GROWTH EXPECTATIONS; (B) NOT
SELL, LEASE, EXCHANGE, LICENSE OR OTHERWISE DISPOSE OF ANY OF THE MATERIAL
PROPERTIES OR MATERIAL ASSETS (INCLUDING, BUT NOT LIMITED TO RIGHTS WITH RESPECT
TO INTELLECTUAL PROPERTY ASSETS) OF THE BUSINESS TO NON-AFFILIATES, EXCEPT IN
THE ORDINARY COURSE OF BUSINESS IN A MANNER CONSISTENT WITH PAST PRACTICE; AND
(C) NOT ENTER INTO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING THAT WOULD (I)
RESTRICT OR LIMIT INVERNESS OR ITS AFFILIATES (OTHER THAN, IF APPLICABLE, THE
ENTITY THAT WILL HOLD THE BUSINESS) IN THE OPERATION OF THEIR RESPECTIVE
BUSINESSES AFTER THE CLOSING DATE (AS DEFINED IN THE FORM OF ACQUISITION
AGREEMENT), (II) OBLIGATE INVERNESS OR ITS AFFILIATES (OTHER THAN, IF
APPLICABLE, THE ENTITY THAT WILL HOLD THE BUSINESS) TO PAY ROYALTIES OR SIMILAR
AMOUNTS WITH RESPECT TO ITS BUSINESSES (OTHER THAN THE BUSINESS), OR (III)
LICENSE OR CREATE ANY RIGHTS IN INTELLECTUAL PROPERTY OR RIGHTS OF INVERNESS OR
ITS AFFILIATES (OTHER THAN, IF APPLICABLE, THE ENTITY THAT WILL HOLD THE
BUSINESS)
WITH RESPECT THERETO.
2.4.
FINANCIAL STATEMENTS. THE ACON ENTITIES AND PARENT WILL PREPARE A
STATEMENT OF NET ASSETS AS OF DECEMBER 31, 2007 AND STATEMENT OF REVENUES IN
EXCESS OF DIRECT EXPENSES FOR THE YEAR THEN ENDED AND CAUSE SUCH STATEMENTS TO
BE AUDITED BY AN INTERNATIONALLY RECOGNIZED INDEPENDENT CERTIFIED PUBLIC
ACCOUNTING FIRM FOR DELIVERY OF SUCH STATEMENTS TO INVERNESS ON OR PRIOR TO THE
SECOND TERRITORY PRODUCTION DATE. THE FOREGOING FINANCIAL STATEMENTS SHALL BE
PREPARED IN ACCORDANCE WITH UNITED STATES GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES AND IN A MANNER CONSISTENT WITH THE HISTORICAL FINANCIAL STATEMENTS
(AS DEFINED IN THE FIRST TERRITORY AND NEW FACILITY ACQUISITION AGREEMENT).
2.5.
CONFIDENTIALITY. THE ACON ENTITIES, PARENT AND INVERNESS WILL
ENTER INTO A MUTUAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT REASONABLY
ACCEPTABLE TO ALL PARTIES PRIOR TO
5
THE SECOND TERRITORY PLANNING DATE (THE "MNDA"); PROVIDED THAT AN AGREEMENT THAT
IS SUBSTANTIALLY SIMILAR TO THE RECIPROCAL CONFIDENTIALITY AND NONDISCLOSURE
AGREEMENT DATED OCTOBER 6, 2005, AS AMENDED TO DATE, SHALL BE DEEMED REASONABLY
ACCEPTABLE TO ALL PARTIES.
2.6.
COVENANT OF GOOD FAITH AND FAIR DEALING. THE PARTIES ACKNOWLEDGE
AND AGREE THAT THIS AGREEMENT AND THE FORM OF ACQUISITION AGREEMENT COLLECTIVELY
IDENTIFY AS OF THE DATE HEREOF ALL MATERIAL TERMS, CONDITIONS AND ISSUES
RELATING TO THE ACQUISITION OF THE BUSINESS AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY. EACH PARTY HEREBY COVENANTS THAT IT WILL IN
GOOD FAITH REACH COMMERCIALLY REASONABLE RESOLUTION ON ANY ADDITIONAL TERMS,
CONDITIONS AND ISSUED THAT THE PARTIES IDENTIFY IN CONNECTION WITH THEIR
RECIPROCAL DILIGENCE, THE PERFORMANCE OF THEIR OBLIGATIONS UNDER THIS AGREEMENT,
CHANGES IN APPLICABLE LAW, AND THE FINALIZATION AND EXECUTION OF THE DEFINITIVE
ACQUISITION AGREEMENT.
SECTION 3.
COVENANTS OF INVERNESS.
INVERNESS HEREBY COVENANTS AND AGREES WITH THE ACON ENTITIES AND PARENT AS
FOLLOWS:
3.1.
COOPERATION. FROM THE DATE HEREOF AND PRIOR TO EACH OF THE
APPLICABLE CLOSINGS, INVERNESS WILL, AND WILL CAUSE ITS AFFILIATES TO, USE ITS
COMMERCIALLY REASONABLE EFFORTS, AND WILL REASONABLY COOPERATE WITH THE ACON
ENTITIES AND PARENT, TO SECURE ALL NECESSARY CONSENTS, APPROVALS,
AUTHORIZATIONS, EXEMPTIONS AND WAIVERS FROM