MANAGEMENT DISCUSSIONS. IF A DISPUTE, CONTROVERSY OR CLAIM ("DISPUTE")
ARISES BETWEEN THE PARTIES RELATING TO THE INTERPRETATION OR PERFORMANCE OF THIS
AGREEMENT BUT EXCLUDING DISPUTES RELATING TO PATENT VALIDITY OR ENFORCEABILITY,
APPROPRIATE SENIOR EXECUTIVES (E.G., V.P. LEVEL OR ABOVE) OF EACH PARTY WHO HAVE
THE AUTHORITY TO RESOLVE THE MATTER WILL MEET AT LEAST ONCE IN PERSON WITHIN 15
BUSINESS DAYS OF EITHER PARTY'S WRITTEN REQUEST FOR SUCH MEETING TO ATTEMPT IN
GOOD FAITH TO NEGOTIATE A RESOLUTION OF THE DISPUTE PRIOR TO PURSUING OTHER
AVAILABLE REMEDIES.
THE PARTIES AGREE THAT ALL NEGOTIATIONS PURSUANT TO THIS
SECTION 16.12(A) ARE CONFIDENTIAL AND WILL BE TREATED AS COMPROMISE AND
SETTLEMENT NEGOTIATIONS FOR PURPOSES OF THE FEDERAL RULES OF EVIDENCE AND STATE
RULES OF EVIDENCE.
IF THE PARTIES FAIL TO REACH AN AMICABLE AGREEMENT PURSUANT
TO THE PROCESS SET FORTH IN THIS SECTION 16.12(A) WITHIN 60 DAYS OF THE REQUEST
FOR SUCH MEETING, THEN EITHER PARTY MAY PURSUE A LEGAL REMEDY IN ACCORDANCE WITH
SECTION 16.13.
(B)
COURT ACTION.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
ANY DISPUTE REGARDING THE FOLLOWING IS NOT REQUIRED TO BE NEGOTIATED PRIOR TO
SEEKING RELIEF FROM A COURT OF COMPETENT JURISDICTION: BREACH OF ANY OBLIGATION
OF CONFIDENTIALITY, OR INFRINGEMENT, MISAPPROPRIATION, OR MISUSE OF ANY
INTELLECTUAL PROPERTY RIGHTS OF EITHER PARTY HERETO WHERE INTERIM INJUNCTIVE OR
OTHER SIMILAR RELIEF FROM THE COURT IS SOUGHT TO PREVENT SERIOUS AND IRREPARABLE
INJURY TO ONE OF THE PARTIES OR TO OTHERS.
16.13
SUBMISSION TO JURISDICTION; WAIVER.
THE PARTIES IRREVOCABLY
AND UNCONDITIONALLY SUBMIT TO THE JURISDICTION OF THE MASSACHUSETTS SUPERIOR
COURT IN SUFFOLK COUNTY AND WAIVE ANY OBJECTION TO TRANSFERRING ANY ACTION, SUIT
OR PROCEEDING ARISING OUT OF THIS AGREEMENT TO
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.
48
THE BUSINESS LITIGATION SESSION OF THE MASSACHUSETTS SUPERIOR COURT. EACH OF
EXACT AND GENZYME HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT, (A) ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF THE ABOVE-NAMED COURTS FOR ANY REASON OTHER THAN THE
FAILURE TO LAWFULLY SERVE PROCESS, (B) THAT IT OR ITS PROPERTY IS EXEMPT OR
IMMUNE FROM JURISDICTION OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED
IN SUCH COURTS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE),
AND (C) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT (I) THE SUIT,
ACTION OR PROCEEDING IN ANY SUCH COURT IS BROUGHT IN AN INCONVENIENT FORUM,
(II) THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, AND (III) THIS
AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.
16.14
ENFORCEMENT.
THE PARTIES RECOGNIZE AND AGREE THAT IF FOR ANY
REASON ANY