Exhibit 10.1


 


COLLABORATION, LICENSE and PURCHASE AGREEMENT


 


BETWEEN


 


GENZYME CORPORATION


 


AND


 


EXACT SCIENCES CORPORATION


 






 


Dated as of January 27, 2009


 






 


Portions of this Exhibit were omitted and have been
filed separately with the Secretary of the Commission pursuant to the Company’s
application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article 1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Article 2

  	
  Sale and Purchase

  	
  9

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Purchased Assets

  	
  9

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Consideration

  	
  10

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Assumed and Retained
  Liabilities

  	
  10

  
	
   

  	
   

  	
   

  
	
  Article 3

  	
  Licenses and Other Rights

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  License to Genzyme
  under Retained Patent Rights

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  License to Genzyme
  under EXACT Licensed Improvements and Joint Collaboration Technology

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Option to License
  Additional EXACT Technology

  	
  12

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  License to EXACT under
  Transferred Technology, Genzyme Licensed Improvements and Joint Collaboration
  Technology

  	
  13

  
	
   

  	
   

  	
   

  
	
  3.5

  	
  Sublicensing

  	
  13

  
	
   

  	
   

  	
   

  
	
  3.6

  	
  Use of Technology

  	
  14

  
	
   

  	
   

  	
   

  
	
  3.7

  	
  Termination of License
  Rights

  	
  14

  
	
   

  	
   

  	
   

  
	
  3.8

  	
  Rights in Bankruptcy

  	
  14

  
	
   

  	
   

  	
   

  
	
  Article 4

  	
  Collaboration

  	
  15

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Joint Advisory
  Committee

  	
  15

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Committee Meetings and
  Activities

  	
  15

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Termination of the
  Collaboration Period

  	
  16

  
	
   

  	
   

  	
   

  
	
  Article 5

  	
  Closing

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Closing

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Deliverables

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  Post-Closing

  	
  17

  
	
   

  	
   

  	
   

  
	
  Article 6

  	
  Representations and Warranties of EXACT

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Organization

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Power and Authorization

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Authorization of
  Governmental Authorities

  	
  18

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Noncontravention

  	
  18

  
	
   

  	
   

  	
   

  
	
  6.5

  	
  Absence of Liabilities

  	
  18

  



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 


i

















 


	
  6.6

  	
  Absence
  of Certain Developments

  	
  18

  
	
   

  	
   

  	
   

  
	
  6.7

  	
  Assets

  	
  18

  
	
   

  	
   

  	
   

  
	
  6.8

  	
  Intellectual Property
  Rights

  	
  19

  
	
   

  	
   

  	
   

  
	
  6.9

  	
  Government
  Authorizations and Registrations

  	
  21

  
	
   

  	
   

  	
   

  
	
  6.10

  	
  Legal Compliance

  	
  21

  
	
   

  	
   

  	
   

  
	
  6.11

  	
  Contracts

  	
  21

  
	
   

  	
   

  	
   

  
	
  6.12

  	
  Litigation;
  Governmental Orders

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.13

  	
  Insurance

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.14

  	
  No Brokers

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.15

  	
  Solvency

  	
  22

  
	
   

  	
   

  	
   

  
	
  6.16

  	
  Disclosure

  	
  23

  
	
   

  	
   

  	
   

  
	
  Article 7

  	
  Representations and Warranties of Genzyme

  	
  23

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Organization

  	
  23

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Power and Authorization

  	
  23

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Authorization of
  Governmental Authorities

  	
  23

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Noncontravention

  	
  24

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  No Brokers

  	
  24

  
	
   

  	
   

  	
   

  
	
  Article 8

  	
  Covenants and Agreements

  	
  24

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Expenses

  	
  24

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Payment of Liabilities

  	
  24

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Restrictions on EXACT
  Dissolution and Distributions

  	
  24

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Further Assurances

  	
  24

  
	
   

  	
   

  	
   

  
	
  Article 9

  	
  Conditions Precedent to the Obligations of Genzyme
  to Consummate the Sale

  	
  26

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Representations and
  Warranties

  	
  26

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Corporate Certificates

  	
  27

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Secretary’s Certificate

  	
  27

  
	
   

  	
   

  	
   

  
	
  9.4

  	
  Concurrent Transactions

  	
  27

  
	
   

  	
   

  	
   

  
	
  9.5

  	
  Consents

  	
  27

  
	
   

  	
   

  	
   

  
	
  9.6

  	
  Opinion of Counsel to
  EXACT

  	
  27

  
	
   

  	
   

  	
   

  
	
  Article 10

  	
  Condition Precedent to the Obligation of EXACT to
  Consummate the Sale

  	
  27

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Representations and
  Warranties

  	
  27

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Secretary’s Certificate

  	
  27

  



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 


ii

















 


	
  10.3

  	
  Concurrent Transactions

  	
  28

  
	
   

  	
   

  	
   

  
	
  Article 11

  	
  Payment

  	
  28

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Royalty for Licenses
  under Transferred Technology and Retained Patent Rights Outside Genzyme Core
  Field

  	
  28

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Payment for Optioned
  Technology In-Licensed From a Third Party

  	
  29

  
	
   

  	
   

  	
   

  
	
  11.3

  	
  Payment Provisions
  Generally

  	
  29

  
	
   

  	
   

  	
   

  
	
  11.4

  	
  Maintenance of Records;
  Audit

  	
  30

  
	
   

  	
   

  	
   

  
	
  Article 12

  	
  Intellectual Property Matters

  	
  30

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Ownership

  	
  30

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Filing, Prosecution and
  Maintenance of Patent Rights

  	
  31

  
	
   

  	
   

  	
   

  
	
  12.3

  	
  Enforcement

  	
  34

  
	
   

  	
   

  	
   

  
	
  12.4

  	
  Claimed Infringement of
  Third Party Intellectual Property Rights

  	
  37

  
	
   

  	
   

  	
   

  
	
  12.5

  	
  Prosecution and
  Enforcement of Other Intellectual Property Rights

  	
  38

  
	
   

  	
   

  	
   

  
	
  12.6

  	
  Cross License Agreement

  	
  38

  
	
   

  	
   

  	
   

  
	
  12.7

  	
  Termination of Rights
  and Obligations Under Article 12

  	
  38

  
	
   

  	
   

  	
   

  
	
  Article 13

  	
  Confidentiality

  	
  38

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Confidentiality

  	
  38

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Permitted Disclosure

  	
  39

  
	
   

  	
   

  	
   

  
	
  13.3

  	
  Required Disclosure

  	
  39

  
	
   

  	
   

  	
   

  
	
  13.4

  	
  Public Statements

  	
  40

  
	
   

  	
   

  	
   

  
	
  13.5

  	
  Mutual Non-Disclosure
  Agreement

  	
  40

  
	
   

  	
   

  	
   

  
	
  Article 14

  	
  Indemnification

  	
  40

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Indemnification by
  EXACT

  	
  40

  
	
   

  	
   

  	
   

  
	
  14.2

  	
  Indemnification by
  Genzyme

  	
  41

  
	
   

  	
   

  	
   

  
	
  14.3

  	
  Time for Claims

  	
  42

  
	
   

  	
   

  	
   

  
	
  14.4

  	
  Procedure for Third
  Party Claims

  	
  42

  
	
   

  	
   

  	
   

  
	
  14.5

  	
  Consent to Jurisdiction
  Regarding Third Party Claims

  	
  44

  
	
   

  	
   

  	
   

  
	
  14.6

  	
  Exclusive Remedy

  	
  44

  
	
   

  	
   

  	
   

  
	
  Article 15

  	
  Potential Liabilities Holdback

  	
  44

  
	
   

  	
   

  	
   

  
	
  15.1

  	
  Use of Holdback Amount

  	
  44

  
	
   

  	
   

  	
   

  
	
  15.2

  	
  12 Month Release

  	
  45

  
	
   

  	
   

  	
   

  
	
  15.3

  	
  18 Month Release

  	
  45

  



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 


iii

















 


	
  15.4

  	
  Outstanding
  Claims

  	
  45

  
	
   

  	
   

  	
   

  
	
  Article 16

  	
  Miscellaneous

  	
  45

  
	
   

  	
   

  	
   

  
	
  16.1

  	
  Notices

  	
  45

  
	
   

  	
   

  	
   

  
	
  16.2

  	
  Entire
  Agreement

  	
  46

  
	
   

  	
   

  	
   

  
	
  16.3

  	
  Binding
  Effect; No Assignment; No Third-Party Beneficiaries

  	
  46

  
	
   

  	
   

  	
   

  
	
  16.4

  	
  Amendment

  	
  47

  
	
   

  	
   

  	
   

  
	
  16.5

  	
  Waiver

  	
  47

  
	
   

  	
   

  	
   

  
	
  16.6

  	
  Disclaimer

  	
  47

  
	
   

  	
   

  	
   

  
	
  16.7

  	
  Section Headings,
  Construction

  	
  47

  
	
   

  	
   

  	
   

  
	
  16.8

  	
  Counterparts

  	
  47

  
	
   

  	
   

  	
   

  
	
  16.9

  	
  Severability

  	
  48

  
	
   

  	
   

  	
   

  
	
  16.10

  	
  Withholding

  	
  48

  
	
   

  	
   

  	
   

  
	
  16.11

  	
  Governing
  Law

  	
  48

  
	
   

  	
   

  	
   

  
	
  16.12

  	
  Dispute
  Resolution

  	
  48

  
	
   

  	
   

  	
   

  
	
  16.13

  	
  Submission
  to Jurisdiction; Waiver

  	
  48

  
	
   

  	
   

  	
   

  
	
  16.14

  	
  Enforcement

  	
  49

  
	
   

  	
   

  	
   

  
	
  16.15

  	
  Rules of
  Construction

  	
  49

  
	
   

  	
   

  	
   

  
	
  16.16

  	
  Waiver
  of Jury Trial

  	
  49

  



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 


iv

















 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Form of
  APC/p53 License Amendment

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  Form of
  JHU-EXACT License Amendment

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of
  Bill of Sale

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of
  Assignment and Assumption Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  Form of
  Assignment of Patent Rights

  



 


SCHEDULES


 


	
  Schedule
  A

  	
   

  	
  Primary
  Patent Rights

  
	
   

  	
   

  	
   

  
	
  Schedule
  B

  	
   

  	
  Secondary
  Patent Rights

  
	
   

  	
   

  	
   

  
	
  Schedule
  2.1(a)(ii)

  	
   

  	
  Assigned
  Contracts

  
	
   

  	
   

  	
   

  
	
  Schedule
  2.1(b)(vii)

  	
   

  	
  Retained
  Patent Rights

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.1(b)

  	
   

  	
  Rights
  of Third Parties

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.2(b)

  	
   

  	
  EXACT
  Licensed Improvements

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.3(b)

  	
   

  	
  Optioned
  Technology

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.4(c)

  	
   

  	
  Genzyme
  Licensed Improvements

  
	
   

  	
   

  	
   

  
	
  Schedule
  6.4

  	
   

  	
  Noncontravention
  (EXACT)

  
	
   

  	
   

  	
   

  
	
  Schedule
  6.7

  	
   

  	
  Assets

  
	
   

  	
   

  	
   

  
	
  Schedule
  6.8

  	
   

  	
  Intellectual
  Property

  
	
   

  	
   

  	
   

  
	
  Schedule
  6.11

  	
   

  	
  Contracts

  
	
   

  	
   

  	
   

  
	
  Schedule
  6.12

  	
   

  	
  Litigation;
  Governmental Orders

  



 


Portions of this Exhibit were omitted and have been
filed separately with the Secretary of the Commission pursuant to the Company’s
application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


v
















 


AGREEMENT


 


THIS COLLABORATION, LICENSE and PURCHASE AGREEMENT
(this “Agreement”), dated as of January 27, 2009 (the “Effective
Date”), is by and between Genzyme Corporation, a Massachusetts corporation
(“Genzyme”) and EXACT Sciences Corporation, a Delaware corporation (“EXACT”).


 


RECITALS


 


A.      EXACT is
engaged in the development of proprietary DNA-based technologies, which have
applicability in multiple fields. 
Genzyme desires to purchase all of EXACT’s right, title and interest in
and to certain assets, including certain intellectual property rights, and to
license from EXACT certain other intellectual property rights for use outside
of the EXACT Field (defined below).


 


B.       EXACT
desires to obtain from Genzyme, and Genzyme desires to grant to EXACT, an exclusive
license back under the intellectual property being transferred under this
Agreement for use in the EXACT Field.


 


C.       Genzyme
desires to obtain from EXACT, and EXACT desires to grant to Genzyme, an
exclusive option to obtain from EXACT an exclusive license under certain
additional EXACT technology in the Genzyme Core Field (defined below).


 


D.      Concurrently
with the execution of this Agreement, Genzyme and EXACT are entering into a
Common Stock Subscription Agreement, dated as of the Effective Date (the “Common
Stock Subscription Agreement”), pursuant to which, among other things,
Genzyme agrees to buy and EXACT agrees to sell up to 3,000,000 shares of EXACT’s
common stock, par value $0.01 per share.


 


In consideration of the mutual representations, warranties
and covenants contained in this Agreement, the parties hereto agree as follows:


 


Article
1      Definitions.  Capitalized terms used in this Agreement have
the meanings set forth in this Agreement. 
In addition, for purposes of this Agreement, the following terms, when
used in this Agreement, have the meanings assigned to them in this Article 1.


 


“Action”
means any claim, action, cause of action, chose in action or suit (whether in
contract or tort or otherwise), litigation (whether at law or in equity, whether
civil or criminal), controversy, assessment, arbitration, examination, audit,
investigation, hearing, charge, complaint, demand, notice or proceeding to,
from, by or before any Governmental Authority or arbitrator.


 


“Additional
EXACT Technology” means all Intellectual Property Rights (other than
Transferred Technology, EXACT Licensed Improvements or Joint Collaboration
Technology) that are Controlled by EXACT or its Affiliates [********] with applicability in the Genzyme Core
Field; provided, however,  that


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 

















 


“Additional EXACT
Technology” excludes Intellectual Property Rights owned or Controlled as a
result of or subsequent to a Change of Control of EXACT.


 


“Affiliate”
means, with respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries controls, is controlled by, or
is under common control with, such Person. 
For purposes of this definition, “control” means the possession, direct
or indirect, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting securities or
general partnership or managing member interests, by contract or
otherwise.  Without limiting the
generality of the foregoing, a Person will be deemed to control any other
Person in which it owns, directly or indirectly, a majority of the ownership
interests.


 


“Ancillary
Agreements” has the meaning set forth in Section 5.2(a).


 


“APC/p53
License” means the License Agreement, dated as of March 25, 1999, by
and between EXACT and Genzyme.


 


“APC/p53 License
Amendment” means the waiver by Genzyme and amendment and restatement of the
APC/p53 License, effective as of the Closing Date, to be executed and delivered
by EXACT and Genzyme at the Closing, substantially in the form attached hereto
as Exhibit A.


 


“Assigned
Contracts” has the meaning set forth in Section 2.1(a)(ii).


 


“Assignment and
Assumption Agreement” has the meaning set forth in Section 5.2(a)(ii).


 


“Assumed
Liabilities” has the meaning set forth in Section 2.3(a).


 


“Bankruptcy
Code” has the meaning set forth in Section 3.8.


 


[********]


 


“Change of
Control” means, with respect to a party, (a) a sale of all or
substantially all of such party’s assets, voting stock, securities, or
business; (b) a merger, reorganization, or consolidation involving such
party in which the stockholders of such party immediately prior to such
transaction cease to own collectively (either directly or through one or more
intermediate entities) a majority of the voting equity securities of a
successor entity; or (c) the acquisition by a Person or group of Persons
acting in concert of 50% or more of the voting equity securities of such party.


 


“Closing”
has the meaning set forth in Section 5.1.


 


“Closing Date”
has the meaning set forth in Section 5.1.


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 


2

















 


“Closing
Payment” means $18,500,000, payable, subject to the Holdback set forth in Article 15,
at the Closing.


 


“Code”
means the U.S. Internal Revenue Code of 1986, as amended.


 


“Collaboration
Period” means the period of time beginning on the Closing Date and ending,
if at all, on the effective date of termination of such period by a party
pursuant to Section 4.3.


 


“Committee”
has the meaning set forth in Section 4.1.


 


“Common Stock
Subscription Agreement” has the meaning set forth in Recital D.


 


“Confidential
Information” of a party means all Know-How or other information, including
proprietary information and materials (whether or not patentable), regarding
such party’s or its Affiliate’s technology, products, business information, or
objectives, that is communicated in any way or form by the Disclosing Party to
the Receiving Party, and whether or not designated as confidential by the
Disclosing Party at the time any such Know-How or other information is
disclosed by the Disclosing Party to the Receiving Party.


 


“Consideration”
has the meaning set forth in Section 2.2.


 


“Control or
Controlled” means, with respect to any item or right, the possession
(whether by ownership or license, other than pursuant to this Agreement) by a
party of the ability to grant to the other party access or a license as
provided in this Agreement under such item or right without violating the terms
of any agreement or other arrangements with any Third Party.


