Unassociated Document


    Exhibit
10.1

     

     

    FOIA
CONFIDENTIAL TREATMENT REQUESTED

     

    PORTIONS
OF THE EXHIBIT HERETO MARKED BY [**Redacted**] HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION

    


    28
October 2010 _ Execution Copy

     

    
      	 	
              Confidential
      and privileged

               

              Stock
      Purchase Agreement

               

              as
      of 28 October 2010

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Table
of content:

    


    
      	
              1.1

            	
              Stocks
      owned by Sellers

            	
              7

            
	
              1.2

            	
              Stocks
      owned by Minorities

            	
              8

            
	
              1.3

            	
              Transfer
      of Stocks owned by Sellers

            	
              9

            
	
              1.4

            	
              Steering
      Committee; Cash injections

            	
              9

            
	
              1.5

            	
              Consequence
      of violation of the cash injection obligations

            	
              13

            
	
              1.6

            	
              Approvals;
      waiver

            	
              14

            
	
              2.1

            	
              First
      Purchase Price

            	
              14

            
	
              2.2

            	
              Second
      Purchase Price

            	
              14

            
	
              2.3

            	
              Third
      Purchase Price

            	
              14

            
	
              2.4

            	
              Additional
      Purchase Prices

            	
              15

            
	
              2.5

            	
              Call
      Option

            	
              15

            
	
              2.6

            	
              Payments

            	
              15

            
	
              3.1

            	
              Authorization;
      Transfer of Title

            	
              16

            
	
              3.2

            	
              Financial
      Statements and Financials

            	
              17

            
	
              3.3

            	
              Conduct of Business

            	
              18

            
	
              3.4

            	
              Assets

            	
              18

            
	
              3.5

            	
              Immoveable
      Property

            	
              18

            
	
              3.6

            	
              Material
      Contracts

            	
              19

            
	
              3.7

            	
              Intellectual
      Property/Information Technology

            	
              19

            
	
              3.8

            	
              Tax
      Representations

            	
              20

            
	
              3.9

            	
              Insurance

            	
              21

            
	
              3.10

            	
              Litigation

            	
              21

            
	
              3.11

            	
              Permits
      and Licenses; Compliance

            	
              21

            
	
              3.12

            	
              Employees, Consultants, Labor
      Matters, etc.

            	
              21

            
	
              3.13

            	
              Deliberately
      left free

            	
              22

            
	
              3.14

            	
              No
      Illegal Payments

            	
              22

            
	
              3.15

            	
              No
      Finder’s Fee; No Transaction Costs

            	
              22

            
	
              3.16

            	
              Public
      grants and subsidies; Financing

            	
              23

            
	
              4.1

            	
              Self-contained
      Regime

            	
              23

            
	
              4.2

            	
              Administration
      of Breaches

            	
              23

            
	
              4.3

            	
              Exclusion
      of Liability

            	
              24

            
	
              4.4

            	
              Effects
      of Knowledge

            	
              24

            
	
              4.5

            	
              Cooperation

            	
              24

            
	
              4.6

            	
              Knowledge

            	
              25

            
	
              4.7

            	
              De-minimis
      / Basket

            	
              25

            
	
              4.8

            	
              Maximum
      Liability in Case of a Breach of Representations

            	
              25

            
	
              4.9

            	
              Period
      of Limitation

            	
              25

            
	
              4.10

            	
              Deductions;
      set-off; bank guarantee

            	
              26

            
	
              4.11

            	
              Purchase
      Price Adjustment

            	
              27

            
	
              6.1

            	
              Preservation
      of Business

            	
              28

            
	
              6.2

            	
              IP/IT
      Consents

            	
              29

            
	
              6.3

            	
              Further
      Actions

            	
              29

            
	
              6.4

            	
              Notification

            	
              29

            
	
              9.1

            	
              Closing;
      Completion

            	
              30

            
	
              9.2

            	
              Conditions
      to Closing

            	
              30

            
	
              9.3

            	
              Withdrawal
      Right.

            	
              31

            
	
              9.4

            	
              Closing
      Actions

            	
              31

            
	
              9.5

            	
              Second
      and Third Payment Dates

            	
              32

            
	
              10.1

            	
              Definitions

            	
              33

            
	
              10.2

            	
              Further
      Actions

            	
              34

            
	
              10.3

            	
              Further
      measures

            	
              34

            
	
              10.4

            	
              Notices

            	
              34

            
	
              10.5

            	
              Confidentiality
      and announcements

            	
              35

            
	
              10.6

            	
              Severability

            	
              35

            
	
              10.7

            	
              Table
      of Contents and Headings

            	
              35

            
	
              10.8

            	
              Costs
      and Expenses

            	
              36

            
	
              10.9

            	
              Interest

            	
              36

            
	
              10.10

            	
              Language

            	
              36

            
	
              10.11

            	
              Governing
      Law

            	
              36

            
	
              10.12

            	
              Arbitration

            	
              36

            
	
              10.13

            	
              Entire
      Agreement; Amendments and Waivers

            	
              37

            
	
              10.14

            	
              Binding
      Effect; Assignment; Nominee

            	
              37

            
	
              10.15

            	
              Incorporation
      of Exhibits

            	
              37

            
	
              10.16

            	
              Construction

            	
              37

            


    

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    EXHIBITS

    


    All
exhibits are enclosed

    
      :::::

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

    

     

    Stock
Purchase Agreement

     

    (the
Agreement)

     

    dated 28
October, 2010

     

    among:

     

    
      	
              Number

            	
              Name

            	
              Abbreviation

            
	 	 	 
	
              1.

            	
              OncoVista Innovative Therapies
      Inc., 14785
      Omicron Drive Suite 104, San Antonio, TX, USA

            	
              Seller 1

            
	 	 	 
	
              2.

            	
              tbg Technologie
      Beteiligungs-Gesellschaft mbH (“tbg”), Ludwig-Erhard-Platz 1-3, 53179
      Bonn

            	
              Seller 2

            
	 	 	 
	
              3.

            	
              Rose Nominess Ltd, P.O.
      BOX 25, Regency Court, Glategny
      Esplanade, St. Peter Port, Guernsey, GY1 3 AP

            	
              Seller 3

            
	 	 	 
	
              4.

            	
              Rob Cawthorne, Innisfree,
      36 South
      Road, Warwick, WK02, Bermuda

            	
              Seller 4

            
	 	 	 
	
              5.

            	
              FELICITAS Beteiligungsgesellschaft
      Hannover mbH (formerly: Biomed). Aegidientorplatz 1, 30159
      Hannover

            	
              Seller 5

            
	 	 	 
	
              6.

            	
              Axel Deuring, Buchenweg 6a,
      30900

              Wedemark

            	
              Seller 6

            
	 	 	 
	
              7.

            	
              Dr. Eckhart Schnakenberg, Kesener
      Weserstr. 4 B, 28832 Achim

            	
              Seller 7

            
	 	 	 
	
              8.

            	
              Hans-Peter Winkelmann, Tostedter
      Weg 11, 21244 Buchholz

            	
              Seller 8

            
	 	 	 
	
              9.

            	
              Hans Winkelmann, Am Anger 14,
      31535 Neustadt

            	
              Seller 9

            
	 	 	 
	
              10.

            	
              Marion Buchwald, Effertzfeld 8,
      41564 Kaarst

            	
              Seller
10

            
	 	 	 
	
              11.

            	
              Michael Winkelmann, Hagenerstr. 52
      e, 31535 Neustadt

            	
              Seller
11

            
	 	 	 
	
              12.

            	
              Stefan Schröder, Breite Straße
      2,

              30159
    Hannover

            	
              Seller
12

            
	 	 	 
	
              13.

            	
              Tim Freise, Gartenstr. 107, 60596
      Frankfurt

            	
              Seller
13

            
	 	 	 
	
              14.

            	
              Dr. Silke Lankiewicz, An der
      Garather Motte 23, 40595 Düsseldorf

            	
              Seller
14

            
	 	 	 
	
              15.

            	
              Alere Holdings Bermuda
      Limited Canon's Court, 22 Victoria Street, Hamilton HM12, Bermuda

            	
              Purchaser

            
	 	 	 
	
              16.

            	
              Alere,
      Inc., 51 Sawyer Road, Suite 200, Waltham, MA 02453
      USA

            	
              Alere
      Guarantor

            


    

     

    relating
to the acquisition of stocks in AdnaGen AG.

     

    The
Sellers 1 to 14 together the Sellers
and each a Seller,
and the Sellers and the Purchaser each a Party and
together the Parties.

     

    The
Seller 1 is also referred to as the Sellers
Guarantor.

     

    The
Sellers 5 - 14 are represented by Dr. Siegfried Hauch, Sellers 1, 3 and 4 are
represented by Mr. Oliver Keilhack. Seller 2 is represented by Petra Röttcher
and Ulrich Wendt. Dr. Siegfried Hauch and Mr. Oliver Keilhack, act as proxies
(Bevollmächtigte) for
the respective Sellers based on powers of attorney copies of which are attached
hereto in Exhibit A. Ms
Röttcher and Mr Wendt act as Prokurist and holder of
general power of attorney, the relevant documents are attached as copies in
Exhibit A. The Purchaser and the Alere Guarantor are represented by attorney
Klaus Mohr, Frankfurt am Main, based on powers of attorney copies of which are
attached in Exhibit A.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    INSTRUCTIONS
AND AUTHORIZATIONS

     

    
      	
               
      

            	
              1.

            	
              The
      instruction and authorization letter (the Instruction
      Letter) a signed copy of which is attached hereto as Exhibit I.1.(1) provides
      for irrevocable instructions (only to be revoked or amended upon written
      approval of each of the Sellers and the Purchaser) and the authorization
      of notary Michael Spring, Taylor Wessing Partnerschaftsgesellschaft,
      Senckenberganlage 20-22, D-60325 Frankfurt (the Agent)
      (i) to receive all purchase prices to which the Sellers are entitled under
      this Agreement, and (ii) to pay upon receipt of the purchase prices the
      transaction fees as outlined in the Transaction Fee Schedule attached
      hereto as Exhibit
      I.1.(2) (the Transaction
      Fee Schedule).

            


    

     

    
      	
               
      

            	
              2.

            	
              The
      authorization and instruction of the Agent provided for in the Instruction
      Letter to pay the transaction fees in accordance with the Transaction Fee
      Schedule is granted by the Sellers also for the benefit of the Purchaser.
      According to the Instruction Letter the Agent furthermore waived any
      rights for set-off (Rechte zur Aufrechnung)
      or retention (Zurückbehaltungsrechte)
      relating to the transaction fees set forth in the Transaction Fee
      Schedule.

            


    

     

    
      	
               
      

            	
              3.

            	
              By
      accepting and signing the Instruction Letter the Agent acknowledges and
      agrees to the scope and nature of the instructions as outlined in 1. and
      2. above.

            


    

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    RECITALS

     

    
      	
               
      

            	
              1.

            	
              WHEREAS this Agreement
      is entered into at the date hereof (the Signing
      Date) by and among the Sellers and the Sellers Guarantor on the one
      hand and the Purchaser on the other hand. The Alere Guarantor shall only
      be a party to this Agreement insofar as the obligations pursuant to
      Sections 10.5, 10.8, 10.9, 10.11, 10.12 and its main obligation pursuant
      to Section 10.14 are concerned.

            


    

     

    
      	
               
      

            	
              2.

            	
              WHEREAS the Company is a
      stock corporation (Aktiengesellschaft)
      incorporated in accordance with the laws of the Federal Republic of
      Germany, registered with the Commercial Register of the Local Court (Amtsgericht) Hannover
      under HR B 58937. The Company is also referred to in this Agreement
      as AdnaGen.

            


    

     

    
      	
               
      

            	
              3.

            	
              WHEREAS the entire
      registered stock capital (Grundkapital) of the
      Company amounts to EUR 50,000 (Fifty thousand Euros). The registered
      stock capital has been fully paid in. Direct or indirect repayments of the
      registered stock capital have not
occurred.

            


    

     

    
      	
               
      

            	
              4.

            	
              WHEREAS the registered
      stock capital of the Company is divided into 50,000 number of stocks
      (Aktien) (the
      Stocks)
      that are owned by the Sellers and the remaining shareholders of the
      Company as set out in EXHIBIT
      R 4.

            


    

     

    
      	
               
      

            	
              5.

            	
              WHEREAS the Stocks are
      name stocks (Namensaktien) without
      nominal value (Stückaktien) that are
      endorsed in 14 stock certificates that are held by the Sellers and that
      are registered in the stocks register (Aktienbuch) of the
      Company. Copies of the stock certificates as well as the stocks register
      are contained in EXHIBIT
      R 5. Seller 6 has lost his
      share certificate. He hereby agrees to take (together with the Company)
      any measures necessary or expedient to finalize the forfeiture procedure
      with respect to these share certificates as soon as possible after the
      Closing Date. Furthermore, Seller 4 will only be able to hand over his
      share certificate after October 28, 2010. He has signed the confirmation
      attached hereto as EXHIBIT
      9.4 k).

            


    

     

    
      	
               
      

            	
              6.

            	
              WHEREAS the Company is
      active in the field of diagnostics detecting circulating tumor cells in
      tumor patients including (i) manufacturing and distribution of tests and
      (ii) licensing and R&D activities related to the before activities
      (together the AdnaGen
      Business).

            


    

     

    
      	
               
      

            	
              7.

            	
              WHEREAS the Company was
      founded in 1999 first as a GmbH and financed by (i) venture capital as
      well as by (ii) funds from Seller 2 and Mittelständische
      Beteiligungsgesellschaft Niedersachsen (MBG) mbH (MBG
      or the Silent
      Partnership Seller) in the form of silent participations.
      Furthermore, AdnaGen received governmental support in the form of R&D
      grants for the product area Rare Cell Detection & Analysis (tumor and
      prenatal diagnostics). EXHIBIT
      R 7 lists all financing (including all silent participations,
      R&D grants and loans) received by AdnaGen from venture capital, Seller
      2, MBG and EU, State or local government (including governmental agencies,
      state controlled banks or business development institutions) (each a Financing
      and together the Financings)
      and sets out (as of Signing Date) in relation to each Financing in detail
      (i) the relevant amounts outstanding (including accrued interest), (ii)
      the term of the Financing, (iii) the maturity dates for repayment, if any
      (iv) all profit participation or profit depending arrangements, if any,
      (v) violations, if any, of Financing conditions, (vi) the limitations
      applying to the utilization (including sale and licensing) of assets
      and/or the disposition of stocks and/or the move of the business, if any,
      and (vii) existing rights and entitlements, if any, of parties having
      provided Financing in relation to Company matters or
    profits.

            


    

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              8.

            	
              WHEREAS on 22 March 2009
      the Sellers 1, 2, 4 and 5, the Partnership Seller and AdnaGen entered into
      a restructuring agreement as amended from time to time (Restructuring
      Agreement). A copy of the Restructuring Agreement (and its
      amendments) is contained in EXHIBIT
      R 8.

            


    

     

    
      	
               
      

            	
              9.

            	
              WHEREAS the Silent
      Partnership Seller owns a silent participation (Stille Beteiligung)
      (Silent
      Participation) in the Company that it will sell and transfer to the
      Purchaser at the Closing Date. Copies of the relevant Silent Participation
      agreement (including amendments) and final drafts of the silent
      partnership sale and transfer agreement (Silent
      Partnership Sale and Transfer Agreement) to be executed and
      delivered at Closing Date are contained in EXHIBIT
      R 9. The
      Sellers and the Purchaser acknowledge that the Silent Partnership Seller
      receives a consideration for the sale and transfer of the silent
      partnership as provided for in the Silent Partnership Sale and Transfer
      Agreement.  The Sellers furthermore acknowledge that the payment
      to the Silent Partnership Seller is in addition subject to the provisions
      of the Silent Partnership Sale and Transfer Agreement set forth in a
      separate agreement to be entered into between the Sellers, the Silent
      Partnership Seller and the
Agent.

