EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of the 26th day of April, 2005, by and between IRIS INTERNATIONAL, INC.,
a Delaware corporation ("PARENT"), and Blitz 05-047 GmbH (future name: IRIS
DEUTSCHLAND GmbH), a company formed under the laws of Germany and an indirectly
wholly-owned subsidiary of Parent ("IRIS"), on the one hand, and QUIDEL
CORPORATION, a Delaware corporation ("QUIDEL"), and QUIDEL DEUTSCHLAND GmbH, a
company formed under the laws of Germany and wholly-owned subsidiary of Quidel
(the "COMPANY"), on the other.
R E C I T A L S
A. Quidel or the Company are the owners of the Assets (as defined
below), which Assets are used exclusively in connection with the urinalysis test
strip business of the Company.
B. On the terms and subject to the conditions set forth in this
Agreement, Quidel and the Company desire to sell to IRIS, and IRIS desires to
purchase from Quidel and the Company, the Assets.
A G R E E M E N T
NOW, THEREFORE, with reference to the foregoing facts, the parties
agree as follows:
1. DEFINITIONS.
(a) CERTAIN DEFINITIONS. All terms defined in this
Agreement shall have the defined meanings when used in this Agreement or in any
agreement, note, certificate, report or other document made or delivered
pursuant to this Agreement, unless otherwise defined or the context otherwise
requires. The following terms shall have the following meanings:
"ACTION" means any litigation, action, suit, proceeding,
arbitration or claim before any court or Governmental Authority, or
investigation by any Governmental Authority.
"AFFILIATE" means, with respect to any specified Person, (i)
any other Person who, directly or indirectly, owns or controls, is under common
ownership or control with, or is owned or controlled by, such specified Person,
(ii) any other Person who is a director, partner or trustee of the specified
Person or a Person described in clause (i) of this definition, or (iii) any
Person of which the specified Person and/or any one or more of the Persons
specified in clause (i) or (ii) of this definition, individually or in the
aggregate, beneficially own 10% or more of any class of voting securities or
otherwise have a substantial beneficial interest.
"ASSETS" means those assets of Quidel or the Company set forth
on SCHEDULE 1(a) attached hereto and to be transferred herewith.
"BEST KNOWLEDGE" with respect to any Person means and includes
(i) actual knowledge of the Person, including, the actual knowledge of any of
the officers or directors of
such Person, and (ii) that knowledge which a prudent businessperson could have
obtained in the management of his business after making due inquiry, and after
exercising due diligence, with respect thereto.
"BUSINESS CONDITION" of any Person means the financial
condition, results of operations, business, properties or prospects of such
Person.
"CHARTER DOCUMENTS" means (i) with respect to the Company, the
Documents of Incorporation (GRUNDUNGSURKUNDE) and the Articles (SATZUNG) and the
Bylaws of the management board (GESCHAFTSORDNUNG) if any, or any similar
document, and (ii) with respect to Quidel, Quidel's certificate of incorporation
and bylaws.
"COMPANY IP" means all patents, patent applications,
trademarks and registered copyrights that are included within the Assets as set
forth on Schedule 6(i) hereto.
"CONTRACT" means any written or oral note, bond, debenture,
mortgage, license, agreement, commitment, contract or understanding.
"EXPLOIT" means manufacture, advertise, license, market,
merchandise, promote, publicize, sell, use, market, supply or distribute, and
"EXPLOITATION" and "EXPLOITED" shall have a correlative meaning.
"GAAP" means accounting principles generally accepted in the
United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"IP" means, under the laws of any jurisdiction in the world,
any and all: (a) patents (including design patents, industrial designs and
utility models) and patent applications (including docketed patent disclosures
awaiting filing, reissues, divisions, continuations-in-part and extensions),
patent disclosures awaiting filing determination, inventions and improvements
thereto; (b) trademarks, service marks, trade names, trade dress, logos,
business and product names, slogans, and registrations and applications for
registration thereof; (c) copyrights (including software) and registrations
thereof; (d) inventions, processes, designs, formulae, trade secrets, know-how,
industrial models, confidential and technical information, manufacturing,
engineering and technical drawings, product specifications and confidential
business information; (e) intellectual property rights similar to any of the
foregoing; and (f) copies and tangible embodiments thereof (in whatever form or
medium, including electronic media).
"LATERAL FLOW TECHNOLOGY LAWSUIT" means that certain action
filed on February 4, 2004 by Inverness Medical Switzerland GmbH and Preymed in
the District Court in Dusseldorf, Germany, which names Quidel, the Company and
Quidel's distributor, Progen Biotechnik GmbH ("PROGEN"), as defendants. The
lawsuit alleges that Quidel, the Company and Progen are infringing two
Inverness-owned European patents, EP 0 291 194 and EP 0 560 411, and is directed
at Quidel's lateral flow test devices.
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"LAW" means any German or applicable foreign statute, law,
rule, regulation, ordinance, order, code, policy or rule of common law, in
effect as of the date hereof and as amended, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, consent, decree or judgment.
"LIEN" means any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority, or other security agreement or
preferential arrangement, charge, or encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, provided, however, that a Lien shall not include
any limitation on the right to Exploit any Company IP.
"MATERIAL CONTRACTS" means any Contract included within the
Assets to be transferred to, and assumed by, IRIS hereunder.
"ORDER" means any order, judgment, injunction, award, decree,
writ, or similar action of any Governmental Authority.
"PERSON" means an individual or a partnership, corporation,
trust, association, limited liability company, Governmental Authority or other
entity.
"SUBSIDIARY" of any Person means any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are owned directly or indirectly by such Person.
"TAX" or "TAXES" mean all taxes, charges, fees, imposts,
levies or other assessments, including, without limitation, all net income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation, and
property taxes, customs duties, fees, assessments and charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority (domestic or foreign) and
shall include any transferee liability in respect of Taxes.
"TAX RETURN" or "TAX RETURNS" mean all returns, declarations,
reports, estimates, information returns and statements required to be filed in
respect of any Taxes.
"TRANSFER" means sell, assign, transfer, pledge, grant a
security interest in, or otherwise dispose of, with or without consideration,
and "TRANSFERRED" shall have a correlative meaning.
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(b) OTHER DEFINITIONS. The following terms shall have the
meanings given the terms in the Sections set forth below:
TERM SECTION
---- -------
Arbitrator........................................................... 15(n)
Assumed Liabilities.................................................. 4
Claim................................................................ 12(e)
Claim Notice......................................................... 12(e)
Closing.............................................................. 5(a)
Closing Date......................................................... 5(a)
Company Plans........................................................ 6(j)
Damages.............................................................. 12(b)
Direct Claim......................................................... 12(e)
Disclosure Letter.................................................... 6
Excluded Assets 2(b)
Indemnified Party.................................................... 12(e)
Indemnifying Party................................................... 12(e)
Inventory............................................................ 3(a)
Jurisdictions........................................................ 6(i)(ii)
IRIS Indemnified Party............................................... 12(b)
IRIS Indemnified Parties............................................. 12(b)
Notices.............................................................. 15(a)
Provider............................................................. 15(n)
Purchase Price....................................................... 3(a)
Seller Indemnified Parties........................................... 12(c)
Seller Indemnified Party............................................. 12(c)
Stock Option and Pension Benefits.................................... 6(j)
Target Inventory Value............................................... 3(a)
Third Party Claim.................................................... 12(e)
Trademarks........................................................... 6(i)(ii)
2. SALE AND PURCHASE OF THE ASSETS.
(a) At the Closing and subject to the terms and
conditions herein, each of Quidel and the Company sells and agrees to transfer
and assign to IRIS, and IRIS purchases and agrees to accept from Quidel and the
Company, all of the Assets, for the Purchase Price provided for in Section 3 of
this Agreement.
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(b) Notwithstanding anything expressed or implied to the
contrary herein, the Assets shall not include any other assets of Quidel or the
Company whatsoever (the "EXCLUDED ASSETS"); the Assets shall include only the
specific assets expressly identified in SCHEDULE 1(a). Without limiting the
foregoing, the term Excluded Assets shall include, without limitation, all cash,
cash equivalents, accounts receivable, prepaid taxes, interests in insurance
policies, the use of the Quidel name and other trademarks or tradenames of
Quidel, except as expressly set forth herein. Quidel or the Company, as
applicable, shall retain all right, title and interest in and to the Excluded
Assets, and IRIS shall not assume any obligations relating to the Excluded
Assets, including, without limitation, any obligations relating to any remaining
warranties of any products distributed by Quidel or the Company on or prior to
the Closing Date. Notwithstanding the foregoing, IRIS agrees to provide customer
service and support for urinalysis test strip products distributed prior to the
Closing Date.
3. PURCHASE PRICE.
(a) PURCHASE PRICE. Subject to adjustment as provided in
Section 3(b) below, the purchase price to be paid by IRIS for the Assets (the
"PURCHASE PRICE") shall be US $500,000 provided that the aggregate value of the
inventory included within the Assets (the "INVENTORY") equals or exceeds US
$1,300,000 (the "TARGET INVENTORY VALUE"). Reasonably in advance before Closing,
Quidel and the Company shall inform IRIS in writing about the allocation of the
Purchase Price between Quidel and the Company.
(b) ADJUSTMENT OF PURCHASE PRICE. In the event that, as
of the Closing Date, the actual value of the Inventory is less than the Target
Inventory Value, the Purchase Price shall be adjusted downward, on a
dollar-for-dollar basis, by the amount at which the actual value of the
Inventory is less than the Target Inventory Value. The actual value of the
Inventory shall be determined in accordance with GAAP consistently applied as of
the Closing Date. In the event that IRIS is required at Closing (or at the end
of the month in which the Closing occurs) to pay employee payroll for any period
prior to the Closing Date, IRIS shall pro rate such payroll costs such that IRIS
is responsible for payment for all periods after the Closing Date, and Quidel
and the Company are responsible for payment for all periods prior to and
including the Closing Date, and IRIS may reduce the Purchase Price by any amount
it has paid on Quidel or the Company's behalf at the Closing.
(c) TRANSFER COSTS. If applicable, all transfer, sales
and use Taxes and fees arising from the transfer of the Assets shall be paid by
the party upon whom such Tax or fee is legally assessed, and each party to this
Agreement agrees to pay its portion, prorated as of the Closing Date, of state
and local personal property Taxes related to the Assets. In addition, although
it is the parties understanding that no German value added taxes ("VAT") apply
to the transactions contemplated hereunder, in the event that German VAT should
apply, IRIS agrees to pay German VAT in addition to such portion of the Purchase
Price that applies to the Assets sold and transferred by the Company, and the
Company shall issue a proper invoice to IRIS showing German VAT in this respect.
4. ASSUMPTION OF LIABILITIES FOR ASSETS. As a material part of
the consideration for the purchase and sale of the Assets, IRIS acknowledges and
agrees to assume, perform, pay and discharge (or to cause its Subsidiary
Designee to assume, perform, pay and discharge), subject to
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the terms and conditions herein, only the following liabilities and obligations
of Quidel and the Company (collectively, the "ASSUMED LIABILITIES"):
(a) all liabilities and obligations that arise out of or
relate to the ownership or use of the Assets or the operation of the urinalysis
test strip business after the Closing Date (except as set forth in Section
4(b)), including, without limitation, all liabilities and obligations that arise
after the Closing Date (except as set forth in Section 4(b)) under any Material
Contract and the Company IP; and
(b) all liabilities and obligations of Quidel or the
Company in connection with the employment of the employees of the Company
becoming due after the Closing Date, including, without limitation, any accrued
vacation, bonus, pension, insurance, severance or termination obligations or
benefits (regardless of when such benefits or obligations began accruing,
whether prior to the Closing Date or otherwise), and the parties acknowledge and
agree that the assumption of certain liabilities and obligations by IRIS under
this SECTION 4(b) accrue by operation of applicable law, namely Section 613a of
the German Civil Code ("BGB"). Quidel and the Company each agree that claims of
the Company's employees for any payment or benefit which is outstanding, due and
payable to such employee on or before the Closing Date shall not be included in
the Assumed Liabilities.