 


“Cross License
Agreement” means the Cross License and Collaboration Agreement, dated as of
April 1, 2003, by and between EXACT and Genzyme.


 


[********]


 


“Disclosed
Contract” has the meaning set forth in Section 6.11(b).


 


“Disclosing
Party” has the meaning set forth in Section 13.1.


 


“Dispute”
has the meaning set forth in Section 16.12(a).


 


“EXACT Field”
means (a) stool-based detection of any disease or condition (including
pre-cancers, staging and monitoring of the foregoing, and therapeutic response)
for research and development, Clinical Laboratory Improvement Amendments (CLIA)
testing services (and their foreign equivalents), and FDA Kits; and (b) a
screening assay (regardless of other uses to which such assay is put) for
colorectal cancer in any type of patient samples, excluding tests solely for
staging and/or monitoring of colorectal cancer which do not obsolete or
adversely impact such screening assay. 
For


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


3

















 


the avoidance of
doubt, without limitation, the EXACT Field includes (i) the rights
pertaining to stool-based colorectal cancer screening tests for which EXACT has
granted a nonexclusive license to [********], (ii) the rights pertaining
to colorectal cancer screening tests and test kits for which EXACT has granted
a nonexclusive license to [********], and (iii) all applications for which
EXACT has granted to [********] a license as of the Effective Date pursuant to
the [********].


 


“EXACT
Indemnitee” has the meaning set forth in Section 14.2(a).


 


“EXACT Licensed
Improvements” means all improvements or enhancements to, or derivatives of,
the Transferred Technology discovered, conceived, created, made or invented (as
applicable) by or on behalf of EXACT [********] that the parties agree have applicability in the
Genzyme Field after consultation as provided in Section 3.2(b); provided,
however,  that “EXACT
Licensed Improvements” excludes (a) Joint Collaboration Technology, (b) Intellectual
Property Rights acquired or in-licensed from a Third Party after the Closing
Date and (c) Intellectual Property Rights owned or Controlled as a result
of or subsequent to Change of Control of EXACT. 
For clarity, a Patent Right that is first filed after a Change of
Control but claims priority (direct or indirect, in whole or in part) to a
Patent Right that was subject to the license granted by EXACT to Genzyme under Section 3.2(a) prior
to a Change of Control will be an “EXACT Licensed Improvement” hereunder.


 


“FDA Kits”
means a collection of one or more reagents, packaged in the form of a kit that
has received approval from the U.S. Food and Drug Administration (FDA) or any
equivalent foreign regulatory agency or body.


 


“Genzyme Core
Field” means reproductive and prenatal health [********]


 


“Genzyme Field”
means all applications other than the EXACT Field.


 


“Genzyme
Indemnitee” has the meaning set forth in Section 14.1(a).


 


“Genzyme
Licensed Improvements” means all improvements or enhancements to, or
derivatives of, the Transferred Technology discovered, conceived, created, made
or invented (as applicable) by or on behalf of Genzyme [********] that the parties agree have
applicability in the EXACT Field after consultation as provided in Section 3.4(c);
provided, however,  that
“Genzyme Licensed Improvements” excludes (a) Joint Collaboration
Technology, (b) Intellectual Property Rights acquired or in-licensed from
a Third Party after the Closing Date and (c) Intellectual Property Rights
owned or Controlled as a result of or subsequent to Change of Control of
Genzyme.  For clarity, a Patent Right
that is first filed after a Change of Control but claims priority (direct or
indirect, in whole or in part) to a Patent Right that 


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


4

















 


was subject to the
license granted by Genzyme to EXACT pursuant to Section 3.4(b) prior
to a Change of Control will be a “Genzyme Licensed Improvement” hereunder.


 


“Genzyme Third
Party Payment” has the meaning set forth in Section 11.2(a).


 


“Governmental
Authority” means any government or any agency, bureau, board, commission,
court, department, political subdivision, tribunal or other instrumentality of
any government (including any regulatory or administrative agency), whether
federal, state or local, domestic or foreign.


 


“Holdback
Indemnity Cap” has the meaning set forth in Section 14.1(b).


 


“Indemnifying
Party” means, with respect to any claim for indemnification pursuant to Article 14,
the party against whom such claim is asserted under Section 14.1 or 14.2,
as the case may be.


 


“Indemnitee”
means, with respect to any claim for indemnification pursuant to Article 14,
the Genzyme Indemnitee or the EXACT Indemnitee asserting such claim under Section 14.1
or 14.2, as the case may be.


 


“Indemnity
Basket” has the meaning set forth in Section 14.1(b).


 


“Infringement
Claim” has the meaning set forth in Section 12.4(a).


 


“Intellectual
Property Rights” means all intangible proprietary rights of any kind or
nature throughout the world, including the following (and all statutory and/or
common law rights in, arising out of, or associated therewith): (i) all
Patent Rights; (ii) all works of authorship, copyrights, mask works,
copyright and mask work registrations and applications, copyrightable subject
matter whether or not registration for any such copyright exists or is pending,
and all other copyright interests accruing by reason of international copyright
conventions pertaining thereto (“Copyrights”); (iii) all Know-How;
and (iv) all databases and data collections.


 


“JHU” means
The Johns Hopkins University, a Maryland corporation.


 


“JHU-EXACT
License Amendment” means the Assignment, Sublicense, Consent and Eighth
Amendment to License Agreement among EXACT, JHU and Genzyme, dated as of the
Closing Date, to be executed and delivered by EXACT, JHU and Genzyme prior to
the Closing, substantially in the form attached hereto as Exhibit B.


 


“Joint
Collaboration Technology” means all Know-How, Patent Rights and Copyrights
that are discovered, conceived, created, made or invented (as applicable) [********] jointly by (a) employees or agents
of EXACT and (b) employees or agents of Genzyme or any of its Affiliates.


 


“Joint Patent
Rights” means all Patent Rights included within the Joint Collaboration
Technology.


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


5

















 


“Know-How”
means all inventions, discoveries, data, information, processes, methods,
correspondence, techniques, trade secrets, materials, technology, concepts,
ideas, algorithms, standards, methods, compositions, formulae, procedures,
results and other know-how, whether or not patentable or copyrightable.


 


[********]


 


[********] means
all Technology licensed by EXACT to [********] pursuant to the [********].  The parties understand and agree that the
Patent Rights that are included in both the Transferred Technology and the
[********] as of the Effective Date are only those Patent Rights set forth on Schedule
6.8(a)(i).


 


“Losses”
has the meaning set forth in Section 14.1(a).


 


“Material
Adverse Effect” means any material adverse effect on the Purchased Assets,
on the parties’ ability to consummate the transactions contemplated by this
Agreement or on the parties’ ability to perform their obligations under this
Agreement.


 


“Maximum
Indemnity Cap” has the meaning set forth in Section 14.1(b).


 


“Need-to-Know”
has the meaning set forth in Section 13.2.


 


“Option”
has the meaning set forth in Section 3.3(a).


 


“Option
Exercise Notice” has the meaning set forth in Section 3.3(b).


 


“Optioned
Technology” means Additional EXACT Technology for which Genzyme has
exercised the Option pursuant to Section 3.3.


 


“Patent Rights”
means all (i) issued patents; (ii) pending patent applications and rights
to file applications, including all provisional applications, substitutions,
continuations, continuations-in-part, divisions, re-examinations, national
phase PCT applications, PCT international applications and all foreign
counterparts; (iii) patents-of-addition, reissues, renewals, revivals,
reexamination certificates and extensions and restorations by existing or
future extension or restoration mechanisms, including supplementary protection
certificates and the equivalent thereof; (iv) inventor’s certificates; and
(v) forms of government-issued rights substantially similar to any of the
foregoing, in each case throughout the world.


 


“Person”
means any individual or legal entity.


 


“Potential
Liabilities Holdback Amount” means an amount equal to the Holdback
Indemnity Cap, payable by Genzyme to EXACT as set forth in Article 15.


 


“Primary Goals”
has the meaning set forth in Section 4.1.


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


6

















 


“Primary
Intellectual Property Rights” means the Primary Patent Rights and other Transferred
Technology chiefly related to the Primary Patent Rights, but not any Secondary
Patent Rights.


 


“Primary Patent
Rights” means (a) those Patent Rights within the Transferred
Technology listed on Schedule A, and (b) all Patent Rights
first filed after the Effective Date that claim priority (direct or indirect,
in whole or in part) to any Patent Right identified in clause (a) above.


 


“Purchased
Assets” has the meaning set forth in Section 2.1(a).


 


“Receiving
Party” has the meaning set forth in Section 13.1.


 


“Representatives”
has the meaning set forth in Section 13.2.


 


“Requesting
Party” has the meaning set forth in Section 12.2(d).


 


“Retained Assets” has the meaning set forth in Section 2.1(b).


 


“Retained
Liabilities” has the meaning set forth in Section 2.3(b).


 


“Retained
Patent Rights” means any Patent Right owned by EXACT as of the Closing Date
that is included in the Retained Assets. 
The parties understand and agree that if EXACT jointly owns any such
Patent Right, such Patent Right is included only with respect to EXACT’s joint
ownership interest therein.  For clarity,
(i) the Retained Patent Rights include all Patent Rights first filed after
the Effective Date that claim priority (direct or indirect, in whole or in
part) to any Patent Right included within the Retained Assets as of the
Effective Date and (ii) the Retained Patent Rights include those Patent
Rights listed on Schedule 2.1(b)(vii).


 


“Royalty”
has the meaning set forth in Section 11.1(a).


 


“Sale” has
the meaning set forth in Section 2.1(a).


 


“Secondary Patent Rights” means (a) those
Patent Rights within the Transferred Technology listed on Schedule B,
and (b) all Patent Rights first filed after the Effective Date that claim
priority (direct or indirect, in whole or in part) to any Patent Right
identified in clause (a) above.


 


“Supporting
Materials” means (i) all research and development reports and records,
pre-clinical studies, clinical protocols, clinical studies, pre-clinical and
clinical data, results and analyses used in or resulting from any pre-clinical
study or clinical trial relating to use of the Transferred Technology in the
Genzyme Field; (ii) all files, correspondence, records and other
documentation relating to the Transferred Technology, including all invention
disclosures and assignments of inventions related to the Transferred
Technology; (iii) all records and other documents relating to the use of
the Transferred Technology in the Genzyme Field.


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


7

















 


“Technology”
means the Transferred Technology, the Genzyme Licensed Improvements, the EXACT
Licensed Improvements, the Joint Collaboration Technology, the Optioned
Technology and the Retained Patent Rights.


 


“Third Party”
means any Person other than Genzyme, EXACT, or their respective Affiliates.


 


“Third Party
Claim” has the meaning set forth in Section 14.4(a).


 


“Transactions”
means: (i) the Sale, (ii) the licenses and other rights granted
pursuant to Article 3 and the related research and development
collaboration in Article 4, (iii) the APC/p53 License Amendment and (iv) the
JHU-EXACT License Amendment.


 


“Transferred
In-License Agreement” means the Amended and Restated License Agreement,
having a final signature date of March 25, 2003, as further amended
pursuant to a Second Amendment dated as of November 9, 2004, a Third
Amendment dated as of May 11, 2006, a Fourth Amendment dated as of March 19,
2007, a Fifth Amendment dated as of October 17, 2008, a Sixth Amendment
dated as of October 30, 2008 and a Seventh Amendment dated as of December 15,
2008, by and between JHU and EXACT.  The
term “Transferred In-License Agreement” also includes, when effective, the
JHU-EXACT License Amendment.


 


“Transferred
In-Licensed Technology” means the Intellectual Property Rights licensed to
EXACT by JHU under the Transferred In-License Agreement.  The Patent Rights included in the Transferred
In-Licensed Technology as of the Effective Date are set forth on Schedule
6.8(a)(iii).


 


“Transferred Technology” means (a) all
Intellectual Property Rights with applicability in the Genzyme Core Field owned
by EXACT as of the Closing Date and (b) the Transferred In-Licensed
Technology.  The parties understand and
agree that the Patent Rights included in the Transferred Technology are only
those set forth on Schedule 6.8(a)(i) and Schedule 6.8(a)(ii) (including
those included by way of clause (ii) below), and any Retained Patent
Rights of EXACT that are later determined to have applicability in the Genzyme
Core Field after the Closing Date will not become Transferred Technology hereunder
but instead will remain “Retained Patent Rights” hereunder.  For clarity, (i) Transferred Technology
may have applicability in fields other than the Genzyme Core Field, but each
item of Transferred Technology has some applicability in the Genzyme Core
Field; (ii) the Transferred Technology includes all Patent Rights first
filed after the Effective Date that claim priority (direct or indirect, in
whole or in part) to any Patent Right included within the Transferred
Technology as of the Effective Date and (iii) no Patent Rights set forth
on Schedule 2.1(b)(vii) or identified in Section 2.1(b)(vii) are
included within the definition of Transferred Technology.


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


8
















 


Article 2   Sale and Purchase.


 


2.1                Purchased
Assets.


 


(a)      At
the Closing, subject to the conditions of this Agreement, EXACT will sell,
convey, assign, transfer and deliver to Genzyme, and Genzyme will purchase from
EXACT, all of EXACT’s rights, title and interests in and to the following
assets (collectively, the “Purchased Assets”):


 


(i)       the
Transferred Technology, including all Actions and rights to sue at law or in
equity for any past or future infringement or other impairment of any of the
Transferred Technology and the right to receive all proceeds and damages
therefrom;


 


(ii)      all
of EXACT’s rights under the Transferred In-License Agreement and all contracts
and licenses listed on Schedule 2.1(a)(ii) (the “Assigned
Contracts”);


 


(iii)     all
Supporting Materials;


 


(iv)     all
of EXACT’s rights under any confidentiality agreement relating to any of the
Purchased Assets; and


 


(v)      all
claims of EXACT against Third Parties relating to any Purchased Assets, whether
choate or inchoate, known or unknown, contingent or otherwise.


 


Notwithstanding any other
provision of this Agreement, the transfer of the Purchased Assets pursuant to
this Agreement (the “Sale”) will not include the assumption of any
liabilities except those Genzyme expressly assumes pursuant to Section 2.3.


 


(b)      All
assets of EXACT other than the Purchased Assets (collectively, the “Retained
Assets”) are not part of the Sale, and are not being transferred to Genzyme
pursuant to this Agreement.  For the
avoidance of doubt, the Retained Assets include, but are not limited to:


 


(i)       all
of EXACT’s cash, cash equivalents and short-term investments;


 


(ii)      all
minute books, stock records and corporate seals of EXACT;


 


(iii)     all
real property assets, including leasehold rights, of EXACT;


 


(iv)     all
of EXACT’s plant and equipment;


 


(v)      all
of EXACT’s rights under contracts other than the Assigned Contracts;


 


(vi)     all
of EXACT’s personnel records; and


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


9

















 


(vii)    all
Intellectual Property Rights owned or in-licensed by EXACT that are not
included in the Transferred Technology, including the Patent Rights listed on Schedule
2.1(b)(vii) (plus all Patent Rights first filed after the Effective
Date that claim priority (direct or indirect, in whole or in part) to any such
Patent Rights).


 


2.2                Consideration.  The consideration for the Purchased Assets
(the “Consideration”) will be (i) the Closing Payment, (ii) the
assumption of the Assumed Liabilities, (iii) the waiver pursuant to the
APC/p53 License Amendment and (iv) the obligation to pay the Royalty
during the Royalty Period.


 


2.3                Assumed
and Retained Liabilities.


 


(a)      Assumed
Liabilities.  On the Closing Date,
Genzyme will assume and agree to discharge all liabilities arising after the
Closing under the Assigned Contracts (other than any liability arising out of
or relating to a breach that occurred prior to or upon the Closing) (the “Assumed
Liabilities”).


 


(b)      Retained
Liabilities.  All other liabilities
of EXACT (the “Retained Liabilities”) will remain the sole
responsibility of and will be retained, paid, performed and discharged solely
by EXACT.  Retained Liabilities will
include:


 


(i)       any
liability under any Assigned Contract that arises after the Closing but that
arises out of or relates to a breach that occurred prior to or upon the
Closing;


 


(ii)      any
liability for taxes, including (A) any taxes arising as a result of EXACT’s
operation of its business or EXACT’s ownership of the Purchased Assets or
otherwise arising from or with respect to the Purchased Assets, in each case
for any taxable period or portion thereof ending on or prior to the Closing
Date, (B) any taxes that will arise as a result of the sale of the
Purchased Assets pursuant to this Agreement, and (C) any deferred taxes of
any nature;


 


(iii)     any
liability under any contract, agreement or understanding not included in the
Assigned Contracts, including any amounts owed to any law firm, attorney,
consultant or financial advisor;


 


(iv)     any
liability relating to the operation of EXACT’s business (other than liabilities
arising after the Closing under any of the Assigned Contracts that do not arise
out of or relate to a breach that occurred prior to or upon the Closing) or
EXACT’s leasing, ownership or operation of real property;


 


(v)      any
liability to any current or former employee, director or agent of EXACT or any
of its Affiliates, including under any employee benefit plan or relating to
payroll, vacation, sick leave, workers’ compensation, unemployment benefits,
pension benefits, employee stock option or profit-sharing plans, health care
plans or benefits or any other employee plans or benefits of any kind for EXACT’s
employees or former employees or both;


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


10

















 


(vi)     any
liability of EXACT arising out of or resulting from EXACT’s compliance or
non-compliance with any legal requirement or order of any governmental entity;
and


 


(vii)    any
liability of EXACT with respect to this Agreement or any other document
executed in connection with the Transactions.