            


    

     

    10. WHEREAS the Seller 2 owned
a further silent participation in the Company (tbg Silent
Participation) that was, according to the terms of the Restructuring
Agreement terminated subject to certain conditions. The Restructuring Agreement
and the termination pursuant to its terms was approved by the shareholders of
the Company in a shareholders meeting dated 23 September 2010. Nevertheless, a
partial profit and loss transfer agreement in favor of Seller 2 is still
registered with the commercial register of the Company as at the Signing Date.
According to the confirmation contained in EXHIBIT R
10 the Seller 2 confirmed the termination of the tbg Silent Participation
and transferred (for precautionary reasons) the “legal remainder” of such tbg
Silent Participation to the Purchaser. Furthermore, the Company will immediately
after the Signing of this Agreement file the application for deletion of the
partial profit and loss transfer agreement from the commercial register with
effect as at the end of the business year of the Company ending on 31 December
2010.

     

    NOW,
THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:

     

    SECTION
1

    SALE
AND PURCHASE OF STOCKS; TRANSFER OF STOCKS;

     

    
      	
              1.1

            	
              Stocks
      owned by Sellers

            


    

     

    Each of
the Sellers hereby sells its Stocks in the Company to the accepting Purchaser as
outlined in EXHIBIT
1.1.a (including the number of the stocks certificates to be transferred
and endorsed to the Purchaser at the Closing as defined in Section 9.1) (the
Sold
Stocks) with all dividend and dividend drawing rights (Gewinn- und
Gewinnbezugsrechte) relating to the period as from 1 January 2010 (the
Effective
Date) and all subscription and other rights pertaining to each sold Stock
(the Sale
and Purchase). EXHIBIT
1.1.b lists all owners of Stocks after completion (dingliche Erfüllung) of the
Sale and Purchase (the Completion).

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      	
              1.2

            	
              Stocks
      owned by Minorities 

            


    

     

    
      	
               
      

            	
              a)

            	
              As
      from Completion, the Purchaser will own 100% of the Stocks. If this was
      not the case, the following subsections 1.2 b to g would
      apply:

            


    

     

    
      	
               
      

            	
              b)

            	
              Therefore,
      as soon as possible, at the latest however within a period of 4 months as
      from Completion the Sellers shall approach such shareholders who own the
      remaining outstanding Stocks which have not already been sold and
      transferred to the Purchaser with effect as at Completion (the Minorities)
      in order to achieve the acquisition by the Purchaser of 100% of the
      Stocks.

            


    

     

    
      	
               
      

            	
              c)

            	
              The
      Parties agree that they shall cooperate in good faith to achieve the
      Purchaser to acquire 100% of the Stocks. The Sellers Representative shall
      negotiate the amounts of purchase prices to be paid to the Minorities for
      their Stocks. The Parties further agree that purchases prices to be agreed
      with the Minorities in the 4 months period according to Section 1.2 b)
      shall mirror the purchase price terms and conditions of this Agreement but
      that the Minorities shall have no information right against either the
      Purchaser or AdnaGen. The Sellers Representative shall not negotiate
      purchase prices (pro rated) in excess of the stocks price to be paid to
      the Sellers under this Agreement unless approved by the Purchaser. The
      same shall apply mutatis
      mutandis to any purchase price structure or payment term that
      differs from the purchase price structure or payment terms agreed in this
      Agreement: the Sellers Representative shall in particular not negotiate
      one time payments for the Stocks of the Minorities that are in excess of
      the (pro rated) First Purchase Price unless approved by the
      Purchaser.

            


    

     

    
      	
               
      

            	
              d)

            	
              If
      it turns out that the acquisition of 100% of the Stocks by the Purchaser
      cannot be accomplished within the time period according to Section 1.2.b),
      the Parties agree – at the option of the Purchaser, and such option to be
      exercised within 4 months as from the end of the time period referred to
      in Section 1.2.b) - to initiate a squeeze out procedure so that the
      Purchaser can acquire the outstanding Stocks as a result of the squeeze
      out. To the extent legally permissible the Sellers Representative shall
      control and all Parties shall actively support the squeeze out, if such
      procedure is required. The Purchaser shall have the right to object to the
      advisors and the actions being suggested by the Sellers
      Representative.

            


    

     

    
      	
               
      

            	
              e)

            	
              All
      costs and expenses of the Purchaser and/or AdnaGen caused by a squeeze out
      procedure shall be borne equally by the Sellers (50%) and the Purchaser
      (50%) up to the Capped Cost Amount, including but not limited to (i) costs
      caused by or related to corporate law measures (including notary fees and
      expenses), (ii) costs and expenses of accountants, and (iii) costs and
      expenses caused by courts fees, accountant and legal fees, in particular
      all costs and expenses caused in case of a procedure under the Corporate
      Proceedings Act (Spruchverfahrengesetz)
      or in case of contest action (Anfechtungs- oder
      Nichtigkeitsklage).The amount of the Capped Cost Amount shall be
      EUR 200,000. Any amounts in excess of the Capped Cost Amount shall be
      borne in total by the Sellers but not by the Purchaser nor by MBG,
      understood in this context that MBG is not a party to this Agreement and
      that the before reference to MBG is based on a request of MBG and for
      clarification purposes only.

            


    

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              f)

            	
              The
      Sellers shall bear the purchase price agreed between the Sellers and the
      Minorities or cash compensation resulting from the squeeze-out or any
      other compensation to be paid to the Minorities and agreed between the
      Parties as consideration for the Purchaser acquiring all Stocks from the
      Minorities. For the avoidance of doubt, Section 1.2 c) shall equally apply
      to any purchase price or voluntary compensation referred to in the
      preceding clause of this Section
1.2.f).

            


    

     

    
      	
               
      

            	
              g)

            	
              For
      the avoidance of doubt, the following would only apply if the Purchaser
      did not acquire 100% of the Stocks: for the purpose of securing the
      payment of the purchase prices and compensations owing to the Minorities,
      the Agent shall keep and allocate 2.5% of the First Purchase Price (as
      defined in Section 2.1) to the acquisition by the Purchaser of the Stocks
      from the Minorities (the Reserve
      Amount). The Agent shall pay from the Reserve Amount to the
      Minorities on behalf of the Purchaser the relevant amounts (as the case
      may be, either the purchase prices agreed or the cash compensation
      determined). If and to the extent that the Reserve Amount should not be
      sufficient to settle all purchase prices or cash compensations payable to
      Minorities, the Sellers shall be liable for the difference (the Payment
      Difference), however understood that the Purchaser shall be obliged
      to pay the Payment Difference to the Minorities to achieve the timely
      transfer of the Stocks upon complete payment of the purchase price or
      compensation. The Payment Difference being financed respectively by the
      Purchaser shall be set off against (or deducted from) any claims of the
      Sellers for a Second or Third Purchase Price or Milestone
      Payments.

            


    

     

    
      	
              1.3

            	
              Transfer
      of Stocks owned by Sellers

            


    

     

    The
Sellers and the Purchaser are hereby in agreement, that the title to the Sold
Stocks shall, subject to the receipt of the First Purchase Price and the
approval of the Supervisory Board, pass to the Purchaser (dingliche Übertragung) at the
Closing Date, and that the actual transfers shall be effected by endorsement and
handing over of the relevant stock certificates. Only for reasons of utmost
precaution, each of the Sellers hereby assigns and transfers to the Purchaser,
who hereby accepts such assignments and transfers, the Sold Stocks and all its
membership rights and other rights pertaining to the Sold Stocks for the period
as from the Effective Date whilst such assignment and transfer is conditional
upon the receipt of the First Purchase Price and the approval of the Supervisory
Board.

     

    
      	
              1.4

            	
              Steering
      Committee; Cash injections

            


    

     

    
      	
               
      

            	
              a)

            	
              A
      steering committee (Steering
      Committee) shall be formed immediately after Closing to function as
      an advisory / oversight committee on all Budget, Milestone and Target
      related topics. The Steering Committee will be comprised of no less than 4
      members and will be equally split between the Purchaser’s and Seller’s
      representatives. Each of Purchaser and Sellers will appoint its respective
      two representatives at the Closing
Date.

            


    

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              b)

            	
              The
      Parties agree that the role of the Steering Committee is advisory only
      unless explicitly otherwise agreed in this
  Agreement.

            


    

     

    
      	
               
      

            	
              c)

            	
              A
      business plan of the Company being set up by the Sellers is attached as
      Exhibit 1.4.c (the
      Budget).
      The Budget sets out the expected revenues and costs of the Company for the
      period ending 31 August 2011.

            


    

     

    
      	
               
      

            	
              d)

            	
              The
      Purchaser shall be obliged to provide the Company immediately following
      Completion with a cash injection in an amount of EUR 500,000 (Cash
      Injection 1).

            


    

     

    
      	
               
      

            	
              e)

            	
              The
      Cash Injection 1 shall fund the business operations (based on the costs as
      per Budget) for a period of 6 months as from Completion to the extent that
      the Company’s actual cash-in revenues are less than budgeted cash-out
      costs.

            


    

     

    
      	
               
      

            	
              f)

            	
              For
      the period starting with the seventh month as from Completion and up to
      and including 31 August 2011, the Purchaser shall provide the Company with
      a further cash injection in the amount of up to EUR 500,000 (Cash
      Injection 2) if the Steering Committee determines that the total
      cash “net income / loss” of the Company as per Budget for the relevant
      months minus the amount of available cash (or cash equivalents) at the
      Company is not sufficient to enable the Company to achieve the
      Budget.

            


    

     

    
      	
               
      

            	
              g)

            	
              For
      the period as from 1 September 2011 and ending 36 months as from
      Completion, the Steering Committee shall mutually agree on 6 months
      budgets (each a New
      Budget), and the last New Budget covering the remaining term. The
      Steering Committee shall agree on New Budgets at least six months in
      advance to the relevant term of a New Budget, i.e. the Steering Committee
      shall agree on the New Budget for the period starting 1 September 2011 and
      ending 29 February 2012 on 28 February 2011 at the latest. The Steering
      Committee shall further determine the amount of the relevant Additional
      Cash Injection, which will not be higher than EUR 500.000 per any 6 months
      period. If it turns out during the time period between agreeing on a New
      Budget and its coming into effect that the projections forming the basis
      of the New Budget cannot be fulfilled, the management of the Company shall
      have the right, until 4 weeks before the New Budget enters into effect, to
      contact the Steering Committee and ask for a revision of the New Budget.
      If the Steering Committee agrees with the request of the Company’s
      management the New Budget will enter into effect as amended by the
      Steering Committee.

            


    

     

    
      	
               
      

            	
              h)

            	
              The
      Purchaser shall provide the Company for the term of a New Budget with the
      funding agreed for that term by the Steering Committee (Additional
      Cash Injections). It is understood that Cash Injections shall not
      be provided just for the purpose of being in the Company’s bank account
      but that Cash Injections shall be provided timely in reasonable tranches
      when required in line with the Budget (or New
  Budget(s)).

            


    

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
    

     

    
      	
               
      

            	
              
                i)      
      

              

            	
              
                The
      following applies with respect to the determination of amounts of cash
      injections and payments:

              

            


       

    

    
      	
               
      

            	
              (1)

            	
              The
      general principle and underlying rational shall be the following: the
      Company shall have such funds available that are required to cover “Total
      Costs” (as relevant cash-outs in the period rather than as accounted costs
      or accruals) as per New Budget, and such funds shall comprise of all
      actual revenues achieved by the Company, its available cash (or cash
      equivalents) and, if required, Additional Cash Injections. All Additional
      Cash Injections (and Conflict Cash Injections) are in any case subject to
      the Limitations. Ideally, the Company will achieve break even (on a cash
      basis) as forecasted in the Budget, and in such case there will be no
      further Additional Cash Injections (or Conflict Cash Injection) as the
      Company can finance then its operations by using own
  cash.

            


    

     

    
      	
               
      

            	
              (2)

            	
              The
      use of the Additional Cash Injections (or Conflict Cash Injection) and the
      relevant amount of such injection shall be in any case subject to the
      following regulations and limitations (the Limitations):
      in no event an installment of a cash injection shall exceed EUR 500,000,
      the maximum amount of a cash injection within each 6 months interval shall
      be an amount of EUR 500,000, and all Additional Cash Injections shall be
      spent only in line with and on the basis of the New Budget. The Steering
      Committee shall not be entitled to amend or waive the Limitations. For the
      avoidance of doubt, the management of the Company shall be free to operate
      the Company’s business within the framework of the New Budget. If
      necessary, the management of the Company may decide that budgeted amounts
      shall be allocated to other projects than as anticipated in the New
      Budget, it being understood if such is the case there is no entitlement
      for requesting financing for cancelled projects. The management of the
      Company must however inform the Steering Committee of any such
      changes.

            


    

     

    
      	
               
      

            	
              (3)

            	
              The
      Purchaser may elect the form of the Cash Injection 1, Cash Injection 2 or
      Additional Cash Injection or Conflict Cash Injection, i.e. either in the
      form of an equity contribution, subordinated loan or a combination
      thereof.

            


    

     

    
      	
               
      

            	
              (4)

            	
              The
      Cash Injection 1, the Cash Injection 2 and the Additional Cash Injections
      (and Conflict Cash Injections) shall enable the Sellers to achieve the
      Second and Third Purchase Price and Milestone Payments by the Company
      being able to utilize funds as per the Budget (or New Budgets) with the
      consequence that cash injections made in form of loans shall be
      disregarded for purposes of determining the “No Debt” criteria according
      to Section A.2 of EXHIBIT 2.2 and as further specified in that Exhibit.
      The Sellers confirm that the maximum amounts of the cash injections are
      calculated realistically with view to that
  objective.

            


    

     

    
      	
               
      

            	
              j)      
      

            	
              Purchaser
      and Sellers agree that the Budget does not provide for the performance of
      AdnaGen of the following
activities:

            


    

    
      	
                               
      

            	
              -
      [**Redacted**]

            


    

    
      	
                               
      

            	
              -
      [**Redacted**]

            


    

    
      	
                               
      

            	
              (the
      Additional
      Activities).

            


    

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    The
Purchaser shall use commercially reasonable efforts to pursue the Additional
Activities. The following process shall apply, either formally or informally:
The Company, the Purchaser (or its representative) shall update the Steering
Committee either on a regular basis or following a request of the status of the
achievements of the Additional Activities and/or allocated efforts/resources
therefore.

     

    The
Purchaser and Sellers Representative shall jointly prepare a detailed plan on
activities to be pursued and resources (through funding, allocation of personnel
or otherwise) to be used in order to achieve the target of [**Redacted**] (the
Plan).
Such Plan shall be discussed with the Steering Committee and the Sellers
Representative and the Purchaser (or its representative(s) and, if acceptable to
the members of the Steering Committee, agreed upon, and, if required, amended
from time to time following discussion with the Steering Committee. The Sellers
acknowledges that external resources to Alere shall be used carefully and in
line with industry practices- it is understood that, in any event, not more than
€ [**Redacted**] would be allocated to external service fees to pursue the
target.

     

    The
Purchaser acknowledges that reaching the target of [**Redacted**] may involve
the employment of external resources to Alere-group, although it is also
acknowledged that the Alere-group has a good regulatory group to follow up on
these items and provide the necessary input. The implementation of the
activities of such Plan may be led by Alere, its representatives or the AdnaGen
management as deemed appropriate. For the assessment of the Purchaser's
commercially reasonable efforts (as per the above second para. of this section
1.4.j), the implementation of the activities plan is relevant, not the result of
each activity, it being understood that, if based on recomme ndations received
either from the Alere-group regulatory department and/or external consultants, a
certain activity is advised not to be taken then Purchaser or its representative
shall be allowed, in its own discretion, after discussion with the Steering
Committee, to reject to implement such activity or not to proceed with the
execution of certain actions (without any sanction becoming
applicable).

     

    
      	
            	
              k) 

            	
              All
      injections shall be paid to a bank account of the Company as notified by
      its management board to the
Purchaser.

            


    

     

    
      	
            	
              l) 

            	
              If
      the Steering Committee cannot mutually agree on a New Budget or thereby on
      the amount of Additional Cash Injections, the following shall
      apply:

            


    

     

    
      	
            	
              (1)

            	
              Either
      the Purchaser or the Sellers Representative or both shall declare by
      written notice (no email but by registered letter with a fax in advance)
      to the respective other Party a status of conflict that starts as from the
      beginning of the term of a New Budget (or Budget) that cannot be agreed to
      (the Conflict).
      If no Conflict is declared, the obligations of the Purchaser to provide
      Additional Cash Injections cease as from the end of the term of the then
      prevailing budget.

