EXHIBIT 10.9


 


CONFIDENTIAL TREATMENT REQUESTED AS TO CERTAIN INFORMATION CONTAINED IN
THIS EXHIBIT 10.9 AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.


 


 


REAGENT
SUPPLY AGREEMENT


 


dated as of June
30, 2005


 


by and among


 


ABBOTT
LABORATORIES


 


(“Seller”);


 


and


 


INVERNESS
MEDICAL INNOVATIONS, INC.


 


(“Parent”);


 


and


 


INVERNESS
MEDICAL JAPAN, LTD.


 


(“Inverness
Japan”)


 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Performance of
  Obligations by Affiliates

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  ORDERING AND DELIVERY

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Purchase and Sale of
  Reagents

  	
   

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Purchase Orders

  	
   

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Acceptance
  or Rejection of Purchase Orders

  	
   

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Forecasts

  	
   

  
	
   

  	
   

  	
   

  
	
  2.5

  	
  Shipment

  	
   

  
	
   

  	
   

  	
   

  
	
  2.6

  	
  Certificate of Conformance

  	
   

  
	
   

  	
   

  	
   

  
	
  2.7

  	
  No Purchase Requirements

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  PRICE; ADJUSTMENT
  PAYMENT; SHIPMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Purchase
  Price

  	
   

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Purchase Price Adjustments

  	
   

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Payment
  Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  REAGENT WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Limited Reagent Warranty

  	
   

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Non-Conforming Reagents

  	
   

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Rejected Reagents

  	
   

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Notice of Material Events

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Indemnification by Seller

  	
   

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Indemnification by Buyer

  	
   

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  Cooperation and
  Notice Requirements

  	
   

  
	
   

  	
   

  	
   

  
	
  5.4

  	
  No Consequential Damages

  	
   

  
	
   

  	
   

  	
   

  
	
  5.5

  	
  Termination
  of Indemnification Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  5.6

  	
  Covenant
  to Use Commercially Reasonable Efforts to Secure Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  5.7

  	
  Reagents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  TERM AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Term and Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Termination for Breach

  	
   

  
				



 





















 


	
  6.3

  	
  Termination without Cause

  	
   

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Survival Beyond Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Guarantee of Performance

  	
   

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Force
  Majeure

  	
   

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Assignability

  	
   

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Public Disclosure;
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  7.6

  	
  Dispute Resolution

  	
   

  
	
   

  	
   

  	
   

  
	
  7.7

  	
  Clause Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  7.8

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  7.9

  	
  Relationship of the Parties

  	
   

  
	
   

  	
   

  	
   

  
	
  7.10

  	
  Governing
  Law

  	
   

  
	
   

  	
   

  	
   

  
	
  7.11

  	
  Captions and Titles

  	
   

  
	
   

  	
   

  	
   

  
	
  7.12

  	
  Execution

  	
   

  
				



 


ii





















 


Exhibits
and Schedules


 


	
  Exhibits

  
	
   

  
	
  Exhibit A – Reagent
  Specifications

  
	
   

  
	
  Schedules

  
	
   

  
	
  Schedule 1.1(a) – Reagents

  
	
   

  



i





















 


REAGENT
SUPPLY AGREEMENT


 


THIS
REAGENT SUPPLY AGREEMENT (this “Agreement”) is made
and entered into as of June 30, 2005, by and among Inverness Medical
Innovations, Inc. a Delaware corporation (“Parent”), and Inverness
Medical Japan, Ltd., an entity organized under the laws of Japan (“Inverness
Japan” and, together with Parent, “Buyer”), on the one hand, and
Abbott Laboratories, an Illinois corporation (“Seller”), on the other
hand.


 


WHEREAS,
from the Effective Date, Inverness Japan and certain Affiliates have acquired
certain assets to permit them to manufacture the Product Line; and


 


WHEREAS,
from the Effective Date, Inverness Japan wishes to engage
Seller to supply the Reagents (as defined herein) to Inverness Japan in
accordance with the terms and subject to the conditions of this Agreement.


