EXAS » Topics » REPRESENTATIONS AND WARRANTIES OF THE COMPANY

This excerpt taken from the EXAS 8-K filed Jan 28, 2009.

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

Except as disclosed by the Company in the Exchange Act Documents (as defined below), the Company hereby represents, warrants and covenants to the Investor, as follows:

 

2.1           Organization.  The Company is

These excerpts taken from the EXAS 10-K filed Mar 17, 2008.
Article 10: Representations and Warranties

 

10.1                          LABCORP Representations and Warranties. LABCORP represents, warrants and covenants to EXACT that:

 

10.1.1               This Agreement does not contravene or constitute a default under or violation of any provision of applicable law binding upon LABCORP or any agreement, commitment, instrument or other arrangement to which LABCORP is a party;

 

10.1.2               All necessary consents, approvals and authorizations of all governmental authorities or other third parties required to be obtained in connection with entry into this Agreement have been obtained; and

 

10.1.3               All consultants of LABCORP who participate in research and development or laboratory or analytical procedures relating to the Technology will execute appropriate instruments of assignment in favor of LABCORP as assignee that convey to LABCORP ownership of all right, title and interest in and to all intellectual property rights or any Invention that may arise from such participation.

 

10.2                          EXACT Representations and Warranties.  EXACT represents and warrants to LABCORP that:

 

10.2.1               EXACT is a corporation duly organized and validly existing under the laws of the State of Delaware, and has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder;

 

10.2.2               This Agreement does not contravene or constitute a default or violation of any provision of applicable law binding upon EXACT or any agreement, commitment, or instrument to which EXACT is a party;

 

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10.2.3               EXACT has sufficient title and ownership rights to license the Technology as specified in this Agreement;

 

10.2.4               LABCORP and its Affiliates and sub-licensees shall be entitled to use and enjoy the benefit of the Technology in the Field to the extent of the license granted hereunder, and, except as otherwise provided in this Agreement, LABCORP’s and its Affiliate’s and sub-licensee’s use thereof shall not be adversely affected, interrupted or disturbed by EXACT or any Person asserting a claim under, through, or on behalf of EXACT;

 

10.2.5               As of the Effective Date, EXACT is not aware of any material unauthorized use, infringement or misappropriation of the Technology, or any other intellectual property rights of EXACT licensed hereunder;

 

10.2.6               As of the Effective Date, EXACT is not aware of any pending or threatened litigation which alleges 1) that the Technology infringes on any of the intellectual property rights of any third party or was misappropriated, or 2) that by using the Technology  LABCORP and its Affiliates and sub-licensees would be infringing or misappropriating any of the intellectual property rights of any Person;

 

10.2.7               As of the Effective Date, EXACT is not aware of a patent issued to a third party that would be infringed by LABCORP or its Affiliates’ or sub-licensees’ performance and commercialization of the Assays using the protocols transferred by EXACT under this Agreement;

 

10.2.8               Prior to the Effective Date, EXACT has not granted any licenses or covenants-not-to-sue to any third parties with respect to the Technology;

 

10.2.9               As of the Effective Date, EXACT is not aware of any reason that the patents listed in Schedule 1 are not valid and enforceable patents, and during the Term, EXACT shall submit all filings, make all payments, and take all other actions necessary to maintain such patents as valid, in force and in good standing for the longest possible duration with the U.S. Patent and Trademark Office and corresponding foreign patent authorities (at its own expense) to avoid premature expiration or termination of its patents;

 

10.2.10         As of the Effective Date, the Technology licensed to LABCORP and its Affiliates and sub-licensees under this Agreement constitutes all of the technology, information and intellectual property necessary for LABCORP and its Affiliates and sub-licensees to perform the Assays as of the Effective Date, except for [CONFIDENTIAL TREATMENT REQUESTED]/*/;

 

10.2.11         The current assay protocol EXACT uses to prepare stool sample and to extract DNA therefrom results in a population of human DNA that is representative of human DNA in exfoliated colonic epithelial cells; and

 

10.2.12         The protocol for Assays in use by EXACT as of the Effective Date, and any other protocols to be provided by EXACT to LABCORP at any time (including without limitation the Analytical Process Improvement, Capture Process Improvement, and any Inventions provided by EXACT pursuant to Section 2.3), correctly function to screen patient samples for colorectal cancer for commercial purposes.

