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Commitments and contingencies

12 Months Ended

Sep. 30, 2021

Commitments and contingencies

Commitments and contingencies

7.	Commitments and contingencies

Litigation

On February 3, 2016, Agilent filed a lawsuit against the Company and its Chief Executive Officer, Dr. Emily Leproust (the “Complaint”), in the Superior Court of California, Santa Clara County, or the Court. The Complaint also named Does 1 through 20, which are fictitious placeholder defendants. Agilent’s complaint alleged three claims against Twist and Dr. Leproust: (1) alleged breach of contract, related to the use of confidential information and alleged breach of non-solicitation obligations against Dr. Leproust; (2) alleged breach of a duty of loyalty against Dr. Leproust; and (3) alleged misappropriation of trade secrets under the California Uniform Trade Secrets Act, or CUTSA, against all defendants.

On December 7, 2018, the Court granted Agilent’s motion to amend its complaint, permitting Agilent to file its Second Amended Complaint. This new complaint added amended allegations against the Company and Dr. Leproust, and also new claims for breach of contract and trade secret misappropriation against two individuals: Dr. Siyuan Chen, a current Company employee and Solange Glaize, a former Company employee. The Court also set trial to begin on February 24, 2020.

On February 6, 2020, the Company, Dr. Leproust, Dr. Chen, Ms. Glaize (together, the Twist Group) and Agilent agreed to the terms of a settlement agreement (the “Settlement Agreement”) pursuant to which the Twist Group and Agilent each agreed to request dismissal of all claims against each other. The Settlement Agreement resolves the litigation initially commenced by the Complaint and contains no admission of liability or wrongdoing. Pursuant to the Settlement Agreement, the Company agreed to pay Agilent $22.5 million in cash within 14 days of the Settlement Agreement. This amount has been accrued in the consolidated financial statements in the three months ended December 31, 2019. In addition, the Twist Group and Agilent each agreed to release the other party from all known and unknown claims related to the claims and counterclaims alleged or that could have been alleged in such litigation or that arise from the facts and events that gave rise to such litigation. Further, Agilent agreed to grant the Company a limited non-exclusive license to use the trade secrets asserted by Agilent in the litigation, which extends to the Company’s supply chain, including its customers, suppliers, distributors and resellers. Agilent also agreed not to sue the Company for the infringement of any Agilent patent issued or pending as of the date of the Settlement Agreement or claim priority thereto, solely to the extent such patents claim a trade secret alleged in the litigation. There is no other covenant or release of claims for patent infringement.

The Court dismissed the case on February 14, 2020.

Indemnifications

In the ordinary course of business, the Company enters into agreements that may include indemnification provisions. Pursuant to such agreements, the Company may indemnify, hold harmless and defend the indemnified parties for losses suffered or incurred by the indemnified party. Some of the provisions will limit losses to those arising from third-party actions. In some cases, the indemnification will continue after the termination of the agreement. The maximum potential amount of future payments the Company could be required to make under these provisions is not determinable. To date, the Company has not incurred material costs to defend lawsuits or settle claims related to these indemnification provisions. The Company has also entered into indemnification agreements with its directors and officers that may require it to indemnify its directors and officers against liabilities that may arise by reason of their status or service as directors or officers to the fullest extent permitted by corporate law. The Company also has directors’ and officers’ insurance.

Leases

The Company leases certain of its facilities under non-cancellable operating leases expiring at various dates through 2034. The Company is also responsible for utilities, maintenance, insurance, and property taxes under these leases.

Certain leases include options to renew or terminate at the Company’s discretion. The lease terms include periods covered by these options if it is reasonably certain the Company will renew or not terminate. The Company’s lease agreements do not contain any material residual value guarantees or restrictive covenants.

