Exhibit 2.4
NON-COMPETITION,
CONFIDENTIALITY, AND
INTELLECTUAL
PROPERTY AGREEMENT
This AGREEMENT (the
“Agreement”) is made and entered into as of April 12,
2007 (the “Effective Date”), by and among QIAGEN N.V.
(“Parent”), eGene, Inc., (the “Company”),
and Ming-Sun Liu, an individual (“Covenantor”), and is
effective as of the Effective Date. Capitalized terms used
herein but not otherwise defined shall have the meanings ascribed
to them in the Merger Agreement (as defined below). This
Agreement shall become effective (the “Effective Date”)
immediately prior to consummation of the merger that is the subject
of the Merger Agreement set forth above. If such merger is not
consummated, this Agreement shall immediately terminate and be of
no force or effect.
RECITALS
WHEREAS, Covenantor is a
stockholder of, with a significant equity interest in, the Company
and, pursuant to that certain Agreement and Plan of Merger, dated
as of even date herewith, by and among Parent, QIAGEN North
American Holdings, Inc. (a wholly-owned subsidiary of Parent),
Electra Merger Sub, Inc., and the Company (as defined therein) (the
“Merger Agreement”), the Company will be merged with
and into the Parent (the “Merger”) and the Company
will, upon the closing of the transactions contemplated by the
Merger Agreement, become a wholly-owned subsidiary of
Parent;
WHEREAS, the business of the
Company is the business of research, development and/or utilizes
the core technologies of capillary electrophoresis, microfluidics,
advanced reagents liquid handling and automation to create a novel
DNA/RNA analysis system for biological materials and life sciences
testing, and diagnostics (including but not limited to HLA) (the
“Business”);
WHEREAS, Parent and its affiliates
and subsidiaries (including, upon consummation of the Merger, the
Company) intend to engage in the Business;
WHEREAS, as a condition to its
willingness to enter into the Merger Agreement and in consideration
of Parent’s acquisition for value of all of
Covenantor’s shares of capital stock of the Company pursuant
to the Merger Agreement, Parent has required that Covenantor shall
have executed and delivered this Agreement in favor of Parent and
its respective affiliates and subsidiaries (including, after the
Effective Date, the Company);
WHEREAS, Covenantor will benefit
materially from the Merger, in that he will sell or exchange his
entire equity interest in the Company, Covenantor understands that
the Merger cannot occur if Covenantor does not enter into this
Agreement and Covenantor therefore wishes to enter into this
Agreement with Parent in order to receive the benefits of the
Merger;
WHEREAS, because Covenantor has
considerable knowledge, business contacts and expertise relating to
the Business, if Covenantor were to compete with Parent or any of
its subsidiaries or affiliates within the periods of time set forth
herein, Parent would be deprived of the full benefit of any
reputation or goodwill associated with the Business, as the
Business may exist on and after the date hereof; and
WHEREAS, the covenants provided
herein are material, significant and essential to effecting the
transactions contemplated by the Merger Agreement, and good and
valuable consideration has been transferred from Parent to
Covenantor in exchange for such covenants.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing recitals, the terms and provisions of this Agreement,
the Merger Agreement and the ancillary agreements and instruments
related thereto, the receipt and sufficiency of such consideration
being hereby acknowledged by the parties hereto, the parties hereto
agree as follows:
1. Covenant Not to Compete
. From
two (2) years after the termination of Covenantor’s
employment with the Parent (the “Term”), Covenantor
shall not, directly or indirectly, except on behalf of Parent, the
Company and their respective subsidiaries and
affiliates:
(a) become associated
with a Competitive Activity (as defined below). Without
limiting the generality of the foregoing, Covenantor shall be
deemed to be associated with a Competitive Activity if Covenantor
acts, directly or indirectly, as an officer, director, proprietor,
employee, partner, financial backer, lender (to the extent
involving equity) or investor (other than as a holder of less than
5% of the outstanding capital stock of a publicly traded or private
corporation), guarantor, consultant, advisor, agent,
representative, owner, principal, independent contractor, or in any
other individual or representative capacity with any individual,
partnership, corporation or other organization that is engaged in a
Competitive Activity. Nothing herein prevents Covenantor from
becoming associated with a corporation or other organization that
engages, in part, in Competitive Activity, provided that:
(i) Covenantor plays no role, directly or indirectly, in that
aspect of the business that constitutes Competitive Activity;
(ii) Covenantor first provides the Company with written notice
of the potential association; and (iii) the Company, working
in good faith with Covenantor, agrees in writing that Covenantor
may pursue the association. For purposes of this Section
1(a), “Competitive Activity” is defined as (i) any
product, process, service or development of the following entities:
Abbott; Agilent; Applera; Bayer; Beckman Coulter; Bectin Dickinson;
BioRad; Cambrex; Digene; Eragen; GenProbe; Invitrogen; Luminex/Tm
Bioscience; One Lambda; Promega; Tepnel; ThermoFisher; Roche;
Sigma; and Stratagene (as such list may be amended from time to
time), or (ii) any business enterprise or entity in which
Covenantor is self-employed and which is engaged in any work or
activity that involves a product, process, service or development
which is then competitive with and the same as or similar to a
product, process, service or development on which Covenantor
worked, or with respect to which Covenantor had access to
Confidential Information, while engaged or employed with the