5. CLOSING AND DELIVERIES
(a) THE CLOSING. The closing of the purchase and sale of
the Assets pursuant to Section 2 of this Agreement (the "CLOSING") shall take
place on May 31, 2005 by electronic transfer of documents and funds coordinated
from the offices of Xxxxxx Xxxxxxxx & Markiles, LLP, 00000 Xxxxxxx Xxxx., Xxxxx
000, Xxxxxx, Xxxxxxxxxx, or at such other place or time as the parties to this
Agreement shall mutually agree upon in writing. The date of the Closing is
referred to in this Agreement as the "CLOSING DATE".
(b) DELIVERIES AT THE CLOSING. At the Closing: (A) IRIS
shall deliver to Quidel and the Company, as applicable (and Parent agrees to
cause IRIS to deliver to Quidel and the Company, as applicable) (i) the Purchase
Price by wire transfer to accounts designated by Quidel and the Company,
respectively, at least two business days prior to Closing, and (ii) such
executed documents and instruments as Quidel may reasonably request to evidence
the satisfaction of all conditions precedent set forth in Section 10 of this
Agreement; and (B) Quidel and the Company, as applicable, shall deliver or cause
to be delivered to IRIS such executed documents and instruments as IRIS may
reasonably request to evidence the satisfaction of all conditions precedent set
forth in Section 9 of this Agreement.
(c) FURTHER ASSURANCES. At the Closing, each party to
this Agreement shall deliver or cause to be delivered, as appropriate, such
further certificates, consents and other documents as may be necessary or as may
be reasonably requested by the other party to carry out the terms of this
Agreement.
6. REPRESENTATIONS AND WARRANTIES OF QUIDEL AND THE COMPANY.
Except as set forth in the disclosure letter (the "DISCLOSURE LETTER") delivered
by Quidel and the Company to IRIS concurrently with the execution and delivery
of this Agreement, which letter constitutes:
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(i) exceptions to particular representations and warranties of Quidel and the
Company (referring to the relevant Sections of this Agreement except to the
extent that the relevance to such other Sections is reasonably apparent on its
face) or (ii) descriptions or lists other items referred to in this Agreement,
Quidel and the Company, as applicable, represent and warrant to IRIS, as of the
date hereof, as follows:
(a) ORGANIZATION. Quidel is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company is a GmbH company duly organized, validly existing and in good
standing under the laws of Germany. Each of Quidel and the Company has all
requisite power and authority to own, lease and operate its respective
properties and assets, including the Assets, and to carry on the urinalysis test
strip business as now being conducted.
(b) AUTHORITY; ENFORCEABILITY AND EFFECT OF AGREEMENT.
Quidel has full corporate power and corporate authority to enter into, execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated by this Agreement. All acts and other proceedings
required to be taken by Quidel or the Company, as applicable, to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly and properly
taken. This Agreement constitutes a legal, valid and binding obligation of
Quidel or the Company, as the case may be, enforceable against Quidel and the
Company in accordance with its terms, except as enforceability may be limited by
the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights
generally, or the availability of equitable remedies.
(c) COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. Except
where the failure to be in compliance would not, individually or in the
aggregate, have a material adverse effect on the Assets, each of Quidel and the
Company and their respective employees, agents and representatives, are and at
all times have been in compliance in all material respects with (i) the Charter
Documents, (ii) all applicable Laws and Orders relating to either of them or the
respective conduct of their businesses or operations or the use of their
respective assets or properties. To Quidel's and the Company's Best Knowledge,
neither Quidel nor the Company has received, nor does either know of the
issuance of any written notice of any violation or alleged violation of any Law
or Order by any Governmental Authority.
(d) MATERIAL CONTRACTS. SCHEDULE 6(d) contains a true and
complete list of all Material Contracts. The Company has delivered or made
available to IRIS true and complete copies of all of the Material Contracts set
forth in SCHEDULE 6(d). The Company is not in default in any material respect
under any of the Material Contracts, nor to Quidel's or the Company's Best
Knowledge does any condition exist that with notice or lapse of time or both
would constitute a material default under any Material Contract or that would
give to any party to any Material Contract any right of termination, first
refusal, cancellation, acceleration or modification of any Material Contract. To
Quidel's or the Company's Best Knowledge, no other party to any Material
Contract is in default under any Material Contract in any material respect nor
does any condition exist that with notice or lapse of time or both would
constitute a default under any Material Contract.
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(e) NO CONFLICTS. Assuming all consent requirements are
satisfied as listed in SCHEDULE 6(l), the execution, delivery and performance by
Quidel and the Company of this Agreement and each other agreement to be
delivered by Quidel or the Company pursuant to this Agreement does not, and the
compliance by Quidel and the Company with the terms and provisions hereof and
thereof and the consummation of the transactions contemplated hereby and thereby
will not (i) violate or conflict with Quidel's or the Company's Charter
Documents; (ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification or acceleration of the effect of,
otherwise cause the termination of or give any other contracting party the right
to terminate or a right of first refusal, or constitute (or with notice or lapse
of time or both, constitute) a default under, any Material Contract, or result
in the creation of any Lien upon any of the Assets; or (iii) violate any Law or
Order against, or binding upon, Quidel, the Company or any of their respective
assets or properties that would, individually or in the aggregate, have a
material adverse effect on the Assets.
(f) LITIGATION AND PROCEEDINGS. Other than the Lateral
Flow Technology Lawsuit, there is no pending or, to Quidel's and the Company's
Best Knowledge, threatened Action (or basis for any Action) to which Quidel or
the Company is a party or involving any of Quidel's or the Company's assets or
properties, nor is Quidel or the Company subject to any Order, in each case,
which would, individually or in the aggregate, have a material adverse effect on
the Assets.
(g) INVENTORY. The Inventory has been valued in
accordance with GAAP consistently applied as of the Closing Date. The Company
has good and marketable title to the Inventory free and clear of all Liens.
(h) ASSETS.
(i) Quidel or the Company has good and
marketable title to the Assets, in each case free and clear of any Liens, other
than (A) Liens for current taxes not yet delinquent, (B) Liens imposed by Law,
(C) easements and restrictions which would not, individually or in the
aggregate, have a material adverse effect on the Assets, or (D) Liens set forth
on SCHEDULE 6(h).
(ii) THE EXPRESS REPRESENTATIONS AND WARRANTIES
DESCRIBED IN THIS SECTION 6 CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE
ASSETS AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF
LAW OR OTHERWISE, WITH RESPECT TO THE ASSETS. NEITHER QUIDEL NOR THE COMPANY
MAKE ANY REPRESENTATION OR WARRANTY OF ANY OTHER KIND OR NATURE AND QUIDEL AND
THE COMPANY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED
AND WHETHER IN FACT OR BY OPERATION OF LAW, WITH RESPECT TO THE ASSETS,
INCLUDING WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR
ANY OTHER MATTER. WITHOUT PREJUDICE TO THE APPLICABLE LAW UNDER SECTION 15(f)
HEREIN, IRIS, QUIDEL AND THE COMPANY FOR THE AVOIDANCE OF DOUBT HEREBY AGREE
THAT THE SYSTEM OF REPRESENTATIONS AND WARRANTIES IMPLEMENTED OF QUIDEL AND THE
COMPANY IN THIS AGREEMENT ARE INDEPENDENT FROM AND REPLACE THE STATUTORY SYSTEM
OF WARRANTIES UNDER THE GERMAN CIVIL CODE ("BGB"), IF APPLICABLE. THE PARTIES IN
PARTICULAR AGREE THAT (i) THE REPRESENTATIONS AND WARRANTIES DESCRIBED IN THIS
SECTION 6 SHALL NOT CONSTITUTE GUARANTEES FOR THE CONDITION
("BESCHAFFENHEITSGARANTIE") PURSUANT TO SECTIONS 443(1) AND 444 OF THE GERMAN
CIVIL CODE ("BGB"), (ii) THE PROVISIONS HEREIN REGARDING CONSEQUENCES OF A
BREACH
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OF THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT INCLUDING, WITHOUT
LIMITATION, THE RESPECTIVE LIMITATIONS FOR ANY SUCH BREACH FORM AN INTEGRAL PART
OF THIS AGREEMENT AND THE RESPECTIVE REPRESENTATIONS AND WARRANTIES
("BESTANDTEILE DER GARANTIEERKLARUNGEN"), AND (iii) QUIDEL AND THE COMPANY ARE
ONLY WILLING TO GRANT THE REPRESENTATIONS AND WARRANTIES HEREIN ON THE BASIS
("AUF DER GESCHAFTSGRUNDLAGE") THAT SECTION 444 OF THE GERMAN CIVIL CODE ("BGB")
DOES NOT APPLY.
(i) INTELLECTUAL PROPERTY.
(i) SCHEDULE 6(i) contains a true and complete
list of Company IP. Except as indicated on SCHEDULE 6(i), to the Best Knowledge
of Quidel and the Company, the Company IP constitutes all IP owned, licensed or
otherwise used by the Company to conduct its urinalysis test strip business as
now conducted. Except as indicated on SCHEDULE 6(i), all technology currently
utilized by the Company in connection with its urinalysis test strip business
operations is owned or licensed by, or has been transferred to the Company or is
included within the Assets. Except for the Lateral Flow Technology Lawsuit,
neither Quidel nor the Company has received any written notice of infringement
or other written complaint to the effect that the Assets, or any portion
thereof, violate or infringe the IP or any other proprietary rights of others
nor to the Best Knowledge of Quidel or the Company do the Assets, or any portion
thereof, violate or infringe the IP or other proprietary rights of any third
party. Except as set forth on SCHEDULE 6(i), the Company has full right and
authority to utilize the Company IP. Except as indicated on SCHEDULE 6(i) and to
the Best Knowledge of Quidel and the Company, no royalties, honoraria, damages
or fees are payable by the Company to other Persons by reason of the ownership
or use by the Company of any Company IP. To Quidel's and the Company's Best
Knowledge, no Person has interfered with, infringed upon, misappropriated, or
otherwise violated any Company IP right. Except as set forth on SCHEDULE 6(i),
the Company has not transferred to any Person any right to Exploit any Company
IP.
(ii) The Company or Quidel is the sole and
exclusive owner (legal and beneficial) of the trademarks identified on SCHEDULE
6(i) (the "TRADEMARKS") in any and all forms and embodiments thereof in each
Jurisdiction (as defined below), and to the goodwill attached to the Trademark
in each Jurisdiction, in the class or classes identified on SCHEDULE 6(i) with
respect to such Jurisdiction. SCHEDULE 6(i) sets forth a list of all countries,
states or other jurisdictions in which each Trademark is registered or in which
registration applications are pending (the "JURISDICTIONS"), the date(s) of
registration (or application), the class(es) of registration and the name of the
Person in which each Trademark is registered. To Quidel's and the Company's Best
Knowledge, no Person other than the Company is using any Trademark anywhere else
in the world in connection with the Exploitation of In-Vitro Diagnostic Urine
Analysis. The Company has not transferred to any Person the right to use any
Trademark in connection with the Exploitation of products anywhere in the world.
To Quidel's and the Company's Best Knowledge, the use by IRIS of each Company
Trademark for Exploitation in the registered classes will not infringe any IP
right of any Person in any Jurisdiction in which such Trademark is registered,
and nothing has come to the attention of Quidel that the use by IRIS of each
Trademark for Exploitation in the registered classes will infringe any IP right
of any Person anywhere else in the world.
