EXHIBIT 10.15
COOPERATION AGREEMENT
Agreement for a cooperation between
SEQUENOM Inc., Boston, x/x XXX Xxxxxx Xxxxxxx Management L.P., 000 Xxxx Xxxxxx
Xxxxxx, XX 00000, XXX
- in the following: participation partnership
(Beteiligungsgesellschaft: BG) -
and the Technologie Beteiligungs Gesellschaft mbH of the Deutsche
Xxxxxxxxxxxxxx, Xxxxxxxxxx. 4,53170
Bonn
- in the following: tbg
with the maintenance of the participations mentioned in this agreement in
SEQUENOM Instruments GmbH, Xxxxxxxxxxxxxxxxxx 00x, 00000 Xxxxxxx
- in the following: Technologie-Unternehmen (TU)
(S) 1
PARTIES TO THE AGREEMENT
Within the scope of the program "Participation Capital for Start-Up Technology-.
Companies" carried out by the Bundesministererium fur Bildung,
Wissenschaft, Forschung und Technologie (BMBF) (Federal Ministry for
Education, Science, Research and Technology) and the Deutsche
Ausgleichsbank, tbg supports small technology-companies of the industrial
economy, as long as they are not older than 10 years and as long as they
comply with the definition of small and middle size firms (KMU) in the new
federal states and Berlin (East), and small firms in the remaining federal
area, respectively; i.e.
- they do not employ more than 250 (50) workmen and either
- achieve an annual turnover of not more than 40 Mio. DM (10 Mio. DM) or
- achieve a balance sheet total of not more than 20 mio DM (4 mio DM), and
- are in possession of at the most 25% of one or more of companies not
fulfilling these definitions (exception: public participation companies, high
risk capital companies and - as far as no control is exercised -institutional
investors).
All three prerequisites have to be fulfilled simultaneously; i.e. a company is
only considered as KMU, if it has the required independence, if it meets the
given with regard to the number of employees, and if it does not excede at least
one of the limiting values for the annual turnover or balance sheet total
respectively.
tbg takes over shares for the financing of innovation projects according to the
participation principles added by tbg, which are part of this agreement and
which BG recognizes and that:
- for applied research and development up to a logic second before the
beginning of the commercial production according to the EU definition with
the following limitations:
- Applied research encompasses research or experiments with the purpose, to
obtain new knowledge in order to facilitate the creation of new products,
methods of production, or services. Normally we can say that it ends with the
creation of a first prototype. Development encompasses work on the basis of
applied research with the objective of the introduction of new or essentially
improved products, methods of production or services up to - but not
including - the industrial application and the commercial use. To this level
belong pilot projects and demonstration projects, as well as the further
necessary development work that will finally flow into a bundle of
information which permits the taking up of the production.
- for the investments for the introduction to the market
tbg intends to take over a silent participation in the amount of DM
3,000,000.00, provided that it will undertake that the participation mentioned
in section 2 between BG and TU will be agreed to. A copy of the intended
participation agreement between tbg and TU is attached to this agreement.
2) BG intends to take over from TU a participation in form of a non-refundable
(company) premium in the amount of DM 3,000,000.00. This premium stands in
relation with a pre-existing ordinary capital of BG in TU in the amount of DM
37,500.00
BG confirms that it will not lay any claims on the refinancing of a
participation in TU in the scope of the program "participation capital for small
technology companies" and the promotion (refinancing or securing) of this
participation in TU from the ERP special assets.
3) The parties will immediately inform each other in writing, if the mentioned
participation arrangements have been finalized with TU. As far as the final
participation agreements differ from the announced drafts, the agreements
have to be transmitted in the authoritative version and deviations
(differences) are to be explained on request.
4) Possible later amendments of the participation agreements, sale/mortgaging of
the shares and of the claims to tbg resulting from this cooperation
agreement, or further participation or loan agreements, the parties shall
only agree with the consent of their party to the agreement. As far as a
proper notice to terminate between BG and TU is admissible through BG, it
also needs the approval of tbg. The partners have to inform each other
immediately about a notice of termination due to important reason, if
possible before the announcement of the notice of termination.
(S) 2
MANAGEMENT OF TU
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BG will control with the necessary care the management of TU and the development
of the innovation scheme promoted by tbg and assist TU, if required, with
management support. Fundamentally, BG is willing and in a position, but not
obliged, to make additional means of financing available to TU, if needed.
(S) 3
USE OF RESOURCES
Before the call off of means of participations of tbg, BG will verify the agreed
upon call off assumptions between tbg and TU and, as far as they exist, confirm
them. BG will support the call off, if there are neither economical nor
Technical objections regarding the realization of the innovation plan promoted
by tbg at the time of the call off and after their knowledge.
2) BG will verify and confirm the use according to paragraph 3 of the
participation agreement between tbg and TU.
(S) 4
INFORMATION AND CONTROL RIGHTS
1) BG obliges itself with tbg to the reporting about the economic situation of
TU and about the position of the innovation plan promoted by tbg.
2) Reports are to be made regularly half-yearly up to March 31 and up to
September 30.