 


Article 3   Licenses and Other Rights.


 


3.1                License
to Genzyme under Retained Patent Rights.


 


(a)      Effective
at the time of, and contingent upon the occurrence of, the Closing, EXACT
hereby grants to Genzyme an (i) irrevocable, perpetual, exclusive (even as
to EXACT), worldwide, fully-paid, royalty-free license, with the right to
sublicense through multiple tiers (subject to Section 3.5) under the
Retained Patent Rights to make, have made, use, sell, offer for sale, import
and export products, to offer for sale and perform services and to otherwise practice
and exploit the Retained Patent Rights, in each case solely in the Genzyme Core
Field, and (ii) irrevocable, perpetual, nonexclusive, worldwide,
fully-paid, royalty-free license, with the right to sublicense through multiple
tiers (subject to Section 3.5) under the Retained Patent Rights to make,
have made, use, sell, offer for sale, import and export products, to offer for
sale and perform services and to otherwise practice and exploit the Retained
Patent Rights, in each case solely in the Genzyme Field other than the Genzyme
Core Field; provided that any sublicense of the license set forth in
this clause (ii) will only be made [********].


 


(b)      Genzyme
understands and agrees that Genzyme’s license and other rights hereunder to the
Retained Patent Rights (including under Article 12) are subject to the
rights of Third Parties under the agreements listed on Schedule 3.1(b).


 


3.2                License
to Genzyme under EXACT Licensed Improvements and Joint Collaboration Technology.


 


(a)      Subject
to the terms and conditions of this Agreement, effective at the time of, and
contingent upon the occurrence of, the Closing, EXACT hereby grants to Genzyme
a perpetual (subject to Section 3.7(b)), exclusive (even as to EXACT),
worldwide, fully-paid, royalty-free license, with the right to sublicense
through multiple tiers (subject to Section 3.5), under the EXACT Licensed
Improvements and the Joint Collaboration Technology to make, have made, use,
sell, offer for sale, import and export products, to offer for sale and perform
services and to otherwise practice and exploit the EXACT Licensed Improvements
and Joint Collaboration Technology, in each case solely in the Genzyme Field.


 


(b)      EXACT
will disclose to Genzyme any potential EXACT Licensed Improvement in writing in
reasonable detail promptly after such improvement has been discovered,


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


11

















 


conceived,
created, made or invented that EXACT reasonably believes would have potential
application in the Genzyme Field.  If the
parties agree that such improvement has applicability in the Genzyme Field and
therefore constitutes an EXACT Licensed Improvement, the parties will add a
general description of such improvement to Schedule 3.2(b) and such
improvement will be become an EXACT Licensed Improvement for the purposes of
this Agreement.


 


3.3                Option
to License Additional EXACT Technology.


 


(a)      Effective
at the time of, and contingent upon the occurrence of, the Closing, EXACT
hereby grants Genzyme an exclusive option (the “Option”) to obtain an
exclusive license to Additional EXACT Technology in the Genzyme Core Field,
subject to the terms and conditions of this Section 3.3.


 


(b)      EXACT
will disclose to Genzyme any Additional EXACT Technology in writing in
reasonable detail promptly after such technology has been discovered,
conceived, created, made, invented or acquired. 
If the Additional EXACT Technology is in-licensed by EXACT from a Third
Party, then, if applicable, such disclosure will include any license fee or royalty
payment that EXACT would be required to pay such Third Party as a result of
EXACT’s granting to Genzyme a sublicense under such Additional EXACT Technology
in the Genzyme Core Field and a copy of the license agreement between EXACT and
such Third Party.  If Genzyme wishes to
exercise the Option with respect to such disclosed Additional EXACT Technology,
Genzyme will provide EXACT with written notice (the “Option Exercise Notice”)
within [********] of receipt of EXACT’s disclosure.  Upon delivery of the Option Exercise Notice,
Genzyme will add a general description of such Additional EXACT Technology to Schedule
3.3(b), and such technology will be become Optioned Technology ([********]
to Genzyme, other than pursuant to Section 11.2) for the purposes of this
Agreement.  If Genzyme does not deliver
an Option Exercise Notice within such [********] period, then Genzyme’s Option
will automatically expire with respect to the disclosed item of Additional
EXACT Technology and EXACT may sell, assign, license or otherwise transfer such
item of Additional EXACT Technology in the Genzyme Core Field to any Third
Party without any further obligation or liability to Genzyme.  If Genzyme takes a sublicense to Optioned
Technology in-licensed by EXACT, then Genzyme’s sublicense to that Optioned
Technology will be subject to Genzyme’s timely payment of the Genzyme Third
Party Payment as provided in Section 11.2 and Genzyme’s compliance with
the terms of the in-license agreement applicable to Genzyme as a sublicensee
thereunder.


 


(c)      Subject
to the terms and conditions of this Agreement, effective at the time of, and
contingent upon the occurrence of, the Closing, EXACT hereby grants to Genzyme
a perpetual (subject to Section 3.7(b)), exclusive (even as to EXACT),
worldwide, fully-paid, royalty-free (except as provided in Section 11.2(a))
license or sublicense (as the case may be), with the right to sublicense
through multiple tiers (subject to Section 3.5), under the Optioned
Technology to make, have made, use, sell, offer for sale, import and export
products, to offer for sale and perform services and to


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


12

















 


otherwise practice
and exploit the Optioned Technology, in each case solely in the Genzyme Core
Field.


 


3.4                License
to EXACT under Transferred Technology, Genzyme Licensed Improvements and Joint
Collaboration Technology.


 


(a)      Effective
at the time of, and contingent upon the occurrence of, the Closing, Genzyme
hereby grants to EXACT an irrevocable, perpetual, exclusive (even as to
Genzyme), worldwide, fully-paid, royalty-free license, with the right to
sublicense through multiple tiers (subject to Section 3.5), under the
Transferred Technology other than the Transferred In-Licensed Technology to
make, have made, use, sell, offer for sale, import and export products, to
offer for sale and perform services and otherwise to practice and exploit the
Transferred Technology other than the Transferred In-Licensed Technology, in
each case solely in the EXACT Field.


 


(b)      Subject
to the terms and conditions of this Agreement, effective at the time of, and
contingent upon the occurrence of, the Closing, Genzyme hereby grants to EXACT
a perpetual (subject to Section 3.7(a)), exclusive (even as to Genzyme),
worldwide, fully-paid, royalty-free license, with the right to sublicense
through multiple tiers (subject to Section 3.5), under the Genzyme
Licensed Improvements and the Joint Collaboration Technology to make, have
made, use, sell, offer for sale, import and export products, to offer for sale
and perform services and to otherwise practice and exploit the Genzyme Licensed
Improvements and Joint Collaboration Technology, in each case solely in the
EXACT Field.


 


(c)      Genzyme
will disclose to EXACT any potential Genzyme Licensed Improvement in writing in
reasonable detail promptly after such improvement has been discovered,
conceived, created, made or invented that Genzyme reasonably believes would
have potential application in the EXACT Field. 
If the parties agree that such improvement has applicability in the
EXACT Field and therefore constitutes a Genzyme Licensed Improvement, the
parties will add a general description of such improvement to Schedule 3.4(c) and
such improvement will be become a Genzyme Licensed improvement for the purposes
of this Agreement.


 


(d)      For
the avoidance of doubt, the licenses granted to EXACT pursuant to Section 3.4
do not include a sublicense to any rights under the Transferred In-License
Agreement.  Such rights are covered by,
and subject to, the JHU-EXACT License Amendment.


 


3.5                Sublicensing.  Each party may grant sublicenses (including
multiple tier sublicenses) under the licenses granted pursuant to Sections
3.1(a), 3.2(a), 3.3(c), 3.4(a) or 3.4(b) [********] (subject to the
provisions of any agreement pursuant to which EXACT licenses an item of
Optioned Technology from a Third Party); provided  that the party
granting such sublicense will be fully responsible for the performance of its
sublicenses.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


13

















 


3.6                Use
of Technology.  Neither party will
practice or grant any rights under Technology owned or Controlled by the other
party except as expressly licensed under this Agreement.


 


3.7                Termination
of License Rights.


 


(a)      Termination
by Genzyme.  Genzyme may terminate
the license granted to EXACT pursuant to Section 3.4(b) at any time
by giving written notice to EXACT in the event that EXACT commits a material
breach of its obligations under this Agreement and such breach remains uncured
for 90 days, measured from the date written notice of such breach is given to
EXACT.  If there is a bona fide good
faith dispute between the parties as to whether a material breach has occurred,
whether such breach has been cured or the amount to be indemnified, the 90 day
cure period will be tolled pending resolution of such dispute.  Notwithstanding the foregoing, if all
monetary damages of Genzyme arising from any such uncured, material breach by
EXACT are satisfied by the indemnity provisions of Article 14 and Genzyme
does not have any material non-monetary damages related thereto, then Genzyme
will not have the right to terminate the license under Section 3.4(b) on
the basis of such breach.


 


(b)      Termination
by EXACT.  EXACT may terminate the
licenses and Option granted to Genzyme pursuant to Section 3.2(a) or Section 3.3
at any time by giving written notice to Genzyme in the event that Genzyme
commits a material breach of its obligations under this Agreement and such
breach remains uncured for 90 days, measured from the date written notice of
such breach is given to Genzyme.  If
there is a bona fide good faith dispute between the parties as to whether a
material breach has occurred, whether such breach has been cured or the amount
to be indemnified, the 90 day cure period will be tolled pending resolution of
such dispute.  Notwithstanding the
foregoing, if all monetary damages of EXACT arising from any such uncured,
material breach by Genzyme are satisfied by the indemnity provisions of Article 14
and EXACT does not have any material non-monetary damages related thereto, then
EXACT will not have the right to terminate any such licenses or Option on the
basis of such breach.


 


(c)      Survival
of Sublicenses.  If either party
terminates a license granted under this Agreement pursuant to Section 3.7,
and, on the effective date of such termination, (i) a sublicense under
such terminated license as permitted by Section 3.5 is in effect and (ii) the
applicable sublicensee is in good standing under the sublicense agreement
between such sublicensee and the non-terminating party; then the terminating
party will grant to such sublicensee a direct license on substantially the same
terms as such sublicensee had as a sublicensee of the non-terminating party, so
that the sublicensee will be put in the same position as it was prior to the
termination of such license grant, provided, however, that the
terminating party will not have any increased obligations as a result of such
direct license to such sublicensee.


 


3.8                Rights
in Bankruptcy.  All rights and
licenses now or hereafter granted under or pursuant to Sections 3.1, 3.2, 3.3 and
3.4 of this Agreement are rights to “intellectual


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


14

















 


property” (as defined in Section 101(35A)
of Title 11 of the United States Code (the “Bankruptcy Code”)).  Each party hereby grants to other party and
all Affiliates of such other party a right of access and to obtain possession
of, and to benefit from copies of, (a) research data and results and (b) tangible
Technology, all of which ((a) and (b)) constitute “embodiments” of
intellectual property pursuant to Section 365(n) of the Bankruptcy
Code, and (c) all other embodiments of such intellectual property, in each
case, solely in connection with the other party’s rights under this Agreement,
whether any of the foregoing are in the granting party’s possession or control
or in the possession and control of Third Parties.  Each party agrees not to interfere with the
other party’s and the other party’s Affiliates’ exercise of rights and licenses
to intellectual property licensed hereunder and embodiments thereof in accordance
with this Agreement and agrees to use reasonable efforts to assist such other
party and its Affiliates to obtain such intellectual property and embodiments
thereof in the possession or control of Third Parties as reasonably necessary
or desirable for such other party and Affiliates to exercise such rights and
licenses in accordance with this Agreement. 
The parties acknowledge and agree that all payments payable under this
Agreement, other than (i) the Royalty payable by Genzyme in connection
with the sublicensing of Retained Patent Rights or (ii) any Genzyme Third
Party Payment payable by Genzyme, do not constitute “royalties” within
the meaning of Bankruptcy Code Section 365(n) or relate to licenses
of intellectual property hereunder.


 


Article 4   Collaboration.


 


4.1                Joint
Advisory Committee.  Promptly after
the Closing Date, Genzyme and EXACT will establish a joint advisory committee
(the “Committee”) to assist both parties in the achievement of product
development and regulatory goals within their relevant fields (collectively,
the “Primary Goals”).  The Primary
Goals include (i) [********], (ii) [********] and (iii) [********].  Through the Committee, the parties will share
expertise, guidance, plans, clinical plans, protocols and/or strategies.  By way of example only, [********].  The Committee will exist until the
termination of the Collaboration Period unless the parties otherwise agree in
writing.


 


4.2                Committee
Meetings and Activities.  Each party
will designate a Committee contact person, who will facilitate and make
available 2 or more representatives of such party for participation in
Committee meetings or other activities from time to time, which representatives
will be scientific, technical development and/or FDA regulatory advisors or
employees of such party with expertise suitable to the particular Committee
activity.  During the Collaboration
Period, the Committee will meet at least bi-monthly, in person or via
teleconference.  Each party will be
solely responsible for compensation of such party’s employees, advisors and
Committee representatives who participate in Committee meetings or activities,
and each party will be solely responsible for expenses incurred by its
employees, advisors and Committee representatives in attending or otherwise
participating in Committee meetings and activities.  The Committee will not have any authority to
bind either party to any action or to amend or modify this Agreement.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


15

















 


4.3                Termination
of the Collaboration Period.


 


(a)      Either
party may terminate the Collaboration Period immediately upon [********] by
providing written notice to the other party within [********] following [********].


 


(b)      Any
time after the 5th anniversary of the Closing Date, either party may terminate
the Collaboration Period [********] upon [********] advance written notice to
the other party.


 


Article 5   Closing.


 


5.1                Closing.  The consummation of the Transactions (the “Closing”)
will take place at the offices of Genzyme’s counsel at Ropes & Gray
LLP, One International Place, Boston, Massachusetts, commencing at 10:00 a.m.
(Boston time) on the business day on which the last of the conditions required
to be satisfied or waived pursuant to Article 9 and Article 10 of
this Agreement is either satisfied or waived (other than conditions which by
their nature are to be satisfied or waived at the Closing and are expected to
be satisfied at the Closing) (the “Closing Date”), or at such other
place or time as the parties may mutually agree.


 


5.2                Deliverables.  In addition to any other documents to be
delivered under other provisions of this Agreement, at the Closing:


 


(a)      EXACT
will deliver to Genzyme the following documents (collectively referred to in
this Agreement as the “Ancillary Agreements”):


 


(i)       a
bill of sale for all of the Purchased Assets that are tangible personal
property, executed by EXACT, substantially in the form attached hereto as Exhibit C;


 


(ii)      an
assignment of all of the Purchased Assets that are intangible personal
property, which assignment will also contain Genzyme’s undertaking and
assumption of the Assumed Liabilities (the “Assignment and Assumption
Agreement”) executed by EXACT, substantially in the form attached hereto as
Exhibit D;


 


(iii)     an
assignment of all Patent Rights included in the Transferred Technology,
executed by EXACT, substantially in the form attached hereto as Exhibit E;


 


(iv)     the
APC/p53 License Amendment executed by EXACT;


 


(v)      the
JHU-EXACT License Amendment executed by EXACT and JHU;


 


(vi)     the
Common Stock Subscription Agreement executed by EXACT; and


 


(vii)    such
other deeds, bills of sale, assignments, certificates of title, agreements,
documents and other instruments of transfer and conveyance as may reasonably


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


16

















 


be requested by Genzyme
as set forth in Section 8.4, each in form and substance satisfactory to
Genzyme and its legal counsel and executed by EXACT.


 


(b)      Genzyme
will deliver to EXACT, together with the Closing Payment, less the Potential
Liabilities Holdback Amount, by wire transfer of immediately available funds,
the following Ancillary Agreements:


 


(i)       the
Assignment and Assumption Agreement executed by Genzyme;


 


(ii)      the
APC/p53 License Amendment executed by Genzyme;


 


(iii)     the
JHU-EXACT License Amendment executed by Genzyme; and


 


(iv)     the
Common Stock Subscription Agreement executed by Genzyme.


 


5.3                Post-Closing.  Within 15 days of the Closing Date, EXACT
will notify all of its agents that hold files or other tangible material
included in the Purchased Assets, including any law firms holding files with
respect to Transferred Technology, that effective as of the Closing, Genzyme
will own such Purchased Assets, and EXACT will be responsible for any fees or
expenses associated with such notification or related actions in connection
with reflecting the transfer of ownership.


 


Article 6   Representations and Warranties of
EXACT.


 


In order to induce Genzyme to enter into and perform
this Agreement and to consummate the Transactions, EXACT hereby represents and
warrants to Genzyme as follows:


 


6.1                Organization.  EXACT is (a) duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and (b) except where the failure to be so qualified or in
good standing would not be reasonably likely to have a Material Adverse Effect,
duly qualified to do business and in good standing in each jurisdiction in
which it owns or leases real property or is otherwise required to be so
qualified or in good standing.


