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EXHIBIT 1
EXECUTION COPY
1,600,000 SHARES
INVERNESS MEDICAL INNOVATIONS, INC.
SHARES OF COMMON STOCK
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
May 21, 2002
SG COWEN SECURITIES CORPORATION
As Representative of the several Underwriters
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. INTRODUCTORY. Inverness Medical Innovations, Inc., a Delaware corporation
(the "COMPANY"), proposes to sell, pursuant to the terms of this Agreement, to
the several underwriters named in SCHEDULE A hereto (the "UNDERWRITERS," or,
each, an "UNDERWRITER"), an aggregate of 1,600,000 shares of Common Stock, $.001
par value (the "COMMON STOCK"), of the Company. The aggregate of 1,600,000
shares so proposed to be sold is hereinafter referred to as the "FIRM STOCK".
The Company also proposes to sell to the Underwriters, upon the terms and
conditions set forth in Section 3 hereof, up to an additional 240,000 shares of
Common Stock (the "OPTIONAL Stock"). The Firm Stock and the Optional Stock are
hereinafter collectively referred to as the "STOCK". SG Cowen Securities
Corporation ("SG COWEN") is acting as representative of the several Underwriters
and in such capacity is hereinafter referred to as the "REPRESENTATIVE." Certain
terms used herein are defined in Section 14 hereof.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company and each of the
Material Subsidiaries (other than IVC Industries, Inc.) represents and warrants
to, and agrees with, the several Underwriters that:
(a) A Registration Statement on Form S-3 (File No. 333-87180) (the
"REGISTRATION STATEMENT") in respect of 5,000,000 shares of Common
Stock, including the Stock, has been filed with the Securities and
Exchange Commission (the "COMMISSION"). The Registration Statement
(excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein), delivered to you for
you and each of the other Underwriters, has been declared effective by
the Commission in such form. Except for documents incorporated by
reference therein and the Preliminary Prospectus (as defined below), no
other document relating to the Registration Statement has been filed
with the Commission since effectiveness. No stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
best of the Company's knowledge, no proceeding for that purpose has
been initiated or threatened by the Commission. Any preliminary
prospectus supplement filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations, is hereinafter called a "PRELIMINARY
PROSPECTUS". The term "REGISTRATION STATEMENT" includes various parts
of the
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Registration Statement, including all exhibits thereto and including
(A) the information contained in the prospectus contained in the
Registration Statement at the time such part of the Registration
Statement became effective (the "BASE PROSPECTUS"), and (B) the
documents incorporated by reference in the Base Prospectus, each as
amended at the time such part of the Registration Statement became
effective. The final prospectus supplement, in the form filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), together with the Base Prospectus, is hereinafter
collectively called the "PROSPECTUS". Any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be. Any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be. No document has been or
will be prepared or distributed in reliance on Rule 434 under the
Securities Act. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission.
(b) The Registration Statement conforms (and the Prospectus and any
amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all material respects
to the requirements of the Securities Act and the rules and regulations
(the "RULES AND REGULATIONS") of the Commission thereunder and do not
and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that the foregoing representations and warranties shall not
apply to information contained in or omitted from the Registration
Statement or the Prospectus or any such amendment or supplement thereto
made in reliance upon, and in conformity with, written information
furnished to the Company through the Representative by or on behalf of
any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference (or deemed to be
incorporated by reference) in the Registration Statement and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and, when read together with the other information included or
incorporated by reference in the Prospectus, none of such documents
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with Commission, as the case
may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and, when read together
with the other information included or incorporated by reference in the
Prospectus, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading.
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(d) The Company and each of its subsidiaries have been duly organized
and are validly existing as corporations or other legal entities in
good standing (or the foreign equivalent thereof, if any) under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing (or the foreign
equivalent thereof, if any) as foreign corporations in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be so qualified and in
good standing or have the power or authority would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business, properties or prospects of the Company and its Subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(e) All the outstanding (issued in the case of Unipath Limited) shares
of capital stock of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and,
except to the extent set forth in the Prospectus, are owned by the
Company directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien, encumbrance, security
interest, restriction upon voting or transfer or any other claim of any
third party.
(f) The Company's authorized capital stock is as set forth in the
Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; all
the outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the Stock
to be issued and sold by the Company to the Underwriters hereunder has
been duly and validly authorized, and, when issued and delivered
against payment therefor by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Common Stock is
listed on the American Stock Exchange and the Company has submitted a
supplemental application for the listing of the Stock on the American
Stock Exchange; the certificates for the Stock are in valid and
sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to subscribe
for the Stock to be issued and sold by the Company to the Underwriters
hereunder; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in
the Company are outstanding.
(g) There is no franchise, contract, lease, instrument or other
document of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto pursuant
to Item 601 of Regulation S-K, which is not described or filed as
required in the Registration Statement or Prospectus or in the
Company's annual report on Form 10-K for the year-ended December 31,
2001, as amended, quarterly report on Form 10-Q for the quarter ended
March 31, 2002 and/or current reports on Form 8-K, each as amended,
which are incorporated by reference therein, and all statements
summarizing any such franchises, contracts, leases, instruments or
other documents or legal matters contained in the Registration
Statements are accurate and complete descriptions thereof in all
material respects.
