Exhibit 99.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 14th day of December,
2001, by and between Inverness Medical Innovations, Inc. (the "Company"), a
corporation organized under the laws of the state of Delaware, with its
principal offices at 51 Sawyer Road, Suite 200, Waltham, Massachusetts 02453,
and the investors whose names and addresses are set forth on the signature pages
hereof (the "Investors").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Investors agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
2,666,667 shares of Series A Convertible Preferred Stock, par value $.001 per
share, of the Company (the "Shares"). The rights and privileges of the Series A
Convertible Preferred Stock are described in the Certificate of Designation,
Preferences and Rights attached hereto as EXHIBIT A (the "Certificate of
Designation").
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES. At each Closing (as
defined in Section 3), the Company will sell to each Investor participating in
such Closing the number of Shares set forth on the signature page executed by
such Investor and accepted by the Company, and each such Investor will purchase
such number of Shares from the Company, upon the terms and conditions
hereinafter set forth, at the purchase price set forth on such Investor's
signature page. The obligations of each Investor under this Agreement, and all
representations, warranties and covenants made by such Investor herein, shall be
several and not joint.
SECTION 3. CLOSINGS.
3.1 INITIAL CLOSING; ESCROW. The initial closing of the purchase and
sale of the Shares (the "Initial Closing") shall occur simultaneously with the
closing of the Acquisition (as defined in Section 4.12) (the "Initial Closing
Date"). Prior to the Initial Closing Date, each Investor shall deliver to Foley,
Hoag & Eliot LLP, counsel to the Company (the "Escrow Agent"), a signature page
to this Agreement, executed by such Investor, and the full purchase price for
the Shares such Investor is purchasing. The Company shall cause the Escrow Agent
to hold each Investor's purchase price in escrow pending the closing of the
Acquisition, whereupon such purchase price shall be delivered to the Company.
Each Investor acknowledges and agrees that the Company will instruct the Escrow
Agent to convert, and that the Escrow Agent will convert, the funds held in
escrow into British Pounds Sterling prior to the Initial Closing Date. In the
event that the closing of the Acquisition shall not have occurred on or before
December 31, 2001 (the "Escrow Termination Date"), the Company shall arrange for
the conversion of any escrow funds held in British Pounds Sterling into U.S.
Dollars and cause the Escrow Agent to return to each Investor the amount held by
the Escrow Agent which is attributable to such Investor's payment of such
purchase price, without interest thereon. Each Investor acknowledges and agrees
that the Company shall be responsible for returning the full amount of such
Investor's purchase price and shall be solely responsible for any diminution in
value resulting from the currency conversion of
the escrow funds. Each Investor further acknowledges and agrees that the Escrow
Agent shall have no liability for any such conversion effected in accordance
with the instructions of the Company or otherwise in connection with the escrow
arrangements. The Company may from time to time, in its sole discretion, extend
the Escrow Termination Date to a date not later than January 31, 2002.
3.2 ADDITIONAL CLOSINGS. The Investors and the Company agree that one
or more additional closings (each an "Additional Closing," collectively the
"Additional Closings," and together with the Initial Closing, each a "Closing"
and collectively the "Closings") may be held on or before April 15, 2002. At any
such Additional Closing, the Company may issue and sell for cash (except as
provided in the following sentence) up to the aggregate amount of Shares not
issued, sold and purchased at the Initial Closing or any prior Additional
Closings to one or more investors who execute and deliver to the Company a
signature page for this Agreement which is accepted by the Company (each an
"Additional Investor" and collectively the "Additional Investors"). In addition,
in the event that holders of the Company's subordinated promissory notes issued
on or about the date of this Agreement (the "Subordinated Notes") elect to
convert such Subordinated Notes into Shares in accordance with the terms of such
Subordinated Notes, such holders shall acquire such Shares at an Additional
Closing and shall be deemed to be Additional Investors hereunder. The terms
"Investor" and "Investors" herein shall be deemed to include such Additional
Investors. Any Additional Closing shall be held at such times and dates as may
be specified by the Company and the Additional Investors purchasing Shares at
such Additional Closing.
3.3 DELIVERY OF THE SHARES AT THE CLOSINGS. At each Closing, the
Company will issue to the Investors participating in such Closing one or more
stock certificates registered in the name of such Investors, or in such nominee
name(s) as designated by such Investors in writing, representing the Shares
being purchased by such Investors. The name(s) in which the stock certificates
are to be registered are set forth in the Stock Certificate Questionnaire
attached hereto as APPENDIX I. The Company's obligation to complete the purchase
and sale of the Shares being purchased hereunder and deliver such stock
certificate(s) to the Investors at each Closing shall be subject to the
following conditions, any one or more of which may be waived by the Company: (a)
receipt by the Company of same-day funds (or original Subordinated Notes) in the
full amount of the purchase price for the Shares being purchased at such
Closing; and (b) the accuracy in all material respects of the representations
and warranties made by the Investors participating in such Closing and the
fulfillment of those undertakings of such Investors to be fulfilled prior to or
at such Closing. The obligation of the Investors participating in each Closing
to accept delivery of such stock certificate(s) and to pay for the Shares
evidenced thereby shall be subject to the accuracy in all material respects of
the representations and warranties made by the Company herein as of the date of
such Closing and the fulfillment of those undertakings of the Company to be
fulfilled prior to or at such Closing.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to, and covenants with, the Investors as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; and the Company
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is in good standing in each other jurisdiction in which qualification is
required, except where the failure to be so qualified will not have a Material
Adverse Effect, as defined in Section 4.4.
4.2 AUTHORIZED CAPITAL STOCK. The authorized capital stock of the
Company consists of 50,000,000 shares of common stock, $.001 par value per share
("Common Stock"), and 5,000,000 shares of preferred stock, $.001 par value per
share ("Preferred Stock"), 2,666,667 of which have been designated as Series A
Convertible Preferred Stock. The number of shares of Preferred Stock, Common
Stock and all subscriptions, warrants, options, convertible securities, and
other rights (contingent or other) to purchase or otherwise acquire equity
securities of the Company issued and outstanding on the Initial Closing Date are
as set forth on SCHEDULE 4.2 hereto. The issued and outstanding shares of the
Company's capital stock have been duly authorized and validly issued, are fully
paid and nonassessable, have been issued in compliance with all applicable
federal and state securities laws, and were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES. The Shares being
purchased hereunder have been duly authorized and, when issued, delivered and
paid for in the manner set forth in this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable. No preemptive rights or other
rights of any stockholder of the Company to subscribe for or purchase exist with
respect to the issuance and sale of the Shares by the Company pursuant to this
Agreement. No further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of the
Shares to be sold by the Company as contemplated herein. The Company's issuance
of the Shares shall be in compliance with all applicable federal and state
securities laws.