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(iii) During a transition period of up to nine (9)
months and in accordance with Section 11(b) herein, IRIS will have the right to
continue the use of Quidel's QuickVue brand name.
(j) EMPLOYEE BENEFITS. The Company has delivered to IRIS
true and correct copies, and SCHEDULE 6(j) sets forth a list, of all plans and
other arrangements (including company practice, shop agreements, collective
bargaining agreements and employment contracts with the Company's employees, and
directors) involving direct or indirect compensation or benefits to directors or
consultants or providing employee benefits to employees of the Company who by
operation of applicable Law will be transferred to IRIS as part of the Assets,
including, without limitation, all bonus including anniversary bonus, stock
option, stock purchase, incentive, deferred compensation, supplemental
retirement, pension obligations, severance and other similar fringe or employee
benefit plans, and all employment or executive compensation agreements
(collectively, the "COMPANY PLANS"). All Company Plans comply with and are and
have been operated in material compliance with applicable Laws, except for any
failure to comply which would not have a material adverse effect on IRIS after
the Closing. Schedule 6(j) also sets forth one option report for each employee
that currently has outstanding stock options as well as the amount, as of the
date hereof, of any accrued obligations of the Company under any incentive,
deferred compensation or supplemental retirement plan between the Company and
the employees and the Company's annual payment with respect to pension
obligations ("STOCK OPTION AND PENSION BENEFITS").
(k) EMPLOYEE RELATIONS. None of the Company's employees
are being represented by a workers' council with respect to their employment
with the Company and the Company is not, and has not been, engaged in, and has
not planned and is not planning to engage in, any arrangement or agreement with
any union or collective bargaining group or association. There is no organizing
activity involving the Company that is pending or threatened by any labor
organization or group of employees. To Quidel's and the Company's Best
Knowledge, there are no pending or, to Quidel's and the Company's Best
Knowledge, threatened, employee-related charges or complaints against the
Company before any Governmental Authority. The Company has not at any time since
its formation had, nor, to Quidel's and the Company's Best Knowledge, is there
now threatened, a strike, picket, work stoppage, work slowdown or other labor
trouble that had or may have a material adverse effect on the transactions
contemplated by this Agreement. The Company has not entered into any contracts
with freelancers who - pursuant to mandatory German law - must actually be
considered to be employees (no fictitious self-employment). None of the
Company's employees are currently on maternity leave or leave for a disability.
(l) NO CONSENTS REQUIRED. Except as set forth on SCHEDULE
6(l), there are no approvals, authorizations, consents, orders or other actions
of, or filings with, any Person (including any Governmental Authority) that are
required to be obtained or made by the Company in connection with the execution
of, and the consummation of the transactions contemplated under, this Agreement
or to permit the continuation of the Material Contracts, upon the same terms and
conditions as are contained in such Material Contracts, following consummation
of the transactions contemplated by this Agreement.
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(m) BROKERS. Neither Quidel nor the Company has retained
or otherwise engaged or employed any broker, finder or any other person, or paid
or agreed to pay any fee or commission to any agent, broker, finder or other
person, for or on account of acting as a finder or broker in connection with
this Agreement or the transactions contemplated hereby.
(n) MATERIAL MISSTATEMENTS AND OMISSIONS. No
representations and warranties by Quidel in this Agreement, nor any exhibit,
schedule or certificate furnished by Quidel or the Company to IRIS pursuant to
this Agreement, contains or will contain any untrue statement of material fact
or omits or will omit to state any material fact necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
7. REPRESENTATIONS AND WARRANTIES OF IRIS.
IRIS represents and warrants to Quidel and the Company, as of
the date hereof, as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. IRIS is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and corporate
authority to own, lease and operate its properties and assets and to carry on
its business as now being conducted.
(b) AUTHORITY; ENFORCEABILITY; EFFECT OF AGREEMENT.
(i) IRIS has full corporate power and corporate
authority to enter into, execute and deliver this Agreement and perform its
obligations hereunder. All acts and other proceedings required to be taken by
IRIS to authorize the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this Agreement have been
duly and properly taken. This Agreement has been duly executed and delivered by
IRIS and constitutes a legal, valid and binding obligation of IRIS and is
enforceable against IRIS in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, or the
availability of equitable remedies.
(ii) The execution and delivery by IRIS of this
Agreement and each other agreement to be delivered by IRIS pursuant to this
Agreement do not, and the compliance by IRIS with the terms and provisions
hereof and thereof and the consummation of the transactions contemplated hereby
and thereby will not, (A) conflict with or result in a breach or default under
any of the terms, conditions or provisions of any Contract to which IRIS is a
party or otherwise bound, or to which any asset or property of IRIS is subject;
or (B) violate any Law applicable to IRIS; (C) result in the creation or
imposition of any Lien on any asset of IRIS; or (D) violate or conflict with
IRIS' certificate of incorporation or bylaws.
(c) BROKERS. IRIS has not retained or otherwise engaged
or employed any broker, finder or any other person, or paid or agreed to pay any
fee or commission to any agent, broker, finder or other person, for or on
account of acting as a finder or broker in connection with this Agreement or the
transactions contemplated hereby.
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(d) NO CONSENTS REQUIRED. There are no approvals,
authorizations, consents, orders or other actions of, or filings with, any
Person (including any Governmental Authority) that are required to be obtained
or made by IRIS in connection with the execution of, and the consummation of the
transactions contemplated under, this Agreement, including, without limitation,
the effective payment to Seller of the Purchase Price for the Assets.
(e) ACKNOWLEDGMENT. IRIS acknowledges that neither Quidel
nor the Company has made any representation or warranty, expressed or implied,
as to the accuracy or completeness of any information regarding Quidel, the
Company or the Assets (including but not limited to the Inventory) not included
in this Agreement or the schedules hereto.
8. CONDUCT AND TRANSACTIONS PRIOR TO CLOSING.
(a) CONDUCT OF BUSINESS. During the period commencing on
the date of execution of this Agreement and ending on the earlier of the Closing
Date or the termination of this Agreement pursuant to its terms, unless IRIS
shall otherwise agree in writing, Quidel shall:
(i) cause the Company to carry on its business
in substantially the same manner as heretofore conducted, and shall preserve
intact its present business organization, use its reasonable best efforts to
keep available the services of its key employees and preserve its relationships
with material customers and suppliers and others having business dealings with
it to the end that their goodwill and on-going business shall be unimpaired at
the Closing Date;
(ii) cause the Company not to (A) adopt any
employee benefit plan, (B) amend any employee benefit plan in a manner that
significantly increases the benefits thereunder or (C) make any loans to Quidel;
(iii) cause the Company not to sell, lease or
otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of
the Assets, except in the ordinary course of business as currently practiced;
(iv) cause the Company not to permit, allow or
suffer any of the Assets to be subject to any Liens, except in the ordinary
course of business as currently practiced;
(v) cause the Company not to enter into any
agreement, arrangement or undertaking with respect to any employee relating to
the payment of any bonus, profit-sharing or special compensation or any increase
in the compensation payable to an employee (other than as required by law or
contract) if any such payment will be incurred by IRIS;
(vi) cause the Company not to sell, assign,
license or transfer or agree to sell, assign, license or transfer (with or
without consideration) any of the Company IP or any interest therein;
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(vii) cause the Company to duly comply with all
Laws applicable to the Company, except where the failure so to comply would not
have a material effect on the Assets; and
(viii) cause the Company to maintain its respective
books, records and accounts in the usual, regular and ordinary manner, on a
basis consistent in all material respects with prior periods.
(b) INSPECTION OF RECORDS. Between the date of this
Agreement and the Closing, Quidel shall cause the Company to allow the duly
authorized officers, attorneys, accountants and other representatives of IRIS
access at all reasonable times to the records and files, correspondence, audits
and properties, as well as to all information in each case relating the business
and affairs of the Company.
(c) EMPLOYEES. SCHEDULE 8(c) lists the employee
number,job title, current base salary or hourly wage and date of hire as well
as, where relevant, the date of the beginning of any previous employment which
the Company has had to acknowledge as seniority of employees actively employed
by the Company (i.e. of employees whose employment legally exists) including
individuals on short-term disability who were so employed immediately before
their disability (collectively, the "EMPLOYEES"). As to any individual on
short-term disability, SCHEDULE 8(c) indicates the reason for such absence and
the date the individual is reasonably expected to return to active employment.
SCHEDULE 8(c) also indicates the accumulated vacation and sick pay accrued for
each Employee as of the date of this Agreement, and a good faith estimate of the
accumulated vacation and sick pay to be accrued for each Employee as of the
Closing Date.
(d) BEST EFFORTS. Between the date of this Agreement and
the Closing, each of the parties to this Agreement will use its or his best
efforts to cause the conditions to the obligations of the other parties set
forth in Sections 9 or 10 of this Agreement, as the case may be, to be
satisfied.
9. CONDITIONS TO THE OBLIGATIONS OF IRIS.
The obligation of IRIS to complete the purchase of the Assets
and to take the other actions required to be taken by IRIS at the Closing is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by IRIS in writing, in whole or
in part):
(a) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Quidel and the Company (contained in this Agreement, any
exhibit or schedule hereto, or any certificate, instrument or other writing
delivered to IRIS or its representatives by the Company or Quidel, or any of
their respective representatives) shall be true and correct on the Closing Date
with the same force and effect as though made on and as of the Closing Date
(i.e., with respect to a representation that a state of facts exists on or as of
the date hereof, it is a condition that such state of facts exists in all
material respects on or as of the Closing Date, and with respect to a
representation that a state of facts has or has not changed between a date prior
to the date hereof and the date hereof, it is a condition that such state of
facts has or has not changed between such
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prior date and the Closing Date), except as affected by transactions
contemplated hereby and thereby and except that any such representation or
warranty made as of a specified date (other than the date of this Agreement)
shall only need to have been true on and as of such date;
(b) PERFORMANCE. Quidel shall have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by Quidel on or prior to the Closing Date;
(c) CONSENTS. All consents of third parties identified in
the Disclosure Letter as exceptions to the representations and warranties
contained in Section 6(l) shall have been obtained and shall have been furnished
to IRIS;
(d) ABSENCE OF ADVERSE CHANGE. From the date of this
Agreement until the Closing Date, (i) there shall not have been any material
adverse change to any of the Assets, and (ii) no Action shall have been taken
which could have, individually or in the aggregate with other similar events, a
material adverse effect on the Assets;
(e) DELIVERY OF XXXX OF SALE. Quidel and the Company
shall have delivered to IRIS a Xxxx of Sale for the Assets (the "XXXX OF SALE")
substantially in the form attached hereto as EXHIBIT A;
(f) ASSIGNMENT AND ASSUMPTION AGREEMENT. Quidel and the
Company shall have delivered to IRIS an assignment and assumption agreement
related to the Assets (the "ASSIGNMENT AND ASSUMPTION AGREEMENT") substantially
in the form attached hereto as EXHIBIT B;
(g) ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT. The
Company shall have delivered to IRIS an assignment and assumption of lease
agreement related to that certain lease agreement by and between Dade Behring
and the Company (the "ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT")
substantially in the form attached hereto as EXHIBIT C; and
(h) EMPLOYEE CONSENTS. In relation to each of the
Company's employees whose employment by operation of law is transferred to IRIS
at the Closing, one of the following shall apply: (i) the Company shall have
received a consent in writing by the employee to the transfer of his or her
employment relationship from the Company to IRIS or (ii) neither the Company nor
Quidel within a one month period following receipt of the Information Letter (as
defined below) by the employee shall have received an objection from the
employee in writing as to the transfer of his or her employment relationship
from the Company to IRIS;
(i) MANAGING DIRECTOR. IRIS shall have entered into an
employment agreement with the Managing Director of the Company on terms
satisfactory to IRIS with such agreement to be effective as of the Closing.