            


    

     

    
      	
            	
              (2)

            	
              If
      no agreement is reached on a New Budget prior to expiration of the term of
      the then prevailing budget, for the term of a Conflict the last prevailing
      New Budget (or Budget for the period March to August 2011 in case no New
      Budget can be agreed for the period starting 1 September 2011) shall
      continue, i.e. the amount of Additional Cash Injections shall be the
      amount of the Additional Cash Injection as per the last budgeted period,
      and shall be due and payable in the same manner as the prevailing
      Additional Cash Injection (the Conflict
      Cash Injection). The Conflict Cash Injection shall be subject to
      the Limitations and the following reductions and adjustments (the Adjustments):

            


    

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    
      	
            	
              i.

            	
              If
      the actual cash-in revenues achieved by the Company in the relevant 6
      months period (Actual
      Revenues) are
      higher than or equal to its actual cash-out costs of the relevant 6 months
      period (Actual
      Costs), no Conflict Cash Injection shall fall due. The underlying
      rational is that, unless budgeted or mutually agreed by the Steering
      Committee, the Purchaser shall not finance the Company if the Company can
      cover its cash-out costs by cash-in
revenues.

            


    

     

    
      	
            	
              ii.

            	
              On
      the costs side the underlying rational is that the Purchaser shall not be
      obliged to finance the Company’s development based on a cost increase
      unless budgeted or mutually agreed by the Steering
    Committee.

            


    

     

    
      	
            	
              iii.

            	
              The
      Adjustments shall be calculated for each relevant 6 months period by
      taking into account cash-in revenues to be achieved and cash-out costs to
      be caused in the relevant period.

            


    

     

    
      	
            	
              iv.

            	
              The
      Adjustment shall be calculated by the Sellers with the support of the
      Company’s management and notified to the Purchaser 30 Business Days prior
      to a relevant payment date (Payment
      Notice) by providing all supporting information and calculation
      materials and the relevant amount of the requested Conflict Cash
      Injection. If the Sellers miss that deadline for providing the Payment
      Notice, the obligation of the Purchaser to provide a Conflict Cash
      Injection for the relevant 6 months period
  ceases.

            


    

     

    
      	
            	
              m)

            	
              The
      obligations of the Purchaser to provide cash injections shall only create
      a right of the Sellers under this Agreement but no right or entitlement of
      the Company nor shall the Company be provided with any protection: the
      principles of a contract that protects third parties (Vertrag mit Schutzwirkung
      zugunsten Dritter) or that is for the benefit of a third party
      (Vertrag zu Gunsten
      Dritter) shall not apply to this Agreement including the relevant
      cash injection obligations.

            


    

     

    
      	
              1.5

            	
              Consequence
      of violation of the cash injection
obligations

            


    

     

    
      	
            	
              a)

            	
              If
      the Cash Injection 1 or 2 or any of the Additional Cash Injections or
      Conflict Cash Injections is not provided timely (and timely by calculating
      a grace period for payment delays of 5 Business Days as from the due date)
      and despite a reminder of the Sellers Representative following the payment
      default not paid within 5 business days as from receipt of the reminder to
      the Company (Delay
      1) in the period between Completion and expiration of the Milestone
      Period (as defined for the Second Purchase Price), the claim for the
      Second Purchase Price in an amount of USD 10 (ten) million and in addition
      the claim for the Third Purchase Price in an amount of USD 5 (five)
      million shall become existent (entstehen), and
      relevant payments shall become due (fällig) at the time of
      the Delay 1 and shall be then subject to the payment terms and conditions
      agreed to in this Agreement regarding the Second and Third Purchase
      Price.

            


    

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              b)

            	
              If
      any of the Additional Cash Injections or Conflict Cash Injections is not
      provided timely (and timely by calculating a grace period for payment
      delays of 5 Business Days as from the due date) and despite a reminder of
      the Sellers Representative following the payment default not paid within 5
      business days as from receipt of the reminder to the Company (Delay
      2) in the period (x) as from the expiration of the Milestone Period
      as defined for the Second Purchase Price and (y) the expiration of the
      Milestone Period (as defined for the Third Purchase Price), the claim for
      the Third Purchase Price in an amount of USD 5 (five) million (unless
      already paid due to a failure pursuant to Section 1.5.a) shall become
      existent (entstehen), and the
      relevant payment shall become due (fällig) at the time of
      the Delay 2 and shall then be subject to the payment terms and conditions
      agreed to in this Agreement regarding the Third Purchase
      Price.

            


    

     

    
      	
               
      

            	
              c)

            	
              If
      the Sellers can prove that the failure of the Purchaser to comply with its
      obligations for providing a relevant Additional Cash Injection or Conflict
      Cash Contribution materially affected the Company and jeopardized
      therefore materially the possibility of the Sellers to achieve individual
      Targets agreed in relation to an individual Milestone Payment, the
      relevant Milestone Payment shall fall due and the relevant payment shall
      be subject to the payment terms and conditions agreed to in this Agreement
      regarding a Milestone Payment unless the Purchaser can prove that the
      achievement of a relevant Target and therefore the achievement of a
      relevant Milestone Payment was at the time of the payment default
      improbable assuming the Company acting in the course of normal business
      and in line with Budget or New Budgets (or based on the amounts of
      Conflict Cash Contributions in case of a
  Conflict).

            


    

     

    
      	
               
      

            	
              d)

            	
              If
      the Purchaser instructs a bank to transfer the Cash Injection or any
      Additional Cash Injection to a Company account and the Company receives
      timely the instructed amount less banking fees or costs being charged by
      banks involved in the money transfer or less exchange differences, the
      relevant payment shall be deemed complete and timely and the Purchaser
      shall make up the difference in due course by transferring the difference
      to the Company.

            


    

     

    
      	
               
      

            	
              e)

            	
              During
      a Conflict, the Purchaser shall provide Conflict Cash Injections as
      notified to him in the Payment Notice by the Sellers’ Representative,
      however in no event amounts that do not comply with the Limitations or
      Adjustments. The Purchaser shall be entitled to review the Payment Notice
      and the relevant calculation and, if an amount notified to the Purchaser
      in a Payment Notice is according to its calculation in excess of the
      Conflict Cash Injection that became due in accordance with his Agreement,
      the Purchaser shall be entitled to deduct the excess amount from the
      amount notified to it without triggering a penalty or other consequences,
      and the Parties shall thereafter in good faith discuss and solve that
      topic.

            


    

     

    
      	
              1.6

            	
              Approvals;
      waiver

            


    

     

    
      	
               
      

            	
              a)

            	
              For
      precautionary reasons, each of the Sellers hereby approves the above sales
      and transfers. A precautionary approval of the Partnership Seller is
      provided for in the Silent Participation Sale and Purchase Agreement and a
      further precautionary waiver of Seller 2 in the tbg waiver pursuant to
      Section R 10.

            


    

     

    
      	
               
      

            	
              b)

            	
              For
      reasons of utmost precaution, the Sellers hereby waive any and all
      preemptive rights or rights of first refusal or other rights providing for
      similar entitlements to Stocks.

            


    

     

    SECTION
2

    PURCHASE
PRICES

     

    
      	
              2.1

            	
              First Purchase
      Price

            


    

     

    The
purchase price for the Sold Stocks (the First Purchase
Price) shall amount to USD 10 (ten) million to be paid at the Closing
Date to the following bank account (the Designated
Account) of the Agent:

    


    Recipient:
Notary Michael Spring

    


    Bank:
Hauck & Aufhäuser Privatbankiers KGaA, Kaiserstraße 24, D-60311 Frankfurt am
Main

    


    Bank
Code: ***

    


    Account
No.: ***

    


    BIC:
***

    


    IBAN:  ***

     

    
      	
              2.2

            	
              Second Purchase
      Price

            


    

     

    An
additional second purchase price (the Second Purchase
Price), if any, shall amount up to USD 10 (ten) million and shall be paid
at the Second Payment Date in accordance with the calculation principles, the
allocation schedule and the payment terms and conditions outlined in EXHIBIT
2.2. The Parties explicitly agree and confirm that the claim for the
Second Purchase Price shall become existent (entstehen) not prior to the
Second Payment Date.

     

    
      	
              2.3

            	
              Third Purchase
      Price

            


    

     

    An
additional third purchase price (the Third Purchase
Price), if any, shall amount up to USD 5 (five) million and shall be paid
at the Third Payment Date in accordance with the calculation principles, the
allocation schedule and the payment terms and conditions outlined in EXHIBIT
2.3. The Parties explicitly agree and confirm that the claim for the
Third Purchase Price shall become existent (entstehen) not prior to the
Third Payment Date.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    
      	
              2.4

            	
              Additional Purchase
      Prices

            


    

     

    In
addition to the purchase prices pursuant to 2.1 to 2.3, the Purchaser shall pay
to the Sellers additional purchase prices subject to and upon satisfaction of
defined milestones (each a Milestone
Payment). The conditions precedent and requirements of each milestone,
the calculation principles, the allocation schedule and the payment terms and
conditions applying to each relevant Milestone Payment are outlined in EXHIBIT
2.4. The Parties explicitly agree and confirm that each claim for a
Milestone Payment shall become existent (entstehen) not prior to such
date on which the relevant Milestone is fulfilled (in line with the relevant
conditions to the fulfillment of a Milestone).

     

    
      	
              2.5

            	
              Call
      Option

            


    

     

    Subject
to the Purchaser not paying purchase prices timely, the Sellers are entitled to
a call option as per se the Call Option
Agreement attached hereto as EXHIBIT
2.5.

     

    
      	
              2.6

            	
              Payments

            


    

     

    All
payments of purchase prices (including Milestone Payments) shall be effected to
the Designated Account. All payments received in the Designated Account shall
release the Purchaser in the respective amount from its payment obligations
under this Agreement. The Sellers shall be responsible for allocation of
received funds amongst the Sellers and the Agent shall be responsible for
effecting the payments set out in the Transaction Fee Schedule.

     

    If the
Purchaser instructs a bank to transfer purchase prices to the Designated Account
and the Agent receives timely the instructed amount less banking fees or costs
being charged by banks involved in the money transfer or less amounts caused by
exchange rates, the relevant payment shall be deemed complete and timely and the
Purchaser shall make up the difference within 5 Business after having been
notified of the difference by the Sellers Representative by transferring the
difference to the Agent.

     

    SECTION
3

    REPRESENTATIONS
AND WARRANTIES 

     

    The
representations and warranties in this Section 3 are not meant at any time as a
guarantee (Beschaffenheitsgarantie oder
Haltbarkeitsgarantie) within the meaning of Sections 443 and 444 of the
German Civil Code (Bürgerliches Gesetzbuch, or
BGB), the
application of which the Parties hereby exclude. Subject to the foregoing the
Sellers Guarantor represents and warrants to the Purchaser in the form of an
independent guarantee and irrespective of negligence or fault (selbständiges
verschuldensunabhängiges Garantieversprechen pursuant to Section 311
paragraph 1 BGB) that the following statements 3.1 to 3.16 (the Representations)
are true and correct as of Signing Date and/or any other date specified
hereinafter.

    


    Each
Seller furthermore, however each of Seller 2 and Seller 5 only individually
(als Teilschuldner),
represents and warrants to the Purchaser in the form of an independent guarantee
and irrespective of negligence or fault (selbständiges
verschuldensunabhängiges Garantieversprechen pursuant to Section 311
paragraph 1 BGB) that the Representations pursuant to Sections 3.1 and, except
for Seller 2 and Seller 5, 3.2 are true and correct as of the Signing Date
and/or any other date specified hereinafter. Only in relation to Seller 2 and
Seller 5 the following shall apply: the Representation pursuant to Section 3.1
b) (III) does, however, not apply to the information arising from Section 7 of
the Preamble and, insofar as the Representation pursuant to Section 3.1 b) VI)
is concerned, only the Sellers Guarantor shall be liable.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

    


    The scope
and content of each Representation of the Sellers Guarantor or the Sellers
contained in this Section 3 as well as the Sellers Guarantor’s or the Seller's
liability arising thereunder shall be exclusively defined by the provisions of
this Agreement (in particular the limitations on Purchaser's rights and remedies
set forth in Sections 4 below), which shall be an integral part of the
Representations:

     

    
      
        	
                3.1

              	
                Authorization;
      Transfer of Title

              


      

    

     

    
      
        	
              	
                (a)

              	
                Authorization.

              


      

    

     

    
      
        	
              	
                (i)

              	
                As
      of the Signing Date and the Closing Date, each Seller has full power and
      authority to enter into this Agreement, to perform its obligations
      hereunder and to consummate the transactions contemplated
      herein.

              


      

    

     

    
      
        	
              	
                (ii)

              	
                The
      Sellers have duly entered into this Agreement and, assuming the due
      authorization, execution and delivery by the other Parties hereto, this
      Agreement constitutes as of the Signing Date and the Closing Date the
      binding obligation of each of the Sellers enforceable against the
      respective Seller in accordance with its
terms.

              


      

    

     

    
      
        	
              	
                (iii)

              	
                As
      of the Signing Date and the Closing Date the execution, delivery and
      performance of this Agreement and the consummation of the transactions
      contemplated hereby (i) do not conflict with, result in a breach of, or
      constitute a default under the articles of association of the Company and
      (ii) do not, to the Guarantor’s Knowledge (with or without the giving of
      notice), create in any other person a right or claim of termination,
      amendment, or require modification, acceleration or cancellation of, or
      result in, the creation of any lien (or any obligation to create any lien)
      upon any of the properties, assets, agreements or rights of or to which
      the Company is a party to.

              


      

    

     

    
      
        	
              	
                (b)

              	
                Corporate
      Matters.

              


      

    

     

    
      
        	
              	
                (i)

              	
                As
      of the Signing Date and the Closing Date, the Company is duly organized
      and validly existing as a stock corporation under the laws of the Federal
      Republic of Germany and has full corporate power and authority to conduct
      its business as heretofore
conducted.

              


      

    

     

    
      	
            	
              (ii)

            	
              EXHIBIT
      3.1.b (ii)___contains complete and
      correct copies of the Company’s (i) articles of association as in effect
      as of the Signing Date and (ii) current entry in the commercial register
      (the Organizational
      Documents). Except as required under and described in Section
      9, there are no
      shareholder resolutions amending the Organizational Documents that have
      not yet been registered in the respective competent Commercial
      Register.

            


    

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (iii)

              	
                The
      statements contained in the Sections 2 to 9 of the Recitals are true,
      complete and correct.

              


      

    

     

    
      
        	
              	
                (iv)

              	
                As
      of the Signing Date and at the First Closing Date, each Seller owns the
      Stocks sold and transferred unrestricted at the relevant date and such
      Stocks are fully paid-in, not repaid, non-assessable and free from rights
      of third parties of any type whatsoever (including voting right agreements
      (Stimmbindungsverträge)
      of any type) and there are no claims for the granting of such rights
      and/or the transfer of any of the sold Stocks (except for rights of the
      Purchaser under this
Agreement).

              


      

    

     

    
      
        	
              	
                (v)

              	
                As
      of the Signing Date and at the First Closing Date, each Seller is entitled
      to freely dispose of the Stocks sold by the respective Seller at the
      relevant date in accordance with the terms of this
    Agreement.

              


      

    

     

    
      
        	
              	
                (vi)

              	
                Except
      as disclosed in EXHIBIT
      3.1.b (vi) there are no
      profit and loss transfer agreements or other Unternehmensverträge
      within the meaning of Sections 291, 292 of the German Stock Corporation
      Act (Aktiengesetz, or AktG)
      in existence to which the Company is a party to. Except as disclosed in
      EXHIBIT 3.1.b (vi) there are no other profit or loss depending
      arrangements to which the Company is, or has been, a party
    to.

              


      

    

     

    
      
        	
              	
                (vii)

              	
                The
      Company does not hold, or own, directly or indirectly, any equity or
      voting interest, participation or sub-participation in any other
      person.

              


      

    

     

    
      
        
          	
                  3.2

                	
                  Financial
      Statements and
      Financials  

                


        

      

    

     

    
      
        	
              	
                (a)

              	
                Complete
      and correct copies of the financial statements (Jahresabschlüsse)
      (Financial
      Statements) of the Company as of 31 December 2008 (audited) and
      2009 (as set up and signed by the Company’s members of the management
      board) are attached to this Agreement as EXHIBIT
      _3.2.a. The Financial
      Statements have been prepared in accordance with German generally accepted
      accounting principles applied on a consistent basis throughout the periods
      presented and present a true and fair view, within the meaning of Section
      264 para. 2 of the German Commercial Code (Handelsgesetzbuch or
      HGB),
      of the assets and liabilities (Vermögenslage),
      financial condition (Finanzlage) and results
      of operation (Ertragslage) of the
      Company for the period referenced
therein.