 


NOW,
THEREFORE, in consideration of the premises and the mutual
covenants, agreements and provisions herein contained, the Parties agree as
follows:


 


ARTICLE 1


 


DEFINITIONS


 


1.1           Definitions.  All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Asset Purchase
Agreement.  In addition to the terms
defined above and other terms defined in other Sections of this Agreement, the
following initially capitalized terms have the following meanings when used
herein:


 


“Seller
Indemnitees” has the meaning set forth in Section 5.2.


 


“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
such Person; provided, however, that for the avoidance of doubt
and subject to the following sentence, the term “Affiliate” shall exclude, with
respect to Seller, TAP Pharmaceuticals Inc., a Delaware corporation, TAP
Finance Inc., a Delaware corporation and TAP Pharmaceuticals Reagents Inc., a
Delaware corporation and, with respect to Buyer, PBM-Selfcare LLC, a Delaware
limited liability company.  For purposes
of this definition, a Person shall be deemed to control another Person if it
owns or controls more


 





















 


than 50% of the voting equity of the other Person (or
other comparable ownership if the Person is not a corporation).


 


“Applicable
Law” means each provision of any currently existing federal, state, local
or foreign, civil and criminal law, statute, ordinance, order, code, rule,
regulation or common law, promulgated or issued by any Governmental Authority,
as well as any judgments, decrees, injunctions or agreements issued or entered
into by any Governmental Authority.


 


“Asset
Purchase Agreement” means that certain Asset Purchase Agreement executed on
May 28, 2005, between Parent, Inverness Japan, Inverness Switzerland, Seller
and Abbott Japan.


 


“Buyer
Indemnitees” has the meaning set forth in Section 5.1.


 


“Effective
Date” means the day following the day of the expiration or termination of
that certain Manufacturing Support Services Agreement dated June 30, 2005
executed between Seller and Buyer.


 


“Losses”
has the meaning set forth in Section 5.1.


 


“Non-Conforming
Reagents” has the meaning set forth in Section 4.2.


 


“Parties”
means Seller, Parent and Inverness Japan; and “Party” means any of the
foregoing entities.


 


“Prime
Rate” means the rate which Citibank N.A. (or its successor or another major
money center commercial bank agreed to by the Parties) announces as its prime
lending rate, as in effect from time to time.


 


“Reagent
Specifications” means those analytical specifications for the Products set
forth on Exhibit A, as they may be amended from time to time (i) by the
written agreement of the Parties or (ii) as required by the Regulatory
Authorities.


 


“Prohibited
Goods” has the meaning set forth in Section 5.7.


 


“Purchase
Order” has the meaning set forth in Section 2.2.


 


“Purchase
Price” has the meaning set forth in Section 3.1.


 


2





















 


“Reagents”
means those rare reagents used in the manufacture of the Products which are
listed on Schedule 1.1 (a).


 


“Regulatory
Authority” means any Governmental Authority that is responsible for issuing
any technical, medical, and scientific licenses, registrations, authorizations
and/or approval that are required for the manufacture of the Products in
accordance with Applicable Laws.


 


“****
Cost” means the **** cost per the BPCS system in Lake County, Illinois and
Delkenheim, Germany as of December 1, 2004 as adjusted pursuant to Section
3.2.


 


“Term”
has the meaning set forth in Section 6.1.


 


1.2           Performance
of Obligations by Affiliates.  Any
obligation of Seller under or pursuant to this Agreement may be satisfied, met
or fulfilled, in whole or in part, at Seller’s sole and exclusive option,
either by Seller directly or by any Affiliate or designee of Seller that Seller
causes to satisfy, meet or fulfill such obligation, in whole or in part.  Any obligation of Inverness Japan under or
pursuant to this Agreement may be satisfied, met or fulfilled, in whole or in
part, at Inverness Japan’s sole and exclusive option, either by Inverness Japan
directly or by any Affiliate or designee of Inverness Japan that Inverness
Japan causes to satisfy, meet or fulfill such obligation, in whole or in
part.  With respect to any particular
action, the use of the words “Seller shall” also means “Seller shall cause” the
particular action to be performed, and the use of the words “Inverness Japan
shall” also means “Inverness Japan shall cause” the particular action to be
performed.  Each of the Parties
guarantees the performance of all actions, agreements and obligations to be
performed by any Affiliates of such Party under the terms and conditions of
this Agreement.