Notwithstanding the foregoing, IRIS acknowledges and agrees that the current
employment of such managing director constitutes an Assumed Liability of IRIS
after Closing; and
(j) OTHER MATTERS. All corporate and other proceedings
and actions taken in connection with this Agreement and all agreements,
instruments and documents mentioned in
- 14 -
this Agreement or incident to any such transactions shall be reasonably
satisfactory in form and substance to IRIS and its counsel.
10. CONDITIONS TO THE OBLIGATIONS OF QUIDEL AND THE COMPANY.
The obligation of Quidel and the Company to complete the sale
of the Assets and to take the other actions required to be taken by Quidel and
the Company at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by
Quidel and the Company in writing, in whole or in part):
(a) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of IRIS (contained in this Agreement, any exhibit or schedule
hereto, or any certificate, instrument or other writing delivered to the Company
or Quidel or their respective representatives by IRIS, or any of its
representatives) shall be true and correct on the Closing Date with the same
force and effect as though made on and as of the Closing Date (i.e., with
respect to a representation that a state of facts exists on or as of the date
hereof, it is a condition that such state of facts exists in all material
respects on or as of the Closing Date, and with respect to a representation that
a state of facts has or has not changed between a date prior to the date hereof
and the date hereof, it is a condition that such state of facts has or has not
changed between such prior date and the Closing Date), except as affected by
transactions contemplated hereby and thereby and except that any such
representation or warranty made as of a specified date (other than the date of
this Agreement) shall only need to have been true on and as of such date;
(b) PERFORMANCE. IRIS shall have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by IRIS on or prior to the Closing Date;
(c) NO ACTION OR PROCEEDING. There shall be no
preliminary or permanent injunction or other order issued by any Governmental
Authority that declares this Agreement invalid in any material respect or
prevents or would be violated by the consummation of the transactions
contemplated hereby. There shall be no pending or threatened suit, action or
other proceeding by any Governmental Authority or other Person which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this Agreement;
(d) XXXX OF SALE. IRIS shall have countersigned and
delivered to Quidel and the Company the Xxxx of Sale;
(e) ASSIGNMENT AND ASSUMPTION AGREEMENT. IRIS shall have
countersigned and delivered to Quidel the Assignment and Assumption Agreement
(f) ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT. IRIS
shall have countersigned and delivered to Quidel and the Company the Assignment
and Assumption of Lease Agreement;
(g) EMPLOYEE CONSENTS. In relation to each of the
Company's employees whose employment by operation of law is transferred to IRIS
at the Closing, one of the following shall apply: (i) the Company shall have
received a consent in writing by the employee to the transfer
- 15 -
of his or her employment relationship from the Company to IRIS or (ii) neither
the Company nor Quidel within a one month period following receipt of the
Information Letter (as defined below) by the employee shall have received an
objection from the employee in writing as to the transfer of his or her
employment relationship from the Company to IRIS;
(h) CONSENTS. All consents of third parties identified in
the Disclosure Letter as exceptions to the representations and warranties
contained in Section 6(l) shall have been obtained; and
(i) OTHER MATTERS. All corporate and other proceedings
and actions taken in connection with this Agreement and all agreements,
instruments and documents mentioned in this Agreement or incident to any such
transactions shall be reasonably satisfactory in form and substance to Quidel
and its counsel.
11. FURTHER AGREEMENTS OF THE PARTIES.
(a) CONFIDENTIALITY.
(i) IRIS and Quidel hereby acknowledge to and
agree with the other that any and all information which has been disclosed by
one to the other, its directors, officers, employees, consultants, agents and,
if applicable, shareholders during the discussions and negotiations leading to
the execution of this Agreement, and all information to be disclosed by one to
the other, its directors, officers, employees, consultants and agents and, if
applicable, shareholders, during the period commencing on the date of execution
of this Agreement through the Closing or termination of this Agreement, shall
constitute confidential information and trade secrets of the disclosing party,
and as such are secret, confidential and unique and, for purposes of this
Agreement, constitute the exclusive confidential information, trade secrets and
property of such party. Such information has been made known and available to
the other party and its respective employees, consultants and agents strictly in
connection with the negotiation and execution of this Agreement and the
consummation of the transactions provided for herein. Each party hereby
acknowledges and agrees that any use or disclosure of any such confidential
information or trade secrets, other than pursuant to this Agreement, would be
wrongful and would cause irreparable injury to the other. Accordingly, each
party hereby expressly agrees, for itself and on behalf of its shareholders and
directors, if any, and its principal officers, managers, employees, agents,
consultants and representatives, that it and they will not at any time prior to
the Closing or at any time thereafter, use or disclose, other than in accordance
with the terms and provisions of this Agreement, any of such confidential
information or trade secrets; PROVIDED, HOWEVER, that no provision of this
SECTION 11(a) shall in any manner whatsoever prevent or inhibit IRIS from using
or disclosing any such confidential information relating to the Assets or its
business in any manner IRIS shall deem fit from and after the Closing. In
addition and except as provided herein, Quidel agrees, for itself and its
Affiliates, officers, managers, employees, agents, consultants and
representatives, that it will not at any time from and after the Closing Date
use or disclose any such confidential information which either (i) concerns IRIS
or its respective business or operations or (ii) relates to the Assets.
(ii) Notwithstanding anything contained in this
SECTION 11(a) to the contrary, any of IRIS, the Company or Quidel may use or
disclose such confidential information
- 16 -
or secrets of the other without restriction if such information or secrets (i)
were or are available to such party on a non-confidential basis from a source
other than the other party, or (ii) were or become generally available to the
public (other than as a result of an impermissible disclosure by such party or
its Affiliates); PROVIDED, that if either party is requested or required (by
oral question, interrogatories, requests for information or documents, subpoena
or similar process) to disclose any of such information or secrets of the other,
such disclosure be made without liability hereunder (although notice of such
request or requirement shall be given to the other party so that, if
practicable, the other party may seek a protective order against such
disclosure). In addition and notwithstanding anything to the contrary herein,
IRIS acknowledges and agrees that Quidel and the Company may use such
confidential information or trades secrets relating to the Company or its
business in connection with the Lateral Flow Technology Lawsuit as may be
necessary, as determined in Quidel's reasonable discretion; PROVIDED, that
Quidel agrees to provide prompt written notice of any such use to IRIS in the
event such information relates to the Assets.
(iii) Each party acknowledges that, in the event
of a violation by the other of the terms and provisions of this SECTION 11(a),
the remedies at law would not be adequate; and accordingly, in such event such
party may proceed to protect and enforce its rights under this SECTION 11(a) by
a suit in equity for specific performance and temporary, preliminary and
permanent injunctive relief from violation of any of the provisions of this
SECTION 11(a) from any court of competent jurisdiction without the necessity of
proving the amount of any actual damages to the party resulting from the breach.
(b) LICENSE OF QUICKVUE. Quidel hereby grants to IRIS a
limited, non-exclusive, non-sublicensable, non-transferable, non-assignable,
royalty-free license from the Closing Date until the date that is nine (9)
months from the Closing Date, to use, market, promote, reproduce and display the
trademark "QuickVue" solely as currently incorporated in the Company products
and for no other purpose.
(c) TRANSITION SERVICES. Quidel agrees after the Closing
to provide certain transition services (predominantly those that are currently
performed by employees of Quidel), including accounting, information technology,
and other related "back-office" functions as IRIS may reasonably request, for an
initial period of three (3) months following the Closing Date, provided,
however, that IRIS shall reimburse Quidel for its actual costs and expenses
relating to providing such transition services (including without limitation
employee salary costs, travel, third-party costs and expenses, etc.).
(d) AUDIT COOPERATION. Quidel shall provide, as soon as
reasonably practicable, at its own expense, such assistance as may be reasonably
requested by IRIS in connection with IRIS' preparation of financial statements
of the Company and pro forma financial statements of the Company should IRIS in
its reasonable judgment be required to file such financial statements relating
to the Company under and pursuant to Form 8-K under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT") and Rule 3-05 of Regulation S-X of the
General Rules and Regulations under the Exchange Act.
(e) EMPLOYEES.
- 17 -
(i) Quidel, the Company and IRIS understand and
agree that all employment agreements of all employees of the Company and any and
all rights and obligations thereunder by operation of applicable law will
automatically transfer to IRIS as employer together with the acquisition of the
Assets under this Agreement by IRIS. Without undue delay following execution of
this Agreement, the Company and IRIS shall execute a bilingual German and
English letter of information meeting the requirements pursuant to Section 613a
para. 5 of the German Civil Code ("BGB"), describing this transaction as
anticipated under this Agreement, substantially in the form attached hereto as
EXHIBIT D in relation to each employee of the Company (the "INFORMATION
LETTER"), and the Company shall deliver to each of its employees such
Information Letter and obtain a confirmation in writing of the receipt of such
Information Letter from each employee.
(ii) During the period from the Closing Date
through December 31, 2005, IRIS agrees that so long as a certain designated
employee shall continue in the employ of IRIS during such period, such employee
shall be instructed by IRIS to continue to perform certain services for Quidel
consistent with such employee's job responsibilities prior to the Closing Date.
Such employee will remain subject to IRIS' direction and control. Quidel and
IRIS agree that Quidel shall pay for such employee's services under this SECTION
11(d)(ii) at IRIS' cost for such employee's salary and consistent with such
employee's current terms of employment. Quidel shall have the right to terminate
such services at anytime prior to December 31, 2005, and Quidel agrees that
should IRIS elect to terminate such designated employee upon the termination of
services under this SECTION 11(d)(ii) (whether terminated at December 31, 2005
or if terminated earlier by Quidel prior to December 31, 2005) Quidel shall pay
applicable statutory severance benefits to such employee upon termination of
employment under these circumstances.
(f) CE XXXX REPRESENTATIVE AND CORPORATE HEADQUARTERS.
Notwithstanding anything to the contrary herein, IRIS agrees that for a period
from the Closing Date through June 30, 2006, Quidel shall be permitted in its
discretion to engage any current employee of the Company to serve as a
representative for purposes of acting as a CE xxxx representative on behalf of
Quidel. In addition, in connection with services provided by such
representative, IRIS agrees to allow Quidel in its discretion to reference the
Company's current facility located on the Dade Behring Campus in Marburg,
Germany, Building Number M213 (the "FACILITY") as the corporate headquarters for
the Company after the Closing Date through June 30, 2006 and agrees to maintain
a dedicated phone line for Quidel's use in this regard with the costs of such
phone line to be paid by Quidel.
(g) BOOKS AND RECORDS. All books, records and files of
the Company relating to the operation of the Company's business shall remain the
property of the Company. Notwithstanding the foregoing, (i) in the event that
the Company desires to remove such records from the Facility prior to the date
that is one year from the Closing Date, it shall provide IRIS (at IRIS' cost)
with a copy of all such records, unless otherwise agreed to by the parties, and
(ii) all manufacturing and quality control records and documentation and any
other documentation included within the Assets shall be transferred to IRIS
hereunder. Each of the parties hereto shall, upon the reasonable request of the
other, provide access (during normal business hours) to such books, records and
files. The parties hereto shall maintain the books, records and files in
- 18 -
their respective possession for a period consistent with their respective record
retention policies and practices.