Company or the Parent, or (iii) any business entity or enterprise
engaging in any work or activity that involves a product, process,
service or development related to gel or capillary electrophoresis
for the life science research, diagnostics, or applied testing
markets. The restricted entities listed in subsection (i)
above may change from time to time at the Company’s or
Parent’s discretion, in which case Covenantor will receive
advance written notice of the change. No entity will be
included on such list unless it is engaged in researching,
manufacturing, developing or marketing nucleic acid purification
products for academic and industrial markets, including life
science research, genomics, gene-based drug discovery, nucleic
acid-based molecular diagnostics, genetic vaccination, and gene
therapy markets or is perceived by the Company or Parent as a
competing business;
(b) directly or
indirectly, solicit any person who is an employee of Parent, the
Company or any of their respective affiliates as of the date of
this Agreement; provided , however, that (i) a
general solicitation of the public for employment shall not
constitute a solicitation hereunder so long as such general
solicitation is not designed to target, or does not have the effect
of targeting, any employee of Parent, the Company or any of their
respective affiliates; and (ii) discussions with and/or hiring of
any employee of Parent, the Company or any of their respective
affiliates who initiated such discussions independently of any
direct or indirect solicitation by Covenantor shall not be in
violation of this Agreement; or
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(c) solicit any
customers, business partners or affiliates of the Company, Parent
or any of the Company’s or Parent’s current or future
successors, with the intent of encouraging or inducing one or more
of said customers, business partners or affiliates to terminate,
restrict or otherwise limit its or their business relationship with
the Company, Parent, or any of the Company’s or
Parent’s current or future successors.
2. Duties Regarding
Confidentiality .
(a) Confidentiality
Obligations to Parent . Parent has developed, uses and
maintains trade secrets 1/ and other confidential and
proprietary information including, without limitation, technical
data and specifications, business and financial information,
product and marketing plans, customer and client information,
customer and client lists, customer, client and vendor identities
and characteristics, agreements, marketing knowledge and
information, sales figures, pricing information, marketing plans,
business plans, strategy forecasts, financial information, budgets,
software, projections and procedures, and Inventions (as defined in
Section 3), in written, oral, electronic and/or other forms
(“Confidential Information”), and Parent has taken and
shall continue to take all reasonable measures to protect the
confidentiality of such Confidential Information. Covenantor
acknowledges that during Covenantor’s employment with Parent
Covenantor will be given direct access to and knowledge of
Confidential Information.
Covenantor agrees that
all such Confidential Information is and shall remain the sole
property of Parent and that Covenantor will hold in strictest
confidence, and will not, either during or after the termination of
Covenantor’s employment (except as required in the course of
Covenantor’s duties on behalf of Parent), use, disclose or
give to others (whether a business, firm, entity, person or
otherwise), either directly or indirectly, any of the Confidential
Information or any other scientific, technical, trade or business
secret or confidential or proprietary information of Parent or of
any third party provided to Covenantor during his employment by
Parent.
(b) Confidentiality
Obligations to Company . Covenantor also agrees not to
divulge to or use for the benefit of another entity or individual
trade secrets (as defined in footnote 1) and other confidential and
proprietary information including, without limitation, technical
data and specifications, business and financial information,
product and marketing plans, customer and client information,
customer and client lists, customer, client and vendor identities
and characteristics, agreements, marketing knowledge and
information, sales figures, pricing information, marketing plans,
business plans, strategy forecasts, financial information, budgets,
software, and projections and procedures developed by Company.
By signing this Agreement, Covenantor affirms that Covenantor
has not divulged or used any such information for the benefit of
another entity or individual, and that Covenantor has not and will
not misappropriate any Invention that Covenantor played any part in
creating while working for Company for the benefit of another
entity or individual.
(c) General
Confidentiality Obligations . Covenantor’s
obligation of confidentiality under this Agreement does not apply
to information that (i) becomes a matter of public knowledge
through no fault of Covenantor’s own or (ii) must be
disclosed pursuant to lawful subpoena, court order or statutory
requirement. However, Covenantor agrees that in the event
Covenantor is questioned by anyone not employed by Parent, or by an
employee of or a consultant to Parent not authorized to receive
such
1 / The term
“trade secrets,” as used in this Agreement, shall be
given its broadest possible interpretation under California law and
shall include, but not be limited to, anything tangible or
intangible or electronically kept or stored, which constitutes,
represents, evidences or records a secret scientific, technical,
merchandising, production or management information, design,
process, procedure, formula, invention or improvement; and other
confidential and proprietary information and documents.
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information, in regard
to any such Confidential Information or an
