CONFIDENTIALITY AGREEMENT
Exhibit (e)(6)
This Confidentiality
Agreement (this “Agreement”) is
being entered into as of April 11, 2007, between
Biosite
Incorporated (“Biosite”), on the one
hand, and Inverness
Medical Innovations, Inc. (together with its
subsidiaries and affiliates, “Inverness”), on
the other hand.
In order to facilitate the consideration and negotiation of a
possible strategic transaction involving Biosite and Inverness
(referred to collectively as the “Parties” and
individually as a “Party”), Inverness has
requested access to certain non-public information regarding
Biosite and Biosite’s subsidiaries. This Agreement sets
forth Inverness’ obligations regarding the use and
disclosure of such information and regarding various related
matters.
The Parties, intending to be legally bound, acknowledge and
agree as follows:
1. Definitions. For purposes of
this Agreement:
(a) a Party’s
“Representatives” will be deemed to include:
(i) each Person that is or becomes a subsidiary or other
affiliate of such Party; (ii) each Person that is or
becomes an officer, director, employee, partner, attorney,
advisor, accountant, agent or representative of such Party or of
any of such Party’s subsidiaries or other affiliates; or
(iii) in the case of Inverness and its subsidiaries and
affiliates, General Electric Capital Corporation, UBS
Loan Finance LLC and UBS Securities LLC (and such
Person’s accountants, advisors and attorneys).
(b) the term “Person,” as used in
this Agreement, will be broadly interpreted to include any
individual and any corporation, partnership, entity, group,
tribunal or governmental authority.
2. Confidential Information. For
purposes of this Agreement, “Confidential
Information” will be deemed to include only the
following:
(a) any information (including any technology,
know-how, patent application, test result, research study,
business plan, budget, forecast or projection) relating directly
or indirectly to the business of Biosite, any predecessor entity
or any subsidiary or other affiliate of Biosite (whether
prepared by Biosite or by any other Person and whether or not in
written form) that is or that has been made available to
Inverness or any Representative of Inverness by or on behalf of
Biosite or any Representative of Biosite;
(b) any memorandum, analysis, compilation, summary,
interpretation, study, report or other document, record or
material that is or has been prepared by or for Inverness or any
Representative of Inverness and that contains, reflects,
interprets or is based directly or indirectly upon any
information of the type referred to in clause “(a)” of
this sentence;
(c) the existence and terms of this Agreement, and
the fact that information of the type referred to in clause
“(a)” of this sentence has been made available to
Inverness or any of its Representatives; and
(d) the fact that discussions or negotiations are or
may be taking place with respect to a possible transaction
involving the Parties, and the proposed terms of any such
transaction.
However, “Confidential Information” will not be
deemed to include:
(i) any information that is or becomes generally
available to the public other than as a direct or indirect
result of the disclosure of any of such information by Inverness
or by any of Inverness’ Representatives;
(ii) any information that was in Inverness’
possession prior to the time it was first made available to
Inverness or any of Inverness’ Representatives by or on
behalf of Biosite or any of Biosite’s Representatives,
provided that the source of such information was not and is not
known to Inverness to be bound by any contractual or other
obligation of confidentiality to Biosite or to any other Person
with respect to any of such information;
(iii) any information that becomes available to
Inverness on a non-confidential basis from a source other than
Biosite or any of Biosite’s Representatives, provided that
such source is not known to Inverness to be bound by any
contractual or other obligation of confidentiality to Biosite or
to any other Person with respect to any of such
information; or
(iv) any information that is developed by or on
behalf of Inverness or any of Inverness’ Representatives
without reliance on the information received from Biosite or any
of Biosite’s Representatives hereunder, as evidenced by
written records.
3. Limitations on Use and Disclosure of
Confidential Information. Subject to
section 5 below, neither Inverness nor any of
Inverness’ Representatives will, at any time, directly or
indirectly:
(a) make use of any Confidential Information, except
for the specific purpose of considering, evaluating and
negotiating a possible negotiated transaction between the
Parties; or
(b) disclose any Confidential Information to any
other Person.
