exv10w55



Table of Contents




EXHIBIT 10.55















ASSET PURCHASE AGREEMENT



BY AND BETWEEN



GENICON SCIENCES CORPORATION



AND



INVITROGEN CORPORATION



JUNE 27, 2003




















TABLE OF CONTENTS




									
	EXHIBIT 10.55
	EXHIBIT 10.56
	EXHIBIT 10.57
	EXHIBIT 10.58
	EXHIBIT 10.59
	EXHIBIT 31.1
	EXHIBIT 31.2
	EXHIBIT 32.1
	EXHIBIT 32.2








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TABLE OF CONTENTS



[MUST BE UPDATED]




	 	 	 	 	 	 	 
	
    ARTICLE I DEFINITIONS
    	 	
    1
    
	 	1.1	 	 	
    Definitions
    	 	
    1
    
	 
	
    ARTICLE II ASSET PURCHASE
    	 	
    6
    
	 	2.1	 	 	
    Purchase and Sale of Assets; Assumption of
    Liabilities
    	 	
    6
    
	 	2.2	 	 	
    Purchase Price and Related Matters
    	 	
    8
    
	 	2.3	 	 	
    The Closing
    	 	
    9
    
	 	2.4	 	 	
    Further Assurances
    	 	
    10
    
	 
	
    ARTICLE III REPRESENTATIONS AND WARRANTIES OF
    SELLER
    	 	
    10
    
	 	3.1	 	 	
    Organization and Qualification; Subsidiaries
    	 	
    10
    
	 	3.2	 	 	
    Certificate of Incorporation and By-Laws
    	 	
    11
    
	 	3.3	 	 	
    Authority Relative to this Agreement
    	 	
    11
    
	 	3.4	 	 	
    No Conflict; Required Consents and Filings
    	 	
    11
    
	 	3.5.	 	 	
    Compliance, Permits
    	 	
    12
    
	 	3.6	 	 	
    Financial Statements
    	 	
    13
    
	 	3.7	 	 	
    Absence of Certain Changes or Events
    	 	
    13
    
	 	3.8	 	 	
    No Undisclosed Liabilities
    	 	
    13
    
	 	3.9	 	 	
    Absence of Litigation
    	 	
    14
    
	 	3.10	 	 	
    Employee Benefit Plans, Employment Agreements
    	 	
    14
    
	 	3.11	 	 	
    Employment and Labor Matters
    	 	
    16
    
	 	3.12	 	 	
    Restrictions on Business Activities
    	 	
    16
    
	 	3.13	 	 	
    Title to Property
    	 	
    16
    
	 	3.14	 	 	
    Taxes
    	 	
    16
    
	 	3.15	 	 	
    Environmental Matters
    	 	
    19
    
	 	3.16	 	 	
    Intellectual Property
    	 	
    19
    
	 	3.17	 	 	
    Interested Party Transactions
    	 	
    20
    
	 	3.18	 	 	
    Trade Relations
    	 	
    20
    
	 	3.19	 	 	
    Disclosure
    	 	
    20
    
	 
	
    ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
    BUYER
    	 	
    20
    
	 	4.1	 	 	
    Organization
    	 	
    20
    
	 	4.2	 	 	
    Authority
    	 	
    20
    
	 	4.3	 	 	
    Noncontravention
    	 	
    21
    
	 	4.4	 	 	
    Litigation
    	 	
    21
    
	 
	
    ARTICLE CONDITIONS PRECEDENT TO CLOSING
    	 	
    21
    
	 	5.1	 	 	
    Conditions to Obligations of the Buyer
    	 	
    21
    
	 	5.2	 	 	
    Conditions to Obligations of Seller
    	 	
    23
    
	 
	
    ARTICLE VI INDEMNIFICATION
    	 	
    23
    
	 	6.1	 	 	
    Indemnification by Seller
    	 	
    23
    




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(continued)




	 	 	 	 	 	 	 	 	 
					Page
					

	 	6.2	 	 	
    Indemnification by the Buyer
    	 	 	24	 
	 	6.3	 	 	
    Claims for Indemnification
    	 	 	24	 
	 	6.4	 	 	
    Survival
    	 	 	25	 
	 	6.6	 	 	
    Treatment of Indemnification Payments
    	 	 	26	 
	 
	
    ARTICLE VII ADDITIONAL COVENANTS
    	 	 	26	 
	 	7.1	 	 	
    Taxes
    	 	 	26	 
	 	7.2	 	 	
    UCC Matters
    	 	 	27	 
	 	7.3	 	 	
    Discharge of Business Obligations
    	 	 	27	 
	 	7.4	 	 	
    Public Announcement
    	 	 	27	 
	 	7.5	 	 	
    Post Closing Obligation to Employees
    	 	 	27	 
	 	7.6	 	 	
    Non-Solicitation of Employees
    	 	 	28	 
	 	7.7	 	 	
    Delivery of Certain Business Records
    	 	 	29	 
	 	7.8	 	 	
    Confidentiality
    	 	 	29	 
	 
	
    ARTICLE VIII POST-CLOSING AGREEMENTS
    	 	 	29	 
	 	8.1	 	 	
    Collection of Receivables
    	 	 	29	 
	 
	
    ARTICLE IX MISCELLANEOUS
    	 	 	30	 
	 	9.1	 	 	
    No Third-Party Beneficiaries
    	 	 	30	 
	 	9.2	 	 	
    Entire Agreement
    	 	 	30	 
	 	9.3	 	 	
    Succession and Assignment
    	 	 	30	 
	 	9.4	 	 	
    Notices
    	 	 	30	 
	 	9.5	 	 	
    Amendments and Waivers
    	 	 	31	 
	 	9.6	 	 	
    Severability
    	 	 	31	 
	 	9.7	 	 	
    Expenses
    	 	 	31	 
	 	9.8	 	 	
    Specific Performance
    	 	 	31	 
	 	9.9	 	 	
    Governing Law
    	 	 	31	 
	 	9.10	 	 	
    Construction
    	 	 	31	 
	 	9.11	 	 	
    Waiver of Jury Trial
    	 	 	32	 
	 	9.12	 	 	
    Incorporation of Exhibits and Schedules
    	 	 	32	 
	 	9.13	 	 	
    Counterparts and Facsimile Signature
    	 	 	32	 




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	Schedules:		
	
		
	
    
    Schedule 2.1(a)(i)
    

    	 	
    Assigned Contracts
    
	
    
    Schedule 2.1(a)(ii)
    

    	 	
    Trademarks and Patent Rights
    
	
    
    Schedule 5.1(g)
    

    	 	
    Applicable Permits
    
	
    
    Seller’s Schedule 9.5(a)
    

    	 	
    Seller Employees
    
	
    
    Buyer’s Schedule 9.5(a)
    

    	 	
    Transferred Employees
    





	 	 	 
	Exhibits:		
	
		
	
    
    Exhibit A
    

    	 	
    Bill of Sale
    
	
    
    Exhibit B
    

    	 	
    Assignment and Assumption Agreement
    
	
    
    Exhibit C
    

    	 	
    Form of Confidentiality/Employment Agreements
    
	
    
    Exhibit D
    

    	 	
    Inverness Agreements
    
	
    
    Exhibit E
    

    	 	
    Form of Funding Agreement
    




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ASSET PURCHASE AGREEMENT


     
This ASSET PURCHASE AGREEMENT (the
“Agreement”) is entered into as of
June 27, 2003, by and between Genicon Sciences Corporation,
a California Corporation (“Seller”), and
Invitrogen Corporation., a Delaware corporation (the
“Buyer”). Seller and the Buyer are referred to
herein individually as a “Party” and
collectively as the “Parties.”




INTRODUCTION


     
Seller has proprietary technology in labeling and
detection and is in the business of commercializing reagents and
instruments related thereto.



     
The Buyer desires to purchase from Seller, and
Seller desires to sell to the Buyer, all of Seller’s right,
title and interest in and to the assets and properties of the
Business, upon the terms and conditions set forth herein.




TERMS


     
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained
in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:




ARTICLE 1




DEFINITIONS



     
1.1 Definitions. Whenever used in
this Agreement, the terms defined below shall have the indicated
meaning:



     
“Account
Parties” shall have the meaning
set forth in Section 10.1.



     
“Ancillary
Agreements” shall mean the
Assignment and Assumption Agreement and the Bill of Sale.



     
“Affiliate”
means, with respect to any Person, any Person which directly or
indirectly through stock ownership or otherwise either controls,
or is controlled by or under common control with, such Person.



     
“Agreement”
shall have the meaning set forth in
the preamble.



     
“Applicable Accounting
Principles” means United States
generally accepted accounting principles
(“GAAP”) (applied on a “going
concern” basis without reflecting the transactions
contemplated under this Agreement).



     
“Applicable
Permits” shall have the meaning
set forth in Section 6.1(g).



     
“Assigned
Contracts” shall have the meaning
set forth in Section 2.1(a)(i).



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“Assignment and Assumption
Agreement” shall mean the
Assignment and Assumption Agreement in the form of
Exhibit B hereto.



     
“Assumed
Liabilities” shall have the
meaning set forth in Section 2.1(b).



     
“Bill of
Sale” means the Bill of Sale in
the form of Exhibit A hereto.



     
“Business”
shall mean Seller’s business of commercializing reagents
and instruments related thereto, as currently conducted (giving
effect to the Inverness Transactions).



     
“Business
Assets” shall have the meaning
set forth in Section 2.1(a).



     
“Business Material Adverse
Effect” means (i) any effect
that is materially adverse to the Business Assets or the
Business, as operated on the date of this Agreement, taken as a
whole, other than any such effect resulting solely from changes
in the general financial markets or solely from changes in the
international or national markets for the products made by use
of the Business Assets which have not had a materially
disproportionate impact on the Business; or (ii) any matter
that materially impairs the ability of Seller to consummate the
transactions contemplated by this Agreement.



     
“Buyer”
shall have the meaning set forth in the preamble.



     
“Buyer
Certificate” shall have the
meaning set forth in Section 6.2(d).



     
“Buyer Indemnitees”
shall have the meaning set forth in
Section 7.1.



     
“Buyer Receivables
Account” shall have the meaning
set forth in Section 10.1.



     
“Claim
Notice” shall have the meaning
set forth in Section 7.3(b).



     
“Closing”
shall have the meaning set forth in Section 2.3(a).



     
“Closing
Date” shall have the meaning set
forth in Section 2.3(a).



     
“Closing Statement of
Assets” shall mean a statement of
the assets of the Business as of the Closing, to be delivered by
the Seller to the Buyer at the Closing.



     
“Code”
means the Internal Revenue Code of 1986, as amended.