 


6.2                Power
and Authorization.


 


(a)      The
execution, delivery and performance by EXACT of this Agreement and each
Ancillary Agreement and the consummation of each Transaction are within the
power and authority of EXACT and have been duly authorized by all necessary
action on the part of EXACT.  This
Agreement and each Ancillary Agreement (i) has been (or, in the case of
Ancillary Agreements to be entered into at or prior to the Closing, will be)
duly executed and delivered by EXACT and (ii) is (or, in the case of
Ancillary Agreements to be entered into at or prior to the Closing, will be) a
legal, valid and binding obligation of EXACT, enforceable against EXACT in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and subject to general


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


17

















 


principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).


 


(b)      EXACT
has the full power and authority necessary to own and use its assets and carry
on its business.


 


6.3                Authorization
of Governmental Authorities.  No
action by (including any authorization, consent or approval), or in respect of,
or filing or declaration with, any Governmental Authority is required for, or
in connection with, the valid and lawful (i) authorization, execution,
delivery and performance by EXACT of this Agreement and each Ancillary
Agreement or (ii) consummation of each Transaction.


 


6.4                Noncontravention.  Neither the execution, delivery and
performance by EXACT of this Agreement or any Ancillary Agreement nor the
consummation of any Transaction will:


 


(a)      violate
any legal requirement applicable to EXACT;


 


(b)      result
in a breach or violation of, or default under, any obligation under any
contract, agreement or understanding;


 


(c)      except
as disclosed on Schedule 6.4(c), require any action by (including any
authorization, consent or approval) or in respect of (including notice to), any
party under any contract, agreement or understanding, including any consents
required to assign rights under the Assigned Contracts, to assign the
Transferred Technology or to grant the licenses set forth in Article 3;


 


(d)      result
in the creation or imposition of an encumbrance upon, or the forfeiture of, any
Purchased Assets; or


 


(e)      result
in a breach or violation of, or default under, EXACT’s certificate of
incorporation, by-laws or other organizational documents.


 


6.5                Absence
of Liabilities.  There are no
liabilities of EXACT or, to EXACT’s knowledge, any Third Party that may be
imposed on Genzyme due to consummation of the Transactions except for the
Assumed Liabilities.


 


6.6                Absence
of Certain Developments.  Since December 31,
2007, no event or circumstance has occurred which has had, or is reasonably
likely to have, a Material Adverse Effect.


 


6.7                Assets.


 


(a)      Except
as disclosed on Schedule 6.7(a), EXACT has sole and exclusive, good and
marketable title to, or, a sole and exclusive, enforceable right to use, all of
the Purchased Assets.  There are no liens
or encumbrances on any of the Purchased Assets. 
EXACT does not own any real property.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


18
















 


 


(b)      Except as disclosed on Schedule
6.7(b), the Purchased Assets comprise all of the intangible assets, related
Supporting Materials and rights of every type and description (including all
Intellectual Property Rights) with applicability in the Genzyme Core Field that
are (i) owned by EXACT, (ii) licensed to EXACT with rights extending in
the Genzyme Core Field, or (iii) used by EXACT.


 


6.8                Intellectual
Property Rights.


 


(a)      Schedule 6.8(a)(i) identifies
all Patent Rights included in the Transferred Technology that are licensed by
EXACT to [********] under the [********], and EXACT has provided to Genzyme
true, correct and complete copies of all amendments to the [********] as of the
Effective Date.  Schedule 6.8(a)(ii) identifies
all Patent Rights included in the Transferred Technology that are not licensed
by EXACT to [********] pursuant to the [********].  For each Patent Right, Schedule 6.8(a)(i) and
Schedule 6.8(a)(ii) identifies the country, title, patent number
(if issued), application number, filing date, issue date, inventors and any
continuity relationship with respect to any other Patent Right (such as
continuation, continuation-in-part, divisional), and identification of those
Patent Rights included in the Transferred In-Licensed Technology.  Schedule 6.8(a)(iii) identifies
the Transferred In-License Agreement, including the identification and
description of the applicable Transferred Technology that is the subject of
such Transferred In-License Agreement, and any other contracts, agreements or
understandings that EXACT has entered into with Third Parties that grant such
Third Party rights with respect to, or that otherwise affect EXACT’s rights in,
the Transferred Technology.  True,
accurate and complete copies of all such registrations, applications,
contracts, agreements or understandings (a written summary if oral), in each
case, as amended, or otherwise modified and in effect, have been made available
to Genzyme as well as true, accurate and complete copies of all other written
documentation evidencing ownership and prosecution (if applicable) of such
item.


 


(b)      Except as disclosed on Schedule
6.8(b)(i), EXACT is the sole owner of all rights, title and interests in
and to the Transferred Technology. Except as disclosed on Schedule
6.8(b)(ii), none of the Transferred Technology is subject to any license to
any Third Party.


 


(c)      Neither EXACT nor any of its
Affiliates has granted to any Third Party any rights with respect to the
Transferred Technology in the Genzyme Field. 
Each of the Transferred In-License Agreement and the other contracts
with Third Parties required to be disclosed on Schedule 6.8(a) represents
the complete agreement and understanding between EXACT or its Affiliates and
the other respective party or parties thereto relating to the Transferred
Technology that is the subject of such contract.


 


(d)      Neither EXACT nor any of its
Affiliates has received any written (or to EXACT’s knowledge, oral) charge,
complaint, claim, demand or notice alleging any interference, infringement,
misappropriation or conflict with any Intellectual Property Rights of Third
Parties (including any written (or to EXACT’s knowledge, oral) claim that 


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


19





















 


EXACT or any of
its Affiliates must license or refrain from using any Intellectual Property
Right).  Except as disclosed on Schedule
6.8(d), neither EXACT nor its Affiliates are obligated to indemnify any
Person against a charge of infringement of Intellectual Property Rights with
respect to use of the Transferred Technology.


 


(e)      Except as disclosed on Schedule
6.8(e)(i), all registered or issued Transferred Technology (as identified
on Schedule 6.8(a)) is subsisting and enforceable (or, in the case of
applications, is pending).  Except as
disclosed on Schedule 6.8(e)(ii), EXACT has taken all steps necessary to
maintain such registrations and diligently pursue the registration of such
applications, including the payment when due of all maintenance fees,
application and prosecution fees and annuities, the filing of all necessary
renewals, statements and certifications and the timely response to all office
actions, requests and other correspondence from Governmental Authorities in
connection therewith.  To EXACT’s
knowledge, EXACT and all individuals to whom the duty of candor and good faith
applies with respect to the Transferred Technology have complied with such
duty, including the duty to disclose to the United States Patent and Trademark
Office all information believed to be material to the patentability of the
Patent Rights included in the Transferred Technology.  Except as disclosed on Schedule 6.8(e)(ii),
EXACT is not aware of any colorable grounds for invalidating any issued Patent
Right within the Transferred Technology.


 


(f)       Except as disclosed on Schedule
6.8(f), there are no royalties or other payments payable by EXACT or its
Affiliates for the use of any Transferred Technology, including pursuant to the
Transferred In-License Agreement.  For
each royalty disclosed on Schedule 6.8(f), such schedule sets forth the
date on which such royalty will cease to be payable.


 


(g)      Except as disclosed on Schedule
6.8(g), all current and former employees, agents and consultants of EXACT
or its Affiliates who have contributed to the development of the Transferred
Technology in any way or who have had access to EXACT’s confidential and
proprietary information with respect to the Transferred Technology prior to the
Closing have entered into binding written agreements with EXACT whereby
(i) EXACT is entitled to all ownership rights in any Transferred
Technology prior to the Closing that the employee, agent or consultant may have
invented, discovered, originated, made or conceived while working for EXACT or
its Affiliates, and all such ownership rights are duly assigned to EXACT, and
(ii) the employee, agent or consultant agrees to hold and maintain in
confidence all confidential and proprietary information of EXACT.


 


(h)      Except as disclosed on Schedule
6.8(h), to EXACT’s knowledge, neither government funding nor government,
academic or non-profit research facilities were used in the development of any
Transferred Technology.  To the extent
that any of the Transferred Technology arose from work funded in whole or in
part by U.S. federal funding, to EXACT’s knowledge, all requirements necessary
to (i) vest the entire right, title and interest in EXACT or in the
licensor of such Transferred Technology and (ii) 


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


20





















 


assign (and, as
applicable, license) such Transferred Technology to Genzyme pursuant to the
terms of this Agreement, have been satisfied.


 


6.9                Government
Authorizations and Registrations. 
EXACT has been duly granted all governmental authorizations and duly
filed all governmental registrations under all legal requirements for the
possession of the Purchased Assets and the use of those Purchased Assets as
used by EXACT.  Such authorizations and
registrations are valid, in good standing and in full force and effect, and
there are no proceedings pending or, to the knowledge of EXACT, threatened that
seek the revocation, cancellation, suspension or adverse modification to such
authorizations or registrations.  EXACT
is not in default or non-compliance under any such authorization or
registration.


 


6.10              Legal
Compliance.  EXACT is not in breach
or violation of, or default under:


 


(a)      its articles of
incorporation, by-laws and other organizational documents nor, to EXACT’s
knowledge, is there a basis which could constitute such a breach, violation or
default; or


 


(b)      any legal requirement that,
if breached or violated, would be reasonably likely to have a Material Adverse
Effect.


 


6.11              Contracts.


 


(a)      Except as disclosed on Schedule
6.11(a), EXACT is not bound by or a party to any contract, agreement or
understanding relating to or affecting the Purchased Assets.


 


(b)      To EXACT’s knowledge, each
Assigned Contract and each other contract, agreement or understanding required
to be disclosed on Schedule 6.8(a)(iii) or Schedule 6.11(a) (each,
a “Disclosed Contract”) is enforceable against each party to such
contract, and is in full force and effect, and, subject to obtaining any
necessary consents disclosed on Schedule 6.4(c), will continue to be so
enforceable and in full force and effect on identical terms following the
consummation of the Transactions. 
Complete and correct copies of the Disclosed Contracts (including all
amendments, supplements and waivers thereto) have been delivered to Genzyme.


 


(c)      EXACT has performed all of
its obligations under each Disclosed Contract and neither EXACT nor, to EXACT’s
knowledge, any other party to any Disclosed Contract, is (with or without the
lapse of time or the giving of notice, or both) in breach or violation of, or
default under, or has repudiated any provision of, any Disclosed Contract.  None of the other parties to the Disclosed
Contracts has given any notice to or made a claim against EXACT or its
Affiliates with respect to any breach or default under the Disclosed Contracts.


 


(d)      No officer, director,
employee or consultant of EXACT, or any Affiliate of EXACT, is a party to any
Disclosed Contract.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


21





















 


6.12              Litigation;
Governmental Orders.


 


(a)      Except as disclosed on Schedule
6.12(a), there is no Action to which EXACT is a party (either as plaintiff
or defendant), or to which the Purchased Assets are subject, pending, or to
EXACT’s knowledge, threatened, that (i) challenges the legality, validity
or enforceability of the Transferred Technology or (ii) may affect EXACT’s
ownership of, or interest in, any of the Purchased Assets or the use or
exercise by EXACT or Genzyme of any of the Purchased Assets.  There is no Action to which EXACT is a party
(either as plaintiff or defendant), or to which the Purchased Assets are
subject, pending, or to EXACT’s knowledge, threatened, that in any manner challenges
or seeks the rescission of, or seeks to prevent, enjoin, alter or materially
delay the consummation of, or otherwise relates to, this Agreement or any of
the Transactions.  There is no Action
that EXACT presently intends to initiate.


 


(b)      No outstanding order, writ,
judgment, injunction, decree, stipulation, ruling, determination or award
entered by or with any Governmental Authority or arbitrator is currently in
effect or pending that is applicable to, or otherwise affects, EXACT or the
Purchased Assets (including any order that restricts EXACT from transferring
the Transferred Technology to Genzyme).


 


6.13              Insurance.  EXACT is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary for the business in which it engaged.  EXACT has no reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not be reasonably likely to have
a Material Adverse Effect.


 


6.14              No Brokers.  EXACT has no liability of any kind to, or is
subject to any claim of, any broker, finder or agent in connection with any of
the Transactions other than those that will be borne by EXACT, all of which
have been fully disclosed to Genzyme prior to the Effective Date.  For the avoidance of doubt, any payments due
to any investment bank retained by EXACT in connection with this Agreement or
any of the Transactions will be the sole responsibility of EXACT.


 


6.15              Solvency.


 


(a)      EXACT is not now insolvent
and will not be rendered insolvent by the Sale. 
As used in this Section 6.15, “insolvent” means that the sum of the
debts and other probable liabilities of EXACT exceeds the present fair saleable
value of EXACT’s assets, including the Purchased Assets.


 


(b)      Immediately after giving
effect to the consummation of the Sale: (i) EXACT will be able to pay its
liabilities as they become due in the usual course of its business;
(ii) EXACT will have assets (calculated at fair market value) that exceed
its liabilities; (iii) EXACT will not have unreasonably small capital with
which to conduct its present or proposed business; and (iv) taking into account
all pending and threatened litigation, 


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


22





















 


final judgments
against EXACT in Actions for money damages are not reasonably anticipated to be
rendered at a time when, or in amounts such that, EXACT will be unable to satisfy
any such judgments promptly in accordance with their terms (taking into account
the maximum probable amount of such judgments in any such Actions and the
earliest reasonable time at which such judgments might be rendered) as well as
all other obligations of EXACT.  The cash
available to EXACT, after taking into account all other anticipated uses of the
cash, will be sufficient to pay all such debts and judgments promptly in
accordance with their terms.


 


6.16              Disclosure.  The representations and warranties contained
in this Agreement and in the documents, instruments, agreements and
certificates and all diligence material and information, furnished by EXACT and
EXACT’s representatives to Genzyme, do not contain and will not contain any
untrue statement of fact or omit to state any material fact necessary in order
to make the statements and information contained therein not misleading.


 


Article 7   Representations
and Warranties of Genzyme.


 


In order to induce EXACT to enter into and perform this Agreement and
to consummate the Transactions, Genzyme hereby represents and warrants to EXACT
as follows: 


 


7.1                Organization.  Genzyme is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization.


 


7.2                Power and Authorization.  The execution, delivery and performance by
Genzyme of this Agreement and each Ancillary Agreement and the consummation of
each Transaction are within the power and authority of Genzyme and have been
duly authorized by all necessary action on the part of Genzyme.  This Agreement and each Ancillary Agreement
(a) has been (or, in the case of Ancillary Agreements to be entered into
at or prior to the Closing, will be) duly executed and delivered by Genzyme and
(b) is (or, in the case of Ancillary Agreements to be entered into at or
prior to the Closing, will be) a legal, valid and binding obligation of
Genzyme, enforceable against Genzyme in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ and contracting parties’ rights generally and subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).


 


7.3                Authorization
of Governmental Authorities.  Except
for actions and filings contemplated to be made by EXACT (in which Genzyme may
participate), no action by (including any authorization, consent or approval),
or in respect of, or filing or declaration with, any Governmental Authority is
required for, or in connection with, the valid and lawful
(a) authorization, execution, delivery and performance by Genzyme of this
Agreement and each Ancillary Agreement or (b) consummation of each
Transaction by Genzyme.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


23





















 


7.4                Noncontravention.  Neither the execution, delivery and
performance by Genzyme of this Agreement or any Ancillary Agreement nor the
consummation of any Transaction will:


 


(a)      assuming the taking of any
action by (including any authorization, consent or approval) or in respect of,
or any filing with, any Governmental Authority, in each case, as contemplated
hereunder, violate any legal requirement applicable to Genzyme; or


 


(b)      result in a breach or
violation of, or default under, Genzyme’s articles of incorporation, by-laws or
other organizational documents.


 


7.5                No Brokers.  Genzyme has no liability of any kind to, or
is subject to any claim of, any broker, finder or agent in connection with any
of the Transactions for which EXACT will be liable.


 


Article 8   Covenants
and Agreements.


 


8.1                Expenses.  Except to the extent otherwise expressly set
forth in this Agreement, EXACT and Genzyme will bear their respective expenses
incurred in connection with the preparation, execution and performance of this
Agreement and the Transactions, including all fees and expenses of agents,
representatives, counsel and accountants.


 


8.2                Payment of
Liabilities.  Until [********] after
the Closing Date, EXACT will pay or otherwise satisfy in the ordinary course of
business all of its liabilities and obligations (other than those which may be
disputed in good faith and for which adequate reserves have been established).


 


8.3                Restrictions
on EXACT Dissolution and Distributions. 
Until [********] after the Closing Date, EXACT will not dissolve, or
make any distribution of the Closing Payment, until after the later to occur
of:


 


(a)      EXACT’s payment, or adequate
provision for the payment, in full of all taxes resulting from or payable in
connection with the rights and obligations under the Transactions; and


 


(b)      EXACT’s payment, or adequate
provision for the payment, in full of all of the current Retained Liabilities
and other current liabilities of EXACT under this Agreement.