Inverness will be liable and responsible for any breach of this
Agreement by any of its Representatives and for any other action
or conduct on the part of any of its Representatives that is
inconsistent with any provision of this Agreement. Inverness
will (at its own expense) take all actions necessary to restrain
its Representatives from making any unauthorized use or
disclosure of any Confidential Information.
4. No Representations by
Biosite. The Representatives of Biosite will have
the exclusive authority to decide what Confidential Information
(if any) is to be made available to Inverness and its
Representatives. Neither Biosite nor any of Biosite’s
Representatives will be under any obligation to make any
particular Confidential Information available to Inverness or
any of Inverness’ Representatives or to supplement or
update any Confidential Information previously furnished.
Neither Biosite nor any of its Representatives has made or is
making any representation or warranty, express or implied, as to
the accuracy or completeness of any Confidential Information,
and neither Biosite nor any of its Representatives will have any
liability to Inverness or to any of Inverness’
Representatives relating to or resulting from the use of any of
Biosite’s Confidential Information or any inaccuracies or
errors therein or omissions therefrom. Only those
representations and warranties (if any) that are included in any
final definitive written agreement that provides for the
consummation of a negotiated transaction between the Parties and
is validly executed on behalf of the Parties (a
“Definitive Agreement”) will have legal effect.
5. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in
section 3 above:
(i) Inverness may disclose Confidential Information
if and to the extent that Biosite consents in writing to
Inverness’ disclosure thereof;
(ii) subject to section 5(b) below, Inverness
may disclose Confidential Information to any Representative of
Inverness, but only to the extent such Representative:
(A) needs to know such Confidential Information for the
purpose of helping Inverness evaluate or negotiate a possible
negotiated transaction between the Parties; and (B) has
been informed of the obligations set forth in this Agreement and
has agreed to abide and be bound by the provisions hereof; and
(iii) subject to section 5(c) below, Inverness
may disclose Confidential Information to the extent required by
applicable law or governmental regulation or by subpoena or
other valid legal process.
(b) If Biosite delivers to Inverness a written
notice stating that certain Confidential Information may be
disclosed only to specified Representatives of Inverness, then,
notwithstanding anything to the contrary contained in
section 5(a)(ii) above, Inverness shall not thereafter
disclose or permit the disclosure of any of such Confidential
Information to any other Representative of Inverness.
(c) If Inverness or any of Inverness’
Representatives is required by applicable law or governmental
regulation or by subpoena or other valid legal process to
disclose any Confidential Information to any Person, then
Inverness will promptly provide Biosite with written notice of
the applicable law, regulation or process so that Biosite may
seek a protective order or other appropriate remedy. Inverness
and its Representatives will use
reasonable efforts to cooperate with Biosite and Biosite’s
Representatives in any attempt by Biosite to obtain any such
protective order or other remedy. If Biosite elects not to seek,
or is unsuccessful in obtaining, any such protective order or
other remedy in connection with any requirement that Inverness
disclose Confidential Information, and if Inverness has been
advised by its internal counsel or other reputable external
legal counsel confirming that the disclosure of such
Confidential Information is legally required, then Inverness may
disclose such Confidential Information to the extent legally
required; provided, however, that Inverness and its
Representatives will use their reasonable efforts to ensure that
such Confidential Information is treated confidentially by each
Person to whom it is disclosed.
6. Return of Confidential
Information. Upon Biosite’s request,
Inverness and Inverness’ Representatives will promptly
deliver to Biosite any Confidential Information (and all copies
thereof) obtained or possessed by Inverness or any of
Inverness’ Representatives; provided, however, that,
in lieu of delivering to Biosite any written materials of the
type described in clause “(b)” of the first sentence
of section 2 above, Inverness may destroy such written
materials and deliver to Biosite a certificate confirming their
destruction. Notwithstanding the delivery to Biosite (or the
destruction by Inverness) of Confidential Information pursuant
to this section 6, Inverness and its Representatives will
continue to be bound by their confidentiality obligations and
other obligations under this Agreement. Notwithstanding the
foregoing, Inverness may cause its outside legal counsel to
retain one set of Confidential Information for archival
purposes, such set to be accessed or used only in order to
measure compliance with the terms of this Agreement or to defend
against any claim, action or proceeding relating to this
Agreement.