     
“Damages”
shall have the meaning set forth in Section 7.1



     
“Environmental
Law” means any foreign, federal,
state, provincial, or municipal statute, rule, regulation,
ordinance, directives, orders or decrees of any Governmental
Authority in effect on or before the Closing Date and relating
to the protection of the environment, including without
limitation pertaining to the presence, manufacture, processing,
use, treatment, storage, disposal, transportation, handling,
generation or Release of Hazardous Substances.



     
“Environmental
Liabilities” means any and all
Liabilities (including without limitation the costs of
investigation, clean up actions, remedial actions or other
response costs, but in each



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case solely to the extent such actions are
required by applicable law) arising out of or relating to any of
the following conditions or events to the extent such conditions
or events occur on or before the Closing Date (which means that,
to the extent a Liability is attributable to one of the
following conditions which existed before the Closing Date but
continued after the Closing Date, a prorated portion of such
Liability applicable to the portion of such time period ending
on and including the Closing Date, as measured against the
entire duration of the condition): (a) environmental
conditions, including the presence or Release or exposure to
Hazardous Substances at, on, in, from or around the Real Estate,
(b) the off-site transportation, storage, treatment,
recycling, disposal or arrangement for disposal of or
distribution of Hazardous Substances by or on behalf of Seller
or any of its predecessors in connection with the Business or
the Business Assets, and (c) any violation of any
Environmental Law.



     
“Excluded
Liabilities” shall have the
meaning set forth in Section 2.1(c).



     
“Funding
Agreement” shall have the meaning
set forth in Section 5.6.



     
“Funding Termination
Date” means the earlier to occur
of (a) the date through which the Buyer continues to fund
the operations of Seller pursuant to the terms of the Funding
Agreement or (b) 2:00 p.m. (California time) on the
date on which Seller would become obligated to transfer its
rights and obligations under the Regents Agreement (as defined
in the Inverness License Agreement) to Inverness Medical
Switzerland, GmbH.



     
“GAAP”
shall have the meaning set forth in the definition of
“Applicable Accounting Principles.”



     
“Governmental
Authority” means any governmental
department, commission, board, bureau, agency, court or other
instrumentality of the United States or foreign country or any
county, jurisdiction, municipality or other political
subdivision thereof or any other supranational organization of
sovereign states.



     
“Hazardous
Substance” means any hazardous or
toxic substance, pollutant, material, waste or contaminant that
is regulated by an Environmental Law.



     
“Indemnified
Party” shall have the meaning set
forth in Section 7.3(a).



     
“Indemnifying
Party” shall have the meaning set
forth in Section 7.3(a).



     
“Inverness License
Agreement” shall mean the
Technology License Agreement, dated as of June 19, 2003, by
and between Seller and Inverness Medical Switzerland GmbH.



     
“Inverness
Transactions” shall mean the
transactions described in that certain Master Agreement, dated
as of June 19, 2003, by and among Seller, Inverness Medical
Innovations, Inc. and Inverness Medical Switzerland, GmbH and
the Inverness License Agreement.



     
“IRS”
means the Internal Revenue Service of the United States of
America.



     
“Knowledge of the
Buyer” means the actual knowledge
of Martin Naley with respect to the matter in question.



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“Knowledge of
Seller” means the actual
knowledge of Patrick Mallon with respect to the matter in
question.



     
“Letter”
shall have the meaning set forth in Section 10.1.



     
“Liability”
means any liability or obligation (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent,
whether accrued or unaccrued, whether liquidated or unliquidated
and whether due or to become due.)



     
“Lien”
means any lien, charge, claim, pledge, security interest,
conditional sale agreement or other title retention agreement,
lease, mortgage, security agreement, or right of first refusal
(including title defects of any kind whatsoever, or the filing
of, or agreement to give any financing statement under the
Uniform Commercial Code or statute or law of any jurisdiction).



     
“Material
Loss” shall mean a loss or damage
suffered or incurred by a Party or other adverse circumstance
affecting a Party which has a reasonable likelihood of being
valued at $100,000 or more.



     
“Parties”
shall have the meaning set forth in the preamble.



     
“Patent
Rights” shall have the meaning
set forth in Section 2.1(a)(ii).



     
“Permitted
Encumbrances” means (a) any
Liens for Taxes and assessments arising in the ordinary course
of business that are not yet due and payable; (b) and
mechanics’ lien or other similar lien imposed by law
arising in the ordinary course of business which secures an
obligation that is not yet due or payable; (c) any Liens
applied in connection with the Assumed Liabilities; and
(d) the Liens created in connection with the Inverness
Transactions.



     
“Person”
means an individual, a corporation, a limited liability company,
a partnership, an association, a trust or other entity or
organization, including a federal, state, local or foreign
government or regulatory entity or political subdivision or an
agency or instrumentality thereof.



     
“Propriety
Asset” means any and all of the
following in any country: (a) patents (including utility
models, design patents, certifications of invention, extensions,
reissues, reexaminations and the like), patent applications
(including provisionals, divisionals, continuations and
continuations-in-part), trademarks (whether registered or
unregistered), trademark applications, trade names, fictitious
business names, service marks (whether registered or
unregistered), service mark applications, copyrights (whether
registered or unregistered), copyright applications, moral
rights, maskworks, maskwork applications, trade secrets,
know-how, computer software, computer programs, source code,
algorithms, inventions, discoveries, technology and other
intellectual property rights and intangible assets; and
(b) the right (whether at law, in equity by contract or
otherwise) to use or otherwise exploit any of the foregoing.



     
“Purchase
Price” shall have the meaning set
forth in Section 2.2(a).



     
“Real
Estate” means the premises leased
pursuant to the Sorrento Lease.



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“Release”
means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing (including the abandonment or
discarding of barrels, containers, and other closed receptacles
containing any Hazardous Substances) or the threat thereof.



     
“Seller”
shall have the meaning set forth in
the preamble.



     
“Seller Certificate”
shall have the meaning set forth in
Section 6.1(f).



     
“Seller Employees”
shall have the meaning set forth in
Section 9.5(a).



     
“Seller Indemnitees”
shall have the meaning set forth in
Section 7.2.



     
“Straddle Period”
means any Taxable period that
includes, but does not end on the Closing Date.



     
“Taxes”
(including, with correlative meaning,
the terms “Tax” and “Taxable”)
shall mean all taxes of any kind imposed by a federal, state,
local or foreign Governmental Authority, including but not
limited to (i) all taxes, domestic or foreign, including
without limitation any income (net, gross or other, including
recapture of any tax items such as investment tax credits),
alternative or add-on minimum tax, gross income, gross receipts,
gains, sales, use, leasing, lease, user, ad valorem, transfer,
recording, franchise, profits, property (real or personal,
tangible or intangible), fuel, license, withholding, payroll,
employment, unemployment, social security, excise, severance,
stamp, occupation, premium, environmental or windfall profit
tax, custom, duty or other tax, or other like assessment or
charge of any kind whatsoever, together with any interest,
levies, assessments, charges, penalties and additions,
(ii) any joint or several liability of such Person with any
other Person for the payment of any amounts of the type
described in (i) of this definition and (iii) any liability
for the payment of any amounts of the type described in (i) as a
result of any express or implied obligation to indemnify any
other Person.



     
“Tax Returns“
means all reports, returns, schedules
and any other documents required to be filed with respect to
Taxes and all claims for refunds of Taxes.



     
“Third-Party”
shall mean any Person who is not a
Party to this Agreement or an Affiliate of a Party to this
Agreement.



     
“Third-Party Claim”
shall have the meaning set forth in
Section 7.3(a).



     
“Trademarks”
shall have the meaning set forth in
Section 2.1(a)(ii).



     
“Transfer Documents”
shall have the meaning set forth in
Section 2.3(b).



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ARTICLE II



ASSET PURCHASE


     
2.1 Purchase and Sale of Assets;
Assumption of Liabilities.



     
(a) Transfer of Assets. At the
Closing Seller shall sell, convey, assign, transfer and deliver
to the Buyer, and the Buyer shall purchase and acquire from
Seller, substantially all of Seller’s right, title and
interest in and to the Business Assets, free and clear of all
material Liens, other than Permitted Encumbrances. For purposes
of this Agreement, the “Business Assets” shall
mean substantially all assets used in the operation of the
Business on the date of this Agreement (excluding (i) any
cash (whether restricted or unrestricted), cash equivalents or
investment securities (such as the shares of equity of Inverness
Medical Innovations, Inc.) of Seller and (ii) any
radioactive material and/or waste), including, without
limitation, all of Seller’s right, title and interest in
and to the following:




		
	 	     
    (i) those oral and written contracts,
    agreements, licenses, and other arrangements used in the
    Business set forth on Schedule 2.1(a)(i) and all exhibits
    and amendments thereto (the “Assigned
    Contracts”);
    
	 
	 	     
    (ii) all of Seller’s right, title and
    interest in any Proprietary Assets generated or used by or on
    behalf of Seller in connection with the Business, including,
    without limitation, those trademarks and trade names and
    registrations thereof and registration applications therefor set
    forth on Schedule 2.1(a)(ii) hereto (the
    “Trademarks”) and those patents (including any
    extension, reissue, reexamination or the like relating thereto)
    and patent applications (including any provisional, divisional,
    continuation or continuation in part) set forth on
    Schedule 2.1(a)(ii) hereto (the “Patent
    Rights”);
    
	 
	 	     
    (iii) all actions, claims, causes of action,
    rights of recovery, choses in action or rights to set off,
    whether arising out of occurrences before or after the Closing
    Date, including Third-Party warranties and guarantees with
    respect to any of the Business Assets;
    
	 
	 	     
    (iv) all of Seller’s accounts
    receivable and other receivables relating to the Business Assets
    or arising out of the conduct of the Business (including without
    limitation the accounts receivable owed to Seller by Qiagen GmbH
    of at least $250,000, and any cash payments made on such Qiagen
    GmbH receivable); and
    
	 
	 	     
    (v) all other assets and properties
    reflected on the Closing Statement of Assets (excluding any cash
    (whether restricted or unrestricted), cash equivalents or
    investment securities of Seller, other than cash received from
    Qiagen GmbH pursuant to Section 2.1(a)(iv)).
    




