EXCLUSIVE, ROYALTY-FREE LICENSE
TO THE PATENT RIGHTS THEN EXISTING IN THE FIELD OF FECAL BASED TESTS, TO EXACT,
WHEREUPON ALL THE PAYMENT OBLIGATIONS OF EXACT TO JHU UNDER ARTICLE 3 SHALL
TERMINATE, EXCEPT THAT EXACT SHALL PAY JHU A LICENSE MAINTENANCE FEE OF
[********] PER CALENDAR YEAR, PAYABLE WITHIN THIRTY (30) DAYS AFTER DECEMBER 31
OF EACH YEAR DURING WHICH THIS AGREEMENT IS IN EFFECT.
NOTWITHSTANDING THE
FOREGOING, IF THIS AGREEMENT IS CONVERTED INTO A PERPETUAL, ROYALTY-FREE,
EXCLUSIVE LICENSE UNDER THE PROVISIONS OF THIS PARAGRAPH 9.3, ALL PROVISIONS OF
THIS AGREEMENT, EXCEPT FOR THE PAYMENT PROVISIONS CONTAINED IN ARTICLE 3 HEREOF,
SHALL REMAIN IN FULL FORCE AND EFFECT TO THE EXTENT THEY ARE NOT INCONSISTENT
WITH THIS SECTION 9.3, AND EXACT SHALL PAY ALL AMOUNTS CURRENTLY DUE PRIOR TO
THE DATE OF SUCH CONVERSION.
FOR THE AVOIDANCE OF DOUBT, IN THE EVENT EXACT
ELECTS TO PROCEED UNDER CLAUSE (B) ABOVE, EXACT SHALL NO LONGER BE REQUIRED TO
PAY JHU ANY AMOUNTS (OTHER THAN THE [********] PER YEAR MAINTENANCE FEE) WHICH
WOULD HAVE OTHERWISE ACCRUED PROSPECTIVELY TO JHU HAD EXACT NOT SO ELECTED.
FOR
THE FURTHER AVOIDANCE OF DOUBT, THIS PARAGRAPH 9.3 SHALL NOT BE CONSTRUED AS A
RIGHT OF FIRST REFUSAL OR FIRST OPTION OR EXCLUSIVE NEGOTIATION BETWEEN JHU AND
EXACT; INSTEAD THIS PARAGRAPH 9.3 OBLIGES JHU TO MAKE NEW TECHNOLOGY AVAILABLE
TO EXACT ON AT LEAST AN EQUAL BASIS WITH ALL OTHER PARTIES, OR FAILING THAT,
GIVES EXACT THE RIGHT TO PROCEED UNDER CLAUSE (A) OR (B) OF THIS PARAGRAPH 9.3.
9.4
OBLIGATIONS AND DUTIES UPON TERMINATION.
IF THIS AGREEMENT IS
TERMINATED, BOTH PARTIES SHALL BE RELEASED FROM ALL OBLIGATIONS AND DUTIES
IMPOSED OR ASSUMED HEREUNDER TO THE EXTENT SO TERMINATED, EXCEPT AS EXPRESSLY
PROVIDED TO THE CONTRARY IN THIS AGREEMENT.
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.
24
TERMINATION OF THIS AGREEMENT, FOR WHATEVER REASON, SHALL NOT AFFECT THE
OBLIGATION OF EITHER PARTY TO MAKE ANY PAYMENTS FOR WHICH IT IS LIABLE PRIOR TO
OR UPON SUCH TERMINATION AND WHICH WERE ORIGINALLY INTENDED TO BE PAID PRIOR TO
THE TERMINATION (I.E.
ANY FLAT FEE AMOUNTS THAT ARE BEING PAID TO JHU PURSUANT
TO ARTICLE 3 SHALL IMMEDIATELY CEASE WITH NO FURTHER AMOUNTS DUE JHU
HEREUNDER).
TERMINATION SHALL NOT AFFECT JHU'S RIGHT TO RECOVER AMOUNTS FOR
WHICH PAYMENT IS PAST DUE (INCLUDING REIMBURSEMENT FOR PATENT EXPENSES INCURRED
PURSUANT TO ARTICLE 4 PRIOR TO TERMINATION).
UPON TERMINATION, COMPANY SHALL
SUBMIT A FINAL ROYALTY REPORT TO JHU TO CONFIRM THE AMOUNTS DUE JHU AS OF THE
DATE OF TERMINATION AND PAYMENT OF SUCH AMOUNTS SHALL BE DUE TO JHU NO LATER
THAN THIRTY (30) DAYS OF THE DATE OF TERMINATION.
FURTHERMORE, UPON TERMINATION
OF THIS AGREEMENT FOR ANY REASON, ALL RIGHTS IN AND TO THE PATENT RIGHTS SHALL
REVERT IMMEDIATELY TO JHU, AT NO COST TO JHU, PROVIDED, HOWEVER, THAT, IN THE