RIGHTS AND OTHERWISE, SHALL BE AND IS, ANYTHING HEREIN TO
THE CONTRARY NOTWITHSTANDING, GRANTED AND MADE SUBJECT TO RIGHTS RETAINED BY THE
UNITED STATES GOVERNMENT IN ACCORDANCE WITH P.L. 96-517, AS AMENDED BY P.L.
98-620, AND HHMI'S PAID-UP, NON-EXCLUSIVE, IRREVOCABLE LICENSE TO USE THE PATENT
RIGHTS FOR HHMI'S NON-COMMERCIAL PURPOSES, BUT WITH NO RIGHT TO ASSIGN OR
SUBLICENSE.
THE RIGHT AND LICENSE GRANTED HEREUNDER IN RESPECT OF THE PATENT
RIGHTS AND OTHERWISE, SHALL BE AND IS, FURTHER SUBJECT TO THE RETAINED RIGHT OF
JHU TO USE THE PATENT RIGHTS AND TO MAKE, HAVE MADE, PROVIDE AND USE FECAL BASED
TESTS, AND PRODUCTS AND SERVICES FOR ITS AND ONLY THE JOHNS HOPKINS HEALTH
SYSTEMS' INTERNAL, NON-PROFIT, NON-COMMERCIAL PURPOSES, INCLUDING THE ABILITY TO
DISTRIBUTE ANY BIOLOGICAL MATERIAL COVERED UNDER ANY PATENT RIGHT FOR NON-PROFIT
ACADEMIC RESEARCH USE TO NON-COMMERCIAL ENTITIES AS IS CUSTOMARY IN THE
SCIENTIFIC ACADEMIC COMMUNITY; AND SUBJECT TO ANY ADDITIONAL LIMITATIONS,
CONDITIONS OR RESTRICTIONS, INCLUDED OR OTHERWISE REFERRED TO HEREIN.
2.4
PRIOR LICENSE AGREEMENT.
THIS AGREEMENT AMENDS AND RESTATES IN ITS
ENTIRETY THE PRIOR LICENSE AGREEMENT; PROVIDED, HOWEVER SUCH AMENDMENT AND
RESTATEMENT SHALL NOT RENDER NULL OR VOID THE PRIOR LICENSE AGREEMENT AS
RESPECTS OBLIGATIONS ACCRUING UNDER THE PRIOR LICENSE AGREEMENT PRIOR TO THE
EFFECTIVE DATE.
EXACT REPRESENTS AND WARRANTS THAT, AS OF THE EFFECTIVE DATE,
NO SUBLICENSES HAVE BEEN GRANTED BY EXACT UNDER THE PRIOR LICENSE AGREEMENT OR
UNDER THE PATENT RIGHTS COVERED THEREBY.
EXACT AND JHU REPRESENT AND WARRANT
THAT AS OF THE EFFECTIVE DATE ALL LICENSE FEES, ROYALTIES, MILESTONE PAYMENTS,
SIMILAR AMOUNTS AND MAINTENANCE FEES (THE "FEES") REQUIRED TO BE PAID FROM EXACT
TO JHU UNDER THE PRIOR LICENSE AGREEMENT HAVE BEEN PAID IN FULL AND NO
ADDITIONAL FEES ARE DUE JHU FROM EXACT RELATING TO THE PRIOR 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.
8
ARTICLE 3
FEES AND PAYMENTS
3.1
INITIAL LICENSE FEE.
UPON EXECUTION OF THIS AGREEMENT, COMPANY
SHALL BECOME OBLIGATED TO MAKE PAYMENT TO JHU OF AN INITIAL LICENSE FEE IN THE
AMOUNT OF [********] (THE "INITIAL LICENSE FEE").
JHU WILL NOT SUBMIT AN
INVOICE FOR THE INITIAL LICENSE FEE, WHICH IS NON-REFUNDABLE AND SHALL NOT BE
CREDITED AGAINST ANY ROYALTIES OR OTHER FEES OTHERWISE ARISING OR BECOMING DUE
UNDER THE TERMS OF THIS AGREEMENT.
PAYMENT OF THE INITIAL LICENSE FEE AS
CONTEMPLATED BY THE IMMEDIATELY PRECEDING SENTENCES SHALL BE MADE IN FOUR
(4) EQUAL INSTALLMENTS OF [********] EACH, THE FIRST OF WHICH SHALL BE DUE AND
PAYABLE ON OR BEFORE MARCH 31, 2003, THE SECOND OF WHICH ON OR BEFORE JUNE 30,
2003, THE THIRD OF WHICH ON OR BEFORE OCTOBER 30, 2003, AND THE FOURTH AND FINAL
OF WHICH WILL BE DUE AND PAYABLE ON OR BEFORE DECEMBER 31, 2003.
3.2
CALCULATION OF PAYMENTS DUE.
COMPANY HEREBY AGREES TO PAY THE
ANNUAL LICENSE FEE TO JHU, IN ACCORDANCE WITH