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