7. Limitation on Soliciting
Employees. During the
12-month
period commencing on the date of this Agreement, Inverness will
not permit any of its Representatives or any subsidiary or
affiliate thereof who is or becomes aware of the consideration
or negotiation of a possible transaction between the Parties to
solicit for employment with Inverness or any of its subsidiaries
or affiliates any Specified Employee (as defined below) of
Biosite; provided, however, that this section 7 will
not prevent Inverness or any of its Representatives or any
subsidiary or affiliate thereof from: (a) causing to be
placed any general advertisement or similar public notice that
is not targeted specifically at employees of Biosite or its
subsidiaries or affiliates; or (b) engaging any recruiting
firm or similar organization to identify or solicit persons for
employment on behalf of Inverness, or soliciting the employment
of any Specified Employee of Biosite or any of its subsidiaries
or affiliates who is identified by any such recruiting firm or
organization, as long as such recruiting firm or organization is
not instructed to target any employees of Biosite or its
subsidiaries or affiliates. For purposes of this section 7,
a person shall be deemed to be a “Specified
Employee” of Biosite if: (i) such person is
employed by Biosite or by any subsidiary or affiliate of Biosite
on the date of this Agreement or becomes employed by Biosite or
by any subsidiary or affiliate of Biosite during the period in
which Biosite is continuing to negotiate a possible transaction
with Inverness; and (ii) such person’s employment
shall not have been involuntarily terminated by Biosite or by a
subsidiary or affiliate of Biosite.
8. No Obligation to Pursue
Transaction. Unless the Parties enter into a
Definitive Agreement, no agreement providing for a transaction
involving either of the Parties will be deemed to exist between
the Parties, and neither Party will be under any obligation to
negotiate or enter into any such agreement or transaction with
the other Party. Biosite reserves the right, in its sole
discretion: (a) to conduct any process it deems appropriate
with respect to any transaction or proposed transaction
involving Biosite and to modify any procedures relating to any
such process without giving notice to Inverness or any other
Person; (b) to reject any proposal made by Inverness or any
of Inverness’ Representatives with respect to a transaction
involving Biosite; and (c) to terminate discussions and
negotiations with Inverness at any time. Inverness recognizes
that, except as expressly provided in any binding written
agreement between the Parties that is executed on or after the
date of this Agreement: (i) Biosite and its Representatives
will be free to negotiate with, and to enter into any agreement
or transaction with, any other interested party; and
(ii) Inverness will not have any rights or claims against
Biosite or any of Biosite’s Representatives arising out of
or relating to any transaction or proposed transaction involving
Biosite.
9. No Waiver. No failure or delay
by Biosite or any of its Representatives in exercising any
right, power or privilege under this Agreement will operate as a
waiver thereof, and no single or partial exercise of any such
right, power or privilege will preclude any other or future
exercise thereof or the exercise of any other right, power or
privilege under this Agreement. No provision of this Agreement
can be waived or amended except by means of a written instrument
that is validly executed on behalf of both of the Parties and
that refers specifically to the particular provision or
provisions being waived or amended.
10. Remedies. Inverness shall
indemnify and hold harmless Biosite and Biosite’s
Representatives against and from, and shall compensate and
reimburse Biosite and Biosite’s Representatives for, any
damage, loss, claim, liability or expense (including legal fees
and the cost of enforcing Biosite’s rights under this
Agreement) arising out of or resulting from any unauthorized use
or disclosure of any Confidential Information or any other
breach of this Agreement by Inverness or any of its
Representatives. Inverness acknowledges that money damages would
not be a sufficient remedy for any breach of this Agreement by
Inverness or by any of Inverness’ Representatives and that
Biosite would suffer irreparable harm as a result of any such
breach. Accordingly, Biosite will also be entitled to equitable
relief, including injunction and specific performance, as a
remedy for any breach or threatened breach of this Agreement by
Inverness or any of Inverness’ Representatives. The
indemnification and equitable remedies referred to above will
not be deemed to be the exclusive remedies for a breach of this
Agreement, but rather will be in addition to all other remedies
available at law or in equity to Biosite. In the event of
litigation relating to this Agreement, if a court of competent
jurisdiction determines that Inverness or any of its
Representatives has breached this Agreement, Inverness will be
liable for, and will pay to Biosite and Biosite’s
Representatives, the reasonable legal fees incurred by Biosite
and Biosite’s Representatives in connection with such
litigation (including any appeal relating thereto).
