure to fill a purchase\norder (and no other reason), AFFYMETRIX' forbearance shall be reinstated once\nORCHID demonstrates to the reasonable satisfaction of AFFYMETRIX (which shall\nnot be unreasonably withheld) that ORCHID is again able to fill purchase orders\nwithin the time limits set forth in Section 4.1. During the time that AFFYMETRIX\nis not forbearing from use and exercise of the OEM License, ORCHID shall provide\npromptly (at no charge) to AFFYMETRIX or an approved third party designated by\nAFFYMETRIX, all technical assistance and information as reasonably required to\nenable AFFYMETRIX, or said third party, to supply OEM Kits as set forth in this\nSection. During the time that AFFYMETRIX is not forbearing from use and exercise\nof the OEM License, AFFYMETRIX will pay ORCHID a royalty of [*] of Net Sales of\nORCHID OEM Kits which fall under the new OEM License (which royalty shall be\nsubject to reduction in the manner and scope described in Section 2.2(d)) unless\nthe Parties agree in writing to a lower rate; provided, further, however, that\nif AFFYMETRIX'S use and exercise of the OEM License is caused by ORCHID'S\nfailure to fill a purchase order (and no other reason), and ORCHID resumes\nmanufacture of ORCHID OEM Kits under this Section, then the transfer price paid\nby AFFYMETRIX for such ORCHID OEM Kits shall be reduced by [*] until such time\nas AFFYMETRIX has recovered an amount equal to any costs and expenses incurred\nto exercise the OEM License (including any royalties paid under this Section.)\n\n      (c) Packaging; Delivery. The ORCHID OEM Kits delivered hereunder shall be\n          -------------------\npackaged as set forth in Schedule 4.1(c), with the names and logos of both\nParties prominently displayed on each package. ORCHID shall pack such items in\nstandard shipping containers in the manner requested by AFFYMETRIX. ORCHID shall\nassist AFFYMETRIX in obtaining any desired insurance (in amounts that AFFYMETRIX\nshall determine) and transportation, via air freight unless otherwise specified\nin writing, to any destinations specified in writing from time to time by\nAFFYMETRIX. [*]\n\n      (d) Payment. ORCHID shall invoice AFFYMETRIX for all ORCHID OEM Kits on or\n          -------\nafter the date specified for delivery in AFFYMETRIX's purchase order for such\nitems. AFFYMETRIX shall pay all amounts specified in such invoice not later than\nthirty (30) days following the date of such invoice. Any undisputed amounts not\npaid when due under this Agreement shall be subject to a late fee equal to [*]\nof the outstanding amount or the maximum rate permitted by law, whichever is\nless. \n\n      (e) Audit. In keeping with established bookkeeping and accounting\n          -----\npractices, each Party shall maintain, for a period of [*] following\nthe end of the Contract Year, complete and accurate books and records fully\nadequate to confirm the accuracy of the royalties, fees or commissions paid and\npayable under this Agreement. Each of the Parties shall have the right, [*] per\ncalendar year, or more frequently if an examination determines that there has\nbeen an underpayment of more than [*], during regular business hours and upon\n[*] prior written notice, to have its independent auditors make such\nexamination as necessary to \n\n                                    Page 10\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n                                                                  Execution Copy\n\n\nverify said records and books of account. In the event that such examination\nreveals an underpayment of royalties, fees or commissions payable hereunder, all\nsuch additional royalties, fees or commissions, as the case may be, together\nwith interest from the date when such additional royalties, fees or commissions\nwould have been due shall be paid within thirty (30) days of written notice from\nthe auditing party of such discrepancy. Any such audit shall be at the auditing\nParty's sole expense and performed by a nationally recognized, \"Big Five\"\naccounting firm under reasonable obligations of confidentiality. In the event\nthat an underpayment of more than [*] is discovered, then audited Party will\nreimburse the auditing Party's reasonable costs of the audit.\n\n      4.2  Acceptance\/Rejection of Deliverables.\n           ------------------------------------ \n\n      (a) Testing. AFFYMETRIX shall , in conjunction with the CMC, develop\n          -------\nprocesses for evaluation and testing of ORCHID OEM Kits to be delivered\nhereunder. Such processes may from time to time be reflected or incorporated in\nthe applicable Specifications for ORCHID OEM Kits. Orchid shall provide\ncertificates of analysis certifying completion of said testing and indicating\nparameters defined by the CMC. \n\n      (b) Acceptance Procedure; Inventory Carry. Upon delivery of any shipment\n          -------------------------------------\nof ORCHID OEM Kits to AFFYMETRIX, AFFYMETRIX shall promptly inspect the same and\nshall notify ORCHID in writing no later than [*] after receipt of each such\nshipment if any such shipment is found, on reasonable inspection, to be short\nagainst order or fails to conform to the Specifications during said [*] period.\nAFFYMETRIX may reject any portion of any shipment of ORCHID OEM Kits that does\nnot fully conform with the Specifications. If any shipment or portion thereof is\nrejected by AFFYMETRIX, ORCHID shall use diligent efforts, at AFFYMETRIX's\nrequest, to provide replacement ORCHID OEM Kits to AFFYMETRIX or to correct any\ndefects in such shipment as may be reasonably requested by AFFYMETRIX. Unless\nORCHID requests the return of a rejected shipment within [*] of receipt of\nAFFYMETRIX's notice of rejection, AFFYMETRIX shall destroy such shipment\npromptly and provide ORCHID with a certification of such destruction. To ensure\nthat the Parties can supply all third party requirements with accepted ORCHID\nOEM Kits, ORCHID shall at all times maintain an inventory of ORCHID OEM Kits\nthat is equal to at least [*] of the quantities of such products sold during the\npreceding calendar quarter; if no quantities of a product have been sold in the\npreceding calendar quarter, the ORCHID shall maintain an inventory level equal\nto at least [*] of AFFYMETRIX's forecasted quantities of such product for the\ncurrent calendar quarter. In addition, AFFYMETRIX may upon ninety (90) days'\nprior notice to ORCHID elect to terminate AFFYMETRIX's obligations to purchase,\nand ORCHID's obligations to supply, any such inventoried product. Any ORCHID OEM\nKit that does not meet all of the quality control and quality assurance\nrequirements, and any ORCHID OEM Kit that does not conform to Specifications as\nset forth in this Agreement, shall not be considered delivered.\n\n      4.3  Governmental Approval.\n           --------------------- \n\n      (a) The Parties agree to ascertain and comply with all applicable laws and\nregulations and standards of industry or professional conduct in connection with\nthe use, distribution or promotion of Products, including without limitation,\nthose applicable to exportation, importation, product claims, labeling,\napprovals, registrations and notifications. In addition, ORCHID agrees to obtain\nAFFYMETRIX's prior written consent to all claims, labels, instructions,\npackaging or the like for ORCHID OEM Kits, which consent shall not be\nunreasonably withheld. \n\n      (b) The Parties agree to keep (and make reasonably available for the other\nparty's use and copying) for five years after termination of this Agreement (or\nlonger if required by applicable law) records of all Product sales and customers\nsufficient to adequately administer a recall of any Products and to cooperate\nfully in any decision by the Parties to recall, retrieve and\/or replace any such\nProducts.\n\n5.    OWNERSHIP; LICENSES\n      -------------------\n\n      5.1 OWNERSHIP. Subject to Section 5.2 of this Agreement, ORCHID shall have\n          ---------\nsole and exclusive ownership of all right, title and interest in and to all\nORCHID Collaboration Technology. AFFYMETRIX shall have sole and exclusive\nownership of all right, title and interest in and to all AFFYMETRIX\nCollaboration \n\n                                    Page 11\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n\n\n                                                                  Execution Copy\n\n\nTechnology. ORCHID and AFFYMETRIX shall each own an undivided one-half interest\n(without an obligation of accounting) in all Joint Technology.\n\n      5.2 CERTAIN IMPROVEMENTS. Notwithstanding the foregoing, (a) if ORCHID\n          --------------------\ncreates, invents or otherwise develops any improvements to TAG Assays (each a\n\"TAG Improvement\"), then (i) ORCHID shall (and hereby does) assign and transfer\nto AFFYMETRIX all right, title and interest in and to such TAG Improvement, and\nall related intellectual property rights Controlled by ORCHID related thereto,\n(ii) AFFYMETRIX shall (A) grant to ORCHID a non-exclusive, non-transferable,\nroyalty-free license to exploit such TAG Improvement for ORCHID's internal use,\nand (B) shall include internal use rights to use such TAG Improvement within the\nlicenses granted to Product customers, and (iii) to the extent that AFFYMETRIX\ngrants any Third Party a license to exploit the TAG Improvements, AFFYMETRIX\nshall pay ORCHID a royalty of [*] of the Net Sales (which royalty shall be\nsubject to reduction in the manner and scope described in Section 2.2(d))\nreceived by AFFYMETRIX from (and only from) use of such TAG Improvements until\nORCHID has received an aggregate of [*], at which time no further royalties or\nother fees shall be due or owing ORCHID in respect of such TAG Improvement; and\n(b) if AFFYMETRIX creates, invents or otherwise develops any improvements to GBA\n(each a \"GBA Improvement\"), then (i) AFFYMETRIX shall (and hereby does) assign\nand transfer to ORCHID all right, title and interest in and to such GBA\nImprovement, and all related intellectual property rights Controlled by\nAFFYMETRIX related thereto, (ii) ORCHID shall (A) grant to AFFYMETRIX a non-\nexclusive, non-transferable, royalty-free license to exploit such GBA\nImprovement for AFFYMETRIX's internal use and (B) shall include internal use\nrights to use such GBA Improvements within the licenses granted to Product\ncustomers, and (iii) to the extent that ORCHID grants any Third Party a license\nto exploit the GBA Improvements, ORCHID shall pay AFFYMETRIX a royalty of [*] of\nthe Net Sales (which royalty shall be subject to reduction in the manner and\nscope described in Section 2.2(d)) received by ORCHID from (and only from) use\nof such GBA Improvements until AFFYMETRIX has received an aggregate of [*], at\nwhich time no further royalties or other fees shall be due or owing AFFYMETRIX\nin respect of such GBA Improvement. This Section 5 does not (by implication or\notherwise) extend to either party any license to any other intellectual property\nor technology such as any underlying technology in any TAG Improvement or GBA\nImprovement. Notwithstanding anything to the contrary, neither party shall have\nany rights, licenses or obligations, whether express or implied, except as\nexpressly set forth in this Agreement.\n\n6.    CONFIDENTIAL INFORMATION\n      ------------------------\n\n      6.1 CONFIDENTIALITY. ORCHID and AFFYMETRIX each recognize that the other\n          ---------------\nparty's Confidential Information constitutes highly valuable and proprietary\nconfidential information. ORCHID and AFFYMETRIX each agree that during the Term\nof the Collaboration and for [*] thereafter, it will keep confidential, and will\ncause its employees, consultants, Affiliates and licensees and sublicensees to\nkeep confidential, and shall not transfer to any Third Party, any Confidential\nInformation of the other Party that is disclosed or transferred to it, or to any\nof its employees, consultants, Affiliates and licensees and sublicensees,\npursuant to or in connection with this Agreement, except to the extent that\ndisclosure, or transfer, is reasonably required in accordance with the\nperformance of this Agreement. Each Receiving Party's nondisclosure obligation\nshall not apply to information that is (i) known to the Receiving Party at the\ntime of disclosure thereof (as shown by written documentation); (ii) at the time\nof disclosure, or thereafter, is generally publicly available without the fault\nof the Receiving Party; (iii) subsequently disclosed to the Receiving Party, its\nemployees, or other duly designated representatives, by any Third Party not\nunder a secrecy obligation to the Disclosing Party; (iv) independently developed\nby the Receiving Party without reference to Confidential Information of the\nDisclosing Party; (v) required, by law, regulation or action of any governmental\nagency or authority, to be disclosed; or (vi) disclosed by the Receiving Party\nwith the prior written consent of the Disclosing Party.\n\n      6.2 NON-DISCLOSURE. ORCHID and AFFYMETRIX each agree that any disclosure\n          --------------\nof the Confidential Information to any of its officers, employees, consultants\nor agents or of any of its Affiliates and licensees and sublicensees shall be\nmade only if and to the extent necessary to carry out its rights and\nresponsibilities under this Agreement, shall be limited to the maximum extent\npossible consistent with such rights and responsibilities and shall only be made\nto persons who are bound by written confidentiality obligations to maintain the\nconfidentiality thereof and not to use such Confidential Information except as\nexpressly permitted by this Agreement. Each Party shall take such action, and\nshall cause its Affiliates and licensees and sublicensees to take \n\n                                    Page 12\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n                                                                  Execution Copy\n\n\nsuch action, to preserve the confidentiality of each other's Confidential\nInformation as it would customarily take to preserve the confidentiality of its\nown Confidential Information, and in no event, less than reasonable care.\n\n      6.3 EMPLOYEES AND CONSULTANTS. ORCHID and AFFYMETRIX each represent that\n          -------------------------\nall of its employees and the employees of its Affiliates, and any consultants to\nsuch party or its Affiliates, participating in the Collaboration's activities\nwho shall have access to Confidential Information of the other Party are bound\nby written obligations to maintain such information in confidence and not to use\nsuch information except as expressly permitted herein. Each Party agrees to\nenforce confidentiality obligations to which its employees and consultants (and\nthose of its Affiliates) are obligated.\n\n      6.4 PUBLICITY. Neither Party shall disclose the existence or the terms or\n          ---------\nconditions of this Agreement without the express prior written consent of the\nother Party, and then only pursuant to the terms authorized by such other Party;\nprovided, however, that either Party may make such a disclosure to the extent\nrequired by law or by the requirements of any nationally recognized securities\nexchange, quotation system or over-the-counter market on which such Party has\nits securities listed or traded. The Parties, upon the execution of this\nAgreement, will agree to a news release with respect to the Collaboration for\npublication in general circulation and industry periodicals. Once any written\nstatement is approved for disclosure by both Parties, either Party may make\nsubsequent public disclosure of the contents of such statement without the\nfurther approval of the other Party.\n\n7.    TERM AND TERMINATION\n      --------------------\n\n      7.1 TERM. Unless earlier terminated in accordance with the provisions of\n          ----\nSection 7.2 or Section 7.3, this Agreement shall remain in effect during the\nTerm of this Agreement. This Agreement will renew for additional terms of one\n(1) year each upon notice by either Party to the other in writing at least\nninety (90) days prior to the expiration of the Term or any extension thereof\nthat it wishes to renew this Agreement.