EXHIBIT 10.12


 


EXCLUSIVE LICENSE AGREEMENT


 


This
Exclusive License Agreement (the “Agreement”) is entered into as of November 26,
2002 (the “Effective Date”) by and between Matrix Technologies Corporation,
d/b/a Apogent Discoveries, a Delaware corporation, having a principal place of
business at 22 Friars Drive, Hudson, New Hampshire, 03051(“APOGENT”), and EXACT
Sciences Corporation, a Delaware corporation having a principal place of
business at 63 Great Road, Maynard, Massachusetts 01754(“EXACT”).


 


In
consideration of the mutual promises and conditions contained in this Agreement,
APOGENT and EXACT agree as follows:


 


ARTICLE 1 - DEFINITIONS


 


1.1           “Affiliate” shall mean any company, corporation or
other business entity that is controlled by, controlling, or under common
control with the subject company, corporation or other business. For this purpose
“control” means direct or indirect beneficial ownership of at least fifty
percent (50%) interest in the voting stock (or the equivalent) of the company,
corporation or other business or having the right to direct, appoint or remove
a majority of members of its board of directors (or their equivalents) or
having the power to control the general management of the company, corporation
or other business, by law or contract.


 


1.2           “APOGENT Technology” shall mean APOGENT’s
proprietary acrydite chemistry technology described and claimed in the Licensed
Patents. APOGENT Technology expressly includes the Licensed Patents, Licensed Products,
and the Licensed Process.


 


1.3           “EXACT Inventions” shall mean (a) all
inventions, and all modifications, enhancements, changes, or improvements to
APOGENT Technology that are conceived or reduced to practice solely by EXACT in
the course of performing under this Agreement.


 


1.4           “EXACT Net Revenues” shall mean [CONFIDENTIAL
TREATMENT REQUESTED]/*/other than revenues received by EXACT from a
Sublicensee, from [CONFIDENTIAL TREATMENT REQUESTED]/*/


 


1.5           “Exclusive Field” shall mean [CONFIDENTIAL TREATMENT
REQUESTED]/*/


 


1.6           “Non-Exclusive Field” shall mean any field, other
than the Exclusive Field, in which [CONFIDENTIAL TREATMENT REQUESTED]/*/ is
employed.


 


1.7           [CONFIDENTIAL TREATMENT REQUESTED]/*/ shall mean
EXACT’s proprietary[CONFIDENTIAL TREATMENT REQUESTED]/*/ as disclosed in the
U.S. patents and applications identified in Exhibit 1, all extensions
thereof, and all reissue, reexamination, continuation, continuation-in-part, divisional,
and foreign patents relating thereto.


 


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1.8           “Licensed Patents” shall mean, individually and
collectively, (i) the U.S. patent(s) identified on Exhibit 2,
attached hereto, and any reissues, reexaminations, and extensions thereof, and
all foreign patents or applications corresponding to any of the foregoing; (ii) the
U.S. patent applications identified on Exhibit 2, and all foreign patents
or applications corresponding thereto; (iii) all non-provisional,
continuation, continuation-in part, divisional and foreign applications that
claim the priority, either directly or indirectly, to any Licensed Patents
described in subsection (i) or (ii)above; and (iv) all United States
and foreign patents issued on the Licensed Patents described in subsection (ii) or
(iii) above, and all reissues, reexaminations and extensions thereof.


 


1.9           “Licensed Process” shall mean a process that, but
for this license Agreement, would infringe a valid and enforceable claim in the
Licensed Patents.


 


1.10         “Licensed Product” shall mean any product that is
manufactured in reliance on the Licensed Process and that, but for this license
Agreement, would infringe a valid and enforceable claim in the Licensed Patents.


 


1.11         “Party” or “Parties” shall mean APOGENT and/or
EXACT, as the context requires.


 


1.12         “Result” means a test result per single patient
derived from the use of a Licensed Product or the application of a Licensed
Process. In determining the number of “Results” that are comprised in a kit that
includes one or more Licensed Products or is to be used as part of a Licensed
Process, the Results for purposes of this Agreement shall be that number of
results or patient applications specified in the product labeling or inserts
for such kit.