11. Successors and Assigns; Applicable Law;
Jurisdiction and Venue. This Agreement will be
binding upon and inure to the benefit of Inverness and its
Representatives and their respective heirs, successors and
assigns. This Agreement will be governed by and construed in
accordance with the laws of the State of California (without
giving effect to principles of conflicts of laws). Each Party:
(a) irrevocably and unconditionally consents and submits to
the jurisdiction of the state and federal courts located in the
State of California for purposes of any action, suit or
proceeding arising out of or relating to this Agreement;
(b) agrees that service of any process, summons, notice or
document by U.S. registered mail to the address set forth
below the name of such Party at the end of this Agreement shall
be effective service of process for any such action, suit or
proceeding brought against such Party; (c) irrevocably and
unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of or relating to
this Agreement in any state or federal court located in the
State of California; and (d) irrevocably and
unconditionally waives the right to plead or claim, and
irrevocably and unconditionally agrees not to plead or claim,
that any action, suit or proceeding arising out of or relating
to this Agreement that is brought in any state or federal court
located in the State of California has been brought in an
inconvenient forum.
12. Miscellaneous.
(a) The bold-faced captions appearing in this
Agreement have been included only for convenience and shall not
affect or be taken into account in the interpretation of this
Agreement.
(b) Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any
other jurisdiction.
(c) By making Confidential Information or other
information available to Inverness or Inverness’
Representatives, Biosite is not, and shall not be deemed to be,
granting (expressly or by implication) any license or other
right under or with respect to any patent, trade secret,
copyright, trademark or other proprietary or intellectual
property right.
(d) To the extent that any Confidential Information
includes materials or other information that may be subject to
the attorney-client privilege, work product doctrine or any
other applicable privilege or doctrine concerning any
Confidential Information or any pending, threatened or
prospective action, suit, proceeding, investigation, arbitration
or dispute, it is acknowledged and agreed that the Parties have
a commonality of interest with respect to such Confidential
Information or action, suit, proceeding, investigation,
arbitration or dispute and that it is the Parties’ mutual
desire, intention and understanding that the sharing of such
materials and other information is not intended to, and shall
not, affect the confidentiality of any of such materials or
other information or waive or diminish the continued protection
of any of such materials or other information under the
attorney-client privilege, work product doctrine or other
applicable privilege or doctrine. Accordingly, all Confidential
Information that is entitled to protection under the
attorney-client privilege, work product doctrine or other
applicable privilege or doctrine shall remain entitled to
protection thereunder and shall be entitled to protection under
the joint defense doctrine, and the Parties agree to take all
measures necessary to preserve, to the fullest extent possible,
the applicability of all such privileges or doctrines.
(e) This Agreement constitutes the entire agreement
between Inverness and Biosite regarding the subject matter
hereof and supersedes any prior agreement between Inverness and
Biosite regarding the subject matter hereof, including that
certain confidentiality letter agreement dated March 9,
2007 between the Parties; provided, however, that nothing
in this Agreement shall relieve Inverness or any of its
Representatives from any liability for any breach of any
provision contained in that certain confidentiality letter
agreement dated March 9, 2007 between the Parties.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
In Witness
Whereof, the parties have caused this
Confidentiality
Agreement to be executed as of the date first written
above.
|
Biosite
Incorporated
|
Inverness Medical Innovations, Inc. | |
|
By:
/s/ Xxxxx
Xxxxxx |
By:
/s/ Xxxxxxx
X. Xxxxxxx |
|
|
Name: Xxxxx Xxxxxx
|
Name: Xxxxxxx X. Xxxxxxx | |
|
Title: SVP, Finance, CFO and
Secretary
|
Title: VP — M&A | |
|
Address: 0000 Xxxxxxx Xxxxx
Xxxx
Xxx Xxxxx, XX 00000 |
Address: 00 Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxx, XX 00000 |