\n\n      7.2 TERMINATION FOR BREACH. Each Party shall be entitled (but not\n          ----------------------\nrequired) to terminate this Agreement by written notice to the other Party in\nthe event that the other Party shall be in default of any of its obligations\nhereunder or if the other Party shall have breached a covenant, representation\nor warranty made in this Agreement, and shall fail to remedy any such default\nwithin thirty (30) days of receipt of notice in the case of a breach of any\npayment term of this Agreement and sixty (60) days in the case of any other\nbreach.\n\n      7.3 TERMINATION FOR INSOLVENCY. The Agreement may be terminated by a Party\n          --------------------------\nfor cause immediately upon the occurrence of any of the following events: (a) If\nthe other Party ceases to do business, or otherwise terminates it business\noperations; or (b) the other Party shall seek protection under any bankruptcy,\nreceivership, trust deed, creditors arrangement, composition or comparable\nproceeding, or if any such proceeding is instituted against the other. All\nrights and licenses granted under this Agreement are deemed to be, for purposes\nof 365(n) of the United States Bankruptcy Code, license or rights to\n\"intellectual property\" as defined by Section 101(56) of the United States\nBankruptcy Code and the parties will retain any may fully exercise all of their\nrights and licenses under this Agreement, including the right to make or have\nmade, sell or have sold Products. The parties agree to relief from automatic\nstay provisions under Section 362 of the Bankruptcy Code.\n\n      7.4 EFFECT OF TERMINATION. Upon any termination or expiration of this\n          ---------------------\nAgreement, neither Party shall be relieved of any obligations incurred prior to\nsuch termination. Notwithstanding any termination or expiration of this\nAgreement, the rights and obligations of the Parties under Sections 4.1(e), 5,\n6, 7, 8, 10 and 11 shall survive and continue to be enforceable. Upon any\ntermination of this Agreement, each Party shall promptly return to the other\nParty all written Confidential Information, and all copies thereof, of the\nother, except for one copy thereof that may be retained by a Party's legal\ndepartment for archival purposes or to exercise rights described above that\nsurvive termination. Neither Party shall incur any liability or compensation\nobligation whatsoever for any damage (including, without limitation, damage to\nor loss of goodwill or investment), loss or expenses of any kind suffered or\nincurred by the other (or for any compensation to the other) arising from or\nincident to any termination of this Agreement by such Party that complies with\nthe terms of the Agreement whether or not such Party is aware of any such\ndamage, loss or expenses.\n\n                                    Page 13\n\n                                                                  Execution Copy\n\n\n8.    INDEMNIFICATION AND INSURANCE\n      -----------------------------\n\n      8.1 ORCHID INDEMNITY. ORCHID agrees to defend AFFYMETRIX and its\n          ----------------\nAffiliates, their agents, directors, officers and employees (\"AFFYMETRIX\nIndemnitees\"), at ORCHID's cost and expense, and will indemnify and hold\nharmless AFFYMETRIX Indemnitees from and against any and all losses, liability,\ndamages, costs and expenses (including, but not limited to attorneys' fees and\nexpenses (collectively, \"Claims\") (except in cases where such Claims result from\na material breach of this Agreement or willful misconduct on the part of\nAFFYMETRIX) arising from or relating to (1) any alleged infringement by\nAFFYMETRIX [or its customers] of any Third Party intellectual property or\nproprietary rights solely attributable to AFFYMETRIX's sale or customer's use as\nintended, of all or any part of the ORCHID OEM Kits or Custom Kits (including\nbut not limited to Reagents) or (2) any recall of any ORCHID OEM Kits or (3)\nORCHID's breach of any representation or warranty of ORCHID set forth in this\nAgreement or (4) any other materials supplied by ORCHID hereunder, or (5) death\nor any injury to any person or damage to property as a result of the possession\nor use of any ORCHID OEM Kits or Custom Kits.\n\n      8.2 AFFYMETRIX INDEMNITY. Subject to the obligations of ORCHID set forth\n          --------------------\nin 8.1 above, AFFYMETRIX agrees to defend ORCHID and its Affiliates, their\nagents, directors, officers and employees (\"ORCHID Indemnitees\"), at\nAFFYMETRIX's cost and expense, and will indemnify and hold harmless ORCHID\nIndemnitees from and against any and all Claims (except in cases where such\nClaims result from a material breach of this Agreement or willful misconduct on\nthe part of ORCHID) arising from or relating to (1) any alleged infringement\nattributable to ORCHID's sales to AFFYMETRIX of ORCHID OEM Kits or sales of\nCustom Kits (provided, however, that such indemnity shall be limited to Claims\nof infringement caused by Approved Instruments and TAG Arrays except to the\nextent that such Claim arises from or relates to any combination of the ORCHID\nOEM Kits or Custom Kits with any Approved Instrument or the TAG Array) or (2)\nany recall of any an Affymetrix instrument or Commercial Probe Arrays delivered\nto a customer in conjunction with ORCHID OEM Kits, or (3) AFFYMETRIX's breach of\nany representation or warranty of AFFYMETRIX set forth in this Agreement or (4)\nany other materials supplied by AFFYMETRIX hereunder (provided, however, that\nsuch indemnity shall not include any Claims of infringement arising from or\nrelating to any combination of the ORCHID OEM Kits or Custom Kits with any\nApproved Instrument or the TAG Array except to the extent that such Claim would\nhave existed in the absence of such combination), or (5) death or any injury to\nany person or damage to property as a result of the possession or use of any\nInstrument or Commercial Probe Array delivered to a customer in conjunction with\nORCHID OEM Kits.\n\n      8.3 PROCEDURE. In the event of any such claim, the Party seeking indemnity\n          ---------\nshall promptly notify the indemnifying Party in writing of the claim and the\nindemnifying Party shall have the right, to manage and control, at its sole\nexpense, the defense of the claim and the settlement thereof. The indemnified\nParty shall cooperate with the indemnifying Party and may, at its option and\nexpense, be represented in any such action or proceeding. The indemnifying Party\nshall not be liable for any settlements, litigation costs or expenses incurred\nby the indemnified Party without the indemnifying Party's written authorization.\nNotwithstanding the foregoing, unless and until ORCHID achieves annual revenues\nof [*] million, AFFYMETRIX shall have the right at their expense, but not the\nobligation to defend the AFFYMETRIX Indemnitees against any claim of\ninfringement without tendering defense thereof to ORCHID; provided, however,\nthat ORCHID may participate in such defense at its own expense\n\n      8.4 INSURANCE. Each Party agrees to use its best efforts to procure and,\n          ---------\nat all times during the term of this Agreement, to maintain in full force and\neffect general liability insurance coverage of at least [*] per occurrence and\nat least [*] aggregate (with a deductible of no more than [*] aggregate per year\nand which policy names the other Party as a named insured). Each Party, upon\nrequest of the other Party, will supply such other Party with appropriate\ncertificates of insurance evidencing the foregoing insurance.\n\n9.    REPRESENTATIONS AND WARRANTIES\n      ------------------------------\n\n      9.1 Each of the Parties represents and warrants to the other Party as\nfollows:\n\n                                    Page 14\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n                                                                  Execution Copy\n\n\n      9.2 The execution and delivery of this Agreement and the performance of\nthe transactions contemplated hereby and thereby have been duly authorized by\nall appropriate corporate action, and the Party has all requisite power and\nauthority to enter into this Agreement and to perform its obligations hereunder\nand thereunder, and each representation of this Agreement constitutes a valid\nand binding obligation of each Party, enforceable against each Party in\naccordance with its terms.\n\n      9.3 The performance by the Party of any of the terms and conditions of\nthis Agreement on its part to be performed does not and will not constitute a\nbreach of any other agreement or understanding, whether written or oral, to\nwhich it or any of its affiliates is a party.\n\n      9.4 The Party has the right to convey all technical information and\ntechnology conveyed hereunder and that the information and technology so\nconveyed does not violate the trade secret rights or copyrights of a third party\nand to its knowledge, does not violate the patent or trademark rights of a third\nparty.\n\n      9.5 The Party has used reasonable commercial efforts to ensure the quality\nof the materials and data provided hereunder. \n\n10.   DISPUTE RESOLUTION \n      ------------------\n\n      10.1 SENIOR OFFICIALS. In the event of any controversy or claim relating\n           ----------------\nto, arising out of or in any way connected to any provision of this Agreement\n(\"Dispute\"), either Party may, by notice to the other Party, have such dispute\nreferred to their respective senior officials designated below or their\nsuccessors, for attempted resolution by good faith negotiations within thirty\n(30) days after such notice is received. Said designated employees are as\nfollows:\n\n       For ORCHID:      CEO\n\n       For AFFYMETRIX:  CEO\n\n      10.2 MEDIATION. In the event the designated senior officials are not able\n           ---------\nto resolve any such dispute within the thirty (30) day period, either Party may\ninvoke the provisions of this Section 11.2 by initiating mediation of the\nDispute under the then correct Center for Public Resources Procedure for\nMediation of Business Disputes. Once mediation is initiated by one Party, the\nother Party shall participate in and conduct the mediation procedures in good\nfaith. If a negotiator intends to be accompanied at a telephone conference or a\nmeeting by an attorney, the negotiator for the other Party shall be given at\nleast three (3) days notice of such intention, and may also be accompanied by an\nattorney. All negotiations pursuant to this clause are confidential and shall be\ntreated as compromise and settlement negotiations for the purposes of the\nFederal Rules of Evidence and any state rules of evidence. All applicable\nstatutes of limitations and defenses based on the passage of time shall be\ntolled while the negotiation and mediation procedures set forth in this Section\n10.2 are pending. The Parties will take such action, if any, as may be\nreasonably required to effectuate such tolling.\n\n      10.3 ARBITRATION. Any Dispute that is not resolved pursuant to Section\n           -----------\n10.2 shall be finally resolved by final and binding arbitration. Whenever a\nParty shall decide to institute arbitration proceedings, it shall give written\nnotice to that effect to the other Party. The Party giving such notice shall\nrefrain from instituting the arbitration proceedings for a period of ten (10)\ndays following such notice to allow the Parties to attempt to resolve the\ndispute between themselves. If the Parties are still unable to resolve the\ndispute, the Party giving notice may institute the arbitration proceeding under\nthe rules of the American Arbitration Association (\"AAA Rules\"). Arbitration\nshall exclusively and solely be held in San Francisco, California. The\narbitration shall be conducted before a single arbitrator mutually chosen by the\nParties, but if the parties have not agreed upon a single arbitrator within\nfifteen (15) days after notice of the institution of the arbitration proceeding,\nthen the arbitration will be conducted by a panel of three arbitrators. In such\ncase, each Party shall within thirty (30) days after notice of the institution\nof the arbitration proceedings appoint one arbitrator. The presiding arbitrator\nshall then be appointed in accordance with AAA Rules. No arbitrator (nor the\npanel of arbitrators) shall have the power to award punitive \n\n                                    Page 15\n\n                                                                  Execution Copy\n\n\ndamages or any award of multiple damages under this Agreement and such awards\nare expressly prohibited. Decisions of the arbitrator(s) shall be final and\nbinding on the Parties.\n\n      10.4 Notwithstanding the foregoing, if within ten (10) days of the first\noccasion when the Parties' representatives meet with the arbitrator(s) either\nParty gives notice by written designation of any matter relating solely to the\nvalidity or scope of any patent as being subject to the Patent Exception\nreferred to above, then the matter so designated shall be set aside by the\narbitrator(s) and shall not be decided by them, provided that the matter so\ndesignated constitutes a matter of which a United States District Court would\nhave jurisdiction pursuant to 28 U.S.C. (S) 1338(a), whether by way of action\nfor declaratory judgment or otherwise, and provided further that such matter is\nsubmitted by the designating Party for decision by such court upon a complaint\nfiled within thirty (30) days of such designation, to be decided as such court\nmay determine. The sole jurisdiction and venue for actions related to the\nsubject matter hereof shall be the California state and U.S. federal courts\nlocated in San Francisco, California. In such case, the nondesignating Party may\nelect (no later than the date on which it files its answer to the complaint in\nthe District Court) to refer the entire matter in controversy to such court, but\nif such Party does not make such election the arbitrator(s) shall proceed to\ndecide the remaining matter before them to the extent feasible and shall take\nsuch other action in such regard as they deem appropriate. Judgment on the award\nof the arbitrator(s) may be entered in any court having jurisdiction thereof.\n\n      10.5 Except to the extent entry of judgment and any subsequent enforcement\nmay require disclosure, all matters relating to the arbitration, including the\naward, shall be held in confidence by the Parties.\n\n11.   MISCELLANEOUS.\n      ------------- \n\n      11.1 Except as otherwise provided in this Agreement, neither this\nAgreement nor any of the rights or obligations hereunder may be assigned by\neither Party without the prior written consent of the other Party, except that\neither Party may assign to an Affiliate, or to a party who acquires all or\nsubstantially all of the relevant business relating to the subject matter of\nthis Agreement by merger, acquisition, sale of assets or otherwise.\n\n      11.2 This Agreement shall be governed by and interpreted in accordance\nwith the laws of California (without regard to its or any other jurisdiction's\nchoice of law principles).\n\n      11.3 Except as expressly and unambiguously provided herein, no right,\nexpress or implied, is granted by this Agreement to either Party to use in any\nmanner the name of the other or any other trade name or trademark of the other\nin connection with the performance of this Agreement.\n\n      11.4 In the event that either Party is prevented from performing or is\nunable to perform any of its obligations under this Agreement due to any act of\nGod; fire; casualty; flood; war; strike; lockout; failure of public utilities;\ninjunction or any act, exercise, assertion or requirement of governmental\nauthority; epidemic; destruction of production facilities; riots; insurrection;\ninability to procure or use materials, labor, equipment, transportation or\nenergy; or any other cause beyond the reasonable control of the Party invoking\nthis Section if such Party shall have used its best efforts to avoid such\noccurrence, such Party shall give notice to the other Party in writing promptly,\nand thereupon the affected Party's performance shall be excused and the time for\nperformance shall be extended for the period of delay or inability to perform\ndue to such occurrence.