 


1.13         “Sublicensee” shall mean any entity to which EXACT
has granted a sublicense of some or all of the rights conveyed to EXACT under this
Agreement.


 


1.14         “Sublicensee Net Revenues” shall [CONFIDENTIAL
TREATMENT REQUESTED]/*/


 


ARTICLE 2 - GRANT OF LICENSES; OWNERSHIP


 


2.1           EXCLUSIVE LICENSE GRANT. Subject to the terms and
conditions of this Agreement, APOGENT grants to EXACT an exclusive, worldwide,
royalty-bearing license under the Licensed Patents in the Exclusive Field, for use,
to make, have made, use, offer to sell, sell and import Licensed Products and
Licensed Processes. This license granted hereunder shall be exclusive, even as
to APOGENT, within the Exclusive Field during the Term of this Agreement and
shall include the right to sublicense as herein provided. This exclusive
license may be converted to a non-exclusive license in accordance with Section 9.1
hereof.


 


2.2           NON-EXCLUSIVE LICENSE GRANT. Subject to the terms
and conditions of this Agreement, APOGENT grants to EXACT a non-exclusive, worldwide,
royalty-bearing license under the Licensed Patents in the Non-Exclusive Field,
with the 


 


2

















 


right
to sublicense as herein provided to make, have made, use, offer to sell, sell
and import Licensed Products or Licensed Processes..


 


2.3           SUBLICENSING. EXACT shall have the right to
sublicense the rights granted in Paragraph 2.1 and Paragraph 2.2 above solely
for use with EXACT’s [CONFIDENTIAL TREATMENT REQUESTED]/*/ to a Sublicensee, provided
however, that no such sublicense shall be effective until the Sublicensee
executes a written agreement with respect to which APOGENT is a named
third-party beneficiary whereby the Sublicensee is bound, with respect to the
license of the Licensed Process and the manufacture and sale of the Licensed
Products, to terms that do not materially differ from the terms of this
Agreement.


 


2.4           OWNERSHIP.


 


2.4.1        EXACT OWNERSHIP. The Parties
hereby acknowledge and agree that EXACT shall own and retain all right, title
and interest in and to all EXACT Inventions.


 


2.4.2        PRE-EXISTING TECHNOLOGY. All
technology and intellectual property rights owned by a Party as of the
Effective Date shall remain the property of such Party. Without limiting the
foregoing, APOGENT shall be the sole owner of the APOGENT Technology, subject
to the license granted hereby and such other licenses as APOGENT may, in its
discretion, grant from time to time, and EXACT shall be the sole owner of the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ subject to the such licenses as EXACT may, in its
discretion, grant from time to time. Neither party shall reverse engineer, copy
or use the technology or inventions of the other party except as expressly
contemplated by and permitted under this Agreement.


 


2.4.3        NO IMPLIED LICENSES. Nothing
in this Agreement shall be construed as granting any Party any right or license
under any intellectual property rights, trademarks, or service marks of any
other Party by implication, estoppel or otherwise, except as expressly provided
otherwise in this Agreement.


 


ARTICLE 3 - ROYALTIES


 


3.1           ROYALTIES. During the Term, EXACT shall pay APOGENT
royalties on the sale of the Licensed Process or a Licensed Product on a
quarterly basis as follows:


 


3.1.1        [CONFIDENTIAL TREATMENT
REQUESTED]/*/ of EXACT Net Revenues received by EXACT during the applicable
quarter, however, such royalty shall never be less than [CONFIDENTIAL TREATMENT
REQUESTED]/*/


 


3.1.2        [CONFIDENTIAL TREATMENT
REQUESTED]/*/ of each Sublicensee Net Revenues, with respect to which royalties
are payable to, and received by EXACT during the applicable quarter, however, such
royalty shall never be less than [CONFIDENTIAL TREATMENT REQUESTED]/*/.