 


ARTICLE
2


 


ORDERING AND DELIVERY


 


2.1           Purchase
and Sale of Reagents.  During the
Term, Seller shall supply and deliver to Inverness Japan the Reagents in the
quantities ordered pursuant to Article 2 and Inverness Japan shall
purchase and take delivery of the Reagents ordered from Seller in accordance
with the terms and conditions of this Agreement.


 










**** REPRESENTS TEXT OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


3





















 


2.2           Purchase
Orders.  Inverness Japan shall order the Reagents by issuing binding purchase
orders (each, a “Purchase Order”) to Seller pursuant to the terms of
this Agreement.  Each Purchase
Order or any acknowledgment thereof, whether printed, electronic, stamped,
typed, or written, shall be governed by the terms of this Agreement and none of
the provisions of such Purchase Order or acknowledgment shall be applicable
except those specifying quantity ordered, delivery dates, special shipping
instructions and invoice information. 
All Purchase Orders shall be in standard order quantities as mutually
agreed between the Parties.


 


2.3           Acceptance
or Rejection of Purchase Orders. 
Seller shall indicate its acceptance
or rejection of each Purchase Order within 10 days after receipt; provided
that Seller may reject a Purchase Order, in whole or in part, only if:  (a) the Purchase Order fails to comply with
the terms and conditions of this Agreement; (b) the delivery date is less than
90 days from the date of Seller’s receipt of such Purchase Order; or (c) the
volume under the Purchase Order and all other accepted Purchase Orders covering
the applicable monthly period exceeds the volume set forth in Inverness Japan’s
then-current forecast (delivered pursuant to

Section 2.4) by more than ****%. 
If requested by Inverness Japan, following Inverness Japan’s receipt of
Seller’s rejection notice under clause (c) above, Seller shall use commercially
reasonable efforts to deliver the excess volume of the Reagents specified in
the rejected Purchase Order, but Seller’s failure to so deliver the excess
volume shall not be a breach of this Agreement. 
Seller shall use commercially reasonable efforts to fill Inverness Japan’s
orders for the Reagents.  In no event
shall Seller be liable to any third party for Seller’s failure to deliver the
Reagents to Inverness Japan by any delivery date set forth in any Purchase
Order.


 


2.4           Forecasts.  Within 30 days after the Effective Date, Inverness Japan shall issue to Seller
Inverness Japan’s written forecast of Inverness Japan’s anticipated monthly
requirements for the Reagents during the following 12 months.  Thereafter, Inverness Japan shall provide to Seller monthly a rolling 12
month forecast of requirements of Reagents to be supplied by Seller.  The first 4 months of such forecast shall be
binding on Inverness Japan and may not be cancelled or rescheduled without
prior written agreement of Seller.  The
remaining 8 months of such forecast shall be used by Seller for planning
purposes only and shall not be considered firm orders.


 


2.5           Shipment.  Seller
shall deliver the Reagents Ex-Works (Incoterms 2000).  Seller shall be deemed to have delivered the
Reagents and title and risk of loss shall pass to Inverness Japan at the
time such Reagents are loaded onto a carrier designated by


 










**** REPRESENTS TEXT OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


4





















 


Inverness
Japan.  Inverness Japan shall be
responsible for all shipping and insurance costs.  Seller shall
provide to Inverness Japan, in advance of each shipment, all necessary
information relating to such shipment, including without limitation, the
identity of the carrier, flight number or similar information, scheduled
arrival time and package identification number.


 


2.6           Certificate
of Conformance.  All Reagents
provided shall be delivered with a document that certifies that the specified
lot(s) of Reagents delivered to Inverness Japan conform with the applicable
Reagent Specifications.  Full batch
documentation, including batch production records and manufacturing and
analytical records shall be available for review by Inverness Japan upon
reasonable notice from Inverness Japan.


 


2.7           No
Purchase Requirements.  Nothing in
this Agreement shall obligate Inverness Japan to buy any specific amount of
Reagents and Inverness Japan shall be obligated to purchase only those
quantities of Reagents included in the 4 binding months of the rolling
forecast.


 


ARTICLE
3


 


PRICE; ADJUSTMENT PAYMENT;
SHIPMENT.