              


      

    

     

    
      
        	
              	
                (b)

              	
                Except
      as set forth in as EXHIBIT
      3.2.b hereto, since the
      Effective Date the Company has not incurred any liabilities of any nature
      (Liabilities)
      whether accrued, absolute, contingent, liquidated or unliquidated, matured
      or unmatured, or otherwise except for Liabilities incurred (i) in the
      ordinary course of business or (ii) in connection with this Agreement to
      the transactions contemplated
hereby.

              


      

    

     

    
      
        	
              	
                (c)

              	
                The
      Management Accounts (Betriebswirtschaftliche
      Auswertungen – BWA) for the period starting at the Effective Date
      and ending on 30 September 2010 are attached as EXHIBIT _3.2.c and have
      been prepared with the skill and the care of a conscientious businessman
      on a consistent basis (Bilanzkontinuität).

              


      

    

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (d)

              	
                The
      Company’s revenues generated since the Effective Date amount to at least
      EUR 663,288.77..

              


      

    

     

    
      
        	
                3.3

              	
                Conduct of Business

              


      

    

     

    Except
for signing addendums to the Restructuring Agreement referred to in Recital 8
hereto, since the Effective Date up to and including Signing Date the Company
has conducted its respective business in the ordinary course consistent with
past practice. The Company has in particular, but not limited to

     

    
      
        	
              	
                (a)

              	
                not
      declared any dividend or made any other distribution or paid any
      withdrawal;

              


      

    

     

    
      
        	
              	
                (b)

              	
                not
      terminated a Material
Contract;

              


      

    

     

    
      
        	
              	
                (c)

              	
                not
      issued or sold any Stocks or similar interests in the Company, or entered
      into understandings of any kind, contingently or otherwise, to purchase or
      otherwise acquire any such Interests or any securities convertible into or
      exchangeable for Interests;

              


      

    

     

    
      
        
          	
                	
                  (d)

                	
                  not
      incurred any indebtedness for borrowed money, issued or sold any debt
      securities or prepaid any debt (including, without limitation, any
      borrowings from, or prepayments to, any of its shareholders) except for
      borrowings and repayments in the ordinary course of
    business;

                


        

      

    

     

    
      
        	
              	
                (e)

              	
                not
      made any material change in (y) the terms of employment (including
      compensation) or (z) payments to any Employees or Consultants or directors
      of the management or supervisory board other than in the ordinary course
      of business or referred to in EXHIBIT
      _3.3.e;

              


      

    

     

    
      	
            	
              (f)

            	
              not
      sold or otherwise transferred any material part of the AdnaGen Business;
      and

            


    

     

    
      
        	
              	
                (g)

              	
                not
      transferred, granted or extended any rights or licenses, or entered into
      any settlement regarding the infringement of Business Intellectual
      Property or entered into any licensing or similar agreements or
      arrangements other than in the ordinary course of
  business.

              


      

    

     

    
      
        	
                3.4

              	
                Assets

              


      

    

     

    The
Company owns, or otherwise has full or sufficient and legally enforceable rights
to use all of its assets (moveable, immoveable or mixed, tangible or intangible)
necessary for the conduct of, or otherwise material to, the business as
conducted up to the Signing Date (the Assets).


     

    
      
        	
                3.5

              	
                Immoveable
      Property

              


      

    

     

    
      
        	
              	
                (a)

              	
                The
      Company does not own real
estate.

              


      

    

     

    
      
        	
              	
                (b)

              	
                EXHIBIT
      3.5.b contains the current lease agreement regarding immoveable
      property leased or rented by the Company as of the Signing Date. The lease
      is legally valid and binding. The lease can be continued as from the
      Signing Date until 31 December 2011 at the current terms. There are no
      sub-leases under which the Company leases immovable property to third
      parties.

              


      

    

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    
      
        	
                3.6

              	
                Material
      Contracts  

              


      

    

     

    EXHIBIT
_3.6 (i)_contains a true and complete list of all agreements entered into
by the Company that have at the Signing Date not been completely fulfilled
(nicht vollständig erfüllte
Verträge), with regard to 

     

    
      
        	
              	
                (a)

              	
                agreements
      relating to the acquisition or sale of interests in other companies or
      businesses;

              


      

    

     

    
      
        	
              	
                (b)

              	
                joint
      venture agreements and consortium agreements other than listed in Exhibit
      R7;

              


      

    

     

    
      
        	
              	
                (c)

              	
                loan
      agreements, silent partnership agreements, bonds, notes or any other
      instruments of debt in cases where the Company is the debtor or the
      creditor other than listed in Exhibit
R7;

              


      

    

     

    
      
        	
              	
                (d)

              	
                guaranties,
      indemnities, and suretyships issued for any debt of any third party,
      except for guarantees issued in the ordinary course of
      business;

              


      

    

     

    
      
        	
              	
                (e)

              	
                licensing-in
      agreements;

              


      

    

     

    
      
        	
              	
                (f)

              	
                [deliberately
      left blank];

              


      

    

     

    
      
        	
              	
                (g)

              	
                agreements
      regarding swaps, options, forward sales or purchases, futures and other
      financial derivatives and combinations
thereof;

              


      

    

     

    
      
        	
              	
                (h)

              	
                real
      estate lease agreement where the Company is a tenant or
      landlord;

              


      

    

     

    
      
        	
              	
                (i)

              	
                any
      agreement (excluding customary territorial restrictions in distribution
      agreements) that limits the freedom of the Company to compete with any
      third party; and

              


      

    

     

    
      
        	
              	
                (j)

              	
                agreements
      with any of the company’s shareholders or members of the management board
      or Related Parties which are not explicitly referred to or mentioned in
      this Agreement and have not been presented to the Purchaser during due
      diligence;

              


      

    

     

    and which
have a value exceeding EUR 150,000.00 in each case or per year (the Material
Agreements).

     

    Unless
otherwise disclosed in EXHIBIT
_3.6 (ii), (i)
all Material Agreements are, to the Guarantors Knowledge, valid and enforceable
and no notice of termination has been given with respect to any Material
Agreement, (ii) to the Guarantors Knowledge, no termination with respect to any
Material Agreement can be given due to the completion of this Agreement
(“absence of change of control clauses”) and the enforceability of all Material
Agreements will not be affected in any manner by the execution, delivery or
performance of this Agreement, and (iii) according to Guarantor’ s Knowledge
neither the Company nor any third party to any Material Agreement is in material
default or material breach under any such agreement.

     

    
      
        	
                3.7

              	
                Intellectual
      Property/Information
Technology

              


      

    

     

    
      
        	
              	
                (a)

              	
                EXHIBIT
      3.7.a (i) contains as of Signing Date and as of Closing Date a
      complete and correct list of patents, trademarks and other intellectual
      property rights owned (including any applications for such intellectual
      property rights) by the Company (the Owned
      Intellectual Property Rights) and/or licensed to the Company (the
      Intellectual
      Property Licenses) necessary for the conduct of, or otherwise
      material to, the Business (the Business
      Intellectual Property). As of Signing Date and as of Closing Date,
      the Company owns or is licensed to use all Business Intellectual Property.
      Except as set forth in EXHIBIT
      3.7.a (ii), the Company is as of Signing Date and as of Closing
      Date not liable to current or former employees for remuneration under the
      Act on Inventions by Employees (Arbeitnehmererfindungsgesetz),
      or any equivalent applicable law.
  [**Redacted**].

              


      

    

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (b)

              	
                The
      Company has, to the Guarantor’s Knowledge, taken all reasonable actions to
      ensure full protection of the Business Intellectual Property
      Rights.

              


      

    

     

    
      
        	
              	
                (c)

              	
                All
      Intellectual Property Licenses with respect to the Business Intellectual
      Property are in full force and effect in accordance with their
      terms.

              


      

    

     

    
      
        	
              	
                (d)

              	
                The
      Business Intellectual Property is neither subject to any pending
      proceedings for opposition, cancellation, revocation or rectification
      which may negatively affect the operation of the Company’s overall
      business nor being to the Guarantor’s Knowledge materially infringed by
      third parties.  To the Guarantor’s Knowledge, all fees necessary
      to maintain the Business Intellectual Property have been paid up to and
      including Closing Date, all necessary renewal applications have been filed
      and all other material steps necessary for their maintenance have been
      taken.  To the Guarantor’s Knowledge, the Company was not
      accused for infringing anyone else's intellectual property (the Infringement/s).

              


      

    

     

    
      
        	
              	
                (e)

              	
                Intellectual
      Property or intellectual
      property - as a stand alone term or as part of any defined term -
      means trademarks, service marks, trade names, trade dress, domain names,
      copyrights, and similar rights, patents and patent applications, and
      inventions, business processes, designs, formulae, trade secrets,
      know-how, confidential information, computer software (in both source and
      object code forms) and other confidential and proprietary knowledge and
      information; data and documentation, database rights, tangible embodiments
      of any of the foregoing (in any medium including electronic media), and
      all similar intellectual property rights and any applications and
      registrations for any of the above in any
  country.

              


      

    

    


    
      	
            	
              (f)

            	
              The
      Company owns, or has acquired a valid right or license to use, all
      computer hardware, software, communication systems, networks and other
      information technology (the Information
      Technology) which the Company requires to carry on its business as
      presently conducted. All Information Technology is adequate and sufficient
      for the Company’s current business
operations.

            


    

     

    
      
        	
                3.8

              	
                Tax
      Representations

              


      

    

     

    In
relation to tax matters, EXHIBIT
3.8 sets out the Representations of the Sellers Guarantor.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    
      
        	
                3.9

              	
                Insurance

              


      

    

     

    The
insurance coverage of the Company is, in the reasonable view of the Guarantor,
adequate and suitable for the business as presently conducted. To Guarantor’s
Knowledge, the Company has complied in all material respects with the terms
and provisions of all of its insurance policies.

     

    
      
        	
                3.10

              	
                Litigation  

              


      

    

     

    Except as
listed in Exhibit
3.10, there are no lawsuits, court actions or similar proceedings before
a court of justice, arbitration panel or an administrative authority pending
(rechtshängig) or
threatened in writing to be filed against the Company (Litigation).

     

    
      
        	
                3.11

              	
                Permits and Licenses;
      Compliance

              


      

    

     

    To the
Guarantor’s Knowledge, the Company obtained, holds and maintains all permits and
licenses which are required, if any, under applicable public laws (öffentliches Recht) in order
to conduct the business as presently conducted. There are no written threats of
any revocation or restriction or subsequent orders (nachträgliche Anordnungen)
relating to any such permits or licenses which would materially affect the
business of the Company as a whole. To the Guarantor’s Knowledge, the Company
has conducted its business in compliance with all material provisions of such
permits and licenses and applicable Laws.

     

    
      
        	
                3.12

              	
                Employees, Consultants, Labor
      Matters, etc.

              


      

    

     

    
      
        	
              	
                (a)

              	
                Employees.  EXHIBIT
      3.12.a contains a complete list of all employees of the Company
      (other than the members of the managing board) (the Employees)
      setting out in relation to each of the Employees its (i) annual salary
      (including bonus entitlement), (ii) benefits (company car, pension
      entitlements, insurances etc.), (iii) entitlement (per days) to annual
      vacation, (iv) age, (v) gender, (vi) employment start date and (vii)
      notice period. None of the Employees has given or received notice of
      termination of his or her
employment.

              


      

    

     

    
      
        	
              	
                (b)

              	
                Consultants.  EXHIBIT
      3.12.b contains a complete and accurate list of all of the
      Company’s contracts and relationships with all the individuals engaged by
      the Company to provide services to the Company exceeding a value of EUR
      20,000.00 p.a., including without limitation services as consultants and
      freelancers, as of the date hereof on a self-employed basis or supplied by
      an agency (each a Consultant.
      None of the Consultants has given or received according to Guarantor’s
      knowledge notice of termination of his or her relationship with the
      Company.

              


      

    

     

    
      
        	
              	
                (c)

              	
                Collective Bargaining
      Agreements; Labor Relations.  The Company is not a party
      to or bound by any collective bargaining agreement except as it may be
      subject to collective bargaining agreements of general application (allgemein-verbindliche
      Tarifverträge).  There have not been in the last twelve
      months, nor are there currently any labor disputes nor are such, to the
      Guarantor’s Knowledge, threatened. As of Signing Date and as of Closing
      Date, all salaries and redundancy payments (and related Taxes) due have
      been paid. The Company is in compliance, and has always materially
      complied, with all applicable laws relating to equal employment, fair
      employment practices, prohibited discrimination or distinction or other
      similar employment practices and are not engaged in any unfair labor
      practice. There
      are no former employees or board members (including relevant
      amounts) who are entitled to or who can be expected to request redundancy
      payments.

              


      

    

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (d)

              	
                Employee Benefit
      Plans.  The Company has no employee benefit plans or
      insurance plans or other compensation plans, except as given in EXHIBIT
      3.12 (d).

              


      

    

     

    
      
        	
              	
                (e)

              	
                Pension
      Liabilities.  The Company has not made or granted any
      individual pension commitments, direct insurances, reinsurance coverage
      regarding pensions, general old-age pension schemes and/or other company
      pension schemes (betriebliche
      Altersvorsorge), whether of an individual or collective nature or
      based on works custom (betriebliche Übung), to
      any of its current or former Employees, except as given in EXHIBIT
      3.12 (e).

              


      

    

     

    
      	
            	
              (f)

            	
              Compliance with Social
      Security.  At the Closing Date, the Company has no
      obligation under applicable social security laws (Sozialversicherungsrecht).

            


    

     

    
      
        	
                3.13

              	
                Deliberately left
      free

              


      

    

     

    
      
        	
                3.14

              	
                No
      Illegal Payments

              


      

    

     

    The
Company has not directly or indirectly (i) given or agreed to give any illegal
gift, contribution, payment or similar benefit to any supplier, customer,
governmental official or employee or other person, or (ii) made or agreed to
make any illegal contribution, or reimbursed any illegal political gift or
contribution made by any other person, to any candidate for federal, state,
local or foreign public office, in each case that might subject the Company to
any damage or penalty in any civil, criminal or governmental litigation or
proceeding.

     

    
      
        	
                3.15

              	
                No Finder’s Fee; No Transaction
      Costs

              


      

    

     

    The
Company is under no obligation to pay any fee, bonus, extra compensation or
severance payment to any third party (including the management and the employees
of the Company and any member of the supervisory board and/or advisory boards of
the Company) or to its shareholders by virtue of this Agreement or consummation
of the transactions contemplated under this Agreement (the Transaction
Triggered Payments). The agreement contained in EXHIBIT 3.15 (i) (the Bioventures
Agreement) is
known to the Purchaser.

     

    The
Company has not made since 31 May 2010 any payments under the Bioventure
Agreement and shall not make or agree to make any such payments up to and
including Completion. Any and all past and future costs, expenses, obligations
and liabilities of the Company under, related to or caused by the Bioventure
Agreement shall be borne by the Sellers, and the Sellers shall indemnify the
Company from any and all claims or consequences under, related to or caused by
the Bioventure Agreement.

     

    At the
Closing Date, the Agent shall pay the relevant amounts due under the Bioventures
Agreement, and any further amounts falling due shall be paid by
Sellers.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    
      
        	
                3.16

              	
                Public
      grants and subsidies;
Financing

              


      

    

     

    In
relation to Financing and public grant and subsidy matters, the Parties agree -
in addition - to the specific indemnification rules contained in the
Indemnification section.