\n\n      11.5 The waiver by either Party of a breach or a default of any provision\nof this Agreement by the other Party shall not be construed as a waiver of any\nsucceeding breach of the same or any other provision, nor shall any delay or\nconcession on the part of either Party to exercise or avail itself of any right,\npower or privilege that it has or may have hereunder operate as a waiver of any\nright, power or privilege by such Party.\n\n      11.6 Any notice or other communication in connection with this Agreement\nmust be in writing and if by mail, by certified mail, return receipt requested,\nand shall be effective when delivered to the addressee at the address listed\nbelow or such other address as the addressee shall have specified in a notice\nactually received by the addressor.\n\n                                    Page 16\n\n                                                                  Execution Copy\n\n\n            If to AFFYMETRIX:\n\n            Affymetrix, Inc.\n            3380 Central Expressway\n            Santa Clara, California 95051\n            Attention:  President\n\n            With a copy to:\n\n            Affymetrix, Inc.\n            3380 Central Expressway\n            Santa Clara, California 95051\n            Attention:  General Counsel\n\n            If to ORCHID:\n\n            303 College Road East\n            Princeton, New Jersey 08540\n            Attention:  President\n\n            With a copy to:\n\n            Mintz, Levin, Cohn, Feris, Glovsky and Popeo, D.C.\n            One Financial Center\n            Boston, MA\n            Attention:  Jeff Wiesen, Esq.\n\n            11.7 Unless otherwise expressly stated to be business days, all\n      references to days shall mean calendar days; provided, however, that if\n      the last date or the deadline for the giving of notice or performance of\n      any other act or fulfillment or satisfaction of any condition set forth in\n      this Agreement shall fall on a day which is not a business day, then the\n      time for the giving of such notice or performance of such act or\n      fulfillment or satisfaction of such condition shall be extended to the\n      next business day. As used herein, the term \"business days\" shall mean all\n      days other than Saturdays, Sundays or state or federal holidays.\n\n            11.8 Nothing herein shall be deemed to constitute either Party as\n      the agent or representative of the other Party, or both Parties as joint\n      venturers or partners for any purpose. Each Party shall be an independent\n      contractor, not an employee or partner of the other Party, and the manner\n      in which a Party renders its services under this Agreement shall be within\n      such Party's sole discretion. Neither Party shall be responsible for the\n      acts or omissions of the other Party, and neither Party will have\n      authority to speak for, represent or obligate the other Party in any way\n      without prior written authority from the other Party.\n\n            11.9 This Agreement and the Schedules hereto (which Schedules are\n      deemed to be a part of this Agreement for all purposes) contain the full\n      understanding of the Parties with respect to the subject matter hereof and\n      supersede all prior understandings and writings relating thereto. No\n      waiver, alteration or modification of any of the provisions hereof shall\n      be binding unless made in writing and signed by the Parties by their\n      respective officers thereunto duly authorized.\n\n            11.10 The headings contained in this Agreement are for convenience\n      of reference only and shall not be considered in construing this\n      Agreement.\n\n            11.11 In the event that any provision of this Agreement is held to\n      be unenforceable because it is invalid or in conflict with any law of any\n      relevant jurisdiction, the validity of the remaining provisions shall not\n      be affected, and there shall be substituted for the provision at issue a\n      valid, legal and operative provision as similar as possible to the\n      provision at issue.\n\n                                    Page 17\n\n                                                                  Execution Copy\n\n\n            11.12 This Agreement shall be binding upon and inure to the benefit\n      of the Parties hereto and their successors and permitted assigns. \n\n            11.13 None of the provisions of this Agreement shall be for the\n      benefit of or enforc eable by any third party.\n\n            11.14 This Agreement may be executed in any number of counterparts,\n      each of which shall be deemed an original but all of which together shall\n      constitute one and the same instrument.\n\n            11.15 The Parties hereto acknowledge and agree that: (i) each party\n      and its counsel reviewed and negotiated the terms and provisions of this\n      Agreement and have contributed to its revision; (ii) the rule of\n      construction to the effect that any ambiguities are resolved against the\n      drafting party shall not be employed in the interpretation of this\n      Agreement; and (iii) the terms and provisions of this Agreement shall be\n      construed fairly as to all parties hereto and not in a favor of or against\n      any party, regardless of which party was generally responsible for the\n      preparation of this Agreement.\n\n          IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to\nbe executed in their names by their properly and duly authorized officers or\nrepresentatives as of the date first above written.\n\nAFFYMETRIX, INC.                       ORCHID BIOCOMPUTER, INC.\n\nBy: \/s\/ Stephen Fodor, Ph.D            By: \/s\/ Dale R. Pfost, Ph.D.\n    -----------------------------          -----------------------------\n        Stephen Fodor, Ph.D                    Dale R. Pfost, Ph.D.\n\n Its: Chief Executive Officer          Its: Chief Executive Officer\n      ---------------------------           ----------------------------\n\nDate: November 16, 1999                Date: November 5, 1999\n      ---------------------------            ---------------------------\n\n                                    Page 18\n\n                                                                  Execution Copy\n\n\nSCHEDULE 1.13\n-------------\n\nTRANSFER OF CUSTOM KIT ORDER INFORMATION\n\nFor each custom kit order, Orchid will:\n. email to point of contact at AFFX\n. within 5 business days of receipt of custom order by Orchid\n. Orchid will notify customer of the obligation to notify AFFX\n. Email to include the following bill to and ship to information:\n  . Customer name\n  . Address\n  . Phone number\n  . Fax number\n  . Email address\n. Size and nature of custom order (# samples, # snps, multiplex)\n. Delivery date for custom order\n\nAS PART OF THE STANDING CMC AGENDA, ORCHID WILL PROVIDE TO AFFYMETRIX A LIST OF\nSNPS ORDERED FOR CUSTOM KITS AND THE QUANTITY ORDERED FOR CONSIDERATION TO BE\nINCLUDED IN FUTURE STANDARD KITS AND TO EVALUATE SIMILARITIES BETWEEN CUSTOM\nKITS AND STANDARD KITS.  AFFYMETRIX MAY AUDIT ORCHID TO VERIFY THIS INFORMATION.\n\nORCHID's Obligations contained in this schedule are subject to any\nconfidentiality obligation ORCHID may have to any Third Party (provided that\nORCHID shall use commercially reasonable efforts to minimize such obligations)\nand such information shall exclude ORCHID proprietary Primers and SNPs.\n\n                                    Page 19\n\n                                                                  Execution Copy\n\n\nSCHEDULE 1.15\n-------------\n\nEND USER LICENSE\n\nThe purchase price of this product includes a limited, non-transferable license\nunder U.S. Patent 5,888,819 and its foreign counterparts owned by Orchid\nBiocomputer, Inc. of Princeton NJ to use only this amount of the product to\npractice Genetic Bit Analysis(TM) primer extension technology solely for use\nwith Affymetrix Tag Arrays in the Affymetrix GeneChip Systems for Research\nPurposes and explicitly excludes use of this product for any clinical use or in\nany other instrument.  Information about purchasing licenses to practice Genetic\nBit Analysis(TM) primer extension technology for clinical use or in other\nsystems may be obtained by contacting the Senior Director for Business\nDevelopment at Orchid Biocomputer, Inc. at (609) 750-2200.\n\n                                    Page 20\n\n                                                                  Execution Copy\n\n\nSCHEDULE 1.20\n-------------\n\nORCHID END USER TECHNOLOGY\n\nUS Patent 5,888,819 (and all foreign counterparts thereof)\n\n                                    Page 21\n\n                                                                  Execution Copy\n\n\nSCHEDULE 1.22\n-------------\n\nORCHID LICENSED TECHNOLOGY\n\nUS Patent 5,888,819\n\nORCHID LICENSED TECHNOLOGY includes any continuations, continuations-in-part,\ndivisionals, extensions, re-exams or re-issues and any foreign counterparts\nthereof\n\n                                    Page 22\n\n                                                                  Execution Copy\n\n\nSCHEDULE 1.37\n-------------\n\nSPECIFICATIONS FOR ORCHID OEM KITS\n\nAdded to agreement as approved by CMC\n\n                                    Page 23\n\n                                                                  Execution Copy\n\n\nSCHEDULE 1.39\n-------------\n\nDEFINITION OF PRODUCTS AND WORKPLAN FOR COLLABORATION\n\nProducts from Orchid\n--------------------\n\n[*]\n\n\n                                    Page 24\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n                                                                  Execution Copy\n\n\n[*]\n\n\n                                    Page 25\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n                                                                  Execution Copy\n\n[*]\n\n                                    Page 26\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n                                                                  Execution Copy\n\n[*]\n                                    Page 27\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n \n\nSCHEDULE 2.3(D)\n---------------\n\nPRICING AND TIMING\n\n\n[*]\n\n                                    Page 28\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n \n                                                                  Execution Copy\n\n\nSCHEDULE 4.1(C)\n---------------\n\nLABELING AND PACKAGING REQUIREMENTS\n\nLABEL TO BE INCLUDED IN PACKAGING OF ALL ORCHID KITS\n\nEXCEPT AS EXPRESSLY SET FORTH HEREIN, NO RIGHT TO COPY, MODIFY, DISTRIBUTE, MAKE\nDERIVATIVE WORKS OF, PUBLICLY DISPLAY, MAKE, HAVE MADE, OFFER TO SELL, SELL, OR\nIMPORT PROBE ARRAYS OR ANY OTHER PRODUCT PROVIDED HEREUNDER IS CONVEYED OR\nIMPLIED BY THE PROBE ARRAYS, INSTRUMENTS, SOFTWARE, REAGENTS OR ANY OTHER ITEMS\nPROVIDED HEREUNDER. ALL PRODUCTS (INCLUDING THE PROBE ARRAYS, INSTRUMENTS,\nSOFTWARE, AND REAGENTS) DELIVERED HEREUNDER ARE LICENSED TO BUYER FOR RESEARCH\nUSE ONLY. THIS LIMITED LICENSE PERMITS ONLY THE USE BY BUYER OF THE PARTICULAR\nPRODUCT(S) THAT BUYER PURCHASES FROM AFFYMETRIX OR ITS REPRESENTATIVE(S) AND\nDOES NOT PERMIT THE USE OF SUCH PRODUCTS IN A MANNER OR IN CONNECTION WITH OTHER\nPRODUCTS SUCH THAT THE INTELLECTUAL PROPERTY RIGHT(S) OF AFFYMETRIX OR ANY THIRD\nPARTY ARE INFRINGED. IN PARTICULAR, NO RIGHT TO MAKE, HAVE MADE, IMPORT,\nDISTRIBUTE, OR USE PROBE ARRAYS OTHER THAN THOSE OF AFFYMETRIX IS IMPLIED\nTHROUGH THE INSTRUMENTS OR SOFTWARE CONVEYED HEREUNDER.  BUYER AGREES NOT TO\nEXCEED THE SCOPE OF THIS LIMITED LICENSE OR REUSE OR ALLOW ANYONE TO REUSE A\nPROBE ARRAY.\n\nLABEL FOR TAG ARRAY - TO BE INCLUDED IN PACKAGING.\n\nOrchid Biocomputer, Inc. (Princeton NJ (\"Orchid\")) hereby notifies you that The\nGenetic Bit Analysis (GBA(R)) primer extension technology is covered by patents\nowned by Orchid.  Orchid has exclusive and non-exclusive licenses available for\nvarious applications of the GBA(R) primer extension technology, and Orchid and\nits licensees provide end-user licenses within their designated fields. These\nlicenses have different terms depending on the field, and different rules may\napply in different countries. In the US and most other nations, the user should\nalways have a proper license to perform GBA(R). THE PURCHASE OF THIS GENECHIP(R)\nPROBE ARRAY DOES NOT EXPRESSLY OR IMPLICITLY GRANT ANY LICENSE TO THE GBA(R)\nPRIMER EXTENSION TECHNOLOGY THROUGH THIS PURCHASE\n\nA license for performing the GBA(R) primer extension technology which is covered\nby U.S. Patent 5,888,819 and its foreign counterparts may be obtained directly\nfrom Orchid or by the purchase of reagents kits from Affymetrix.\n\n. Labeling for Orchid Kit:  [Vern please fill in].  Add labeling for all kits\n  that they can only be used with GeneChip probe arrays. Legal to define \n  specific wording including limitations to RUO, patent references, etc.\n\n. Both company's logos on kit packaging for standard and generic kits\n\n                                    Page 29\n\n                                                                  Execution Copy\n\n                   AMENDMENT NO. 1 TO COLLABORATION AGREEMENT\n                                        \n     This Amendment No. 1 to Collaboration Agreement (this \"Amendment\") is made\n                                                            ---------\nas of this 12th day of November, 1999 (the \"Amendment Effective Date\"), by and\n                                            ------------------------\nbetween Orchid Biocomputer, Inc., a Delaware corporation with a principal place\nof business at 101 College Road East, Princeton, New Jersey 08540 (\"ORCHID\") and\nAffymetrix, Inc., a Delaware corporation with a principal place of business at\n3380 Central Expressway, Santa Clara, California 95051  (\"AFFYMETRIX\").\nCapitalized terms used and not otherwise defined herein shall have the\nrespective meanings ascribed to them in the Collaboration Agreement by and\nbetween ORCHID and AFFYMETRIX dated as of November 5, 1999 (the \"Agreement\").\n                                                                 ---------\n\n     WHEREAS, the parties hereto desire to amend the Agreement as set forth\nherein.\n \n     NOW, THEREFORE, for good and valuable consideration, the receipt and\nsufficiency of which is hereby acknowledged, the parties hereto hereby agree as\nfollows:\n\n     1.  Amendments.\n         ---------- \n\n        1.1.  The definition of \"Orchid Licensed Technology\" contained within\n Section 1.22 of the Agreement is hereby amended by adding the following at the\n end of the first sentence thereof:\n\n        \"including without limitation the software and associated algorithms\n        necessary to assign genotype and allele calls\" .\n\n        1.2.  Schedule 1.22 of the Agreement is hereby amended by adding the\n following:\n \n        \"U.S. Patent 5,762,876*\n\n        *ORCHID agrees that, in addition to the licenses granted in Section 3.1\n        and 4.2, AFFYMETRIX will have the royalty-free, perpetual right and\n        license to directly and indirectly create and modify software\n        embodiments of the above patent and to directly and indirectly use,\n        distribute and license such embodiments (including the right to use and\n        modify such embodiments) to third party customers of its Tag Arrays.\"\n\n     2. Additional Warranties  ORCHID represents, warrants and covenants that\n        ---------------------\nthere is no technology or intellectual property that ORCHID has not described to\nAffymetrix in writing prior to the Effective Date (and which Affymetrix has\nacknowledged receiving) that ORCHID contemplates or anticipates may be\nincorporated into the Orchid Licensed Technology or may be necessary or useful\neither for development, use, distribution or sale of the basic genotype and\n\n                                                                  Execution Copy\n\n\nallele calling functionality of the Products, or for use of TAG Arrays or\nApproved Instruments with Products.