(h) EXPENSES. Quidel shall pay all of the costs and
expenses of Quidel and the Company incurred in connection with this Agreement
and the consummation of the transactions contemplated hereby, including, without
limitation, the fees and expenses of their counsel, accountants and other
professionals. IRIS shall pay all of its costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the fees and expenses of its
counsel, accountants and other professionals.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Agreement or made in any document
delivered pursuant to this Agreement by or on behalf of any party shall survive
the execution and delivery of this Agreement and the Closing, regardless of
notice of or any investigation or right of investigation made prior to or after
the date of this Agreement by or on behalf of any party, and shall terminate and
expire one (1) year following the Closing Date after which date they shall be of
no further force or effect, and no party shall be liable to the other party
under any representation or warranty after such time (whether pursuant to the
indemnification obligations under this Section 12 or otherwise). Notwithstanding
the foregoing, the representations and warranties made by Quidel and the Company
in SECTIONS 6(a), (b), and (m) of this Agreement, and the representations and
warranties made by IRIS in SECTIONS 7(a), (b), and (c) of this Agreement shall
not terminate or expire, and the representations and warranties made by Quidel
and the Company in Section 6(h)(i) shall terminate and expire three (3) years
following the Closing Date.
(b) INDEMNIFICATION BY QUIDEL. Subject to the limits set
forth in this Section 12 below, Quidel shall indemnify, save and hold harmless
IRIS, its Affiliates and each of their respective officers, directors,
employees, agents and representatives, and each of their successors and assigns
(individually, a "IRIS INDEMNIFIED PARTY" and collectively, the "IRIS
INDEMNIFIED PARTIES") from and against any and all costs, losses, claims,
liabilities, fines, penalties, consequential damages (other than lost profits),
and expenses (including interest which may be imposed in connection therewith
and court costs and reasonable fees and disbursements of counsel) ("DAMAGES")
incurred in connection with, arising out of, resulting from or related to:
(i) any breach of, or any inaccuracy in any of,
the representations or warranties made by Quidel in this Agreement, any exhibit
or schedule to this Agreement or any certificate, instrument or writing
delivered in connection with this Agreement or in connection with any exhibit or
schedule to this Agreement;
(ii) the Excluded Assets or any liabilities of
Quidel or the Company other than the Assumed Liabilities;
(iii) the Lateral Flow Technology Lawsuit;
- 19 -
(iv) any breach or nonperformance of any
covenant, obligation or agreement made by Quidel in this Agreement, any exhibit
or schedule to this Agreement or any certificate, instrument or writing
delivered in connection with this Agreement or in connection with any exhibit or
schedule to this Agreement;
(v) all liabilities of or claims against IRIS
Indemnified Parties of any nature, whether accrued, absolute, contingent or
otherwise, relating to any sales representative or independent contractor of the
Company which liabilities or claims are based on any Contract, or alleged
Contract between the Company and such sales representative or independent
contractor or any obligation or benefit alleged to have accrued to such sales
representative or independent contractor, in each case, prior to the Closing
Date;
(vi) any Action, compromise, settlement,
assessment or judgment arising out of or related to any of the matters
indemnified against in this SECTION 12(b); PROVIDED, HOWEVER, that Quidel shall
not be obligated to indemnify a IRIS Indemnified Party and hold it or him
harmless under this SECTION 12(b) with respect to any settlement of a claim to
which Quidel has not consented, which consent shall not unreasonably be
withheld. If, by reason of the claim of any third Person relating to any of the
matters subject to indemnification under this SECTION 12(b), a Lien, attachment,
garnishment or execution is placed upon any of the property or assets of any
IRIS Indemnified Party, Quidel also shall, promptly upon demand, furnish an
indemnity bond satisfactory to IRIS Indemnified Party to obtain the prompt
release of such lien, attachment, garnishment or execution.
(c) INDEMNIFICATION BY PARENT AND IRIS. Parent and IRIS
shall indemnify, save and hold harmless Quidel, its Affiliates, including
without limitation the Company, and each of their respective officers,
directors, employees, agents and representatives, and each of their successors
and assigns (individually, a "SELLER INDEMNIFIED PARTY" and collectively, the
"SELLER INDEMNIFIED PARTIES") from and against any and all Damages incurred in
connection with, arising out of, resulting from or related to:
(i) any breach of, or any inaccuracy in any of,
the representations or warranties made by IRIS in this Agreement, any exhibit or
schedule to this Agreement or any certificate, instrument or writing delivered
in connection with this Agreement or in connection with any exhibit or schedule
to this Agreement;
(ii) any breach or nonperformance of any
covenant, obligation or agreement made by IRIS or Parent in this Agreement, any
exhibit or schedule to this Agreement or any certificate, instrument or writing
delivered in connection with this Agreement or in connection with any exhibit or
schedule to this Agreement;
(iii) any acts, omissions or events relating to
the ownership of the Assets or the operation of the urinalysis test strip
business after the Closing Date;
(iv) any Action, compromise, settlement,
assessment or judgment arising out of or incidental to any of the matters
indemnified against in this SECTION 12(c); PROVIDED, HOWEVER, that Parent and
IRIS shall not be obligated to indemnify a Seller Indemnified Party and hold it
or him harmless under this SECTION 12(c) with respect to any settlement of a
- 20 -
claim to which IRIS has not consented, which consent shall not unreasonably be
withheld. If, by reason of the claim of any third Person relating to any of the
matters subject to indemnification under this SECTION 12(c), a Lien, attachment,
garnishment or execution is placed upon any of the property or assets of any
Seller Indemnified Party, Parent or IRIS shall also, promptly upon demand,
furnish an indemnity bond satisfactory to the Seller Indemnified Party to obtain
the prompt release of such lien, attachment, garnishment or execution; or
(v) the Assumed Obligations.
(d) LIMITATION ON INDEMNIFICATION.
(i) Neither IRIS Indemnified Parties nor Quidel
Indemnified Parties shall be entitled to recover under Sections 12(b) or (c)
unless a Claim for Damages has been delivered to the Indemnifying Party on or
prior to the first anniversary of the Closing Date, except for: (a) Claims based
upon the representations and warranties made by Quidel and the Company in
SECTIONS 6(a), (b) and (m) of this Agreement or the representations and
warranties made by IRIS in SECTIONS 7(a), (b) and (c) of this Agreement which
shall not be limited by time and (b) Claims based upon the representations and
warranties made by Quidel and the Company in SECTION 6(h)(i) which must be
delivered on or prior to the third anniversary of the Closing Date.
(ii) Quidel shall have no obligation to indemnify
any IRIS Indemnified Party pursuant to SECTION 12(b) (other than any obligation
to indemnify arising from any breach by Quidel or the Company of any
representation or warranty set forth in SECTIONS 6(a), (b), (j) (but only to the
extent that it relates to the Stock Option and Pension Benefits on SCHEDULE
6(j)) and (m)) unless IRIS Indemnified Parties have suffered Damages in an
aggregate amount attributable to all Claims pursuant to SECTION 12(b) in excess
of $50,000 (the "THRESHOLD"). Once the aggregate amount of Damages arising out
of SECTION 12(b) exceeds the Threshold, IRIS Indemnified Parties shall be
entitled to recover the full amount of all Damages in excess of the Threshold.
(iii) Notwithstanding anything to the contrary
herein, the maximum aggregate liability of Quidel to IRIS Indemnified Parties
for all Claims arising under Section 12(b) shall equal sixty percent (60%) of
the Purchase Price (the "MAXIMUM LIABILITY") (except, in the event of a Claim
arising from a breach of any representation or warranty set forth in Sections
6(h)(i) and 6(j) (but only to the extent that it relates to the Stock Option and
Pension Benefits on SCHEDULE 6(j)), the Maximum Liability shall be increased by
the amount of such claims based upon Sections 6(h)(i) and 6(j) (but only to the
extent that it relates to the Stock Option and Pension Benefits on SCHEDULE
6(j)); PROVIDED that the Maximum Liability for claims arising under Section
12(b) shall in no event be greater than the Purchase Price); PROVIDED, HOWEVER,
that Quidel shall be liable for, and indemnify and hold IRIS Indemnified Parties
harmless from all Damages arising out of, in connection with or in any way
related to the Lateral Flow Technology Lawsuit. For the sake of clarity and
except with respect to Quidel's indemnification obligations relating to the
Lateral Flow Technology Lawsuit, in no event shall Quidel's maximum aggregate
liability to IRIS Indemnified Parties for any and all claims arising under
Section 12(b) exceed the Purchase Price.
- 21 -
(iv) No IRIS Indemnified Party shall be entitled
to indemnification under this SECTION 12 for Damages (A) to the extent caused by
(1) a willful or grossly negligent act of such IRIS Indemnified Party or (2) a
breach by such IRIS Indemnified Party of any representation, warranty, covenant
or other agreement set forth in this Agreement or (B) covered by insurance
proceeds from insurance owned and paid for by Quidel prior to the Closing, to
the extent that an IRIS Indemnified Party actually receives such insurance
proceeds to cover such Damages. No Quidel Indemnified Party shall be entitled to
indemnification under this SECTION 12 for Damages (A) to the extent caused by
(1) a willful or grossly negligent act of such Quidel Indemnified Party or (2) a
breach by such Quidel Indemnified Party of any representation, warranty,
covenant or other agreement set forth in this Agreement or (B) covered by
insurance proceeds from insurance owned and paid for by Quidel prior to the
Closing, to the extent that a Quidel Indemnified Party actually receives such
insurance proceeds to cover such Damages.
(e) NOTICE OF CLAIM. If a claim for Damages (a "CLAIM")
is to be made by a party entitled to indemnification hereunder (an "INDEMNIFIED
PARTY") against the indemnifying party (the "INDEMNIFYING PARTY"), the
Indemnified Party shall give written notice (a "CLAIM NOTICE") to the
Indemnifying Party, which notice shall specify whether the Claim arises as a
result of a claim by a person against the Indemnified Party (a "THIRD PARTY
CLAIM") or whether the Claim does not so arise (a "DIRECT CLAIM"), and shall
also specify (to the extent that the information is available) the factual basis
for the Claim and the amount of the Damages, if known. If the Claim is a Third
Party Claim, the Indemnified Party shall provide the Claim Notice as soon as
practicable after such party becomes aware of any fact, condition or event which
may give rise to Damages for which indemnification may be sought under Sections
12(b) or (c). If any Action is filed against any Indemnified Party, written
notice thereof shall be given to the Indemnifying Party as promptly as
practicable (and in any event within 15 calendar days after the service of the
citation or summons). The failure of any Indemnified Party to give timely notice
hereunder shall not affect rights to indemnification hereunder, except to the
extent that the Indemnifying Party has been damaged by such failure.
(f) DIRECT CLAIMS. With respect to any Direct Claim,
following receipt of the Claim Notice from the Indemnified Party, the
Indemnifying Party shall have 30 days to make such investigation of the Claim as
is considered necessary or desirable. For the purpose of such investigation, the
Indemnified Party shall make available to the Indemnifying Party sufficient
information to substantiate the Claim, together with all such other
non-privileged information as the Indemnifying Party may reasonably request. If
both parties agree at or prior to the expiration of such 30-day period (or any
mutually agreed upon extension thereof) to the validity and amount of such
Claim, the Indemnifying Party shall promptly pay to the Indemnified Party the
full agreed upon amount of the Claim. If the parties have not so agreed to the
validity and/or amount of the Claim, then the parties shall proceed in the
manner set forth in the following sentence. If the Closing shall have occurred
under this Agreement, the matter shall be resolved pursuant to the arbitration
provisions contained in Section 15(n); and if the Closing shall not have
occurred under this Agreement, the Indemnified Party may bring an action against
the Indemnifying Party in any court located in San Diego, California.