4.4 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The
Company has full legal right, corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Company. The execution,
delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions herein contemplated will not violate any
provision of the organizational documents of the Company. The execution,
delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions herein contemplated will not result in the
creation of any lien, charge, security interest or encumbrance upon any assets
of the Company pursuant to the terms or provisions of, or conflict with, result
in the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under any material agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which the Company is a party or by which the Company or any of its properties
may be bound or affected and in each case which individually or in the aggregate
would have a material adverse effect on the condition (financial or otherwise),
properties, business, prospects, or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"), or any statute or
any authorization, judgment, decree, order, rule or regulation of any court or
any regulatory body, administrative agency or other governmental body applicable
to the Company or any of its respective properties. No consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution and delivery of
this Agreement or the consummation of the transactions contemplated by this
Agreement, except for compliance with all federal and state securities laws
applicable to the
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offering and sale of the Shares. Upon its execution and delivery, and assuming
the valid execution thereof by the Investors, this Agreement will constitute a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
4.5 GOOD STANDING OF SUBSIDIARIES. Each of the Company's subsidiaries
has been duly organized and is validly existing in good standing under the laws
of the jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as conducted
and as proposed to be conducted, and is duly qualified and is in good standing
as a foreign corporation in each jurisdiction in which such qualification is
required, except where the failure to be so qualified will not have a Material
Adverse Effect. All of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued, is duly paid and
nonassessable and is owned by the Company only free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of each such subsidiary was issued in
violation of any preemptive or similar rights of any third party.
4.6 NO DEFAULTS. The Company is not in violation of or default under
any provision of its Certificate of Incorporation or By-Laws, each as amended.
The Company, and to the best of the Company's knowledge, each other party
thereto, is not in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which the Company is a party
or by which the Company or any of its properties are bound; and there does not
exist any state of facts which, with notice or lapse of time or both, would
constitute an event of default as defined in such documents on the part of the
Company, and to the best of the Company's knowledge, on the part of each other
party thereto, except for such breaches and defaults which individually or in
the aggregate would not have a Material Adverse Effect.
4.7 NO ACTIONS. Except as disclosed in the Information Documents (as
defined in Section 4.14), there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's knowledge, threatened to
which the Company or any of its subsidiaries is or may be a party or of which
property owned or leased by the Company or any of its subsidiaries is or may be
subject (except for threatened litigation which individually or in the aggregate
would not have a Material Adverse Effect); and no labor disturbance by the
employees of the Company or any of its subsidiaries exists, or, to the best of
the Company's knowledge, is imminent. Neither the Company nor any of its
subsidiaries is a party to or subject to the provisions of any injunction,
judgment, decree or order of any court, regulatory body, administrative agency
or other governmental body.
4.8 PROPERTIES. The Company and each of its subsidiaries has, as of the
applicable dates referred to therein, good and marketable title to all the
properties and assets reflected as owned by it in the financial statements
included in the Information Documents, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except (i) those, if any, reflected in such
financial statements, or (ii) those which are not material in amount and do not
adversely
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affect the use made and currently proposed to be made of such property by the
Company or such subsidiary. The Company and its subsidiaries hold their leased
properties under valid and binding leases. The Company and its subsidiaries own
or lease all such properties as are necessary to their operations as now
conducted.
4.9 NO MATERIAL CHANGE. Since November 21, 2001 and except for the
transactions described on SCHEDULE 4.9, (i) the Company and its subsidiaries
have not incurred any material liabilities or obligations, indirect or
contingent, or entered into any material agreement or other transaction which is
not in the ordinary course of business or which could reasonably be expected to
result in a material reduction in the future earnings of the Company or its
subsidiaries; (ii) the Company and its subsidiaries have not sustained any
material loss or interference with their businesses or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance; (iii) the Company has not paid or declared any dividends or other
distributions with respect to its capital stock, and the Company and each of its
subsidiaries is not in default in the payment of principal or interest on any
outstanding debt obligations, if any; (iv) there has not been any material
change in the capital stock of the Company or any of its subsidiaries other than
the sale of the Shares hereunder; and (v) there has not been a material adverse
change in the condition (financial or otherwise), properties, business or
results of operations of the Company or any of its subsidiaries.
4.10 INTELLECTUAL PROPERTY.
(a) The Company and its subsidiaries own or have the right to
use all Intellectual Property Rights (as defined below) used by the Company and
its subsidiaries for the conduct of their respective businesses, which
Intellectual Property Rights are the only Intellectual Property Rights necessary
or required for the conduct of their respective businesses.
(b) Neither the Company nor any of its subsidiaries is in
default of its obligations to pay royalties or other amounts to other persons by
reason of the ownership or use of any Intellectual Property Rights used by the
Company and its subsidiaries for the conduct of their respective businesses.
(c) To the best of the Company's knowledge, no Intellectual
Property Right owned by the Company or any of its subsidiaries violates or will
violate any license or infringes or will infringe any Intellectual Property
Rights of another. To the best of the Company's knowledge, no Intellectual
Property Right, product or service marketed, sold or licensed (as licensor or as
licensee) by the Company or any of its subsidiaries, violates or will violate
any license or infringes or will infringe any Intellectual Property Rights of
another, nor has the Company or any of its subsidiaries received any notice that
any of the Intellectual Property Rights used by the Company or any of its
subsidiaries for the conduct of their respective businesses, conflicts or will
conflict with the rights of others.
(d) Except as disclosed in the Information Documents, there
are no claims pending or, to the best of the Company's knowledge, threatened
with respect to any Intellectual Property Rights necessary or required for the
conduct of the business of the Company or any of its subsidiaries as currently
conducted, nor, to the best of the Company's knowledge, does there exist any
basis therefor.
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As used herein, the term "Intellectual Property Rights" means all patents,
trademarks, service marks, trade names, copyrights, inventions, trade secrets,
know-how, proprietary processes and formulae, applications for patents,
trademarks, service marks and copyrights, and other intellectual property
rights.
4.11 COMPLIANCE. The Company has not been advised, or has no reason to
believe, that the Company or any of its subsidiaries is not conducting business
in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure to be so
in compliance would not have a Material Adverse Effect.
4.12 USE OF PROCEEDS. The Company intends to use the proceeds obtained
from the sale of the Shares hereunder in order to finance a portion of the
acquisition transaction described in SCHEDULE 4.12 (the "Acquisition").
