TIME AS ARBITRATOR DETERMINES IF THE ACON ENTITIES AND/OR PARENT HAVE
BREACHED THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT IN ACCORDANCE WITH
SECTION 6.2(C) AND EXHIBIT B.
(C)
NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM ANY LIABILITY FOR
(I) ANY WILLFUL, MATERIAL BREACH OF A REPRESENTATION OR WARRANTY CONTAINED
HEREIN (EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES THAT ARE QUALIFIED BY
THEIR TERMS AS TO MATERIALITY, WHICH SUCH REPRESENTATIONS AND WARRANTIES SO
QUALIFIED SHALL BE TRUE IN ALL RESPECTS), (II) ANY INTENTIONAL FAILURE TO
PERFORM AND SATISFY IN ALL MATERIAL RESPECTS ALL OF THE AGREEMENTS AND COVENANTS
TO BE PERFORMED HEREUNDER AND UNDER THE AGREEMENTS, DOCUMENTS AND INSTRUMENTS
CONTEMPLATED HEREBY AT OR PRIOR TO THE SIGNING AND (III) ANY INTENTIONAL FAILURE
TO PERFORM AND SATISFY THE CONDITIONS CONTAINED IN THIS AGREEMENT AND THE OTHER
AGREEMENTS, DOCUMENTS AND INSTRUMENTS CONTEMPLATED HEREBY.
SECTION 7.
INVERNESS CHANGE OF CONTROL.
7.1.
CHANGE OF CONTROL. IF PRIOR TO JANUARY 1, 2009, INVERNESS
UNDERGOES A MERGER OR CONSOLIDATION IN WHICH THE SHARES OF CAPITAL STOCK OF
INVERNESS OUTSTANDING IMMEDIATELY PRIOR TO THE DATE HEREOF NO LONGER REPRESENT
AT LEAST A MAJORITY, BY VOTING POWER, OF THE CAPITAL STOCK OF THE SURVIVING OR
RESULTING CORPORATION (A "CHANGE OF CONTROL") THEN IN THE EVENT A TERMINATION
FEE IS DUE AND PAYABLE UNDER SECTION 6.2(B) OF THIS AGREEMENT THE AMOUNTS
PAYABLE BY SUCH SURVIVING OR RESULTING CORPORATION SHALL EQUAL TWO (2) TIMES THE
TERMINATION FEE THAT WOULD OTHERWISE HAVE BEEN PAYABLE.
9
7.2.
PAYMENT SUBSEQUENT TO CHANGE OF CONTROL. IF, AFTER A CHANGE OF
CONTROL, EITHER INVERNESS OR ITS SUCCESSOR ELECTS TO EXECUTE THE FORM OF
ACQUISITION AGREEMENT AND CONSUMMATE THE TRANSACTIONS CONTEMPLATED THEREUNDER,
THE PURCHASE PRICE PAYABLE THEREUNDER SHALL BE PAID IN CASH.
SECTION 8.
MISCELLANEOUS.
8.1.
LAW GOVERNING; DISPUTE RESOLUTION. THIS AGREEMENT SHALL BE
CONSTRUED UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS. THE DISPUTE RESOLUTION
PROVISIONS CONTAINED IN EXHIBIT B HERETO ARE INCORPORATED HEREIN BY REFERENCE.
8.2.
NOTICES. ANY NOTICE, REQUEST, DEMAND OTHER COMMUNICATION REQUIRED
OR PERMITTED HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN
GIVEN (I) IF DELIVERED OR SENT BY FACSIMILE TRANSMISSION, UPON ACKNOWLEDGMENT OF
RECEIPT BY THE RECIPIENT, (II) IF SENT BY AN INTERNATIONALLY RECOGNIZED
OVERNIGHT COURIER, PROPERLY ADDRESSED WITH POSTAGE PREPAID, ON THE NEXT BUSINESS
DAY (OR SATURDAY IF SENT FOR SATURDAY DELIVERY) OR (III) IF SENT BY REGISTERED
OR CERTIFIED MAIL, UPON THE SOONER OF RECEIPT OR THE EXPIRATION OF THREE (3)
DAYS AFTER DEPOSIT IN UNITED STATES POST OFFICE FACILITIES PROPERLY ADDRESSED
WITH POSTAGE PREPAID. NOTICE TO ANY ACON ENTITY (IF GIVEN IN ACCORDANCE WITH
THIS SECTION 8.2) SHALL BE DEEMED NOTICE TO ALL ACON ENTITIES. ALL NOTICES WILL
BE SENT TO THE ADDRESSES SET FORTH BELOW OR TO SUCH OTHER ADDRESS AS SUCH PARTY
MAY DESIGNATE BY NOTICE TO EACH OTHER PARTY HEREUNDER:
If to Inverness:
Inverness Medical Innovations, Inc.
51 Sawyer Road, Suite 200
Waltham, MA 02453
Attn:
General Counsel
Facsimile Number (781)