 


3.1           Purchase
Price.  The price of the Reagents
shall be an amount equal to the **** Costs per unit plus ****% (the “Purchase
Price”) plus any applicable Taxes such as value-added Taxes or similar
Taxes. At Inverness Japan’s request, Seller shall provide Inverness Japan with
all documentation supporting Seller’s standard costs of manufacturing the
Reagents.


 


3.2           Purchase
Price Adjustments.  On December 1 of
each calendar year during the Term, the Purchase Price then in effect shall be
increased or decreased by an amount equal to the percentage increase or
decrease in Seller’s **** Costs of the Reagents then in effect.  At Inverness Japan’s request, Seller shall
provide Inverness Japan with all documentation supporting any increase or
decrease in Seller’s **** Costs of the Reagents.


 


3.3           Payment
Terms.  Seller shall invoice
Inverness Japan upon shipment.  Inverness
Japan shall make payment net 30 days from the date of Seller’s invoice, provided,
however, that Inverness Japan shall notify Seller of any disputed
invoice as soon as practicable and a timeline for resolving such dispute shall
be mutually agreed by the Parties within **** days of the date of the disputed
invoice.  Failure to pay a disputed


 










**** REPRESENTS TEXT OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


5





















 


invoice shall not
be deemed a breach of this Agreement by Inverness Japan and shall not relieve
Seller from its commitment to continue to supply Reagents hereunder.  Reagent invoices that remain unpaid within ****
days after the invoice date, other than invoices being disputed in accordance
with the terms set forth above, shall bear interest at a rate per annum equal
to Prime Rate plus 2%; provided, however, any invoices disputed
by Inverness Japan and resolved in favor of Seller shall be subject to such
late payment fee as of the invoice date until paid in full.  All payments hereunder shall be made in
Dollars unless the Parties expressly agree in writing to use a different
currency.


 


3.4           Taxes.  Any Taxes (other than that assessed against
income), license, fee or other charge lawfully assessed or charged on the sale
or transportation of Reagents sold pursuant to this Agreement shall be
separately stated on the invoice provided by Seller to Inverness Japan and
shall be paid by Inverness Japan.


 


ARTICLE
4 


 


REAGENT WARRANTIES


 


4.1           Limited
Reagent Warranty.  Seller represents
and warrants to Inverness Japan that the Reagents, when delivered, shall
conform to the Reagent Specifications and shall be free of defects in
materials, workmanship, packaging or labeling for a period equal to its stated
shelf life. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE REAGENTS AND
HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.


 


4.2           Non-Conforming
Reagents.  Within 30 days after
Inverness Japan’s receipt thereof, Inverness Japan may reject any Reagents
supplied hereunder which do not conform to the warranties set forth in Section
4.1 (“Non-Conforming Reagents”), provided that such
Non-Conforming Reagents have not become non-conforming due to any failure by
Inverness Japan or its agents or representatives (other than, in each case,
Seller) to handle, maintain, operate, or store such Reagents as required by the
labeling or the Reagent Specifications. 
Inverness Japan shall provide written notice to Seller specifying the
reason for such rejection.


 










**** REPRESENTS TEXT OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


6





















 


4.3           Rejected
Reagents.  At the request and expense
of Seller, Inverness Japan shall return the defective Reagents, or a
representative sample thereof, to Seller for testing.  Should such test results reasonably confirm
the Reagents are Non-Conforming Reagents, Inverness Japan shall return such
Non-Conforming Reagents to Seller’s manufacturing facility at Seller’s expense,
and Seller shall send conforming replacement Reagents to Inverness Japan at no
cost to Inverness Japan (including no costs for shipping the replacement
Reagents to Inverness Japan).  Seller
shall ship such conforming Reagents as soon as reasonably practicable.  Should such test results fail to confirm the
Reagents’ non-conformance, and should the Parties fail to otherwise resolve the
dispute, the Parties shall submit the Reagents, or a representative sample
thereof, along with a reference batch which has previously been shown by
Inverness Japan to conform to the Reagent Specifications, to a mutually
acceptable independent laboratory along with the test protocols described in
the Reagent Specifications and mutually agreeable interrogatories to be
answered by such laboratory.  The
independent laboratory’s determination of the Reagents’ conformance or
non-conformance to the Reagent Specifications shall be binding upon the
Parties.  Should the laboratory determine
that the Reagents are conforming, Inverness Japan shall pay all independent
laboratory and shipping costs incurred by Seller, and should such laboratory
confirm that the Reagents are Non-Conforming Reagents, Seller shall pay all
independent laboratory and shipping costs (including costs related to the
shipping of the replacement Reagents to Inverness Japan).