     

    SECTION
4

    Performance
and Liability

     

    
      
        	
                4.1

              	
                Self-contained
      Regime

              


      

    

     

    Except
for claims based on (i) the breach of the Representations and (ii)
Indemnifications and except for claims for specific performance (Erfüllungsansprüche) or other
claims provided for in this Agreement, all other claims with respect to the sale
and transfer of the Stocks and the business of the Company are excluded,– e.g.
(i) any right of the Purchaser to rescind (zurücktreten) this Agreement
or to require the winding up of the transactions contemplated hereunder (inter
alia, by way of Schadenersatz
statt der ganzen Leistung), (ii) any claims for breach of pre-contractual
obligations (culpa in
contrahendo), including claims arising under Section 241, 311 BGB or
ancillary obligations, including claims arising under Section 280, 282 BGB,
(iii) any claims under the principle of frustration of contract pursuant to
Section 313 BGB (Störung der
Geschäftsgrundlage), (iv) all remedies of the Purchaser for defects under
Section 437 through 441 BGB, (v) tort (Sections 823 et seq. BGB) and (vi) any
and all other statutory rights and remedies of the Purchaser, if any, are hereby
expressly excluded and waived by the Parties, except for claims based on willful
conduct (Vorsatz) or
willful deceit (arglistige
Täuschung). The Parties are in agreement that the Representations
according to Section 3 are only designed for the specific remedies of the
Purchaser and the restrictions set forth in this Agreement and shall not serve
to provide the Purchaser with any claims other than those set forth in this
Agreement.

     

    
      
        	
                4.2

              	
                Administration
      of Breaches

              


      

    

     

    (A)           In
case of a breach of any Representations, the Sellers Guarantor or, if the
Sellers are concerned in relation to a Representation they assume, the Sellers
may attempt to remedy the breach (Naturalrestitution). If the
Sellers Guarantor, or, as the case may be, the Sellers fail to remedy the breach
within a reasonable period of time, such period not to exceed one month after
the Sellers Guarantor has received a written and sufficiently detailed
notification as to the breach from the Purchaser (the Claim
Notification), the Purchaser shall be entitled to claim from the Sellers
Guarantor or, as the case may be, the Sellers compensation in cash (Schadensersatz in Geld) pro
rata to the Purchaser’s actual shareholding in the Company at the time of the
compensation for any actual losses within the meaning of Sec. 249 et seq. German
Civil Code (Bürgerliches
Gesetzbuch, BGB) incurred by the Company excluding consequential damages
(Folgeschäden), lost
profits (entgangener
Gewinn) lost opportunities (entgangene Geschäftschancen),
frustrated expenses (vergebliche Aufwendungen)
within the meaning of Section 284 BGB and internal administration and overhead
costs. For the avoidance of doubt, each Seller shall only be liable if and to
the extent that the respective Seller is in breach of a Representation it has
assumed; Section 4.10 (that extents the liability of the Sellers) remains
unaffected.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (b)

              	
                The
      legal principles as to the mitigation of damages as well as the
      off-setting of losses by advantages due to the damaging event (Schadensberechnung,
      Schadensminderung und Vorteilsausgleichung) pursuant to
      Sec. 249 et
      seq. BGB
      shall apply to all claims of the Purchaser based on a breach of
      Representations. To the extent the payment of the Sellers is subject to
      Tax, such payment will be increased by the Sellers leaving the Purchaser
      (or the Company, as the case may be) with the net compensation after Tax
      (grossing up).

              


      

    

     

    
      
        	
                4.3

              	
                Exclusion
      of Liability

              


      

    

     

    Any
liability of the Sellers in connection with Representations shall be excluded or
decreased if and to the extent that claims of the Purchaser or the underlying
circumstances, respectively, are (i) covered by insurance policies or
claims against third parties to the extent such claims against third parties
have been collected (at the expense of the Sellers) within 4 months as from the
Warranty Notification or (ii)  specifically reserved for in the Financial
Statements; (iii) have been specifically disclosed to the Purchaser in this
Agreement (including its Exhibits); (iv) has been done or omitted to be done
with respect to the subject matter of the claim at the request, or with the
approval, of the Purchaser; (v) the result of or are increased by the failure of
the Purchaser to mitigate damages; (vi) the result of an Act of God or (vii) the
result of or is increased by the passing of, or any change in any law, statute,
ordinance, rule, regulation or administrative practice of any competent
authority after the Signing Date.

     

    
      
        	
                4.4

              	
                Effects
      of Knowledge

              


      

    

     

    Unless
specifically disclosed in this Agreement (including its Exhibits), claims of the
Purchaser based on a breach of any of the Representations are not excluded if a
breach or the underlying facts have been known to the Purchaser at any time
until Completion. Sec. 442 BGB and Sec. 377 HGB are excluded. The same
shall apply mutatis
mutandis to Indemnifications, and the Parties agree for the sake of clarity that
no specific disclosures are made in context with Indemnifications (unless
specifically outlined in Exhibit 5) and Tax Representations (as referred to in
Section 3.8.).

     

    
      
        	
                4.5

              	
                Cooperation

              


      

    

     

    In case
of a breach of any Representations (including Tax Representations) and
indemnities, which relates to court judgments, public orders or third party
claims raised against the Company, the Party or Parties receiving such
information shall procure that (i) the Sellers and the Purchaser shall be
properly informed, without undue delay, about any claim or proceedings which may
give rise to a claim of the Purchaser in relation to the Representations,
(ii) no binding declarations shall be made vis-à-vis any court, public
authority or third party without the prior written instruction of the Sellers
Representative and the Purchaser, (iii) such measures or actions shall be
taken or omitted as the Sellers Representative may instruct, at the expense of
the Sellers, to avoid, defend, dispute or settle such claim and (iv) for
such defense, dispute or settlement action such advisors shall be retained as
selected by the Sellers Representative.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    
      
        	
                4.6

              	
                Knowledge

              


      

    

     

    To the
extent Representations refer to knowledge or Knowledge of the Guarantor or Guarantor’s
Knowledge, knowledge or Knowledge of the
Guarantor or Guarantor’s
Knowledge means the knowledge of each of Dr. Weis and Dr. Hauch acting
with the due care of a prudent business man (Sorgfalt eines ordentlichen
Kaufmanns), and the knowledge of either of them shall constitute
knowledge, Knowledge of the Guarantor or Guarantor’s Knowledge.

     

    
      
        	
                4.7

              	
                De-minimis
      / Basket

              


      

    

     

    Claims of
the Purchaser under, or in connection with, Representations can only be raised
if and to the extent that (i) each individual claim, or a series of similar
claims, exceeds EUR [**Redacted**] and (ii) the aggregate amount of
claims which can be raised pursuant to lit. (i), exceeds
EUR [**Redacted**], in which case the Purchaser shall be entitled to claim
the full amount (Freigrenze). The before limitations shall
not apply in respect of Representations and related claims relating to (i) the
title to Stocks, and (ii), for the avoidance of doubt,
Indemnifications.

     

    
      
        	
                4.8

              	
                Maximum
      Liability in Case of a Breach of
Representations

              


      

    

     

    The
maximum liability of the Sellers for all claims of the Purchaser under, or in
connection with, the Representations shall be limited to an amount equal to the
following percentages of the purchase price/s paid or fallen due under this
Agreement: 20% of the First Purchase Price plus 15% of any further purchase
prices (i.e. Second, Third and any and all Milestone Payments). The amount of
the maximum liability increases therefore from USD 2 million (maximum liability
upon First Purchase Price becoming due) if and to the extent that the Second or
Third Purchase Price or Milestone Payments are paid or become due, and such
increase(s) however, shall have – for the avoidance of doubt –retroactive effect
as from Completion onwards and shall therefore increase any claims of the
Purchaser in relation to Representations, not depending when such claim has
fallen or becomes due or if such claim has already been paid based on or
dismissed due to a originally lower maximum amount of liability. For the
avoidance of doubt, the Sellers shall in no event be liable to pay more than
they have received as purchase prices. The before limitations shall not apply in
respect of claims (i) relating to the title to Stocks, (ii) Tax Representations
(for the avoidance of doubt as represented by Sellers Guarantor) and (iii), for
the avoidance of doubt, Indemnifications (for the avoidance of doubt as given by
Sellers Guarantor); for the avoidance of doubt, Section 4.10 (h) shall remain
unaffected. Among the Sellers the following shall apply: Sellers Guarantor has
confirmed in a separate agreement between the Sellers, the Silent Partnership
Seller and the Agent that Sellers Guarantor has no claims for recourse against
Seller 2 and Seller 5 unless Seller 2 and Seller 5 are liable under Section 3 of
this Agreement.

     

    
      
        	
                4.9

              	
                Period
      of Limitation

              


      

    

     

    The
period of limitation for all Representations and related claims of the Purchaser
relating to the title to shares in the Company shall run until the fifteenth
(15) anniversary of the Completion; the period of limitation for all other
Representations under this Agreement shall run until 30 June 2013, except for
the Tax Representations which shall run until the period indicated in Exhibit
5.8. For the avoidance of doubt, the before limitations shall not apply to
Indemnifications.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    
      
        	
                4.10

              	
                Deductions;
      set-off; bank guarantee

              


      

    

     

    
      
        	
              	
                a)

              	
                The
      Purchaser may set-off any claims it has under or in relation to or caused
      by Representations (including Tax Representations) or Indemnifications or
      the Payment Difference against the Second and/or Third Purchase Price
      and/or Milestone Payments, and, for the avoidance of doubt, the payment of
      any so reduced amount shall constitute the payment of the relevant
      purchase price.

              


      

    

     

    
      
        	
              	
                b)

              	
                The
      before paragraph (a) in relation to a set-off shall not apply to the
      Representations contained in the Sections 3.2, Sections 3.3 b, e, 3.4, 3.6
      excluding lit. e and f, 3.9, and 3.11, . In these cases, a set-off is only
      permissible if claims of the Purchaser are established by a court or an
      arbitral court of competent jurisdiction in accordance with Sections 10.11
      of this agreement, certified as being final or provisionally enforceable
      (vorläufig
      vollstreckbar), ordering the Sellers or the Sellers Guarantor to
      make payments to the Purchaser. In case of a judgment provisionally
      enforceable only on security (gegen
      Sicherheitsleistung), the set-off will only be permissible, if the
      security has been lodged by the
Purchaser.

              


      

    

     

    
      
        	
              	
                c)

              	
                If
      the Purchaser declares a set-off in line with the provisions contained in
      paragraph (a), it may withhold any amounts being subject to the declared
      set-off, and such shall not constitute a payment default or create any
      rights of the Sellers, in particular not in relation to the Call Option.
      The validity of the set-off (including, for the avoidance of doubt, the
      respective lawful set-off amount, if any) shall then be determined in line
      with the provisions of this Agreement, and the following shall in
      particular apply: any amount/s not being validly subject of the set-off
      shall become due and payable within 10 (ten) Business Days as from the
      date the subject matter has been established by a court or an arbitral
      court of competent jurisdiction in accordance with Sections 10.12 of this
      agreement, certified as being final or provisionally enforceable (vorläufig
      vollstreckbar), ordering the Purchaser or the Purchaser’s Guarantor
      to make payments to the Sellers. In case of a judgment provisionally
      enforceable only on security (gegen
      Sicherheitsleistung), a payment may only be requested by the
      Sellers if they have lodged
security.

              


      

    

     

    
      
        	
              	
                d)

              	
                On
      the Second and the Third Payment Date, the Sellers Guarantor shall deliver
      to the Purchaser an irrevocable, unconditional bank guarantee on first
      demand of a first class German or European bank of international standing
      in the amount of EUR 200,000 substantially in the format attached as Exhibit
      4.10.d (Sellers
      Bank Guarantee) securing any of the Sellers and the Sellers
      Guarantor’s obligations arising under this Agreement in relation to
      Sellers’ Tax Representations pursuant to EXHIBIT 3.8 and/or the related
      Indemnifications. The delivery of Sellers’ Bank Guarantee shall be
      effected step by step (Zug um Zug) against
      payment of the relevant purchase
price.

              


      

    

     

    
      
        	
              	
                e)

              	
                If
      at the time a Milestone Payment falls due the Purchaser has not already
      been provided by the Sellers with two Sellers’ Bank Guarantees, the
      Sellers shall provide the Purchaser with the missing Seller’s Bank
      Guarantee/s prior to the Purchaser effecting a Milestone
      Payment.

              


      

    

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                f)

              	
                Each
      Sellers Bank Guarantee shall remain in place up to and including 31
      December 2014. The banking fees caused by a Sellers’ Bank Guarantee shall
      be shared equally between Sellers (50%) and Purchaser
    (50%).

              


      

    

     

    
      
        	
              	
                g)

              	
                The
      Parties agree that at the request of the Sellers the Purchaser shall
      procure that the Company shall try to trigger a tax audit. The Purchaser
      shall also be entitled to request the Company to trigger a tax
      audit.

              


      

    

     

    
      
        	
              	
                h)

              	
                The
      Sellers explicitly agree that all Purchaser’s claims for Representations
      and Indemnifications in general (and therefore also a set-off) shall
      reduce (or shall have consequences to) claims for the payment of purchase
      prices though the Sellers (except for the Sellers Guarantor) are under
      this Agreement only liable for a limited number of Representations. The
      Sellers (except for the Sellers Guarantor) insofar bear consequences
      caused by a breach of Representations or of Indemnifications for which
      they are not liable and all Sellers acknowledge and agree to such
      concept.

              


      

    

     

    
      
        	
                4.11

              	
                Purchase
      Price Adjustment

              


      

    

     

    To the
extent permitted by law, the Parties agree that all payments made in context
with Representations and Indemnifications shall be adjustments to the purchase
prices for all Tax purposes.

     

    SECTION
5

    INDEMNIFICATIONS

     

    From and
after the Completion, the Sellers Guarantor agrees to indemnify (freistellen) (the Indemnification/s)
the Company and/or the Purchaser, as the case may be, from any damages referred
to and subject to the regulations set forth in EXHIBIT
5. For the avoidance of doubt, the actual amount of compensation owed by
the Sellers Guarantor under this Agreement for any claim will not be increased
by the fact that Indemnifications and Representations may relate to the same
matter or breach (i.e. no double counting of damages).

     

    The
Sellers Guarantor shall – as further outlined in Exhibit 5 – in particular
indemnify the Company from any and all claims, costs and damages in relation to
or caused by claims of [**Redacted**] that were not [**Redacted**], and such
indemnification to include in particular to obligate the Sellers Guarantor to
pay all costs spent by the Company due to litigation, including fees charged by
legal advisors that are in excess of the statutory fee schedule. The Purchaser
and the Sellers Guarantor shall negotiate in good faith if and to which extent
the indemnification can be limited, considering however that neither the
Purchaser nor the Company shall have cash requirements or liabilities with view
to [**Redacted**] acting as [**Redacted**] and in context with [**Redacted**]
(as outlined in this Agreement), the [**Redacted**] (in particular in context
with the [**Redacted**] and all consequences under or caused by that
[**Redacted**]) and [**Redacted**] matters.

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

    SECTION
6

    COVENANTS


     

    
      
        	
                6.1

              	
                Preservation
      of Business

              


      

    

     

    As from
the date hereof until and including the Completion the Sellers Guarantor shall,
to the extent legally possible, procure that

     

    
      
        	
              	
                (a)

              	
                unless
      agreed by Purchaser, no stockholders’ resolutions shall be adopted (except
      as otherwise expressly set forth in this Agreement) relating
      to

              


      

    

     

    
      
        	
              	
                (i)

              	
                the
      change or amendment of articles of
association;

              


      

    

     

    
      
        	
              	
                (ii)

              	
                the
      increase or decrease of stock capital, including but not limited to the
      creation of authorized capital (genehmigtes Kapital) or
      contingent capital (bedingtes
      Kapital);

              


      

    

     

    
      
        	
              	
                (iii)

              	
                dividend
      payments or any other distribution or payment or withdrawal of, in
      particular, profits or capital
reserves.

