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