- 22 -
(g) THIRD PARTY CLAIMS. With respect to a Third Party
Claim, if after receipt of the Claim Notice the Indemnifying Party acknowledges
in writing to the Indemnified Party that the Indemnifying Party shall be
obligated under the terms of its indemnity hereunder in connection with such
lawsuit or action, the Indemnifying Party shall be entitled, if it so elects at
its own cost, risk and expense, (i) to take control of the defense and
investigation of such lawsuit or action, (ii) to employ and engage attorneys of
its own choice, but, in any event, reasonably acceptable to the Indemnified
Party, to handle and defend the same unless the named parties to such action or
proceeding (including any impleaded parties) include both the Indemnifying Party
and the Indemnified Party and the Indemnified Party has been advised in writing
by counsel that there may be one or more legal defenses available to such
Indemnified Party such that it creates a conflict of interest, in which event
the Indemnified Party shall be entitled, at the Indemnifying Party's cost, risk
and expense, to separate counsel of its own choosing, and (iii) to compromise or
settle such lawsuit or action, which compromise or settlement shall be made only
with the written consent of the Indemnified Party, such consent not to be
unreasonably withheld. The Indemnified Party shall cooperate in all reasonable
respects, at the Indemnifying Party's cost, risk and expense, with the
Indemnifying Party in the investigation, trial, defense and any appeal arising
from the matter from which the Third Party Claim arose.
If the Indemnifying Party fails to assume the defense
of such Claim within thirty (30) calendar days after receipt of the Claim
Notice, the Indemnified Party against which such Claim has been asserted will
(upon delivering notice to such effect to the Indemnifying Party) have the right
to undertake, at the Indemnifying Party's cost and expense, the defense,
compromise or settlement of such Claim on behalf of and for the account and risk
of the Indemnifying Party. If the Indemnified Party assumes the defense of the
Claim, the Indemnified Party will keep the Indemnifying Party reasonably
informed of the progress of any such defense, compromise or settlement. The
Indemnifying Party shall be liable for any settlement of any action effected
pursuant to and in accordance with this SECTION 12(g) and for any final judgment
(subject to any right of appeal) and the Indemnifying Party agrees to indemnify
and hold harmless an Indemnified Party from and against any Damages by reason of
such settlement or judgment. If there is a dispute as to the indemnification
obligations of any party under this SECTION 12(g), then the parties shall
proceed in the manner set forth in the following sentence. If the Closing shall
have occurred under this Agreement, the matter shall be resolved pursuant to the
arbitration provisions contained in SECTION 15(n); and if the Closing shall not
have occurred under this Agreement, the Indemnified Party may bring an action
against the Indemnifying Party in any court located in San Diego, California.
(h) PAYMENTS. All payments owing under this SECTION 12
will be made promptly as indemnifiable Damages are incurred. If the Indemnified
Party defends any Third Party Claim in accordance with SECTION 12(g), the
expenses (including reasonable attorneys' fees and costs) incurred by the
Indemnified Party shall be paid by the Indemnifying Party in advance of the
final disposition of such matter as incurred by the Indemnified Party; provided
that the Indemnified Party undertakes in writing to repay any such advances in
the event that it is ultimately determined by a court of competent jurisdiction
that the Indemnified Party is not entitled to indemnification under the terms of
this Agreement or applicable law.
(i) EXCLUSIVITY OF INDEMNIFICATION. Notwithstanding
anything to the contrary herein and except for fraud or willful misconduct, the
indemnification provisions of this
- 23 -
SECTION 12 are intended to provide the exclusive remedy after the Closing as to
all Damages that any Indemnified Party may incur arising from, in connection
with, or relating to, the transactions contemplated by this Agreement. Each
party hereby waives, on behalf of itself and each other Indemnified Party (to
the extent that such party may do so), any other rights or remedies that may
arise under any applicable statute, rule or regulation; provided, however, that
the foregoing shall not be interpreted to limit the types of remedies, including
specific performance or other equitable remedies, which may be sought by any
party in connection with a breach of any covenant or agreement contained herein
and shall not limit any available remedy for fraud or willful misconduct by any
party.
(j) CONSEQUENTIAL DAMAGES AND REMEDIES. No party will be
liable to any other party in connection with this Agreement, or any of the
transactions contemplated hereby, for any consequential, special or indirect
damages. Each party hereby expressly releases the other parties, their
respective Affiliates, directors, officers, employees, agents and
representatives from any such liability.
13. NONCOMPETITION.
(a) COVENANT NOT TO COMPETE. For a period of three (3)
years from the Closing Date, Quidel will not directly or indirectly through an
Affiliate (i) engage, anywhere in the world, in the urinalysis test strip
business engaged in by the Company or Quidel immediately prior to the Closing
Date, or (ii) induce or attempt to induce (A) any future employee of IRIS
currently employed by the Company to leave the employ of IRIS or in any way
interfere adversely with the relationship between any such employee and IRIS,
(B) any future employee of IRIS currently employed by the Company to work for,
render services or provide advice to or supply confidential business information
or trade secrets of IRIS to any third person, firm or corporation, or (C) any
customer, supplier, licensee, licensor or other business relation of IRIS to
cease doing business with IRIS in the urinalysis test strip business.
Notwithstanding the foregoing, none of the following shall be deemed a violation
of this SECTION 13: (i) the ownership by Quidel or its Affiliates of fifteen
percent or less of the outstanding capital stock of any corporation engaged in
any business which competes with any line of business engaged in by IRIS, where
the capital stock of the corporation is listed on a national securities exchange
or actively quoted on the Nasdaq National Market or Nasdaq SmallCap Market,
provided that no Affiliate of Quidel is an officer, director or employee of, or
a consultant to, such corporation, (ii) the acquisition of Quidel pursuant to a
sale of stock, sale of assets, merger, consolidation or otherwise by any
corporation engaged in any business which competes with any line of business
engaged in by IRIS (including without limitation the urinalysis test strip
business), or (iii) Quidel's or its Affiliate's entering into a joint venture,
partnership, cooperative arrangement or strategic alliance with any Person that
engages in the urinalysis test strip business, provided, that the purpose of
such joint venture, partnership, cooperative agreement or strategic alliance is
not to engage in the urinalysis test strip business.
(b) REMEDIES. Quidel acknowledges and agrees that, in the
event of a violation by Quidel of the terms and provisions of this SECTION 13,
the remedies at law would not be adequate; and accordingly, in such event IRIS
may proceed to protect and enforce its rights under this SECTION 13 by a suit in
equity for specific performance and temporary, preliminary and permanent
injunctive relief from violation of any of the provisions of this SECTION 13
from any
- 24 -
court of competent jurisdiction without the necessity of proving the amount of
any actual damages to IRIS resulting from the breach.
(c) MODIFICATION. If for any reason there should be a
determination by a court of competent jurisdiction that the provisions of this
SECTION 13 are too broad or unreasonable and therefore unenforceable, the
provisions of this SECTION 13 shall be deemed modified, and fully enforceable as
so modified, to the extent that the court would find them to be fair, reasonable
and enforceable under the circumstances.
14. TERMINATION.
(a) TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated at any time prior to the Closing by the mutual agreement, in writing,
of each of the parties to this Agreement.
(b) TERMINATION BY IRIS. IRIS may (but shall not be
obligated to) terminate this Agreement prior to the Closing by giving written
notice to Quidel if:
(i) there has been a material violation or
breach by Quidel of any agreement, covenant, representation or warranty
contained in this Agreement, which violation or breach shall not have been cured
or corrected within 5 days after receipt of notice thereof;
(ii) the Closing does not occur on or prior to
May 31, 2005, or such later date as may be agreed to in writing by the parties
(unless the Closing does not occur by such date solely as the result of the
failure by IRIS to comply with its obligations under this Agreement); or
(iii) any of the conditions in SECTION 9 have not
been satisfied as of the Closing or if IRIS is made aware and determines in its
reasonable discretion that any condition will not be satisfied as of the Closing
(other than through the failure of IRIS to comply with its obligations under
this Agreement) and IRIS has not expressly waived such condition in writing on
or before the Closing.
(c) TERMINATION BY QUIDEL. Quidel may (but shall not be
obligated to) terminate this Agreement prior to the Closing by giving written
notice to IRIS if:
(i) there has been a material violation or
breach by IRIS of any agreement, covenant, representation or warranty contained
in this Agreement, which violation or breach shall not have been cured or
corrected within 5 days after receipt of notice thereof;
(ii) the Closing does not occur on or prior to
May 31, 2005, or such later date as may be agreed to in writing by the parties
(unless the Closing does not occur by such date solely as the result of the
failure by Quidel to comply with its obligations under this Agreement); or
(iii) any of the conditions in SECTION 10 have not
been satisfied as of the Closing or if Quidel is made aware and determines in
its reasonable discretion that any condition will not be satisfied as of the
Closing (other than through the failure of Quidel to comply with its
- 25 -
obligations under this Agreement) and Quidel has not expressly waived such
condition in writing on or before the Closing.
In the event of such termination, no party shall have any
obligation or liability to any other in respect to this Agreement, except for
any breach of contract occurring prior to such termination, or except as may be
provided in SECTION 11(a) of this Agreement.
15. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other
communications (collectively, "NOTICES") given pursuant to this Agreement shall
be in writing, and shall be delivered by personal service, courier, facsimile
transmission (which must be confirmed) or by United States first class,
registered or certified mail, postage prepaid, to the following addresses:
(i) if to IRIS, to:
0000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attn: Chief Financial Officer
(ii) if to Quidel or the Company, to:
00000 XxXxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attn: Xx. Xxxx X. Xxxxxxx,
Chief Financial Officer
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other parties in the manner prescribed in this Section.
(b) ENTIRE AGREEMENT. This Agreement and the exhibits and
schedules hereto contain or will contain the entire agreement between the
parties hereto with respect to the transactions contemplated herein and therein
and the subject matter hereof and shall supersede all previous oral and written
and all contemporaneous oral negotiations, commitments, and understandings
including, without limitation, all letters, memoranda or other documents or
communications, whether oral, written or electronic, submitted or made by Quidel
or its Affiliates, agents or representatives to IRIS.
(c) PUBLICITY. The parties agree that except for
disclosures that they are advised by counsel are required by law, none of them
shall make any press release or other announcements with respect to the
transactions contemplated hereby without the express written consent of the
other party.
(d) ASSIGNMENT. No party may assign this Agreement, and
any attempted or purported assignment or any delegation of any party's duties or
obligations arising under this
- 26 -
Agreement to any third party or entity shall be deemed to be null and void, and
shall constitute a material breach by such party of its duties and obligations
under this Agreement.
(e) WAIVER AND AMENDMENT. No provision of this Agreement
may be waived unless in writing signed by all the parties to this Agreement, and
waiver of any one provision of this Agreement shall not be deemed to be a waiver
of any other provision. This Agreement may be amended only by a written
agreement executed by all of the parties to this Agreement.
(f) GOVERNING LAW. This Agreement has been made and
entered into in the State of California and shall be construed in accordance
with the laws of the State of California without giving effect to the principles
of conflicts of law thereof.
(g) SEVERABILITY. Whenever possible each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be or become
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
(h) CAPTIONS. The various captions of this Agreement are
for reference only and shall not be considered or referred to in resolving
questions of interpretation of this Agreement.
(i) FACSIMILE; COUNTERPARTS. Facsimile transmission of
any signed original document and/or retransmission of any signed facsimile
transmission will be deemed the same as delivery of an original. At the request
of any party, the parties will confirm facsimile transmission by signing a
duplicate original document. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(j) COSTS AND ATTORNEYS' FEES. If any action, suit,
arbitration or other proceeding is instituted to remedy, prevent or obtain
relief from a default in the performance by any party to this Agreement of its
obligations under this Agreement, the prevailing party shall recover all of such
party's attorneys' fees incurred in each and every such action, suit,
arbitration or other proceeding, including any and all appeals or petitions
therefrom. As used in this Section, attorneys' fees shall be deemed to mean the
full and actual costs of any legal services actually performed in connection
with the matters involved calculated on the basis of the usual fee charged by
the attorney performing such services and shall not be limited to "reasonable
attorneys' fees" as defined in any statute or rule of court.