 


3

















 


EXACT
shall pay royalties due with respect to each calendar quarter hereunder within
[CONFIDENTIAL TREATMENT REQUESTED]/*/


 


3.2           [CONFIDENTIAL TREATMENT REQUESTED]/*/ EXACT shall
not be required to[CONFIDENTIAL TREATMENT REQUESTED]/*/. EXACT shall have primary
obligation to [CONFIDENTIAL TREATMENT REQUESTED]/*/ however, APOGENT shall have
the right to [CONFIDENTIAL TREATMENT REQUESTED]/*/. APOGENT’s right to [CONFIDENTIAL
TREATMENT REQUESTED]/*/ under this Section 3.2shall only apply in
instances where [CONFIDENTIAL TREATMENT REQUESTED]/*/.


 


ARTICLE 4 - ROYALTY REPORTS; RECORDS


 


4.1           ROYALTY REPORTS. Within [CONFIDENTIAL TREATMENT
REQUESTED]/*/ during the Term, EXACT shall deliver to APOGENT the royalty
payment due pursuant to Section 3.1 hereof and a corresponding royalty
report relating to the preceding calendar quarter. Each report shall include
the following:


 


(a) Deductions
applicable to determining Net Revenues and Sublicensee Net Revenues during the
relevant calendar quarter; and


 


(b) Total
royalties due to APOGENT for the calendar quarter.


 


With
each report, EXACT shall pay to APOGENT the royalties due and payable for such
calendar quarter.


 


4.2           RECORD KEEPING.


 


4.2.1        BOOKS AND RECORDS. EXACT
shall keep true books of account in accordance with EXACT’s own document
retention policies relating to Net Revenues, Sublicensee Net Revenues and
Licensed Product use manufacture and sale by EXACT and each Sublicensee. Such
books and records shall be in accordance with generally accepted accounting
principles consistently applied. EXACT shall keep such records at its principal
place of business.


 


4.2.2        INSPECTIONS. Upon ten (10) business
days’ prior written notice to EXACT, APOGENT may, at APOGENT’s own expense,
have EXACT’s books and records inspected by a certified public accountant selected
by APOGENT and reasonably acceptable to EXACT. Such inspections shall be during
regular business hours and shall not be made more than once each calendar year,
except in the case of misreported royalties, Net Revenues or Sublicensee Net
Revenues.In conducting inspections under this paragraph 4.2.2, APOGENT’s
accountant may have access to only those records which are reasonably relevant
to calculating royalties owed to APOGENT under Article 3. APOGENT shall
bear the cost of any inspection under this Article 4.2.2, unless the
inspection shows an underreporting or underpayment by any entity in excess of five
percent


 


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(5%)
for any twelve month period, in which case EXACT shall pay the cost of the
inspection as well as any additional sum due to APOGENT.


 


4.3           FORM OF PAYMENTS. EXACT
shall make all payments due under this Agreement by check or wire transfer in
United States funds.


 


4.4           CURRENCY CONVERSION. If any
currency conversion is required in connection with any payment to APOGENT under
this Agreement (for example, with respect to Sublicensee Net Revenues), the
conversion will be made at the buying rate for the transfer of such other
currency as quoted by THE WALL STREET JOURNAL, Eastern Edition, on the last business
day of each calendar quarter in which such payments are accrued.


 


4.5           INTEREST. Any payment due to
APOGENT under this Agreement that is not made when due will accrue interest
beginning on the first day following the due date. The interest shall be
compounded at the rate of one and one-half percent (1 1/2%) per month,
compounded monthly until such overdue payment is received by APOGENT.


 


ARTICLE 5 - CONFIDENTIALITY


 


5.1           CONFIDENTIAL INFORMATION.
During the Term, the Parties may exchange information from time to time that
they consider to be confidential. “Confidential Information” hereunder shall,
subject to Article 5.3, mean the substance of this Agreement and any
information or materials that are disclosed by one Party (the “Discloser”) to
another Party (the “Recipient”) whether orally, visually, or in tangible form,
and all copies thereof. Tangible materials that disclose or embody Confidential
Information shall be marked by Discloser as “Confidential,” “Proprietary” or
the substantial equivalent thereof. Confidential Information that is disclosed
orally or visually shall be identified by Discloser as confidential at the time
of disclosure and reduced to a written summary by Discloser, which shall mark
such summary as “Confidential,” “Proprietary” or the substantial equivalent
thereof, and deliver it to Recipient by the end of the month following the
month in which disclosure occurs. Such information shall be treated as
Confidential Information pending receipt of such summary.


