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