     
(b) Assumed Liabilities. The Buyer
shall (x) be responsible for all Liabilities associated
with the Buyer’s ownership, operation and use of the
Business Assets and the Business from and after the Closing and
(y) at the Closing, assume and agree to pay, perform and
discharge when due the following additional Liabilities (the
Liabilities specified in the foregoing clauses (x) and (y)
being herein referred to as the “Assumed
Liabilities”):



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    (i) all Liabilities arising out of or
    relating to the replacement or return of, or any claim for
    breach of warranty in respect of or refund of the purchase price
    of, products sold out of inventory by Seller on or prior to the
    Closing Date;
    
	 
	 	     
    (ii) all Liabilities with respect to
    actions, suits, proceedings, disputes, claims or investigations
    arising out of or related to the use of the Business Assets
    after the Closing Date;
    
	 
	 	     
    (iii) all Liabilities arising out of or
    relating to the replacement or return of, or any claim for
    breach of warranty in respect of or refund of the purchase price
    of products, services and technologies which either
    (x) constitute Business Assets, or (y) are
    manufactured or provided through the use of the Business Assets,
    to the extent the Liabilities described in clauses (x) and
    (y) above arise after the Closing Date;
    
	 
	 	     
    (iv) with respect to the Standard Industrial
    Net Lease by and between Seller and Sorrento Business Complex
    dated June 14, 1999, as amended (the “Sorrento
    Lease”), all Liabilities arising out of Buyer’s
    use of the property subject thereto for the period from and
    after the Closing Date, as provided in
    Section 6.1(d);
    
	 
	 	     
    (v) any Liability of Seller relating to that
    certain $1,000,000 Subordinated Convertible Promissory Note by
    and between Seller and Qiagen GmbH entered into in January 2003;
    
	 
	 	     
    (vi) any Liability of Seller (except for a
    $25,000 payment payable in connection with the Inverness
    Transactions, which payment Seller shall remain obligated to
    pay) to bioMerieux B.V. (formerly Organon Teknika B.V.)
    (“bMx”) arising in connection with that certain
    License Agreement dated December 1, 2000 between Seller and
    bMx, whether arising prior to, in connection with, or following
    the Closing Date;
    
	 
	 	     
    (vii) subject to Section 2.1(d) below, any
    Liability with respect to the period after the Closing Date
    under the Assigned Contracts; and
    
	 
	 	     
    (viii) all Liabilities in respect of Taxes
    for which the Buyer is liable pursuant to Section 9.1.
    




     
(c) Excluded Liabilities. Except as
otherwise set forth in Section 2.1(b), the Buyer shall not
assume or be responsible for any of the following Liabilities of
Seller (the “Excluded Liabilities”);




		
	 	     
    (i) any Liabilities of seller relating to
    the Business Assets and the Business with respect to the period
    on or prior to the Closing Date;
    
	 
	 	     
    (ii) with respect to Sorrento Lease, all
    Liabilities arising out of Seller’s use of the property
    subject thereto for the period prior to the Closing Date;
    
	 
	 	     
    (iii) any Liability of Seller relating to
    the Loan and Security Agreement by and between Seller and
    Silicon Valley Bank dated August 24, 2001, as amended;
    




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    (iv) any Liabilities of Seller relating to
    any Seller insurance policies;
    
	 
	 	     
    (v) any Liabilities of Seller relating to
    any employee of Seller arising prior to the Closing;
    
	 
	 	     
    (vi) any Liabilities of Seller relating to
    any agreements between Seller and its shareholders in connection
    with their acquisition or ownership of securities of Seller
    (including, but not limited to Stock Purchase Agreements, Voting
    Agreements, Co-Sale Agreements);
    
	 
	 	     
    (vii) all Environmental Liabilities; and
    
	 
	 	     
    (viii) all Liabilities in respect of Taxes
    for which Seller is liable pursuant to Section 9.1.
    




     
(d) Consent of Third Parties. To the
extent that the assignment of all or any portion of any Assigned
Contract shall require the consent of the other party thereto or
any other Third-Party, this Agreement shall not constitute an
agreement to assign any such Assigned Contract if an attempted
assignment without any such consent would constitute a breach or
violation thereof. Seller agrees to take all commercially
reasonable actions to secure Third-Party consents necessary to
assign the Assigned Contracts to Buyer. In order, however, to
provide the Buyer the full realization and value of every
Assigned Contract, Seller agrees that on and after the Closing
it will at the request and under the direction of the Buyer and
at the Buyer’s sole cost and expense, in the name of Seller
or otherwise as the Buyer shall specify, take all commercially
reasonable actions (including the appointment of the Buyer as
attorney-in-fact for Seller) as shall in the reasonable opinion
of the Buyer or its counsel be necessary or proper (i) to
assure that the rights of Seller shall be preserved for the
benefit of or transferred or issued to the Buyer, (ii) to
facilitate receipt of the consideration to be received by
Seller, which consideration shall be held for the benefit of,
and shall be delivered to, the Buyer, and (iii) to enforce
provisions under such Assigned Contracts restricting or
prohibiting use, transfer or disclosure of any confidential
information relating to the Business or any Business Assets
against third parties bound by such provisions. Nothing in this
Section 2.1(d) shall in any way diminish the obligations of
Seller under Sections 5.1 and 6.1 hereof.



     
2.2 Purchase Price and Related
Matters.



     
(a) Purchase Price. In consideration
of the sale and transfer of Seller’s right, title and
interest in the Business Assets, the Buyer shall assume the
Assumed Liabilities as provided in Section 2.1(b) and shall
pay to Seller an aggregate purchase price of One Million Two
Hundred Fifty Thousand Dollars ($1,250,000) (the “Purchase
Price”). At the Closing, the Buyer shall pay the Purchase
Price to Seller by wire transfer of immediately available funds
to the account designated by Seller in writing.



     
(b) Allocation of Purchase Price. The
aggregate amount of the Purchase Price paid by the Buyer
hereunder and the Assumed Liabilities shall be allocated among
the Business Assets for Tax purposes, in compliance with Section
1060 of the Code, and any comparable provisions of state, local,
foreign or other applicable Tax laws.



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2.3 The Closing.



     
(a) Time and Location. The closing of
the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of
the Buyer on a mutually agreed date as soon as practicable, but
in no event more than three (3) Business Days after the first
date on which the conditions to the obligations of the Parties
to consummate the transactions contemplated hereby have been
satisfied or waived (the “Closing Date”). A
“Business Day” shall mean any day other than
(i) a Saturday or Sunday or (ii) a day on which
banking institutions located in San Diego, California are
permitted or required by law, executive order or governmental
decree to remain closed. The transfer of Seller’s right,
title and interest in the Business Assets by Seller to the Buyer
shall be deemed to occur at 12:01 a.m., PST time, on the
Closing Date.



     
(b) Actions at the Closing. At the
Closing:




		
	 	     
    (i) Seller shall deliver (or cause to be
    delivered) to the Buyer the various certificates, instruments
    and documents required to be delivered under Section 6.1;
    
	 
	 	     
    (ii) the Buyer shall deliver (or cause to be
    delivered) to Seller the various certificates, instruments and
    documents required to be delivered under Section 6.2;
    
	 
	 	     
    (iii) Seller shall execute and deliver to
    the Buyer the Bill of Sale;
    
	 
	 	     
    (iv) the Buyer and Seller shall execute and
    deliver the Assignment and Assumption Agreement;
    
	 
	 	     
    (v) the Buyer shall pay to Seller the
    Purchase Price in accordance with the provisions of
    Section 2.2 hereof;
    
	 
	 	     
    (vi) Seller shall deliver to the Buyer, or
    otherwise put the Buyer in possession and control of, all of the
    Business Assets of a tangible nature;
    
	 
	 	     
    (vii) the Buyer and Seller shall execute and
    deliver to each other a cross-receipt evidencing the
    transactions referred to above;
    
	 
	 	     
    (viii) Seller shall have delivered to the
    Buyer Lien releases, pay-off letters and UCC-3 termination
    statements as may be necessary to evidence the release and
    termination of all material Liens (other than Permitted
    Encumbrances) on the Business Assets and on Seller’s right,
    title and interest in the Business Assets that are not owned by
    Seller;
    
	 
	 	     
    (ix) Seller shall execute and deliver
    certificates as required under Section 1445 of the Code and
    Section 1.1445-2(b) of the Treasury regulations;
    provided, however, that if Seller fails or refuses to
    deliver the certificate required to confirm it is not a
    “foreign person” as such term is defined in
    Section 1445(f)(3) of the Code, or the Buyer has actual
    knowledge that such certificate is false, the Buyer shall deduct
    and withhold from the Purchase Price a Tax as required by
    Section 1445 of the Code; and, provided, further,
    that, in the
    




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    event of any such withholding, the Closing
    hereunder shall not be otherwise affected, the Buyer shall remit
    such amount to and file the required form with the IRS and
    Seller in the event of any claimed over-withholding,
    (A) shall be limited solely to an action against the IRS
    for a refund, and (B) hereby waives any right of action
    against the Buyer on account of such withholding; and
    





		
	 	     
    (x) Seller shall deliver to the Buyer all
    keys, access codes and combinations to all locks, and other
    security devices to the Real Estate.
    




     
The agreements and instruments referred to in
clauses (i)-(x) above are referred to herein as the
“Transfer Documents.”



     
2.4 Further Assurances. At any time
and from time to time after the Closing Date, as and when
requested by any Party hereto and at such Party’s expense,
the Buyer and Seller shall, and Seller shall promptly execute
and deliver, or cause to be executed and delivered, all such
documents, instruments and certificates and shall take, or cause
to be taken, all such further or other actions as are reasonably
necessary to fully vest in the Buyer title to all of
Seller’s right, title and interest in the Business Assets.




ARTICLE III



REPRESENTATIONS AND WARRANTIES OF
SELLER



     
Seller represents and warrant to the Buyer that
on the date hereof, except as set forth in the section of the
written disclosure schedule delivered on or prior to the date
hereof by Seller (the “Seller Disclosure
Schedule”) corresponding to each representation and
warranty made hereunder by Seller:



     
3.1 Corporate Existence and Power.
Seller (a) is a corporation duly organized, validly
existing and in good standing under the laws of the state of
California and (b) has the power and authority and the
legal right to own and operate its property and the Business
Assets, and to carry on the Business as it is now being
conducted. Seller has no subsidiaries.



     
3.2 Authorization and Enforcement of
Obligations. Seller (a) has the requisite power and
authority and the legal right to enter into this Agreement and
to perform its obligations hereunder and (b) has taken all
necessary action on its part to authorize the execution and
delivery of this Agreement and the performance of its
obligations hereunder. The consummation by the Seller of the
transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Seller and no
other authorization or consent of the Seller or its shareholders
is necessary. This Agreement has been duly executed and
delivered on behalf of Seller, and constitutes a legal, valid,
binding obligation, enforceable against Seller in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability
if considered in a proceeding in equity or at law).