\n\n     3. Miscellaneous.  Except as amended hereby, the Agreement shall remain in\n        -------------\nfull force and effect.  This Amendment may be executed in one or more\ncounterparts, each of which shall be deemed an original.\n\n                  [Remainder of page intentionally left blank]\n\n\n\n                                      31\n\n\n                                                                  Execution Copy\n\n  IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by\ntheir respective duly authorized representatives.\n\n                              ORCHID BIOCOMPUTER, INC.\n\n                              By:    \/s\/ Donald R. Marvin\n                                     ----------------------------------------\n                                     Donald R. Marvin\n\n                              Title: Chief Operating Officer \n                                     and Senior Vice President\n                                     ----------------------------------------\n                              Date:  November 12, 1999\n                                     ----------------------------------------\n\n \n\n                              AFFYMETRIX, INC.\n\n                              By:    \/s\/ Stephen P.A. Fodor, Ph.D.\n                                     ----------------------------------------\n                                     Stephen P.A. Fodor, Ph.D.\n\n                              Title: Vice President          \n                                     ----------------------------------------\n                              Date:  November 18, 1999\n                                     ----------------------------------------\n\n<type>EX-10.6\n<sequence>7\n<description>LICENSE AND OPTION AGREEMENT, SARNOFF CORPORATION\n\n\n\n                                                                    EXHIBIT 10.6\n\n                            CONFIDENTIAL TREATMENT\n                            ----------------------\n\nORCHID BIOSCIENCES, INC. HAS REQUESTED THAT THE MARKED PORTIONS OF THIS DOCUMENT\nBE ACCORDED CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT\n                             OF 1933, AS AMENDED.\n\n[*]  CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n             EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n                         LICENSE AND OPTION AGREEMENT\n\n\n     LICENSE AND OPTION AGREEMENT (the \"Agreement\"), dated as of December 10,\n1997 (the \"Effective Date\"), between SARNOFF CORPORATION, a New Jersey\ncorporation having its offices at 201 Washington Road, Princeton, New Jersey\n08543 (\"Sarnoff\"), and ORCHID BIOCOMPUTER, INC., a Delaware corporation having\nits offices at 201 Washington Road, Princeton, New Jersey 08543 (\"Orchid\").\n\n     WHEREAS, Sarnoff is (and will be) the owner or licensee of rights in\ncertain existing and future Intellectual Property and certain Patent Rights\nrelating thereto.\n\n     WHEREAS, Sarnoff is willing to grant to Orchid and Orchid desires to\nacquire from Sarnoff, certain rights under such Intellectual Property and Patent\nRights for the purpose of allowing Orchid to research, develop, manufacture,\nmarket, sell, import, lease and\/or deliver, within the Orchid Field, Products\nand Services.\n\n     NOW, THEREFORE, in consideration of the mutual covenants set forth herein\nand for other good and valuable consideration, the receipt and sufficiency of\nwhich are hereby acknowledged, Sarnoff and Orchid, intending to be legally\nbound, hereby agree as follows:\n\n1.   Definitions.\n\n     As used herein, capitalized terms shall have the respective meanings set\nforth below:\n\n     1.1. \"Affiliate\" means any corporation, firm, limited liability company,\npartnership or other entity which directly or indirectly controls or is\ncontrolled by or is under common control with a party to this Agreement.\n\"Control\" means ownership of, or the ability to vote, directly or through one or\nmore Affiliates, fifty percent (50%) or more of the shares of stock entitled to\nvote for the election of directors, in the case of a corporation, or fifty\npercent (50%) or more of the equity interests in the case of any limited\nliability company or other type of legal entity, status as a general partner in\nany partnership, or any other arrangement whereby a party controls or has the\nright to control the board of directors or equivalent governing body of a\ncorporation or other entity. Notwithstanding the foregoing, Sarnoff and SRI and\ncompanies controlled by Sarnoff and SRI shall not be deemed to be Affiliates of\nOrchid, and Orchid shall not be deemed to be an Affiliate of such entities for\npurposes of this Agreement.\n\n     1.2  \"Ancillary Device\" shall mean a detector or other device (but not a\nStorage Device or Input\/Output Device) that is specifically designed by Sarnoff\nto interface with a Chip, \n\n \nStorage Device or Input\/Output Device to the extent such detector or other\ndevices are incorporated in Delivered Chips and Instruments. Ancillary Devices\nshall not include (without upper or lower limitations as to size or volume), (i)\ngeneric robotic fluid delivery systems, (ii) transport through synthetic or\nnatural membranes, tubes or capillaries except when part of a Chip or\nInput\/Output Device, (iii) conventional, non-electrokinetic fluid pumping or\nvalving technology except when part of a Chip or Input\/Output Device and (iv) 3D\nmicroimaging and modeling.\n\n     1.3.  \"Chip\" shall mean a microfabricated flat structure device in one or\nmore layers having a plurality of Microchannels or Microchannels and\nMicrochambers in the form of (A) arrays (containing at least (i) six (6)\nMicrochambers or (ii) two Circuits, each of which contains at least one Active\nElement), or (B) at least one Circuit containing at least three (3) serially\nconnected Elements, at least one of which is an Active Element, to carry out or\nenable synthesis, reactions, assays, analyses or sample preparation by\ntransporting or retaining aqueous or organic fluids that are solvents,\nsolutions, mixtures or suspensions, including those containing chemicals,\nparticles, membranes, membrane fragments, cells, cell components or other\nbiologically derived substances. \"Microchannels\" shall mean enclosed channels\nhaving a cross section at least 10 microns by 10 microns and no more than 2\nmillimeters by 2 millimeters. \"Microchambers\" shall mean chambers having a\nvolume of at least 10 picoliters and no more than 10 microliters.\n\n     1.4.  \"Circuit\" shall mean a combination of at least two (2) Elements.\n\n     1.5.  \"Combinatorial Chemistry\" shall mean the synthesis of one or more\ncompounds as part of a process to create compounds or resynthesize known\ncompounds, where such compounds are to be used in clinical applications or in\nthe discovery, development, testing or optimization of molecules, materials, or\ncompounds, or mixtures thereof.\n\n     1.6.  \"Confidential Information\" shall mean all proprietary confidential\ntechnology disclosed by Sarnoff to Orchid or by Orchid to Sarnoff during the\nterm of this Agreement. For the purposes of this Agreement, Research Technology\nshall be deemed Confidential Information of both Orchid and Sarnoff.\n\n     1.7.  \"Covered By\" shall mean, with respect to any act, an act that would,\nin the absence of a license provided hereunder, constitute an infringement of a\nclaim of a pending patent application, or a claim of an issued patent which has\nnot been held invalid or unenforceable by a court of competent jurisdiction in a\ndecision which is unappealable or the appeal period for which has expired\nwithout an appeal being taken.\n\n     1.8.  \"Delivered Chips and Instruments\" shall mean Chips and\/or related\ninstruments based on the design of the Chips and related instruments that are\n(i) delivered by Sarnoff under a Funded Research Program, (ii) delivered by\nSarnoff to SB under the SB Agreement, or (iii) delivered by Sarnoff to the\nGovernment under NIST Control No. 7ONANB5HlO37 prior to June 30, 1997, or under\nDARPA Control No. N66001-96-8630 prior to June 30, 1999.\n\n     1.9  \"Dynal Agreements\" shall mean the proposed Joint Venture Master\nAgreement between Orchid and Dynal, Inc. (\"Dynal\"), as executed, and the\nagreements between Orchid and Dynal entered into pursuant thereto, pertaining to\nthe creation of a joint venture to combine \n\n                                       2\n\n \nOrchid's chip technology and Dynal's bead technology to create \"Cassettes\" for\nuse in the h-vitro Diagnostic Field.\n\n     1.10.  \"Elements\" shall mean any pump, Microchannel or Microchamber.  An\nElement is \"Active\" if it is a pump or a Microchannel or a Microchamber in which\na chemical or binding reaction or physical separation by fractionation or\ndifferentiation of various constituents within a sample by such parameters as\nmolecular size, binding affinity, charge or other physical properties occurs.\nAn Element is \"Passive\" if it is not Active, including without limitation,\nMicrochambers or Microchannels for storage, transport, analyses other than by\nchemical or binding reaction, or division of a sample into multiple samples or\nstreams into multiple streams.\n\n     1.11.  \"Environmental Testing\" shall mean the determination of the presence\nor effect of molecular analytes, chemicals, microbes (including, without\nlimitation, viruses and bacteria), parasites or other harmful elements in the\nenvironment utilizing nucleic acid-based analyses, immunoassays or functional\nassays involving cells, cellular components or extra- or intra-cellular\ninteractions.\n\n     1.12.  \"Force Majeure\" shall mean any act of God, any accident, explosion,\nfire, storm, earthquake, flood, drought, peril of the sea, riot, embargo, war or\nforeign, federal, state or municipal order of general application, seizure,\nrequisition or allocation, any failure or delay of transportation, shortage of\nor inability to obtain supplies, equipment, fuel or labor or any other\ncircumstances or event beyond the reasonable control of the party relying upon\nsuch circumstance or event.\n\n     1.13.  \"Funded Research Program\" shall mean the research or development\nactivities under a research agreement for an Option Field in which, considering\neach Option Field separately, Orchid or its designee reasonably acceptable to\nSarnoff agrees to [*]\n\n \n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       3\n\n \n     1.14.  \"Input\/Output Device\" shall mean fluidic transport, fluid transfer\nor fluid connection means which is specifically designed to bring a fluid to a\nChip or Storage Device or remove a fluid from a Chip or a Storage Device.\n\n     1.15.  \"Intellectual Property\" shall mean proprietary technical or other\ninformation, know-how, data, materials, devices, systems, software, trade\nsecrets, processes or formulations, and any and all Patent Rights thereon.\n\n     1.16.  \"In-vitro Diagnostic Field\" shall mean [*]\n\n     1.17.  \"Licensed Technology\" shall mean: (a) Intellectual Property licensed\nor developed under the SB Agreement including Intellectual Property funded by\nsuch agreements, but developed prior to August 30, 1995 and listed on Schedule\nA; (b) Intellectual Property embodied in the deliverable \"Chips\" and\n\"Instruments\" as defined in and developed under the SB Agreement; (c)\nIntellectual Property (i) developed under NIST Contract No. 7ONANB5H 1037\nthrough June 30, 1997, (ii) developed under DARPA Contract No. N66001-96-8630\nthrough June 30, 1999, and listed on Schedule A and (iii) certain Intellectual\nProperty claiming technology relating to Chips developed by Sarnoff on or before\nAugust 30, 1995 and listed on Schedule A, (d) Research Technology, (e)\nIntellectual Property incorporated in devices or systems as part of a Funded\nResearch Program and (f) subject to any of Sarnoff's present or future third\nparty arrangements, Intellectual Property directed to Chips, Storage Devices and\nInput\/ Output Devices developed by Sarnoff and its wholly-owned subsidiaries\nduring the Option Period or during the term of any and all Funded Research\nPrograms at Sarnoff, and\/or the research program under the SB Agreement, but\noutside such programs and incorporated by Orchid into a Chip or a system\nincorporating a Chip during the Option Period, or during the term of any and all\nFunded Research Programs at Sarnoff, or the research program under the SB\nAgreement and (g) Joint Inventions and Joint Patent Rights as defined in Section\n2.6. Specifically excluded from Licensed Technology is the Intellectual Property\ndeveloped under DARPA Contract DABT63-95-C-0057 3D entitled \"3D Microimaging\".\nLicensed Technology shall not include rights to general purpose electrical,\nelectronic, optical, electro-optical, mechanical or electro-mechanical\ninventions.\n\n     1.18.  \"Life Science Field\" means the Orchid Field, the Option Fields and\nthe use of Chips in the fields of the biological sciences, human healthcare,\nanimal healthcare or agriculture.\n\n     1.19.  \"Net Sales\" shall mean [*]\n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       4\n\n \n     1.20.  \"Non-Exclusive Licensed Technology\" shall mean general purpose\nelectrical, electronic, optical, electro-optical, mechanical or electro-\nmechanical inventions and devices to the extent such inventions and devices are\nincorporated in Delivered Chips and Instruments, but not otherwise.\n\n     1.21.  \"Option Field(s)\" shall mean [*]\n\n     1.22.  \"Option Period\" means that period during which any Option exists as\ndefined in Section 2.3.\n\n     1.23.  \"Orchadyne\" means Orchadyne, LLC, the limited liability company\ncreated pursuant to the Dynal Agreements.\n\n     1.24.  \"Orchid Field\" shall mean [*]\n\n \n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       5\n\n \n     1.25.  \"Owned or Controlled\" shall mean Intellectual Property which Sarnoff\nowns, or under which Sarnoff is licensed and has the right to grant sublicenses\nand\/or grant immunity from suit. Intellectual Property \"Owned or Controlled\" as\nof a certain date includes Intellectual Property first invented on or prior to\nsuch date, and shall include all related patent applications and patents or\nother intellectual property rights issuing thereon, whenever filed or obtained.\n\n     1.26.  \"Parties\" means Sarnoff and Orchid.\n\n     1.27.  \"Partner\" shall mean SB, Dynal, Orchadyne or any other Person with\nwhom Orchid shall have a written research and\/or development agreement or other\ncollaborative arrangement whereby Orchid receives (a) ownership rights or\nlicense rights in products or services based on or resulting from such research\nand\/or development, (b) royalty payments based on the sales of such products or\nservices, or (c) supply rights for such products.\n\n     1.28.  \"Party\" means Sarnoff or Orchid.\n\n     1.29.  \"Patent Rights\" shall mean rights (including, ,without limitation,\nrights as licensee) Owned or Controlled, subject to Section 2.1.6 hereof, by\nSarnoff under (a) issued U.S. and foreign patents, (b) U.S. or foreign patent\napplications, including any patent application constituting an equivalent,\ncounterpart, reissue, extension or continuation of any of the foregoing\napplications (including, without limitation, a continuation in part or\ndivisional application), or (c) any patent issued or issuing upon any of the\nforegoing applications.  A list of Patent Rights included in Licensed Technology\nas of the date of this Agreement is attached hereto as Schedule A.\n\n     1.30.  \"Person\" shall mean any individual, partnership, limited liability\ncompany, corporation, firm, association, unincorporated organization, joint\nventure, trust or other entity.\n\n     1.31.  \"Product\" shall mean a Chip or a system incorporating a Chip with or\nwithout Storage Devices, Input\/Output Devices or Ancillary Devices developed\nusing, incorporating, utilizing, manufactured using, based upon, arising out of,\nor derived from the Licensed Technology.\n\n     1.32.  \"Research Products\" shall mean [*]\n\n     1.33.  \"Research Technology\" shall mean Intellectual Property developed by\nSarnoff in Funded Research Programs.\n\n     1.34.  \"SB Agreement\" shall mean the Development and License Agreement\nexecuted by and among Orchid, Sarnoff and SmithKline Beecham PLC\/SmithKline\nBeecham Corporation as of August 30, 1995, as amended.\n\n \n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       6\n\n \n     1.35.  \"Services\" shall mean the performance of services for a fee\nutilizing a Product, but shall not include performance of research or\ndevelopment services.\n\n     1.36.  \"SmithKline Beecham\" or \"SB\" shall mean SmithKline Beecham\nPLC\/SmithKline Beecham Corporation.\n\n     1.37.  \"SRr\" shall mean SRI International, a California not for profit\ncorporation having its principal offices at 333 Ravenswood Avenue, Menlo Park,\nCA 94025.\n\n     1.38.  \"Storage Device\" shall mean a microfabricated flat structure device\ncontaining Microchambers, but not Microchannels or other Elements, that is\neither (i) specifically designed for interacting with or connecting to a Chip or\n(ii) broadly useful with Chips and other devices or primarily designed to be\ninterfaced with micropipetting systems. A Storage Device of the type described\nin clause (i) is referenced to herein as a Type 1 Storage Device. A Storage\nDevice described in clause (ii) is referred to herein as a Type 2 Storage\nDevice.\n\n     1.39.  \"Valid Claim\" shall mean an unexpired claim of (i) any issued patent\nwhich has not been finally declared invalid or unenforceable by a patent office\nor by a court or other body of competent jurisdiction in any unappealed or\nunappealable decision and which has not been lost through an interference or\nopposition proceeding or (ii) any pending patent application which has not been\nfinally rejected by a patent office of competent jurisdiction in any unappealed\nor unappealable decision and which has not been pending for more than four (4)\nyears.\n\n2.   Grant of Rights.\n\n     2.1.   Licenses to Orchid.\n\n            2.1.1.  Exclusive Rights. Subject to the terms and conditions of\nthis Agreement, Sarnoff hereby grants to Orchid an exclusive, worldwide, right\nand license under the Licensed Technology, with the right to sublicense, to\ndevelop, have developed, make, have made, use, have used, import, have imported,\noffer for sale, sell, have sold or lease, any Products, Storage Devices and\/or\nInput\/Output Devices for Type 1 Storage Devices and Chips and\/or to provide any\nServices in the Orchid Field, provided, however, that with respect to Type 2\nStorage Devices and Input\/Output Devices for Type 1 Storage Devices, such\nLicense shall only be exclusive for Licensed Technology described in clauses \n(a)-(e) and (g) of Section 1.17 and further provided however with respect to the\nexercised Option of the Option Field of Section 1.2 1(c), the license shall be\nexclusive for the Life Science Field and non-exclusive for materials and\nchemical research. In addition, the license granted under this Section 2.1.1\nwith regard to Ancillary Devices shall be limited to the designs of the\nAncillary Devices in the Delivered Chips and Instruments and shall include the\nright to modify such designs using Orchid or third party Intellectual Property.\n\n            2.1.2.  Non-Exclusive Rights.\n\n                    2.1.2.1  Subject to the terms and conditions of this\nAgreement, Sarnoff hereby grants to Orchid a non-exclusive, worldwide, right and\nlicense under the Licensed Technology, with the right to sublicense, to develop,\nhave developed, make, have made, use,\n\n                                       7\n\n \nhave used, import, have imported, offer for sale, sell have sold or lease (a)\nany Products, Storage Devices and Input\/ Output Devices and provide any Services\n(i) in those Option Fields for which Orchid has not exercised its Option\nhereunder as provided in Section 2.3, and (ii) which use Chips to carry out\nCombinatorial Chemistry for purposes not included in the Orchid Field provided\nhowever that such license under this Section 2.1.2.1 (ii) outside the Life\nScience Field shall be limited to use for industrial materials and chemicals and\nshall be limited to Licensed Technology under Section 1.1 7(a)-(e) and (g).\nHowever, the license granted under this Section 2.1.2.1 with regard to Ancillary\nDevices shall be limited to the designs of the Ancillary Devices in the\nDelivered Chips and Instruments and shall include the right to modify such\ndesigns using Orchid or third party Intellectual Property. The licenses granted\npursuant to this Section 2.1.2 shall in no way be deemed to limit the scope of\nany exclusive license granted pursuant to Section 2.1.1.\n\n                    2.1.2.2  Subject to the terms and conditions of this\nAgreement, Sarnoff hereby grants to Orchid a non-exclusive, worldwide, right and\nlicense under Non-Exclusive Licensed Technology, with the right to sublicense,\nto develop, have developed, make, have made, use, have used, import, have\nimported, offer for sale, sell, have sold or lease any Products, Storage Devices\nand Input\/Output Devices and provide any Services (i) in the Orchid Field and in\nthose Option Fields for which Orchid has not exercised its Option hereunder as\nprovided in Section 2.3, and (ii) which use Chips to carry out Combinatorial\nChemistry for purposes not included in the Orchid Field to the extent such uses\nof Chips is licensed under Section 2.1.2.1.\n\n                    2.1.2.3  Subject to the terms and conditions of this\nAgreement, Sarnoff hereby grants to Orchid a non-exclusive, worldwide, right and\nlicense under LicensedTechnology, with the right to sublicense, to develop, have\ndeveloped, make, have made, use, have used, import, have imported, offer for\nsale, sell, have sold or lease Input\/ Output Devices for Type 2 Storage Devices\nin the Orchid Field.\n\n            2.1.3.  Bead Handling. Sarnoff and Orchid shall negotiate in good\nfaith regarding a license upon commercially reasonable, mutually agreeable terms\nto develop, have developed, make, have made, use, have used, import, have\nimported, offer for sale, sell, have sold or lease any instrument based on the\nbead handling technology to be developed by Sarnoff in a program funded by or in\ncollaboration with Orchid and useful in connection with Chips. The license will\nbe governed by a separate agreement which will cover the scope of the license,\nfield of use, statement of work to be performed by Sarnoff, the specifications\nand drawings of the bead handling instrument and all other terms. No license is\ngranted to Orchid for such bead handling instruments by this Agreement.\n\n            2.1.4.  Additional Licenses. In addition to the Options set forth in\nSection 2.3, at Orchid's request Sarnoff will negotiate in good faith with\nOrchid at any time for the terms and conditions of an exclusive license in one\nor more Option Fields which are not the subject of a current or past Funded\nResearch Program.\n\n            2.1.5.  Restrictions on Licenses. All licenses granted to Orchid\nhereunder and all restrictions under Section 2.2. are subject to (a) a non-\nexclusive, worldwide, royalty-free license which the U.S. Government may retain\nunder any Intellectual Property whose development was funded by the U.S.\nGovernment, (b) a worldwide, non-exclusive, royalty-free license to Sarnoff \n\n                                       8\n\n \nand the U.S. Government to permit Sarnoff to engage in research. or .\ndevelopment contracts or to prepare prototypes for the U.S. Government, and (c)\nany rights previously granted to SmithKline Beecham under the SB Agreement.\nNotwithstanding anything to the contrary in this Agreement, no licenses are\ngranted to Orchid under this Agreement to make, have made, use, sell, offer for\nsale, lease or import (except as Ancillary Devices otherwise permitted\nhereunder) printers, cameras, imaging systems or displays which employ Chips,\nand materials for use with any of the foregoing.\n\n            2.1.6.  Third-Party Technology. In the event that Sarnoff has\nlicensed from a third party any of the Licensed Technology, Sarnoff's license to\nOrchid of such Licensed Technology is granted hereby to the extent that, and for\nas long as, Sarnoff can provide such rights and subject to any royalty\nobligations as hereinafter provided. Orchid shall be provided with timely notice\nof the terms of any such license under which such sublicense is granted, and\nOrchid may choose to accept or not accept such sublicense. To the extent that\nthe sale or other action by Orchid or its permitted sublicensees of Products or\nServices would give rise to a royalty or other payment obligation by Sarnoff\nunder any license under which Orchid accepts a sublicense, Orchid shall pay and\nrequire its sublicensees to pay such amount to Sarnoff or directly to the third\nparty if so requested by Sarnoff.\n\n            2.1.7.  Algorithms.  Except as included in Licensed Technology,\naccess by Orchid to algorithms for data mining and for informatics is not\nincluded in the licenses granted herein, but may be the subject of a separate\nagreement, subject to any Sarnoff agreements with third parties.\n\n            2.1.8.  Tangible Results.  All tangible instruments, devices,\nprototypes or components thereof which are produced in Funded Research Programs\nat Sarnoff funded by Orchid shall be owned by Orchid and delivered to Orchid no\nlater than upon completion of the relevant Funded Research Program.  Orchid\nshall have the right to use and to reproduce all such instruments, devices,\nprototypes or components under the terms of this Agreement.\n\n     2.2.   Restrictions on Sarnoff's Other Businesses. Nothing in this\nAgreement shall be interpreted to preclude Sarnoff or any of its subsidiaries or\nlicensees or sublicensees from engaging in their businesses; provided that\nnothing in this Section 2.2 shall limit the exclusive grant to Orchid under\nSection 2.1. Notwithstanding the foregoing, during the Option Period and the\nduration of any Funded Research Program and for a period of ninety (90) days\nafter the last to terminate of the Funded Research Programs, Sarnoff and its\nwholly-owned subsidiaries shall not:\n\n     (a)    collaborate with or enter into any agreement to provide research\nservices or grant any license to any commercial third party for (i) designing or\nmodifying Chips or Input\/ Output Devices for Chips for use in the Orchid Field\nor any Option Field in which the Option continues to be in effect, (ii)\ndesigning or modifying Type I Storage Devices or Input\/ Output Devices for Type\n1 Storage Devices that are customized or designed by Sarnoff for use with Chips\nin the Orchid Field or any Option Field in which the Option continues to be in\neffect, or (iii) designing or modifying Ancillary Devices, whether or not\nincorporated in Delivered Chips and Instruments, that are designed or customized\nby Sarnoff in collaboration with the third party while Sarnoff itself is in\npossession of the third party's Chips as part of a joint effort to design or\n\n                                       9\n\n \noptimize a system that includes Chips for use in the Orchid Field or any Option\nField in which the Option continues to be in effect; or\n\n     (b)    sell products which contain Chips, Type 1 Storage Devices,\nInput\/Output Devices for Chips or Type 1 Storage Devices to any commercial third\nparty for use in the Orchid Field or any Option Field in which the Option\ncontinues to be in effect.\n\nThe foregoing:\n\n     (w)    shall not prevent Sarnoff or any of its subsidiaries from providing\nservices related to, or from developing, licensing or selling printers, cameras,\nimaging systems or displays including but not limited to those which employ\nChips therein so long as they are not Ancillary Devices exclusively licensed to\nOrchid or designed or customized in violation of 2.2(i)(a)(iii);\n\n     (x)    shall not prevent Sarnoff or any of its subsidiaries from providing\nservices related to, or from developing, licensing or selling (a) Type 2 Storage\nDevices, or (b) Ancillary Devices, Type 1 Storage Devices or Input\/ Output\nDevices for use outside the Orchid Field and any Option Field in which the\nOption continues to be in effect or from developing, licensing or selling\nproducts of general applicability which may be useful in the Orchid Field and\nthe Option Fields in which the Option continues to be in effect as long as such\nproducts are not specifically designed or modified for use with Chips, Type 1\nStorage Devices, or Input\/ Output Devices for Chips or Type 1 Storage Devices,\n\n     (y)    shall not require Sarnoff to prevent purchasers of such Ancillary\nDevices, Storage Devices or Input\/ Output Devices from using such Ancillary\nDevices, StorageDevices or Input\/ Output Devices in the Orchid Field and any\nOption Field in which the Option continues to be in effect, and\n\n     (z)    shall not require Sarnoff to prevent parties with whom Sarnoff\ncollaborates or provides research services or to whom Sarnoff grants any license\nfrom modifying, for use in the Orchid Field or any Option Field in which the\nOption remains in effect, products developed or licensed to them by Sarnoff, as\nlong as Sarnoff or its wholly-owned subsidiaries do not contribute to the\nmodification.\n\n            2.2.1  Notwithstanding anything to the contrary in this Agreement,\nthis Agreement shall not be construed as any limitation or restriction on\nSarnoff's dry powder technology or on Sarnoff's right to grant any license to a\nthird party for its dry powder technology or its ability to apply or employ, or\ncollaborate with others to apply or employ, its dry powder technology for any\npurpose.\n\n     2.3.   Option to Orchid.\n\n     Subject to the terms and conditions of this Agreement, Sarnoff hereby\ngrants Orchid the exclusive option to include one or more Option Fields in the\nOrchid Field and to receive exclusive licenses in such Option Field(s) as\nspecified in Section 2.1 above (the \"Option\") as follows:\n\n                                       10\n\n \n            2.3.1.  Option Exercise.  Any Option with respect to an Option Field\nhereunder may be exercised by Orchid upon written notice and by timely entering\ninto an agreement for a Funded Research Program with Sarnoff relating to any\nsuch Option Field during the Term of the Option as set forth below and upon\npayment of the consideration as specified in Section 3.2 hereof\n\n            2.3.2.  Term of Option.  The Option(s) set forth in this Section 2.3\nshall continue for a period of four (4) years unless extended or sooner\nterminated as provided below (the \"Option Period\"). In order to maintain Options\nto all remaining unexercised Option Fields during the Option Period, upon each\nanniversary of the Effective Date, Orchid shall be required to have entered into\nat least one Funded Research Program agreement in one new Option Field for each\nyear that has elapsed since the Effective Date. Notwithstanding the foregoing,\nin the event Orchid has exercised at least three (3) Options during the Option\nPeriod, then the Option Period for the remaining Option may be extended at\nOrchid's sole discretion for up three additional years upon payment of an Option\nExtension Fee of [*] per remaining Option Field per year.\n\n            2.3.3.  Loss of Option Rights.  