(h) The minute books of the Company and each of the Material
Subsidiaries have been made available to the Underwriters and counsel
for the Underwriters, and such books (i) contain an accurate summary in
all material respects of all meetings and actions of the directors and
stockholders of the Company and each of the Material Subsidiaries since
the time of its incorporation through the date of the latest meeting
and action, and (ii) accurately in all material respects reflect all
transactions referred to in such minutes.
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(i) The Company and each of the Material Subsidiaries has the full
right, corporate power and authority to enter into this Agreement and
to perform and to discharge its obligations hereunder and this
Agreement has been duly authorized, executed and delivered by the
Company and each of the Material Subsidiaries, and constitutes a valid
and binding obligation of the Company and each of the Material
Subsidiaries enforceable in accordance with its terms.
(j) The Company is not and, after giving effect to the offering and
sale of the Stock and the application of the proceeds thereof as
described in the Prospectus, will not be an "INVESTMENT COMPANY" as
defined in the Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained or
made under the Securities Act or Exchange Act and such as may be
required under the securities or blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Stock by the
Underwriters in the manner contemplated herein and in the Prospectus.
(l) Neither the issue and sale of the Stock nor the consummation of any
other of the transactions contemplated by this Agreement nor the
fulfillment of the terms hereof will conflict with, result in a breach
or violation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to (i) the charter or by-laws (or equivalent documents) of the
Company or any of its subsidiaries, (ii) the terms of any material
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other material agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries
is a party or bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company, any of its
subsidiaries or any of their respective properties which statute, law,
rule, regulation, judgment, order or decree is material to the Company
and the subsidiaries taken as a whole.
(m) Except as described in the Prospectus, no person or entity has the
right to require registration of shares of Common Stock or other
securities of the Company because of the filing or effectiveness of the
Registration Statement or otherwise, except for persons and entities
who have expressly waived such right or who have been given proper
notice and have failed to exercise such right within the time or times
required under the terms and conditions of such right and, except for
those holders of securities which are to be registered for resale on a
certain registration statement on Form S-3 (No. 333-85658) filed on
April 5, 2002 and amended on May 14, 2002, but which has not yet been
declared effective, the Company is not required to file any
registration statement for the registration of any securities of any
person or register any such securities pursuant to any other
registration statement filed by the Company under the Securities Act
for a period of at least 90 days after the Effective Date.
(n) The consolidated historical financial statements and schedules of
the Company included, or incorporated by reference, in the Prospectus
and the Registration Statement present fairly in all material respects
the consolidated financial condition, results of operations and cash
flows of the Company and its consolidated subsidiaries as of the dates
and for the periods indicated, comply as to form with the applicable
accounting requirements of the Securities Act and have been prepared in
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conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein). The selected financial data set forth under the
caption, "Selected Consolidated Financial Data" in the Prospectus and
the Registration Statement fairly present, on the basis stated in the
Prospectus and the Registration Statement, in all material respects the
information included therein.
(o) Except as set forth in the Prospectus, no action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries
or any of their property is pending or, to the knowledge of the
Company, threatened that (i) might reasonably be expected to materially
and adversely affect the performance of this Agreement or the
consummation of the transactions contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business.
(p) Except as described in the Prospectus, the Company and its
subsidiaries own or lease all properties necessary to the conduct of
its operations as presently conducted in all material respects.
(q) Neither the Company nor any of its subsidiaries is in violation or
default of (i) any provision of its charter or bylaws (or equivalent
documents), (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company, its subsidiaries or any
of its properties, as applicable (including, without limitation, those
administered by the Food and Drug Administration of the U.S. Department
of Health and Human Services (the "FDA"), the Federal Trade Commission
(the "FTC") or by any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by
the FDA or FTC), except, with respect to clauses (ii) and (iii), any
violations or defaults which, singularly or in the aggregate, would not
have a Material Adverse Effect.
(r) Arthur Andersen LLP, who have certified certain consolidated
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Securities Act and the Rules and Regulations.
(s) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by
the Company of the Stock.
(t) The Company and each of its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof, except in any case in which the
failure so to file would not have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business,
except as set forth in the Prospectus, and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse
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Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in the Prospectus.
(u) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company's knowledge, is threatened or
imminent, that could have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as
set forth in the Prospectus.
(v) The Company and each of its subsidiaries carry, or are covered by,
insurance issued by insurers of recognized financial responsibility in
such amounts and covering such risks as is customary for companies
engaged in similar businesses in similar industries with products in a
similar stage of development.