     
3.3 No Consents. All necessary
consents, approvals and authorizations of all governmental
authorities and other Persons required to be obtained by Seller
in connection with the Agreement and the performance hereof have
been obtained, except for any notice, consent or



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waiver the absence of which would not reasonably
be expected to result in a Business Material Adverse Effect.



     
3.4 No Conflict. The execution and
delivery of this Agreement and the performance of Seller’s
obligations hereunder (a) do not conflict with or violate
any requirement of applicable laws, (b) do not violate any
provision of the charter or organizational documents of Seller
and (c) do not conflict with, or constitute a default
under, any of its material contractual or other obligations, in
each case except for any conflict or violation that would not
reasonably be expected to result in a Business Material Adverse
Effect.



     
3.5 Financial Statements. Seller has
delivered to the Buyer the unaudited consolidated financial
statements of the Business (balance sheet, cash flow, and an
income statement) for the six-month period ended April 30,
2003 (the “Financial Statements”). To the
Knowledge of Seller, the Financial Statements (a) have been
prepared in accordance with Applicable Accounting Principles
applied on a consistent basis throughout the period involved
(except as may be indicated in the notes thereto, if any, and
for the absence of notes), and (b) fairly present the
consolidated financial position of Seller and its subsidiaries
as at the respective dates thereof and the consolidated results
of their operations and cash flows for the period indicated,
except where the Financial Statements were or are subject to
normal and recurring year-end adjustments which were not or are
not expected to be material in amount.



     
3.6 Assigned Contracts Valid. Seller
has not received written notice that any party to an Assigned
Contract intends to terminate such contract, and, to the
Knowledge of Seller, Seller is not in material breach of any
material Assigned Contract.



     
3.7 Employee Agreements. All past and
present employees of Seller have executed Employee
Confidentiality and Inventions Agreements or Employment
Agreements in the forms attached hereto at Exhibit C.



     
3.8 Intellectual Property. To the
Knowledge of Seller, the conduct of the Business as conducted by
Seller as of the Closing Date does not infringe any intellectual
property right of any Third Party or constitute unfair
competition. As of the Closing Date, Seller has not received
(1) any notice of any third party claims pertaining to
Licensed Products or Licensed Processes as those terms are
defined in the Joint Ownership and License Agreement dated
December 19, 2000 by and between Seller and The Regents of
the University of California (the “Regents
Agreement”), (ii) any infringement notice pursuant to
Section 10.1 of the Regents Agreement, or (iii) any
notice of breach pursuant to Section 11.1 of the Regents
Agreement. As of the Closing Date, there have been no requests
by either party to the Regents Agreement for indemnification by
the other party, and, to the Knowledge of Seller, there are no
product liability claims pending or threatened pertaining to any
of the Products or Processes as those terms are defined in the
Regents Agreement.



     
3.9 No Undisclosed Liabilities.
Seller has no knowledge of any circumstance, condition, event or
arrangement that would reasonably be expected to give rise
hereafter to any material liabilities of Seller, except in the
ordinary course of business.



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3.10     No
Litigation. Except for the complaint filed against Seller by
Sorrento Business Complex on June 6, 2003, a true and
correct copy of which has been furnished to the Buyer, there is
no governmental action or proceeding, and no litigation,
arbitration or similar proceeding, pending or, to the Knowledge
of Seller, threatened in writing against Seller or its
properties which would reasonably be expected to have a Business
Material Adverse Effect.



     
3.11     Absence of
Liens. When transferred to the Buyer, the Business Assets
will be free and clear of all material Liens, including any Tax
Lien, other than Permitted Encumbrances.



     
3.12     Compliance
with Protective Order. Seller acknowledges the existence of
that certain Protective Order to Govern Production of
Confidential Information entered by the Superior Court of the
State of California for the County of San Diego on or about
February 15, 2000, governing the production of information
in Genicon Sciences Corp., v. Regents of the University of
California, et. al. To the Knowledge of Seller, Seller has
not disclosed any Confidential Information to the Buyer, and no
Confidential Information, as defined in the protective order, is
included in the Business Assets.



     
3.13     Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE III, THE
BUSINESS ASSETS ARE PROVIDED “AS-IS” WITHOUT WARRANTY
OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH OF THE
PARTIES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT RELATING TO
THE BUSINESS ASSETS.




ARTICLE IV



REPRESENTATIONS AND WARRANTIES OF THE
BUYER



     
The Buyer represents and warrants to Seller that
the statements contained in this Article IV are true and
correct as of the date hereof.



     
4.1     Organization.
The Buyer is a corporation, duly organized, validly existing and
in good standing under the laws of the state of Delaware.



     
4.2     Authority.
The Buyer has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder and thereunder. The execution and delivery
by the Buyer of this Agreement and the consummation by the Buyer
of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action on the part of
the Buyer and no other authorization or consent of the Buyer or
its shareholders is necessary. This Agreement has been duly
executed and delivered by the Buyer and, assuming this Agreement
constitutes the valid and binding obligation of the other
Parties thereto, this Agreement constitutes, a valid and binding
obligation of the Buyer, enforceable against the Buyer in
accordance with its terms.



     
4.3     No
Conflict. The execution and delivery of this Agreement and
the performance of Buyer’s obligations hereunder
(a) do not conflict with or violate any requirement of
applicable laws, (b) do not violate any provision of the
charter or organizational documents of Buyer and



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 (c) do not conflict with, or constitute a
default under, any of its material contractual or other
obligations, in each case except for any conflict or violation
that would not reasonably be expected to materially impair the
ability of the Buyer to consummate the transactions contemplated
by this Agreement (a “Buyer Material Adverse Effect”);




     
4.4 Litigation. There are no actions,
suits, claims or legal, administrative or arbitration
proceedings pending against, or, to the Knowledge of the Buyer,
threatened in writing against, the Buyer which would reasonably
be expected to have a Buyer Material Adverse Effect.




ARTICLE V



COVENANTS



     
5.1 Operation of the Business. Except
as contemplated by this Agreement, during the period from the
date of this Agreement until the Funding Termination Date, the
Buyer and Seller agree that, unless the Buyer shall otherwise
consent in writing, the following provisions shall apply:




		
	 	     
    (a) Seller shall carry on the Business in
    the ordinary course;
    
	 
	 	     
    (b) Seller shall use commercially reasonable
    efforts to (i) maintain and preserve the Business Assets,
    (ii) maintain the insurance of the Business at reasonably
    appropriate levels, (iii) comply with all material laws,
    (iv) preserve the goodwill of suppliers, customer and
    others having business relations with the Business and
    (v) maintain the Business, as well as Seller’s books
    of account, records and files related to the conduct of the
    Business, all in the ordinary course of business;
    
	 
	 	     
    (c) Seller shall inform the Buyer in writing
    of any event or circumstance that (i) has or could
    reasonably be expected to have a Business Material Adverse
    Effect, or (ii) is a material breach of a representation,
    warranty, covenant or agreement of Seller herein, each no later
    than three (3) Business Days after obtaining knowledge of
    such an event or circumstance;
    
	 
	 	     
    (d) Seller shall inform the Buyer in writing
    of any event or circumstance that has or would reasonably be
    expected to have a material adverse effect with respect to the
    Real Estate no later than three (3) Business Days after
    obtaining knowledge of such an event or circumstance, including,
    without limitation:
    





		
	 	     
    (i) a fire or other casualty causing
    significant damage to the Real Estate;
    
	 
	 	     
    (ii) receipt of notice of eminent domain
    proceedings or condemnation of all or any part of the Real
    Estate;
    




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    (iii) receipt of a notice from any
    Governmental Authority or insurance underwriter relating to the
    condition, use or occupancy of the Real Estate or any real
    estate adjacent to the Real Estate or setting forth any
    requirements with respect thereto;
    
	 
	 	     
    (iv) receipt of any notice of default from
    the holder of any lien or security interest in the Real Estate
    or any portion thereof;
    
	 
	 	     
    (v) notice of any actual or threatened
    litigation against Seller affecting or relating to the Real
    Estate;
    
	 
	 	     
    (vi) the commencement of any strike,
    lock-out, boycott or other labor trouble affecting the Real
    Estate; or
    
	 
	 	     
    (vii) receipt of any Tax assessment disputes
    prior to the Funding Termination Date, and Seller will not agree
    to any changes in the real estate Tax assessment, nor settle,
    withdraw or otherwise compromise any pending claims with respect
    to prior Tax assessments without the Buyer’s prior written
    consent, and, if any proceedings shall result in any reduction
    of assessment and/or Tax for the Tax year in which the Closing
    occurs, it is agreed that the amount of Tax savings or refund
    for such Tax year less the fees and disbursements in connection
    with such proceedings, shall be apportioned between the parties
    as of the date the real estate Taxes are apportioned under this
    Agreement;
    





		
	 	     
    (e) except as contemplated by this
    Agreement, or except with the Buyer’s express written
    approval, Seller shall not, except as otherwise provided for in
    Schedule 5.1(e):
    





		
	 	     
    (i) commit to make, or make, any capital
    expenditure in excess of $10,000 in the aggregate relating to
    the Business;
    
	 
	 	     
    (ii) enter into any other type of contract,
    agreement or arrangement (oral or written) which would be
    assumed by the Buyer, unless such contract, agreement or
    arrangement is entered into the ordinary course of business
    pursuant to standard terms and conditions;
    
	 
	 	     
    (iii) enter into any contract, agreement or
    arrangement (oral or written) that requires the consent or
    approval of any Third-Party to consummate the transactions
    described in this Agreement or any Ancillary Agreement;
    
	 
	 	     
    (iv) cancel or make any material
    modifications or amendments to any material contract included
    among the Business Assets;
    
	 
	 	     
    (v) sell, lease (as lessor), transfer or
    otherwise dispose of any Business Assets, other than inventory
    sold in the ordinary course of business and other than cash,
    cash equivalents or investment securities (including the shares
    of equity of Inverness Medical Innovations, Inc.);
    
	 
	 	     
    (vi) grant or transfer any rights to the
    Proprietary Assets that are part of the Business Assets (other
    than any non-exclusive, non-perpetual licenses entered into in
    the ordinary course of business pursuant to standard terms and
    conditions which (a) do not involve
    




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    the receipt or payment by Seller of aggregate
    consideration or value of more than $10,000 and (b) do not
    provide for the use of rights that were exclusive to Seller
    prior to such license, and then only after first consulting with
    the Buyer (although Buyer’s written consent shall not be
    required as a pre-condition to Seller’s entering into such
    license));
    





		
	 	     
    (vii) fail to prosecute, defend and maintain
    in a manner consistent with past practice any Proprietary Assets
    that are part of the Business Assets;
    
	 
	 	     
    (viii) mortgage or pledge any Business
    Assets, except for Permitted Encumbrances;
    
	 
	 	     
    (ix) cancel any debts owed to or claims held
    by Seller relating to the Business (including the settlement of
    any claim or litigation) other than in the ordinary course of
    business;
    
	 
	 	     
    (x) accelerate or delay collection of any
    notes or accounts receivable generated by the Business in
    advance of or beyond their regular due dates or the dates when
    the receivable would have been collected in the ordinary course
    of the Business;
    
	 
	 	     
    (xi) change the accounting policies by the
    Seller in the operation of the Business during the prior six
    months, or make or revoke any Tax election or settle or
    compromise any Tax liability that would affect the Business
    Assets or the Assumed Liabilities after the Closing;
    
	 
	 	     
    (xii) prepare or file any Tax Return with
    respect to the Business Assets or the Assumed Liabilities
    inconsistent with past practice or, on any such Tax Return, take
    any position, make any election, or adopt any method that is
    inconsistent with the position taken, elections made or methods
    used in preparing similar Tax Returns with respect to the
    Business Assets or the Assumed Liabilities in prior periods;
    
	 
	 	     
    (xiii) hire any additional employees, except
    as set forth on Schedule 5.1(e)(xiii) (it being
    understood that Seller may hire consultants without notifying or
    obtaining any consent from the Buyer); or
    
	 
	 	     
    (xiv) enter into any agreement or commitment
    to take any action prohibited by this Section 5.1.
    




     
5.2 Access. During the period from
the date of this Agreement until the Funding Termination Date,
Seller shall permit representatives of the Buyer to have access
(at reasonable times, on reasonable (and in any event not less
than three Business Days’) prior written notice and in a
manner that in the reasonable opinion of Seller will not
interfere with the normal business operations of the Business or
the business of Seller) to the Real Estate and other operational
locations of the Business for inspecting, investigating,
measuring, surveying and making related inquiries and audits of
the Real Estate, financial and accounting records, contracts,
personnel and other records and documents of Seller pertaining
to the Business (including for the purpose of conducting
environmental investigations).



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5.3 Exclusivity. During the period
from the date of this Agreement until the Funding Termination
Date, Seller shall not, directly or indirectly, authorize or
permit any of its officers, directors, managers, employees,
agents, advisors or representatives to, (a) initiate,
solicit or encourage any proposal, offer or discussion with any
party (other than the Buyer) concerning any acquisition of any
portion of the Business or any of the equity of Seller;
(b) engage in discussions or negotiations with any party
(other than the Buyer) concerning any such acquisition
transaction; (c) enter into any agreement relating to any
such acquisition transaction; (d) furnish to any Person
nonpublic information relating to the Business; or (e) take
any other action to cooperate in any way, or facilitate any
inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any such acquisition
transaction; provided, however, that notwithstanding anything to
the contrary in this Section 5.3, this Section 5.3
shall in no way prohibit Seller from discussing with,
negotiating with or furnishing information to (or taking any
other action otherwise prohibited under this Section 5.3
with respect to) any of Seller’s existing shareholders or
noteholders (other than Qiagen GmbH) with respect to (i) a
sale of Seller’s assets to any such shareholder or
noteholder or (ii) a debt or equity investment in Seller by any
such shareholder or noteholder. Seller shall notify the Buyer if
it receives a proposal for the acquisition of the Business or
Seller (other than any transaction described in the proviso to
the first sentence of this Section 5.3) on or after the
date hereof and prior to the Closing; provided, that Seller
shall be under no obligation to disclose to the Buyer the
identity of the Person making any such acquisition proposal nor
the terms thereof; and provided, further, that nothing in this
Section 5.3 shall obligate Seller to disclose to the Buyer
any proposal to acquire Seller or other subsidiaries or
businesses other than the Business and Seller.



     
5.4 Notice of Litigation. The Buyer
will promptly notify Seller of any action, suit or proceeding
that is instituted or threatened against the Buyer to restrain,
prohibit or otherwise challenge the legality of any transaction
described in this Agreement arising prior to the Funding
Termination Date. Seller will promptly notify the Buyer of any
action, suit or proceeding that is instituted or threatened
against Seller to restrain, prohibit or otherwise challenge the
legality of any transaction described in this Agreement arising
prior to the Funding Termination Date. Seller will promptly
notify the Buyer of any lawsuit, claim, proceeding or
investigation that is threatened, brought or asserted against
Seller that would have been listed in Article III if the
lawsuit, claim, proceeding or investigation had arisen prior to
the date of this Agreement.



     
5.5 Supplements to Seller Disclosure
Schedule. As promptly as practicable, Seller will provide
the Buyer with a supplement or amendment to Seller Disclosure
Schedule with respect to any matter, condition or occurrence
hereafter arising between the date hereof and the Funding
Termination Date which, if existing or occurring on the date of
this Agreement, would have been required to be set forth or
described in such Seller Disclosure Schedule, and if not so set
forth or described, would have constituted a material breach of
this Agreement. In addition, between the date hereof and the
Funding Termination Date, Seller shall promptly inform the
Buyer, and the Buyer will promptly inform Seller, of any fact or
event which comes to its attention, the existence of which
constitutes or likely will constitute a material breach of any
representation or warranty of the other party in this Agreement.



     
5.6 Funding Agreement. Simultaneous
with the execution of this Agreement, Seller and the Buyer will
execute the funding agreement side letter in the form attached
hereto as Exhibit E (the “Funding
Agreement”).



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5.7 Inverness Transactions. The Buyer
covenants that, in the event that the transactions described
herein are not consummated (for any reason other than failure by
Seller to obtain the requisite shareholder and noteholder
consent for the transactions contemplated hereby) and the
Business Assets are conveyed to Inverness pursuant to the terms
of the Inverness Transactions, the Buyer will not, for a period
of two (2) years following the date of this Agreement,
directly or indirectly purchase or license any significant
portion of the Business Assets from Inverness.




ARTICLE VI



CONDITIONS PRECEDENT TO CLOSING



     
6.1 Conditions to Obligations of the
Buyer. The obligation of the Buyer to consummate the
transactions contemplated hereby at the Closing is subject to
the satisfaction (or waiver by the Buyer) of the following
conditions:




		
	 	     
    (a) without giving effect to any supplement
    or amendment to the Seller Disclosure Schedule, the
    representations and warranties of Seller set forth in
    Article III shall have been true and correct in all
    material respects (other than those that are qualified as to
    materiality, which shall have been true and correct in all
    respects) when made (except where any such failure of such
    representations and warranties to be true in all material
    respects does not result in or involve a Material Loss to
    Seller, the Business Assets or the Business) and as of the
    Closing Date as though made again on the Closing Date (except
    where any such failure of such representations and warranties to
    be true in all material aspects as though made again on the
    Closing Date would not constitute a Business Material Adverse
    Effect);
    
	 
	 	     
    (b) Seller shall have performed or complied
    in all material respects with the agreements and covenants
    required to be performed or complied with by it under this
    Agreement as of or prior to the Closing;
    
	 
	 	     
    (c) If Seller shall have executed an
    exclusive license to its proprietary technology to Inverness
    Medical Switzerland GmbH in the field of developing and
    commercializing any assay for the point of care market, such
    license shall be in a form approved by Buyer (it being
    understood that the executed versions of the Master Agreement
    and Technology License Agreement, each dated as of June 19,
    2003, by and among Seller, Inverness Medical Innovations, Inc.
    and Inverness Medical Switzerland, GmbH attached hereto as
    Exhibit D are acceptable to Buyer); and
    
	 
	 	     
    (d) Seller or Buyer shall have entered into
    an agreement with Sorrento Business Complex, L.P. that permits
    the Buyer to remove the Business Assets from the Real Estate;
    
	 
	 	     
    (e) no action, suit or proceeding shall be
    pending by or before any Governmental Authority seeking to
    prevent consummation of the transactions contemplated by this
    Agreement, and no judgment, order, decree, stipulation or
    injunction enjoining or preventing the consummation of the
    transactions contemplated by this Agreement shall be in effect;
    
	 
	 	     
    (f) Seller shall have delivered to the Buyer
    a certificate (the “Seller Certificate”) signed
    by a duly authorized officer of Seller to the effect that each
    of the conditions specified in clauses (a) through
    (e) (insofar as clause (e) relates to an action, suit
    or proceeding involving, or
    




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    a judgment, order, decree, stipulation or
    injunction against, Seller) of this Section 5.1 have been
    satisfied;
    





		
	 	     
    (g) the Applicable Permits listed on
    Schedule 6.1(g) (if any) (the “Applicable
    Permits”) shall have been renewed or be in effect and,
    if required, transferred or reissued to the Buyer;
    
	 
	 	     
    (h) the Buyer shall have received (i) a
    certificate of good standing of Seller in the jurisdiction of
    incorporation of Seller, (ii) a certified copy of
    resolutions adopted by the Buyer’s board of directors
    approving the consummation of the transactions contemplated by
    this Agreement and (iii) fully executed copies of all
    necessary consents by Buyer’s shareholders and noteholders
    approving the consummation of the transactions contemplated by
    this Agreement;
    
	 
	 	     
    (i) the sum of the Buyer’s accounts
    receivable as of the Closing plus the aggregate value of
    Buyer’s inventory as of the Closing (as set forth on the
    Closing Statement of Assets delivered by Seller at the Closing)
    shall be equal to at least $350,000, plus the receivable from
    Qiagen GmbH described in Section 2.1(a)(iv);
    
	 
	 	     
    (j) Buyer shall have received an executed
    Conditional Amendment to that certain Development, Production
    and Supply Agreement by and between Genicon Sciences Corporation
    and KMC Systems, Inc., dated December 31, 2001;
    
	 
	 	     
    (k) Seller shall have delivered to the Buyer
    consents to assign certain agreements and rights thereunder to
    the Buyer from: (i) Organon Teknika B.V., (ii) Imaging
    Research, Inc. and (iii) the Regents for the assignment of
    Additional Seashell Inventions and Genicon Patent Rights (as
    those terms are used in that certain Joint Ownership and License
    Agreement entered into by and between Genicon Sciences
    Corporation and the Regents of the University of California,
    dated December 19, 2000);
    
	 
	 	     
    (l) Inverness Medical Innovations, Inc.
    and/or Inverness Medical Switzerland, GmbH shall have received
    consent from bioMerieux B.V. (successor in interest to Organon
    Teknika B.V.) to sublicense rights pursuant to the Inverness
    Transaction;
    
	 
	 	     
    (m) Seller shall have delivered all
    certificates, instruments, contracts and other documents to be
    delivered by each of them pursuant to Section 2.3(b)
    (including all applicable Ancillary Agreements); and
    
	 
	 	     
    (n) no Business Material Adverse Effect
    shall have occurred since the date of this Agreement.
    