 


4.4           Notice
of Material Events.  Seller hereby
agrees to notify Inverness Japan promptly of any actual or anticipated events
which are reasonably likely to have, a material adverse effect Seller’s ability
to supply the Reagents in accordance with the provisions set forth herein,
including any labor difficulties, strikes, shortages in materials, plant
closings and other interruptions in activity.


 


ARTICLE
5


 


INDEMNIFICATION


 


5.1           Indemnification
by Seller.  Except as to Inverness
Japan’s negligent acts or omissions or willful misconduct, Seller shall
indemnify, defend and hold harmless Inverness Japan and its Affiliates and
their respective, employees, officers, directors and agents (collectively, the “Buyer
Indemnitees”) from and against any suit, proceeding, claim, liability,
loss, damage, costs or expense (including reasonable attorneys’ fees)


 


7





















 


(collectively, “Losses”),
which such Buyer Indemnitees may hereinafter incur, suffer, or be required to
pay arising out of or resulting from any Third Party claim arising out of or
attributable to any breach by Seller of the terms of this Agreement or Seller’s
negligent acts or omissions or willful misconduct.


 


5.2           Indemnification
by Buyer.  Except as to Seller’s
negligent acts or omissions or willful misconduct, Inverness Japan shall
indemnify, defend, and hold harmless Seller and its employees, officers,
directors and agents (collectively, the “Seller Indemnitees”) from and against
any Losses which such Seller Indemnitees may hereinafter incur, suffer or be
required to pay arising out of or resulting from any Third Party claim arising
out of or attributable to Inverness Japan’s use of the Reagents supplied by
Seller (provided such Reagents has been provided in accordance with the terms
of this Agreement) or Inverness Japan’s negligent acts or omissions or willful
misconduct.


 


5.3           Cooperation
and Notice Requirements.  With
respect to any claim for which a Party seeks indemnification from the other
hereunder, the Party seeking indemnification shall provide prompt notice to the
other of the claim for which indemnification is sought, shall allow the
indemnifying Party to control the defense of such claim, shall provide
reasonable cooperation and assistance to the indemnifying Party in the defense
of such claim, and shall not otherwise settle or otherwise compromise such
claim without the indemnifying Party’s prior written consent.


 


5.4           No
Consequential Damages.  NEITHER PARTY
SHALL BE LIABLE FOR CONSEQUENTIAL DAMAGES OR INDIRECT LOSS OF WHATEVER NATURE
HEREUNDER (OTHER THAN FOR LOST PROFITS TO THE EXTENT THEY ARE DIRECT RATHER
THAN CONSEQUENTIAL), UNLESS SUCH DAMAGE WAS CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE BREACHING PARTY OR OTHERS FOR WHOM THAT PARTY IS
RESPONSIBLE.


 


5.5           Termination
of Indemnification Obligations.  All
obligations for indemnification on the part of Parties hereto shall expire ****
years from the date of termination of this Agreement, except with respect to
claims already notified to the other Party prior to the end of such ****-year
period


 


5.6           Covenant
to Use Commercially Reasonable Efforts to Secure Rights.  In the event that either (a) any Reagent is
claimed or held to infringe any intellectual


 










**** REPRESENTS TEXT OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


8





















 


property right of
any Person, (b) any Reagent or the use thereof is claimed or held to constitute
or involve a misappropriation of any trade secret of any Person and, in
connection with the settlement of the applicable claim or as a result of the
applicable judgment or finding, Seller obtains a license, a covenant not to sue
or otherwise secures the right to make, use sell, offer for sale and/or import
the applicable Reagent or (c) Seller otherwise concludes that it is reasonable
or appropriate to acquire a license, a covenant not to sue or other right to
make, use, sell, offer for sale and/or import the applicable Reagent and
obtains such a license, covenant not to sue or other right, then, during the
Term, Seller will exercise commercially reasonable efforts with the applicable
licensor or Person to assist Buyer in obtaining for Buyer’s own behalf a
license, a covenant not to sue or other means to secure the right of Buyer to
make, use, sell, offer for sale and/or import the applicable Reagent.