(w) Except as set forth in the Prospectus, the Company and each of its
subsidiaries possesses such approvals, licenses, certificates,
certifications, clearances, consents, exemptions, marks (including,
without limitation, ISO9001/EN46001 certifications and the CE mark by
the European Union under the Medical Devices Directive), notifications,
orders, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities (including, without
limitation, the FDA, FTC and any other foreign, federal, state or local
government or regulatory authorities performing functions similar to
those performed by the FDA and the FTC) necessary to conduct its
businesses as described in the Prospectus (collectively, "PERMITS"),
except for such Permits which the failure to obtain would not have a
Material Adverse Effect, and, except as described in the Prospectus, is
in compliance with the terms and conditions of all such Permits, except
where the failure to comply would not reasonably be expected to result
in a Material Adverse Effect; except as set forth in the Prospectus,
all of such Permits held by the Company and each of its subsidiaries
are valid and in full force and effect except where the invalidity of
such Permits or the failure of such Permits to be in full force and
effect would not reasonably be expected to result in a Material Adverse
Effect; except as set forth in the Prospectus, there is no pending or,
to the knowledge of the Company, threatened action, suit, claim or
proceeding which may cause any such Permit to be limited, revoked,
cancelled, suspended, modified or not renewed and the Company has not
received any notice of proceedings relating to the limitation,
revocation, cancellation, suspension, modification or non-renewal of
any such Permit which, singularly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, whether or not arising from transactions in the
ordinary course of business.
(x) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(y) Neither the Company nor, to the Company's knowledge, any of its
officers, directors or affiliates has taken or will take, directly or
indirectly, any action designed or intended to stabilize or manipulate
the price of any security of the Company, or which caused or resulted
in, or which might in the future reasonably be expected to cause or
result in, stabilization or manipulation of the price of any security
of the Company.
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(z) Except as set forth in the Prospectus, the Company and each of its
subsidiaries (i) are in compliance in all material respects with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received and are in
compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business. Except as set forth in
the Prospectus, the Company has not been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(aa) The Company and each of its U.S. subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302
of the United States Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "PLAN" (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees of
the Company and such subsidiaries are eligible to participate and each
such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. Neither the Company nor any of its U.S. subsidiaries
has incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA.
(bb) Except as described in the Prospectus, the Company and its
subsidiaries own, possess, license or have other rights to use all
foreign and domestic patents, patent applications, trade and service
marks, trade and service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, know-how and other
intellectual property that are material to the conduct of the Company's
and its subsidiaries' businesses, taken as a whole, as described in the
Prospectus (collectively, the "INTELLECTUAL PROPERTY"). Except as set
forth in the Prospectus (a) to the Company's knowledge, there are no
rights of third parties to any such Intellectual Property which would
reasonably be expected to have a Material Adverse Effect, and the
Company is unaware of any facts which would form a reasonable basis for
any such claim, (b) to the Company's knowledge, there is no
infringement by third parties of any such Intellectual Property owned
by the Company or its subsidiaries which infringement would reasonably
be expected to have a Material Adverse Effect; (c) there is no pending
or, to the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the Company's rights in or to any such
Intellectual Property which would reasonably be expected to have a
Material Adverse Effect, and the Company is unaware of any facts which
would form a reasonable basis for any such claim, (d) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
such Intellectual Property which would reasonably be expected to have a
Material Adverse Effect, and the Company is unaware of any facts which
would form a reasonable basis for any such claim, and (e) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others that the Company infringes any patent,
trademark, copyright, trade secret or other proprietary rights of
others which would reasonably be expected to have a
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Material Adverse Effect, and the Company is unaware of any facts which
would form a reasonable basis for any such claim.
(cc) In connection with the patent applications filed or caused to be
filed by the Company and each of its subsidiaries with the United
States Patent and Trademark Office and any applicable foreign
equivalent thereof (herein called the "PTO"), (i) to the Company's
knowledge, the Company and each of its subsidiaries has complied with
the PTO's duty of candor and disclosure for each of its patents and
patent applications; (ii) to the Company's knowledge, the Company and
each of its subsidiaries has made no misrepresentation in any such
application or in any application filed with any applicable foreign
patent authorities; (iii) the Company is unaware of any facts material
to a determination of patentability regarding the Company's or any of
its subsidiary's patent applications not called to the attention of the
PTO; (iv) the Company is unaware of any facts not called to the
attention of the PTO which would preclude the grant of a patent for
such applications; and (v) the Company has no knowledge of any facts
which would conflict with the Company's or any subsidiary's ownership
rights to its patent applications and patents; except where any such
failure to comply, misrepresentation (if made), failure to call forth
to the attention of the PTO, or conflicting facts could not reasonably
be expected to have a Material Adverse Effect singly or in the
aggregate.
(dd) The Company has not failed to file with the applicable regulatory
authorities (including, without limitation, the FDA, FTC or any
foreign, federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA or FTC) any
filing, declaration, listing, registration, report or submission, all
such filings, declarations, listings, registrations, reports or
submissions were in compliance with applicable laws when filed and no
deficiencies have been asserted by any applicable regulatory authority
(including, without limitation, the FDA, FTC or any foreign, federal,
state or local governmental or regulatory authority performing
functions similar to those performed by the FDA or FTC) with respect to
any such filings, declarations, listings, registrations, reports or
submissions, except where the failure to so file or where such
non-compliance of any such filings, or where any such deficiency would
not reasonably be expected to result, singularly or in the aggregate,
in a Material Adverse Effect.
(ee) No relationship, direct or indirect, exists between or among the
Company on the one hand and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand which is
required to be described in the Prospectus by the Securities Act or the
Rules and Regulations and which is not therein described.