              


      

    

     

    
      
        	
              	
                (iv)

              	
                the
      issuance of, or authorization to issue, securities, including but not
      limited to convertible bonds (Wandelschuldverschreibungen),
      dividend bonds (Gewinnschuldverschreibungen)
      or participation rights (Genussrechte);

              


      

    

     

    
      
        	
              	
                (v)

              	
                the
      re-purchase (Erwerb
      eigener Anteile) or redemption (Einziehung) of
      stocks;

              


      

    

     

    
      
        	
              	
                (vi)

              	
                the
      transfer, sale, licensing, pledging or encumbrance of all, or essentially
      all, assets, stocks or of such part of the business activities as requires
      a shareholder resolution;

              


      

    

     

    
      
        	
              	
                (vii)

              	
                the
      adoption of domination, profit and loss transfer or any other corporate
      agreements within the meaning of Sec. 291, 292 of the German Stock
      Corporation Act (Aktiengesetz, AktG) in
      direct or analogous
application;

              


      

    

     

    
      
        	
              	
                (viii)

              	
                the
      merger, split-off, conversion or any other restructuring under the German
      Conversion Act (Umwandlungsgesetz,
      UmwG) as well as the squeeze-out and integration (Eingliederung);
      or

              


      

    

     

    
      
        	
              	
                (ix)

              	
                the
      dissolution of the Company;

              


      

    

     

    
      
        	
              	
                (b)

              	
                the
      business of the Company shall be conducted in the ordinary
      course;

              


      

    

     

    
      
        	
              	
                (c)

              	
                none
      of the Stocks shall be sold, transferred or otherwise disposed of or
      encumbered with Liens without the prior written consent of the
      Purchaser;

              


      

    

     

    
      	
            	
              (d)

            	
              the
      management of the Company shall inform the Purchaser in relation to all
      material matters concerning the operation of the business of the Company;
      notwithstanding the before, the Parties are in agreement that prior to the
      Completion, the Company and its management shall exercise, consistent with
      the terms and conditions of this Agreement, complete control and
      supervision of its operations.

            


    

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (e)

              	
                unless
      the Purchaser has approved thereof in writing, the Company
      shall

              


      

    

     

    
      
        	
              	
                (i)

              	
                not
      make any material change to the terms or conditions of employment of any
      of its Employees or make any bonus payments to any of its Employees, other
      than in accordance with existing agreements, collective bargaining
      arrangements, or as mutually agreed with the Purchaser whilst the
      Purchaser will agree to normal annual increases of salary that are in line
      with past and prudent
practice;

              


      

    

     

    
      
        	
              	
                (ii)

              	
                not
      make or change any Tax election, amend any Tax return or take any Tax
      position on any Tax return, apply for or obtain any Tax ruling or make any
      settlement that may give rise to an increase of any Tax liability of the
      Company, or the Purchaser for any period ending after the 31 December
      2009; and

              


      

    

     

    
      
        	
              	
                (iii)

              	
                not
      modify or amend (other than such amendments that are immaterial or
      ministerial or to which the Company is legally or contractually obliged as
      of Signing Date) or terminate any contracts referred to in Section
      3.6;

              


      

    

     

    
      
        	
              	
                (f)

              	
                procure
      that persons nominated by Purchaser will be admitted to hold and attend,
      as the case may be, meetings with the management of the Company designed
      to prepare the business and employees of the Company for the transition
      into the Purchaser's group of
companies.

              


      

    

     

    
      
        	
                6.2

              	
                IP/IT
      Consents

              


      

    

     

    If a
specific consent of a person is required for the Company to own or use as from
the Completion any intellectual property, technology or hardware that is
necessary or useful to conduct the business of the Company as currently
conducted, the Company shall cooperate with Purchaser to endeavour that the
Company obtains such consents prior to the Completion.

     

    
      
        	
                6.3

              	
                Further
      Actions

              


      

    

     

    The
Parties shall use their best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated hereby. Without
limiting the generality of the foregoing, the Parties will, as promptly as
practicable make, or cause to be made, all such filings and submissions as are
required to be made by it or its related parties under applicable Law, and give
such reasonable undertakings as may be required there under, to consummate the
transactions contemplated hereby.

     

    
      
        	
                6.4

              	
                Notification

              


      

    

     

    At all
times prior to the Completion, each of the Parties shall promptly notify the
other Parties in writing of any fact, condition, event or occurrence that could
reasonably be expected to (i) result in the failure to be satisfied of any
of the conditions contained in this Section promptly upon becoming aware of the
same, or (ii) have a Material Adverse Effect on the operations of the
respective business of the Company.

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    SECTION
7

    PURCHASER’S
REPRESENTATIONS AND WARRANTIES

     

    The
Purchaser hereby guaranties to each of the Sellers by way of an independent
promise of guaranty (selbständiges
Garantieversprechen) that the statements set forth hereinafter are
complete and correct as of Signing and the Closing Date.

     

    Existence. The Purchaser has
been duly established under the laws of Bermuda. The Purchaser validly
exists.

     

    Authority. The Purchaser is
entitled to enter into this Agreement and to acquire the Sold Stocks without any
limitations or restrictions.

     

    Any
liability of the Purchaser for a breach of one or any of the above guarantees
shall be limited to the amount of the First Purchase Price. No further
representations or warranties are given by the Purchaser.

     

    SECTION
8

    NON-COMPETITION

     

    The
Sellers Guarantor and the Purchaser hereby agree to the non-compete contained in
EXHIBIT
8., and shall execute such non-compete agreement at the Closing Date.


     

    SECTION
9

    CLOSING

     

    
      
        	
                9.1

              	
                Closing;
      Completion

              


      

    

     

    The
consummation of the Sale and Purchase (the Closing)
shall take place at the offices of the Company five (5) business days after the
date on which the CPs have been fulfilled or waived, or at any other time or
place which the Parties will mutually agree upon in writing (such date the Closing
Date).

     

    
      
        	
                9.2

              	
                Conditions
      to Closing

              


      

    

     

    The
obligation of the Purchaser to carry out the Closing shall be subject to the
fulfilment and satisfaction, on or prior to the Closing Date, of each of the
following conditions precedent (aufschiebende Bedingungen)
(the CP’s) any
or all of which may be waived by the Purchaser in whole or in part to the extent
permitted by applicable Law:

     

    
      
        	
              	
                (a)

              	
                Non
      occurrence of a Material Adverse Effect that shall be confirmed at Closing
      by the Sellers Representative handing over to the Purchaser a relevant
      confirmation letter.

              


      

    

     

    
      
        	
              	
                (b)

              	
                There
      shall not be any injunction, decision, order or decree of any governmental
      authority (or any proceeding that is pending or threatened that could
      result in such an injunction, decision, order or decree), restraining or
      preventing the transactions contemplated
hereby.

              


      

    

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (c)

              	
                Proper
      execution or fulfilment of the agreements and measures set out in Section
      9.4 (a) to (m).

              


      

    

     

    
      
        	
                9.3

              	
                Withdrawal
      Right.

              


      

    

     

    Each of
the Purchaser and the Sellers shall have the right to withdraw from this
Agreement by written notice by the withdrawing party to the respective other
party if the CPs have not been satisfied, at the latest, on 30 November
2010.

     

    
      
        	
                9.4

              	
                Closing
      Actions

              


      

    

     

    At the
Closing Date, the following actions shall be effected in the stated
order:

     

    
      
        	
              	
                (a)

              	
                [deliberately
      left blank]

              


      

    

     

    
      
        	
              	
                (b)

              	
                The
      Sellers Representative shall deliver to the Purchaser properly executed
      waiver letters in a format of which signed copies are attached hereto as
      Exhibits 9.4.b (i) to (iii) and waiver letters of all Sellers regarding
      the Silent Partnership. Furthermore, the parties shall execute the silent
      partnership transfer agreement regarding MBG (Exhibit R 9), and the
      Sellers Representative shall deliver to the Purchaser a properly executed
      tbg waiver pursuant to Section R
10.

              


      

    

     

    
      
        	
              	
                (c)

              	
                The
      Sellers Representative shall deliver to the Purchaser a re-assignment
      agreement properly executed between the Seller 1 and the Company under
      which, to the satisfaction of the Purchaser, the Seller 1 re-assigns to
      the Company intellectual properties (Exhibit 9.4
      c)).

              


      

    

     

    
      
        	
              	
                (d)

              	
                The
      Sellers shall deliver to the Purchaser (1) minutes of a supervisory board
      meeting according to which (i) – firstly - Dr. Weis (as chairman of the
      board) and Dr. Hauch and Ferran Prat were appointed as members of the
      management board for a term of 2 years as from Completion to which they
      agreed, and (ii) secondly the supervisory board, conditional upon receipt
      of payment of the First Purchase Price in the Designated Account, approved
      the assignment and transfer of the Sold Stocks, the stocks referred to
      above lit.l. and the precautionary stocks transfer referred to in Section
      1.3, and (iii) new management guidelines were issued (signed copies of the
      supervisory board minutes and management guidelines are attached asExhibit _9.4 (d)(i), and
      (2) Management Agreements properly executed between the Company and each
      of Dr. Weis and Dr. Hauch signed copies of which are attached hereto in
      Exhibit Exhibit _9.4
      (d)(ii) (the Management
      Agreements).

              


      

    

     

    
      
        	
              	
                (e)

              	
                The
      Sellers Representative shall deliver to the Purchaser as Exhibit 9.4 (e)a
      settlement and re-assignment agreement properly executed between
      [**Redacted**] and the Company under which, to the satisfaction of the
      Purchaser, conditional upon receipt of payment of USD219,883 (i)
      [**Redacted**] re-assigns all assets including [**Redacted**] that were
      assigned to [**Redacted**] in order to secure [**Redacted**] and (ii)
      [**Redacted**] declares that all its claims under or in relation to or
      caused by loan arrangement with the Company are settled upon receipt of
      said payment.

              


      

    

     

    
      
        	
              	
                (f)

              	
                The
      Sellers Guarantor and the Purchaser shall execute the non-compete
      agreement contained in Exhibit 8 and attached
      as signed copy.

              


      

    

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                (g)

              	
                The
      Sellers Representative shall deliver to the Purchaser resignation letters
      of Dr. Hauch and Dr. Schnakenberg as regards their supervisory board
      memberships (attached as signed copies, Exhibit 9.4.g) and court
      resolutions according to which following individuals have been appointed
      by court as new supervisory board members: Eugen Ermantraut, Veronique
      Ameye.

              


      

    

     

    
      
        	
              	
                (h)

              	
                [deliberately
      left blank]

              


      

    

     

    
      
        	
              	
                (i)

              	
                The
      proxy of the Sellers Representative shall confirm to the Purchaser that no
      Material Adverse Effect has occurred which is done by signing of this
      Agreement.

              


      

    

     

    
      
        	
              	
                (j)

              	
                The
      Sellers shall deliver to the Purchaser a confirmatory letter and waiver
      according to which Bioventures and the Seller 1 confirm that the Company
      is not liable for any claims under the Bioventures Agreement, and a final
      form of such confirmatory letter and waiver is attached hereto as Exhibit
      9.4.j.

              


      

    

     

    
      
        	
              	
                (k)

              	
                The
      Sellers shall endorse and the Sellers Representative shall hand over to
      the Purchaser the stock certificates listed in Exhibit 1.1.a; in relation
      to the Seller 4, the hand over can be substituted for the purposes of a
      closing action by the Sellers Representative delivering to the Purchaser
      the acknowledgment and offer letter signed by the Seller 4, and a signed
      copy of such confirmatory letter and waiver is attached hereto as Exhibit
      9.4.k

              


      

    

     

    
      
        	
              	
                (l)

              	
                [deliberately
      left blank]

              


      

    

     

    
      
        	
              	
                (m)

              	
                The
      Purchaser shall pay the First Purchase
Price.

              


      

    

     

    
      
        	
              	
                (n)

              	
                [deliberately
      left blank]

              


      

    

     

    
      	
            	
              (o)

            	
              The
      supervisory board of the Company shall, upon Sellers’ receipt of payment
      of the First Purchase Price, register the Purchaser as new stockholder in
      relation to the Sold Stocks.

            


    

     

    
      
        	
              	
                (p)

              	
                The
      Agent shall effect the payments referred to in the Transaction Fee
      Schedule.

              


      

    

     

    
      
        	
              	
                (q)

              	
                The
      Sellers Representative and the proxy of the Purchaser including the Agent
      shall, upon Completion, execute for evidence purposes a closing memorandum
      confirming the occurrence of Completion and the payments provided for in
      the Transaction Fee Schedule.

              


      

    

     

    
      
        	
                9.5

              	
                Second
      and Third Payment Dates

              


      

    

     

    The
regulations regarding the Second and Third Payment Dates are set out in Exhibits
2.2 and 2.3.

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    SECTION
10

    MISCELLANEOUS

     

    
      
        	
                10.1

              	
                Definitions

              


      

    

     

    For
purposes of this Agreement (including its Exhibits), the following terms shall
have the meanings specified in this Section:

     

    “Affiliate” shall mean, with
respect to any Person, any other Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by or is under common control
with, such specified Person, where “control” (including
the terms “controlled
by” and “under
common control with”) means the possession, directly or indirectly, of
the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise

     

    “Business Day” means any day of
the year on which national banking institutions in Frankfurt am Main, Germany,
and in Boston, MA, USA are open to the public for conducting business and are
not required or authorized to close.

     

    “Law/s” means all applicable
provisions of all (a) constitutions, treaties, statutes, laws (whether
federal, state or local law (including the common and civil law)), codes, rules,
regulations, ordinances or orders of any Governmental Authority,
(b) Governmental Approvals, (c) orders, decisions, injunctions,
judgments, awards and decrees of or agreements with any Governmental Authority
and (d) any administrative rule or order of general application issued by
any Governmental Authority.

     

    “Lien” means any mortgage,
pledge, deed of trust, hypothecation, right of others, claim of any nature
(contingent or otherwise), security interest, encumbrance, burden, title defect,
title retention agreement, lease, sublease, license, occupancy agreement,
easement, covenant, condition, encroachment, ownership limitation, voting trust
agreement, interest, option, right of any other Person, negotiation or refusal,
proxy, lien, charge or other restrictions or limitations of any nature
whatsoever or any rights of third parties, including but not limited to such
Liens as may arise under any contract.

     

    “Material Adverse Effect” means
(x) any material violation of any of the covenants contained in Section 6.1, (y)
any event, occurrence, fact, condition, change, development or effect that could
reasonably be expected to result in a liability or diminution in value of the
Company in excess of EUR 2,000,000 (in word: Euro two million) or (z) any
event that is or may materially affect the Business Intellectual Properties,
including the Company being sued for Infringements.

     

    “Person” means any individual, partnership,
firm, corporation, association, trust, unincorporated organization, joint
venture, limited liability company, governmental authority or other
entity.

     

    “Related Party/ies” shall mean
(i) any Affiliate, shareholder, director or officer of the Company, (ii) any
director or officer of any Person that, alone or in concert with any other
Person, exercises direct or indirect control (as such term is defined in the
definition of “Affiliate”
hereinabove) of the Company and/or (iii) any family member or other relative
(Angehörige in the
sense of Sec. 15 Abgabenordnung) or related
persons (Nahestehende
Personen in the sense of Sec. 138 Abs. 1 AO) of each Seller
and/or an affiliated enterprise (verbundenes Unternehmen) of
each Seller.

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

    Further
definitions are set out in this Agreement and its Exhibits, and such definitions
shall also apply to the entire Agreement including all of its
Exhibits.

     

    
      
        	
                10.2

              	
                Further
      Actions

              


      

    

     

    The
Parties each agree to enter into such other documents or agreements and to take
such other action as may be reasonably necessary or desirable for the
implementation of this Agreement and the consummation of the transactions
contemplated hereby.

     

    
      
        	
                10.3

              	
                Further
      measures

              


      

    

     

    The
Purchaser may at its discretion convert the Company in any legal form providing,
under German law, for a limitation of the shareholders’ liability for
liabilities of the company (in particular GmbH or KG) and may amend or replace
the current articles of association.

     

    
      
        	
                10.4

              	
                Notices

              


      

    

     

    All
notices and other communications which are required or permitted to be given
under this Agreement, shall be in writing (including email unless stated
otherwise in this Agreement) and shall be deemed given when delivered as
follows:

     

    if to any
or all of the Sellers or the Sellers Guarantor, or if by any or all of the
Sellers or the Sellers Guarantor, exclusively to or by the Sellers
Representative. The Sellers Representative shall be Dr. Alexander
Weis

     

    c/o
AdnaGen AG,

     

    with copy
(for information purposes) to

     

    Seller 2
(tbg), attention Ulrich Wendt, address as specified in the parties section of
this Agreement,

     

    if to the
Purchaser or to the Alere Guarantor, to

    


    Alere
Inc.