 


5.2           TREATMENT OF CONFIDENTIAL
INFORMATION. The Recipient of Confidential Information shall employ all
reasonable efforts to maintain the secrecy and confidentiality of such
Confidential Information, such efforts to be no less than the degree of care
employed by the Recipient to preserve and safeguard its own Confidential
Information. The information shall not be disclosed or revealed to anyone
except employees of the Recipient who have a need to know the information and
who have entered into a secrecy agreement with the Recipient under which such
employees are required to maintain confidential the proprietary information of the
Recipient and such employees shall be advised by the Recipient of the
confidential nature of the Confidential Information and that the Confidential
Information shall be treated accordingly. Each Sublicensee shall be bound, as a
Recipient, not to disclose the Confidential Information of APOGENT, whether
such Confidential Information is provided by APOGENT or by EXACT;


 


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and
both the Sublicensee and EXACT shall be jointly and severally liable for any
breach of such obligation by the Sublicensee.


 


5.3           EXCEPTIONS. The Recipient’s
obligations under this Article 5 shall not extend to any part of the
information that:


 


(i)            can be demonstrated to have been in the public
domain or publicly known prior to the date of the disclosure; or


 


(ii)           can be demonstrated from written records to have
been in the Recipient’s possession or readily available to the Recipient from
another source not under obligation of secrecy to the Discloser prior to the
disclosure; or


 


(iii)          becomes part of the public domain or publicly known other
than as a result of any unauthorized act by the Recipient; or


 


(iv)          is demonstrated from contemporaneous written records
to have been developed by or for the Recipient without reference to
confidential information disclosed by the Discloser; or


 


(v)           is required to be disclosed by law, government regulation
or court order.


 


However,
the exception set forth in Section 5.3(v) shall only apply if, prior
to making any legally required disclosure of the Discloser’s Confidential
Information, the Recipient notifies the Discloser and affords the Discloser a
reasonable opportunity to defend against or limit such required disclosure.


 


5.4           INJUNCTION. In view of the
difficulties of placing a monetary value on the Confidential Information, the
Discloser shall be entitled to a preliminary and final injunction without the
necessity of posting any bond or undertaking in connection therewith to prevent
further breach of this Article 5 or further unauthorized use of its Confidential
Information. This remedy is separate from any other remedy the Discloser may
have.


 


5.5           TREATMENT UPON TERMINATION
OF THE AGREEMENT. Upon the expiration or termination, for any reason, of this
Agreement, or upon the demand of the Discloser at any time, Recipient shall
return promptly to Discloser or destroy, at Discloser’s option, all tangible
materials that disclose or embody Confidential Information of the Discloser.


 


ARTICLE 6 - REPRESENTATIONS AND WARRANTIES


 


6.1           APOGENT REPRESENTATIONS AND
WARRANTIES. APOGENT hereby represents and warrants to EXACT that:


 


6.1.1        APOGENT is a corporation
duly organized and validly existing under the name “Matrix Technologies
Corporation” in the State of Delaware, and has all requisite power and
authority to execute, deliver and perform its


 


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obligations
under this Agreement and to consummate the transactions contemplated hereby;


 


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


 


6.1.3       To the knowledge of APOGENT,
all necessary consents, approvals and authorizations of all governmental
authorities and other persons required to be obtained in connection with entry
into this Agreement have been obtained;


 


6.1.4       APOGENT is in possession of
and has conveyed in this Agreement all rights necessary for EXACT to practice
and obtain the full benefit of the licenses granted to EXACT hereunder;


 


6.1.5       To the knowledge of APOGENT,
the use contemplated by this Agreement of the Licensed Process licensed hereby
neither infringes nor violates any patent, copyright, trade secret, trademark
or other proprietary right of any third party; and


 


6.1.6       To the knowledge of APOGENT,
there is no reason that the Licensed Patents are invalid or unenforceable


 


6.2           EXACT REPRESENTATIONS AND
WARRANTIES. EXACT hereby represents and warrants to APOGENT that:


 


6.2.1       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 execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby; and


 


6.2.2       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.


 


ARTICLE 7 - INDEMNIFICATION


 


7.1           INDEMNITY BY APOGENT.
APOGENT shall indemnify, hold harmless and defend EXACT from and against any
and all liability, damage, loss, cost or expense (including reasonable attorney’s
fees) incurred by or imposed upon EXACT in connection with any claims, suits,
actions, demands, proceedings, causes of action or judgments resulting from or
arising out of [CONFIDENTIAL TREATMENT REQUESTED]/*/. EXACT shall promptly
notify APOGENT of any such claim(s) of which EXACT is aware. APOGENT [CONFIDENTIAL
TREATMENT REQUESTED]/*/ shall [CONFIDENTIAL TREATMENT REQUESTED]/*/ provided,
however, that EXACT shall have the right to [CONFIDENTIAL TREATMENT
REQUESTED]/*/. In addition, EXACT shall have the right to [CONFIDENTIAL
TREATMENT REQUESTED]/*/. EXACT agrees to provide APOGENT with [CONFIDENTIAL
TREATMENT


 


7

















 


REQUESTED]/*/.
In the event a third-party asserts a claim for which EXACT may seek
indemnification under this Section 7.1, APOGENT shall have the right to
[CONFIDENTIAL TREATMENT REQUESTED]/*/. Further, APOGENT shall have no
obligation to [CONFIDENTIAL TREATMENT REQUESTED]/*/. The obligation of APOGENT
to [CONFIDENTIAL TREATMENT REQUESTED]/*/.


 


7.2           INDEMNITY BY EXACT. EXACT
shall indemnify, hold harmless and defend APOGENT from and against any and all
liability, damage, loss, cost or expense (including reasonable attorney’s fees)
incurred by or imposed upon APOGENT in connection with any claims, suits,
actions, demands, proceedings, causes of action or judgments resulting from or
arising out of [CONFIDENTIAL TREATMENT REQUESTED]/*/. APOGENT shall promptly
notify EXACT of any such claim(s) of which APOGENT is aware. EXACT [CONFIDENTIAL
TREATMENT REQUESTED]/*/ shall [CONFIDENTIAL TREATMENT REQUESTED]/*/ provided,
however, that APOGENT shall have the right to [CONFIDENTIAL TREATMENT
REQUESTED]/*/. APOGENT agrees to provide EXACT with [CONFIDENTIAL TREATMENT
REQUESTED]/*/.


 


ARTICLE 8 - DISCLAIMER OF WARRANTIES


 


8.1           NO OTHER WARRANTIES. EXCEPT
AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT
TO THE LICENSED PRODUCTS AND DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.


 


8.2           LIMITATION OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY WITH RESPECT TO MATTERS ARISING UNDER OR CONTEMPLATED BY THIS AGREEMENT
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL
DAMAGES OF WHATEVER KIND AND HOWEVER CAUSED (INCLUDING WITHOUT LIMITATION,
DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS,
OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR
EQUITABLE THEORY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.


 


ARTICLE 9 - TECHNOLOGY EXCLUSIVITY


 


9.1           USE AND SUBLICENSING IN
CONNECTION WITH [CONFIDENTIAL TREATMENT REQUESTED]/*/ Commencing on the date on
which any Result is first obtained for cash consideration and continuing
throughout the Term , EXACT shall not


 


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[CONFIDENTIAL
TREATMENT REQUESTED]/*/ without relying on the Licensed Process. However, if
EXACT [CONFIDENTIAL TREATMENT REQUESTED]/*/ then the exclusive license granted
pursuant to Section 2.1 shall be converted to a non-exclusive license.
Similarly, commencing on the date on which any Result is first obtained for
cash consideration and continuing throughout the Term, EXACT shall not
[CONFIDENTIAL TREATMENT REQUESTED]/*/ without also requiring such third-party
to become a Sublicensee hereunder and license the Licensed Process on terms
that do not materially differ from the terms of this Agreement.


 


ARTICLE 10 - TERM AND TERMINATION


 


10.1         TERM. This Agreement shall
commence on the Effective Date and shall remain effective for a period of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ unless earlier terminated as provided by
this Agreement (the “Term”). This Agreement shall automatically be renewed for
two successive periods of five years each (such renewal period also part of the
“Term”), unless at least six months prior to the expiration of the then current
Term or renewal Term, EXACT notifies APOGENT in writing of its desire to terminate
this Agreement at the end of the then current Term or renewal Term. Thereafter,
this Agreement shall automatically be renewed for a successive periods of one
year each (each such renewal period also part of the “Term”), unless at least
six months prior to the expiration of the then current renewal Term, one party
notifies the other in writing of its desire to terminate this Agreement at the
end of the then current Term.


 


10.2         TERMINATION FOR BREACH.
Either Party may terminate this Agreement if the other Party materially
breaches its obligations hereunder, and such breach is not cured within sixty
(60) days after written noticed thereof to such other Party.


 


10.3         EFFECT OF TERMINATION. Upon
early termination of this Agreement for any reason, EXACT shall notify each
Sublicensee of the termination and APOGENT shall have the right, upon the
Sublicensee’s delivery to APOGENT no later than thirty days after the
termination date of a written request for continuation of the Sublicensee’s
sublicense. Upon receipt of such request and receipt of proof from the
Sublicensee, if reasonably requested by APOGENT, of the Sublicensee’s ability
to pay APOGENT royalties when due, Apogent will continue the Sublicensee’s
sublicense for the period equal to the shorter of the unexpired term of this Agreement
or the unexpired term of the Sublicensee’s sublicense from EXACT on condition
that such Sublicensee remains in compliance with the terms and conditions of
its sublicense agreement, and continues its payment obligations directly to
APOGENT.


 


10.4         SURVIVAL. The following
Articles shall survive the termination of this Agreement for any reason:
Articles 1, 2.4, 5-8, 10.3, 10.4, 11 and 12.


 


ARTICLE 11 - DISPUTE RESOLUTION


 


11.1         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


 


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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 APOGENT 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”).


 


11.2         Any arbitration under this Article 11
shall be held in Boston, Massachusetts. 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
Massachusetts 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.


 


ARTICLE 12 - MISCELLANEOUS


 


12.1         NOTICES TO APOGENT. Unless
otherwise specified in this Agreement, reports, notices and other
communications from EXACT to APOGENT as provided hereunder must be sent to:


 


Apogent
Discoveries


22
Friars Drive


Hudson,
New Hampshire 03051


Attention:
President


 


WITH
A COPY TO:


 


Apogent
Technologies Inc.


Office
of General Counsel


30
Penhallow Street


Portsmouth,
New Hampshire 03801


 


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or
other individuals or addresses as APOGENT subsequently furnish by written
notice to EXACT.


 


12.2                          NOTICES TO
EXACT. Unless otherwise specified in this Agreement, reports, notices and other
communications from APOGENT to EXACT as provided hereunder must be sent to:


 


EXACT
Sciences Corporation


63
Great Road


Maynard,
MA 01754


 


With
a copy to:


Thomas
C. Meyers


Testa,
Hurwitz & Thibeault, LLP


125
High Street


Boston,
MA 02110


 


or
other individuals or addresses as EXACT subsequently furnish by written notice
to APOGENT.


 


12.3                          INDEPENDENT
CONTRACTORS. The Parties agree that, in the performance of this Agreement, they
are and shall be independent contractors. Nothing herein 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                          SEVERABILITY.
If any one or more of the provisions of this Agreement is held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remaining provisions of this Agreement will not in any way be affected or
impaired thereby.


 


12.5                          NON-ASSIGN
ABILITY. Neither this Agreement nor any part of the Agreement is assignable by
either Party without the express written consent of the other Party, which
shall not be unreasonably withheld, delayed or conditioned. Notwithstanding any
of the foregoing, either Party may assign this Agreement and its rights and
obligations hereunder, without the consent of the other Party, to an acquirer
of all or substantially all of such Party’s business or assets, whether by
merger, sale, acquisition or other change of control transaction. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns.