 

10.3                         DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER LABCORP NOR EXACT MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS PERFORMANCE UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, THE MARKETABILITY, USE, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE RESULTS OF ANY ASSAY PERFORMED HEREUNDER.

 

Article 10:
Representations and Warranties


 



10.1                          LABCORP Representations and Warranties. LABCORP represents, warrants and covenants
to EXACT that:



 



10.1.1               This Agreement does not contravene or
constitute a default under or violation of any provision of applicable law
binding upon LABCORP or any agreement, commitment, instrument or other
arrangement to which LABCORP is a party;



 



10.1.2               All necessary consents, approvals and
authorizations of all governmental authorities or other third parties required
to be obtained in connection with entry into this Agreement have been obtained;
and



 



10.1.3               All consultants of LABCORP who participate in
research and development or laboratory or analytical procedures relating to the
Technology will execute appropriate instruments of assignment in favor of
LABCORP as assignee that convey to LABCORP ownership of all right, title and
interest in and to all intellectual property rights or any Invention that may
arise from such participation.



 



10.2                          EXACT Representations and Warranties.  EXACT represents and warrants to
LABCORP that:



 



10.2.1               EXACT is a corporation duly organized and
validly existing under the laws of the State of Delaware, and has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder;



 



10.2.2               This Agreement does not contravene or
constitute a default or violation of any provision of applicable law binding
upon EXACT or any agreement, commitment, or instrument to which EXACT is a
party;



 



11
















 



10.2.3               EXACT has sufficient title and ownership
rights to license the Technology as specified in this Agreement;



 



10.2.4               LABCORP and its Affiliates and sub-licensees
shall be entitled to use and enjoy the benefit of the Technology in the Field
to the extent of the license granted hereunder, and, except as otherwise
provided in this Agreement, LABCORP’s and its Affiliate’s and sub-licensee’s
use thereof shall not be adversely affected, interrupted or disturbed by EXACT
or any Person asserting a claim under, through, or on behalf of EXACT;



 



10.2.5               As of the Effective Date, EXACT is not aware
of any material unauthorized use, infringement or misappropriation of the
Technology, or any other intellectual property rights of EXACT licensed
hereunder;



 



10.2.6               As of the Effective Date, EXACT is not aware
of any pending or threatened litigation which alleges 1) that the Technology
infringes on any of the intellectual property rights of any third party or was
misappropriated, or 2) that by using the Technology  LABCORP and its
Affiliates and sub-licensees would be infringing or misappropriating any of the
intellectual property rights of any Person;



 



10.2.7               As of the Effective Date, EXACT is not aware
of a patent issued to a third party that would be infringed by LABCORP or its
Affiliates’ or sub-licensees’ performance and commercialization of the Assays
using the protocols transferred by EXACT under this Agreement;



 



10.2.8               Prior to the Effective Date, EXACT has not
granted any licenses or covenants-not-to-sue to any third parties with respect
to the Technology;



 



10.2.9               As of the Effective Date, EXACT is not aware
of any reason that the patents listed in Schedule 1 are not valid and
enforceable patents, and during the Term, EXACT shall submit all filings, make
all payments, and take all other actions necessary to maintain such patents as
valid, in force and in good standing for the longest possible duration with the
U.S. Patent and Trademark Office and corresponding foreign patent authorities
(at its own expense) to avoid premature expiration or termination of its
patents;



 



10.2.10         As of the Effective Date, the Technology licensed to LABCORP and its
Affiliates and sub-licensees under this Agreement constitutes all of the
technology, information and intellectual property necessary for LABCORP and its
Affiliates and sub-licensees to perform the Assays as of the Effective Date,
except for [CONFIDENTIAL TREATMENT REQUESTED]/*/;



 



10.2.11         The current assay protocol EXACT uses to prepare stool sample and to
extract DNA therefrom results in a population of human DNA that is
representative of human DNA in exfoliated colonic epithelial cells; and



 



10.2.12         The protocol for Assays in use by EXACT as of the Effective Date, and
any other protocols to be provided by EXACT to LABCORP at any time (including
without limitation the Analytical Process Improvement, Capture Process
Improvement, and any Inventions provided by EXACT pursuant to Section 2.3),
correctly function to screen patient samples for colorectal cancer for
commercial purposes.



 



10.3                         DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER LABCORP NOR EXACT
MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS
PERFORMANCE UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, THE
MARKETABILITY, USE, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE RESULTS OF ANY
ASSAY PERFORMED HEREUNDER.



 



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