     
6.2 Conditions to Obligations of
Seller. The obligation of Seller to consummate the
transactions contemplated hereby at the Closing is subject to
the satisfaction (or waiver by Seller) of the following
conditions:




		
	 	     
    (a) without giving effect to any supplement
    or amendment to the Buyer Disclosure Schedule, the
    representations and warranties of the Buyer set forth in Article
    IV shall have been true and correct in all material respects
    (other than those that are qualified as to materiality, which
    shall have been true and correct in all respects) when made
    (except where any
    




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    such failure of such representations and
    warranties to be true in all material respects would not result
    in or involve a Material Loss to the Buyer), and as of the
    Closing Date as though made again on the Closing Date (except
    where any such failure of such representations and warranties to
    be true in material aspects as though made again on the Closing
    Date would not constitute a Buyer Material Adverse Effect);
    





		
	 	     
    (b) the Buyer shall have performed or
    complied in all material respects with its agreements and
    covenants required to be performed or complied with by it under
    this Agreement as of or prior to the Closing;
    
	 
	 	     
    (c) no action, suit or proceeding shall be
    pending by or before any Governmental Authority seeking to
    prevent consummation of the transactions contemplated by this
    Agreement or any of the Ancillary Agreements, and no judgment,
    order, decree, stipulation or injunction enjoining or preventing
    consummation of the transactions contemplated by this Agreement
    or any of the Ancillary Agreements shall be in effect;
    
	 
	 	     
    (d) the Buyer shall have delivered to Seller
    a certificate (the “Buyer Certificate”) signed
    by a duly authorized officer of the Buyer to the effect that
    each of the conditions specified in clauses (a) through (c)
    (insofar as clause (c) relates to an action, suit or
    proceeding involving, or a judgment, order, decree, stipulation
    or injunction against, the Buyer) of this Section 5.2 have
    been satisfied;
    
	 
	 	     
    (e) the Buyer shall have effected all of the
    Governmental Filings, if any, which are required on the part of
    the Buyer to consummate the transactions contemplated by this
    Agreement;
    
	 
	 	     
    (f) Seller shall have received a certified
    copy of resolutions adopted by the Buyer’s board of
    directors reflecting that specific approval by the board is not
    required for asset acquisitions, where the aggregate
    consideration paid to the seller is less than $5,000,000;
    
	 
	 	     
    (g) the Buyer shall have delivered all
    certificates, instruments, contracts and other documents to be
    delivered by it pursuant to Section 2.3(b)(including all
    applicable Ancillary Agreements); and
    
	 
	 	     
    (h) no Buyer Material Adverse Effect shall
    have occurred since the date of this Agreement.
    





ARTICLE VII



INDEMNIFICATION



     
7.1 Indemnification by Seller.
Subject to the terms and conditions of this Article VII,
from and after the Closing, Seller shall indemnify the Buyer and
its officers, directors, managers, employees, agents,
representatives and its Affiliates and their officers,
directors, managers, employees, agents, representatives (the
“Buyer Indemnitees”) in respect of, and hold
the Buyer Indemnitees harmless against, any and all liabilities,
obligations, judgments, interest, losses, assessments, damages,
fines, fees, penalties, costs and expenses (determined on a
pre-tax basis, but after credit for applicable insurance
proceeds actually received by an Indemnified Party with respect
to such previously described liabilities, losses and the like,
whether such



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 receipt is before or after payment by an
Indemnifying Party, subrogation rights of the Indemnified
Party’s insurers being hereby waived, and also including,
without limitation, reasonable attorney’s fees and
reasonable expenses of investigating and defending claims,
lawsuits, complaints, actions or other pending or threatened
litigation) (collectively the “Damages”)
incurred or suffered by any of the Buyer Indemnities to the
extent resulting from or attributable to:





		
	 	     
    (a) any breach of any representation or
    warranty of Seller contained in this Agreement; or
    
	 
	 	     
    (b) any failure by Seller to pay, perform or
    discharge any Excluded Liabilities.
    




     
7.2 Indemnification by the Buyer.
Subject to the terms and conditions of this Article VII,
from and after the Closing, the Buyer shall indemnify each of
Seller and its officers, directors, managers, employees, agents,
representatives and its Affiliates and their officers,
directors, managers, employees, agents and representatives (the
“Seller Indemnities”) in respect of, and hold
Seller Indemnitees harmless against, any and all Damages
incurred or suffered by any of Seller Indemnitees to the extent
resulting from or attributable to:




		
	 	     
    (a) any breach of any representation or
    warranty of the Buyer contained in this Agreement; or
    
	 
	 	     
    (b) any failure by the Buyer to pay, perform
    or discharge any Assumed Liabilities.
    




     
7.3 Claims for Indemnification.



     
(a) Third-Party Claims. All claims
for indemnification made under this Agreement resulting from,
related to or arising out of a claim made by a Third-Party
against an Indemnified Party (as defined below) shall be made in
accordance with the following procedures. A person entitled to
indemnification under this Article VII (an
“Indemnified Party”) shall give prompt written
notification to the person from whom indemnification is sought
(the “Indemnifying Party”) of the commencement
of any action, suit or proceeding relating to a claim by a
Third-Party (a “Third-Party Claim”) for which
indemnification may be sought or, if earlier, upon the assertion
of any such claim by a Third-Party. Such notification shall
include a description in reasonable detail (to the extent known
by the Indemnified Party) of the facts constituting the basis
for such Third-Party Claim and the amount of the Damages
claimed. Within thirty (30) days after delivery of such
notification, the Indemnifying Party may, upon written notice
thereof to the Indemnified Party, assume control of the defense
of such Third-Party Claim. If the Indemnifying Party does not
assume control of such defense, the Indemnified Party shall
control such defense. The party not controlling such defense may
participate therein at its own expense; provided that if the
Indemnifying Party assumes control of such defense and the
Indemnified Party reasonably concludes, based on advice from
counsel, that the Indemnifying Party and the Indemnified Party
have conflicting interests with respect to such Third-Party
Claim, the reasonable fees and expenses of counsel to the
Indemnified Party solely in connection therewith shall be
considered “Damages” for purposes of this Agreement;
provided, however, that in no event shall the
Indemnifying Party be responsible for the fees and



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expenses of more than one counsel for all
Indemnified Parties. The Party controlling such defense shall
keep the other Party advised of the status of such Third-Party
Claim and the defense thereof and shall consider recommendations
made by the other Parties with respect thereto. Unless and until
an Indemnified Party has waived its claim for indemnification
under this Article VII with respect to a Third-Party Claim,
the Indemnified Party shall not agree to any settlement of such
Third-Party Claim without the prior written consent of the
Indemnifying Party, which will not be unreasonably withheld. The
Indemnifying Party shall not agree to any settlement of such
Third-Party Claim that does not include a complete release of
the Indemnified Party from all liability with respect thereto or
that imposes any liability or obligation on the Indemnified
Party or that restricts any of the rights purported to be
transferred pursuant to this Agreement without the prior written
consent of the Indemnified Party, which consent will not be
unreasonably withheld.



     
(b) Procedure for Other Claims. An
Indemnified Party wishing to assert a claim for indemnification
under this Article VII which is not subject to
Section 7.3(a) shall deliver to the Indemnifying Party a
written notice (a “Claim Notice”) which
contains a statement that the Indemnified Party is entitled to
indemnification under this Article VII, the amount of
Damages incurred, if then ascertainable, and a reasonable
explanation of the basis of the claim for indemnification and
the Damages incurred. Within thirty (30) days after
delivery of a Claim Notice, the Indemnifying Party shall deliver
to the Indemnified Party a written response in which the
Indemnifying Party shall: (i) agree that the Indemnified
Party is entitled to indemnification hereunder (in which case
the Indemnifying Party shall make payment to the Indemnified
Party, by check or by wire transfer, in an amount equal to the
Damages incurred or suffered), or (ii) contest that the
Indemnified Party is entitled to indemnification hereunder or
the amount of Damages claimed by the Indemnifying Party. If the
Indemnifying Party in such response contests the right to
indemnification hereunder, or if the Parties are unable to agree
on the amount of Damages incurred or suffered, the Indemnifying
Party and the Indemnified Party shall each have the right to
submit such dispute to arbitration in accordance with the
provisions of Section 11.9.



 


		
	     7.4 	
    Survival.



     
(a) The representations and warranties of
Seller and the Buyer set forth in this Agreement shall survive
the Closing and the consummation of the transactions
contemplated hereby and continue until six (6) months after
the Closing Date, at which time they shall expire.



     
(b) If an indemnification claim under
Section 7.1(a) or Section 7.2(a) is properly asserted
in writing pursuant to Section 7.3 prior to the expiration
as provided in Section 7.4(a) of the representation or
warranty that is the basis for such claim, then representation
or warranty shall survive until, but only for the purpose of,
the resolution of such claim.



     
(c) The covenants and agreements of the
Parties contained in this Agreement and the Transfer Documents
shall survive the Closing and the consummation of the
transactions contemplated hereby.



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7.5     Treatment of
Indemnification Payments. All indemnification payments made
under this Agreement shall be treated by the Parties as an
adjustment to the Purchase Price to the maximum extent allowable
under applicable law.



     
7.6     Sole Remedy;
Limitation on Indemnification. Except as otherwise provided
in this Agreement, the indemnification provided by this
Article VII shall be the sole and exclusive remedy
available to the Buyer, the Buyer Indemnitees, Seller and the
Seller Indemnitees for any claim related to this Agreement or
the transactions contemplated hereby. The maximum aggregate
amount of Buyer’s or Seller’s indemnification
obligation pursuant to this Agreement shall be limited to and in
no event exceed an amount equal to twenty percent (20%) of the
aggregate Purchase Price (i.e., $250,000).