Except as otherwise provided above,\nif upon any anniversary of the Effective Date, Orchid shall have failed to\nexercise at least one Option per year as set forth in Section 2.3.2 above,\nOrchid shall lose rights to one of the remaining unexercised Option Fields. For\nany two-year period during which Orchid has failed to exercise rights to at\nleast one Option Field, Orchid shall lose the rights to two of the remaining\nunexercised Option Fields. Upon the occurrence of any such event, Orchid shall\nhave sixty (60) days in which to elect the Option Field or Fields to be removed\nfrom its Option rights hereunder. If Orchid makes no such election, Sarnoff may,\nwithin sixty (60) additional days, elect the Option Field(s) to be removed by\nnotice to Orchid. For any three-year period during which Orchid has failed to\nexercise rights to at least one Option Field, Orchid shall lose the rights to\nall of the remaining unexercised Option Fields. Failure by Orchid to comply with\nthe provisions of Section 3.2 or to fully fund and make payment for a Funded\nResearch Program in accordance with the agreement executed pursuant to Section\n2.3.1 shall give Sarnoff the right to terminate this license in accordance with\nthe provisions of Section 7.2 for the corresponding Option Field.\n\n            2.3.4.  Extension of Funded Research Programs.  Orchid shall have\nthe right to extend any Funded Research Program or to fund additional related\nresearch at Sarnoff at Orchid's request upon reasonable terms to be negotiated\nin good faith. Such extensions may include funding for the transfer of Licensed\nTechnology to the Combinatorial Chemistry Field, the In-vitro Diagnostic Field\nor any other Option Field for which Orchid has an exclusive license hereunder.\n\n            2.3.5.  Technology Audits.  Upon termination or expiration of each\nFunded Research Program, Sarnoff and Orchid shall, within 90 days of such\ntermination or expiration, meet in good faith to compile a detailed list of all\nLicensed Technology invented, or developed during the course of such Funded\nResearch Program or incorporated in devices or systems as part of such Funded\nResearch Program. Such list shall be mutually agreed between the parties and\nappended to this Agreement as a description of the Licensed Technology\nattributable to such Funded Research Program and licensed hereunder as Research\nTechnology. Sarnoff will provide reasonable assistance to Orchid to transfer all\nof such Licensed Technology to Orchid.\n\n \n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       11\n\n \n     2.4.   No Waiver of Rights.  Notwithstanding any provision of this\nAgreement, (a) the failure by Orchid to exercise any Option hereunder shall not\nin any way affect any exclusive licenses granted to Orchid herein or any\nlicenses subsequently granted to Orchid by Sarnoff, and (b) the scope of any\nlicenses granted to Orchid in the SB Agreement shall not be limited or affected\nin any way by this Agreement.\n\n     2.5.   Provision of Services. For the duration of the Option Period, in\norder to facilitate agreements with Partners for Funded Research Programs, in\nconnection with the licenses and rights granted herein to Orchid, Sarnoff agrees\nto provide reasonable assistance to Orchid in the area of business development\nin the Orchid Field and any available Option Fields as requested by Orchid.\n\n     2.6.   Rights to Jointly Developed Inventions.\n\n            2.6.1.  Joint Inventions Jointly Owned.  All right, title and\ninterest to any inventions or improvements within or outside the Orchid Field\njointly invented by the Parties prior to or during the term of this Agreement\nshall be the joint property of the Parties (\"Joint Inventions\") unless otherwise\nagreed in writing, and any resulting Patent Rights (\"Joint Patent Rights\") shall\nbe jointly owned.\n\n            2.6.2.  Restrictions on Licensing Joint Inventions.  Unless\notherwise agreed in writing, without the prior written consent of Sarnoff,\nOrchid shall not grant a license or other right to any third party to use or\npractice outside the Orchid Field and those Option Fields for which Orchid has\nnot exercised its Option, any Joint Invention or Joint Patent Right, or to\ndevelop, have developed, make, have made, use, have used, offer to sell, sell,\nhave sold, import, have imported, lease, or otherwise distribute any products or\ndeliver any services outside the Orchid Field Covered By Joint Patent Rights.\nUnless otherwise agreed in writing, without the prior written consent of Orchid,\nSarnoff shall not grant a license or other right to any third party to use or\npractice in the Orchid Field and those Option Fields for which the Orchid Option\nhas not expired, any Joint Invention or Joint Patent Right, or to develop, have\ndeveloped, make, have made, use, have used, offer to sell, sell, have sold,\nimport, have imported, lease or otherwise distribute any products or deliver any\nservices, within the Orchid Field Covered By Joint Patent Rights.\n\n            2.6.3   Sarnoff Interest in Joint Inventions.  Sarnoff's interest in\nJoint Inventions and Joint Patent Rights shall be deemed to be Licensed\nTechnology.\n\n     2.7    Grant Back to Sarnoff.  To the extent permitted by present or future\nagreements with third parties, Orchid hereby grants to Sarnoff a paid up,\nroyalty-free, non-exclusive license, with right to sublicense, to all\nIntellectual Property relating to Chips, Storage Devices, and Input\/ Output\nDevices developed by Orchid during the term of the restrictions set forth in\nSection 2.2, to develop, have developed, make, have made, use, have used,\nimport, have imported, offer for sale, sell have sold or lease products and\npractice processes outside the Life Science Field. Such license shall survive\nthe termination or expiration of this Agreement.\n\n                                       12\n\n \n3.   Consideration.\n\n     3.1    License Consideration.  In consideration of the licenses and rights\ngranted herein, Orchid:\n\n     (a)    has previously issued to Sarnoff an aggregate of 79,300 shares of\nCommon Stock, par value $.001, of Orchid, subject to the terms and conditions\nset forth in the Shareholder Common Stock Purchase Agreement dated August 30,\n1995 and 670,000 shares of Series A Convertible Preferred Stock, par value\n$.001, of Orchid, subject to the terms and conditions set forth in the Series A\nConvertible Preferred Stock Purchase Agreement dated August 30, 1995;\n\n     (b)    shall issue to Sarnoff or to Sarnoff's designated employees Eighty\nTwo Thousand Five Hundred (82,500) shares of Common Stock, par value $.001, of\nOrchid and One Hundred Sixty Seven Thousand Five Hundred (167,500) shares of\nSeries A Convertible Preferred Stock, par value $0.001, of Orchid in\nconsideration of the license granted hereunder in the In-vitro Diagnostic Field;\nand\n\n     (c)    shall pay Sarnoff royalties for Products and Services as set forth\nin Section 3.4 and 3.5.\n\n     3.2    Option Consideration.  Upon exercise of an Option with respect to\nany Option Field, Orchid shall issue to Sarnoff or its designated employees\n33,300 shares of Common Stock, par value $.001, of Orchid and shall issue to\nSarnoff 66,700 shares of Class A Preferred Stock, par value $.001, of Orchid.\nOrchid shall also issue to Sarnoff or its designated employees an additional\n50,000 shares of Common Stock, par value $.001, of Orchid for each year during\nthe term of the related Funded Research Program at the end of each funding year.\n\n     3.3    Restrictions and Limits.  All shares of Common Stock or Preferred\nStock issued to Sarnoff pursuant to this Agreement shall contain restrictive\nlegends as determined by counsel to Orchid to be required under the securities\nlaws of the United States and the relevant states or any stock subscription\nagreement and shall be subject to existing Shareholder Agreements and Charter or\nBy-Law limitations on transfer.\n\n     3.4    Royalties under Exclusive License.  Except for Products which\nincorporate no Licensed Technology other than Developed Technology (as defined\nin the SB Agreement), and\/or technology developed under the Dynal Agreements or\nServices provided using such Products which incorporate no Licensed Technology\nother than Developed Technology (as defined in the SB Agreement), and\/or\ntechnology developed under the Dynal Agreements, commencing on January 1 of the\ncalendar year following the date on which the percentage of Orchid stock\nrepresented by the total shares of Series A Convertible Preferred Stock and\nCommon Stock issued to Sarnoff as set forth in Sections 3.1(a) and (b) and\nSection 3.2 (the \"Issued Shares\"), and regardless of whether or not Sarnoff may\nhave sold all or a portion of such Issued Shares, drops below 20% of all shares\nof capital stock of Orchid then outstanding (calculated by assuming conversion\nof all outstanding convertible securities and exercise of all outstanding\nwarrants) (such January 1 being referred to herein as the \"Royalty Commencement\nDate\"), in consideration of the exclusive licenses granted pursuant to Section\n2.1.1 and the non-\n\n                                       13\n\n \nexclusive licenses granted pursuant to Section 2.1.2 Orchid shall make payments\nto Sarnoff of royalties as follows:\n\n     (a) [*] of Net Sales by Orchid and its Affiliates of Products and Services\nwhose discovery, development, testing, manufacture, use, sale, importation,\nlease or offer for sale would, but for the licenses granted hereunder, infringe\na Valid Claim of a Patent Right included in the Licensed Technology which is not\na Joint Patent Right and which is exclusively licensed hereunder, or whose\ndiscovery, development, testing, manufacture, use, sale, importation, lease or\noffer for sale directly employs or embodies proprietary Licensed Technology\nwhich is not a Joint Invention and which is exclusively licensed hereunder,\nprovided however that for Products which incorporate Licensed Technology and\neither Developed Technology (as defined in the SB Agreement), or technology\ndeveloped under the Dynal Agreements or Services provided using such Products,\nthe royalty rate shall be [*] of Net Sales;\n\n     (b) [*] of Net Sales by Orchid and its Affiliates of Products and Services\nwhose discovery, development, testing, manufacture, use, sale, importation,\nlease or offer for sale would, but for the licenses granted hereunder, infringe\na Valid Claim of a Joint Patent Right, but not any other Patent Right, which is\nincluded in the Licensed Technology and which is exclusively licensed hereunder,\nor whose discovery, development, testing, manufacture, use, sale, importation,\nlease or offer for sale directly employs or embodies only such Licensed\nTechnology which is a Joint Invention and which is exclusively licensed\nhereunder;\n\n     (c) for (i) sales by any licensees or sublicensees of Orchid of any such\nProducts or Services as specified in Section 3.4(a) or (b), and (ii) payments\nreceived by Orchid under a sublicense of exclusive Licensed Technology, Orchid\nshall pay Sarnoff [*] of any non-refundable amounts received by Orchid from such\nlicensees or sublicensees, including but not limited to advanced and minimum\nroyalties, up front and milestone project and licensing fees (excluding equity\ninvestments by licensees or sublicensees and excluding fees paid to Orchid in\nany form which are required to be used for research or other services to be\nperformed by Orchid).\n\n     3.5    Royalties under Non-exclusive License.  In consideration of the non-\nexclusive licenses granted pursuant to Section 2.1.2, except for Products which\nincorporate no Licensed Technology other than Developed Technology (as defined\nin the SB Agreement), and\/or technology developed under the Dynal Agreements or\nServices provided using such Products which incorporate no Licensed Technology\nother than Developed Technology (as defined in the SB Agreement), and\/or\ntechnology developed under the Dynal Agreements, Orchid shall make payments to\nSarnoff of royalties without regard to Sarnoff's ownership of Issued Shares as\nfollows:\n\n     (a) [*] of Net Sales by Orchid and its Affiliates of Products and Services\nwhose discovery, development, testing, manufacture, use, sale, importation,\nlease or offer for sale would, but for the licenses granted hereunder, infringe\na Valid Claim of a Patent Right included in the Licensed Technology which is not\na Joint Patent Right and which is non-exclusively licensed hereunder, or whose\ndiscovery, development, testing,\n\n \n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       14\n\n \nmanufacture, use, sale, importation, lease or offer for sale directly employs or\nembodies proprietary Licensed Technology which is not a Joint Invention and\nwhich is non-exclusively licensed hereunder, provided however that for Products\nwhich incorporate Licensed Technology and either Developed Technology (as\ndefined in the SB Agreement), or technology developed under the Dynal Agreements\nor Services provided using such Products, the royalty rate shall be [*] of Net \nSales; and\n\n     (b) [*] of Net Sales by Orchid and its Affiliates of Products and Services\nwhose discovery, development, testing, manufacture, use, sale, importation,\nlease or offer for sale would, but for the licenses granted hereunder, infringe\na Valid Claim of a Joint Patent Right, but not any other Patent Right, which is\nincluded in the Licensed Technology and which is non-exclusively licensed\nhereunder, or whose discovery, development, testing, manufacture, use, sale,\nimportation, lease or offer for sale directly employs or embodies only such\nLicensed Technology which is a Joint Invention and which is non-exclusively\nlicensed hereunder; and\n\n     (c) for (i) sales by any licensees or sublicensees of Orchid of any such\nProducts or Services as specified in Section 3.5(a) or (b) and (ii) payments\nreceived by Orchid under a sublicense of non-exclusive Licensed Technology,\nOrchid shall pay Sarnoff [*] of any non-refundable amounts received by Orchid\nfrom such licensees or sublicensees, including but not limited to advanced and\nminimum royalties, up front and milestone project and licensing fees (excluding\nequity investments by licensees or sublicensees and excluding fees paid to\nOrchid in any form which are required to be used for research or other services\nto be performed by Orchid).\n\n     (d) In addition, Orchid shall pay Sarnoff for each Option Field for which\nOrchid has a non-exclusive license under Section 2.1.2 on the relevant date the\nfollowing minimum royalties for each Option Field: [*]. For Option Fields where\nOrchid notifies Sarnoff, at least thirty (30) days prior to the minimum royalty\ndue date, that Orchid does not wish to maintain its non-exclusive license, no\nminimum royalty payment shall be due and Orchid shall no longer have a non-\nexclusive license for such Option Field.\n\n     3.6  Royalty Reductions. In the event that royalties and fees paid to\nSarnoff pursuant to Section 3.4 or 3.5 shall become a significant factor in the\nreturn realized by Orchid such as to substantially diminish its capability to\nrespond to competitive pressures in the market, the parties shall mutually agree\non a reasonable reduction in the royalties and fees payable under this Agreement\nwith respect to the affected Products and Services.  Factors to be considered in\nagreeing on the royalty reduction shall include but not be limited to the profit\nmargin on such \n\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n                                       15\n\n \nProducts and Services and on analogous and\/or competitive Products and Services\nand prices and expenditures therefor.\n\n     3.7  Royalty Term.  Royalties hereunder shall be payable only until the\nexpiration of the last to expire of the Patent Rights covering a particular\nProduct or Service.  Thereafter, Orchid shall have a fully paid up, perpetual\nnon-exclusive license to all Licensed Technology for such Product or Service.\n\n     3.8  Royalty Reporting Provisions.\n\n     (a)  Orchid agrees to submit to Sarnoff within sixty (60) days after the\ncalendar quarters ending March 31, June 30, September 30, and December 31 of\neach year in which royalties are due hereunder, reports setting forth for the\npreceding three (3) month period at least the following information for Orchid,\nits Affiliates and sublicensees:\n\n          i)    total billings for Products sold;\n\n          ii)   total billings for all Services provided or sold;\n\n          iii)  deductions applicable to determine the Net Sales thereof;\n\n          iv)   the amount of royalty due thereon; and with each such royalty\n                report to pay the amount of royalty due.