    General
Counsel

    Ellen V.
Chiniara -

    51 Sawyer
Road, Suite 200

    Waltham,
MA  02453

    USA

    


    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    with copy
(for information purposes) to

     

    Rechtsanwalt
Klaus Mohr

    c/o
Meurer Mohr & Partner Rechtsanwälte Partnerschaftsgesellschaft

    Westendstraße
16-22

    60325
Frankfurt am Main

    Germany

     

    or to
such other address or to such other person as the Purchaser, the Alere Guarantor
or the Sellers (including the Sellers Guarantor) respectively hereto shall have
last designated by notice to the other Parties pursuant to this provision,
understood however that the Sellers must designate one person authorized to
receive notices for all Sellers.

     

    All such
notices and other communications shall be deemed to have been received (i) if by
personal delivery on the day after such delivery and (ii) if by overnight
courier, on the day delivered.

     

    
      
        	
                10.5

              	
                Confidentiality and
      announcements

              


      

    

     

    Each
Party agrees to keep confidential and not to disclose to any person any written
or oral confidential information provided to it by or on behalf of any other
Party, or otherwise obtained by such Party, as the case may be, without the
prior consent of the relevant Party from whom the confidential information was
obtained and/or to whom it relates. Nothing contained in this
Section 10.5 shall prevent any Party
from disclosing such confidential information to (i) any of its affiliates
(provided such Party informs each such affiliate that is a recipient of
confidential information and the restrictions in respect thereof and is
responsible for any disclosure or use of such confidential information by such
affiliates in breach of the terms hereof, (ii) any member of the board of
directors of such Party, or (iii) to any person if required by applicable Law or
stock exchange rules.

     

    No
announcements or press releases in relation to this Agreement or the underlying
transaction shall be made without the prior written approval of the
Purchaser.

     

    
      
        	
                10.6

              	
                Severability

              


      

    

     

    If any
provision of this Agreement is or becomes invalid, ineffective or unenforceable,
in whole or in part, or if it contains a gap, this shall not affect the
validity, effectiveness or enforceability of the remaining provisions hereof.
The parties are obligated to cooperate in replacing the invalid, ineffective or
unenforceable provision by a valid, effective or enforceable provision, which
most nearly achieves the commercial result of what was originally
intended.  In the event that there is a gap, the parties are obligated
to fill such a gap by a provision, which, had the parties been aware of such a
gap, the parties would have reasonably inserted when entering into this
Agreement.

     

    
      
        	
                10.7

              	
                Table of Contents and
      Headings

              


      

    

     

    The table
of contents, headings and sub-headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement. Any references to Clauses, Exhibits or Annexes
in this Agreement shall refer to Clauses and Exhibits of and Annexes to this
Agreement unless otherwise indicated.

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

     

    
      
        	
                10.8

              	
                Costs and
      Expenses

              


      

    

     

    Save as
expressly provided herein, each Party shall pay its own costs and expenses
relating to the negotiations, preparation, execution and implementation of this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated. Any other charges and costs which result from required filings or
other regulatory requirements shall be borne by the Purchaser, except for
filings with the commercial register or tax office which shall be borne by the
Company. It is being understood that the Sellers may not affirmatively elect
(optieren) in
connection with this Agreement to VAT. The Parties each shall bear their own
costs, expenses and the fees for legal and financial advisors and other
representatives, incurred in connection with the transactions contemplated by
this Agreement.

     

    
      
        	
                10.9

              	
                Interest

              


      

    

     

    If a
Party fails to pay any sum payable by it under this Agreement on the due date
for payment, it shall pay interest at the statutory interest rate for delayed
payments (Verzug) pursuant to Section 288 para. 2 BGB on such sum for the period
from and including the due date up to the date of actual payment (after as well
as before judgement) unless otherwise provided in this Agreement. The interest
will accrue from day to day and shall be payable on demand in monthly
installments and shall be compounded monthly in arrears.

     

    
      
        	
                10.10

              	
                Language

              


      

    

     

    This
Agreement is written in the English language (except that Exhibits may be partly
in the German language). Terms to which a German translation has been added
shall be interpreted throughout this Agreement in the meaning assigned to them
by the German translation.

     

    
      
        	
                10.11

              	
                 Governing
      Law

              


      

    

     

    This
Agreement (except for Exhibit 8) shall be governed by and construed in
accordance with the laws of the Federal Republic of Germany, without giving
effect to its principles or rules of conflict of laws to the extent such
principles or rules are not mandatorily applicable by statute and would require
the application of the laws of another jurisdiction. Exhibit 8 and the
non-compete agreement contained therein shall be exclusively governed by the
laws of Delaware.

     

    
      
        	
                10.12

              	
                Arbitration

              


      

    

     

    
      
        	
              	
                (a)

              	
                Any
      dispute under, or in connection with, this Agreement, including any
      dispute regarding the validity of this Agreement or of this present
      agreement to arbitration shall be finally resolved by arbitration
      according to the rules of the German Institution for Arbitration (Deutsche
      Institution für Schiedsgerichtsbarkeit e.V., DIS) without recourse to
      the ordinary courts of law. The arbitration proceedings shall be conducted
      in English. The arbitral tribunal shall meet in Frankfurt am Main. The
      arbitral tribunal shall consist of 3 (three) arbitrators. Notwithstanding
      the foregoing, each Party remains entitled to request an interim measure
      of protection in respect of the subject matter of the dispute from a
      competent ordinary court of law before or after commencement of
      arbitration proceedings as provided for in Section 1033 of the German
      Code of Civil Procedure (Zivilprozessordnung).
      In relation certain individual sellers, separate arbitration agreements
      are executed as Exhibits
      10.12 (a) to (x).

              


      

    

    


    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

     

    
      	
            	
              (b)

            	
              The
      preceding paragraph (a) shall not apply to Exhibit 8. The non-competition
      agreement contained in Exhibit 8 shall form, in particular for purposes of
      arbitration and procedural rules in general, an independent contract and
      shall be subject to the US arbitration rules contained
      therein.

            


    

     

    
      
        	
                10.13

              	
                Entire Agreement; Amendments
      and Waivers

              


      

    

     

    This
Agreement (including the Exhibits hereto) represents the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof.  Amendments and alterations of this Agreement must be in
writing. This shall also apply to a waiver of the written form.

     

    
      
        	
                10.14

              	
                Binding Effect; Assignment;
      Nominee

              


      

    

     

    This
Agreement shall be binding upon and inure to the benefit of the parties to the
Agreement and their respective successors and permitted assigns. No assignment
of this Agreement or of any rights or obligations hereunder may be made by
either any of the parties (by operation of law or otherwise) without the prior
written consent of the other parties hereto and any attempted assignment without
the required consents shall be void except that the Purchaser shall be entitled
without approval of any other party to this Agreement to assign any and all
rights and obligations including its entire position as a party to the Agreement
to one or more Affiliates or Affiliates of the Alere Guarantor and such
enterprises or companies being referred to as “Nominee” or “Nominees”.

     

    The Alere
Guarantor hereby guarantees the due and timely fulfillment by the Purchaser, the
Nominee or Nominees of any and all obligations under this
Agreement.

     

    Further,
assignments in favor of Alere’s Guarantors group financing banks are permitted
without approval of any party.

     

    
      
        
          	
                  10.15

                	
                  Incorporation of
      Exhibits

                


        

      

    

     

    The
Exhibits identified in this Agreement are incorporated herein by reference and
made an integral part hereof.

     

    
      
        
          	
                  10.16

                	
                  Construction

                


        

      

    

     

    The
parties have participated jointly in the negotiation and drafting of this
Agreement.  In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

     

    
      	
              Number

            	
              Name

            	 
      
	 	 	 
	
              1.

            	
              OncoVista Innovative Therapies
      Inc., 14785
      Omicron Drive Suite 104, San Antonio, TX, USA

            	 
      
	 	 	 
	
              2.

            	
              tbg Technologie
      Beteiligungs-Gesellschaft mbH (“tbg”), Ludwig-Erhard-Platz 1-3, 53179
      Bonn

            	 
      
	 	 	 
	
              3.

            	
              Rose Nominess Ltd, P.O.
      BOX 25, Regency Court, Glategny
      Esplanade, St. Peter Port, Guernsey, GY1 3 AP

            	 
      
	 	 	 
	
              4.

            	
              Rob Cawthorne, Innisfree,
      36 South
      Road, Warwick, WK02, Bermuda

            	 
      
	 	 	 
	
              5.

            	
              FELICITAS Beteiligungsgesellschaft
      Hannover mbH (formerly: Biomed). Aegidientorplatz 1, 30159
      Hannover

            	 
      
	 	 	 
	
              6.

            	
              Axel Deuring, Buchenweg 6a,
      30900

              Wedemark

            	 
      
	 	 	 
	
              7.

            	
              Dr. Eckhart Schnakenberg, Kesener
      Weserstr. 4 B, 28832 Achim

            	 
      
	 	 	 
	
              8.

            	
              Hans-Peter Winkelmann, Tostedter
      Weg 11, 21244 Buchholz

            	 
      
	 	 	 
	
              9.

            	
              Hans Winkelmann, Am Anger 14,
      31535 Neustadt

            	 
      
	 	 	 
	
              10.

            	
              Marion Buchwald, Effertzfeld 8,
      41564 Kaarst

            	 
      
	 	 	 
	
              11.

            	
              Michael Winkelmann, Hagenerstr. 52
      e, 31535 Neustadt

            	 
      
	 	 	 
	
              12.

            	
              Stefan Schröder, Breite Straße
      2,

              30159
    Hannover

            	 
      
	 	 	 
	
              13.

            	
              Tim Freise, Gartenstr. 107, 60596
      Frankfurt

            	 
      
	 	 	 
	
              14.

            	
              Dr. Silke Lankiewicz, An der
      Garather Motte 23, 40595 Düsseldorf

            	 
      
	 	 	 
	
              15.

            	
              Alere Holdings Bermuda
      Limited Canon's Court, 22 Victoria Street, Hamilton HM12, Bermuda

            	 
      
	 	 	 
	
              16.

            	
              Alere,
      Inc., 51 Sawyer Road, Suite 200, Waltham, MA 02453
      USA

            	 
      


    

     

    ***

     

    
      
        
        

      

      
        38

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
2.2

     

    Second
Purchase Price

    


    
      A.Second Purchase
Price

    

     

    
      
        	
                1.

              	
                An
      additional purchase price for the Sold Stocks shall amount up to USD 10
      (ten) million (the Target
      Amount) to be paid at the Second Payment Date (and being subject to
      the deductions and set-offs and payment mechanisms exclusively set out in
      this Stock Purchase Agreement including this Exhibit 2.2 and the
      Transaction Fee Schedule (the Second
      Purchase Price).]

              


      

    

     

    
      
        	
                2.

              	
                The
      Target Amount shall fall due if and when (the Target
      Date) at any time during the 24 months following Completion (the
      Milestone
      Period) AdnaGen achieves the following target figures (together the
      Milestones)
      being understood that the Milestones must be fulfilled collectively at the
      same Target Date for the last 12 trailing
  months:

              


      

    

     

    
      
        	
              	
                a)

              	
                Gross
      Revenues in a total amount of at least EUR [**Redacted**] plus USD
      [**Redacted**] (the Revenue
      Milestone) Gross Revenues in either currency exceeding the above
      minimum face value for a respective currency can be added to the other
      currency. The split into USD and EURO as above has the sole purpose to
      assure minimum overall sales in case of material exchange rate
      fluctuations between the USD and the
EURO.

              


      

    

     

    
      and

    

     

    
      
        	
              	
                b)

              	
                Positive
      Net Income (the Income
      Milestone)

              


      

    

     

    
      and

    

     

    
      
        	
              	
                c)

              	
                No
      Debt within the Company at the Target Date and for the last 12 trailing
      months (the No Debt
      Milestone).

              


      

    

     

    Gross
Revenues shall have the following meaning: total net sales (Umsatzerlöse) calculated
according to Sec 275 para. 3 number 1 HGB, proceeds from public grants up to a
maximum grant amount of 10% of the Revenue Milestone, license income (royalties
or up-front payments) – excluding Category 3 Payments, subject however to the
Allocation Option - within the Milestone Period up to and including the Target
Date. The Sellers shall have the following option (the Allocation
Option): if the Company receives within the Milestone Period payments
under Category 3 of Exhibit 2.4 (royalties and up-front payments from a
pharmaceutical alliance) (Category 3
Payments), the Sellers Representative can opt within the Milestone Period
in writing to attribute all Category 3 Payments received from a pharmaceutical
alliance to the Gross Revenues: if the Sellers Representative opts accordingly,
the relevant Category 3 Payments will not be considered under Category 3 of
Exhibit 2.4. In other words: the Sellers Representative can decide to consider
all Category 3 Payments received from a pharmaceutical alliance either in
Schedule 2.4 as royalties/up-front payments or – if opted - in Schedule 2.2 as
Gross Revenues.

    


    Positive Net
Income shall have the following meaning: the total of the net income of
the Company achieved within the Milestone Period up to and including the Target
Date (Net
Income) must amount to at least EUR 1 (in words: One Euro) whilst the Net
Income shall be calculated as if the annual net income (Jahresüberschuß in the sense
of Sec. 275 para. 3 number 19 HGB would be calculated for the relevant period up
to the Target Date excluding, for the avoidance of doubt, (i) any compensation
of losses (Verlustausgleiche) under
enterprise agreements (Unternehmensverträge) or (ii)
loss reducing contributions or (iii) dissolutions of reserves that reduces
losses. In addition, the following extraordinary positions (revenues and costs)
shall not be considered in the calculation of the Net Income:

     

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    

    
       

      
        	
              	
                ·

              	
                cost
      of changing the legal form of
AdnaGen;

              


      

    

    
      
        	
              	
                ·

              	
                additional
      taxes to be paid by AdnaGen (as costs) or tax savings achieved at the
      level of AdnaGen (i.e. also in the form of earnings or profits) due to
      AdnaGen being a member of a corporate income or trade tax
      unity;

              


      

    

    
      
        	
              	
                ·

              	
                consolidation
      effects in AdnaGen, if any;
and

              


      

    

    
      
        	
              	
                ·

              	
                any
      change in Net Income arising from a change of the currently applied
      accounting principles unless required under mandatory
  law.

              


      

    

    


    No Debt
shall have the following meaning: within a period of 12 months prior to the
Target Date and at the Target Date, the Company shall not have established
(begründet) liabilities
in the sense of Sec. 266 para. 3 C. numbers 2, 5, 6, 7 HGB.

    


    As from
the transfer of the silent partnerships of Seller 2 and the Partnership Seller
to the Purchaser, the relevant silent partnership amounts shall not constitute
debt for the purposes of the No Debt definition. The same shall apply to debts
that (i) the Purchaser forces the Company to take outside the commercial needs
of the Company, or (ii) that are caused by the corporate structuring of the Cash
Injection 1, the Cash Injection 2 or an Additional Cash Injection or a Conflict
Cash Injection (as defined in the SPA) provided to the Company.

     

    
      
        	
                3.

              	
                Up
      to the Second Payment Date plus a grace period of 5 Business Days, the
      Second Purchase Price shall bear no
interest.

              


      

    

     

    
      
        	
                4.

              	
                The
      months periods stated above shall cover full calendar months. The
      Milestone Period shall start on the first day of the month following
      Completion (Start
      Date), and the 12 months period shall mean any consecutive 12
      months period as from the Start Date up to the expiration of the Milestone
      Period.

              


      

    

     

    
      
        	
                5.

              	
                The
      amount of the Second Purchase Price shall decrease if any of the
      Milestones is not achieved within the stated periods as
      follows:

              


      

    

     

    
      
        	
              	
                ·

              	
                If
      either the Income or the No Debt Milestone is not achieved (or, for the
      avoidance of doubt, if both are not achieved), no Second Purchase Price
      will fall due.

              


      

    

     

    
      
        	
              	
                ·

              	
                If
      the Income and the No Debt Milestone are achieved but the Revenue
      Milestone is not achieved, the Second Purchase Price will be the Target
      Amount less [**Redacted**] that AdnaGen falls short of the Revenue
      Milestone, however no less than a Second Purchase Price of USD 1 for each
      Seller.

              


      

    

     

    
      
        	
                6.