ARTICLE VIII



TERMINATION



     
8.1     Termination
of Agreement. The Parties may terminate this Agreement prior
to the Closing as provided below:




		
	 	     
    (a) the Parties may terminate this Agreement
    by mutual written consent;
    
	 
	 	     
    (b) the Buyer may terminate this Agreement
    by giving written notice to Seller if Seller has materially
    breached any representation, warranty, covenant or agreement
    contained in this Agreement and such breach (i) would cause
    the conditions set forth in Section 6.1 not to be satisfied
    and (ii) is not cured within thirty (30) days
    following delivery by the Buyer to Seller of written notice of
    such breach;
    
	 
	 	     
    (c) Seller may terminate this Agreement by
    giving written notice to the Buyer if the Buyer has materially
    breached any representation, warranty, covenant or agreement
    contained in this Agreement and such breach (i) would cause
    the conditions set forth in Section 6.2 not to be satisfied
    and (ii) is not cured within thirty (30) days
    following delivery by Seller to the Buyer of written notice of
    such breach;
    
	 
	 	     
    (d) the Buyer may terminate this Agreement
    by giving written notice to Seller if the Closing shall not have
    occurred on or before July 10, 2003 provided that the Buyer
    is not in material breach under this Agreement at the time it
    seeks to terminate under this Section 8.1(d);
    
	 
	 	     
    (e) Seller may terminate this Agreement by
    giving written notice to the Buyer if the Closing shall not have
    occurred on or before the Funding Termination Date provided that
    Seller is not in material breach under this Agreement at the
    time it seeks to terminate under this Section 8.1(e).
    




     
8.2     Effect of
Termination. If any Party terminates this Agreement pursuant
to Section 8.1, all obligations of the Parties hereunder
shall terminate without any liability of any Party to the other
Parties except for the provisions of Section 9.4 relating
to press releases and announcements, Section 9.6 relating
to solicitation of employees (but only upon a termination
pursuant to Section 8.1(b)) and Section 11.7 relating
to expenses shall survive such termination. Notwithstanding the
foregoing, termination of this Agreement shall not relieve any
Party of liability for any breach by such Party, prior to the
termination of this Agreement, of any covenant



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or agreement contained in this Agreement or
impair the right of any Party to obtain such remedies as may be
available to it in law or equity with respect to such a breach
of any covenant or agreement contained in this Agreement by
another Party.




ARTICLE IX



ADDITIONAL COVENANTS




     9.1     Taxes.



     
(a) Except to the extent included within the
Assumed Liabilities as set forth in
Section 2.1(b)(i)-(vii), Seller shall be liable for and
pay, and pursuant to Article VII shall indemnify each Buyer
Indemnitee from and against, all Taxes (including, without
limitation, any amounts owed by a Buyer Indemnitee relating to
Taxes pursuant to a contract or otherwise) applicable to the
Business, and Seller’s right, title and interest in
Business Assets, in each case attributable to Taxable years or
periods ending prior to the Closing Date and, with respect to
any Straddle Period, the portion of such Straddle Period ending
on the day immediately preceding the Closing Date. In addition
to the Assumed Liabilities as set forth in
Section 2.1(b)(i)-(vii), the Buyer shall be solely liable
for and pay, and pursuant to Article VII shall indemnify each
Seller Indemnitee from and against, all Taxes applicable to the
Business, the Buyer’s right, title and interest in the
Business Assets and the Assumed Liabilities that are
attributable to taxable years or periods beginning on and after
the Closing Date and, with respect to any Straddle Period, the
portion of such Straddle Period beginning on the Closing Date.
For purposes of this Agreement, any Straddle Period shall be
treated on a “closing of the books” basis as two
partial periods, one ending at the close of business on the day
immediately preceding the Closing Date and the other beginning
on the Closing Date, except that Taxes (such as property Taxes)
imposed on a periodic basis shall be allocated in a daily basis.



     
(b) Notwithstanding paragraph (a), any
sales Tax, use Tax, real property transfer or gains Tax, asset
transfer Tax, documentary stamp Tax or similar Tax attributable
to the sale or transfer of the Business, the Business Assets,
Seller’s right, title and interest in the Business Assets
not owned by Seller or the Assumed Liabilities shall be paid by
the Buyer. The Seller agrees to timely sign and deliver such
certificates or forms as may be necessary or appropriate to
establish an exemption from (or otherwise reduce), or file Tax
Returns with respect to, such Taxes.



     
(c) Seller or the Buyer, as the case may be,
shall provide reimbursement for any Tax paid by one party all or
a portion of which is the responsibility of the other party in
accordance with the terms of this Section 9.1. Not later
than thirty (30) days prior to the payment of any such Tax,
the party paying such Tax shall give notice to the other party
of the Tax payable and the portion which is the liability of
each party, although failure to do so will not relieve the other
party from its liability hereunder.



     
(d) After the Closing Date, each of the
Buyer and Seller shall reasonably (i) cooperate in
preparing for any audits of, or disputes with Governmental
Authorities regarding, any Tax Returns of the Business or the
Business Assets required to be filed by any of the Parties, and
(ii) make available to the other and to any Governmental
Authority as reasonably requested



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all information, records, and documents in their
possession or control relating to Taxes of the Business or the
Business Assets.



     
9.2 UCC Matters. From and after the
Closing Date, Seller shall promptly refer all inquiries with
respect to ownership or operation of the Business Assets or the
Business to the Buyer. In addition, Seller shall execute such
documents and financing statements as the Buyer may request from
time to time to evidence transfer of Seller’s right, title
and interest in the Business Assets to the Buyer, including,
without limitation, any necessary assignment of financing
statements.



     
9.3 Discharge of Business
Obligations. Except with respect to the Assumed Liabilities,
from and after the Closing, Seller shall, to the extent
practical in light of the value of the Seller’s remaining
assets, use commercially reasonable efforts to pay and discharge
(in the order of their respective priorities) all obligations
and liabilities incurred prior to the Closing in respect of the
Business, its operations or the assets and properties used
therein, including any liabilities or obligations to
Seller’s Employees, any Governmental Authority and clients
and customers of the Business. Nothing in this Agreement shall
be deemed to create any liability on the part of Buyer with
respect to any unpaid or non-discharged obligation or Liability
of the Seller.



     
9.4 Public Announcement. Prior to
Closing, no Party hereto shall make or issue, or cause to be
made or issued, any public announcement or written statement
concerning this Agreement or the transactions contemplated
hereby (except to the respective representatives, directors,
shareholders, noteholders (other than Qiagen GmbH), managers and
officers of the Buyer, Seller and their Affiliates) without the
prior written consent of the other Party (which will not be
unreasonably withheld or delayed); provided, however, that any
Party may make any such announcement or statement it believes in
good faith is required by applicable law or any listing or
trading agreement concerning its publicly-traded securities
without such consent, so long as the disclosing Party provides
the other Party with a reasonable opportunity to review and
comment on such disclosure in advance of its being made, if
doing so will not cause the disclosing Party to fail to meet the
legal or other requirements mandating such disclosure.



     
9.5 Post Closing Obligation to
Employees.



     
(a) Seller’s
Schedule 9.5(a) contains a true and correct list of the
name, job title, current base salary or hourly wage, date of
hire, current vacation entitlement and assigned location of all
employees actively employed by Seller on behalf of the Business
as of the Closing Date, including any such individual on
short-term disability or approved leave of absence who was so
employed immediately before such disability or absence (the
“Seller Employees”). Buyer’s
Schedule 9.5(a) includes the name and job title of all
Employees on Seller’s Schedule 9.5(a) that
Buyer intends to offer employment (the “Transferred
Employees”).



     
(b) Effective on or prior to 12:01 a.m.
on the Closing Date, Seller shall cause the employment of all
Transferred Employees to be terminated. Effective as of
12:01 a.m. on the Closing Date, the Buyer shall offer
employment to all Transferred Employees terminated in accordance
with the preceding sentence on terms and conditions determined
by the Buyer in its sole discretion. Nothing in this
Section 9.5 shall (i) prior to the Closing Date, limit
Seller’s authority to terminate the employment of any
Seller Employee at any time and for whatever



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 reason, or no reason or (ii) on or after
the Closing Date, limit the Buyer’s authority to terminate
the employment of any Transferred Employee at any time and for
whatever reason, or no reason. Seller shall provide or make
available to the Buyer, to the extent permitted by applicable
law, such information regarding the Transferred Employees as is
contained in Seller’s personnel records, including without
limitation information regarding accrued or incurred but unpaid
liabilities for wages, vacations, deferred compensation,
medical/ dental/ vision, workers’ compensation, disability
and other welfare benefit claims.




     
(c) Seller shall be responsible for the
payment of any Seller Employee benefits that become due to any
Transferred Employees as a result of their termination by Seller
in accordance with Section 9.5(b).



     
(d) Seller and the Buyer hereby acknowledge
and agree that in conformity with the Standard Procedure of IRS
Revenue Procedure 96-60, 1996-2 C.B. 399,
(i) Seller will be responsible for and perform all Tax
withholding, payment and reporting duties with respect to any
wages and other compensation paid by Seller to any Seller
Employee in connection with employment on or prior to the
Closing Date; and (ii) the Buyer will be responsible for and
perform all Tax withholding, payment, and reporting duties with
respect to any wages and other compensation paid by the Buyer to
any Transferred Employee in connection with employment after the
Closing Date.



     
(e) Seller and the Buyer hereby acknowledge
and agree that (i) in accordance with
Section 2101(b)(i) of the WARN Act and to the extent
applicable, Seller will be responsible for all required notices
prior to the Closing Date, and the Buyer will be responsible for
all required notices on or after the Closing Date, and (ii) to
the extent applicable, all Transferred Employees as of the
Closing Date (other than those individuals who are not actively
employed on the Closing Date due to short-term disability or
approved leave of absence) will be deemed to have become
employees of the Buyer immediately on the Closing Date for
purposes of the WARN Act.



     
9.6 Non-Solicitation of Employees.
Seller covenants and agrees that it will not at any time on or
before the Closing, or at any time during the one (1) year
period following the Closing or, if this Agreement is terminated
prior to the Closing, then at any time during the one-year
period following the Closing Date of such termination, solicit
to employ (other than by general advertisements) or employ any
person who is, at the time of such solicitation or immediately
prior to such employment, an employee of the Buyer of any of its
Affiliates without the written consent of the Buyer or the
Affiliate that employs such employee.



     
9.7 Delivery of Certain Business
Records. At the Closing, Seller shall deliver to the Buyer
copies of all invoices to customers and other customer records,
customer and supplier lists, credit files, correspondence,
marketing studies, sales presentations, consultant reports,
research and development studies, product development studies or
reports, quality control test results and other quality control
records and reports, patent files, regulatory files, quality
files and all other records, files, documents and information in
Seller’s possession or control however maintained or stored
(including computer diskettes and other electronic media), used
or developed primarily in connection with the use of the
Business Assets or the conduct of the Business. Seller shall
also deliver to the Buyer copies of all brochures and other
promotional



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and printed materials, trade show materials
(including displays), videos, advertising and/or marketing
materials in Seller’s possession or control which were used
or developed primarily in connection with the use of the
Business Assets or the conduct of the Business.