\n\n     (b)  All such reports shall be maintained in confidence by Sarnoff, except\nas required by law.\n\n     (c)  All payments due hereunder shall be payable in United States dollars.\nConversion of foreign currency to U.S. dollars shall be made at the conversion\nrate existing in the United States (as reported in The Wall Street Journal) on\nthe last working day of each royalty period.\n\n     (d)  Any tax paid or required to be withheld by Orchid on account of\nroyalties payable to Sarnoff under this Agreement shall be deducted from the\namount of royalties otherwise due. Orchid shall secure and send to Sarnoff proof\nof any such taxes withheld and paid by Orchid for the benefit of Sarnoff.\n\n     (e)  If governmental regulations prevent remittances from a foreign country\nwith respect to sales made or fees received in that country, the obligation of\nOrchid to pay royalties on such sales and\/of fees shall be suspended until such\nremittances are permitted. Sarnoff shall have the right, upon giving written\nnotice to Orchid, to receive payment in such country in local currency.\n\n     3.9  Royalties to Third Parties. In the event Orchid becomes liable to pay\nroyalties or other amounts to any third party as a result of the sale of any\nproduct or the delivery of any services by Sarnoff or any Affiliate of Sarnoff\nunder Section 6 of the SB Agreement or otherwise, then Sarnoff shall be liable\nfor all such royalties or other amounts and shall, at Orchid's option, either\npay such amounts directly to the third party or shall reimburse Orchid for such\nroyalties or other amounts within thirty (30) days after receipt of an invoice\nfrom Orchid.\n\n                                       16\n\n \n     3.10  Royalty Audits. Orchid shall keep complete, true and accurate books\nof account and other appropriate records for the purpose of showing the amount\npayable to Sarnoff by way of royalty and of cumulative Net Sales and otherwise\nshowing Orchid's compliance with Section 3 of this Agreement. Said books and the\nsupporting data and other documentation, including technical information\nrelevant to the determination of Orchid's obligations hereunder, shall be kept\nat Orchid's principal office and maintained for three (3) years following the\nend of the calendar year to which they pertain.  Such records, solely to the\nextent relevant to the determination of Orchid's obligations under Section 3 of\nthis Agreement shall be open, upon reasonable notice and at reasonable times\nduring normal business hours, to the inspection by independent, certified public\naccounts (to be selected solely by Sarnoff and reasonably acceptable to Orchid)\nat Sarnoff's expense.  However, if a discrepancy of more than five percent (5%)\nof royalties due Sarnoff is discovered by the inspection, then the cost of the\ninspection shall be performed at Orchid's expense.\n\n4.  Representations and Warranties.\n\n    4.1.  Representations, Warranties and Covenants of Sarnoff. Sarnoff\nrepresents, warrants and covenants to Orchid as follows:\n\n          4.1.1.  Sarnoff is a corporation duly organized, validly existing and\nin good standing under the laws of the State of New Jersey with corporate powers\nadequate for executing and delivering, and performing its obligations under,\nthis Agreement;\n\n          4.1.2.  The execution, delivery and performance of this Agreement have\nbeen duly authorized by all necessary corporate action on the part of Sarnoff;\n\n          4.1.3.  This Agreement has been duly executed and delivered by Sarnoff\nand is a legal, valid and binding obligation of Sarnoff, enforceable against it\nin accordance with its terms;\n\n          4.1.4.  The execution, delivery and performance of this Agreement does\nnot and will not conflict with or contravene any provision of the charter\ndocuments or bylaws of Sarnoff or any material agreement, document, instrument,\nindenture or other obligation of Sarnoff;\n\n          4.1.5.  Sarnoff shall not enter into any agreement, make any\ncommitment, take any action or fail to take any action that would contravene any\nmaterial provision of, or materially derogate or restrict any of the rights and\nlicenses granted to Orchid under, this Agreement; and\n\n          4.1.6.  Schedule A sets forth a list of all Patent Rights relating to\nLicensed Technology Owned or Controlled by Sarnoff as of the Effective Date.  To\nthe best of Sarnoff's knowledge, all patents listed in Schedule A are valid and\nin full force and all applications listed therein as pending have been\nprosecuted in good faith as required by law and are in good standing.  To the\nbest of Sarnoff's knowledge, there has been no infringement by Sarnoff or its\nAffiliates with respect to any patent rights of others in the conduct of the\nresearch activities that have resulted in the existing Licensed Technology owned\nby Sarnoff.  None of the patents or patent applications listed or described in\nSchedule A is involved in any interference or opposition proceeding, and there\nhas been no written notice received by Sarnoff or any of its Affiliates that any\nsuch proceeding will hereafter be commenced.  Also, included in Schedule A is a\nlist of all \n\n                                       17\n\n \nlicenses and license agreements relating to Licensed Technology. To the best of\nSarnoff's knowledge (i) all of the licenses listed or described in Schedule A\nare legally valid and binding and in full force and effect, (ii) Sarnoff is not\nin default under any such license, and (iii) there are no defaults by any other\nparty to any such license. None of Sarnoff's rights under any such license will\nbe impaired by the consummation of the transactions contemplated hereby. Except\nfor licenses granted under the SB Agreement and except as described in Schedule\nA, Sarnoff has not granted any person or entity any right to use any of the\npatents or patent applications listed therein in the Orchid Field or the Option\nFields.\n\n           4.1.7.  Sarnoff shall diligently prosecute and maintain all Patent\nRights licensed to Orchid in accordance with the provisions set forth in Section\n5.2 and shall not take or fail to take any actions which would impair such\nPatent Rights without prior written notice to Orchid as provided in Section\n5.2.4.\n\n     4.2.  Representations, Warranties and Covenants of Orchid. Orchid\nrepresents, warrants and covenants to Sarnoff as follows:\n\n          4.2.1.  Orchid is a corporation duly organized, validly existing and\nin good standing under the laws of the State of Delaware with corporate powers\nadequate for executing and delivering, and performing its obligations under,\nthis Agreement;\n\n          4.2.2.  The execution, delivery and performance of this Agreement have\nbeen duly authorized by all necessary corporate action on the part of Orchid;\n\n          4.2.3.  This Agreement has been duly executed and delivered by Orchid\nand is a legal, valid and binding obligation of Orchid, enforceable against\nOrchid in accordance with its terms;\n\n          4.2.4.  The execution, delivery and performance of this Agreement do\nnot and will not conflict with or contravene any provision of the charter\ndocuments or bylaws of Orchid or any material agreement, document, instrument,\nindenture or other obligation of Orchid; and\n\n          4.2.5.  Orchid shall not enter into any agreement, make any\ncommitment, take any action or fail to take any action that would contravene any\nmaterial provisions of, or materially derogate or restrict any of the rights and\nlicenses granted to, Sarnoff under this Agreement.\n\n5.   Disclosure of Licensed Technology.\n\n     5.1. Documentation and Access.  Upon request by Orchid from time to time,\nSarnoff shall, within a reasonable time thereafter, deliver to Orchid copies of\nreasonable documentation describing the Licensed Technology and Sarnoff shall\ngive access to and use reasonable efforts to keep Orchid apprised of all ongoing\nand future Licensed Technology created or acquired by Sarnoff and its Affiliates\nand subject to a license or Option to Orchid hereunder. In the event that Orchid\nshall have reason to believe that Sarnoff has not complied with the requirements\nof this Section 5.1, it shall so notify Sarnoff and Sarnoff shall be given a\nreasonable opportunity to cure such non-compliance.\n\n                                       18\n\n \n     5.2. Patents.\n\n          5.2.1.  Patent Prosecution.\n\n          Sarnoff shall, by qualified independent patent counsel, prepare, file,\nprosecute and maintain patent applications, and maintain and enforce Patent\nRights included in the Licensed Technology in the countries of United States,\nCanada, Australia, Europe Patent Office (designating Austria, France, Germany,\nSpain, Ireland, Italy, Netherlands, Sweden, Switzerland, United Kingdom), Japan,\nand Korea and such other countries as mutually agreed between Orchid and Sarnoff\nand shall have all rights to otherwise deal in and to enforce rights associated\nwith Licensed Technology except as otherwise provided in Section 6.2. Sarnoff\nshall provide Orchid with copies of all proposed patent and other applications\nand filings and communications and give Orchid the reasonable opportunity to\ncomment thereon and Sarnoff will consider in good faith any comments provided to\nSarnoff by Orchid prior to filing. Sarnoff agrees to deliver to Orchid copies of\nany communications with the applicable patent office, including without\nlimitation, all office actions and responses, each patent application and\nfiling, and each registration that issues thereon.\n\n          5.2.2.  Cooperation. Orchid agrees to cause each of its employees and\nagents to take all actions and to execute, acknowledge and deliver all\ninstruments or agreements reasonably requested by Sarnoff, and necessary for the\nperfection, maintenance, enforcement or defense of Patent Rights as set forth\nabove.\n\n          5.2.3. Financing of Costs. Orchid agrees to pay to Sarnoff [*] of\nSarnoff's reasonable out of pocket costs incurred in the preparation, filing,\ntranslation, prosecution, issuance and maintenance of any such patent\napplications or patents relating to Licensed Technology except for Licensed\nTechnology under Section 1.17(f) prepared or filed after the Effective Date and\n[*] of the maintenance costs for such Patent Rights incurred by Sarnoff after\nthe Effective Date, provided that such prosecution is conducted as set forth in\nSection 5.2.1 above. If Orchid declines in writing to pay to Sarnoff its [*]\nshare of the costs of a particular Patent Right in a particular country,\nOrchid's license to such Patent Right in such particular country shall be\nterminated as of the Due Date. If Orchid fails to pay to Sarnoff within thirty\n(30) days from date of receipt of invoice (the \"Due Date\"), and such failure\ncontinues for a period of 30 days after written notice to Orchid by Sarnoff of\nsuch failure to pay, Orchid's license to such Patent Right in such particular\ncountry shall be terminated as of the Due Date.\n\n          5.2.4.  Election to Discontinue Prosecution.  Sarnoff may, with\nrespect to the Patent Rights, at any time, in its sole discretion decide that it\ndesires to discontinue its responsibility for the prosecution or maintenance of\na particular patent application or patent in one or more countries of Patent\nRights which are Licensed Technology under Section 1.17(a), (b), (c), (d), (e)\nand (g).  In such event, Sarnoff shall notify Orchid promptly in writing of its\nintention to discontinue responsibility for the prosecution or maintenance for\nsuch patent application or patent, and, in any event, shall give such notice at\nleast sixty (60) days prior to the effective date of such proposed\ndiscontinuance in order to permit Orchid to determine whether it wishes to\nassume the responsibility therefor.  Orchid shall have the right and option, but\nnot the obligation, to assume responsibility for prosecution and maintenance of\nsuch patent or patent \n\n \n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND \n    EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.\n\n\n                                       19\n\n \napplication which Sarnoff desires to discontinue. Orchid shall inform Sarnoff in\nwriting of its decision to assume responsibility for prosecution and maintenance\nof such patent or patent application and Sarnoff shall execute and deliver such\ndocuments and take such actions as are reasonably necessary or appropriate to\neffect such assumption and transfer of responsibility in a timely and efficient\nmanner. In the event Orchid exercises such right, such patent or patent\napplication shall be assigned to Orchid and removed from operation of this\nAgreement; provided that, Sarnoff shall have a royalty free, non-exclusive,\nworldwide, right and license under such Licensed Technology with the right to\nsublicense, to develop, have developed, make, have made, use, have used, import,\nhave imported, offer for sale, sell have sold or lease products and practice\nprocesses outside the Orchid Field and the Option Fields so long as the Options\nremain in effect and further provided that upon termination of this Agreement,\nsuch patents and patent applications shall be assigned to Sarnoff. However, if\nSarnoff elects to use or sublicense a particular patent in a particular country\nassigned by Sarnoff to Orchid under this Section 5.2.4, then Sarnoff shall pay\nto Orchid one half of the out of pocket costs expended by Orchid in obtaining\nand maintaining the particular patent in the particular country.\n\n     5.3.  Confidential Information.  Any Party receiving or possessing\nConfidential Information of the other Party shall use commercially reasonable\nefforts to: (i) maintain the confidential and proprietary status of such\nConfidential Information; (ii) keep such Confidential Information and each part\nthereof within its possession or under its control sufficient to prevent any\nactivity with respect to the Confidential Information that is not specifically\nauthorized by this Agreement; (iii) prevent the disclosure of any Confidential\nInformation to any other Person; and (iv) ensure that such Confidential\nInformation is used only for those purposes specifically authorized herein;\nprovided, however, that such restriction shall not apply to any Confidential\nInformation which is (a) independently developed by the receiving Party without\nreference to Confidential Information of the disclosing Party, (b) in the public\ndomain at the time of its receipt or thereafter becomes part of the public\ndomain through no fault of the receiving Party, (c) received by the receiving\nParty without an obligation of confidentiality from a third party having the\nright to disclose such information, (d) released from the restrictions of this\nSection 5.3 by the express written consent of the disclosing Party, (e)\ndisclosed to any actual or prospective permitted assignee, Partner, investor,\nlicensee, sublicensee or subcontractor of either Sarnoff or Orchid (if such\nactual or prospective assignee, Partner, investor, licensee, sublicense or\nsubcontractor is subject to the provisions of this Section 5.3 or comparable\nprovisions of other documents), or (f) required by law, statute, rule or court\norder to be disclosed (the disclosing party shall, however, use commercially\nreasonable efforts to obtain confidential treatment of any such disclosure and\nshall notify the other party in writing of the request or requirement as soon as\nfeasible so that such other party may make timely effort to protect or limit the\nconditions of disclosure of its Confidential Information). Without limiting the\ngenerality of the foregoing, Sarnoff and Orchid each shall use its commercially\nreasonable efforts to obtain confidentiality agreements from its respective\nPartners, investors, licensees, sublicensees, subcontractors employees and\nagents, similar in scope to this Section 5.3, to protect the Confidential\nInformation.