              	
                In
      order to assess whether and in which amount the Second Purchase Price
      became due, the Sellers’ Representative will immediately after achievement
      of the Milestones present such financial documents to the Purchaser which
      evidence achievement of the Milestones (the Milestone
      Statement). The Purchaser shall procure reasonable access to all
      relevant documentation required to determine the achievement of the
      Milestone. The Purchaser shall have 20 Business Days to object against the
      correctness of the Milestone Statement and shall notify the Sellers
      Representative of the objection. As from the notice of objectionthe
      Sellers and the Purchaser shall have another 15 Business Days to resolve
      the issues in dispute. If an agreement cannot be reached within this
      period, either the Sellers or the Purchaser or both together may appoint
      an independent chartered accountant with international reputation (Wirtschaftprüfer) (the
      Expert)
      to finally assess the matters in dispute ain line with applicable law and
      accounting standards and methodology as applied by the Company in the
      past. The Sellers and the Purchaser agree that they will accept the
      Expert’s assessment as being final and
binding.

              


      

    

     

    
      
        
        

      

      
        40

        
          

        

      

      
        
        

      

    

     

    
      
        	
                7.

              	
                In
      case the Sellers can demonstrate that - to the extent possible - despite a
      prior written warning of the sellers representative/s in the Steering
      Committee the Purchaser during the Milestone
  Period

              


      

    

     

    
      
        	
              	
                ·

              	
                (i)
      caused the Company to take any measures which had a material adverse
      impact on the achievement of the Milestones,
or

              


      

    

     

    
      
        	
              	
                ·

              	
                (ii)
      restructured the Company through liquidation, dissolution or merger into
      or with another operating entity in a way that has a material adverse
      impact on the achievement of the Milestones,
or

              


      

    

     

    
      
        	
              	
                ·

              	
                (iii)
      sold or carved out any material assets of the Company which have an effect
      as outlined in (i) (each (i) to (ii) a  Purchaser’s
      Adverse Action),

              


      

    

     

    the
Second Purchase Price shall irrevocably be deemed to be achieved in full and the
payment of the Second Purchase Price shall become payable on the Second Payment
Date unless the Sellers Representative had agreed in writing to such measure.
The Parties agree that the change of Company’s products trade-names and in
particular trading the Company’s products under Alere-group trademarks shall in
no event be deemed as a Purchaser’s Adverse Action.

     

    
      
        	
                8.

              	
                In
      relation to exchange rates, the exchange rates issued by the European
      Central Bank regards either the Target Date (in case of achievement of the
      Milestones) or the date of the expiration of the Milestone Period shall be
      decisive for purposes for this
Exhibit.

              


      

    

     

    
      
        B.      
Second Payment
Date

      

    

     

    
      
        	
                1.

              	
                The
      payment of the Second Purchase Price (the Second
      Payment Date) shall take place 20 (twenty) Business Days after (i)
      either the date on which the Parties have agreed on the fulfilment of the
      Milestones and the amount of the Second Purchase Price (ii) or the date
      the Purchaser has received the assessment of the Expert. If no Second
      Purchase Price falls due, no Second Payment Date shall
    occur.]

              


      

    

     

    
      
        	
                2.

              	
                At
      the Second Payment Date,

              


      

    

     

    
      theSellers
shall hand over to the Purchaser the Sellers Bank Guarantee and the Purchaser
shall pay the Second Purchase Price less (i) the Payment Difference (as defined
in Section 1.2 (d) of the Agreement), if funded by the Purchaser, (ii) any
amounts due under Section 1.2.(c) of the Agreement (i.e. cost sharing for
squeeze out costs) and (iii) an amount of EUR 200,000 unless the Sellers provide
the Sellers Bank Guarantee.

    

     

    
      
        	
                3.

              	
                The
      Parties hereto shall, upon Agent’s receipt of payment of the Second
      Purchase Price (less deductions as outlined), execute a memorandum
      confirming the payment of the Second Purchase
  Price.

              


      

    

     

    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

     

    C.      
Payment
Details

    


    All
payments of the Second Purchase Price (less deductions as outlined) shall be
effected by the Purchaser in USD to the Designated Account.

     

    EXHIBIT
2.3

     

    Third
Purchase Price

    


    
      A.     
Third Purchase
Price

    

     

    
      
        	
                9.

              	
                An
      additional purchase price for the Sold Stocks shall amount up to USD 5
      (five) million (the Target
      Amount) to be paid at the Third Payment Date (and being subject to
      the deductions and set-offs and payment mechanisms exclusively set out in
      this Stock Purchase Agreement including this Exhibit 2.3 and the
      Transaction Fee Schedule (the Third
      Purchase Price).]

              


      

    

     

    
      
        	
                10.

              	
                The
      Target Amount shall fall due if and when at any time during the 36 months
      following Completion (the Clearance
      Milestone Period) AdnaGen achieves the following target (the Clearance
      Milestone):

              


      

    

     

    AdnaGen
to receive [**Redacted**] for either (i) the [**Redacted**] or (ii) the
[**Redacted**]. Up to the Third Payment Date plus a grace period of 5 Business
Days, the Third Purchase Price shall bear no interest.

     

    No Third
Purchase Price shall fall due if the Clearance Milestone is not achieved within
the Milestone Period.

     

    
      
        	
                11.

              	
                The
      Purchaser shall use commercially reasonable efforts to pursue the
      [**Redacted**] as described in the SPA (Section
  1.4.j).

              


      

    

     

    B.     
Third Payment
Date

     

    
      
        	
                4.

              	
                The
      payment of the Third Purchase Price (the Third
      Payment Date) shall take place 20 (twenty) Business Days after (i)
      either the date on which the Parties have agreed on the fulfilment of the
      Clearance Milestone (ii) or the date the Purchaser has received the
      [**Redacted**]. If no Third Purchase Price falls due, no Third Payment
      Date shall occur. At the Third Payment Date, the Sellers shall hand over
      to the Purchaser the Sellers Bank Guarantee and the Purchaser shall pay
      the Third Purchase Price less (i) the Payment Difference (as defined in
      Section 1.2 (d) of the Agreement), if funded by the Purchaser, (ii) any
      amounts due under Section 1.2. (c) of the Agreement (i.e. cost sharing for
      squeeze out costs) and (iii) an amount of EUR 200,000 unless the Sellers
      Guarantor provide the Sellers Bank
Guarantee.

              


      

    

     

    
      
        	
                5.

              	
                The
      Parties hereto shall, upon Agent’s receipt of payment of the Third
      Purchase Price (less deductions as outlined), execute a memorandum
      confirming the payment of the Third Purchase
  Price.

              


      

    

     

    
      C.     
Payment
Details

    

    The
payment of the Third Purchase Price (less deductions as outlined) shall be
effected by the Purchaser in USD to the Designated Account.

     

    
      
        
        

      

      
        42

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
2.4

     

    Additional
Purchase Prices

     

    
      
        	
                12.

              	
                Regardless
      of the achievement of the Target Amounts of the Second and/or Third
      Purchase Price, the Sellers are entitled to additional purchase payments
      (each payment a Target
      Payment) if and when the Targets defined below and (Category 1 to
      3) set out in the below Target Tables (each a Target)
      are achieved (including the Requirements for the Targets being
      fulfilled).

              


      

    

     

    
      
        	
                13.

              	
                A
      respective Target Payment shall fall due if and when the Company achieves
      the respective Target at any time during the 36 months following
      Completion (the Target
      Period) unless a Target Period is not agreed for a specific Target;
      in such case, the respective Target Payment falls due whenever the
      respective Target is
achieved.

              


      

    

     

    
      
        	
                14.

              	
                Any
      Target Payment becomes payable within 10 Business Days after the Parties
      having mutually agreed on the achievement of the respective Target (the
      Due
      Date). Up to the relevant Due Date plus a grace period of 5
      Business Days, the respective Target Payment shall bear no
      interest.

              


      

    

     

    
      
        	
                15.

              	
                All
      payments of Target Amounts shall be effected by the Purchaser in USD to
      the Designated Account. The Purchaser shall pay the Target Amounts less,
      if and to the extent not already settled at the date of payment, (i) the
      Payment Difference (as defined in Section 1.2 (d) of the Agreement), if
      funded by the Purchaser, (ii) any amounts due under Section 1.2.(c) of the
      Agreement (i.e. cost sharing for squeeze out costs) and (iii) an amount of
      EUR 200,000 unless the Sellers provide the Sellers Bank Guarantee
      (understood that the Sellers shall in total provide security in an amount
      of EUR 400,000).

              


      

    

     

    
      	
              16.

            	
              The
      Targets fall into 4 categories, each with their own specific requirements,
      that are:

            


    

     

    
      
        	
              	
                a)

              	
                Category
      1:
      receiving Regulatory Clearance of defined products in defined
      territories. The maximum amount of all Target Payments for achieving
      Category 1 Targets is USD 28 million: when the said maximum amount has
      fallen due, achievement of further Targets of the same category will not
      trigger further Target Payments or payments of any
  kind.

              


      

    

     

    Category
1 Requirements: Regulatory
Clearance means obtaining the approval of the relevant product for the
general sale and/or distribution to professional users in the relevant territory
by the relevant authority (i.e. [**Redacted**]) within in the Target Period. The
relevant Targets (of Category 1) are set out in the following Target Table
1:

     

    


    
      	
              Target

            	
              Territory

            	
              Cash
      Payment

            	
              Timeline
      (as from Completion)

            
	
              Regulatory
      clearance of following developed test in the required
      territory

               

            	 
      	
              Up
      to

              $28M
      (cap)

            	 
      
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $6M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $8M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $1M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $3M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $3M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $2M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $3M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $1M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $1M

            	
              36
      Months

            


    

     

    
      
        
        

      

      
        43

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                b)

              	
                Category
      2:
      endorsement of [**Redacted**] by the [**Redacted**].
      The maximum amount of all Target Payments for achieving Category 2
      Milestones is USD 20 million: when the said maximum amount has fallen due,
      achievement of further Targets of the same category will not trigger
      further Target Payments or payments of any
kind.

              


      

    

     

    Category
2 Requirements: Endorsement of
Test means receiving active support for the general use of the respective
test by [**Redacted**] in a form that is directed to and visible for potential
professional users of such test, i.e. by inclusion of the test in [**Redacted**]
guidelines as a recommended test, within the Milestone Period. The relevant
tests (of Category 2) are set out in the following Target Table 2:

     

    
      	
              Target

            	
              Territory

            	
              Cash
      Payment

            	
              Timeline
      (as from Completion)

            
	
              Endorsement
      of test

            	 
      	
              Up
      to

              $20M
      (cap)

            	 
      
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $7M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $5M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $7M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $5M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $2M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $2M

            	
              36
      Months

            
	
              [**Redacted**]

            	
              [**Redacted**]

            	
              $5M

            	
              36
      Months

            


    

     

     

    Category
3: Validation of
IP; Pharmaceutical Alliances; [**Redacted**] and [**Redacted**].

     

    Category
3 Requirements are:

     

    
      
        	
              	
                ·

              	
                Creation
      of a pharmaceutical alliance (i.e. collaboration with enterprises active
      in the pharmaceutical industry that are not being part of the Alere-group)
      under which the Company’s IP in the field of [**Redacted**] and
      [**Redacted**] is validated; and

              


      

    

     

    
      
        	
              	
                ·

              	
                receipt
      by the Company from the pharmaceutical alliance until the earlier of
      expiry of the Target Period or the last expiry date of the patents of
      royalties exceeding [**Redacted**] of Net Sales or a transfer price with a
      Gross Margin exceeding [**Redacted**]
whilst

              


      

    

     

    
      
        	
              	
                o

              	
                Net Sales
      shall mean Gross
      Revenues as defined in Exhibit 2.2,
and

              


      

    

     

    
      
        	
              	
                o

              	
                Gross
      Margin shall mean Net Sales less all costs of sales (including
      material, labour and overhead costs); and

              


      

    

     

    
      
        
        

      

      
        44

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                ·

              	
                the
      pharmaceutical alliance making an up-front payment to the Company that
      (net of costs for all activities related to or caused by the
      pharmaceutical alliance to the Alere-group including the Company) amounts
      to at least USD 1 million net (and as further set out in Target Table 3),
      and

              


      

    

     

    
      
        	
              	
                ·

              	
                the
      up-front payment is received within the Target
  Period.

              


      

    

     

    The
relevant amount of a Target Payment depends on the amount of the received
up-front payment. The relevant figures are set out in the following Target Table
3. For each received upfront amount, just one “Cash Payment” (as referred to in
the table) falls due being determined on the basis of the received upfront
amounts from a pharmaceutical alliance, i.e. the “Cash Payment” amounts in the
table are not to be summed up in case a received upfront amount equals or
exceeds USD 2 million. The Parties explicitly acknowledge that a difference of
USD 1 in relation to received upfront-payments can therefore cause a “Cash
Payment” difference of up to USD 2.5 million, i.e. in case of an upfront payment
received in the amount of USD 10 million the “Cash Payment” will be in total USD
5 million (rather than in total USD 2.5 million in case of an upfront payment
received in an amount of USD 10 million less USD 1). If more than one upfront
amount is received from the same pharmaceutical alliance within the relevant
“Timeline”, such amounts are to be summed up and the respective total amount
shall form the basis for determining the “Cash Payment”.

     

    
      	
              Target

            	 
      	
              Cash
      Payment

            	
              Timeline
      (as from Completion)

            
	
              Validation of IP –
      Pharmaceutical alliances – [**Redacted**] and
      [**Redacted**]

            	 
      	
              Unlimited

            	 
      
	
              Upfront
      amounts received:

            	 
      	 
      	 
      
	
              -$1 - <
    $2M

            	 
      	
              $500k

            	
              36
      Months

            
	
              -≥ $2 – <
      $5M

            	 
      	
              $1M

            	
              36
      Months

            
	
              -≥ $5 – <
      10M

            	 
      	
              $2.5M

            	
              36
      Months

            
	
              -≥ $10M+

            	 
      	
              $5M
      (maximum / cap)

            	
              36
      Months

            


    

     

    Category
3 Payments (as defined in Exhibit 2.2) that are attributed to Gross Revenues due
to the Sellers Representative exercising the Allocation Option (as defined in
Exhibit 2.2) shall be disregarded in respect to Category 3 Targets, i.e. such
Category 3 Payments will not be considered as royalties or up-front-payments in
this Exhibit 2.4 but only as Gross Revenues in Exhibit 2.2. The amount of a
Target Payment shall be calculated and agreed by the Parties immediately
following expiration of the Target Period; the above Clause 3 shall apply to the
payment terms.

     

    
      
        	
              	
                d)

              	
                Category
      4:
      Validation of IP; Pharmaceutical Alliances; [**Redacted**] and
      [**Redacted**]

              


      

    

     

    Category
4 Requirements are:

     

    
      
        
        

      

      
        45

        
          

        

      

      
        
        

      

    

     

    
      
        	
              	
                ·

              	
                Creation
      of a pharmaceutical alliance (i.e. collaboration with other enterprises
      active in the pharmaceutical industry that are not being part of the
      Alere-group) under which the Company’s IP in the field of [**Redacted**]
      is validated, and

              


      

    

     

    
      
        	
              	
                ·

              	
                receipt
      by the Company from the pharmaceutical alliance as from Completion until
      the last expiry date of the patents of royalties exceeding [**Redacted**]
      of Net Sales or a transfer
      price with a Gross Margin exceeding [**Redacted**], and

              


      

    

     

    
      
        	
              	
                ·

              	
                the
      pharmaceutical alliance making up-front payments or milestone payments to
      the Company.

              


      

    

     

    The
relevant amount of the Target Payment shall be 35% of the amount of the up-front
payment or milestone payment received by the Company (net of costs for all
activities related to or caused by the pharmaceutical alliance to the
Alere-group including the Company) in a calendar year by the Company, the last
calendar year however being 2016. As from 1 January 2017 onwards, no claims for
Target Payments for Category 4 Requirements shall arise. The amount of the
relevant Target Payment shall be calculated and agreed by the Parties on an
annual basis immediately following the end of a calendar year; the above Clause
3 shall apply to the payment terms.

     

    An
additional USD 2 million Target Payment falls due if and when [**Redacted**]
including the [**Redacted**] Company’s product is approved by [**Redacted**]
anytime; the above Clause 3 shall apply to the payment terms. A claim for this
Target Payment expires automatically on 31 December 2016.

     

    
      
        	
                17.

              	
                The
      Purchaser shall use commercially reasonable efforts to pursue the
      regulatory approvals in section a. and shall provide reasonable assistance
      in relation to b, c and d
requirements.

              


      

    

     

    
      
        
        

      

      
        46