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:
GoodwinProcter 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