3) An immediate and if possible a preceding report of tbg has to result by means
of all measures known to BG that excede the normal management of TU. These
are in particular the measures in need of consent, that according to (S) 5 of
the participation agreement between tbg and TU and the reasons mentioned in
(S) 12 of this participation agreement for a termination due to an urgent
reason.
4) The report shall be made in writing, and in urgent cases mainly orally,
provided that tbg does not renounce this explicitly in writing.
5) tbg is entitled to request on its own or through a designated third party
extensive information about all legal relations of BG with TU and to inspect
at BG all documents regarding TU.
6) BG agrees that tbg conveys to BMBF or the EU commission, on request, the
existing data regarding his participation in TU for the realization of
supervision and control authorities.
7) BG furthermore agrees that tbg conveys the obtained data about the
participation of BG in TU for the scientific evaluation of the pilot project
(Modellversuch) mentioned in (S) 1, section 1 of this agreement, to BMBF or
to an appointed institution. Moreover, BG agrees to
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provide immediately the information, required for the scientific evaluation
of the pilot project, to BMBF and to an appointed institution. With regard to
the evaluation and if need be with regard to the publication of data about
the pilot project, it will be secured (guaranteed) that BG will suffer no
damages.
(S) 5
Risk participation
Investment refers to BG's total payment made for the subscription of the shares
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in TU. This includes registered capital and share premium.
BG refers to Sequenom Inc.
--
tbg refers to the entity providing the silent partnership.
---
TU refers to Sequenom Instruments GmbH
--
BG is entitled to a partial compensation of a loss of its Investment entered
into with TU according to (S) 1 section 2 (registered capital and premium)
within 5 years from the beginning of the participation of tbg with TU.
1) A claim to a compensation from tbg is justified, if a bankruptcy procedure
has been opened or has been initiated or if the opening of bankruptcy
proceedings has been denied due to a lack of assets, or if an affidavit has been
issued on behalf of the TU, or the continuous insolvency of TU has been proven
in a different way.
tbg will pay to BG within 30 calendar days after the day of its justified claim
a sum of 50% of its Investment made for acquiring the participation (i.e., which
has been matched by the silent partnership) according to (S) 1 section 2, at the
most, however, 50% of its own amount of participation paid to TU. The upper
limit of tbg's payment will be adjusted to reflect a prior reduction of the
silent partnership participation of tbg, such reduction being possible according
to the Silent Partnership Agreement between tbg and TU.
2) If, due to a settlement by court (or outside court) of any claims of BG
resulting from its participation a certain proportion of its Investment
according to (S) 1 section 2 has been lost, or if BG within the scope of
measures of stabilization, in which all creditors and participation donors of
TU- the latter being equal quotas - are participating, has partially waived a
claim to its Investment as defined in (S) 1 section 2, then BG can claim from
tbg the reimbursement of this partial loss. However, tbg will only pay an
amount that is in the same proportion with the highest amount of the risk
participation (see section 1), as the partial loss of BG is to the total
amount of its Investment. A partial payment reduces further obligations of
tbg under the risk participation. (In other words, if the actual loss of the
BG is reduced by a bankruptcy settlement or other settlement, then the claim
to the tbg will be reduced in the same fashion.)
3) Until the termination of the sixth calendar month following BG's claim, tbg
can demand from BG the total or partial transfer of the stock mentioned in
(S) 1 section 2 to itself or to a third party appointed by tbg. Contingent
payment obligations into TU's registered capital or share premium account,
and damages obligations of BG will not be transferred to tbg. Transfer cost
will be borne by BG. With the partial claim of tbg according to 2) the
transfer obligation of BG is reduced in the same proportion as the payment
obligation of tbg. (This
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provision allows the tbg to have up to six months to decide to whom it may
transfer the stock of the TU.) The transferability of TU's stock has to be
maintained by BG and is a prerequisite for claiming tbg's risk participation.
(S) 6
BEGINNING AND DURATION OF THE COOPERATION
1) BG is obliged towards tbg with the care of TU according to (S) 2 and with the
informing according to (S) 4 of this agreement from the time when this
agreement and the participation agreements between tbg and TU, as well as BG
and TU have been signed by the participants respectively.
2) The cooperation ends with the termination of the participation of tbg or BG.
3) The proper termination of this cooperation agreement is excluded.
(S) 7
GENERAL PROVISIONS
1) Amendments and supplements of this agreement are needed in writing. Oral
agreements on the side of this agreement do not exist.
2) If one provision of this agreement is legally ineffective, then the other
provisions are not affected by it. BG and tbg are obliged to replace
ineffective provisions of agreement by regulations that are legally effective
and that are corresponding in idea and purpose to the legally ineffective
provisions as far as possible.
3) Bonn has been agreed upon as legal domicile for all legal disputes resulting
from this agreement and its realization.
Bonn, Boston
Technologie-Beteiligungs- SEQUENOM Inc., Boston
Gesellschaft m. b. H. der c/o TVM Techno Venture Management
Deutschen Ausgleichsbank 000 Xxxx Xxxxxx
Xxxxxx, XX 00000
XXX
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