 


8.4                Further
Assurances.


 


(a)      EXACT and Genzyme will
execute such deeds, bills of sale, assignments, certificates of title,
agreements, documents and other instruments of transfer and conveyance and take
such further actions as may be reasonably required or desirable to carry out
the provisions hereof and the Transactions.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


24





















 


(b)      Without limiting the
generality of Section 8.4(a), EXACT agrees to use commercially reasonable
efforts to provide all further cooperation that Genzyme reasonably determines
is necessary to accomplish the complete transfer of the Transferred Technology
and Supporting Materials to Genzyme and to support Genzyme’s efforts to
establish, perfect, defend or enforce Genzyme’s rights in or to the Transferred
Technology, including (i) executing and delivering further assignments,
consents and releases and other commercially reasonable documentation,
(ii) providing good faith testimony by affidavit, declaration, deposition,
in-person or other means and (iii) assisting Genzyme with filing and
prosecution of patents and patent applications, interferences, oppositions,
other regulatory proceedings and litigation. 
EXACT will use commercially reasonable efforts to obtain the cooperation
of the individual inventors of any inventions disclosed in the Patent Rights
included in the Transferred Technology, including (A) obtaining signatures
of such inventors on any patent applications or other documentation reasonably
necessary to obtain patent protection for such inventions and
(B) procuring (at Genzyme’s expense) such inventors’ good faith testimony
by affidavit, declaration, deposition in-person or other means in support of
Genzyme’s efforts in establishing, perfecting, defending or enforcing Patent
Rights included in the Transferred Technology. 
To the extent EXACT cannot transfer and assign the Transferred
Technology, or any portion thereof, as of the Closing Date, then EXACT will
transfer and assign such Transferred Technology to Genzyme at its first
opportunity to do so and pending such transfer and assignment such Transferred
Technology will be deemed to be licensed to Genzyme to the same extent as EXACT
Licensed Improvements are licensed to Genzyme pursuant to Section 3.2(a), provided,
however that such license will be irrevocable.  To the extent Genzyme believes further documentation
of the transfer or assignment of the Patent Rights listed on Schedule
6.8(a)(i) and Schedule 6.8(a)(ii) is required and EXACT
has not, within 15 business days of being requested to do so in a writing sent
to the address for notices set forth in Section 16.1 (or such other
address provided in accordance with Section 16.1), executed and returned
to Genzyme the form of assignment reasonably requested by Genzyme, then EXACT
hereby irrevocably appoints Genzyme as its attorney in fact with the right, authority
and ability to execute and enter into such assignment on behalf of EXACT.  EXACT stipulates and agrees that such
appointment is a right coupled with an interest and will survive the
unavailability of EXACT at any future time. 
To the extent Genzyme believes further documentation of the transfer or
assignment of any Transferred Technology other than the Patent Rights listed on
Schedule 6.8(a)(i) and Schedule 6.8(a)(ii) is required,
Genzyme will send to the address for notices set forth in Section 16.1 (or
such other address provided in accordance with Section 16.1), a request
setting forth in reasonable detail the basis for Genzyme’s belief and a
description of such technology.  EXACT
will, within 10 business days of receipt of such request, either execute and
return to Genzyme the form of assignment reasonably requested by Genzyme or
respond to Genzyme in writing indicating that EXACT does not, in good faith,
believe that such form of assignment is consistent with this Agreement.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


25





















 


(c)      EXACT will use commercially
reasonable efforts, both before and, to the extent applicable, after the
Closing, to obtain the consents identified in Schedule 6.4(c).  Nothing in this Agreement will require
Genzyme to sell, hold separate, license or otherwise dispose of or conduct its
business in a specified manner, or agree to sell, hold separate, license or
otherwise dispose of or conduct its business in a specified manner, or permit
the sale, holding separate, licensing or other disposition of, any assets of
Genzyme, whether as a condition to obtaining any approval from a Governmental
Authority or any other Person or for any other reason.  EXACT will further use commercially
reasonable efforts to notify each Person subject to a confidentiality agreement
that is included in the Purchased Assets that Genzyme has become the
beneficiary of such agreement as of the Closing.


 


(d)      Without limiting the
generality of Section 8.4(a), EXACT will use commercially reasonable
efforts to take all actions reasonably requested by Genzyme to transfer all the
Know-How included in the Transferred Technology to Genzyme on or as promptly as
possible following the Closing Date and, in any event, within 90 days of the
Closing Date.  Among other things, EXACT
will deliver to Genzyme copies of Know-How embodied in documentation or other
tangible medium, and, on a reasonable number of occasions during the 12 months
following the Closing Date, technically qualified personnel employed or engaged
by EXACT will meet or participate in telephone conference calls with
representatives of Genzyme to transfer knowledge necessary to fully transfer to
Genzyme all the Know-How included in the Transferred Technology that is not
embodied in a tangible medium.


 


(e)      Effective at the time of,
and contingent upon the occurrence of, the Closing, EXACT hereby releases,
discharges and covenants not to assert against Genzyme or Genzyme’s Affiliates,
current licensees or representatives, all claims, causes and rights of action,
whether now existing or hereinafter arising and whether known or unknown,
arising from any use or exploitation of the Retained Patent Rights (but not
with respect to licensees) or the Transferred Technology in the Genzyme Field
prior to the Closing Date; provided, however, that EXACT does not release or covenant
not to assert any claim, cause or right of action arising under this Agreement,
the APC/p53 License, the Transferred In-License Agreement or any other
Ancillary Agreement.  The foregoing
release is subject to EXACT’s obligations under [********].


 


Article 9   Conditions
Precedent to the Obligations of Genzyme to Consummate the Sale.


 


The obligations of Genzyme to consummate the Transactions are subject
to the fulfillment of the following conditions, any one or more of which may be
waived by Genzyme:


 


9.1                Representations
and Warranties.  The representations
and warranties made by EXACT in this Agreement will have been accurate as of
the Effective Date and will be accurate as of the Closing Date as if made on
and as of the Closing Date.  EXACT will
have delivered to Genzyme a certificate signed by an authorized officer of
EXACT, dated as of the Closing Date, to the foregoing effect.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


26





















 


9.2                Corporate
Certificates.  EXACT will have delivered
a copy of (a) the certificate of incorporation of EXACT, as in effect on
the Closing Date, certified by the Delaware Secretary of State and (b) a
certificate, as of the most recent practicable date, of the Delaware Secretary
of State as to EXACT’s corporate good standing.


 


9.3                Secretary’s
Certificate.  EXACT will have
delivered a certificate of the Secretary of EXACT, dated as of the Closing
Date, certifying as to (a) the incumbency of officers of EXACT executing
documents executed and delivered in connection herewith, (b) a copy of the
by-laws of EXACT, as in effect on the Closing Date, and (c) a copy of the
resolutions of the Board of Directors of EXACT authorizing and approving the
Transactions.


 


9.4                Concurrent
Transactions.  The transactions
contemplated by the Common Stock Subscription Agreement, the APC/p53 License
Amendment, and the JHU-EXACT License Amendment will have been consummated on or
before the Closing Date.


 


9.5                Consents.  EXACT will have obtained the waivers or
consents, which will remain in full force and effect, required to be disclosed
on Schedule 6.4(c), such that the terms of any applicable agreements or
arrangements are unchanged by this Agreement and the Sale.


 


9.6                Opinion of
Counsel to EXACT.  Genzyme will have
received the favorable opinion, dated as of the Closing Date, of special
Delaware counsel to EXACT that: (a) no vote of the stockholders of EXACT
is required under Section 271 of the Delaware General Corporation Law to
approve the Transactions, and (b) this Agreement has been duly authorized,
executed and delivered by EXACT, and EXACT has the corporate power to execute
and deliver this Agreement and perform its obligations under this Agreement.


 


Article 10  Condition
Precedent to the Obligation of EXACT to Consummate the Sale.


 


The obligations of EXACT to consummate the Transactions are subject to
the fulfillment of the following conditions, any one or more of which may be
waived by EXACT:


 


10.1              Representations
and Warranties.  The representations
and warranties made by Genzyme in this Agreement will have been accurate as of
the Effective Date and will be accurate as of the Closing Date as if made on
and as of the Closing Date.  Genzyme will
have delivered to EXACT a certificate signed by an authorized officer of
Genzyme, dated as of the Closing Date, to the foregoing effect.


 


10.2              Secretary’s
Certificate.  Genzyme will have
delivered a certificate of the Secretary or Assistant Secretary of Genzyme,
dated as of the Closing Date, certifying as to (a) the incumbency of
officers of Genzyme executing documents executed and delivered in connection
herewith, (b) a copy of the by-laws of Genzyme, as in effect on the
Closing Date, and (c) a copy of the resolutions of the Board of Directors
of Genzyme authorizing and approving the Transactions.


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


27
















 


10.3              Concurrent Transactions.  The transactions contemplated by the Common
Stock Subscription Agreement, the APC/p53 License Amendment, and the JHU-EXACT
License Amendment will have been consummated on or before the Closing Date.


 


Article 11   Payment.


 


11.1              Royalty for Licenses under
Transferred Technology and Retained Patent Rights Outside Genzyme Core Field.


 


(a)      From the Closing Date until the date of
expiration of the last to expire Patent Rights included within the Transferred
Technology (the “Royalty Period”), Genzyme will pay to EXACT, on a
calendar quarterly basis, [********] of any cash Genzyme receives by way of
licensee fee or other upfront consideration, milestone payments or royalty
payments, after deducting any payments by Genzyme to a Third Party with respect
thereto, from a Third Party in consideration for granting such Third Party a
license or sublicense under the Transferred Technology or Retained Patent
Rights (including, for clarity, the Transferred In-Licensed Technology) in any
field other than the EXACT Field or Genzyme Core Field (the “Royalty”).


 


(b)      During the Royalty Period, Genzyme will
use commercially reasonably efforts, consistent with its current business
practices regarding out-licensing of Intellectual Property Rights, to seek to
grant a license to one or more Third Parties with respect to the Transferred
Technology outside of the Genzyme Core Field and EXACT Field.  GENZYME MAKES NO REPRESENTATION OR WARRANTY,
EITHER EXPRESS OR IMPLIED, THAT IT WILL BE ABLE TO SUCCESSFULLY LICENSE ANY OF
THE TRANSFERRED TECHNOLOGY OR RETAINED PATENT RIGHTS TO THIRD PARTIES OUTSIDE
OF THE GENZYME CORE FIELD AND EXACT FIELD OR THAT ANY SUCH LICENSE TO A THIRD
PARTY WILL RESULT IN ANY PARTICULAR AMOUNT OF INCOME.


 


(c)      Other than the Consideration (which
includes the obligation to pay the Royalty during the Royalty Period), Genzyme
has no obligation to make any royalty or other payment to EXACT with respect to
Genzyme’s acquisition or licensing of any of the Transferred Technology or
Retained Patent Rights.  For the
avoidance of doubt, no royalty payment is payable by Genzyme under this Section 11.1
with respect to (i) licensing or sublicensing of Transferred Technology or
Retained Patent Rights by Genzyme in the Genzyme Core Field, or (ii) sublicensing
of EXACT Licensed Improvements or Optioned Technology by Genzyme in the Genzyme
Field.


 


(d)      Within 60 days after the end of each
calendar quarter (March 31st, June 30th, September 30th and December 31st)
during the Royalty Period, Genzyme will deliver to EXACT a report setting forth
for such quarter in reasonable detail the net income Genzyme received from
Third Parties with respect to licenses or sublicenses to the Transferred
Technology or Retained Patent Rights in any field other than the EXACT Field or
Genzyme Core Field, and the resulting Royalty due to EXACT pursuant to 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


28





















 


Section 11.1(a).  Genzyme will remit to EXACT the total Royalty
due for such calendar quarter at the time such report is made.


 


11.2              Payment for Optioned Technology
In-Licensed From a Third Party.


 


(a)      If any Optioned Technology is in-licensed
by EXACT from a Third Party, during such time as the license from EXACT to
Genzyme pursuant to Section 3.3(c) is in effect and such Third Party
license to EXACT is in effect, Genzyme will [********] EXACT’s granting to
Genzyme a sublicense under such Optioned Technology in the Genzyme Core Field
pursuant to Section 3.3(c) (the “Genzyme Third Party Payment”);
provided, however, that  Genzyme
will pay no more than [********].  For
clarity, EXACT and not Genzyme will be solely responsible for [********].


 


(b)      Other than the Genzyme Third Party
Payment, Genzyme has no obligation to make any royalty or other payment to
EXACT with respect to the license provided to Genzyme pursuant to Section 3.3(c).


 


(c)      If a Genzyme Third Party Payment is
payable by Genzyme pursuant to Section 11.2(a), then within [********]
after Genzyme’s delivery of the applicable Option Exercise Notice, the parties
will agree in good faith in writing to commercially reasonable reporting
obligations and payment schedules with respect to such Genzyme Third Party
Payment and Genzyme will agree to comply with the terms of the particular
in-license agreement applicable to Genzyme as a sublicensee thereunder (with
the understanding that the parties will agree on the timing of the Genzyme
Third Party Payment so that EXACT will receive the Genzyme Third Party Payment
from Genzyme before EXACT is required to pay the applicable Third Party).


 


11.3              Payment Provisions Generally.  All amounts payable and calculations under
this Article 11 or Article 12 will be in United States dollars,
payable by wire transfer to the bank account designated below or such other
bank account designated in writing by the party to whom such payment is
due.  If a party fails to make any
payment due under this Article 11 or Article 12 within 30 days after
the relevant due date, interest will accrue at the annual rate of the sum of
[********], the interest being compounded on the last day of each calendar
quarter, provided, however, that in no event will the annual
interest rate exceed the maximum legal interest rate for corporations.


 


	
  (a)

  	
   

  	
  Wire Instructions for
  Genzyme Corporation:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [********]

  



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


29

















 


	
  (b)

  	
   

  	
  Wire Instructions for
  EXACT Sciences Corporation:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [********]

  	
   

  



 


11.4              Maintenance of Records; Audit.  Each party will keep books and accounts of
record in connection with payments due pursuant to this Article 11 or Article 12
in sufficient detail to permit accurate determination of all figures necessary
for verification of such payments.  Each
party will maintain such records for a period of at least 3 years after the end
of the calendar year in which they were generated.  No more frequently than 2 times during any
calendar year, each party will have the right, upon 10 days’ advance notice, to
conduct or have its agent conduct an audit of such records of the other party,
during the other party’s normal business hours and in a manner as not to
unreasonably interfere with the other party’s normal business activities.  If such audit is conducted by a party’s
agent, such agent will execute and deliver to the party subject to the audit a
confidentiality agreement reasonably acceptable to such party.  During any such audit, the audited party will
(a) supply the auditing party or its agent with all the relevant records
in the audited party’s possession or under its control that the auditing party
or its agent may reasonably request and (b) instruct its employees to
cooperate with the review and answer fully all relevant inquiries from the
auditing party or its agent.  The
auditing party will bear the fees and expenses of such audit, provided
that if the audit reveals underpayment by the audited party by at least 5%,
such costs will be borne by the audited party. 
Any payment discrepancy identified as a result of an audit under this Section 11.4
will promptly be corrected by a payment or refund, as appropriate.


 


Article 12   Intellectual Property Matters.


 


12.1              Ownership.


 


(a)      Subject to the rights granted to EXACT
pursuant to this Agreement, as between Genzyme and EXACT, Genzyme will retain
ownership of all rights, title and interests in and to all Transferred
Technology and Genzyme Licensed Improvements.


 


(b)      Subject to the rights granted to Genzyme
pursuant to this Agreement, as between EXACT and Genzyme, EXACT will retain
ownership of all rights, title and interests in and to all EXACT Licensed
Improvements, Additional EXACT Technology (including Optioned Technology) and
Retained Patent Rights.


 


(c)      Inventorship and authorship for all
Know-How, Patent Rights and Copyrights that are discovered, conceived, created,
made or invented will be determined in accordance 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


30





















 


with the
applicable United States rules, guidelines and laws of inventorship and
authorship.  With respect to Know-How and
Copyrights discovered, conceived, created, made or invented (as applicable)
jointly by the parties [********], each party hereby assigns to the other party
a joint interest in such joint Know-How and Copyrights.


 


(d)      All Joint Collaboration Technology will be
jointly owned by Genzyme and EXACT. 
Subject to the terms and conditions of this Agreement (including the
licenses granted herein), each party will have the right to practice and
license the Joint Collaboration Technology in its respective field (i.e., the
EXACT Field or Genzyme Field, as applicable) without the consent of the other
party (where consent is required by law, such consent is deemed hereby granted)
and without a duty of accounting to the other party, and each party will
confirm the foregoing in writing at the other party’s reasonable request.