4.13 REPORTING COMPANY; LISTED SECURITIES. The Company has filed all
reports required to be filed by Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") since it became a public company on
November 21, 2001. The Company's Common Stock is listed on the American Stock
Exchange ("AMEX"). As of each Closing Date, the Company meets all the
requirements for continued listing on AMEX, and to the best of the Company's
knowledge, there is no stop order suspending the trading of the Common Stock on
AMEX or any information which would result in the Common Stock being delisted
from AMEX.
4.14 ADDITIONAL INFORMATION. The Company has made available to the
Investors a true and complete copy of its Registration Statement on Form S-4,
Registration No. 333-67392, as declared effective by the Securities and Exchange
Commission (the "Commission"), and all exhibits thereto, as well as the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
2001, as amended, as filed with the Commission (collectively, the "Information
Documents"). As of their respective dates, the Information Documents and any
forms, reports and other documents filed by the Company with the Commission
during the period commencing on the date of this Agreement and ending on the
last date on which the Company is required to maintain the effectiveness of the
registration statement referred to in Section 7 hereof, complied or will comply
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act") or the Exchange Act, as the case may be, and the
rules and regulations of the Commission thereunder applicable to the Information
Documents or such other forms, reports or other documents, and none of the
Information Documents contained, and none of such other forms, reports or other
documents will contain at the time they are filed, any untrue statement of a
material fact or omitted, or will omit at the time they are filed, to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the Information
Documents comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission with
respect thereto, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by the rules and regulations of the
Commission) and fairly present (subject, in the case of the unaudited
statements, to normal, recurring audit adjustments, which were not individually
or in the
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aggregate material) in all material respects the financial position of the
Company as at the dates thereof and the results of its operations and cash flows
for the periods then ended.
4.15 LEGAL OPINION. At each Closing, the Company will cause Foley, Hoag
& Eliot, LLP, counsel to the Company, to deliver to the Investors participating
in such Closing a legal opinion as to the matters set forth in EXHIBIT B hereto.
4.16 CERTIFICATE. At each Closing, the Company will deliver to
Investors a certificate executed by the Chief Executive Officer or President of
the Company, dated the applicable Closing Date, in form and substance reasonably
satisfactory to the Investors, to the effect that the representations and
warranties of the Company set forth in this Section 4 are true and correct in
all material respects as of such Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions herein on its part to be
performed or satisfied on or prior to such Closing Date.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTORS.
5.1 Each Investor represents and warrants to, and covenants with, the
Company that: (i) such Investor is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
securities representing an investment decision such as that involved in the
purchase of the Shares and has requested, received, reviewed and understood all
information it deems relevant in making an informed decision to purchase the
Shares, including, without limitation, the information contained in the
Information Documents and the Certificate of Designation; (ii) such Investor
acknowledges that the offering of the Shares pursuant to this Agreement is being
made without registration under the Securities Act and applicable state
securities laws and has not been reviewed by the Commission or any state
regulatory authority; (iii) such Investor is acquiring the number of Shares set
forth on its signature page hereto for its own account for investment only and
with no present intention of distributing any of such Shares or any arrangement
or understanding with any other persons regarding the distribution of such
Shares; (iv) such Investor will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act, the rules and regulations thereunder and any applicable
state securities or blue sky laws; (v) such Investor has completed or caused to
be completed the Stock Certificate Questionnaire, attached hereto as APPENDIX I,
and the answers thereto are true and correct as of the date hereof; (vi) such
Investor has, in connection with its decision to purchase the number of Shares
set forth on its signature page, not relied upon any representations or other
information (whether oral or written) other than as set forth in the Information
Documents and the representations and warranties of the Company contained
herein; (vii) such Investor has had an opportunity to discuss this investment
with representatives of the Company and ask questions of them and such questions
have been answered to the full satisfaction of such Investor; and (viii) such
Investor is an "accredited investor" within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act.
5.2 Each Investor hereby covenants with the Company not to make any
sale of the Registrable Shares (as hereinafter defined) without satisfying the
prospectus delivery requirements under the Securities Act, if any.
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5.3 Each Investor further represents and warrants to, and covenants
with, the Company that (i) such Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, (ii) if such Investor is
an entity, such Investor is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, (iii) if such
Investor is an entity, the execution, delivery and performance of this Agreement
by such Investor and the consummation by such Investor of the transactions
contemplated by this Agreement will not violate any provision of the
organizational documents of such Investor or conflict with, result in the breach
or violation of, or constitute, either by itself or upon notice or the passage
of time or both, a default under any material agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument to which
such Investor is a party or, any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory body, administrative
agency or other governmental body applicable to such Investor, (iv) no consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required on the part of such
Investor for the execution and delivery of this Agreement or the consummation of
the transactions contemplated by this Agreement, (v) upon the execution and
delivery of this Agreement, this Agreement shall constitute a valid and binding
obligation of such Investor enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and (vi) there is not in effect any order
enjoining or restraining such Investor from entering into or engaging in any of
the transactions contemplated by this Agreement.
5.4 Each Investor recognizes that an investment in the Shares and the
Common Stock issuable upon conversion of the Shares is speculative and involves
a high degree of risk, including a risk of total loss of such Investor's
investment.
5.5 All of the information provided to the Company or its agents or
representatives concerning each Investor's suitability to invest in the Company
and the representations and warranties of such Investor contained herein, are
complete, true and correct as of the date hereof. Such Investor understands that
the Company is relying on the statements contained herein to establish an
exemption from registration under federal and state securities laws.
5.6 The addresses set forth in the Investor's signature page hereto is
the Investor's true and correct domicile.
5.7 Each Investor covenants to provide the Company an updated, accurate
and complete plan of distribution at all times during which the Company is
required to keep the Registration Statement in effect.
5.8 Each Investor understands and agrees that each certificate or other
document evidencing any of the Shares and any shares of Common Stock issued upon
conversion of the Shares shall be endorsed with the legend in substantially the
form set forth below as well as any other legends required by applicable law,
and such Investor covenants that such Investor shall
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not transfer the Shares or Common Stock represented by any such certificate
without complying with the restrictions on transfer described in the legends
endorsed on such certificate:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE
TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS OR (B) EXEMPTIONS FROM
SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE.
AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES,
THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO
REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH
TRANSFER.
SECTION 6. SURVIVAL OF REPRESENTATIVES, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investors herein and in any certificates or documents delivered pursuant
hereto or in connection therewith shall survive following the delivery to the
Investors of the Shares being purchased and the payment therefor.