(k) RIGHTS CUMULATIVE. No right granted to the parties
under this Agreement on default or breach is intended to be in full or complete
satisfaction of any damages arising out of such default or breach, and each and
every right under this Agreement, or under any other document or instrument
delivered hereunder, or allowed by law or equity, shall be cumulative and may be
exercised from time to time.
(l) JUDICIAL INTERPRETATION. Should any provision of this
Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against any Person by reason of the rule
of construction that a document is to be construed more strictly against the
Person
- 27 -
who itself or through its agent prepared the same, it being agreed that all
parties have participated in the preparation of this Agreement.
(m) FORCE MAJEURE. If any party to this Agreement is
delayed in the performance of any of its obligations under this Agreement or is
prevented from performing any such obligations due to causes or events beyond
its control, including, without limitation, acts of God, fire, flood,
earthquake, strike or other labor problem, injunction or other legal restraint,
present or future law, governmental order, rule or regulation, then such delay
or nonperformance shall be excused and the time for performance thereof shall be
extended to include the period of such delay or nonperformance.
(n) DISPUTE RESOLUTION. Except for specific performance
and other equitable relief, if any controversy or claim arising out of this
Agreement cannot be settled by the parties, the controversy or claim shall be
submitted to and settled by arbitration as hereinafter provided. The parties
shall endeavor to agree upon a single arbitrator (the "ARBITRATOR") who shall be
a retired judge provided by JAMS/ENDISPUTE or equivalent organization (the
"PROVIDER") and who shall then try all issues, whether of fact or law, and
report a finding or judgment thereon. If the parties are unable to agree upon
the Arbitrator, each party shall provide the names of five retired judges from
the Provider; then each party shall choose one of the names from the list
proposed by the other, and from those two names the Arbitrator shall be selected
by the flip of a coin. Prior to commencement of the arbitration proceedings, the
Arbitrator shall make a full disclosure to the parties of any prior engagement
by any of the parties, or their attorneys or law firms. Any such prior
engagement shall be grounds for disqualification of the Arbitrator, and upon any
such disqualification a substitute Arbitrator shall be selected as provided
herein. The arbitration proceedings shall be governed by the following:
(i) All hearings and other proceedings shall be
in San Diego County unless the parties shall mutually agree in writing to an
alternative location;
(ii) The Arbitrator shall follow and apply
California law;
(iii) The California Rules of Evidence shall apply
to all proceedings;
(iv) Discovery shall be limited to two
depositions for each party and document production as allowed at the discretion
of the Arbitrator within the rules of Section 1283.05 of the California Code of
Civil Procedure;
(v) The time for rendering a decision after
hearing shall be in accordance with the published practices of the Provider;
(vi) Provisional remedies shall be available to
the parties to the arbitration in accordance with Section 1281.8 of the
California Code of Civil Procedure; and
(vii) IRIS and Quidel shall initially bear the
arbitration fees equally; PROVIDED, HOWEVER, the prevailing party shall be
entitled to recover its contribution for such fees as an item of recoverable
costs in addition to all other costs.
[SIGNATURES ON FOLLOWING PAGE]
- 28 -
IN WITNESS WHEREOF, this Agreement has been made and entered into as of
the date and year first above written.
QUIDEL CORPORATION
A Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx
Its: Chief Financial Officer
QUIDEL DEUTSCHLAND GmbH
A company organized under the laws of Germany
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx
Its: Managing Director with sole power to
represent Quidel Deutschland GmbH, and
released from the restrictions of self
dealing under Section 181 of the German
Civil Code ("BGB")
IRIS INTERNATIONAL, INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx,
Its: President and
Chief Executive Officer
Blitz 05-047 GmbH (future name IRIS
DEUTSCHLAND GmbH)
A company organized under the laws of Germany
By: /s/ Xxxx Xx
---------------------------------------
Its: Managing Director with sole power to
represent IRIS Deutschland GmbH, and
released from the restrictions of self
dealing under Section 181 of the German
Civil Code ("BGB")
- 29 -
LIST OF SCHEDULES
-----------------
Schedule 1(a) Assets
Schedule 6(d) Material Contracts
Schedule 6(h) Liens
Schedule 6(i) Intellectual Property
Schedule 6(j) Employee Benefits
Schedule 6(l) Consents Required
Schedule 8(c) Employee Information
- 30 -
EXHIBIT A
XXXX OF SALE
THIS XXXX OF SALE (this "XXXX OF SALE") is made and entered into as of
_________ ___, 2005, by and among Quidel Corporation, a Delaware corporation
("QUIDEL"), and Quidel Deutschland GmbH, a company organized under the laws of
Germany (the "COMPANY," and together with Quidel, "ASSIGNORS", each of Quidel
and the Company an "Assignor"), on the one hand, and Iris Deutschland GmbH
(former name: Xxxxx 00-000 XxxX), a company organized under the laws of Germany
("ASSIGNEE"), on the other hand (Quidel, the Company and Assignee together the
"Parties", each a "PARTY").
RECITAL
Assignors, on the one hand, and Assignee, together with IRIS
International, Inc., a Delaware corporation, on the other hand, have entered
into that certain Asset Purchase Agreement, dated April __, 2005 (the "ASSET
PURCHASE AGREEMENT"), pursuant to which Assignors have agreed to sell, transfer
and assign their right, title and interest in and to the Assets and Assignee has
agreed to purchase and accept the Assets. Capitalized terms not otherwise
defined herein have the meaning ascribed to them in the Asset Purchase
Agreement.
XXXX OF SALE
NOW THEREFORE, in consideration of the mutual covenants contained in
this Xxxx of Sale, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as
follows:
1. In consideration of the payment to Assignors by Assignee of
the Purchase Price, receipt of which is hereby acknowledged by Assignors, (i)
Quidel Corporation hereby assigns and transfers to Assignee all of its right,
title and interest in and to the property described and marked as property of
Quidel on EXHIBIT A hereto, and (ii) the Company hereby assigns and transfers to
Assignee all of its right, title and interest in and to the property described
and marked as property of the Company on EXHIBIT A hereto.
2. Each of the Assignors and the Assignee hereby state that they
are in agreement with regard to the transfer of property, ownership and title
("EINIGUNG UBER UBERGANG DES EIGENTUMS") of the assets as specified on EXHIBIT A
hereto to the Assignee from each of the Assignors regarding the respective
assets sold by each of the Assignors.
3. Each of the Assignors shall transfer the possession ("BESITZ")
with regard to moveable assets ("BEWEGLICHE SACHEN") as specified on EXHIBIT A
hereto and sold pursuant to the Asset Purchase Agreement to the Assignee upon
Closing. The Assignors hereby certify that as of the Closing the Assignee has
been provided with effective control with regard to the movable assets as
specified on EXHIBIT A hereto. To the extent that any moveable assets are in
physical or intermediate possession ("UNMITTELBARER ODER MITTELBARER BESITZ") of
third parties, each of the Assignors hereby assigns to the Assignee which
accepts such assignments all claims for repossessions ("HERAUSGABEANSPRUCHE")
vis-a-vis third parties with regard to the moveable assets sold pursuant to the
Asset Purchase Agreement. To the extent the Parties agree that
- 31 -
moveable assets are and will remain after the Closing Date in the physical
possession ("UNMITTELBARER BESITZ") of either of the Assignors, such Assignor
shall hold these moveable assets for the Assignee in trust free of charge
("UNENTGELTLICHE VERWAHRER/BESITZMITTLER").
4. To the extent that any assets sold by the Assignors have been
acquired by either of the Assignors from third parties subject to retention of
title ("EIGENTUMSVORBEHALT"), and consequentially the respective Assignor should
not be the full and unrestricted owner of the respective assets, the respective
Assignor hereby transfers to the Assignee all related property equivalent rights
("ANWARTSCHAFTSRECHTE").
5. In order to transfer any rights or interests in intellectual
property rights as specified on EXHIBIT A hereto, the Parties shall cooperate
free of charge and enter into any agreement necessary for the assignment
thereof, which shall be in recordable form with the appropriate patent and
trademark office of the relevant countries. To the extent other actions or
measures are necessary for the transfer of the intellectual property, in
particular the application to or notification of patent or trademark offices,
the Parties shall be obliged to undertake these measures without delay on or
after the Closing at Assignee's expense.
6. All liabilities, claims and rights as specified on EXHIBIT A
hereto to be transferred by assignment pursuant to the Asset Purchase Agreement
are hereby assigned, assumed, and transferred from each of the Assignors,
respectively, to the Assignee with commercial effect as of the date hereof. The
Parties shall undertake without delay on or after the Closing all necessary or
useful measures to effect the legal validity of the above assignments also
vis-a-vis third parties involved.
7. It is expressly recorded that the Assignee hereby accepts the
transfer and assignment of all rights, title and interest in all the assets
transferred hereunder as stipulated in this Xxxx of Sale or otherwise.
8. Each of the Assignors hereby warrants and agrees with respect
to the transfer of title to the property transferred and assigned by itself
hereunder to defend such title as vested, by reason of this sale, in Assignee
and Assignee's successors and assigns against any and all claims whatsoever. The
Parties agree that Section 6 (h)(ii) of the Asset Purchase Agreement shall apply
accordingly to this Xxxx of Sale.
9. Each party hereto shall execute such additional documents and
instruments and take such further action as reasonably may be required or
desirable to carry out the provisions hereof.
10. This Xxxx of Sale shall be governed by, construed and enforced
in accordance with the laws of Germany, without regard to conflicts of laws
principles. In case of doubts as to the legal meaning of the provisions in this
Xxxx of Sale, the German legal terms as specified in ITALICS in the provisions
of this Xxxx of Sale shall prevail.
11. The Parties acknowledge and agree nothing in this Xxxx of Sale
shall expand, reduce, modify, alter or waive any rights or obligations of the
Parties under the Asset Purchase Agreement. In the event that any provisions of
this Xxxx of Sale are determined to be in conflict with the terms of the Asset
Purchase Agreement, the terms of the Asset Purchase Agreement shall control.
- 32 -
12. Signatures transmitted electronically or by facsimile shall be
deemed original signatures. This Xxxx of Sale may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Xxxx of Sale
as of the date first above written.
Quidel Corporation, a Delaware corporation
By:
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
Quidel Deutschland GmbH,
a company organized under the laws of Germany
By:
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Iris Deutschland GmbH (former name Blitz 05-047
GmbH),
a company organized under the laws of Germany
By:
-----------------------
Name:
Title: Managing Director
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EXHIBIT A TO XXXX OF SALE
ASSETS
- 34 -
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT") is made and
entered into as of _________ ___, 2005, by and among Quidel Corporation., a
Delaware corporation ("QUIDEL"), and Quidel Deutschland GmbH, a company
organized under the laws of Germany (the "COMPANY," and together with Quidel,
"ASSIGNORS", each of Quidel and the Company an "ASSIGNOR"), on the one hand, and
IRIS Deutschland GmbH, a company organized under the laws of Germany
("ASSIGNEE"), on the other hand.
RECITALS
A. Assignors, on the one hand, and Assignee, together with IRIS
International, Inc., a Delaware corporation, on the other hand, have entered
into that certain Asset Purchase Agreement, dated April 26, 2005 (the "ASSET
PURCHASE AGREEMENT"), pursuant to which Assignors has agreed to sell, transfer
and assign its right, title and interest in and to the Assets and Assignee has
agreed to purchase the Assets.