     
9.8 Confidentiality. Seller
acknowledges and agrees that Seller shall continue to be bound
by its obligations of confidentiality and nonuse under the
Assigned Contracts (but not by any other obligations
thereunder)(in the form they exist on the Closing Date and
without regard to any amendment or modification after the
Closing Date unless otherwise agreed to in writing by Seller) to
the same extent as if they remained a party thereto.




ARTICLE X



POST-CLOSING AGREEMENTS



     
10.1 Collection of Receivables.
Seller shall, by letter prepared by the Buyer and reasonably
acceptable to Seller (the “Letter”), authorize,
instruct and direct that the account parties of all accounts,
notes and receivables (including insurance proceeds, if
applicable) constituting Business Assets (such parties, the
“Account Parties”) shall make and deliver all
payments relating thereto on or after the Closing to such
location, bank and account (the “Buyer Receivables
Account”) as the Buyer shall specify. The Letter shall
cover all such matters as the Buyer and Seller shall reasonably
determine. If, notwithstanding such Letter, any of the Account
Parties remit payments on or after the Closing directly or
indirectly to Seller instead of to the Buyer Receivables
Account, Seller shall promptly deliver all such payments
(including but not limited to negotiable instruments which shall
be duly endorsed by Seller to the order of the Buyer) to the
Buyer. Seller hereby irrevocably designates, makes, constitutes
and appoints the Buyer (and all persons designated by the Buyer)
as its true and lawful attorney-in-fact to do any of the
following in the sole discretion of the Buyer: to receive, give
receipts for, take, endorse, assign, deliver, deposit, demand,
collect, sue on, compound, and give acquittance for any and all
information, documents, payments forms (including negotiable and
non-negotiable instruments) and proceeds received by the Buyer
via the Buyer Receivables Account or from Seller that relates to
the accounts, notes and receivables (including insurance
proceeds) of the Account Parties constituting Business Assets.




ARTICLES XI



MISCELLANEOUS



     
11.1 No Third-Party Beneficiaries.
This Agreement shall not confer any rights or remedies upon any
person other than the Parties and their respective successors
and permitted assigns and, to the extent specified herein, their
respective Affiliates.



     
11.2 Entire Agreement. This Agreement
(including the documents referred to herein), and the Ancillary
Agreements constitute the entire agreement between Seller and
the Buyer with respect to the subject matter hereof. This
Agreement and the Ancillary Agreements supersede any prior
agreements or understandings among Seller or the Buyer and any
representations or statements made by or on behalf of Seller or
the Buyer, whether written or oral, with respect to the subject
matter hereof, other than the Confidentiality Agreement which
shall terminate effective at the Closing.



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11.3 Succession and Assignment. Prior
to or at the Closing, no Party may assign or delegate either
this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other
Parties. Notwithstanding the foregoing, this Agreement, and all
rights hereunder may be assigned in whole or in part, without
such consent, by the Buyer to any other wholly owned subsidiary
of the Buyer, provided that such assignee agrees in writing to
be bound by the provisions of this Section 11.3 and such
assignment shall not release the Buyer from its obligations
hereunder. After the Closing, the Buyer may assign or delegate
either this Agreement or any of its rights, interests or
obligations without the prior written approval of the Seller.
This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and permitted
assigns.



     
11.4 Notices. All notices, requests,
demands, claims and other communications hereunder shall be in
writing. Any notice, request, demand, claim or other
communication hereunder shall be sent to the intended recipient
as set forth below:




	 	 	 
	
    
    If to the Buyer:
    

    	 	
    If to Seller
    
	
    
    Invitrogen Corporation
    

    	 	
    Genicon Sciences Corporation
    
	
    
    1600 Faraday Avenue
    

    	 	
    11535 Sorrento Valley Road
    
	
    
    Carlsbad, CA 92008
    

    	 	
    San Diego, CA 92121
    
	
    
    Telecopy: 760-603-7229
    

    	 	
    Telecopy: 858-793-6791
    
	
    
    Attention: General Counsel
    

    	 	
    Attn: Chief Executive Officer
    
	 
	 	 	
    With a copy to:
    
	 	 	
    Wilson Sonsini Goodrich & Rosati
    
	 	 	
    650 Page Mill Road
    
	 	 	
    Palo Alto, CA 94304-1050
    
	 	 	
    Telecopy: 650-493-6811
    
	 	 	
    Attn: Mark Bonham
    




     
Any Party may give any notice, request, demand,
claim, or other communication hereunder using any reasonable
means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail).
Any Party may change the address to which notices, requests,
demands, claims and other communications hereunder are to be
delivered by giving the other Parties notice in the manner
herein set forth.



     
11.5 Amendments and Waivers. The
Parties may mutually amend or waive any provision of this
Agreement at any time. No amendment or waiver of any provision
of this Agreement shall be valid unless the same shall be in
writing and signed by the Parties. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend
to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any
rights arising by virtue of any prior or subsequent such
occurrence.



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11.6     Severability.
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.



     
11.7     Expenses.
Except as otherwise specifically provided to the contrary in
this Agreement, each of the Parties shall bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby.



     
11.8     Governing
Law. This Agreement shall be interpreted and enforced in
accordance with laws of the State of California in the United
States of America, without regard to its conflicts of laws
rules, provided, that those matters pertaining to the validity
or enforceability of patent rights shall be interpreted and
enforced in accordance with the laws of the territory in which
such patent rights exist.



     
11.9     Arbitration.
Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by
arbitration in the city of San Diego, California administered by
the American Arbitration Association in accordance with its
applicable rules, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. The administrative charges, arbitrators’ fees, and
related expenses of any arbitration shall be paid equally by the
parties, but each party shall be responsible for any costs or
expenses incurred in presenting such party’s case to the
arbitrators, such as attorney’s fees or expert witness
fees. Notwithstanding the Parties’ agreement to arbitrate,
the Parties hereby agree that either Party may apply to any
court of law or equity of competent jurisdiction for specific
performance or injunctive relief to enforce or prevent any
violation of the provisions of this Agreement.



     
11.10     Construction.




		
	 	     
    (a) The language used in this Agreement
    shall be deemed to be the language chosen by the Parties to
    express their mutual intent, and no rule of strict construction
    shall be applied against any Party.
    
	 
	 	     
    (b) Any reference to any federal, state,
    local or foreign statute or law shall be deemed also to refer to
    all rules and regulations promulgated thereunder, unless the
    context requires otherwise.
    
	 
	 	     
    (c) The Section headings contained in this
    Agreement are inserted for convenience only and shall not affect
    in any way the meaning or interpretation of this Agreement.
    
	 
	 	     
    (d) Any reference herein to an Article,
    Section or clause shall be deemed to refer to an Article,
    Section or clause of this Agreement, unless the context clearly
    indicates otherwise.
    
	 
	 	     
    (e) All references to “$” or
    “Dollars” refer to currency of the United States of
    America.
    




28








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11.11 Waiver of Jury Trial. To the
extent permitted by applicable law, each Party hereby
irrevocably waives all rights to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the
transactions contemplated hereby or the actions of any Party in
the negotiation, administration, performance and enforcement of
this Agreement.



     
11.12 Incorporation of Exhibits and
Schedules. The Exhibits and Schedules identified in this
Agreement are incorporated herein by reference and made a part
hereof.



     
11.13 Counterparts and Facsimile
Signature. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
This Agreement may be executed by facsimile signature.



29








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IN WITNESS WHEREOF, the Parties have executed
this Agreement as of the date first above written.




		
	 	
    GENICON SCIENCES CORPORATION





			
	 	By: 	
    /s/ PATRICK J. MALLON
    



		
	 	
    

	 	
    Name: Patrick J. Mallon
    
	 	
    Title:     President
    & CEO
    
	 
	 	
    INVITROGEN CORPORATION





			
	 	By: 	
    /s/ JOHN D. THOMPSON
    



		
	 	
    

	 	
    Name: John D. Thompson
    
	 	
    Title:     Vice President
    





[Signature page to Asset Purchase
Agreement]


30








Table of Contents




EXHIBIT A



BILL OF SALE


A-1








Table of Contents




EXHIBIT B



ASSIGNMENT AND ASSUMPTION AGREEMENT


B-1








Table of Contents




EXHIBIT C



FORM OF CONFIDENTIALITY/EMPLOYMENT
AGREEMENTS


C-1








Table of Contents




EXHIBIT D



INVERNESS AGREEMENTS


D-1








Table of Contents




EXHIBIT E



FORM OF FUNDING AGREEMENT


E-1








Table of Contents




	 	 	 
	
    
    [INVITROGEN LOGO]
    

    	 	
    Invitrogen Corporation
    
	 	 	
    1600 Faraday Avenue
    
	 	 	
    Carlsbad, CA 92008
    
	 	 	
    P: 760 603 7200
    
	 	 	
    F: 760 602 6500
    
	 	 	
    www.invitrogen.com
    





June 27, 2003





Patrick J. Mallon, President




Genicon Sciences Corporation





11535 Sorrento Valley Road





San Diego, CA 92121





Re: Continuation of Genicon Sciences
Corporation’s (“Genicon”) Business Through the
Closure of the Transaction between Invitrogen Corporation
(“Invitrogen”) and Genicon



Dear Pat,




In order to give effect to the intentions of
Genicon and Invitrogen stated in the Asset Purchase Agreement,
dated June 27, 2003 between the parties (the
“Agreement”), Invitrogen hereby requests that Genicon
continue to operate its business as describe below subsequent to
June 30, 2003 until the earlier of (a) such date as
the transaction contemplated in the Agreement (the
“Transaction”) closes or (b) the date that the
Agreement is terminated in accordance with its terms (such date,
whether determined by clause (a) or (b), the “End
Date”). As consideration for Genicon’s agreement to
such request, Invitrogen hereby agrees to pay Genicon for all
reasonable general business operating expenses incurred by
Genicon in the ordinary course of business subsequent to
June 30, 2003 and prior to the End Date, provided that such
expense are consistent with the general business operating
expenses incurred by Genicon in a comparable length period
immediately prior to June 30, 2003.




Sincerely,




/s/ JOHN THOMPSON










John Thompson





Vice-President, Corporate Development





By signing below, Genicon agrees to continue
to operate its business in a manner consistent with its
operations as of immediately prior to June 30, 2003 for a
period subsequent to June 30, 2003 until the End
Date.



		
	 	
    ACCEPTED AND AGREED BY
	 	
    GENICON SCIENCES CORPORATION
	 
	 	
    By: /s/ PATRICK
    J. MALLON
    
	 	
    

	 	
    Name: Patrick J. Mallon
	 	
    Title: President & CEO
	 	
    Date: June 27, 2003