 


12.2              Filing, Prosecution and
Maintenance of Patent Rights.


 


(a)      Primary Patent Rights.  The rights and obligations under this Section 12.2(a) will
be subject to the rights of JHU under the Transferred In-License Agreement, for
Patent Rights included within the Transferred In-Licensed Technology.  From and after Closing, Genzyme, through
counsel of its choosing and [********], will be responsible for and have
control over obtaining, prosecuting (including any interferences, reissue
proceedings, re-examinations and oppositions), and maintaining the Primary
Patent Rights, and EXACT will cooperate with Genzyme in regard thereto.  Genzyme will keep EXACT informed regarding
the prosecution and maintenance of the Primary Patent Rights as applicable to
the EXACT Field and give EXACT a reasonable opportunity to provide timely
comments for Genzyme’s consideration on draft filings and correspondence
relating to such prosecution or maintenance; provided that Genzyme will
make all final prosecution strategy decisions in its sole discretion after
taking into account in good faith EXACT’s comments thereon with respect to the
EXACT Field.  If Genzyme decides to
discontinue the preparation, filing, prosecution or maintenance of any Primary
Patent Right with applicability in the EXACT Field, Genzyme will notify EXACT
at least 60 days prior to any deadline that, if missed, would materially
prejudice the applicable Primary Patent Right. 
Upon receipt of such notice, EXACT will have the right to prepare, file,
prosecute and maintain such Primary Patent Right [********], and Genzyme will
cooperate with EXACT with respect thereto. 
In such event Genzyme will assign such Primary Patent Right to EXACT; provided
that Genzyme may regain its rights under such Primary Patent Right in the
Genzyme Field if Genzyme provides notice to EXACT of its desire to regain such rights,
EXACT has not granted conflicting rights to any Third Party and Genzyme
reimburses EXACT for [********] of EXACT’s out-of-pocket costs and expenses in
connection with the preparation, filing, prosecution and maintenance of such
Primary Patent Right (including reasonable attorneys’ fees).


 


(b)      Joint Patent Rights and Secondary
Patent Rights.  Genzyme will have
primary responsibility for the preparation, filing, prosecution and maintenance
of the Joint 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


31





















 


Patent Rights (in
both Genzyme’s and EXACT’s name) and Secondary Patent Rights (in Genzyme’s
name), using patent counsel mutually agreed by the parties.  EXACT will use commercially reasonable
efforts to assist Genzyme in the preparation, filing, prosecution, and maintenance
of such Joint Patent Rights and Secondary Patent Rights.  Genzyme will consult with and keep EXACT
informed of important issues relating to the preparation, filing, prosecution
and maintenance of the Joint Patent Rights and Secondary Patent Rights and will
furnish EXACT with copies of documents relevant to such preparation, filing,
prosecution or maintenance in sufficient time prior to filing such document or
making any payment due thereunder to allow for review and comment by EXACT and,
to the extent possible in the reasonable exercise of its discretion after
taking into account in good faith EXACT’s comments with respect to the EXACT
Field, Genzyme will incorporate all such comments.  EXACT will reimburse Genzyme for [********]
of Genzyme’s costs and expenses in connection with the preparation, filing,
prosecution and maintenance of Joint Patent Rights (including reasonable
attorneys’ fees).  [********] will be
[********] responsible for the costs and expenses in connection with the
preparation, filing, prosecution and maintenance of Secondary Patent
Rights.  Neither party will make any
statements or omissions or take any other action during prosecution or
enforcement of any Joint Patent Right or Secondary Patent Right that admits or
concedes that any of the Joint Patent Rights or Secondary Patent Rights is
invalid or unenforceable, that adversely affects or limits the scope of any
claims in any such Joint Patent Right or Secondary Patent Right, or that
adversely affects the other party’s rights in Joint Patent Rights or Secondary
Patent Rights under this Agreement in any way, without the prior written
consent of the other party.  If Genzyme
decides to discontinue the preparation, filing, prosecution or maintenance of
any Joint Patent Right or Secondary Patent Right, Genzyme will notify EXACT at
least 60 days prior to any deadline that, if missed, would materially prejudice
the applicable Joint Patent Right or Secondary Patent Right.  Upon receipt of such notice, EXACT will have
the right to assume primary responsibility for preparing, filing, prosecuting
and maintaining such Joint Patent Right or Secondary Patent Right, as
applicable, [********], and Genzyme will cooperate with EXACT with respect
thereto.  In such event Genzyme will
assign such Joint Patent Right or Secondary Patent Right to EXACT; provided
that Genzyme may regain its rights under such Joint Patent Right and such
Secondary Patent Right in the Genzyme Field if Genzyme provides notice to EXACT
of its desire to regain such rights, EXACT has not granted conflicting rights
to any Third Party and Genzyme reimburses EXACT for, as applicable, (i) [********]
of EXACT’s out-of-pocket costs and expenses in connection with the preparation,
filing, prosecution and maintenance of such Joint Patent Right (including
reasonable attorneys’ fees) or (ii) [********] of EXACT’s out-of-pocket
costs and expenses in connection with the preparation, filing, prosecution and
maintenance of such Secondary Patent Right (including reasonable attorneys’
fees).  If (A) EXACT, upon 30 days’
prior written notice to Genzyme, elects not to pay its [********] share for any
Joint Patent Right or (B) EXACT otherwise fails to pay its [********]
share for any Joint Patent Right and Genzyme delivers 30 days’ prior written
notice to EXACT, EXACT will assign such Joint Patent Right to Genzyme; provided
that EXACT will remain responsible for its [********] share of 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


32





















 


costs and expenses
incurred by Genzyme prior to the expiration of the 30 day notice period as
provided in part (A) or (B) above, as applicable; and provided
further that EXACT may regain its rights under such Joint Patent
Right in the EXACT Field if EXACT provides notice to Genzyme of its desire to
regain such rights, Genzyme has not granted conflicting rights to any Third
Party and EXACT reimburses Genzyme for [********] of Genzyme’s out-of-pocket
costs and expenses in connection with the preparation, filing, prosecution and
maintenance of such Joint Patent Right (including reasonable attorneys’ fees).


 


(c)      Other Technology.  Each party, through counsel of its choosing
and [********], will be responsible for and have control over obtaining,
prosecuting (including any interferences, reissue proceedings, re-examinations
and oppositions) and maintaining its respective Patent Rights that are included
within the Genzyme Licensed Improvements (in the case of Genzyme) or the EXACT
Licensed Improvements, Retained Patent Rights and Optioned Technology (in the
case of EXACT), and the other party will cooperate with the responsible party
in regard thereto.  Each party will keep
the other party informed regarding the prosecution and maintenance of such
Patent Rights as applicable to the other party’s exclusive field under this
Agreement and give the other party a reasonable opportunity to provide timely
comments for such party’s consideration on draft filings and correspondence
relating to such prosecution or maintenance; provided that the
responsible party will make all prosecution strategy decisions in its sole
discretion after taking into account in good faith the comments of the other
party with respect to such other party’s exclusive field under this Agreement.


 


(d)      Certain Additional Patent Rights.  With respect to any Patent Right exclusively
licensed to EXACT in the EXACT Field or to Genzyme in the Genzyme Field or
Genzyme Core Field (as applicable) hereunder, with a specification that could
support a claim with applicability in such field, the following will apply: to
the extent practicable, upon a licensee party’s request (the “Requesting
Party”), the party controlling the prosecution of such Patent Right
pursuant to Section 12.2(a), 12.2(b) or 12.2(c) will file a
continuation of such patent application with applicability solely in the
exclusive license field of the Requesting Party [********], at which point the
provisions of Section 12.2(c) will apply as if such continuation
were, in the case of Genzyme as the Requesting Party, a Genzyme Licensed
Improvement (e.g., Genzyme will have the right to control the prosecution and
maintenance of such continuation and EXACT will cooperate with regard thereto)
or, in the case of EXACT as the Requesting Party, an EXACT Licensed Improvement
(e.g., EXACT will have the right to control the prosecution and maintenance of
such continuation and Genzyme will cooperate with regard thereto), as
applicable; provided that the Requesting Party in prosecuting such
continuation will do so in the other party’s name.


 


(e)      Cooperation.  Each party hereby agrees:  (i) to make its employees, agents and
consultants reasonably available to the other party (or to the other party’s
authorized attorneys, agents or representatives) to the extent reasonably
necessary to enable such party to undertake prosecution of Patent Rights as contemplated
by this Agreement; (ii) 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


33





















 


to cooperate, if
necessary and appropriate, with the other party in gaining patent term
extensions wherever applicable to Patent Rights that are subject to this
Agreement; and (iii) to use its commercially reasonable and diligent
efforts to minimize or avoid interference with the prosecution and maintenance
of the other party’s Patent Rights that are subject to this Agreement.  As part of the prosecution of any Primary
Patent Right or Secondary Patent Right, if a priority claim is made after the
Effective Date that would make such Patent Right a member of the other group
(i.e., a Primary Patent Right would also be a Secondary Patent Right, or
vice-versa), the treatment of such Patent Right as a Primary Patent Right or
Secondary Patent Right hereunder will not change from its original designation.


 


(f)       Expense Reports.  From time to time, [********] will deliver to
[********] a report setting forth in reasonable detail and providing reasonable
documentation of the costs and expenses in connection with the preparation,
filing, prosecution and maintenance of [********] and the reimbursement amount
due from [********] pursuant to this Section 12.2.  [********] will remit to [********] the total
reimbursement amount that is not the subject of a good faith dispute within 45
days after receipt of an invoice from [********].


 


12.3              Enforcement.


 


(a)      Notification.  EXACT will promptly report in writing to
Genzyme any known or suspected Third Party infringement, unauthorized use or
misappropriation of any Technology in any field and will provide Genzyme with
any available evidence in its possession supporting such infringement,
unauthorized use or misappropriation. 
During the [********] (as defined in the [********]), Genzyme will
promptly report in writing to EXACT any known or suspected Third Party
infringement, unauthorized use or misappropriation of any Technology in the
EXACT Field (or, with respect to the Optioned Technology or Retained Patent Rights,
in any field other than the Genzyme Core Field) and will provide EXACT with any
available evidence in its possession supporting such infringement, unauthorized
use or misappropriation.  From and after
the termination of the [********], Genzyme will promptly report in writing to
EXACT any known or suspected Third Party infringement, unauthorized use or
misappropriation of any Technology in any field and will provide EXACT with any
available evidence in its possession supporting such infringement, unauthorized
use or misappropriation. EXACT will notify Genzyme prior to delivering to
[********] any notice of alleged infringement or misappropriation of any
[********].


 


(b)      Enforcement of Technology.


 


(i)       Genzyme will have the [********], to take
any reasonable measures Genzyme deems appropriate to stop activities infringing
the Primary Intellectual Property Rights or Genzyme Licensed Improvements or
the use without proper authorization of any Primary Intellectual Property
Rights or Genzyme Licensed Improvements. 
Except as provided in Section 12.3(b)(ii) (with respect to
enforcement in the 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


34





















 


EXACT Field), EXACT will
have no right to take any measures to stop any infringement or
unauthorized use of the Primary Intellectual Property Rights or Genzyme
Licensed Improvements (including initiating any Actions or delivering any form
of notification or warning to Third Parties).


 


(ii)      Promptly after either party’s becoming
aware of alleged infringement or misappropriation of the Primary Intellectual
Property Rights or Genzyme Licensed Improvements in the EXACT Field, the
parties will meet in good faith to discuss enforcement strategies.  After such consultation with EXACT, Genzyme
will determine, in its commercially reasonable discretion, how to proceed with
respect to such alleged infringement or misappropriation at such time; provided
that (I) Genzyme is under no obligation to terminate such infringement or
misappropriation and (II) Genzyme’s actions will be subject to the rights of
JHU under the Transferred In-License Agreement. 
If Genzyme does not commence actions reasonably designed to abate the
infringement or misappropriation within [********] of either party notifying
the other of such infringement or misappropriation, then, subject to the rights
of JHU under the Transferred In-License Agreement, EXACT may assume sole
responsibility, [********], to take any reasonable measures EXACT deems
appropriate to stop the alleged infringement or misappropriation in the EXACT
Field, provided, however, that EXACT will coordinate and consult
with Genzyme regarding such measures and, if requested by Genzyme, will not
take any measures that will materially adversely affect Genzyme’s rights in the
Primary Intellectual Property Rights or Genzyme Licensed Improvements in each
case in the Genzyme Field if such measures are not reasonably required to
protect EXACT’s business in the EXACT Field, with the understanding that
assertions of invalidity or unenforceability will not be sufficient reasons to
prevent EXACT from enforcing. 
Notwithstanding the foregoing in Sections 12.3(b)(i) and
12.3(b)(ii), if EXACT is required to enforce any [********].  In such event, EXACT will keep Genzyme fully
informed at all times with respect to all aspects of the enforcement of the
[********] and will take all actions in connection with such enforcement [********],
consistent with EXACT’s obligations under [********].  If EXACT does not so enforce, [********] may
have the right to enforce certain [********] during the [********] to the
extent permitted by [********].  In any
event, [********] will not [********] with respect to [********].


 


(iii)     As between the parties, each party will
have the sole and exclusive right (but not the obligation) to assume sole
responsibility, [********], to take any reasonable measures such party deems
appropriate to stop activities infringing any Secondary Patent Rights and other
Transferred Technology not including the Primary Intellectual Property Rights,
EXACT Licensed Improvements, Optioned Technology, Joint Collaboration
Technology or Retained Patent Rights or the use without proper authorization of
any Secondary Patent Rights and other 


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


35





















 


Transferred Technology
not including the Primary Intellectual Property Rights, EXACT Licensed
Improvements, Optioned Technology, Joint Collaboration Technology or Retained
Patent Rights, in each case in such party’s exclusive field applicable to the
Intellectual Property Rights at issue (e.g., for Genzyme and Secondary Patent
Rights and other Transferred Technology not including the Primary Intellectual
Property Rights, in the Genzyme Field, and for EXACT and Secondary Patent
Rights and other Transferred Technology not including the Primary Intellectual
Property Rights, in the EXACT Field; or for Genzyme and Optioned Technology, in
the Genzyme Core Field, and for EXACT and Optioned Technology, in all other
fields; or for Genzyme and EXACT Licensed Improvements, in the Genzyme Field,
and for EXACT and EXACT Licensed Improvements, in the EXACT Field; or for
Genzyme and Retained Patent Rights, in the Genzyme Core Field, and for EXACT
and Retained Patent Rights in all other fields).  Neither party will have any right to
take any measures to stop any infringement or unauthorized use of any Secondary
Patent Rights and other Transferred Technology not including the Primary
Intellectual Property Rights, EXACT Licensed Improvements, Optioned Technology,
Joint Collaboration Technology or Retained Patent Rights outside its exclusive
field (by ownership or license) (including initiating any Actions or delivering
any form of notification or warning to Third Parties) without the prior written
consent of the other party.


 


(iv)     If either party desires to initiate any
Action as contemplated by Section 12.3(b)(iii), the parties will meet in
good faith to discuss enforcement strategies. 
After such consultation, the enforcing party will determine, in its
commercially reasonable discretion, how to proceed with respect to such alleged
infringement or misappropriation at such time; provided that (A) such
enforcing party is under no obligation to terminate such infringement or
misappropriation, and (B) such enforcing party will keep the other party
reasonably informed and will coordinate and consult with the other party
regarding such measures.


 


(c)      Cooperation.  In the event either party brings an
enforcement Action pursuant to Section 12.3(b), the other party will
cooperate reasonably at [********], including being joined as a party-plaintiff,
providing good faith testimony and executing all documents necessary for a
party to initiate an Action and to prosecute and maintain such Action.  The non-litigating party will have the right,
[********], to retain its own counsel to monitor such litigation.


 


(d)      Recoveries.  If a party obtains from a Third Party
infringer, in connection with an Action brought pursuant to Section 12.3(b),
any damages, license fees, royalties or other compensation (including any
amount received in settlement of such Action), then any amounts recovered will
first be applied to the reimbursement of both parties’ reasonable out-of-pocket
costs, expenses and legal fees, including amounts one party has reimbursed to
the other.  The remaining balance will be
allocated [********].


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


36





















 


12.4              Claimed Infringement of Third
Party Intellectual Property Rights.


 


(a)      Notice.  In the event that a Third Party at any time
provides written notice of a claim to, or brings an Action against, either
party or any of such party’s respective Affiliates or licensees, claiming
infringement of its Patent Rights or unauthorized use or misappropriation of
its Know-How, based upon use of Technology (“Infringement Claim”), such
party will promptly notify the other party of the Infringement Claim or the
commencement of such Action, enclosing a copy of the Infringement Claim and all
papers served.  Each party agrees to make
reasonably available to the other party its advice and counsel regarding the
technical merits of any such claim and to offer reasonable assistance to the
other party.


 


(b)      Defense of Infringement Claims.


 


(i)       As between Genzyme and EXACT, Genzyme
will have the sole and exclusive right, but not the obligation, to control the
defense of any Infringement Claim brought against Genzyme or any of its
Affiliates or licensees arising out of (A) the use of Optioned Technology
in the Genzyme Core Field or (B) the use of all Technology other than the
Optioned Technology in the Genzyme Field. 
As between Genzyme and EXACT, EXACT will have the sole and exclusive
right, but not the obligation, to control the defense of any Infringement Claim
brought against EXACT or any of its licensees arising out of the use of
Technology in the EXACT Field or the use of Optioned Technology in any field
other than the Genzyme Core Field. 
Neither party will settle any such Action in a manner that (I) admits
the invalidity or unenforceability of any Technology or that any use of the
Technology in the other party’s field of exclusivity infringes or
misappropriates a Third Party’s Intellectual Property Rights or (II) agrees
to any injunction or other equitable remedy binding the other party without
obtaining the prior written consent of the other party, which consent will not
be unreasonably withheld or delayed.  In
addition, if applicable, prior to the initiation of an Infringement Claim,
either party has the right, but not the obligation, to bring a declaratory
judgment action relating to any Patent Right that a Third Party has alleged is
infringed by use of the Technology in such party’s exclusive field; provided,
however, no party will bring such declaratory judgment action without
first consulting with the other party.