 


5.7           Reagents.  (a) 
Buyer herby covenants that it and each of its Affiliates will not (a)
transfer to the United States or sell within the United States any (i) Products
or (ii) other goods that (1) contain or are derivate of cell lines subject to
paragraph 4 of the Consent Decree or (2) contain any Reagents supplied by
Seller and its Affiliates that have not been created within the United States
or (3) contain the Reagent 84165 S Pan-1; Hollow Fiber Harvest (“Prohibited
Goods”) and (b) will use best efforts to prevent its representatives, agents,
successors and assigns from transferring Prohibited Goods to or selling
Prohibited Goods in the United States (including by the immediate termination
or expiration of sales to distributors to the extent necessary to comply
herewith); provided, however, that solely in the case of Products or
other goods that contain any Reagents supplied by Seller and its Affiliates
that have been created within the United States (other than Reagent 84165 S
Pan-1; Hollow Fiber Harvest) this covenant shall not prohibit the transfer to
or sale of such Products or other goods if (A) the FDA has first provided
confirmation reasonably satisfactory to Seller that transfer or sale in the
United States is acceptable to the FDA or (B) the restrictions imposed upon
Seller with respect to a particular Prohibited Good under the Consent Decree
has expired, lapsed or otherwise terminated. 
Buyer further acknowledges that because a breach, or failure to comply
with, this Section 5.7(a) will cause irreparable injury to Seller for
which there is no adequate remedy by Law and the exact amount of which will be
difficult to ascertain, if Buyer, or any Affiliate, representative, agent
successor or assign thereof, should in any way breach, or fail to comply with,
the terms of this Section 5.7(a), Seller shall be immediately entitled
to an injunction restraining such Person(s) from any such breach or failure,
without the necessity of proving injury or damages or engaging in the
alternative dispute


 


9





















 


resolution process
set forth in the Asset Purchase Agreement. 
Resort of any such remedy provided for by Law shall not preclude or bar
the concurrent or subsequent employment of any other appropriate remedy or
remedies, or preclude the recover by Seller of monetary damages and
compensation.


 


(b)           Buyer
acknowledges and agrees that (i) those Reagents manufactured by Seller and its
Affiliates outside of the United States are not manufactured in accordance with
FDA standards and Seller and its Affiliates shall have no obligation to
modify their manufacturing processes in order for them to comply with FDA
standards, and (ii) Seller and its Affiliates have the right to move the
manufacturing location of the Reagents without obtaining Buyer’s consent.  If Seller or its Affiliates move the
manufacturing location of the Reagents, Seller and its Affiliates shall perform
and provide to Buyer, at Buyer’s request, internal equivalency studies which
evidence that such relocation does not impact the performance of the Products,
which Buyer agrees and acknowledges shall be Seller and its Affiliates’ sole
responsibility with respect to such relocation of the manufacturing of the
Reagents.  Seller acknowledges and agrees
that nothing in this Section 5.7(b) will limit Seller’s obligation to
supply the Reagents under this Agreement.


 


ARTICLE
6


 


TERM AND TERMINATION


 


6.1           Term
and Termination.  This Agreement shall become effective on the
Effective Date and shall, unless terminated earlier date in accordance with the
provisions of Section 6.2 or Section 6.3, be in effect until the
5th anniversary of the Closing Date (the “Term”); provided, however,
that following the 3rd anniversary of the Closing Date, the Parties may
mutually agree to extend the Term.


 


6.2           Termination
for Breach.  If either Party is in
default of any material obligation imposed upon such party hereunder, such
Party shall use reasonable efforts to remedy such default as soon as possible,
and if such default is not remedied within a period of 30 days after written notice
thereof is given to the defaulting Party by the other Party, then the other
Party may terminate this Agreement upon the lapse of the 30-day period.


 


6.3           Termination
without Cause.  Inverness Japan may terminate this
Agreement for any reason upon 1 years’ prior written notice to Seller; provided,
however,


 


10





















 


that Inverness
Japan must demonstrate to Seller that as of the termination date pursuant to
this Section 6.3, the Products Inverness Japan shall provide to Seller
following such termination pursuant to the Supply of Products for the
Humanitarian Program Agreement shall be in accordance with the Reagent
Specifications.