(ff) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in
the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(gg) The Company is not a party to any contract, agreement or
understanding with any person that would give rise to a valid claim
against the Company or the Underwriters for a brokerage commission,
finder's fee or like payment in connection with the offering and sale
of the Stock.
(hh) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in
the Prospectus, any material loss or interference with its business
from fire, explosion, flood, terrorist act or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in
the Prospectus;
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and since such date, other than as set forth in the Prospectus, there
has not been any material change in the capital stock or long term debt
(other than (i) option grants in the ordinary course of business
consistent with past practice, exercises of outstanding stock options
and warrants, or conversion of outstanding convertible securities and
(ii) an increase in the capital stock of Inverness Medical Switzerland
GmbH from CHF 20,000 to 150,000 in March 2002) of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company or any and
its subsidiaries, taken as a whole, otherwise than as set forth in the
Prospectus.
(ii) Except as described in the Registration Statement, the Company has
not sold or issued any shares of Common Stock during the six-month
period preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities
Act, other than shares issued pursuant to the Employee Stock Option
Plan and the Employee Stock Purchase Plan that have been approved by
the Company's Board of Directors, its compensation committee or any
delegate thereof.
(jj) Except as disclosed in the Prospectus, there are no business
relationships or related-party transactions of the nature required to
be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K
under the Securities Act.
(kk) The Company meets the requirements for use of Form S-3 under the
Securities Act and the Rules and Regulations.
Any certificate signed by any officer of the Company and delivered to
the Representative or counsel for the Underwriters in connection with the
offering of the Stock shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
3. PURCHASE SALE AND DELIVERY OF OFFERED STOCK. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of shares of Firm Stock set forth opposite the name
of such Underwriter in SCHEDULE A hereto.
The purchase price per share to be paid by the Underwriters to the
Company for the Stock will be $21.735 per share (the "PURCHASE PRICE").
The Company will deliver the Firm Stock to the Representative for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representative may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the second full business day preceding the
First Closing Date (as defined below)) against payment of the aggregate Purchase
Price therefore by wire transfer to an account at a bank acceptable to SG Cowen,
payable to the order of the Company all at the offices of SG Cowen. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder. The time and date of the delivery and closing shall be at 10:00 A.M.,
New York time, on May 28, 2002, in accordance with Rule 15c6-1 of the Exchange
Act. The time and date of such payment and delivery are herein referred to as
the "FIRST CLOSING DATE". The First Closing Date and the location of delivery
of, and the form of payment for, the Firm Stock may be varied by agreement
between the Company and SG Cowen.
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The Company shall make the certificates for the Stock available to the
Representative for examination on behalf of the Underwriters in New York, New
York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of shares of Optional
Stock specified in the written notice by SG Cowen described below and the
Underwriters agree, severally and not jointly, to purchase such shares of
Optional Stock. Such shares of Optional Stock shall be purchased from the
Company and shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Stock set forth opposite such
Underwriter's name bears to the total number of shares of Firm Stock (subject to
adjustment by SG Cowen to eliminate fractions). The option granted hereby may be
exercised as to all or any part of the Optional Stock at any time, and from time
to time, not more than thirty (30) days subsequent to the date of this
Agreement. No Optional Stock shall be sold and delivered unless the Firm Stock
previously has been, or simultaneously is, sold and delivered. The right to
purchase the Optional Stock or any portion thereof may be surrendered and
terminated at any time upon notice by SG Cowen to the Company.
The option granted hereby may be exercised by written notice being
given to the Company by SG Cowen setting forth the number of shares of the
Optional Stock to be purchased by the Underwriters and the date and time for
delivery of and payment for the Optional Stock. Each date and time for delivery
of and payment for the Optional Stock (which may be the First Closing Date, but
not earlier) is herein called the "OPTION CLOSING DATE" and shall in no event be
earlier than two (2) business days nor later than five (5) business days after
written notice is given. (The Option Closing Date and the First Closing Date are
herein called the "CLOSING DATES".)
The Company will deliver the Optional Stock to the Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Representative may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York time, on the second full business day preceding
the Option Closing Date) against payment of the aggregate Purchase Price
therefor in federal (same day) funds by certified or official bank check or
checks or wire transfer to an account at a bank acceptable to SG Cowen payable
to the order of the Company all at the offices of SG Cowen. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The
Company shall make the certificates for the Optional Stock available to the
Representative for examination on behalf of the Underwriters in New York, New
York not later than 10:00 A.M., New York Time, on the business day preceding the
Option Closing Date. The Option Closing Date and the location of delivery of,
and the form of payment for, the Optional Stock may be varied by agreement
between the Company and SG Cowen.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Prospectus in a form approved by the
Representative and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the second business day following the
execution and delivery of this Agreement; make no further amendment or
any supplement to the Registration
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Statement or to the Prospectus prior to the Option Closing Date to
which the Representative shall reasonably object by notice to the
Company after a reasonable period to review; advise the Representative,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish the Representative with copies thereof;
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Stock; advise the Representative, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, use
promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the
date of the final prospectus supplement when a prospectus relating to
the Stock is required to be delivered any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at
any time to amend the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus to comply with the
Securities Act or the Exchange Act, the Company will promptly notify
the Representative thereof and upon their request will prepare an
amended or supplemented Prospectus or make an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act which will correct
such statement or omission or effect such compliance. The Company will
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representative may from time to time
reasonably request of such amended or supplemented Prospectus; and in
case any Underwriter is required to deliver a prospectus relating to
the Stock nine months or more after the date of the final prospectus
supplement, the Company upon the request of the Representative and at
the expense of such Underwriter will prepare promptly an amended or
supplemented Prospectus as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will furnish promptly to the Representative and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(d) The Company will deliver promptly to the Representative in New York
City such number of the following documents as the Representative shall
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits), (ii) each Preliminary Prospectus, (iii)
the Prospectus (not later than 10:00 A.M., New York time, of the
business day following the execution and delivery of this Agreement)
and any amended or supplemented Prospectus (not later than 10:00 A.M.,
New York City time, on the business day following the date of such
amendment or
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supplement), and (iv) any document incorporated by reference in the
Prospectus (excluding exhibits thereto).
