Exhibit 2.8
NON-SOLICITATION,
CONFIDENTIALITY AND
INTELLECTUAL
PROPERTY AGREEMENT
This AGREEMENT (the
“Agreement”) is made and entered into as of April 12,
2007, by and among QIAGEN N.V. (“Parent”), eGene, Inc.,
(the “Company”), and Peter Sheu, 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 an officer
of 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, 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, 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 Solicit
. 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) 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; and
(b) 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
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.
2
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 th