B. Pursuant to the terms of the Asset Purchase Agreement,
Assignee has agreed to accept the assignment of the Assets and assume the
Assumed Liabilities.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. CAPITALIZED TERMS. Capitalized terms not otherwise defined
herein have the meaning ascribed to them in the Asset Purchase Agreement.
2. ASSIGNMENT OF ASSETS. The Assignors hereby assign to Assignee
all of their respective rights, title and interest in and to the Assets, as the
Assets of each Assignor are described and marked on EXHIBIT A hereto, and
Assignee accepts such assignment, pursuant to and in accordance with the terms
and conditions of the Asset Purchase Agreement.
3. ASSIGNMENT AND ASSUMPTION OF ASSUMED LIABILITIES. The
Assignors hereby assign, and Assignee hereby assumes and agrees to pay, perform
and discharge or otherwise satisfy, and assumes and agrees to be bound by, the
Assumed Liabilities pursuant to and in accordance with the terms and conditions
of the Asset Purchase Agreement.
4. INTEGRATION WITH ASSET PURCHASE AGREEMENT PROVISIONS. Nothing
contained in this Agreement shall expand, reduce, modify, alter or waive any
rights or obligations of the parties under the Asset Purchase Agreement. In the
event that any of the provisions of this Agreement are determined to conflict
with the terms of the Asset Purchase Agreement, the terms of the Asset Purchase
Agreement shall control.
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5. FURTHER ASSURANCES. Each party hereto shall execute such
additional documents and instruments and take such further action as reasonably
may be required or desirable to carry out the provisions hereof.
6. AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
Assignors and Assignee.
7. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
8. FACSIMILES; COUNTERPARTS. Signatures transmitted
electronically or by facsimile shall be deemed original signatures. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Quidel Corporation
a Delaware corporation
By:
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
Quidel Deutschland GmbH,
a company organized under the laws of Germany
By:
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Iris Deutschland GmbH (former name Blitz 05-047
GmbH),
a limited liability company organized under the
laws of Germany
By:
-----------------------
Name:
Title: Managing Director
- 37 -
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this "AGREEMENT")
dated as of ________ __, 2005, is made by and among Quidel Deutschland GmbH, a
limited liability company organized under the laws of Germany ("ASSIGNOR"), IRIS
Deutschland GmbH, a limited liability company organized under the laws of
Germany ("ASSIGNEE"), and Dade Behring Grundstucks GmbH, a limited liability
company organized under the laws of Germany ("LANDLORD").
RECITALS
A. Assignor is the tenant ("TENANT") under that certain real
property lease, dated November 26, 1999, by and between, Landlord and Assignor
(the "LEASE"), relating to the premises located at Building Number M213 on the
Dade Behring Campus, Marburg, Germany, and more particularly described in the
Lease (the "Premises"). A copy of the Lease is attached hereto as EXHIBIT A.
B. Assignor together with Quidel Corporation, a Delaware
corporation, on the one hand, and Assignee together with IRIS International,
Inc., a Delaware corporation, on the other hand, have entered into that certain
Asset Purchase Agreement, dated April 26, 2005 (the "ASSET PURCHASE AGREEMENT"),
pursuant to which Assignor is selling, transferring, and assigning certain
assets identified therein, including, without limitation, the Lease, effective
as of the closing of the transactions contemplated by the Asset Purchase
Agreement (the "EFFECTIVE DATE").
C. As of the Effective Date, Assignor desires to assign to
Assignee all of its right, title and interest in and to the Lease; Assignee
desires to accept the assignment thereof and assume the obligations thereunder
and Landlord agrees to consent to such assignment and grant a novation as
contemplated hereby, all on the terms and conditions set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. ASSIGNMENT AND ASSUMPTION. Effective as of the Effective Date,
Assignor hereby assigns to Assignee all of Assignor's right, title, and interest
in and to the Lease, except for any security deposit of Assignor which shall be
released to Assignor as of the Effective Date. Assignee hereby accepts the
foregoing assignment by Assignor and assumes all responsibility for performance
under the Lease and agrees to pay, perform and discharge, in accordance with the
terms and conditions of the Lease, all liabilities and obligations of Assignor's
under the Lease that accrue or arise from and after the Effective Date.
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2. CONSENT TO ASSIGNMENT AND NOVATION. Effective as of the
Effective Date, Landlord hereby (a) consents to the assignment effected hereby;
(b) agrees to recognize Assignee as the tenant under the Lease and thereby
establish direct privity of contract with Assignee; and (c) grants Assignor a
novation with respect to all liabilities and obligations under the Lease arising
or accruing after the Effective Date.
3. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
4. CHOICE OF LAW. This Agreement shall be governed by, construed
and enforced in accordance with the laws of Germany, without regard to conflicts
of laws principles.
5. FURTHER ASSURANCES. Each party hereto shall execute such
additional documents and instruments and take such further action as reasonably
may be required or desirable to carry out the provisions hereof.
6. AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
the parties hereto.
7. FACSIMILES; COUNTERPARTS. Signatures transmitted
electronically or by facsimile shall be deemed original signatures. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
- 39 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Quidel Deutschland GmbH,
a limited liability company organized under the
laws of Germany
By:
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
IRIS Deutschland GmbH (former name Blitz 05-047
GmbH),
a limited liability company organized under the
laws of Germany
By:
-------------------
Name:
Title: Managing Director
Dade Behring Grundstucks GmbH,
a limited liability company organized under the
laws of Germany
By:
-------------------
Name:
Title:
- 40 -
EXHIBIT D
INFORMATION LETTER
[LETTERHEAD QUIDEL DEUTSCHLAND GMBH]
To
[NAME AND ADDRESS OF EMPLOYEE]
RE: SALE OF URINANALYSIS BUSINESS
TRANSFER OF BUSINESS AND EMPLOYMENT RELATIONSHIP TO IRIS DEUTSCHLAND
GMBH
Dear Mrs. / Mr. [NAME OF EMPLOYEE],
As part of a new strategic framework, Quidel Corporation, USA, (our parent
company) has decided to sell its assets relating to its urinanalysis business
(the "ASSETS"), including the assets of Quidel Deutschland GmbH in Marburg, to
Blitz 05-047 GmbH (future name: Iris Deutschland GmbH) ("IRIS") who will
continue the urinalysis business ("BUSINESS") operations after the sale and
transfer of the Assets. For this purpose, our parent company and Quidel
Deutschland GmbH, on [April __, 2005], entered into an Asset Purchase Agreement
with IRIS and its parent company with respect to the transfer of the Assets of
the urinalysis business (the "ASSET PURCHASE AGREEMENT"). The transfer of the
Assets and the closing of the Asset Purchase Agreement is anticipated to take
place by no later than [May 31, 2005].
IRIS has undertaken to assume all employment relationships that are part of the
transfer of the Business. Further, based on this transfer of the Assets, the
employment relationships of the employees of Quidel Deutschland GmbH working in
the urinanalysis business upon the transfer of the Assets will be transferred by
operation of law to IRIS (pursuant to section 613 a para. 1 German Civil Code).
This includes your employment relationship with Quidel Deutschland GmbH. In this
regard, IRIS will assume all rights and obligations arising under your
employment relationship, and your employment agreement will continue according
to its current terms and conditions with the exception of your eligibility to
participate in the Quidel Corporation Amended and Restated 2001 Equity Incentive
Plan (as described in further detail below). Therefore, your rights and
obligations under your employment agreement will continue without amendment
(except for your eligibility to participate in the Quidel Corporation Amended
and Restated 2001 Equity Incentive Plan), after the transfer of the Business to
IRIS, and Quidel Deutschland GmbH will no longer be your employer thereafter.
The transfer of your employment relationship does not affect your rights which
you already acquired up to the transfer date based on your services for Quidel
Deutschland GmbH. Note also that similar to Quidel Deutschland GmbH, IRIS is not
bound by any collective bargaining agreements or arrangements or any other
collective regulations.
- 41 -
As of the date of the transfer of the Business and your employment agreement to
IRIS, IRIS will be responsible for, without limitation, all claims arising from
the employment relationship, even those relating to past periods. Jointly and
severally with IRIS, Quidel Deutschland GmbH will continue to be responsible for
obligations that have arisen before the transfer of the Business and became due
before that date or which will become due within one year thereafter; to the
extent they arise after the transfer of the Business, Quidel Deutschland GmbH is
only responsible on a pro rata basis. Dismissals by Quidel Deutschland GmbH or
by IRIS on the basis of the transfer of the Assets are not permissible.
Dismissals for other reasons remain, however, unaffected.
Currently, there are no other economic or social consequences of the transfer of
the business foreseeable. Likewise, no particular measures, e.g. measures of
on-going education or measures of career development, are currently planned.
You can object in writing to the transfer of your employment relationship within
one month after receipt of this letter. The written objection can be addressed
either to Quidel Deutschland GmbH or to IRIS. In the event that you desire to
object to such transfer, please communicate the reasons that motivate your
decision. If we do not hear from you within this time period, or if you sign and
return a copy of this letter, this will be considered as your consent to the
transfer of your employment relationship. As a matter of caution, we advise you
that in case of an objection, Quidel Deutschland GmbH would be forced to
terminate your employment for operational reasons under the Dismissal Protection
Act since your previous employment position with Quidel Deutschland GmbH will
cease to exist. We kindly ask you to take this into account when considering
this matter.
By virtue of the transfer of the Business, your employment relationship with
Quidel Deutschland GmbH will terminate as of the date of the transfer of the
Business. In addition, as part of the termination of your employment with Quidel
Deutschland GmbH, your eligibility to further participate in the Quidel
Corporation Amended and Restated 2001 Equity Incentive Plan will cease and the
status of your current stock options shall be treated as described below and as
set forth in the attached table:
o Your stock options which have already been executed are shown
under the column heading "exercised" in the attached table.
The transfer of the Business does not affect these option
rights.
o Your stock options which are shown under the column heading
"exercisable" in the attached table may be exercised within 90
days from the date of transfer of the Business. All vested
stock options that remain unexercised at the end of this
90-day period will expire and terminate at such time.
o Your stock options which are shown in the attached table under
the column heading "unvested" will expire and terminate at the
time of the transfer of the Business.
Please note that the planned transfer of the Business is subject to various
conditions precedent. Should the parties terminate the Asset Purchase Agreement
or should such agreement not be implemented for any reason, we shall inform you
without undue delay.
- 42 -
We hereby request that you consent to the assignment and assumption of your
employment agreement and employment relationship to IRIS in connection with the
transfer of the Business. Please return this confirmation or your written
objection to Xxxxxxx Xxx at the facility in Marburg, Germany as soon as
possible, but by no later than ________ __, 2005.
If you have any questions, please feel free to contact Xxxxx XxXxxx of our
parent company by way of email at xxxxxxx@xxxxxx.xxx or telephone at
[000-000-000-0000] at any time prior to the transfer of the Assets.
With kind regards
QUIDEL DEUTSCHLAND GMBH IRIS DEUTSCHLAND GMBH
---------------------------- ----------------------------
Xxxxxxx Xxx, Managing Director [Name, position]
CONFIRMATION
I hereby acknowledge and consent to the assumption and transfer of my employment
agreement with Quidel Deutschland GmbH and the rights and obligations following
from my employment relationship to IRIS. By signing and returning this letter, I
hereby waive my right to object in writing to the transfer of my employment
relationship within one month after receipt of this letter. Further, I hereby
acknowledge that the transfer will have the effect of ending my eligibility to
participate in the Quidel Corporation Amended and Restated 2001 Equity Incentive
Plan.
----------------------------
Date, [name of employee]
ENCLOSED: - Stock Option Report As of April 6, 2005
- 43 -