(e) The Company will make generally available to its stockholders as
soon as practicable, but in any event not later than eighteen months
after the date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as
the Representative may reasonably request to qualify the Stock for
offering and sale under the securities or blue sky laws of such
jurisdictions as the Representative may designate and to continue such
qualifications in effect for so long as required for the distribution
of the Stock; PROVIDED that the Company and its subsidiaries shall not
be obligated to qualify as foreign corporations in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any jurisdiction.
(g) During the period of five years from the date hereof, the Company
will deliver to the Representative and, upon request, to each of the
other Underwriters, (i) as soon as they are available, copies of all
reports or other communications furnished to stockholders and (ii) as
soon as they are available, copies of any reports and financial
statements furnished or filed by the Company with the Commission
pursuant to the Exchange Act or any national securities exchange or
automatic quotation system on which the Stock is listed or quoted, in
each case other than such documents as are available on the internet
(E.G., at www.sec.gov).
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares
of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock for a period of 90 days from the date of
the Prospectus without the prior written consent of SG Cowen other than
(i) the Company's sale of the Stock hereunder, (ii) the issuance of
shares pursuant to, or upon exercise of options received pursuant to
stock option and employee stock purchase plans described in the
Registration Statement, (iii) the issuance of shares under currently
outstanding options, warrants or rights, (iv) the issuance of shares
upon conversion of currently issued and outstanding convertible
securities described in the Registration Statement, (v) the issuance of
up to 500,000 shares in connection with the acquisition (by merger or
otherwise) of a business, product line or technology or the entering
into of a strategic alliance by the Company and/or its subsidiaries,
provided, that, in connection with any issuance contemplated by Section
4(h)(v) of this Agreement, the recipients of such shares agree that all
such shares remain subject to restrictions substantially similar to
those contained in this Section 4(h) through the ninetieth day after
the date of the Prospectus. The Company will cause each officer and
director listed in SCHEDULE B to furnish to the Representative, prior
to the First Closing Date, a letter, substantially in the form of
EXHIBIT I hereto, pursuant to which each such person shall agree to the
matters set forth therein.
(i) The Company will supply the Representative with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to each of the Closing Dates, the Company will furnish to the
Representative, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for
any quarterly periods
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subsequent to the quarterly periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial
or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary
course of business and consistent with the past practices of the
Company and of which the Representative is notified), without the prior
written consent of the Representative, unless in the judgment of the
Company and its counsel, and after notification to the Representative,
such press release or communication is required by law.
(l) In connection with the offering of the Stock, until SG Cowen shall
have notified the Company of the completion of the resale of the Stock,
the Company will not, and will use its best efforts to cause its
affiliated purchasers (as defined in Regulation M under the Exchange
Act) not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Stock, or attempt to induce
any person to purchase any Stock, except in compliance with Regulation
M; and not to, and to cause its affiliated purchasers not to, make bids
or purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Stock.
(m) The Company will not take any action prior to the Option Closing
Date which would require the Prospectus to be amended or supplemented
pursuant to Section 4(b).
(n) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus under the heading "Use of Proceeds".
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Stock and any taxes payable in that connection; (b) the costs incident to
the Registration of the Stock under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of the Registration Statement,
Preliminary Prospectus, Prospectus and any amendments and exhibits thereto or
any document incorporated by reference therein, the costs of printing,
reproducing and distributing the "Agreement Among Underwriters" between the
Representative and the Underwriters, the Master Selected Dealers' Agreement, the
Underwriters' Questionnaire and this Agreement by mail, telex or other means of
communication; (d) the fees and expenses (including related fees and expenses of
counsel for the Underwriters) incurred in connection with filings made with the
National Association of Securities Dealers; (e) any applicable listing or other
fees; (f) the fees and expenses of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 4(f) and of preparing,
printing and distributing Blue Sky Memoranda and Legal Investment Surveys
(including related fees and expenses of counsel to the Underwriters); (g) all
fees and expenses of the registrar and transfer agent of the Stock; and (h) all
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement (including, without limitation, the fees and
expenses of the Company's counsel and the Company's independent accountants);
PROVIDED that, except as otherwise provided in this Section 5 and in Section 10,
the Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase the Firm Stock and the Optional Stock, as the case may
be, are subject to the accuracy, when made and on each of the Closing Dates, of
the representations
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and warranties on the part of the Company contained herein, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statements shall have been issued and no proceedings for that purpose
shall have been instituted or threatened by the Commission.
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Stock,
the Registration Statement and the Prospectus and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) The Company shall have requested and caused Goodwin Procter LLP,
counsel for the Company, to have furnished to the Representative their
opinion, dated the Closing Date and addressed to the Representative, to
the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, is duly qualified to do
business and is in good standing as a foreign corporation in
the Commonwealth of Massachusetts, and has the corporate power
and authority to own or hold its properties and to conduct its
business as described in the Prospectus, except where the
failure to have such power or authority would not have,
singularly or in the aggregate, a Material Adverse Effect.
(ii) the Company's authorized Capital Stock is as set
forth in the Prospectus under the caption "Capitalization";
the capital stock of the Company conforms in all material
respects to the description thereof contained in the
Prospectus; the Stock has been duly and validly authorized,
and, when issued and delivered against payment therefor by the
Underwriters pursuant to this Agreement, will be fully paid
and nonassessable; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Stock under the charter or
the bylaws of the Company or any Material Agreement.
(iii) the Registration Statement has become effective
under the Securities Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the
knowledge of such counsel (based solely on an oral
representation of a member of the Commission's staff obtained
on May 28, 2002), no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened by the Commission;
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(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Company is not and, after giving effect to
the offering and sale of the Stock and the application of the
proceeds thereof as described in the Prospectus, will not be,
an "investment company" as defined in the Investment Company
Act of 1940, as amended;
(vi) to the knowledge of such counsel, no consent,
approval, authorization, filing with or order of any federal
or Massachusetts court or governmental agency or body is
required to be obtained by the Company in connection with the
issuance and sale of the Stock by the Company pursuant to the
Underwriting Agreement, except such as have been obtained
under the Securities Act and the Rules and Regulations and
such as may be required under the Exchange Act or the
securities or blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Stock by the
Underwriters in the manner contemplated by this Agreement and
in the Prospectus and such other approvals (specified in such
opinion) as have been obtained;
(vii) neither the issue and sale of the Stock, nor
the execution, delivery and performance of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or
violation of, or the imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to (a) the charter or bylaws of the Company, (b) the
terms of any Material Agreement, (c) the Delaware General
Corporation Law or any other applicable federal or
Massachusetts statute, law, rule, regulation, judgment, order
or decree known by such counsel to be applicable to the
Company (other than federal or state securities laws, which
are specifically addressed elsewhere herein), other than any
such breach or violation that would not reasonably be expected
to, singularly or in the aggregate, have a Material Adverse
Effect;
(viii) to the knowledge of such counsel after
reasonable inquiry, no holders of securities of the Company
have rights to the registration of such securities under the
Registration Statement, except for such holders who have
expressly waived such rights;
(ix) The statements in the Prospectus under the
heading "Description of Capital Stock", to the extent that
they constitute summaries of matters of law or regulation or
legal conclusions, have been reviewed by such counsel and
accurately summarize the matters described therein in all
material respects;
(x) The Registration Statement, as of its effective
date, and the Prospectus, as of its date, and any further
amendments or supplements thereto, as of their respective
dates, made by the Company prior to the Closing Date (other
than the financial statements, notes thereto, schedules and
other financial or statistical data included or incorporated
by reference therein or omitted therefrom, as to which such
counsel need express no opinion) complied as to form in all
material respects with the requirements of the Securities Act
and the Rules and Regulations, and the documents incorporated
by reference in the Prospectus and any further amendment to
any such incorporated document made by the Company prior to
the Closing Date (other than the financial statements, notes
thereto, schedules and other
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financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such
counsel need express no opinion), when they were filed with
the Commission complied as to form in all material respects
with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder; it being understood that, in passing
upon compliance as to the form of the Registration Statement
and the Prospectus, such counsel may assume that the
statements made and incorporated by reference therein are
correct and complete.
Such opinion shall also include a statement to the effect that:
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
under the Securities Act are such that such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, and such
counsel makes no representation that such counsel has independently verified the
accuracy, completeness or fairness of such statements. Without limiting the
foregoing, such counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the financial statements or
notes thereto, financial schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement and the
Prospectus, and such counsel has not examined the accounting, financial or
statistical records from which such statements and notes, schedules and data are
derived. However, in the course of such counsel's acting as counsel to the
Company in connection with the public offering of the Stock, such counsel
participated in conferences with officers and representatives of the Company,
the independent accountants of the Company, counsel to the Company,
representatives of the Underwriters and counsel to the Underwriters during which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed.
Based on such counsel's participation in the above-mentioned
conferences, such counsel's review of the documents described in such opinion,
such counsel's understanding of applicable law and the experience such counsel
has gained in its practice thereunder, such counsel advises the Representative
that no facts have come to its attention which causes it to believe that (i) the
Registration Statement (except for financial statements and notes thereto,
schedules and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel makes no
statement), as of the time it became effective under the Securities Act,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) the Prospectus (except for financial statements and
notes thereto, schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such counsel
makes no statement), as of its date, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) General Counsel of the Company shall have furnished to the
Representative such counsel's written opinion, addressed to the
Representative and dated the Closing Date, to the effect that, to his
knowledge:
(i) there is no pending or threatened legal action,
suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the
Company or any of the Material Subsidiaries or its or their
property of a character required to be disclosed in the
Registration Statement or Prospectus which is not disclosed in
the Prospectus
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or would prevent or adversely affect the ability of the
Company to perform its obligations under this Agreement; and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit to the
Registration Statement or incorporated by reference therein,
which is not described or filed or incorporated by reference
as required;
(f) Foley Hoag & Eliot LLP shall have furnished to the
Representative such counsel's written opinion with respect to the
Company's U.S. Material Subsidiaries, as counsel to the Company,
addressed to the Representative and dated the Closing Date,
substantially in form and substance as previously agreed between Foley
Hoag LLP and Brown Raysman Millstein Felder & Steiner LLP, counsel to
the Underwriters ("BROWN RAYSMAN").
(g) Allen & Overy shall have furnished to the Representative
such counsel's written opinion, as counsel to Unipath Limited,
addressed to the Representative and dated the Closing Date,
substantially in form and substance as previously agreed between Allen
& Overy and Brown Raysman.
(h) Mason Hayes & Curran shall have furnished to the
Representative such counsel's written opinion, as counsel to Cambridge
Diagnostic Ireland Limited, addressed to the Representative and dated
the Closing Date, substantially in form and substance as previously
agreed between Mason Hayes & Curran and Brown Raysman.
(i) Lanter, Trachsler, Roth and Partners shall have furnished
to the Representative such counsel's written opinion, as counsel
Inverness Medical Switzerland GmbH, addressed to the Representative and
dated the Closing Date, substantially in form and substance as
previously agreed between Lanter, Trachsler, Roth and Partners and
Brown.
(j) Oppedahl & Larson LLP shall have furnished to the
Representative such counsel's written opinion, as United States patent
counsel to the Company, addressed to the Representative and dated the
Closing Date, substantially in form and substance as previously agreed
between Oppedahl & Larson LLP and Brown Raysman.
(k) The Representative shall have received from Brown Raysman,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representative, with respect to the
issuance and sale of the Stock, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(l) The Company shall have furnished to the Representative a
certificate, dated the Closing Date, of its Chairman of the Board,
Chief Executive Officer and President and its Vice President, Finance
and Treasurer stating that such officers have carefully examined the
Registration Statement and the Prospectus and certifying, in their
capacities as officers of the Company, that (i) the Registration
Statement as of its effective date and the Prospectus, as of its date,
did not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, (ii) since the effective date of the Registration
Statement no event has
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occurred which should have been set forth in a supplement or amendment
to the Registration Statements or the Prospectus which was not so set
forth or set forth in a document incorporated by reference therein,
(iii) the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and (iv) subsequent to the
date of the most recent financial statements included or incorporated
by reference in the Prospectus, there has been no material adverse
change in the financial position or results of operation of the Company
and its subsidiaries, taken as a whole, or any material adverse change,
or any development including a prospective material adverse change, in
or affecting the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole, except as set forth in the Prospectus.
(m) At the time of the execution of this Agreement, the
Representative shall have received from Arthur Andersen LLP a letter,
addressed to the Underwriters and dated such date, in form and
substance satisfactory to the Representative (i) confirming that they
are independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the Rules and
Regulations and (ii) stating the conclusions and findings of such firm
with respect to the financial statements and certain financial
information contained or incorporated by reference in the Prospectus.
(n) On the Closing Date, the Representative shall have
received a letter (the "BRING-DOWN LETTER") from Arthur Andersen LLP
addressed to the Underwriters and dated the Closing Date confirming, as
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus as of
a date not more than three business days prior to the date of the
bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by its
letter delivered to the Representative concurrently with the execution
of this Agreement pursuant to Section 6(i).
(o) (i) Neither the Company nor any of its subsidiaries shall
have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference of its business from fire, explosion, flood,
terrorist act or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth in the Prospectus; and (ii) since
such date there shall not have been any change in the capital stock or
long term debt (other than option grants in the ordinary course of
business consistent with past practice, exercises of outstanding stock
options and warrants or conversion of outstanding convertible
securities) of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the
business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company or any of
its subsidiaries, otherwise, in each of subclauses (i) and (ii) than as
set forth in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the
terms and in the manner contemplated by the Prospectus.
(p) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
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(q) The Stock shall have been listed and admitted and
authorized for trading on the American Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representative.
(r) At the Execution Time, the Company shall have furnished to
the Representative a letter addressed to the Representative
substantially in the form of Exhibit I hereto from each officer and
director of the Company identified in Schedule B hereto.
(s) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, the
Nasdaq National Market or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been
suspended or minimum or maximum prices or maximum ranges for prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States
shall have become engaged in hostilities, or the subject of an act of
terrorism, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such), as to make it,
in the judgment of the Representative, impracticable or inadvisable to
proceed with the sale or delivery of the Stock on the terms and in the
manner contemplated by the Prospectus.