 


6.4           Survival
Beyond Termination.  Termination of
this Agreement shall not relieve either Party of any obligations accrued prior
to termination.  The obligations of the
Parties under the following Articles and Sections shall survive termination or
expiration of this Agreement: Article 4 (Representations and
Warranties), and Article 5 (Indemnification) (but only for the term set
forth therein), and Sections 7.4 (Public Disclosure; Confidentiality)
and 7.6 (Dispute Resolution).


 


ARTICLE
7


 


MISCELLANEOUS


 


 


 


7.1           Guarantee
of Performance.  Parent hereby
unconditionally guarantees to Seller the prompt and complete performance of any
and all of the obligations of Inverness Japan under or related to this
Agreement.  This guaranty is an absolute,
present and continuing guaranty of performance, and shall remain in full force
and effect until the termination of this Agreement.


 


7.2           Force
Majeure.  Neither Party shall be
liable in damages for, nor shall this Agreement be terminable or cancelable by
reason of, any delay or default in any such Party’s performance hereunder if
such default or delay is caused by events beyond such Party’s reasonable
control including, but not limited to, acts of God, regulation or law or other
action of any government or agency thereof, war or insurrection, civil
commotion, destruction of production facilities or materials by earthquake,
fire, flood or storm, labor disturbances, or epidemic.  The Party thus hindered shall promptly give
the other Party notice thereof and shall use reasonable efforts to resume its
performance hereunder if such performance is delayed or interrupted by reason
of a force majeure as listed above.


 


7.3           Assignability.  This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective successors and
assigns; provided, however, that neither this Agreement, nor any rights
or obligations hereunder, may be assigned without the prior written consent of
the other party hereto; provided, further, however, that
(a) either Party may assign its rights and obligations under this Agreement


 


11





















 


to an Affiliate of
such Party; and (b) may assign its rights and obligations in conjunction with
the sale of all or substantially all of the assets related to this
Agreement.  No assignment under this Section
7.3 shall relieve the Party to this Agreement from its obligations under
this Agreement.


 


7.4           Public
Disclosure; Confidentiality.  The public disclosure provisions set forth in
Section 11.2 of the Asset Purchase Agreement and the confidentiality provisions
set forth in Section 11.3 of the Asset Purchase Agreement are incorporated
herein by reference.


 


7.5           Waiver.  Failure to exercise, or delay in exercising,
or partial exercise, at any time, of any right, remedy, default or break with
respect to any covenants, provisions, or conditions of this Agreement by any
Party hereto shall not operate as a waiver or excuse of performance as to any
continuing or subsequent default, break, or non-observance, or subsequent
and/or similar right or remedy so as to defeat in any way the rights of the first
Party hereunder, unless an express waiver has been provided by the affected
Party in writing.


 


7.6           Dispute
Resolution.  Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be resolved through the ADR procedure set forth in
Exhibit K of the Asset Purchase Agreement.


 


7.7           Clause
Severability.  Any provision of this
Agreement that in any way contravenes the Applicable Law of any state or
country in which this Agreement is effective shall, in that state or country,
to the extent the Applicable Law is contravened, be considered separable and
non-applicable and shall not effect any other provision or provisions of this
Agreement.  The Parties shall cooperate
to mitigate the effects of any such contravening clause/term.


 


7.8           Notices.  All communications, notices and consents
provided for herein shall be in writing and be given in person or by means of
telex, facsimile or other means of wire transmission (with request for
assurance of receipt in a manner typical with respect to communications of that
type), by overnight courier or by mail, and shall become effective: (a) on
delivery if given in person; (b) on the date of transmission if sent by telex,
facsimile or other means of wire transmission; (c) 1 Business Day after
delivery to the overnight service; or (d) 4 Business Days after being deposited
in the United States mails, with proper postage and documentation, for
first-class registered or certified mail, prepaid.


 


12





















 


Notices
shall be addressed as follows:


 


If to any Buyer entity, to:


 


Inverness Medical
Innovations, Inc.