 


(ii)      The party controlling the defense of an
Infringement Claim or bringing such declaratory judgment action will have the
sole and exclusive right to select counsel for any Infringement Claim.  The party controlling the defense of an
Infringement Claim or bringing such declaratory judgment action will keep the
other party informed, and will from time to time consult with the other party
regarding the status of any such Action and will upon request provide the other
party with copies of all documents filed in, and all written communications
relating to, any suit brought in connection with such Action.  The other party will also have the right to
participate and be represented in any such Action, [********].


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


37
















 


(c)      Other
Infringement Resolutions; Declaratory Judgment Actions.  In the event of a dispute or potential
dispute that has not ripened into a demand or Action of the types described in Section
12.3 and Section 12.4 (e.g., actions seeking declaratory judgments and
revocation proceedings), the same principles governing control of the
resolution of the dispute, consent to settlements of the dispute and
implementation of the settlement of the dispute will apply.  Each party will immediately notify the other
party of any declaratory judgment action filed by a Third Party claiming that a
Patent Right included within the Technology is invalid or that infringement of
such Patent Right will not arise from the development, manufacture, use or sale
of any product by a Third Party.  The
provisions of Section 12.3 will thereafter apply as if such Third Party were an
infringer or suspected infringer.


 


12.5              Prosecution and
Enforcement of Other Intellectual Property Rights.  Other than as provided in this Article 12,
each party will be solely responsible for prosecuting, maintaining and
enforcing its Patent Rights and other Intellectual Property Rights, at its sole
discretion [********].


 


12.6              Cross License
Agreement.  Notwithstanding anything
to the contrary in the Cross License Agreement, the parties agree that after
the Closing Date, (a) Sections 5.4 and 5.7 of the Cross License Agreement will
not apply to any EXACT Patent Rights (as defined in the Cross License
Agreement) that are included in the Technology, and this Article 12 will govern
the rights and obligations of EXACT and Genzyme with respect to the prosecution
and enforcement of such EXACT Patent Rights and (b) to the extent that EXACT is
obligated to license EXACT Patent Rights included in the Transferred Technology
to Genzyme under the Cross License Agreement outside of the EXACT Field, such
field scope is no longer licensed by EXACT to Genzyme thereunder but rather
retained by Genzyme as the owner of such EXACT Patent Rights.


 


12.7              Termination of
Rights and Obligations Under Article 12. 
If either party terminates a license granted under this Agreement
pursuant to Section 3.7, then the terminating party will cease to have any
obligations under this Article 12, and the other party will cease to have any
rights under this Article 12, with respect to the Intellectual Property Rights
that were the subject of such terminated license.


 


Article 13   Confidentiality.


 


13.1              Confidentiality.  Except to the extent expressly authorized by
this Agreement or otherwise agreed by Genzyme and EXACT in writing, each party
(the “Receiving Party”) receiving any Confidential Information of the
other party (the “Disclosing Party”) will keep such Confidential
Information confidential and will not publish or otherwise disclose or use such
Confidential Information for any purpose other than as provided for in this
Agreement (including pursuant to licenses granted under Article 3).  The information included within the Purchased
Assets and Transferred Technology will be considered after the Closing Date the
Confidential Information of Genzyme for the purposes of this Agreement and
Genzyme will be considered the Disclosing Party with respect thereto.  Notwithstanding the


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


38

















 


foregoing,
the Receiving Party will not have any obligation under this Section 13.1 with
respect to Confidential Information that the Receiving Party can establish:


 


(a)      was
already known by the Receiving Party (other than under an obligation of
confidentiality) at the time of disclosure by the Disclosing Party, and such
Receiving Party has contemporaneous documentary evidence to that effect
(provided that this exception will not relieve EXACT of its confidentiality
obligations with respect to the Purchased Assets and Transferred Technology);


 


(b)      was
available to the public or otherwise part of the public domain at the time of
its disclosure to the Receiving Party;


 


(c)      became
available to the public or otherwise part of the public domain after its
disclosure or development, as the case may be, and other than through any act
or omission of the Receiving Party in breach of a confidentiality obligation to
the Disclosing Party;


 


(d)      was
disclosed to the Receiving Party, other than under an obligation of
confidentiality, by a Third Party who had no obligation to the Disclosing Party
not to disclose such information to others; or


 


(e)      was
independently discovered or developed by or on behalf of the Receiving Party
without the use of the Confidential Information belonging to the other party,
and the Receiving Party has contemporaneous documentary evidence to that
effect.


 


13.2              Permitted
Disclosure.  The Receiving Party may
disclose the Disclosing Party’s Confidential Information only to (a) those of
its and its Affiliates’ directors, officers, employees, agents, consultants and
advisors (collectively, “Representatives”) who have a need to know such
Confidential Information for purposes of performing the Receiving Party’s
obligations or exercising the Receiving Party’s rights under this Agreement (a “Need-to-Know”)
and (b) those of its potential and actual licensees, sublicensees, acquirers,
lenders and investors who have a Need-to-Know or other legitimate business
purpose, provided, however, that each Person to whom the
Disclosing Party’s Confidential Information is disclosed is under restrictions
at least as stringent with respect to the use and disclosure of such
Confidential Information as set forth in this Agreement (or, if such
confidentiality obligations were in place prior to the Effective Date, on the
terms of such obligations).  Each party
will be liable for the breach of this Agreement by any of its Representatives
or its licensees or sublicensees.


 


13.3              Required
Disclosure.  Notwithstanding any
provision of this Article 13 to the contrary, in the event that disclosure of
the Disclosing Party’s Confidential Information is reasonably necessary to
prosecute or defend any Action or to make filings or submissions to, or
correspond with, any Governmental Authority or to comply with applicable law (including
the rules of and regulation of the Securities and Exchange Commission), the
Receiving Party may make such disclosure. 
In such event however, (a) the Receiving Party will (i) give reasonable
advance notice of such disclosure to the Disclosing Party,


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


39

















 


(ii)
provide reasonable assistance to the Disclosing Party in seeking a protective
order or other similar order preventing or limiting the proposed disclosure, (iii)
take all reasonable measures to ensure confidential treatment of such
Confidential Information and (iv) consult with the Disclosing Party with regard
to the disclosure (including consultation with regard to the creation of a
redacted version of such Confidential Information) and (b) the Receiving Party
will disclose such Confidential Information only to the extent required by the
protective order or other similar order, if such an order is obtained, and, if
no such order is obtained, the Receiving Party will disclose only the minimum
amount of such Confidential Information required to be disclosed in order to
comply with applicable law.  Any
Confidential Information so disclosed will continue to be Confidential
Information for all purposes under this Agreement.


 


13.4              Public Statements.  The existence and terms of this Agreement
will be considered the Confidential Information of both parties.  Neither party will make public statements
regarding the existence, terms, or content of this Agreement without the prior
written consent of the other party, other than as required by law or the
applicable rules of a stock exchange. 
After the Effective Date, the parties may release a mutual announcement
regarding the signing of this Agreement in a form approved by both parties in
advance in writing, such approval not to be unreasonably withheld or delayed.


 


13.5              Mutual
Non-Disclosure Agreement.  All
information disclosed pursuant to the Mutual Non-Disclosure Agreement between
the parties dated as of April 9, 2008 will remain Confidential Information
under this Agreement; provided that each party may use such information
to the extent permitted by this Agreement.


 


Article 14   Indemnification.


 


14.1              Indemnification
by EXACT.


 


(a)      Indemnification.  Subject to the limitations set forth in this Article
14, EXACT will indemnify, hold harmless and defend Genzyme and its Affiliates,
and the Representatives and Affiliates of each of the foregoing Persons (each,
a “Genzyme Indemnitee”) from and against any and all Actions, losses,
liabilities, damages, costs, fees and expenses (including reasonable attorneys’
fees, disbursements and charges) (collectively, “Losses”) arising out of
or resulting from:


 


(i)       any breach of, or
inaccuracy in, any representation or warranty made by EXACT in this Agreement
or in any Ancillary Agreement referred to in clauses (i), (ii) or (iii) of Section
5.2(a);


 


(ii)      any breach or violation of
any covenant or agreement of EXACT (including under this Article 14) in or
pursuant to this or any Ancillary Agreement;


 


(iii)     any Third-Party claim
relating to a breach by EXACT of the Transferred In-License Agreement;


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


40

















 


(iv)     any Retained Liability; or


 


(v)      any fraud or intentional
misrepresentation of EXACT.


 


(b)      Monetary
Limitations.  EXACT will have no
obligation to indemnify the Genzyme Indemnitees in respect of Losses arising
pursuant to Section 14.1(a)(i) unless the aggregate amount of all such Losses
incurred or suffered by the Genzyme Indemnitees exceeds $100,000 (at which
point EXACT will indemnify the Genzyme Indemnitees for all such Losses) (the “Indemnity
Basket”).  EXACT’s aggregate
liability in respect of claims for indemnification pursuant to this Article 14
in respect of Losses arising pursuant to Section 14.1(a)(i) will not exceed
$1,850,000 (the “Holdback Indemnity Cap”); provided, however,
that claims for indemnification pursuant to Section 14.1(a)(i) in respect of
breaches of, or inaccuracies in, any representation or warranty set forth in
the following Sections of this Agreement will not exceed the Closing Payment (the
“Maximum Indemnity Cap”): 6.7(a) or 6.8(b), each with respect to Patent
Rights within the Purchased Assets (and no other Purchased Assets); provided,
further, however, that claims for indemnification pursuant to Section
14.1(a)(i) in respect of breaches of, or inaccuracies in, any representation or
warranty set forth in Section 6.14 are not subject to either the Holdback
Indemnity Cap or the Maximum Indemnity Cap. 
In addition, EXACT’s aggregate liability in respect of claims for
indemnification pursuant to Section 14.1(a)(ii) with respect to breaches or
violations of any covenant or agreement set forth in Section 8.2 or 8.3 will
not exceed the Maximum Indemnity Cap. 
Claims for indemnification pursuant to any other provision of Section 14.1(a)
are not subject to the monetary limitations set forth in this Section 14.1(b).


 


14.2              Indemnification
by Genzyme.


 


(a)      Indemnification.  Subject to the limitations set forth in this Article
14, Genzyme will indemnify, hold harmless and defend EXACT and its Affiliates,
and the Representatives and Affiliates of each of the foregoing Persons (each,
an “EXACT Indemnitee”) from and against any and all Losses arising out
of or resulting from:


 


(i)       any breach of, or
inaccuracy in, any representation or warranty made by Genzyme in this Agreement
or in any Ancillary Agreement referred to in clauses (i), (ii) or (iii) of Section
5.2(a);


 


(ii)      any Third-Party claim
relating to a breach by Genzyme of the Transferred In-License Agreement after
the Closing Date;


 


(iii)     any breach or violation of
any covenant or agreement of Genzyme (including under this Article 14) in or
pursuant to this or any Ancillary Agreement;


 


(iv)     any Assumed Liability; or


 


(v)      any fraud or intentional
misrepresentation of Genzyme.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


41

















 


(b)      Monetary
Limitations.  Genzyme will have no
obligation to indemnify the EXACT Indemnitees in respect of Losses arising
pursuant to Section 14.2(a)(i) unless the aggregate amount of all such Losses
incurred or suffered by the EXACT Indemnitees exceeds the Indemnity
Basket.  Genzyme’s aggregate liability in
respect of claims for indemnification pursuant to this Article 14 in respect of
Losses arising pursuant to Section 14.2(a)(i) will not exceed the Holdback
Indemnity Cap; provided, however, that claims for indemnification
pursuant to Section 14.2(a)(i) in respect of breaches of, or inaccuracies in,
any representation or warranty set forth in Section 7.5 are not subject to the
Holdback Indemnity Cap.  Claims for
indemnification pursuant to any other provision of Section 14.2(a) are not
subject to the monetary limitations set forth in this Section 14.2(b).


 


14.3              Time for Claims.  All representations and warranties set forth
in this Agreement will survive the Closing for the time period set forth below;
provided, however, that no claim may be made or suit instituted
seeking indemnification pursuant to Section 14.1(a)(i) or 14.2(a)(i) of this
Agreement for any breach of, or inaccuracy in, any representation or warranty
unless the claiming party provides notice as specified in Section 16.1 within
the following time periods:


 


(a)      at
any time prior to the conclusion of the applicable statute of limitations, in
the case of any breach of, or inaccuracy in, the representations and warranties
set forth in the following Sections: 6.2(a), 6.7(a), 6.8(b), 6.14, 6.15(a), 7.2
or 7.5;


 


(b)      at
any time prior to the conclusion of the day that is 18 months after the Closing
Date, in the case of any breach of, or inaccuracy in, any other representation
and warranty in this Agreement; and


 


(c)      at
any time, in the case of any claim or suit based upon fraud or intentional
misrepresentation.


 


Claims
for indemnification not specified with a time limitation in this Section 14.3
are not subject to the limitations set forth in this Section 14.3 and will be
governed by the applicable statute of limitations.  For avoidance of doubt, claims will be deemed
to have been made within the survival period if a reasonably complete
description of the claim based upon the facts available at the time is
presented by the party seeking indemnification to the Indemnifying Party within
the specified time period in this Agreement.


 


14.4              Procedure for
Third Party Claims.


 


(a)      Notice
of Claim.  If any Third Party
notifies an Indemnitee with respect to any matter (a “Third Party Claim”)
which is expected to give rise to a claim for indemnification against an
Indemnifying Party under this Article 14, then the Indemnitee will promptly
give written notice to the Indemnifying Party; provided, however,
that no delay on the part of the Indemnitee in notifying the Indemnifying Party
will relieve the Indemnifying Party from any obligation under this Article 14,
except to the extent such delay actually prejudices the Indemnifying Party.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


42

















 


(b)      Assumption
of Defense, etc.  The Indemnifying
Party will be entitled to participate in the defense of any Third Party Claim
that is the subject of a notice given by the Indemnitee pursuant to Section 14.4(a).  In addition, the Indemnifying Party will have
the right to assume the defense of the Indemnitee against the Third Party Claim
with counsel of its choice reasonably satisfactory to the Indemnitee so long
as: (i) the Indemnifying Party gives written notice to the Indemnitee within 15
days after the Indemnitee has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnitee from and against the entirety
of any and all Losses the Indemnitee may suffer resulting from, arising out of,
relating to, in the nature of, or caused by the Third Party Claim, (ii) the
Indemnifying Party provides the Indemnitee with evidence reasonably acceptable
to the Indemnitee that the Indemnifying Party will have adequate financial
resources to defend against the Third Party Claim and (subject to the
limitations of Sections 14.1(b) and 14.2(b)) fulfill its indemnification
obligations hereunder, (iii) the Third Party Claim involves only money damages
and does not seek an injunction or other equitable relief against the
Indemnitee, (iv) the Indemnitee has not been advised by counsel that an actual
or potential conflict exists between the Indemnitee and the Indemnifying Party
in connection with the defense of the Third Party Claim, (v) the Third Party
Claim does not relate to or otherwise arise in connection with any criminal or
regulatory enforcement Action and (vi) the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.  The Indemnitee may retain separate co-counsel
at its sole cost and expense and participate in the defense of the Third Party
Claim; provided, however, that the Indemnifying Party will pay
the reasonable fees and expenses of separate co-counsel retained by the
Indemnitee that are incurred prior to Indemnifying Party’s assumption of control
of the defense of the Third Party Claim, except as provided in Section 14.4(d).  In connection with any Third Party Claim, the
Indemnitee will make available to the Indemnifying Party and counsel selected
by the Indemnifying Party personnel, witnesses, books, and records relevant to
such Third Party Claim.


 


(c)      Limitations
on Indemnifying Party.  The
Indemnifying Party will not consent to the entry of any judgment or enter into
any compromise or settlement with respect to the Third Party Claim without the
prior written consent of the Indemnitee (which consent will not be unreasonably
withheld or delayed) unless such judgment, compromise or settlement (i) provides
for the payment by the Indemnifying Party of money as sole relief for the
claimant (ii) results in the full and general release of the Genzyme Indemnitee
or EXACT Indemnitee, as applicable, from all liabilities arising or relating
to, or in connection with, the Third Party Claim, (iii) involves no finding or
admission of any violation in connection with any criminal or regulatory
enforcement Action, or the rights of any Person, and no effect on any other
claims that may be made against the Indemnitee and (iv) involves no issue with
respect to taxes.