SECTION 7. REGISTRATION OF THE SHARES: COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) following the final Closing Date, prepare and file with
the SEC a registration statement on Form S-1 relating to the resale pursuant to
Rule 415 under the Securities Act of the Registrable Shares (as defined below)
by the Investors from time to time on AMEX or the facilities of any other
national securities exchange or automated quotation system on which the Common
Stock is then traded or in privately-negotiated transactions, and specifically
excluding underwritten offerings. "Registrable Shares" shall mean (i) the shares
of Common Stock issued or issuable upon conversion of the Shares, and (ii) any
shares of Common Stock issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events);
(b) subject to receipt of necessary information from the
Investors, use its best efforts to cause the Registration Statement (as defined
in Section 7.3 below) to be declared effective by the Commission within six
months after the Initial Closing Date;
(c) promptly and in good faith respond to all of the
Commission's comments on the Registration Statement, and within two (2) business
days of receipt of an indication from the Commission that it has no further
comments, request acceleration of the effectiveness of the registration at the
earliest practicable time;
(d) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the earlier of (i) the second
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anniversary of the Initial Closing Date, (ii) the date on which the Investors
may sell all the Registrable Shares then held by the Investors within a
three-month period in accordance with paragraph (k) of Rule 144 under the
Securities Act ("Rule 144"), or (iii) such time as all the Registrable Shares
purchased by the Investors have been sold pursuant to a registration statement;
(e) so long as the Registration Statement is effective
covering the resale of the Shares owned by the Investors, furnish to the
Investors with respect to the Registrable Shares registered under the
Registration Statement such number of copies of prospectuses and such other
documents as the Investors may reasonably request in order to facilitate the
public sale or other disposition of all or any of the Registrable Shares by the
Investors;
(f) file documents required of the Company for blue sky
clearance in states specified in writing by the Investors; provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not so qualified or has
not so consented;
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (f) of this Section 7.1 and the registration of the
Registrable Shares pursuant to the Registration Statement, and reasonable legal
fees and expenses, if any, of one (1) counsel to all of the Investors whose
shares are registered, and except for any underwriting discounts, brokerage fees
and commissions incurred by the Investors, if any; and
7.2 ADDITIONAL OBLIGATIONS OF THE PARTIES.
(a) With a view to making available to the Investors the
benefits of Rule 144 (or its successor rule) and any other rule or regulation of
the Commission that may at any time permit the Investors to sell the Registrable
Shares to the public without registration, the Company covenants and agrees to:
(i) make and keep public information available, as those terms are understood
and defined in Rule 144, until the earlier of (A) such date as all of the
Investors' Registrable Shares may be resold within a given three-month period
pursuant to Rule 144 or any other rule of similar effect or (B) such date as all
of the Investors' Registrable Shares shall have been resold and (ii) file with
the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and under the Exchange Act.
(b) If the Company has delivered preliminary or final
prospectuses to the Investors and after having done so the prospectus is amended
to comply with the requirements of the Securities Act, the Company shall
promptly notify the Investors and, if requested, the Investors shall immediately
cease making offers of Registrable Shares and return all prospectuses to the
Company. The Company shall promptly provide the Investors with revised
prospectuses and, following receipt of the revised prospectuses, the Investors
shall be free to resume making offers of the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a prospectus included in the Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
be detrimental to the Company, the Company shall
10
notify all Investors to such effect, and, upon receipt of such notice, each
Investor shall immediately discontinue any sales of Registrable Shares pursuant
to the Registration Statement until such Investor has received copies of a
supplemented or amended prospectus or until such Investor is advised in writing
by the Company that the then current prospectus may be used and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such prospectus. Notwithstanding anything to the
contrary herein, the Company shall not exercise its rights under this Section
7.2(c) to suspend sales of Registrable Shares for a period in excess of 90 days
in any 365-day period.
(d) Each Investor shall furnish to the Company such
information regarding such Investor as the Company may reasonably request and as
shall be required in connection with any registration, qualification or
compliance referred to in this Agreement.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Investors" shall include the Investors
and any affiliate of the Investors; and
(ii) the term "Registration Statement" shall include
any final prospectus, exhibit, supplement or amendment
included in or relating to the registration statement referred
to in Section 7.1.
(a) The Company agrees to indemnify and hold harmless the
Investors and each person, if any, who controls the Investors within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses, joint or several, to which the Investor or such controlling persons
may become subject, under the Securities Act, the Exchange Act, or any other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Company), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, including the
prospectus, financial statements and schedules, and all other documents filed as
a part thereof, as amended at the time of effectiveness of the Registration
Statement, including any information deemed to be a part thereof as of the time
of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule
434, under the Securities Act, or the prospectus, in the form first filed with
the Commission pursuant to Rule 424(b) under the Securities Act, or filed as
part of the Registration Statement at the time of effectiveness if no Rule
424(b) filing is required (the "Prospectus"), or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated in the Registration Statement, the
Prospectus or any amendment or supplement thereto or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, and will reimburse the Investors and each such controlling person
for any legal and other expenses reasonably incurred as such expenses are
reasonably incurred by the Investors or such controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the Company
will not be liable in any such case to any Investor or controlling person of
such Investor to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon (i) an
11
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Investor expressly for use
therein, or (ii) the failure of such Investor to comply with Section 5.2 hereof
respecting sale of the Registrable Shares, or (iii) the inaccuracy of any
representations made by such Investor herein or (iv) any statement or omission
in any Prospectus that is corrected in any subsequent Prospectus that was
delivered to such Investor prior to the pertinent sale or sales by such
Investor.