51 Sawyer Road, Suite 200

Waltham, MA 02453

Attention: General Counsel

Facsimile Number:  (781) 647-3939


 


with copies (which shall not constitute notice) to:


 


Goodwin Procter LLP

Exchange Place

Boston, MA 02109

Attention:  Scott F. Duggan

Facsimile Number:  (617) 523-1231


 


If to Seller, to:


 


Abbott Laboratories

100 Abbott Park Road

Building AP6C, Department 0392

Abbott Park, Illinois 60064-6020

Attn:  President, Abbott Diagnostics
Division

Facsimile Number: (847) 938-6277


 


with copies (which shall not constitute notice) to:


 


Abbott Laboratories

100 Abbott Park Road

Building AP6D, Department 322

Abbott Park, Illinois 60064-6020

Attn:  Divisional Vice President,
International Legal Operations

Facsimile Number: (847) 938-1342


 


provided, however, that if
any Party shall have designated a different address by notice to the others,
then to the last address so designated.


 


13





















 


7.9           Relationship
of the Parties.  The relationship of
the Parties under this Agreement is that of independent contractors.  Nothing contained in this Agreement is
intended or is to be construed so as to constitute the Parties as partners, joint
ventures, or either Party as an agent or employee of the other.  Neither Party has any express or implied
right under this Agreement to assume or create any obligation on behalf of or
in the name of the other, or to bind the other Party to any contract, agreement
or undertaking with any third party, and no conduct of the Parties shall be
deemed to infer such right.


 


7.10         Governing
Law.  All disputes arising in any
manner out of or in relation to this Agreement shall be resolved in accordance
with the laws of the State of Illinois, without reference to its choice of laws
provisions.


 


7.11         Captions
and Titles.  The titles of the
Articles and Sections contained in this Agreement are for convenience only and
shall not be considered in construing this Agreement.


 


7.12         Execution.  This Agreement shall be executed in 2
identical counterparts, both of which shall contain the signatures of a person
with the authority to bind each of the Parties hereto.


 


[Signature Page Follows]


 


14





















 


IN WITNESS WHEREOF, the Parties have caused this
Agreement to be executed on the date first above written.


 


 


 


 


	
   

  	
  INVERNESS MEDICAL
  INNOVATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul T. Hempel

  	
   

  
	
   

  	
  Name:

  	
  Paul T. Hempel

  
	
   

  	
  Title:

  	
  Secretary and General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INVERNESS MEDICAL
  JAPAN, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul T. Hempel

  	
   

  
	
   

  	
  Name:

  	
  Paul T. Hempel

  
	
   

  	
  Title:

  	
  Representative Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABBOTT LABORATORIES

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean Murphy

  	
   

  
	
   

  	
  Name:

  	
  Sean Murphy

  
	
   

  	
  Title:

  	
  Vice President, Global
  Licensing/

  New Business Development

  
					



 





















 


Exhibit
A


 


Reagent
Specifications


 


 


****


 


 










**** REPRESENTS 20 PAGES OF TEXT OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.  THE OMITTED
MATERIAL HAS BEEN FILED SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSION


 





















 


Schedule
1.1 (a)


 


 


Reagents


 


	
  37060

  	
   

  	
  ****

  
	
  60545

  	
   

  	
  ****

  
	
  61779

  	
   

  	
  ****

  
	
  83627

  	
   

  	
  ****

  
	
  91247

  	
   

  	
  ****

  
	
  95024

  	
   

  	
  ****

  
	
  90132

  	
   

  	
  ****

  
	
  90446L

  	
   

  	
  ****

  
	
  91655

  	
   

  	
  ****

  
	
  91656

  	
   

  	
  ****

  
	
  92646

  	
   

  	
  ****

  
	
  93304

  	
   

  	
  ****

  
	
  97999

  	
   

  	
  ****

  
	
  98223

  	
   

  	
  ****

  
	
  99800

  	
   

  	
  ****

  
	
  84165

  	
   

  	
  ****

  
	
  94010

  	
   

  	
  ****

  
	
  94245

  	
   

  	
  ****

  
	
  J0861

  	
   

  	
  ****

  
	
  J0881

  	
   

  	
  ****

  



 










****
REPRESENTS TEXT OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.  THE OMITTED MATERIAL HAS BEEN FILED
SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSION