Exhibit 10.10


AGREEMENT


 


THIS
AGREEMENT (the “Agreement”), effective this 26th day of June, 2002 (the “Effective
Date”), is entered into by and between Laboratory Corporation of America
Holdings (“LABCORP”), a Delaware corporation having its principal place of
business at 430 South Spring Street, Burlington, NC 27215; and EXACT Sciences
Corporation (“EXACT”), a Delaware corporation having its principal place of
business at 63 Great Road, Maynard, MA 01754.


 


EXACT owns certain proprietary technology directed to cancer detection
and is producing improvements, enhancements, and inventions related to that
technology.


 


LABCORP has equipment, facilities, knowledge, and know-how that are
useful in connection with the performance of commercial and clinical testing relating
to EXACT’s proprietary technology.


 


EXACT and LABCORP (the “Parties”), therefore, in consideration of the
mutual covenants and conditions contained herein, agree as follows:


 


Article 1: 
Definitions


 


1.1                               “Affiliate” shall mean, with respect to either
Party or any third party, any Person controlling, controlled by or under the
common control of that Party or third party, as the case may be at any time
during the Term of this Agreement.  For the purpose of this definition, “control”
shall mean direct or indirect ownership of fifty percent (50%) or more of the
shares entitled to vote for the election of directors.


 


1.2                               “Approved Kit” shall mean an in vitro
diagnostic kit for the performance of Assays.


 


1.3                               “ACP”, which is an acronym for ‘Average
Compensated Price’, shall mean, for any specified month, the average dollar
amount received (as such average is calculated in the manner set forth on
Schedule 3) for each Assay performed by LABCORP and its Affiliates and
sub-licensees under this Agreement


 


1.4                               “Analytical Process Improvement” shall mean
EXACT’s protocols and associated Technology which: 1) reduces the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ , or reduces the [CONFIDENTIAL TREATMENT REQUESTED]/*/,
2) [CONFIDENTIAL TREATMENT REQUESTED]/*/, 3) results in [CONFIDENTIAL TREATMENT
REQUESTED]/*/ using EXACT’s cost model as of the Effective Date, and 4) is
[CONFIDENTIAL TREATMENT REQUESTED]/*/  (as
specified in Section 3.5).


 


1.5                               “Assay” shall mean a test for the detection
of colorectal cancer on a patient sample using the Technology in the Field.


 


1.6                               “Capture Process Improvement” shall mean
EXACT’s protocol and associated Technology that will reduce the [CONFIDENTIAL
TREATMENT REQUESTED]/*/, and that will [CONFIDENTIAL TREATMENT REQUESTED]/*/,
using EXACT’s cost model as of the Effective Date.   If there are
[CONFIDENTIAL TREATMENT REQUESTED]/*/ in order to implement the Capture Process
Improvement for an annual run rate of [CONFIDENTIAL TREATMENT REQUESTED]/*/,
then EXACT shall promptly reimburse LABCORP  for
the amount greater than [CONFIDENTIAL TREATMENT REQUESTED]/*/.  EXACT
shall deliver to LABCORP the Capture Process Improvement on or before
[CONFIDENTIAL TREATMENT REQUESTED]/*/.  The
[CONFIDENTIAL TREATMENT REQUESTED]/*/ shall be reduced by [CONFIDENTIAL TREATMENT
REQUESTED]/*/ after [CONFIDENTIAL TREATMENT REQUESTED]/*/ that the delivery of
the Capture Process Improvement is delayed.


 


1.7                               “Commercial Launch Date” shall mean the later
to occur of (i) completion of the Initial EXACT Obligations, or (ii) [CONFIDENTIAL
TREATMENT REQUESTED]/*/.


 


1.8                               “Exclusive Period” shall mean the period
beginning on April 1, 2003 and ending on April 1, 2008, unless sooner
terminated in accordance with Section 8.1, 11.2, or 11.6.


 


1.9                               “Field” shall mean a screening assay (regardless
of other uses to which such assay is put) for colorectal cancer in patient
samples, excluding tests solely for staging and/or monitoring of colorectal
cancer which do not obsolete or adversely impact such screening assay.


 


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1.10                        “First Trigger Date” means the  first of: (i) the date on which
LABCORP, its Affiliates and sublicensees net collected revenue from performance
of Assays (excluding Research Assays) exceeds [CONFIDENTIAL TREATMENT
REQUESTED]/*/, or (ii) the date on which LABCORP, its Affiliates and
sublicensees have processed and billed for [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Assays (excluding Research Assays) regardless of whether the
Assays have been reimbursed.


 


1.11                        “Initial EXACT Obligations” shall mean EXACT
providing LABCORP with the protocols, SOPs, reagents, and other information and
materials reasonably required by LABCORP in order for LABCORP to validate the
Assays at EXACT’s facilities.


 


1.12                        “Invention” shall mean any (i) ideas, designs,
concepts, techniques, discoveries, inventions (whether or not patentable),
improvements, modifications, know-how, methods, technology, developments, SOPs,
protocols, proprietary information, data, and works of authorship; and (ii) patents,
copyrights (including without limitation reproducing and preparing derivative
works), trademarks, service marks, trade secret, trade dress, or other
intellectual property rights associated with the foregoing.


 


1.13                        “Joint Invention” shall mean any Invention
conceived and/or reduced to practice jointly by one or more employees or agents
of EXACT and one or more employees or agents of LABCORP or its Affiliates in
the course of performing any activities under this Agreement.


 


1.14                        “Locus” or “Loci” shall mean point mutation(s),
insertion(s) and/or deletion(s) in (i) genes, such as, but not
limited to, [CONFIDENTIAL TREATMENT REQUESTED]/*/, or (ii) microsatellites,
such as, but not limited to, [CONFIDENTIAL TREATMENT REQUESTED]/*/, for use
with the Technology.


 


1.15                        “Marketing Plan” shall mean a plan to be
separately agreed upon by the Parties in writing and which shall specify a
joint marketing and sales plan including but not limited to plans for the
development and execution of a comprehensive direct and indirect sales plan,
medical education programming, advocacy work toward guideline inclusion,
in-office and other consumer programming, and managed care activities.


 


1.16                        “Minimum Performance Standards” shall mean
the processing by LABCORP (including all of its Affiliates and sub-licensees)
and the entities listed on Schedule 2 (including their Affiliates) of at least
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Assays (in the aggregate), excluding
Research Assays, on or prior to [CONFIDENTIAL TREATMENT REQUESTED]/*/ .


 


1.17                        “Negative Article” shall mean a [CONFIDENTIAL
TREATMENT REQUESTED]/*/.


 


1.18                        “Operations Plan” shall mean a plan to be
separately agreed upon by the Parties in writing and which shall specify
procedures for sample collection, sample distribution, capacity planning, and
Assay performance.


 


1.19                        “Person” shall mean an individual,
corporation, partnership, joint venture, trust, or unincorporated organization,
or a government or any agency or political subdivision thereof.


 


1.20                         “Records” shall mean all written records,
accounts, and data regarding the activities performed by LABCORP or its
Affiliates under this Agreement.


 


1.21                         “Research Assays” shall mean Assays performed
by LABCORP or its Affiliates or sub-licensees for research purposes (including
without limitation clinical trials) without payment from a third party.


 


1.22                         “Research Purposes” shall mean non-commercial
research purposes to support the development of in vitro diagnostic products
and assays to be developed by or for EXACT (including clinical trials where
testing is not paid for by a third party, but excluding clinical trials where
testing is paid for by a third party).


 


1.23                        “Second Trigger Date” means the date on which
(whichever comes first): (i) LABCORP’s, its Affiliates’ and sublicensees’
net collected revenue from performance of Assays (excluding Research Assays)
exceeds [CONFIDENTIAL TREATMENT REQUESTED]/*/, or (ii) LABCORP, its
Affiliates and sublicensees have processed and billed for [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Assays (excluding Research Assays) regardless of
whether the Assays have been reimbursed.


 


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1.24                         “Specified Compensated Assays” shall mean,
with respect to any specified month for determination of any payment due by
LABCORP to EXACT under Section 6.2 of this Agreement, the total number of
Assays that meet each of the following criteria:  (a) such Assays
were performed by LABCORP or any of its Affiliates or sub-licensees at any time
during the twelve (12) month period ending on the last day of the specified
month, and (b) LABCORP or any of its Affiliates or sub-licensees received
itemized fee-for-services payments for such Assays during the specified month.


 


1.25                         “Standard of Care” shall mean inclusion in
publicly reported guidelines of [CONFIDENTIAL TREATMENT REQUESTED]/*/  for screening for colorectal cancer.


 


1.26                         “Technology” shall mean individually or
collectively the United States and Canadian patents and United States and
Canadian patent applications of EXACT listed in the attached Schedule 1
(including all United States and Canadian patents issued from such
applications, continuations, continuations-in-part used in the Field, and
divisional applications based upon such applications, and reissues,
re-examinations of such patents) and any additional Inventions as set forth in Section 2.3
below.  For the avoidance of doubt, Technology shall not include
continuations-in-part used solely outside the Field.


 


1.27                         “Territory” shall mean the United States and
Canada and their respective territories and possessions, except that it shall
mean worldwide with respect to clinical trials.


 


1.28                         “Term” shall have the meaning given to it in Section 11.1
of this Agreement.


 


Article 2: 
Licenses


 


2.1                               License.  EXACT hereby grants to LABCORP and each of its Affiliates a
non-transferable license to make, use, import, offer for sale, sell, and
perform services, based on the Technology in the Field in the Territory for the
Term.  The license granted under this Section 2.1 shall be
sub-licensable by LABCORP to commercial reference laboratories only in the
Field, subject to the prior approval of EXACT, with such approval not to be
unreasonably withheld by EXACT.  The license granted under this Section 2.1
shall be exclusive during the Exclusive Period and otherwise
non-exclusive.  As used in this Section 2.1, “exclusive” shall mean
that the rights granted hereunder shall be exclusive to LABCORP and each of its
Affiliates and sub-licensees in the Field except for the right of EXACT and
each of its Affiliates (i) to use the Technology for any commercial
purpose prior to the Commercial Launch Date and thereafter subject to the prior
written approval of LABCORP (which approval may be granted or denied at LABCORP’s
sole discretion);  (ii) to
license the Technology to other commercial and research organizations for
Research Purposes; (iii) to grant a non-transferable, non-sublicensable
license to the Technology to the entities and their Affiliates listed on
Schedule 2 for commercial or Research Purposes (including clinical trials),
provided such license is  [CONFIDENTIAL
TREATMENT REQUESTED]/*/; (iv) subject to the prior written approval of
LABCORP, which approval may be granted or denied at LABCORP’s sole discretion,
to license the Technology to other commercial and research organizations for
commercial purposes; and (v) to perform and have performed research and
clinical studies for EXACT’s Research Purposes, including working with a Person
for the development and testing of an Approved Kit.


 


2.2                               Additional Locus. If at any time during the term of the
Agreement, either Party becomes aware of a genetic Locus that would enhance
detection of colorectal cancer in an Assay using the Technology, such Party
shall inform the other Party of such Locus and provide any supporting
documentation known to such Party, and if such Locus is not currently on
Schedule 5, then such Locus shall automatically be incorporated in the attached
Schedule 5.  Incorporation of a locus in Schedule 5 pursuant to this Section 2.2
shall not constitute a representation or warranty by EXACT that such locus can
be used by LABCORP free of patent infringement unless EXACT owns patent rights
to such locus.


 


2.3                               Additional Technology.  Any Invention that is [CONFIDENTIAL
TREATMENT REQUESTED]/*/  at any time
on or before [CONFIDENTIAL TREATMENT REQUESTED]/*/, shall automatically be
included within the definition of “Technology” for purposes of this Agreement
(and any patents or patent applications relating to such Inventions shall
automatically be added to Schedule 1).  EXACT shall promptly notify
LABCORP in writing of all such Inventions.  In addition, EXACT shall
provide notice to LABCORP of any Invention that is [CONFIDENTIAL TREATMENT
REQUESTED]/*/ at any time after [CONFIDENTIAL TREATMENT REQUESTED]/*/  during the Term of this Agreement but
prior to [CONFIDENTIAL TREATMENT REQUESTED]/*/ (an “Applicable EXACT Invention”). 
Upon delivery of such notice and for a period of [CONFIDENTIAL TREATMENT
REQUESTED]/*/  days thereafter,
EXACT agrees to  [CONFIDENTIAL TREATMENT
REQUESTED]/*/.  Notwithstanding the foregoing, EXACT reserves the right to
[CONFIDENTIAL TREATMENT REQUESTED]/*/, in its sole discretion.


 


However, in the event that[CONFIDENTIAL TREATMENT REQUESTED]/*/, and
EXACT [CONFIDENTIAL TREATMENT REQUESTED]/*/, then in each such case EXACT shall
[CONFIDENTIAL TREATMENT REQUESTED]/*/.


 


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Article 3: 
Assays


 


3.1                               Performance.  LABCORP agrees that each Assay conducted by LABCORP and its
Affiliates and sub-licensees under this Agreement shall be performed in
accordance with applicable laws and regulations.  Following the Effective
Date, the Parties shall use good faith efforts to agree on an Operations Plan.


 


3.2                               Supply and Pricing of Assay Kits.  In the event that, during the Term of
this Agreement, (i) LABCORP is [CONFIDENTIAL TREATMENT REQUESTED]/*/, and (ii) EXACT
is  [CONFIDENTIAL TREATMENT
REQUESTED]/*/, then EXACT shall [CONFIDENTIAL TREATMENT REQUESTED]/*/. 
EXACT shall have the unqualified right to enter into agreements with
third-parties for the development or commercialization of in vitro diagnostic
kits, provided, however, that such agreements do not [CONFIDENTIAL TREATMENT
REQUESTED]/*/, and any such agreements shall [CONFIDENTIAL TREATMENT
REQUESTED]/*/.  For the avoidance of doubt, EXACT shall not  [CONFIDENTIAL TREATMENT
REQUESTED]/*/.  In addition, during any period of time during the Term of
this Agreement in which LABCORP is [CONFIDENTIAL TREATMENT REQUESTED]/*/, EXACT
shall not [CONFIDENTIAL TREATMENT REQUESTED]/*/.


 


3.3                               Reporting Requirements.


 


3.3.1                      Assays Performed.  Within fifteen (15) days following
the end of each calendar month LABCORP will notify EXACT in writing of the
total number of Assays performed during the prior month by LABCORP and its
Affiliates and sub-licensees, including Research Assays (separately reported).


 


3.3.2                      Specified Compensated Assays and ACP.  Within thirty (30) days following the
end of each calendar month, LABCORP will notify EXACT in writing of (i) the
total number of Assays performed by LABCORP and its Affiliates and
sub-licensees for which LABCORP or any of its Affiliates or sub-licensees
received an itemized fee-for-service, including the number of Specified
Compensated Assays and (ii) the ACP, in each case, with respect to the
prior month.


 


3.3.3                      Assays for Capitated Payments.  Within thirty (30) days following the
end of each calendar quarter, LABCORP will notify EXACT in writing of the total
number of Assays performed during the prior quarter by LABCORP or its Affiliates
or sub-licensees (excluding Research Assays) for which LABCORP or any of its
Affiliates or sub-licensees did not receive an itemized fee-for-service (for
example a capitated payment, such as Assays conducted pursuant to a managed
care plan which pays LABCORP or any of its Affiliates or sub-licensees for a
fee per patient regardless of the number of Assays performed).


 


3.3.4                      Interim Reporting; Records.  LABCORP shall make its personnel
available, and otherwise use its reasonable efforts, to provide EXACT with such
interim reporting information with respect to this Section 3.3 as may be
reasonably requested by EXACT.  LABCORP shall maintain, and cause its
Affiliates to maintain, accurate records relating to the number of Assays
performed under this Agreement (including Research Assays, which shall be
separately reported) and such books of account shall be subject to the
inspection rights of EXACT set forth in Section 6.4 hereof.


 


3.4                               Marketing Support.  The Parties shall use good faith
efforts to agree on a Marketing Plan within six (6) months following the
Effective Date.


 


3.5                               API Committee.  Each party shall appoint two (2) scientists
to a committee for the purpose of monitoring the progress of development of the
Analytical Process Improvements (the “API Committee”).  The Analytical
Process Improvement milestone payment (i.e., event 3 specified on Schedule 4)
shall not be payable under Section 6.1.3 (or otherwise) until all
scientists on the API Committee have accepted and approved the Analytical
Process Improvements, in each scientist’s sole discretion.


 


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Article 4: 
Ownership and Rights


 


4.1                               Pre-Existing Technology.  All Inventions, of any type, owned by
LABCORP or EXACT as of the Effective Date shall remain the property of the
respective Party.


 


4.2                               Inventions.


 


4.2.1                      As between the Parties, EXACT shall own any
Invention conceived and/or reduced to practice solely by employees or
authorized agents of EXACT or any of its Affiliates (“EXACT Invention”) and
LABCORP shall own any Invention conceived and/or reduced to practice solely by
employees or authorized agents of LABCORP or any of its Affiliates (“LABCORP
Invention”).


 


4.2.2                      If EXACT obtains a patent at any time during
the Term that (i) would dominate a patent licensed under this Agreement,
or (ii) would be infringed by LABCORP as a result of the performance of
Assays by LABCORP at the time of issuance of such patent, then, in each case,
such patent shall automatically be included in the relevant license(s) granted
to LABCORP and its Affiliates under this Agreement.  EXACT hereby grants
LABCORP an immunity from suit during the Term for any patent obtained by EXACT
at any time during the Term that is infringed by LABCORP as a result of its
performance of Assays.


 


4.2.3                      Any Joint Invention shall be jointly owned by
EXACT and LABCORP, and each Party may use Joint Inventions internally within
its organization in any manner and for any reason in its sole discretion,
without the approval of the other Party and without any obligation to pay the
other Party for any profits earned or other benefits acquired as a result of
such internal use.  However, neither Party shall sell, license or
otherwise provide rights to Joint Inventions to third parties without the prior
written approval of the other Party (except as set forth in Section 4.6.2
below).


 


4.3                               No Implied License.  Nothing in this Agreement shall be
construed as granting any Person any right or license under any intellectual
property rights of any other Person by implication, estoppel or otherwise,
except as expressly set forth in this Agreement.


 


4.4                               No Attempt to Obtain Rights.  Except as set forth in this
Agreement, neither Party shall attempt to obtain, during the Term or
thereafter, any right, title or interest in or to any Invention of the other
Party.


 


4.5                               [CONFIDENTIAL TREATMENT REQUESTED]/*/. 
During the Term of this Agreement prior to [CONFIDENTIAL TREATMENT
REQUESTED]/*/, LABCORP shall provide EXACT notice of any LABCORP Invention that
is [CONFIDENTIAL TREATMENT REQUESTED]/*/ (an “Applicable LABCORP Invention”). 
Upon delivery of such notice and for a period of [CONFIDENTIAL TREATMENT
REQUESTED]/*/  days thereafter  [CONFIDENTIAL TREATMENT REQUESTED]/*/
LABCORP agrees to [CONFIDENTIAL TREATMENT REQUESTED]/*/.  Notwithstanding
the foregoing, LABCORP reserves the right to [CONFIDENTIAL TREATMENT
REQUESTED]/*/, in its sole discretion.  However, in the event that
[CONFIDENTIAL TREATMENT REQUESTED]/*/, and LABCORP [CONFIDENTIAL TREATMENT
REQUESTED]/*/, then in each such case LABCORP shall [CONFIDENTIAL TREATMENT
REQUESTED]/*/.


 


4.6                               Patent Prosecution.


 


4.6.1                      Inventions.  Each Party shall be expressly permitted to file and prosecute
any patent application covering such Party’s own Inventions.


 


4.6.2                      Joint Inventions.  The Parties shall jointly agree upon
any decisions relating to the preparation, filing, prosecution, maintenance and
defense of any patent application on a Joint Invention or any patent issuing
therefrom, and the Parties shall share equally in all expenses in connection
therewith, including, without limitation, all attorneys’ fees incurred in
connection therewith.  Notwithstanding the prior sentence, in the event of
a disagreement regarding the filing of a patent application with respect to a
Joint Invention, the Party seeking to file a patent application may file such
patent application at its own expense, and the other Party agrees to assign all
right, title, and interest in and to such application and any patents issuing
therefrom to the Party filing such patent application subject to the retention
of a perpetual, royalty-free, non-sublicensable, license to use the subject
matter of the patent.  Each Party shall provide the other Party with
copies of all official correspondence between such Party and U.S. or foreign
patent offices in patent applications that the Parties pursue for Joint
Inventions.


 


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4.7                               Litigation.  Each Party shall notify the other Party immediately if it
becomes aware of (i) any infringement by a third party of any patent
licensed under this Agreement during the Term or (ii) any infringement of
any patent of a third party pursuant to the activities contemplated by this
Agreement.  EXACT shall use [CONFIDENTIAL TREATMENT REQUESTED]/*/, at its
own expense, to enforce (including without limitation instituting legal action
when necessary) its patent rights and with respect to any infringement by a
third party of any patents owned by EXACT and covered by the Technology in the
Field.  Without limiting the foregoing, and without limiting any other
rights or remedies of LABCORP, in the event EXACT does not file suit during the
Exclusive Period to enforce its patent rights against a third party infringing
on any patent licensed under this Agreement, EXACT shall [CONFIDENTIAL
TREATMENT REQUESTED]/*/ in connection with such suit.  After the Exclusive
Period, LABCORP shall not have the right to [CONFIDENTIAL TREATMENT
REQUESTED]/*/, except with the prior written consent of EXACT, which consent
may be granted or denied in EXACT’s sole discretion.


 


Article 5: 
Confidential Information


 


5.1                               Confidential Information.  “Confidential Information” shall mean
any information, in whatever form, designated by the disclosing Party (the “Disclosing
Party”) in writing as confidential, proprietary or marked with words of like
import when provided to the receiving Party (the “Receiving Party”), and
information orally conveyed if the Disclosing Party states at the time of oral
conveyance or promptly thereafter that such information is confidential, and
provides specific written confirmation thereof within thirty (30) business days
of the oral conveyance, or such extended period as the Parties may agree in
writing.  Notwithstanding the foregoing designation requirement (i) all
EXACT Inventions, and all information and technology provided by EXACT to
LABCORP to enable LABCORP to perform activities hereunder shall be considered
Confidential Information of EXACT under this Agreement, (ii) all LABCORP
Inventions shall be considered Confidential Information of LABCORP under this
Agreement, and (iii) all Joint Inventions shall be considered Confidential
Information for both LABCORP and EXACT.


 


5.2                               Exclusions to Confidential Information.  Confidential Information will not
include information which (a) was in the Receiving Party’s possession
without a confidentiality restriction prior to the disclosure by the Disclosing
Party hereunder, as shown by the Receiving Party with contemporaneous written
records; (b) at or after the time of disclosure by the Disclosing Party
becomes generally available to the public through no act or omission on the
Receiving Party’s part; (c) is developed by the Receiving Party
independently of and without reference or access to any Confidential Information
it receives from the Disclosing Party, as shown by the Receiving Party with
contemporaneous written records; (d) has come into the possession of the
Receiving Party without a confidentiality restriction from a third party and
such third party is under no obligation to the Disclosing Party to maintain the
confidentiality of such information; (e) the Disclosing Party has given
written permission to the Receiving Party to disclose, or (f) any patent
application filed pursuant to Article 4 above.


 


5.3                               Treatment of Confidential Information.  The Receiving Party acknowledges the
confidential and proprietary nature of the Disclosing Party’s Confidential
Information and agrees (i) to hold the Disclosing Party’s Confidential
Information in confidence and to take all reasonable precautions to protect
such Confidential Information (including, without limitation, all precautions
the Receiving Party employs with respect to its own confidential materials); (ii) not
to divulge any such Confidential Information to any third person; and (iii) not
to make any use whatsoever of such Confidential Information except as expressly
authorized in this Agreement. The Receiving Party shall limit disclosure of
Confidential Information received from the Disclosing Party to those employees
or agents of the Receiving Party whose use of or access to the Confidential
Information is necessary to carry out such Party’s obligations under this
Agreement, and shall secure from all employees, agents or contractors having
access to the Confidential Information agreements, at least as protective of
the Confidential Information as the provisions of this Article 5, to
maintain such information in confidence.


 


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5.4                               Notwithstanding the provisions of Section 5.3
above, LABCORP shall be permitted to disclose the Technology (including without
limitation EXACT Inventions and all information and technology provided by
EXACT to LABCORP to enable LABCORP to perform activities hereunder) to its
Affiliates and sublicensees who, in each case, have agreed to confidentiality
restrictions at least as strict as those contained in this Article5.


 


5.5                               Disclosure Required by Judicial or
Governmental Request, Requirement or Order.  In the event that the Receiving Party is ordered or required to
disclose the Disclosing Party’s Confidential Information pursuant to a judicial
or government request, requirement or order, the Receiving Party shall promptly
notify the Disclosing Party and take reasonable steps to assist the Disclosing
Party in contesting such request, requirement or order or in otherwise
protecting the Disclosing Party’s rights prior to disclosure.


 


5.6                               Reproduction of Confidential Information.  The Receiving Party agrees not to
reproduce or copy by any means Confidential Information, except as reasonably
required to accomplish the purposes of this Agreement.  Upon termination
of this Agreement, except for the rights of each Party to the Records as set
forth elsewhere in this Agreement, the Receiving Party’s right to use
Confidential Information shall immediately terminate.  In addition, upon
such termination, or upon expiration of this Agreement or demand by the
Disclosing Party at any time, Receiving Party shall return promptly to the
Disclosing Party or destroy, at the Disclosing Party’s option, all tangible
materials that disclose or embody Confidential Information, subject to any
records required to be retained by either Party in accordance with laws,
regulations, rules or orders.


 


5.7                               Relief.  The Parties acknowledge and agree that because the violation,
breach, or threatened breach of Article 5 of this Agreement would result
in immediate and irreparable injury, each Party shall be entitled, without
limitation of remedy, to (i) temporary and permanent injunctive and other
equitable relief restraining the other Party from activities constituting a
violation, breach or threatened breach of Article 5 of this Agreement to
the fullest extent allowed by law, and (ii) all such other remedies
available at law or in equity, including without limitation the recovery of
damages.


 


Article 6: 
Payments


 


6.1                               License Fees  LABCORP shall pay to EXACT fees in
accordance with Sections 6.1.1, 6.1.2, 6.1.3 and 6.1.4.


 


6.1.1                      Effective Date License Fee. LABCORP shall pay EXACT a non-refundable
license fee of  $15,000,000 one (1) day after the Effective Date of
this Agreement (the “Effective Date License Fee”).   Payment of the
Effective Date License Fee shall be made by LABCORP concurrent with the
execution of this Agreement.


 


6.1.2                      Commercial Launch License Fee. LABCORP shall pay EXACT a license fee of
$15,000,000 upon the Commercial Launch Date (the “Commercial Launch License Fee”);
provided, however, that [CONFIDENTIAL TREATMENT REQUESTED]/*/ in
the event [CONFIDENTIAL TREATMENT REQUESTED]/*/ prior to the Commercial Launch
Date.   EXACT shall invoice LABCORP for the Commercial Launch License
Fee upon the Commercial Launch Date (unless [CONFIDENTIAL TREATMENT
REQUESTED]/*/ prior to such date), with payment of the invoiced fees due within
fifteen (15) days after invoicing.


 


6.1.3                      Milestone License Fees.  LABCORP shall pay EXACT each of the
license fees set forth on the attached Schedule 4 upon the occurrence of the
events set forth next to each such license fee on the attached Schedule 4 (the “Milestone
License Fees”); provided, however, that in the event
[CONFIDENTIAL TREATMENT REQUESTED]/*/ prior to the Commercial Launch Date,
[CONFIDENTIAL TREATMENT REQUESTED]/*/.  EXACT shall invoice LABCORP for
each Milestone License Fee upon the occurrence of the applicable milestone
event (unless [CONFIDENTIAL TREATMENT REQUESTED]/*/  prior to the Commercial Launch Date and the Milestone License
Fee relates to  [CONFIDENTIAL
TREATMENT REQUESTED]/*/), with payment of the invoiced fees due within fifteen
(15) days after invoicing.


 


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6.1.4                      Performance-Based License Fees. If (and only if) the First Trigger Date
occurs on or before [CONFIDENTIAL TREATMENT REQUESTED]/*/, then LABCORP shall
pay EXACT a non-refundable license fee of [CONFIDENTIAL TREATMENT REQUESTED]/*/
to be paid within 30 days of the First Trigger Date.  If (and only if) the
Second Trigger Date occurs on or before [CONFIDENTIAL TREATMENT REQUESTED]/*/,
then LABCORP shall pay EXACT a non-refundable license fee of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ within 30 days of the Second Trigger Date.


 


6.2                               Assay Payments.


 


6.2.1                      Pricing Schedule.  Within forty-five (45) days of the
end of each month during the Term, LABCORP shall pay to EXACT a fee determined
by multiplying the Specified Compensated Assays in such month by a per Assay
fee as provided in Schedule 3; provided, however, that the Specified
Compensated Assay fee shall in no event (except as provided in Section 6.2.2
(b)), be less than [CONFIDENTIAL TREATMENT REQUESTED]/*/ (the “Specified
Compensated Assay Fee Minimum”)  The Specified Compensated Assay fee shall
be determined by calculating the ACP as provided in Section 1.3 of this
Agreement, and using the formula in Schedule 3 to determine the per Assay fee
based on the ACP.  An example of the calculation of the fee under this Section 6.2.1
is provided in Schedule 3.  LABCORP shall use efforts consistent with its
internal policies and procedures for similar types of assays to obtain
compensation for all Assays performed by LABCORP and its Affiliates and
sub-licensees hereunder.  Notwithstanding any termination of this
Agreement, EXACT shall be entitled to payments under this Section 6.2 for
all Specified Compensated Assays performed by LABCORP and its Affiliates and
sub-licensees prior to such termination.


 


6.2.2                      Alternative Pricing.


 


a.                                       [CONFIDENTIAL TREATMENT REQUESTED]/*/. 
Notwithstanding the foregoing, during and after the termination of
[CONFIDENTIAL TREATMENT REQUESTED]/*/, in the event that LABCORP (including its
Affiliates) [CONFIDENTIAL TREATMENT REQUESTED]/*/.  In addition, during
any period of time during the Term of this Agreement in which LABCORP  [CONFIDENTIAL TREATMENT REQUESTED]/*/ on a
future date.


 


b.                                      Competing Assay.  With the exception of the entities
listed in Schedule 2, in the event that, during the Term of this Agreement, a
third party sells commercially an assay in the Field that satisfies
[CONFIDENTIAL TREATMENT REQUESTED]/*/ on Schedule 4 as applied to the third
party, the Specified Compensated Assay Fee Minimum provided in Section 6.2.1
shall no longer apply.


 


c.                                       Royalties On Existing Technology or Markers.  If LABCORP is required to pay any
third party, other than [CONFIDENTIAL TREATMENT REQUESTED]/*/, a royalty to use
any of the protocols transferred by EXACT pursuant to this Agreement (as such
protocols are configured at the time of transfer by EXACT to LabCorp), or any
of the loci in Schedule 5 (as Schedule 5 existed as of the Effective Date),
then the royalty due such third party shall be deducted from the Assay payments
due under this Article 6.


 


d.                                      New Invention or Loci For Which A Third Party
Royalty is Due.  If
either party becomes aware of an Invention or a locus that is useful in
performing Assays hereunder and for which a royalty must be paid to a third
party, the Parties shall discuss whether such Invention or locus should be used
in an Assay.  If the parties agree that such an Invention or locus should
be used in an Assay, then the parties shall negotiate in good faith an
equitable adjustment to the terms of this Agreement, if any.  The prior
sentence shall not be construed as limiting LABCORP’s right to use the
Technology in the Field in conjunction with other Inventions or loci, but
merely requiring the parties to negotiate in good faith on an equitable
adjustment (if any) to the terms of this Agreement if LABCORP and EXACT agree
that such new Inventions or loci should be used in performing Assays.


 


8

















 


6.2.3                    Capitated Payments.  For each calendar quarter during the
Term in which the number of Assays performed by LABCORP and its Affiliates and
sublicensees under this Agreement (excluding Research Assays) for which LABCORP
or its Affiliates or sublicensees did not receive an itemized fee-for-service
payment (for example, a capitated payment, such as Assays conducted pursuant to
a managed care plan which pays LABCORP or its Affiliates or sublicensees a fee
per patient regardless of the number of Assays performed) exceeds the Specified
Capitated Percentage (defined below) of the total number of Assays performed by
LABCORP and its Affiliates and sublicensees under this Agreement (excluding
Research Assays), LABCORP shall pay EXACT a fee for such calendar quarter equal
to an amount as is determined by multiplying (i) [CONFIDENTIAL TREATMENT
REQUESTED]/*/, by (ii) [CONFIDENTIAL TREATMENT REQUESTED]/*/.  The “Specified
Capitated Percentage” shall mean [CONFIDENTIAL TREATMENT REQUESTED]/*/. 
EXACT shall invoice LABCORP for such fees on a quarterly basis, with payment of
the invoiced fees due within 30 days after invoicing.


 


6.3                             Late Payments.  Each Party may impose interest
compounded at the rate of one and one-half percent (11⁄2%) above the prime rate
published in The Wall Street Journal,
Eastern Edition, under the heading “Money Rates,” on the first business day of
each calendar quarter in which such payments are overdue, per annum on any
overdue amount (or such lesser percentage permitted by law) owed by the other
Party hereunder until such other Party is current in payment.  In the
event that LABCORP is overdue on its payment obligations under (i) Section 6.1.2
and 6.1.3 hereof for more than fifteen (15) days and (ii) under Section 6.2
hereof for more than thirty (30) days, EXACT may provide written notice to
LABCORP of such overdue payment obligations and, if such overdue obligations
are not paid within thirty (30) days after LABCORP’s receipt of such notice,
then EXACT may, at EXACT’s option and without liability, suspend the license
granted to LABCORP under this Agreement until LABCORP’s account is current. All
applicable federal, state, or local taxes assessed in connection with this
Agreement (excluding taxes imposed on the income of EXACT) will be paid by
LABCORP.


 


6.4                               Inspection Rights.


 


a.               LABCORP shall retain its Records for a period
of three (3) years after the expiration of the Term of this
Agreement.  LABCORP shall make its Records and books of account relating
to EXACT’s entitlement to payment hereunder for Assays performed available to
EXACT (and its representatives and consultants) for inspection and review at
any reasonable time upon thirty (30) days prior written request by EXACT. 
Any discrepancies in accounting discovered through such review shall be resolved
by mutual agreement of the Parties.  In the absence of an agreement
between the Parties within thirty (30) days of such audit, the Parties agree
that the dispute shall be immediately referred to one executive officer of each
Party, chosen at the sole discretion of that Party, who shall negotiate in good
faith with each other to resolve the dispute during the period ending 30 days
after the date of such referral.  If the designated officers of the
Parties are unable to resolve the dispute within such 30 day period, the
dispute shall be referred to arbitration pursuant to Section 12.2 of this
Agreement.  In the event that it is determined that, as a result of a
EXACT inspection or review, EXACT is entitled to additional payments under this
Agreement exceeding five percent (5%) of amounts actually paid to EXACT (over
the applicable period of review), the reasonable out-of-pocket expenses of
EXACT in connection with such inspection and review shall be borne by
LABCORP.  In the event that it is determined that, as a result of a EXACT
inspection or review, EXACT is not entitled to additional payments under this
Agreement exceeding five percent (5%) of amounts actually paid to EXACT (over
the applicable period of review), the reasonable out-of-pocket expenses of LABCORP
in connection with such inspection and review shall be borne by EXACT.


 


b.              EXACT shall retain its records regarding the
terms of licenses it has granted within the Field, and regarding the terms of
diagnostic kits it has sold for the performance of Assays, for a period of
three (3) years after the expiration of the Term of this Agreement. 
EXACT shall make such records relating to [CONFIDENTIAL TREATMENT REQUESTED]/*/
hereunder available to LABCORP (and its representatives and consultants) for
inspection and review at any reasonable time upon thirty (30) days prior
written request by LABCORP.


 


9

















 


6.5                               [CONFIDENTIAL TREATMENT REQUESTED]/*/ for
Involvement of a Designated Company.  In the event a Designated Company
(defined below) [CONFIDENTIAL TREATMENT REQUESTED]/*/, then (a) EXACT
shall [CONFIDENTIAL TREATMENT REQUESTED]/*/, as indicated on Schedule 6, and (b) [CONFIDENTIAL
TREATMENT REQUESTED]/*/ during the Exclusive Period.  In the event any of
the events described in the prior sentence occur with respect to the entities
or an Affiliate of the entities listed on Schedule 2 (instead of EXACT), then
[CONFIDENTIAL TREATMENT REQUESTED]/*/ during the Exclusive Period.  A “Designated
Company” refers to  [CONFIDENTIAL
TREATMENT REQUESTED]/*/.  Notwithstanding anything to the contrary
contained herein, LABCORP shall not be entitled to  [CONFIDENTIAL TREATMENT REQUESTED]/*/  as a result of any agreement between EXACT
and a third party for the development or commercialization of an Approved Kit.


 


Article 7: 
Promotion; Use of Name


 


7.1                               Promotion by LABCORP.  LABCORP shall, subject to EXACT’s
written prior approval, make reasonable efforts to reference “EXACT Sciences”
and “PreGen-Plus” in an appropriate manner in the Field in marketing and
promotional materials, test directories, and websites; provided, however, that
EXACT shall have the right to review and comment on any proposed LABCORP
marketing and promotional materials, test directories, and websites (other than
materials, test directories and websites that have been previously approved by
EXACT and which make no new use of “EXACT Sciences” or “PreGen-Plus”) that make
reference to “EXACT Sciences” and/or “PreGen-Plus” for a period of fourteen
(14) days after receipt thereof.


 


7.2                               Promotion by EXACT.  EXACT shall, subject to LABCORP’s
written prior approval, make reasonable efforts to reference LABCORP’s name in
an appropriate manner in the Field in marketing and promotional materials, test
directories, and websites; provided, however, that LABCORP shall have the right
to review and comment on any proposed EXACT marketing and promotional
materials, test directories, and websites (other than materials, test
directories and websites that have been previously approved by LABCORP and
which make no new use of LABCORP) that make reference to LABCORP for a period
of fourteen (14) days after receipt thereof.


 


7.3                               Expenses.  Each Party shall be responsible for their own sales and
marketing expenses.


 


7.4                               Publicity.  Except as specifically set forth in this Agreement, no Party
shall use any trademark, trade name, or any contraction, abbreviation,
simulation, or adaptation thereof of any other Party, or the name of any of
another Party’s employees in any news, publicity release, policy
recommendation, advertising or any commercial communication without the express
written approval of the other Party; provided, however, that no Party shall
unreasonably withhold its approval to any use of its name which accurately
describes the relationship of the Parties under this Agreement and such Party’s
participation in the activities provided for in this Agreement.


 


7.5                               Trademark Usage.  LABCORP shall use the trademarks of
EXACT only in connection with the display, advertising, promotion and marketing
of Technology and only in accordance with the terms and conditions of this
Agreement.  LABCORP shall not alter or modify the trademarks of EXACT in
any way, and LABCORP shall use reasonable efforts not to use the trademarks of
EXACT in a manner so as to cause dilution.  LABCORP shall identify each
EXACT trademark as a trademark of EXACT and shall place a trademark notice,
where appropriate, on each piece of advertising or promotional material
containing EXACT trademarks.


 


Article 8: 
Technology Exclusivity


 


8.1                             Exclusivity. EXACT may terminate this Agreement immediately upon written notice to
LABCORP in the event that LABCORP ceases to use EXACT as its sole licensor of
DNA-based molecular diagnostics technology for the detection of colon and
rectal cancer in stool at any time during the Exclusive Period; provided,
however, that the Term of this Agreement shall continue beyond the date of such
notice, but in no event later than twelve (12) months following the date of
such notice, solely to the extent necessary for LABCORP to complete services it
obligated itself to perform for third parties using the Technology prior to the
date of such notice. The Parties acknowledge that such right of termination
shall not exist as a result of (i) any procurement, purchasing, marketing,
sale or distribution by LABCORP of any commercially available diagnostic
product approved by the FDA, or (ii) LABCORP’s purchase of any components
from any source for use in connection with performance of Assays.


 


10














 


Article 9: 
Limitation of Liability and Indemnification


 


9.1                                LIMITATION OF LIABILITY.  EXCEPT TO THE EXTENT ARISING FROM
INDEMNIFICATION FOR THIRD PARTY CLAIMS UNDER SECTION 9.2 BELOW, IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR
INCIDENTAL DAMAGES EXCEPT FOR PATENT INFRINGEMENT DAMAGES, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


9.2                                Indemnification.


 


9.2.1                       EXACT agrees to defend and/or handle at its
own expense, any third party claim, suit or action against LABCORP and each of
its Affiliates and sub-licensees based upon [CONFIDENTIAL TREATMENT
REQUESTED]/*/ under this Agreement.  EXACT further agrees to indemnify and
hold LABCORP and each of its Affiliates and sub-licensees harmless from and
against any and all liabilities, losses, costs, obligations, judgments, damages
and expenses (including costs of investigation and reasonable attorneys’ fees)
associated with any such claim, suit or action.


 


9.2.2                       LABCORP agrees to defend and/or handle at its
own expense, any third party claim, suit or action against EXACT and each of
its Affiliates for [CONFIDENTIAL TREATMENT REQUESTED]/*/.  LABCORP further
agrees to indemnify and hold EXACT and each of its Affiliates harmless from and
against any and all liabilities, losses, costs, obligations, judgments, damages
and expenses (including costs of investigation and reasonable attorneys’ fees)
associated with any such claim, suit or action.


 


Article 10:
Representations and Warranties


 


10.1                          LABCORP Representations and Warranties. LABCORP represents, warrants and covenants
to EXACT that:


 


10.1.1               This Agreement does not contravene or
constitute a default under or violation of any provision of applicable law
binding upon LABCORP or any agreement, commitment, instrument or other
arrangement to which LABCORP is a party;


 


10.1.2               All necessary consents, approvals and
authorizations of all governmental authorities or other third parties required
to be obtained in connection with entry into this Agreement have been obtained;
and


 


10.1.3               All consultants of LABCORP who participate in
research and development or laboratory or analytical procedures relating to the
Technology will execute appropriate instruments of assignment in favor of
LABCORP as assignee that convey to LABCORP ownership of all right, title and
interest in and to all intellectual property rights or any Invention that may
arise from such participation.


 


10.2                          EXACT Representations and Warranties.  EXACT represents and warrants to
LABCORP that:


 


10.2.1               EXACT is a corporation duly organized and
validly existing under the laws of the State of Delaware, and has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder;


 


10.2.2               This Agreement does not contravene or
constitute a default or violation of any provision of applicable law binding
upon EXACT or any agreement, commitment, or instrument to which EXACT is a
party;


 


11

















 


10.2.3               EXACT has sufficient title and ownership
rights to license the Technology as specified in this Agreement;


 


10.2.4               LABCORP and its Affiliates and sub-licensees
shall be entitled to use and enjoy the benefit of the Technology in the Field
to the extent of the license granted hereunder, and, except as otherwise
provided in this Agreement, LABCORP’s and its Affiliate’s and sub-licensee’s
use thereof shall not be adversely affected, interrupted or disturbed by EXACT
or any Person asserting a claim under, through, or on behalf of EXACT;


 


10.2.5               As of the Effective Date, EXACT is not aware
of any material unauthorized use, infringement or misappropriation of the
Technology, or any other intellectual property rights of EXACT licensed
hereunder;


 


10.2.6               As of the Effective Date, EXACT is not aware
of any pending or threatened litigation which alleges 1) that the Technology
infringes on any of the intellectual property rights of any third party or was
misappropriated, or 2) that by using the Technology  LABCORP and its
Affiliates and sub-licensees would be infringing or misappropriating any of the
intellectual property rights of any Person;


 


10.2.7               As of the Effective Date, EXACT is not aware
of a patent issued to a third party that would be infringed by LABCORP or its
Affiliates’ or sub-licensees’ performance and commercialization of the Assays
using the protocols transferred by EXACT under this Agreement;


 


10.2.8               Prior to the Effective Date, EXACT has not
granted any licenses or covenants-not-to-sue to any third parties with respect
to the Technology;


 


10.2.9               As of the Effective Date, EXACT is not aware
of any reason that the patents listed in Schedule 1 are not valid and
enforceable patents, and during the Term, EXACT shall submit all filings, make
all payments, and take all other actions necessary to maintain such patents as
valid, in force and in good standing for the longest possible duration with the
U.S. Patent and Trademark Office and corresponding foreign patent authorities
(at its own expense) to avoid premature expiration or termination of its
patents;


 


10.2.10         As of the Effective Date, the Technology licensed to LABCORP and its
Affiliates and sub-licensees under this Agreement constitutes all of the
technology, information and intellectual property necessary for LABCORP and its
Affiliates and sub-licensees to perform the Assays as of the Effective Date,
except for [CONFIDENTIAL TREATMENT REQUESTED]/*/;


 


10.2.11         The current assay protocol EXACT uses to prepare stool sample and to
extract DNA therefrom results in a population of human DNA that is
representative of human DNA in exfoliated colonic epithelial cells; and


 


10.2.12         The protocol for Assays in use by EXACT as of the Effective Date, and
any other protocols to be provided by EXACT to LABCORP at any time (including
without limitation the Analytical Process Improvement, Capture Process
Improvement, and any Inventions provided by EXACT pursuant to Section 2.3),
correctly function to screen patient samples for colorectal cancer for
commercial purposes.


 


10.3                         DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER LABCORP NOR EXACT
MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS
PERFORMANCE UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, THE
MARKETABILITY, USE, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE RESULTS OF ANY
ASSAY PERFORMED HEREUNDER.


 


Article 11: 
Termination


 


11.1                          Term.  This Agreement shall continue from the Effective Date until the
expiration of the last to expire of the patents and patent applications
included now or hereafter on Schedule 1 hereto, unless this Agreement is
terminated earlier in accordance with this Article 13 or Section 8.1
(the “Term”).


 


12

















 


11.2                          Termination.  Either Party may terminate this
Agreement:


 


11.2.1                If the other Party materially breaches any
representation or warranty or fails to perform any material obligation
hereunder, and such breach is not remedied within thirty (30) business days
after written notice thereof to the Party in default; or


 


11.2.2                At any time if the other Party becomes
insolvent, or makes an assignment for the benefit of creditors, or a receiver
or similar officer is appointed to take charge of all or part of such Party’s
assets and, as a result thereof, such Party is unable or unwilling to perform
its obligations under this Agreement.


 


11.3                          Survival. Articles 1, 4, 5 (except Section 5.4), 9, 10 and 12 and Sections
6.1.1, 6.2, 6.3, 6.4, 11.3, 11.5  and
shall survive the termination of this Agreement.


 


11.4                          Effective Date of Termination.  Termination of this Agreement shall
take effect: (a) as to breaches which have cure periods as set forth in Section 11.2
hereof, immediately upon expiration of the cure period if the breach is not
cured within the applicable cure period, and (b) as to other termination
provisions, immediately upon the date of any termination notice.


 


11.5                          Effect of Termination.  Upon the expiration or termination of
this Agreement, each Party shall (i) discontinue performance of all
activities hereunder; (ii) deliver to the other Party all Confidential
Information, intellectual property and other materials that belong to such
Party or are otherwise required to be delivered to such Party in accordance
with the terms of this Agreement, and (iii) certify to the other Party in
writing, within fifteen (15) days from the date of termination, compliance with
this Section 11.5; provided that nothing contained in this Article 11
shall preclude any Party’s right to payment under Article 6 hereof for
activities conducted prior to termination.


 


11.6                          Termination of Exclusive Period by EXACT.


 


11.6.1                Inability to Handle Volumes.  If, during the last three years of
the Exclusive Period, EXACT has already met each of the milestone events set
forth on Schedule 4 and the average daily volume of specimens received by
LABCORP for the Technology in the Field exceeds [CONFIDENTIAL TREATMENT
REQUESTED]/*/  specimens per day
during any [CONFIDENTIAL TREATMENT REQUESTED]/*/ day period, LABCORP shall, at
EXACT’s written request (which request may be made no more than twice a year)
and within fourteen (14) days of receipt of such written request, provide EXACT
with monthly volume projections for the next twelve (12) months and evidence of
LABCORP’s ability to process at least [CONFIDENTIAL TREATMENT REQUESTED]/*/ of
such specimens within [CONFIDENTIAL TREATMENT REQUESTED]/*/  days of their receipt by LABCORP. 
If, after fourteen (14) days, LABCORP (i) is unable to provide reasonable
evidence of its ability to handle the volume projections or (ii) does not
provide volume projections and evidence of its ability to handle the volume,
the Exclusive Period will automatically terminate; provided, however, that if
the Parties do not agree on whether evidence provided by LABCORP is sufficient
to indicate its ability to handle volume projections, then the Exclusive Period
shall not terminate until such dispute is settled by arbitration in accordance
with Section 12.2.


 


11.6.2                Minimum Performance Standards.  If LABCORP fails to meet the Minimum
Performance Standards then EXACT shall have the right, upon written notice to
LABCORP, to terminate the Exclusive Period and convert the license granted
under Section 2.1 to a non-exclusive license for the remainder of Term.
Notwithstanding the foregoing, EXACT shall not be permitted to exercise its
rights under this Section 11.6.2 if EXACT has not achieved all of the
milestones set forth on Schedule 4 hereto by [CONFIDENTIAL TREATMENT
REQUESTED]/*/.


 


11.6.3                Cessation of Offering Assays.  In the event that LABCORP on its own
accord ceases to offer and promote Assays hereunder after the Commercial Launch
Date, then EXACT shall have the right, upon written notice to LABCORP, to
terminate the Exclusive Period and convert the license granted under Section 2.1
to a non-exclusive license for the remainder of Term.  In the event EXACT
exercises its right under this Section 11.6.3 to terminate the Exclusive
Period, then [CONFIDENTIAL TREATMENT REQUESTED]/*/.


 


13

















 


Article 12: 
Miscellaneous


 


12.1                          Headings.  All headings used in this Agreement and its attachments are
intended for convenience of reference only and shall not affect the
construction or interpretation of the Agreement.


 


12.2                          Dispute Resolution.  If a dispute arises between the
Parties relating to (i) the interpretation or performance of the
Agreement; or (ii) the grounds for the termination of the Agreement, the
Parties agree to convene a Dispute Resolution Committee (the “Committee”),
consisting of two EXACT representatives with decision-making authority and two
LABCORP representatives with decision-making authority to attempt in good faith
to negotiate a resolution of the dispute prior to pursuing other available
remedies.  Either Party may request the convening of a Committee by
written notice to the other Party.  A Committee shall convene for an
initial meeting within forty-five (45) days of such written notice.  If
the Parties have not succeeded in negotiating a resolution of the dispute,
within thirty (30) days after the initial meeting of the Committee, the dispute
shall be submitted for binding arbitration under the then current Commercial Rules of
the American Arbitration Association (“AAA”).  Such arbitration shall be
held in Dover, Delaware.  The Parties shall select three (3) arbitrators
from a list of seven (7) arbitrators provided by the AAA.  The
Parties shall bear the costs of the arbitration equally unless the arbitrators,
pursuant to their right, but not their obligation, require the non-prevailing
Party to bear all or any unequal portion of the prevailing Party’s costs. 
The arbitrators shall make decisions in accordance with applicable Federal and
Delaware law and the factual evidence presented.  The decision of the
arbitrators shall be final and may be sued on or enforced by the Party in whose
favor it runs in any court of competent jurisdiction at the option of the
successful Party.  The arbitrators will be instructed to prepare and
deliver a written, reasoned opinion conferring their decision.  The rights
and obligations of the Parties to arbitrate any dispute relating to the
interpretation or performance of this Agreement or the grounds for the
termination thereof shall survive the expiration or termination of this
Agreement for any reason.  Nothing in this Agreement prevents either Party
from seeking equitable relief at any time to prevent irreparable harm or for
specific enforcement of the terms of this Agreement, except that no equitable
relief shall be sought to prevent or avoid arbitration under the terms of this
Agreement.


 


12.3                          No Agency; Independent Contractors.  The Parties agree that, in the
performance of this Agreement, they are and shall be independent
contractors.  Nothing herein (including without limitation the provisions
of Article 4 hereof) shall be construed to constitute a partnership or
joint venture between the Parties nor shall any Party be construed as the agent
of any other Party for any purpose whatsoever, and no Party shall bind or
attempt to bind any other Party to any contract or the performance of any obligation,
or represent to any third party that it has any right to enter into any binding
obligation on the other Party’s behalf.


 


12.4                          Amendments in Writing.  No waiver, alteration or modification
of any of the provisions of this Agreement shall be binding unless made in
writing and signed by both of the Parties hereto.


 


12.5                          Failure to Enforce.  If either Party fails to enforce any
term of this Agreement or fails to exercise any remedy, such failure to enforce
or exercise on that occasion shall not prevent enforcement or exercise on any
other occasion.


 


12.6                          Exercise of Rights and Remedies.  All rights and remedies, whether
conferred by this Agreement or by any other instrument or by law shall be
cumulative, and may be exercised singularly or concurrently.


 


12.7                          Choice of Law; Venue, Jurisdiction.  This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to principles of conflict of laws.  Venue for any dispute arising
under or resulting from this Agreement shall be in Delaware and each of the
Parties hereby irrevocably submits to the jurisdiction of the United States
Federal Court for the District of Delaware (or, if such court does not have
subject matter jurisdiction, a state court sitting in Delaware) in any action,
suit or proceeding brought against it by the other Party arising under,
resulting from, or related to this Agreement.


 


12.8                          Severability.  If any provision of this Agreement is
held invalid by any law, rule, order, or regulation of any government or by the
final determination of any court of competent jurisdiction, such invalidity
shall not affect the enforceability of any other provisions and such provisions
shall be interpreted so as to best accomplish the objectives of such invalid
provisions within the limits of applicable law or applicable court decision.


 


14

















 


12.9                          Inability to Perform.  Neither Party shall be liable for its
failure to perform any of its obligations under this Agreement during any
period in which such performance is delayed by circumstances outside such Party’s
reasonable control, including without limitation fire, flood, earthquake, other
natural disaster, war, embargo, riot or the intervention of any government authority,
provided that the Party that is unable to perform immediately notifies the
other Party of such inability.


 


12.10                    Notice.  Notices to be given under this Agreement shall be in writing,
and sent by prepaid registered or certified mail, return receipt requested, or
by prepaid overnight courier service, or by facsimile, to the  addresses
set forth on the signature page to this Agreement, or to such other
address as a Party may, from time to time, specify to the other Party by
written notice.


 


12.11                    Entire Agreement.  This Agreement (including all
Schedules, attachments and appendices to this Agreement, which are incorporated
herein by reference) constitutes the complete and exclusive statement of the
agreement between the Parties, and supersedes all prior agreements, proposals,
negotiations and communications between the Parties, both oral and written,
regarding the subject matter hereof.  Without limiting the foregoing, the
Agreement between the parties dated July 10, 2001 (the “Prior Agreement”),
is hereby superseded by this Agreement, provided that any Confidential
Information exchanged under the Prior Agreement shall continue to be treated as
Confidential Information under this Agreement, and any liabilities or
obligations of either Party arising from any representations, warranties, or
indemnities under the Prior Agreement shall survive with respect to any claims
arising from or relating to activities performed under the Prior Agreement.


 


12.12                    Counterparts.  This Agreement may be executed in one
or more counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
Agreement.


 


12.13                    No Assignment.  Neither Party may assign this
Agreement or its rights and obligations hereunder without the prior written
consent of the other Party; provided, however, that any merger, reorganization,
transfer of substantially all assets of a Party, or other change in control or
ownership of such Party shall not be considered an assignment for the purposes
of this Agreement.


 


12.13                    Steering Committee.  A steering committee consisting of at
least two employees of EXACT, one of whom shall be a senior executive and two
employees of LABCORP, one of whom shall be a senior executive, shall meet
periodically, as mutually agreed upon by the parties, in order to monitor and
implement this Agreement.


 


[SIGNATURES APPEAR ON FOLLOWING PAGE]


 


15

















 


	
  Laboratory
  Corporation of America Holdings

  	
   

  	
  EXACT
  Sciences Corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ 
  Thomas P. MacMahon

  	
   

  	
  By

  	
  /s/
  Don M. Hardison

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  	
  Title

  	
  President
  and CEO

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date

  	
  6/26/02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Laboratory
  Corporation of America Holdings

  	
   

  	
  EXACT
  Sciences Corporation

  	
   

  
	
  430
  South Spring Street

  	
   

  	
  63
  Great Road

  	
   

  
	
  Burlington,
  North Carolina 27215

  	
   

  	
  Maynard,
  Massachusetts 01754

  	
   

  
	
  Attn: 
  Bradford T. Smith, Esq.

  	
   

  	
  Attn: 
  Don Hardison

  	
   

  
	
  Executive
  Vice President

  	
   

  	
  President
  and CEO

  	
   

  
	
  Fax: 
  336-226-3835

  	
   

  	
  Fax: 
  978-897-3481

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  With a copy also sent to:

  	
   

  	
  With a copy also sent to:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Parker
  Poe Adams & Bernstein, LLP

  	
   

  	
  Testa,
  Hurwitz & Thibeault, LLP

  	
   

  
	
  P.O. Box
  389

  	
   

  	
  125
  High Street

  	
   

  
	
  150
  Fayetteville Street Mall, Suite 1400

  	
   

  	
  Boston,
  MA 02110

  	
   

  
	
  Raleigh,
  North Carolina  27602-0389

  	
   

  	
  Attn:
  Thomas C. Meyers

  	
   

  
	
  Attn: 
  John R. Erwin, Esq.

  	
   

  	
  Fax:
  617.790.0189

  	
   

  
	
  Fax: 
  919-834-4564

  	
   

  	
   

  	
   

  
								



 


16

















 


SCHEDULE 1


 


Technology


 


	
  United States Patents and Patent Applications

  	
   

  	
  Canadian Patents and Patent Applications

  
	
  [CONFIDENTIAL
  TREATMENT REQUESTED]/*/  

  	
   

  	
  [CONFIDENTIAL
  TREATMENT REQUESTED]/*/

  



 


17

















 


SCHEDULE 2


 


Authorized
Licensees


 


[CONFIDENTIAL
TREATMENT REQUESTED]/*/


 


18

















 


SCHEDULE 3


 


Per Assay
Fee


 


[CONFIDENTIAL
TREATMENT REQUESTED]/*/  of the
ACP; provided, however, that the per Assay fee shall in no event be less than
[CONFIDENTIAL TREATMENT REQUESTED]/*/  (regardless
of ACP).


 


EXAMPLE:  During January of 2003, LABCORP and its Affiliates and
sub-licensees collect a total of $800,000 in itemized fee-for-service payments
for 2,500 Assays that (i) were performed under this Agreement by LABCORP
and its Affiliates and sub-licensees between January 1, 2003 and January 31,
2004 and (ii) for which LABCORP and its Affiliates and sub-licensees were
not previously compensated.  Additionally 300 Assays were performed in January pursuant
to a capitated payment plan for which LABCORP did not receive an itemized
fee-for-service payment.  The
Specified Compensated Assays [CONFIDENTIAL TREATMENT REQUESTED]/*/, and the ACP
is equal to [CONFIDENTIAL TREATMENT REQUESTED]/*/.  As such, the per-Assay
fee is [CONFIDENTIAL TREATMENT REQUESTED]/*/, and the fees due for January 2003
under Section 6.2.1 of this Agreement are [CONFIDENTIAL TREATMENT
REQUESTED]/*/.


 


During
February and March of 2003, LABCORP and its Affiliates and
sub-licensees performs the same number of Assays including 300 Assays in each
of February and March pursuant to a capitated payment plan for which
no fee-for-service payment was received and collects the same aggregate
itemized fee-for-service payments as in January of 2003.  Therefore,
in addition to [CONFIDENTIAL TREATMENT REQUESTED]/*/  received in January of 2003 as described above, LABCORP
would also owe EXACT fees of for each of February and March. 
Additionally, EXACT will be entitled to a quarterly fee equal to [CONFIDENTIAL
TREATMENT REQUESTED]/*/.  This additional quarterly fee is calculated as
follows: [CONFIDENTIAL TREATMENT REQUESTED]/*/.  That number is
[CONFIDENTIAL TREATMENT REQUESTED]/*/.  Given that this number is
[CONFIDENTIAL TREATMENT REQUESTED]/*/, EXACT would be paid [CONFIDENTIAL
TREATMENT REQUESTED]/*/ which equals [CONFIDENTIAL TREATMENT REQUESTED]/*/
payable under Section 6.2.3 of this Agreement.


 


ACP


 


For
purposes of determining the ACP in accordance with Section 1.3 of the
Agreement, the average dollar amount received for each Assay performed by
LABCORP and its Affiliates and sub-licensees will be calculated by
[CONFIDENTIAL TREATMENT REQUESTED]/*/, as follows:  ACP for any month
shall be calculated as [CONFIDENTIAL TREATMENT REQUESTED]/*/.  The
calculation of ACP shall expressly exclude [CONFIDENTIAL TREATMENT
REQUESTED]/*/, and shall also expressly exclude [CONFIDENTIAL TREATMENT
REQUESTED]/*/.  As of the Effective Date, the [CONFIDENTIAL TREATMENT
REQUESTED]/*/, and therefore the Parties acknowledge that the payments
accounted through [CONFIDENTIAL TREATMENT REQUESTED]/*/ will serve as an
acceptable basis for determining the average dollar amount received for each
applicable Assay under the Agreement.  However, if for any month during
the Term of this Agreement [CONFIDENTIAL TREATMENT REQUESTED]/*/, then the
Parties will use their best efforts to promptly determine a new system or manner
in which to determine the average dollar amount received for each Assay
performed by LABCORP and its Affiliates that is acceptable to both Parties.


 


19

















 


SCHEDULE 4


 


License Fee
Milestone Payments


 


	
  Milestone

  	
   

  	
  Payment

  
	
   

  	
   

  	
   

  
	
  [CONFIDENTIAL
  TREATMENT REQUESTED]/*/

  



 


20

















 


SCHEDULE 5


 


Loci


 


	
  Gene 

  	
  Codon

  	
   

  
	
  [CONFIDENTIAL
  TREATMENT REQUESTED]/*/

  
	
   

  	
   

  
	
  Gene

  	
  Microsatellite

  	
   

  
	
  [CONFIDENTIAL
  TREATMENT REQUESTED]/*/

  



 


 


Additional
Loci will automatically be added to this Schedule as applicable after the
Effective Date pursuant to Section 2.2.


 


21

















 


SCHEDULE 6


 


[CONFIDENTIAL TREATMENT REQUESTED]/*/


 


Commercial Launch License Fee


 


[CONFIDENTIAL
TREATMENT REQUESTED]/*/


 


Milestone License Fees


 


[CONFIDENTIAL
TREATMENT REQUESTED]/*/


 


22