(b) Each Investor will indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Investor) insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any failure by such Investor to comply with Section 5.2
hereof respecting the sale of the Registrable Shares or (ii) the inaccuracy of
any representation made by such Investor herein or (iii) any untrue or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Investor expressly
for use therein, and will reimburse the Company, each of its directors, each of
its officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred, as such expenses are reasonably
incurred by the Company, each of its directors, each of its officers who signed
the Registration Statement or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this
Section 7.3 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 7.3, promptly notify the indemnifying
party in writing thereof, but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party for contribution or otherwise to the extent it is not actually prejudiced
as a result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all other
indemnifying parties similarly notified, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; PROVIDED, HOWEVER,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
12
concluded that there may be a conflict between the positions or defenses of the
indemnifying party and the indemnified party in conducting the defense of any
such action, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 7.3 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless: (i) the indemnified party shall have employed such counsel in connection
with the assumption of legal defenses in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
reasonably satisfactory to the indemnifying party, representing the indemnified
parties who are parties to such action and all other purchasers of Shares in
this financing who may be parties to such action; PROVIDED, HOWEVER, that if any
indemnified party shall have reasonably concluded that there may be a conflict
between the positions or defenses of such indemnified party and the positions or
defenses of other indemnified parties or other purchasers in conducting the
defense of any such action, the indemnified party shall have the right to select
a separate counsel to assume such legal defenses) or (ii) the indemnified party
shall not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of
commencement of action, in each of which cases the reasonable fees and expenses
of counsel shall be at the expense of the indemnifying party. The indemnity
agreements contained in Section 7.3(a) and (b) shall not apply to amounts paid
in settlement of any action if such settlement is effected without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld or delayed), or to amounts paid in settlement of any
action if the indemnifying party is not fully released under such settlement
from any claim or liability under such action.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.3 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any losses, claims, damages, liabilities or expenses referred to
herein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Investors from the sale of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but the relative fault of the Company and the
Investors in connection with the statements or omissions or inaccuracies in the
representations and warranties in this Agreement which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The respective relative benefits received by the
Company on the one hand and the Investors on the other shall be deemed to be in
the same proportion as the amount paid by the Investors to the Company pursuant
to this Agreement for the Shares purchased by the Investors that were sold
pursuant to the Registration Statement bears to the difference (the
"Difference") between the amount the Investors paid for the Shares that were
sold pursuant to the Registration Statement and the amount received by the
Investors from such sale. The relative fault of the Investors shall be
determined by reference to, among other
13
things, whether the untrue or alleged statement of a material fact or the
omission or alleged omission to state a material fact or the inaccurate or the
alleged inaccurate representation and/or warranty relates to information
supplied by the Company or by the Investors and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in paragraph (c) of this
Section 7.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in paragraph (c) of this Section 7.3 with respect to the
notice of the threat or commencement of any threat or action shall apply if a
claim for contribution is to be made under this paragraph (d); provided,
however, that no additional notice shall be required with respect to any threat
or action for which notice has been given under paragraph (c) for purposes of
indemnification. The Company and the Investors agree that it would not be just
and equitable if contribution pursuant to this Section 7.3 were determined
solely by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 7.3, the Investors shall not be
required to contribute any amount in excess of the amount by which the
Difference exceeds the amount of any damages that the Investors have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 8. RIGHT OF FIRST REFUSAL.
8.1 RIGHT OF FIRST REFUSAL.
(a) Except as provided in Section 8.2 hereof, the Company shall not
issue, sell or exchange, agree to issue, sell or exchange, or reserve or set
aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii)
any other equity securities of the Company, including, without limitation,
shares of Preferred Stock, (iii) any option, warrant or other right to subscribe
for, purchase or otherwise acquire any equity securities of the Company, or (iv)
any debt securities convertible into equity securities of the Company
(collectively, the "Offered Securities"), unless in each such case the Company
shall have first complied with this Section 8.
(b) The Company shall deliver to each Investor a written notice of
any proposed or intended issuance, sale or exchange of Offered Securities (the
"Offer"), which Offer shall (i) identify and describe the Offered Securities,
(ii) describe the price and other terms upon which they are to be issued, sold
or exchanged, and the number or amount of the Offered Securities to be issued,
sold or exchanged, (iii) identify the persons or entities, if known, to which or
with which the Offered Securities are to be offered, issued, sold or exchanged,
and (iv) offer to issue and sell to or exchange with such Investor (A) that
number of the Offered Securities which represents the same percentage of the
total Offered Securities as the number of shares of Common Stock held by such
Investor (including all shares of the Company's capital stock convertible into
Common Stock, counting such shares as if converted) represents of the total
number of outstanding shares of Common Stock (including all shares of the
Company's capital stock convertible into Common Stock, counting such shares as
if converted) (the "Basic
14
Amount"), and (B) such additional portion of the Offered Securities as such
Investor shall indicate it will purchase should the other Investors subscribe
for less than their Basic Amounts (the "Undersubscription Amount"). Each
Investor shall have the right, for a period of 15 days following delivery of the
Offer, to accept the Offer in the manner provided in paragraph (c) below. The
Offer by its term shall remain open and irrevocable for such 15-day period.
(c) To accept an Offer, in whole or in part, an Investor must
deliver a written notice to the Company prior to the end of the 15-day period of
the Offer, setting forth the portion of the Investor's Basic Amount that the
Investor elects to purchase and, if such Investor shall elect to purchase all of
its Basic Amount, the Undersubscription Amount (if any) that such Investor
elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed
for by all Investors are less than the total Basic Amounts, then each Investor
who has set forth an Undersubscription Amount in its Notice of Acceptance shall
be entitled to purchase, in addition to the Basic Amounts subscribed for, the
Undersubscription Amount it has subscribed for; provided, however, that should
the Undersubscription Amounts subscribed for exceed the difference between the
total Basic Amounts and the Basic Amounts subscribed for (the "Available
Undersubscription Amount"), each Investor that has subscribed for any
Undersubscription Amount shall be entitled to purchase only that portion of the
Available Undersubscription Amount as the Undersubscription Amount subscribed
for by such Investor bears to the total Undersubscription Amounts subscribed for
by all Investors, subject to rounding by the Board of Directors to the extent it
reasonably deems necessary.
(d) In the event that Notices of Acceptance are not given by
Investors in respect of all the Offered Securities, the Company shall have 90
days from the expiration of the 15-day period set forth in Section 8.1(b)
hereof, to issue, sell or exchange all or any part of such Offered Securities as
to which a Notice of Acceptance has not been given by the Investors (the
"Refused Securities"), but only to the offerees or purchasers described in the
Offer and only upon terms and conditions (including, without limitation, unit
prices and interest rates) which are not more favorable, in the aggregate, to
the acquiring person or persons or less favorable to the Company than those set
forth in the Offer.
(e) In the event the Company shall propose to sell less than all
the Refused Securities, then each Investor may, at its sole option and in its
sole discretion, reduce the number or amount of the Offered Securities specified
in its Notice of Acceptance to an amount that shall be not less than the number
or amount of the Offered Securities that the Investor elected to purchase
pursuant to Section 8.1(c) hereof, multiplied by a fraction (i) the numerator of
which shall be the number or amount of Offered Securities the Company actually
proposes to issue, sell or exchange (including Offered Securities to be issued
or sold to the Investors pursuant to Section 8.1(c)hereof prior to such
reduction) and (ii) the denominator of which shall be the amount of all Offered
Securities. In the event that an Investor so elects to reduce the number or
amount of Offered Securities specified in its Notice of Acceptance, the Company
may not issue, sell or exchange more than the reduced number or amount of the
Offered Securities unless and until such securities have again been offered to
the Investors in accordance with Section 8.1(b) hereof.
(f) Upon the closing of the issuance, sale or exchange of all or
less than all the Refused Securities, the Investors shall acquire from the
Company, and the Company shall
15
issue to the Investors, the number or amount of Offered Securities specified in
the Notices of Acceptance, as reduced pursuant to Section 8.1(e) hereof if the
Investors have so elected, upon the terms and conditions specified in the Offer.
The purchase by an Investor of any Offered Securities is subject in all cases to
the preparation, execution and delivery by the Company and the participating
Investors of a purchase agreement relating to such Offered Securities reasonably
satisfactory in form and substance to such Investors and the Company.
(g) Any Offered Securities not acquired by the Investors or
other persons in accordance with Section 8.1(d) hereof may not be issued, sold
or exchanged until they are again offered to the Investors under the procedures
specified in this Section 8.
8.2 EXCLUDED ISSUANCES. The rights of the Investors under this
Section 8 shall not apply to:
(a) shares of Common Stock issued or issuable by the Company
to the public pursuant to a registration statement filed under the Securities
Act.
(b) shares of Common Stock issued or issuable as a dividend or
distribution on the Shares;
(c) shares of Common Stock issued or issuable by reason of a
dividend, stock split, split-up or other distribution on shares of Common Stock;
(d) shares of Common Stock (or options with respect thereto)
(subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization affecting the Common Stock)
issued or issuable to employees, officers or directors of, or consultants or
advisors to, the Company pursuant to a plan or arrangement approved by the Board
of Directors of the Company;
(e) shares of Common Stock issued or issuable upon conversion
of shares of Series A Convertible Preferred Stock;
(f) shares of Common Stock or Preferred Stock issuable upon
exercise of any options, warrants or rights to purchase any securities of the
Company outstanding as of the date of this Agreement and any securities issuable
upon the conversion thereof;
(g) to financing institutions or lessors in connection with
commercial credit arrangements, equipment financings or similar strategic
transactions approved by the Board of Directors;
(h) in connection with bona fide acquisitions of businesses,
products or technologies;
(i) in connection with strategic partnerships, joint ventures,
licensing arrangements or similar transactions not involving financial
investors, as approved by the Board of Directors; or
16
(j) any shares of Common Stock or Preferred Stock (or options,
or warrants or rights to acquire same), issued or issuable hereafter that are
(i) approved by a majority of the Board of Directors, and (ii) approved by the
vote or written consent of the Investors holding at least 66 2/3% of the shares
of Common Stock issued or issuable upon conversion of the Shares, voting or
consenting as a separate class, as being excluded from the provisions of this
Section 8.
8.3 TERMINATION. This Section 8 shall terminate in its entirety on the
date upon which less than 250,000 shares of Series A Convertible Preferred Stock
remain outstanding (by reason of conversion, redemption or otherwise).
SECTION 9. INFORMATION RIGHTS. The Company agrees to furnish to each Investor
copies of all financial statements, reports, notices, press releases, proxy
statements and other document sent by the Company to its stockholders generally
or released to the public and copies of all regular and periodic reports filed
by the Company with the Commission.
SECTION 10. NOTICES. Any notice required or permitted to be given to a party
under this Agreement shall be made in writing at the address or facsimile number
of the party specified below (or such other address or facsimile number as the
party may specify in a written notice to the other party) and shall be deemed to
have been given, if delivered personally or sent via electronic facsimile
transmission with confirmation received, on the date of delivery or, if sent via
nationally recognized overnight express courier with established tracking
capability marked for delivery on the next business day, on the earlier of the
date of delivery, as demonstrated by the tracking records of the courier, or two
(2) business days after deposit of the notice with the courier:
if to the Company, to:
Inverness Medical Innovations, Inc.
51 Sawyer Road, Suite 200
Waltham, Massachusetts 02453
Facsimile:
Attention: Ron Zwanziger, President
with a copy to:
Foley, Hoag & Eliot, LLP
One Post Office Square
Boston, Massachusetts 02109
Facsimile: (617) 832-7000
Attention: John D. Patterson, Jr., Esq.
if to the Investors, at their addresses as set forth on their respective
signature pages to this Agreement.
SECTION 11. CHANGES. This Agreement may not be modified or amended, and no
provision hereof may be waived, except pursuant to an instrument in writing,
signed by the Company and Investors holding at least 66 2/3% of the total number
of shares of Common Stock issued or issuable upon conversion of the Shares
purchased hereunder.
17
SECTION 12. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
SECTION 13. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, without giving
effect to its principles of conflicts of law. Any dispute arising out of or
relating to this Agreement or the Securities shall be filed and prosecuted in
any court of competent subject matter jurisdiction located in Massachusetts. The
Company and each of the Investors hereby consent to the personal jurisdiction of
such courts over them, stipulate to the convenience, fairness and efficiency of
proceeding in such courts, and covenant not to assert any objection to
proceeding in such courts based on any alleged lack of jurisdiction or any
alleged inconvenience, unfairness or inefficiency of such courts.
SECTION 15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but both of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other party.
SECTION 16. ENTIRE AGREEMENT. This Agreement (including the attachments hereto)
contains the entire agreement of the parties with respect to the subject matter
hereof and supersedes and is in full substitution for any and all prior oral or
written agreements and understandings between them related to such subject
matter, and neither party hereto shall be liable or bound to the other party
hereto in any manner with respect to such subject matter by any representations,
indemnities, covenants or agreements except as specifically set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
J. Alexander Bodkin
--------------------------------------------------
[Name of Investor]
By: /s/ J. Alexander Bodkin
----------------------------------------------
Name:
Title:
Address: 39 Waban Avenue
Newton, MA 02468
Telephone: (617) 855-3186
Facsimile: (617) 855-2936
Date: December 17, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$500,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
------------------------------------------
Ron Zwanziger, PRESIDENT
Date:
-----------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Ernest A. Carabillo, Jr.
----------------------------------------------
[Name of Investor]
By: /s/ Ernest A. Carabillo, Jr.