 


(d)      Indemnitee’s
Control.  If the Indemnifying Party
does not deliver the notice contemplated by clause (i) of Section 14.4(b) within
15 days after the Indemnitee has given notice of the Third Party Claim, or
otherwise at any time fails to conduct the defense of the Third Party Claim
actively and diligently, the Indemnitee may assume


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


43

















 


the defense of such claim and the Indemnifying Party
will be responsible for the reasonable attorneys’ fees and expenses of a single
counsel (in addition to one local counsel in each jurisdiction) for the
Indemnitees.  The Indemnitee will not
consent to the entry of any judgment or enter into any compromise or settlement
that does not exceed the Maximum Indemnity Cap with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (which
consent will not be unreasonably withheld or delayed).  In the event that the Indemnitee conducts the
defense of the Third Party Claim pursuant to this Section 14.4(d), the
Indemnifying Party will (a) advance the Indemnitee promptly and periodically
for the reasonable costs of defending against the Third Party Claim (including
reasonable attorneys’ fees and expenses) and (b) remain responsible for any and
all other Losses that the Indemnitee may incur or suffer resulting from,
arising out of, relating to, in the nature of or caused by the Third Party
Claim to the fullest extent provided in this Article 14.


 


14.5              Consent to
Jurisdiction Regarding Third Party Claims. 
Genzyme and EXACT, each in its capacity as an Indemnifying Party, hereby
consents to the non-exclusive jurisdiction of any court in which any Third
Party Claim may brought against any Indemnitee for purposes of any claim which
such Indemnitee may have against such Indemnifying Party pursuant to this
Agreement in connection with such Third Party Claim, and in furtherance
thereof, the provisions of Section 16.12 are incorporated herein by reference, mutatis mutandis.


 


14.6              Exclusive Remedy.  Except as set forth in Section 3.7 or in the
case of fraud or intentional misrepresentation, from and after the Closing, the
indemnification provided pursuant to this Article 14 will be the sole and
exclusive remedy hereto for any Loss resulting from, with respect to or arising
out of any breach or claim in connection with this Agreement, any Exhibit or
Schedule hereto or any certificate or writing delivered in connection with this
Agreement, regardless of the cause of action. 
Notwithstanding the foregoing, (a) nothing contained in this Agreement
will limit a party’s right to pursue equitable remedies, including, without
limitation, injunctive relief and specific performance; and (b) in the event
that a court of competent jurisdiction rescinds all or part of the Sale for any
reason following consummation, nothing contained in this Agreement will limit
Genzyme’s right to receive from EXACT (and EXACT’s obligation to transfer to
Genzyme) such portion of the Closing Payment allocable to the Purchased Assets
subject to such rescission; provided, however, if such court
rescinds only part of the Sale, Genzyme, at its sole option to be exercised
within 30 days of such rescission, may elect to receive the entire Closing
Payment from EXACT and transfer all of the Purchased Assets to EXACT.


 


Article 15   Potential Liabilities Holdback.  At the Closing, the Potential Liabilities
Holdback Amount will be retained by Genzyme to be released in accordance with
the following:


 


15.1              Use of Holdback
Amount.  The Potential Liabilities
Holdback Amount will accrue interest at the rate of [********] from the Closing
Date until released to EXACT.  Following
Closing, if any of the Genzyme Indemnitees becomes entitled to indemnification
pursuant to this Agreement, Genzyme will apply that portion of the Potential
Liabilities Holdback Amount as will be equal to the amount of such
indemnification.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


44

















 


15.2              12 Month Release.  Upon the expiration of 12 months after the
Closing Date, 50% of the Potential Liabilities Holdback Amount (plus any and
all interest accrued thereon) will be released to EXACT; provided that
if any claim for indemnification on the part of any of the Genzyme Indemnitees
is outstanding on such date, then the amount of such claim will be retained
from the portion to be released to EXACT.


 


15.3              18 Month Release.  Upon the expiration of 18 months after the
Closing Date, the remaining Potential Liabilities Holdback Amount (plus any and
all interest accrued thereon) will be released to EXACT; provided that
if any claim for indemnification on the part of any of the Genzyme Indemnitees
is outstanding on such date, then the amount of such claim will be retained
from the portion to be released to EXACT.


 


15.4              Outstanding
Claims.  If any claim for
indemnification on the part of Genzyme remains outstanding upon the expiration
of the 12 month and 18 month periods in Section 15.2 and Section 15.3,
respectively, then, unless otherwise agreed by the parties, Genzyme will
release to EXACT an amount equal to the entire Potential Liabilities Holdback
Amount then remaining minus the amount
attributable to such outstanding claim. 
The remaining Potential Liabilities Holdback Amount following such
release will continue to be held by Genzyme and, upon resolution of the
outstanding claims and payment of any indemnification owing to the applicable
Genzyme Indemnitees, any portion of the Potential Liabilities Holdback Amount
then remaining (plus any and all interest accrued thereon) will be released to
EXACT.


 


Article 16   Miscellaneous.


 


16.1              Notices.  Any notice or other communication required or
permitted hereunder will be in writing and will be deemed given when so
delivered in person, by reputable overnight courier, by facsimile transmission
(with receipt confirmed by automatic transmission report) or two business days
after being sent by registered or certified mail (postage prepaid, return
receipt requested), as follows:


 


(a)      if
to Genzyme, to:


 


Genzyme
Genetics


1700
West Park Drive


Westborough,
Massachusetts 01581


	
  Attn:

  	
  Sr. Vice
  President & General Manager

  
	
  Fax:

  	
  (508) 870-7504

  
	
  Phone:

  	
  (508) 870-5232

  



 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


45

















 


with a
copy to:


 


Genzyme
Corporation


500
Kendall Street


Cambridge,
Massachusetts 02142


	
  Attn:

  	
  General Counsel

  
	
  Fax:

  	
  (617) 252-7553

  
	
  Phone:

  	
  (617) 252-7500

  



 


(b)      if
to EXACT, to:


 


EXACT
Sciences Corporation

100 Campus Drive

Marlborough, Massachusetts 01752


	
  Attn:

  	
  Chief Executive
  Officer

  
	
  Fax:

  	
  (508) 683-1201

  
	
  Phone:

  	
  (508) 683-1200

  



 


with a
copy to:


 


Goodwin|Procter
LLP


53
State Street


Boston,
Massachusetts 02109


	
  Attn:

  	
  Edward A. King,
  Esq. & Kingsley L. Taft, Esq.

  
	
  Fax:

  	
  (617) 523-1231

  
	
  Phone:

  	
  (617) 570-1000

  



 


 


Either
party may, by notice given in accordance with this Section 16.1 to the other
parties, designate another address or person for receipt of notices hereunder.


 


16.2              Entire Agreement.  This Agreement, the Ancillary Agreements and
the Mutual Non-Disclosure Agreement dated as of April 9, 2008 contain the
entire agreement between the parties with respect to the Transactions and
supersede all prior agreements, written or oral, between the parties with
respect thereto.  Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by EXACT and Genzyme in this Agreement will
survive the execution of this Agreement.


 


16.3              Binding Effect;
No Assignment; No Third-Party Beneficiaries.


 


(a)      Neither
this Agreement nor any interest or obligation hereunder is assignable by EXACT
without the prior written consent of Genzyme (such consent not to be
unreasonably withheld or delayed), provided, however, that any
merger, reorganization, or transfer of all or substantially all assets of EXACT
with or to a Third Party, or Change of Control of EXACT, will not be considered
an assignment for the purposes of this Agreement, and then only if: (i) EXACT
provides Genzyme notice of


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


46

















 


such transaction as specified in Section 16.1 upon
consummation of such transaction (or, if notice of such transaction is provided
sooner to EXACT’s stockholders, at the time such notice is provided to EXACT’s
stockholders) and (ii) the applicable surviving entity or Third Party agrees to
be bound by the terms and conditions of this Agreement.  Genzyme may freely assign this Agreement or
any interest hereunder.  This Agreement
is binding upon the successors and permitted assigns of the parties hereto, and
the name of a party appearing in this Agreement is deemed to include the names
of such party’s successors and permitted assigns to the extent necessary to
carry out the intent of this Agreement. 
Any assignment not in accordance with this Section 16.3 will be void.


 


(b)      Nothing
in this Agreement, express or implied, is intended to or will confer upon any
Person other than Genzyme and EXACT and their respective successors and
permitted assigns any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.


 


16.4              Amendment.  This Agreement may not be amended except by
an instrument signed by each of the parties hereto.


 


16.5              Waiver.  At any time prior to the Closing, either party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other party hereto or (b) waive compliance with any of the
agreements of the other party or any conditions to its own obligations, in each
case only to the extent such obligations, agreements and conditions are
intended for its benefit; provided  that, any such extension or waiver will be binding upon a party
only if such extension or waiver is set forth in a writing executed by such
party.


 


16.6              Disclaimer.  EACH PARTY MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY MADE IN THIS
AGREEMENT.  ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.


 


16.7              Section Headings,
Construction.  The headings of
Sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation. 
All references to “Section” or “Sections” refer to the corresponding Section
or Sections of this Agreement.  All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require.  Unless otherwise
expressly provided, the word “including” does not limit the preceding words or
terms.


 


16.8              Counterparts.  This Agreement may be executed in two
counterparts, each of which will be deemed an original, and both of which
together will constitute one and the same instrument.


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


47
















 


16.9              Severability.  If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect.  Any provision of this Agreement held invalid
or unenforceable only in part or degree will remain in full force and effect to
the extent not held invalid or unenforceable. 
The parties further agree to replace such invalid or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such invalid or unenforceable provision.


 


16.10            Withholding.  The payor of any amount hereunder will be
entitled to deduct and withhold from any consideration otherwise payable
pursuant to this Agreement such amounts as may be required to be deducted and
withheld with respect to the making of such payment under the Code, or any
other legal requirement.  To the extent
that amounts are so deducted or withheld, such deducted or withheld amounts
will be treated for all purposes of this Agreement as having been paid.


 


16.11            Governing Law.  This Agreement will be governed by and
construed in accordance with the internal laws of The Commonwealth of
Massachusetts, without regard to conflict of law principles thereof.


 


16.12            Dispute Resolution.


 


(a)      Management Discussions.
If a dispute, controversy or claim (“Dispute”) arises between the
parties relating to the interpretation or performance of this Agreement but
excluding disputes relating to patent validity or enforceability, appropriate
senior executives (e.g., V.P. level or above) of each party who have the
authority to resolve the matter will meet at least once in person within 15
business days of either party’s written request for such meeting to attempt in
good faith to negotiate a resolution of the Dispute prior to pursuing other
available remedies.  The parties agree
that all negotiations pursuant to this Section 16.12(a) are
confidential and will be treated as compromise and settlement negotiations for
purposes of the Federal Rules of Evidence and state rules of
evidence.  If the parties fail to reach
an amicable agreement pursuant to the process set forth in this Section 16.12(a) within
60 days of the request for such meeting, then either party may pursue a legal
remedy in accordance with Section 16.13.


 


(b)      Court Action.  Notwithstanding any other provision of this
Agreement, any Dispute regarding the following is not required to be negotiated
prior to seeking relief from a court of competent jurisdiction: breach of any
obligation of confidentiality, or infringement, misappropriation, or misuse of
any Intellectual Property Rights of either party hereto where interim
injunctive or other similar relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others.


 


16.13            Submission to
Jurisdiction; Waiver.  The parties
irrevocably and unconditionally submit to the jurisdiction of the Massachusetts
Superior Court in Suffolk County and waive any objection to transferring any
action, suit or proceeding arising out of this Agreement to


 


Portions of this Exhibit were omitted and have
been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 24b-2 of the
Exchange Act; [*] denotes omissions.


 


48

















 


the Business Litigation
Session of the Massachusetts Superior Court. Each of EXACT and Genzyme hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any Action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure to
lawfully serve process, (b) that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment, attachment
in aid of execution of judgment, execution of judgment or otherwise), and (c) to
the fullest extent permitted by applicable law, that (i) the suit, Action
or proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, Action or proceeding is improper, and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.


 


16.14            Enforcement.  The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy.  Accordingly, each party
agrees that in addition to other remedies the other party will be entitled to
seek an injunction restraining any violation or threatened violation of the
provisions of this Agreement.  In the
event that any Action will be brought in equity to enforce the provisions of
the Agreement, neither party will allege, and each party hereby waives the
defense, that there is an adequate remedy at law.


 


16.15            Rules of
Construction.  The parties hereto
agree that they have been represented by counsel during the negotiation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or ruling of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.


 


16.16            Waiver of Jury Trial.  EACH OF GENZYME AND EXACT HEREBY IRREVOCABLY
WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENT OR ACTION RELATED HERETO OR THERETO.


 


[Remainder of Page Intentionally
Left Blank]


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission pursuant
to the Company’s application requesting confidential treatment under Rule 24b-2
of the Exchange Act; [*] denotes omissions.


 


49





















 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first stated above.


 


 


	
   

  	
  GENZYME CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Earl M. Collier,
  Jr.

  
	
   

  	
  Name:

  	
  Earl M. Collier, Jr.

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXACT SCIENCES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jeffrey R. Luber

  
	
   

  	
  Name:

  	
  Jeffrey R. Luber

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  



 


[Signature Page to
Collaboration, License and Purchase Agreement]


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 
















 


DISCLOSURE
SCHEDULE


 


TO THE
COLLABORATION, LICENSE AND PURCHASE AGREEMENT


 


These Schedules are being furnished by EXACT
Sciences Corporation (“EXACT”), in connection with the execution and delivery
of that certain Collaboration, License and Purchase Agreement (the “Agreement”),
dated as of January 27, 2009, by and between EXACT and Genzyme Corporation
(“Genzyme”).  Except as otherwise
provided herein or in the Agreement, all disclosures contained in these
Schedules are made as of the date of the Agreement.  Capitalized terms used but not otherwise
defined herein will have the meanings ascribed to them in the Agreement.


 


Any matter disclosed in one section of these
Schedules will be deemed disclosed in all other applicable sections of these
Schedules to the extent that such section is reasonably cross-referenced or the
relevance to such other section is readily apparent on the face of the
disclosure that the matter is responsive to another representation.  Disclosure of a matter in a section of these
Schedules will not affect (directly or indirectly) the interpretation of the
Agreement or the scope of the disclosure obligation of EXACT under the
Agreement.  These Schedules may include
items or information which EXACT is not required to disclose under the Agreement.  The fact that any fact, circumstance, matter
or event is disclosed in a section of these Schedules does not necessarily mean
that it is “material” to EXACT, whether considered individually or in
combination with other facts, circumstances, matters, or events disclosed
herein, and such inclusion will not be deemed an acknowledgement that such
fact, item, circumstance, matter, transaction or event is required to be so
disclosed pursuant to the Agreement.  All
agreements listed in these Schedules will be deemed to include all appendices,
exhibits, schedules, modifications, amendments to, and all orders, purchase
orders, implementation contracts, statements of work, program descriptions and
other documents issued under, such agreements, and all associated
documentation.  No disclosure in these
Schedules relating to any possible breach or violation of or default under any
contract or law will be construed as an admission or indication that any such
breach, violation or default exists or has actually occurred.


 


The information in these Schedules is
disclosed confidentially, and the recipients agree by their receipt of these
Schedules that such information will be held subject to the obligations of Article 13
of the Agreement.  In disclosing the
information set forth herein, EXACT expressly does not waive any
attorney-client privilege associated with any such information or any
protection afforded by the “work product doctrine” with respect to any of the
matters disclosed herein.


 


The headings and descriptions of the
representations and warranties used herein are for convenience of reference
only and are not intended to and do not alter the meaning of any provision of
the Agreement.


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


1

















 


Schedule A


 


Primary Patent Rights


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


2

















 


Schedule B


 


Secondary Patent Rights


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


3

















 


Schedule 2.1(a)(ii)


 


Assigned Contracts


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


4

















 


Schedule 2.1(b)(vii)


 


Retained Patent Rights


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


5

















 


Schedule 3.1(b)


 


Rights to Retained Patent
Rights


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


6

















 


Schedule 3.2(b)


 


EXACT Licensed
Improvements


 


To be added.


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


7

















 


Schedule 3.3(b)


 


Optioned Technology


 


To be added.


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


8

















 


Schedule 3.4(c)


 


Genzyme Licensed
Improvements


 


To be added.


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


9

















 


Schedule 6.4(c)


 


Noncontravention


 


Consent of JHU needed for transfer of the Transferred
In-License Agreement, which is satisfied by the JHU-EXACT License Amendment.


 


Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*] denotes omissions.


 


10
















 


Schedule 6.7(a)


 


Assets


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


11

















 


Schedule 6.7(b)


 


Assets


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


12

















 


Schedule 6.8(a)


 


Transferred Technology


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


13

















 


Schedule 6.8(b)


 


Rights to Transferred
Technology


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


14

















 


Schedule 6.8(d)


 


Indemnification
Obligations


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


15

















 


Schedule 6.8(e)


 


Maintenance of
Intellectual Property


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


16

















 


Schedule 6.8(f)


 


Royalties


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


17

















 


Schedule 6.8(g)


 


Employees


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


18

















 


Schedule 6.8(h)


 


Government Funding


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


19

















 


Schedule 6.11(a)


 


Contracts


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


20

















 


Schedule 6.12(a)


 


Litigation


 


[********]


 


Portions
of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company’s application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.


 


21