 


12.6                          ENTIRE
AGREEMENT. This instrument contains the entire Agreement between the Parties.
No verbal agreement, conversation or representation between any officers,
agents, or employees of the Parties either before or after the execution of


 


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this
Agreement may affect or modify any of the terms or obligations herein
contained.


 


12.7                          MODIFICATIONS
IN WRITING. No change, modification, extension, or waiver of this Agreement, or
any of the provisions herein contained is valid unless made in writing and
signed by a duly authorized representative of each Party.


 


12.8                          GOVERNING LAW.
The validity and interpretation of this Agreement and the legal relations of
the Parties to it are governed by the laws of the Commonwealth of Massachusetts
without regard to any choice of law principal that would dictate the
application of the law of another jurisdiction. The Parties agree that any
legal action arising out of or in connection with this Agreement shall be
brought in the federal or state courts of Massachusetts, and the Parties
irrevocably submit for all purposes to the jurisdiction of each such court.


 


12.9                          CAPTIONS. The
captions are provided for convenience and are not to be used in construing this
Agreement.


 


12.10                    COUNTERPARTS. This Agreement
may be executed in counterparts, each of which shall be deemed an original and
all of which when taken together shall be deemed but one instrument.


 


12.11                    FORCE MAJEURE. If either
Party fails to fulfill its obligations hereunder (other than an obligation for
the payment of money), when such failure is due to an act of God, or other
circumstances beyond its reasonable control, including but not limited to fire,
flood, civil commotion, riot, war (declared and undeclared), acts of terrorism,
revolution, or embargoes, then said failure shall be excused for the duration
of such event and for such a time thereafter as is reasonable to enable the
Parties to resume performance under this Agreement.


 


IN
WITNESS WHEREOF, the Parties hereto have caused this agreement to be executed in
quadruplicate by their duly authorized representatives as of the date first above
written.


 


	
  APOGENT
  DISCOVERIES

  	
   

  	
  EXACT
  SCIENCES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  R. Laurence Keene

  	
   

  	
  By:

  	
  /s/
  Jeffrey T. Walsh

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  R.
  Laurence Keene

  	
   

  	
  Name:

  	
  Jeffrey
  T. Walsh

  
	
  Title:
  

  	
   Executive
  Vice President - Sales

  	
   

  	
  Title:

  	
   Vice
  President, Business

  
	
   

  	
   

  	
   

  	
  Development

  
	
   

  	
   

  	
   

  
	
  Date:
  

  	
  November 26,
  2002

  	
   

  	
  Date:

  	
  November 26,
  2002

  
									



 


12

















 


 


EXHIBIT 1


 


[CONFIDENTIAL TREATMENT REQUESTED]/*/ PATENTS


 


United
States Patent Application Serial Number [CONFIDENTIAL TREATMENT REQUESTED]/*/


United
States Patent Application Serial Number [CONFIDENTIAL TREATMENT REQUESTED]/*/


United
States Patent No. [CONFIDENTIAL TREATMENT REQUESTED]/*/ United States Patent
Application Serial Number [CONFIDENTIAL TREATMENT REQUESTED]/*/ United States
Patent No [CONFIDENTIAL TREATMENT REQUESTED]/*/ United States Patent
Application Serial Number [CONFIDENTIAL TREATMENT REQUESTED]/*/


United
States Patent Application Serial Number [CONFIDENTIAL TREATMENT REQUESTED]/*/


 


13

















 


EXHIBIT 2


 


LICENSED PATENTS


 


	
  UNITED
  STATES PATENTS:

  	
   

  
	
  [CONFIDENTIAL
  TREATMENT REQUESTED]/*/

  



 


and
all divisionals, continuations in part, or foreign counter parts thereto, and
any and all future patents owned or controlled Apogent, under which Company would
require a license to manufacture or use [CONFIDENTIAL TREATMENT REQUESTED]/*/


 


FOREIGN
PATENTS/APPLICATIONS:


[CONFIDENTIAL
TREATMENT REQUESTED]/*/


 


14