------------------------------------------
Name:
Title:
Address: 111 Silver Hill Road
Concord, MA 01742
Telephone: (978) 371-0066 (Office)
Facsimile: (978) 371-1676 (Office)
Date: December 5, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$300,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
--------------------------------------
Ron Zwanziger, PRESIDENT
Date:
-------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Martin Carmichael III
------------------------------------------------
[Name of Investor]
By: /s/ Martin Charmichael III
--------------------------------------------
Name:
Title:
Address: c/o Goodwin Procter LLP
Exchange Place - 26th Floor
Boston, MA 02109
Telephone: (617) 570-1166
Facsimile: (617) 570-8150
Date: December 7, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$50,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Stephen W. Carr
-----------------------------------------------
[Name of Investor]
By: /s/ Stephen W. Carr
-------------------------------------------
Name:
Title:
Address: 308 Musterfield Road
Concord, MA 01742
Telephone: (617) 570-1140 (W)
(978) 369-6495 (H)
Facsimile: (617) 523-1231
Date: December 12, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$100,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
--------------------------------------------
Ron Zwanziger, PRESIDENT
Date:
-------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Howard A. Cubell
----------------------------------------------
[Name of Investor]
By: /s/ Howard A. Cubell
------------------------------------------
Name:
Title:
Address: 14 Black Oak Road
Weston, MA 02493
Telephone: (617) 570-1560
Facsimile: (617) 523-1231
Date: December 14, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$25,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
RICHARD GIBBS
----------------------------------------------
[Name of Investor]
By: /s/ Richard Gibbs
------------------------------------------
Name:
Title:
Address: 5 Old Woods Drive
Harrison, NY 10528
Telephone: (914) 670-5758
Facsimile: (914) 670-5758
Date: December 6, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$700,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Thelma N. Gibbs
-------------------------------------------------
[Name of Investor]
By: /s/ Thelma N. Gibbs
---------------------------------------------
Name:
Title:
Address: 23 Phillips Avenue
Swampscott, MA 01907
Telephone: (781) 598-9331
Facsimile: (781) 595-0760
Date: December 15, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$200,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
------------------------------------------
Ron Zwanziger, PRESIDENT
Date:
-----------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Orit Goldstein
--------------------------------------------------
[Name of Investor]
By: /s/ Orit Goldstein
----------------------------------------------
Name:
Title:
Address: 224 Foster Street
N. Andover, MA 01845
Telephone: (978) 685-1993
Facsimile: (978) 685-1291
Date: December 18, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$10,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Duane James
------------------------------------------
Duane James, TREASURER
Date:
-----------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Irwin Heller
--------------------------------------------
[Name of Investor]
By: /s/ Irwin Heller
----------------------------------------
Name:
Title:
Address: 177 Hampshire Road
Wellesley, MA 02481
Telephone: (781) 237-4682
Facsimile: (781) 237-9626
Date: December 13, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$300,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Robert P. Khederian
--------------------------------------------
[Name of Investor]
By: /s/ Robert P. Khederian
----------------------------------------
Name:
Title:
Address: 200 Pond Road
Wellesley, MA 02482
Telephone: (781) 416-1860
Facsimile: (781) 416-4011
Date: December 12, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$3,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
--------------------------------------
Ron Zwanziger, PRESIDENT
Date:
-------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
John D. Patterson, Jr.
----------------------------------------------
[Name of Investor]
By: /s/ John D. Patterson, Jr.
------------------------------------------
Name:
Title:
Address:
--------------------------------
--------------------------------
Telephone:
--------------------------------
Facsimile:
--------------------------------
Date: December 7, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$50,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Jay Pearlstein
--------------------------------------------
[Name of Investor]
By: /s/ Jay Pearlstein
----------------------------------------
Name:
Title:
Address: 21 Arbor Circle
Natick, MA 01760
Telephone: (617) 357-9600 (Work)
(508) 655-0756 (Home)
Facsimile: (617) 350-7195
Date: December 6, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$500,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Leroy Schecter
---------------------------------------------
[Name of Investor]
By: /s/ Leroy Schecter
-----------------------------------------
Name:
Title:
Address: 55 Passaic Avenue
Kearny, NJ 07032
Telephone: (201) 991-1500
Facsimile: (201) 991-0049
Date: December 7, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$5,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Andre A. Schwartz
-----------------------------------------------
[Name of Investor]
By: /s/ Andre A. Schwartz
-------------------------------------------
Name:
Title:
Address: P.O. Box 6635
Ketchum, ID 83340-6635
Telephone: (208) 622-3424
Facsimile: (208) 622-3426
Date: December 6, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$125,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Paul Schwartz
----------------------------------------------
[Name of Investor]
By: /s/ Paul Schwartz
------------------------------------------
Name:
Title:
Address: 205 Highland Avenue
Newton, MA 02465
Telephone: (617) 570-1422 (Office
(617) 244-9491 (Home)
Facsimile: (617) 227-8591 (Office)
Date: December 8, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$200,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Machelle M. Seibel
----------------------------------------------
[Name of Investor]
By: /s/ Machelle M. Seibel
------------------------------------------
Name:
Title:
Address:
-------------------------------
-------------------------------
-------------------------------
Telephone:
-------------------------------
Facsimile:
-------------------------------
Date:
-------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$300,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Arie H. Zwanziger & Miriam Zwanziger
-------------------------------------------------
[Name of Investor]
By: [Illegible]
---------------------------------------------
Name:
Title:
Address:
-------------------------------
-------------------------------
-------------------------------
Telephone:
-------------------------------
Facsimile:
-------------------------------
Date:
-------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$1,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Duane James
---------------------------------------
Duane James, TREASURER
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
CLSP, L.P., CLSP II, L.P., CLSP SBS-1, L.P.,
CLSP SBS-II, L.P. AND CLSP OVERSEAS LTD.
----------------------------------------------
[Name of Investor]
By: /s/ Jeffrey Casdin
------------------------------------------
Name: Jeffrey Casdin
Title: Managing Member of Casdin Capital,
LLC, the G.P. of Cooper Hill Partners,
L.P. and as Managing Member of
Cooper Hill Partners, LLC
Address: 230 Park Avenue, 20th Floor
New York, NY 10069
Telephone: (212) 270-2423
Facsimile: (212) 270-2879
Date: December 12, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$5,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
GS Private Equity Partners 2000, L.P.
By: GS PEP 2000 Advisors, L.L.C., General Partner
By: GSAM Gen. Par., L.L.C., Managing Partner
By: /s/ Jerry Truzzolino
---------------------------------------------
Name: Jerry Truzzolino
Title: Vice President
Address: 32 Old Slip, 21st Floor
New York, NY 10005
Attn: Stephan Culhane
Telephone: (212) 902-7370
Facsimile: (212) 346-2603
Date:
--------------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$2,922,789
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Duane L. James
----------------------------------------
Duane L. James, TREASURER
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
GS Private Equity Partners 2000 Offshore Holdings, L.P.
By: GS PEP 2000 Offshore Holdings Advisors, Inc.,
General Partner
By: /s/ Jerry Truzzolino
---------------------------------------------------
Name: Jerry Truzzolino
Title: Vice President
Address: 32 Old Slip, 21st Floor
New York, NY 10005
Attn: Stephan Culhane
Telephone: (212) 902-7370
Facsimile: (212) 346-2603
Date:
--------------------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$987,575
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Duane L. James
---------------------------------------------
Duane L. James, TREASURER
Date:
--------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
GS Private Equity Partners 2000 -
Direct Investment Fund, L.P.
