LAW DESIGNED FOR RELIEF OF
DEBTORS OR (B) FAILS TO MATERIALLY PERFORM OR OTHERWISE MATERIALLY BREACHES ITS
OBLIGATIONS HEREUNDER, IF, FOLLOWING THE GIVING OF NOTICE BY THE TERMINATING
PARTY OF ITS INTENT TO TERMINATE AND STATING THE GROUNDS THEREFOR, THE PARTY
RECEIVING SUCH NOTICE SHALL NOT HAVE CURED THE FAILURE OR BREACH WITHIN SIXTY
(60) DAYS OF RECEIPT OF NOTICE (THE "CURE PERIOD"), OR, IF THE BREACH IS
INCAPABLE OF BEING CURED WITHIN THE CURE PERIOD, THE BREACHING PARTY MUST,
DURING THE CURE PERIOD, COMMENCE DILIGENT EFFORTS TO CURE SAID BREACH WHICH MUST
THEN BE CURED WITHIN NINETY
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.
23
(90) DAYS FOLLOWING THE CURE PERIOD IN ORDER TO PREVENT TERMINATION BY THE
NON-BREACHING PARTY.
IN NO EVENT, HOWEVER, SHALL SUCH NOTICE OR INTENTION TO
TERMINATE BE DEEMED TO WAIVE ANY RIGHTS TO DAMAGES OR ANY OTHER REMEDY WHICH THE
PARTY GIVING NOTICE OF BREACH MAY HAVE AS A CONSEQUENCE OF SUCH FAILURE OR
BREACH.
9.3
TERMINATION BY COMPANY.
JHU, THROUGH THE MOLECULAR GENETICS LAB,
MAY DISCOVER A NEW TECHNOLOGY DURING THE TERM OF THIS AGREEMENT.
JHU MAY, UPON
GIVING WRITTEN NOTICE TO EXACT, CAUSE THIS AGREEMENT TO BE AMENDED TO INCLUDE
ANY PATENT APPLICATION OR PATENT EMBODYING THE NEW TECHNOLOGY AMONG THE PATENT
RIGHTS AND TO EXTEND THE TERM OF THIS AGREEMENT TO THE DATE OF EXPIRATION OF ANY
PATENT ISSUED THEREON, PROVIDED THAT (I) THE RIGHT AND LICENSE GRANTED TO EXACT
ON THE NEW TECHNOLOGY SHALL BE EXCLUSIVE AND LIMITED TO THE FIELD DESCRIBED AS
FECAL BASED TESTS, THAT IS, A SCREENING ASSAY CONDUCTED ON A STOOL SAMPLE FOR
THE PURPOSE OF DIAGNOSING COLORECTAL NEOPLASIA, AND (II) EXACT AND JHU AGREE TO
NEGOTIATE IN GOOD FAITH ON A REASONABLE INCREASE TO THE AMOUNTS IN PARAGRAPHS
1.12.1(A) AND 1.12.2(A).
EXACT SHALL THEN HAVE THE RIGHT AND OPTION,
EXERCISABLE WITHIN THIRTY (30) DAYS OF SUCH NOTICE, TO REJECT SUCH AMENDMENT AND
THE INCLUSION HEREUNDER OF SUCH NEW TECHNOLOGY AMONG THE PATENT RIGHTS.
IN THE
EVENT THAT JHU DOES NOT CAUSE THIS AGREEMENT TO BE SO AMENDED AND, IN LIEU
THEREOF, LICENSES RIGHTS TO SUCH NEW TECHNOLOGY IN A FIELD THAT INCLUDES FECAL
BASED TESTS FOR COMMERCIAL AND OTHER THAN SOLELY RESEARCH PURPOSES TO A PARTY
OTHER THAN EXACT, THEN EXACT, AT ITS SOLE DISCRETION, SHALL HAVE THE RIGHT AND
OPTION, EXERCISABLE BY WRITTEN NOTICE GIVEN BY EXACT TO JHU WITHIN SIXTY (60)
DAYS AFTER THE CONSUMMATION BY JHU OF THE THIRD PARTY LICENSE (THE CONSUMMATION
OF WHICH JHU SHALL IMMEDIATELY NOTIFY EXACT), EITHER (A) TO TERMINATE THIS
AGREEMENT IMMEDIATELY AND WITHOUT RECOURSE BY JHU, AND WITH NO FURTHER PAYMENTS
DUE FROM EXACT TO JHU UNDER ARTICLE 3 HEREOF FOLLOWING THE DATE OF TERMINATION,
OR (B) TO ELECT NOT TO TERMINATE THIS AGREEMENT AND FOR THIS AGREEMENT TO
INSTEAD BE DEEMED AMENDED TO BECOME A PERPETUAL,