BE REQUESTED BY GENZYME AS SET FORTH IN SECTION 8.4, EACH IN FORM AND SUBSTANCE
SATISFACTORY TO GENZYME AND ITS LEGAL COUNSEL AND EXECUTED BY EXACT.
(B)
GENZYME WILL DELIVER TO EXACT, TOGETHER WITH THE CLOSING PAYMENT, LESS
THE POTENTIAL LIABILITIES HOLDBACK AMOUNT, BY WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FUNDS, THE FOLLOWING ANCILLARY AGREEMENTS:
(I)
THE ASSIGNMENT AND ASSUMPTION AGREEMENT EXECUTED BY GENZYME;
(II)
THE APC/P53 LICENSE AMENDMENT EXECUTED BY GENZYME;
(III)
THE JHU-EXACT LICENSE AMENDMENT EXECUTED BY GENZYME; AND
(IV)
THE COMMON STOCK SUBSCRIPTION AGREEMENT EXECUTED BY GENZYME.
5.3
POST-CLOSING.
WITHIN 15 DAYS OF THE CLOSING DATE, EXACT WILL
NOTIFY ALL OF ITS AGENTS THAT HOLD FILES OR OTHER TANGIBLE MATERIAL INCLUDED IN
THE PURCHASED ASSETS, INCLUDING ANY LAW FIRMS HOLDING FILES WITH RESPECT TO
TRANSFERRED TECHNOLOGY, THAT EFFECTIVE AS OF THE CLOSING, GENZYME WILL OWN SUCH
PURCHASED ASSETS, AND EXACT WILL BE RESPONSIBLE FOR ANY FEES OR EXPENSES
ASSOCIATED WITH SUCH NOTIFICATION OR RELATED ACTIONS IN CONNECTION WITH
REFLECTING THE TRANSFER OF OWNERSHIP.
Article 6
Representations and Warranties of EXACT.
In order to induce Genzyme to enter into and perform this Agreement and to
consummate the Transactions, EXACT hereby represents and warrants to Genzyme as
follows:
6.1
ORGANIZATION.
EXACT IS (A) DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION AND
(B) EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING WOULD NOT BE
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT, DULY QUALIFIED TO DO
BUSINESS AND IN GOOD STANDING IN EACH JURISDICTION IN WHICH IT OWNS OR LEASES
REAL PROPERTY OR IS OTHERWISE REQUIRED TO BE SO QUALIFIED OR IN GOOD STANDING.
6.2
POWER AND AUTHORIZATION.
(A)
THE EXECUTION, DELIVERY AND PERFORMANCE BY EXACT OF THIS AGREEMENT AND
EACH ANCILLARY AGREEMENT AND THE CONSUMMATION OF EACH TRANSACTION ARE WITHIN THE
POWER AND AUTHORITY OF EXACT AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
ACTION ON THE PART OF EXACT.
THIS AGREEMENT AND EACH ANCILLARY AGREEMENT
(I) HAS BEEN (OR, IN THE CASE OF ANCILLARY AGREEMENTS TO BE ENTERED INTO AT OR
PRIOR TO THE CLOSING, WILL BE) DULY EXECUTED AND DELIVERED BY EXACT AND (II) IS
(OR, IN THE CASE OF ANCILLARY AGREEMENTS TO BE ENTERED INTO AT OR PRIOR TO THE
CLOSING, WILL BE) A LEGAL, VALID AND BINDING OBLIGATION OF EXACT, ENFORCEABLE
AGAINST EXACT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS' AND
CONTRACTING PARTIES' RIGHTS GENERALLY AND SUBJECT TO GENERAL
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.
17
PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN
A PROCEEDING IN EQUITY OR AT LAW).
(B)
EXACT HAS THE FULL POWER AND AUTHORITY NECESSARY TO OWN AND USE ITS
ASSETS AND CARRY ON ITS BUSINESS.
6.3
AUTHORIZATION OF GOVERNMENTAL AUTHORITIES.
NO ACTION