By: GS PEP 2000 Direct Investment Advisors, L.L.C.,
General Partner
By: /s/ Jerry Truzzolino
-----------------------------------------------
Name: Jerry Truzzolino
Title: Vice President
Address: 32 Old Slip, 21st Floor
New York, NY 10005
Attn: Stephen Culhane
Telephone: (212) 902-7370
Facsimile: (212) 346-2603
Date:
----------------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$1,089,636
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Duane L. James
-----------------------------------------
Duane L. James, TREASURER
Date:
----------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
IMA, LLC, A DELWARE LIMITED LIABILITY COMPANY
---------------------------------------------
[Name of Investor]
By: /s/ Gerald Katcher
-----------------------------------------
Name: Gerald Katcher
Title: Manager
Address: 1399 SW First Avenue
Suite 400
Miami, FL 33130
Telephone: (305) 358-4333
Facsimile: (305) 358-0602
Date: December 12, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$2,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
The Avram J. Goldberg and Carol R. Goldberg
Charitable Remainder Unitrust, Carol R. Goldberg
and Avram J. Goldberg, Trustees
------------------------------------------------
[Name of Investor]
By: /s/ Avram J. Goldberg
--------------------------------------------
Name: Avram J. Goldberg
Title: Trustee
Address: 225 Franklin Street
Suite 2700
Boston, MA 02110
Telephone: (617) 695-1300
Facsimile: (617) 695-2332
Date: December 12, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$250,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
-----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
----------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Sidney R. Rabb Trust f/b/o Carol R. Goldberg,
Carol R. Goldberg & M. Gordon Ehrlich, Trustees
-----------------------------------------------
[Name of Investor]
By: /s/ Carol R. Goldberg
-------------------------------------------
Name: Carol R. Goldberg
Title: Trustee
Address: 225 Franklin Street
Suite 2700
Boston, MA 02110
Telephone: (617) 695-1300
Facsimile: (617) 695-2332
Date: December 12, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$250,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
--------------------------------------------
Ron Zwanziger, PRESIDENT
Date:
-------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Galleon Healthcare Partners, L.P
--------------------------------------------
[Name of Investor]
By: /s/ Raj Rajaratnam
----------------------------------------
Name: Raj Rajaratnam
Title: Managing General Partner
Address: 135 East 57th Street, 16th Floor
New York, NY 10022
Telephone: (212) 829-4048
Facsimile: (212) 371-2891
Date: December 20, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
41,700 $30.00 $1,251,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
-----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
----------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Galleon Healthcare Offshore, Ltd.
--------------------------------------------------
[Name of Investor]
By: /s/ Raj Rajaratnam
----------------------------------------------
Name: Raj Rajaratnam
Title: Director
Address: c/o Galleon Management, L.P.
135 East 57th Street, 16th Floor
New York, NY 10022
Telephone: (212) 829-4048
Facsimile: (212) 371-2891
Date: December 20, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
124,967 $30.00 $3,749,010
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Oxford Bioscience Partners IV, L.P.
------------------------------------------------
[Name of Investor]
By: OBP Management IV L.P., its General Partner
By: /s/ Jonathan Fleming
--------------------------------------------
Name: Jonathan Fleming
Title: General Partner
Address:
-------------------------------
-------------------------------
-------------------------------
Telephone:
-------------------------------
Facsimile:
-------------------------------
Date:
-------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$4,950,340
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------------
Ron Zwanziger, PRESIDENT
Date:
--------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
mRNA Fund II, L.P.
-----------------
[Name of Investor]
By: OBP Management IV, L.P., its General Partner
By: /s/ Jonathan Fleming
-----------------------------------------------
Name: Jonathan Fleming
Title: General Partner
Address:
------------------------------
------------------------------
------------------------------
Telephone:
------------------------------
Facsimile:
------------------------------
Date:
------------------------------
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$49,660
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
----------------------------------------
Ron Zwanziger, PRESIDENT
Date:
---------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below:
Zwanziger Family Ventures, LLC
--------------------------------------------------
[Name of Investor]
By: /s/ Ron Zwanziger
----------------------------------------------
Name: Ron Zwanziger
Title: Manager
Address: 322 Waverly Avenue
Newton, MA 02458
Telephone: (781) 314-4000
Facsimile: (781) 647-3939
Date: December __, 2001
NUMBER OF PRICE PER AGGREGATE
SHARES SHARE IN PRICE IN
TO BE PURCHASED U.S. DOLLARS U.S. DOLLARS
$15,000,000
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Duane James
----------------------------------------
Duane James, TREASURER
Date:
---------------------------------------
EXHIBIT A
[INTENTIONALLY OMITTED]
2
EXHIBIT B
The opinion of the Company's legal counsel shall address the following matters,
as of the applicable closing date:
(i) The Company is validly existing as a corporation in good standing under
the laws of the State of Delaware; the Company has all requisite corporate
power and authority to own, lease, license and operate its assets and
properties and conduct its business as now being conducted and as
described in the Information Documents.
(ii) The certificates evidencing the Shares are in due and proper legal form
and have been duly authorized for issuance by the Company. The Shares,
when issued and sold pursuant to this Agreement, and the shares of Common
Stock issuable upon conversion of the Shares, when issued in accordance
with the terms and conditions of the Company's Certificate of
Incorporation, will be duly and validly issued, fully paid and
nonassessable and, to such counsel's knowledge, none of them will have
been issued in violation of any preemptive or other similar right.
(iii) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares, and the issuance of the
shares of Common Stock issuable upon conversion of the Shares, by the
Company. This Agreement has been duly and validly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
(iv) Based upon the representations, warranties and covenants of the Investors
set forth in Section 5, the offer and sale of the Shares is exempt from
registration under the Securities Act.
(v) This Agreement and the transactions contemplated hereby do not conflict
with, constitute a default under or result in any violation of the
Company's Certificate of Incorporation or By-laws, or applicable laws,
statutes, rules, regulations and orders or decisions of judicial and
administrative bodies by which the Company is bound.
APPENDIX I
INVERNESS MEDICAL INNOVATIONS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the following
information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
-----------------------------------
2. The relationship between the Investor purchasing the Shares and the
Registered Holder listed in response to item 1 above:
-----------------------------------
3. The mailing address of the Registered Holder listed in response to item 1
above:
-----------------------------------
-----------------------------------
-----------------------------------
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
-----------------------------------
2