\n\n     5.4.  Permitted Disclosures. Notwithstanding the provisions of Section 5.3\nhereof, Sarnoff and Orchid may, to the extent necessary, disclose and use\nConfidential Information, consistent with the rights of Sarnoff and Orchid\notherwise granted hereunder (a) for the purpose of securing institutional or\ngovernment approval to clinically test or market any Product, or (b) \n\n                                       20\n\n \nfor the purpose of securing patent protection for an invention within the scope\nof the Patent Rights. This Agreement and the terms hereof may be disclosed by\neither Party only to a third party which executes an agreement requiring such\nthird party to maintain the confidentiality thereof\n\n6.   Infringement.\n\n     6.1.  Notification of Infringement.  Orchid and Sarnoff each shall notify\nthe other of any infringement or misappropriation by any Person of any Licensed\nTechnology rights in the Orchid Field and shall provide the other with the\navailable evidence, if any, of such infringement.  In such case, the respective\nofficers of Sarnoff and Orchid shall confer to determine in good faith an\nappropriate course of action to enforce the Licensed Technology rights or\notherwise abate the infringement thereof.\n\n     6.2.  Enforcement of Licensed Technology Rights.  If the parties have not\nagreed on a course of action pursuant to Section 6.1, then if Orchid determines\nthat enforcement of the Licensed Technology rights in the Orchid Field is\nappropriate, Orchid shall have the right, but not the obligation, at its own\nexpense, to take appropriate action to enforce such rights; provided, however,\nthat, if Orchid elects to so act, Sarnoff shall have the right to participate in\nthe enforcement of such rights by agreeing to bear a percentage of the costs of\nsuch enforcement in such amount as the parties shall determine. All amounts\nrecovered in any action to enforce rights in Licensed Technology in the Orchid\nField undertaken by Orchid, whether by judgment or settlement, shall be retained\nby Orchid after reimbursing the expenses borne by both parties in enforcing such\nLicensed Technology rights.  If, within six (6) months after notice of\ninfringement, Orchid has not commenced action to enforce such rights or\nthereafter ceases to diligently pursue such action, Sarnoff shall have the\nright, at its expense, to take appropriate action to enforce such rights. Orchid\nshall have the right to participate separately in such enforcement. All amounts\nrecovered in any action to enforce Licensed Technology rights undertaken by\nSarnoff solely at its expense, whether by judgment or settlement, shall be\nretained by Sarnoff after reimbursing the expenses borne by both parties in\nenforcing such Licensed Technology rights. Sarnoff and Orchid shall fully\ncooperate with each other in the planning and execution of any action to enforce\nrights. Sarnoff shall not enter into any settlement that includes the grant of a\nlicense under, agreement not to enforce, or any statement prejudicial to the\nvalidity or enforceability of any Licensed Technology in the Orchid Field\nwithout the consent of the Orchid.\n\n     6.3.  Disclaimer of Warranty; Consequential Damages.\n\n           6.3.1.  SARNOFF EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED,\nWITH RESPECT TO THE LICENSED TECHNOLOGY, INCLUDING, W1THOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n\n           6.3.2.  NEITHER PARTY TO THIS AGREEMENT SHALL BE ENTITLED TO RECOVER\nFROM THE OTHER ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE\nDAMAGES.\n\n                                       21\n\n \n     6.4   Infringement. In the event that an action for patent infringement is\ncommenced against Orchid and\/or its sublicensees, whether severally or jointly,\nbased on the manufacture, use or sale of any Product or Service in any country,\nOrchid may, without limitation: (i) terminate and revert its license hereunder\nto such Product or Service in such country, which shall be deemed an abandonment\nof such Product or Service in such country, or (ii) defend such action on\nbehalf, of the appropriate parties at its own expense.\n\n     6.5   Markings. Set forth in Exhibit A is a list of the Patent Rights,\nwhich list shall be updated from time to time by Sarnoff Orchid shall refer to\nthis list and affix appropriate markings and legends on Products or Services\nsold or distributed by or on behalf of Orchid using such Patent Rights.\n\n     6.6   Limitations. Sarnoff makes no representations or warranties that the\nrights granted to Orchid pursuant to Section 2.1 hereof may be exercised by\nOrchid and its sublicensees without infringing any third party rights in any\ncountry in the world. Sarnoff assumes no responsibility hereunder for the\nmanufacturing, product specifications, or end-uses of Products or Services by\nOrchid or its customers or sublicensees.  No warranties made by Orchid in\nconnection with its Products or Services shall expressly or implicitly obligate\nSarnoff in any manner.\n\n     6.7   Product Indemnification.  Subject to the provisions of this Section\n6.7, Orchid agrees to defend, indemnify and hold harmless Sarnoff from any and\nall damages arising from injury or damage to persons or property (including\nwithout limitation, product liability or infringement of any proprietary rights)\nresulting directly or indirectly from Orchid's use, development, manufacture,\nlicensing, marketing, sale or other disposition or any other commercial\nexploitation of any Product or Service, except those which result from the gross\nnegligence or willful misconduct of Sarnoff.  Sarnoff shall promptly notify\nOrchid of any claim which is to be indemnified hereunder and Orchid shall have\nthe sole right to defend, settle or compromise any such action or claim.\n\n     7.    Term and Termination.\n\n     7.1.  Term.  This Agreement shall be effective as of the Effective Date and\nshall continue in full force and effect unless terminated by mutual agreement or\nas set forth below.\n\n     7.2.  Termination. In the event Orchid fails to make payments due\nhereunder, Sarnoff shall have the right to terminate this Agreement upon ninety\n(90) days' written notice, unless Orchid makes such payments within the ninety\n(90) day notice period or unless any such payment is contested in good faith, in\nwhich event Sarnoff shall not have the right to terminate this Agreement until\nthe matter is resolved in Sarnoff's favor pursuant to Section 13 hereof and\nOrchid still fails to make any such payment for thirty (30) days after such\nresolution.\n\n     7.3.  Survival of Sublicenses.  In the event any license granted to Orchid\nhereunder terminates for any reason, any sublicenses granted by Orchid under\nthis Agreement shall continue.\n\n                                       22\n\n \n8.   No Implied Waivers; Rights Cumulative.\n\n     The delay or failure of any Party at any time or times to require\nperformance of any provisions shall in no manner affect the rights at a later\ntime to enforce the same. No waiver by any Party of any condition or of the\nbreach of any term contained in this Agreement, whether by conduct, or\notherwise, in any one or more instances, shall be deemed to be, or considered\nas, a further or continuing waiver of any such condition or of the breach of\nsuch term or any other term of this Agreement.\n\n9.   Force Majeure.\n\n     Sarnoff and Orchid shall each be excused for any failure or delay in\nperforming any of its respective obligations under this Agreement, if such\nfailure or delay is caused by Force Majeure.\n\n10.  Notices.\n\n     All notices, requests and other communications to Sarnoff or Orchid\nhereunder shall be in writing (including telecopy or similar electronic\ntransmissions), shall refer specifically to this Agreement and shall be\npersonally delivered, by registered mail or certified mail, return receipt\nrequested, postage prepaid or by reliable overnight courier service providing\nevidence of receipt, in each case to the respective address specified below (or\nto such address as may be specified in writing to the other party hereto):\n\n     Sarnoff Corporation\n     201 Washington Road\n     Princeton, NJ 08543\n     Attn:  Vice President, IP and Licensing\n\n     With a copy to:\n\n     Allen Bloom, Ph.D., Esq.\n     Dechert Price &amp; Rhoads\n     Princeton Pike Corporate Center\n     Princeton, NJ 08543-5218\n\n     Orchid Biocomputer, Inc.\n     201 Washington Road\n     Princeton, NJ 08543\n     Attn:  President\n\n     With a copy to:\n\n     Jeffrey M. Wiesen, Esq.\n     Mintz, Levin, Cohn, Ferris,\n     Glovsky and Popeo, P.C.\n     One Financial Center\n     Boston, MA 02111\n\n                                       23\n\n \n     Any notice or communication given in conformity with this Section 12 shall\nbe deemed to be effective: (i) when received by the addressee, if delivered by\nhand; (ii) three (3) days after mailing, if mailed; and (iii) one (1) business\nday after delivery to a reliable overnight courier service providing evidence of\nreceipt.\n\n11.  Successors and Assigns.\n\n     The terms and provisions of this Agreement shall inure to the benefit of,\nand be binding upon, Sarnoff, Orchid, and their respective successors and\nassigns.\n\n12.  Amendments.\n\n     No amendment, modification, waiver, termination or discharge of any\nprovision of this Agreement, nor any consent to any departure by Sarnoff or\nOrchid therefrom, shall in any event be effective unless the same shall be in\nwriting specifically identifying this Agreement and the provision intended to be\namended, modified, waived, terminated or discharged and signed by Sarnoff and\nOrchid, and each such amendment, modification, waiver, termination or discharge\nshall be effective only in the specific instance and for the specific purpose\nfor which given.  No provision of this Agreement shall be varied, contradicted\nor explained by any oral agreement, course of dealing or performance or any\nother matter not set forth in an agreement in writing and signed by Sarnoff and\nOrchid.\n\n13.  Arbitration\n\n     13.1.  The Parties shall attempt to resolve any dispute or controversy\narising under or relating to the interpretation or meaning of this Agreement by\ngood faith negotiations. Any matter that cannot be resolved by such good faith\nnegotiation shall be resolved by final and binding arbitration conducted by\nthree (3) arbitrators in Princeton, New Jersey, in accordance with the then-\ncurrent American Arbitration Association (\"AAA\") Commercial Arbitration Rules\n(the \"AAA Rules\") as modified by this Section 13.\n\n     13.2.  The arbitrators shall be selected by mutual agreement of the parties\nor, failing such agreement, in accordance with the aforesaid AAA Rules.  At\nleast one (1) of the arbitration panel shall be reasonably familiar with the\nindustry in which Orchid operates.  The parties shall bear the costs of the\narbitrators equally.\n\n     13.3.  The parties shall have the right of limited pre-hearing discovery,\nin accordance with the U.S. Federal Rules of Civil Procedure, as then in effect,\nfor a period not to exceed sixty (60) days.\n\n     13.4.  As soon as the discovery is concluded, but in any event with thirty\n(30) days thereafter, the arbitrators shall hold a hearing in accordance with\nthe AAA Rules.  Thereafter, the arbitrators shall promptly render a written\ndecision, together with a written opinion setting forth in reasonable detail the\ngrounds for such a decision.\n\n     13.5.  Judgment may be entered in any court of competent jurisdiction to\nenforce the award entered by the arbitrator.\n\n                                       24\n\n \n     13.6.  The duty of the parties to arbitrate any dispute hereunder shall\nsurvive expiration or termination of this Agreement for any reason.\n\n14.  Governing Law.\n\n     This Agreement shall be governed by and construed in accordance with the\nlaws of the State of New Jersey.\n\n15.  Severability.\n\n     If any provision hereof should be held invalid, illegal or unenforceable in\nany respect in any jurisdiction, then, to the fullest extent permitted by law,\n(a) all other provisions hereof shall remain in full force and effect in such\njurisdiction and shall be liberally construed in order to carry out the\nintentions of the parties hereto as nearly as may be possible and (b) such\ninvalidity, illegality or unenforceability shall not affect the validity,\nlegality or enforceability of such provision in any other jurisdiction. To the\nextent permitted by applicable law, Sarnoff and Orchid hereby waive any\nprovision of law that would render any provision hereof prohibited or\nunenforceable in any respect.\n\n16.  Headings.\n\n     Headings used herein are for convenience only and shall not in any way\naffect the construction of, or be taken into consideration in interpreting, this\nAgreement.\n\n17.  Execution in Counterparts.\n\n     This Agreement may be executed in any number of counterparts, each of which\ncounterparts, when so executed and delivered, shall be deemed to be an original,\nand all of which counterparts, taken together, shall constitute one and the same\ninstrument.\n\n18.  Interpretation.\n\n     The parties hereto acknowledge and agree that (i) each Party and its\ncounsel reviewed and negotiated the terms and provisions of this Agreement and\nhave contributed to its revision; (ii) the rule of construction to the effect\nthat any ambiguities are resolved against the drafting Party shall not be\nemployed in the interpretation of this agreement; and (iii) the terms and\nprovisions of this Agreement shall be construed fairly as to all Parties hereto\nand not in a favor of or against any Party, regardless of which Party was\ngenerally responsible for the preparation of this Agreement.\n\n19.  Entire Agreement.\n\n     This Agreement, together with any agreements referenced herein,\nconstitutes, on and as of the date hereof, the entire agreement of Sarnoff and\nOrchid with respect to the licensing or transfer of technology from Sarnoff to\nOrchid and all prior or contemporaneous understandings or agreements, whether\nwritten or oral, between Sarnoff and Orchid with respect to such subject matter\nare hereby superseded in their entirety except for the SB Agreement. In the case\nof any conflict between the terms of this Agreement and the SB Agreement, the SB\nAgreement shall govern.\n\n\n\n                                       25\n\n \n     IN WITNESS WHEREOF, the parties hereto have caused this License Agreement\nto be duly executed under seal and delivered as of the date first above written.\n\n          SARNOFF CORPORATION\n\n     By: \/s\/ Carmen A. Catanese, Ph.D.\n         ------------------------------\n             Carmen A. Catanese, Ph.D. \n\n     Title: Vice President\n           ----------------------------\n\n          ORCHID BIOCOMPUTER, INC.\n\n     By: \/s\/ Dale R. Pfost, Ph.D.\n         ------------------------------\n             Dale R. Pfost, Ph.D.\n\n\n\n     Title: Chief Executive Officer\n            and President\n            ----------------------------\n\n\n\n\n                                       26\n\n \n                               LICENSE AGREEMENT\n\n                                  SCHEDULE A\n\n                             PRESENT PATENT RIGHTS\n\n\n[*]\n\n\n\n                                      27\n\n[*] CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND\n    COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. \n\n\n<\/description><\/sequence><\/type><\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6590,8422],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9613,9617],"class_list":["post-42641","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-affymetrix-inc","corporate_contracts_companies-orchid-biosciences-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42641","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42641"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42641"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42641"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42641"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}