Supplemental balance sheet information related to the Company’s operating lease as of September 30, 2021, was the following:


		September 30,
(in thousands)		2021
Assets:
Operating lease right-of-use-asset		$	61,580
Current liabilities:
Current portion of operating lease liabilities		$	8,213
Noncurrent liabilities:
Operating lease liabilities, net of current portion		$	53,156

Future minimum lease payments under all non-cancelable operating leases as of September 30, 2021 are as follows:


		Operating
(in thousands)		leases
Years ending September 30:
2022		$	8,986
2023			10,595
2024			10,333
2025			10,489
2026			9,083
Thereafter			84,753
Total minimum lease payments		$	134,239

Less: imputed interest			(55,242)
Less: tenant improvement allowance (receipt anticipated in 2022)			(17,628)
Total operating lease liabilities		$	61,369
Less: current portion			(8,213)
Operating lease liabilities, net of current portion		$	53,156

For the year ending September 30, 2022, future minimum lease payments are comprised of the anticipated receipt of tenant improvement allowances totaling $17.6 million anticipated to be received in 2022, partially offset by non-cancelable operating lease payments of $9.0 million. The statement of cash flows for the year ended September 30, 2021, include changes in right-of-use assets and operating lease liabilities of $27.9 million and $30.1 million, respectively. For the year ended September 30, 2020, changes in right-of-use assets and operating lease liabilities were $2.1 million and $3.1 million, respectively.

Operating lease expense was $9.5 million and $7.9 million for the year ended September 30, 2021 and 2020 respectively. Cash payments for amounts included in the measurement of operating lease liabilities for the year ended September 30, 2021 were $8.0 million. As of September 30, 2021, the weighted-average remaining lease term was 17.3 years and the weighted-average discount rate was 6.4%.

In December 2020, the Company entered into a 12-year operating lease for an approximately 111,000 square-foot facility in Wilsonville, Oregon to further expand the Company operations. Upon execution of the lease agreement, the Company provided the landlord an approximately $1.0 million security deposit in the form of a letter of credit. Subject to certain conditions pursuant to the lease, the Company expects monthly rent payments on the new facility to commence in the first quarter of 2022. The Company will pay an initial annual base rent of approximately $1.7 million, which is subject to scheduled 3% annual increases, plus certain operating expenses. The Company has been provided a tenant improvement allowance of $13.3 million. The Company has the right to sublease the facility, subject to landlord consent. The Company also has the option to extend the lease for two terms of five years. The lease commenced on April 15, 2021. The future minimum lease payments under the agreement are $27.9 million.

On April 13, 2021, the Company entered into a first amendment (the “First Lease Amendment”), which amends the terms of the Wilsonville, Oregon lease agreement dated December 18, 2020. The First Lease Amendment increases the premises originally leased within the same building by approximately 101,000 square feet (the “Additional Premises”). The Company intends to use the Additional Premises to support its additional product offerings, including DNA data storage, or other high value growth product lines. The First Lease Amendment also extends the termination date until April 1, 2034 and modifies the Company’s option to extend the term to an additional 10-year term for the Premises. Additional rent under the First Lease Amendment for the Additional Premises commences April 1, 2022 with approximately $1.2 million in rent payments due the first year and approximately $17.6 million in aggregate estimated rent payments due over the total initial term of the First Lease Amendment. In addition, the First Lease Amendment increases the base rental payments relating to the Original Premises by 3% for the period in which the First Lease Amendment extends the term of the original premises. The Company is obligated to pay approximately 26% of the operating expenses and utilities applicable to the Additional Premises. The Landlord will provide the Company with a tenant improvement allowance in connection with the Company’s improvements to the Additional Premises of approximately $4.3 million.

On April 14, 2021, the Company entered into a 5-year operating lease for a 15,500-square-feet warehouse in Brisbane, California to further expand the Company operations. Upon execution of the lease agreement, the Company provided the landlord an approximately $0.2 million security deposit. The Company will pay an initial annual base rent of approximately $0.3 million, which is subject to scheduled 3% annual increases, plus certain operating expenses. The Company has the right to sublease the facility, subject to landlord consent. The total future minimum lease payments under the agreement are $2.2 million.

On July 28, 2021, the Company entered into a 7-year operating lease for approximately 21,000 square-feet of office space located in South San Francisco, California, to further expand the Company operations. Upon execution of the lease agreement, the Company provided the landlord an approximately $0.2 million security deposit. The Company will pay an initial annual base rent of approximately $1.7 million, which is subject to scheduled 3% annual increases, plus certain operating expenses. The Company has the right to sublease the facility, subject to landlord consent. The lease had not commenced as of September 30, 2021 as the landlord has not vacated the office space. The total future minimum lease payments under the agreement are $13.1 million.