(t) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Stock; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Stock.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each Material Subsidiary (other than IVC
Industries, Inc.) shall indemnify and hold harmless each Underwriter,
its officers, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of the Securities
Act (collectively the "UNDERWRITER INDEMNIFIED PARTIES" and each an
"UNDERWRITER INDEMNIFIED PARTY") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or
supplement thereto a material fact required to be stated therein or
19
<Page>
necessary to make the statements therein not misleading and shall
reimburse each Underwriter Indemnified Party promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Company and
each Material Subsidiary shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises
out of or is based upon (i) an untrue statement or alleged untrue
statement in or omission or alleged omission from the Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through the Representative by or
on behalf of any Underwriter specifically for use therein, which
information the parties hereto agree is limited to the Underwriter's
Information (as defined in Section 16); PROVIDED, HOWEVER, that the
foregoing indemnification agreement with respect to the Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such loss, claim, damage or liability
purchased securities, or any officers, employees, representatives,
agents or controlling persons of such Underwriter, if (i) a copy of the
Prospectus (as then amended or supplemented) was required by law to be
delivered to such person at or prior to the written confirmation of the
sale of securities to such person, (ii) a copy of the Prospectus (as
then amended or supplemented), excluding documents incorporated by
reference therein, was not sent or given to such person by or on behalf
of such Underwriter and such failure was not due to non-compliance by
the Company with Section 4(d), and (iii) the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability. This indemnity agreement is not exclusive
and will be in addition to any liability which the Company and each
Material Subsidiary might otherwise have and shall not limit any rights
or remedies which may otherwise be available at law or in equity to
each Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company its officers, employees, representatives and
agents, each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively the
"COMPANY INDEMNIFIED PARTIES" and each a "COMPANY INDEMNIFIED PARTY")
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company Indemnified Parties may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf of
that Underwriter specifically for use therein, and shall reimburse the
Company Indemnified Parties for any legal or other expenses reasonably
incurred by such parties in connection with investigating or preparing
to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED that the parties hereto hereby
agree that such written information provided by the Underwriters
consists solely of the Underwriter's Information. This indemnity
agreement is not exclusive and will be in addition to any liability
which the Underwriters might otherwise have and shall not limit any
rights or remedies which may otherwise be available at law or in equity
to the Company Indemnified Parties.
20
<Page>
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 7 except to the extent it has been materially prejudiced
by such failure; and, PROVIDED, FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that any indemnified party shall have
the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have
been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to
employ separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated
in writing by SG Cowen, if the indemnified parties under this Section 7
consist of any Underwriter Indemnified Party, or by the Company if the
indemnified parties under this Section 7 consist of any Company
Indemnified Parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a) and 7(b) shall use all
reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. Subject to the provisions of
Section 7(d) below, no indemnifying party shall be liable for any
settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for reasonable fees
and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by this Section
7 effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party
of the request for reimbursement, (ii) such indemnifying party shall
have received
21
<Page>
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Material Subsidiaries on the one hand
and the Underwriters on the other from the offering of the Stock 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 also the
relative fault of the Company and the Material Subsidiaries on the one
hand and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Material Subsidiaries on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by
the Company and the Material Subsidiaries bear to the total
underwriting discounts and commissions received by the Underwriters
with respect to the Stock purchased under this Agreement, in each case
as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Material Subsidiaries on
the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission;
PROVIDED that the parties hereto agree that the written information
furnished to the Company through the Representative by or on behalf of
the Underwriters for use in any Preliminary Prospectus, the
Registration Statement or the Prospectus consists solely of the
Underwriter's Information. The Company, the Material Subsidiaries and
the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(e) were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(e) shall be deemed to include, for
purposes of this Section 7(e), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7(e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Stock underwritten by it and distributed to the public were offered to
the public less the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any 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.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting obligations and
not joint.
22
<Page>
8. TERMINATION. The obligations of the Underwriters hereunder may be terminated
by SG Cowen, in its absolute discretion by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 6(o) or 6(s) have occurred
(including the determination by the Representative that in its judgment, the
effect of such event is so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the terms and
in the manner contemplated in the Prospectus) or if the Underwriters shall
decline to purchase the Stock for any reason permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement shall have
been terminated pursuant to Section 8 or (b) the Company shall fail to tender
the Stock for delivery to the Underwriters for any reason permitted under this
Agreement, the Company shall reimburse the Underwriters for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been reasonably incurred by them in connection with this Agreement and the
proposed purchase of the Stock and, upon demand, the Company shall pay the full
amount thereof to SG Cowen. If this Agreement is terminated pursuant to Section
10 by reason of the default of one or more Underwriters, the Company shall not
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representative and the Company for the purchase
of such shares by other persons are not made within forty-eight (48) hours after
such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement or supplements to
the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except expenses to be paid or
reimbursed pursuant to Sections 5 and 9 and except the provisions of Section 7
shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and
23
<Page>
indemnities of the Company contained in this Agreement shall also be for the
benefit of the Underwriter Indemnified Parties, and the indemnities of the
several Underwriters shall also be for the benefit of the Company Indemnified
Parties. It is understood that the Underwriter's responsibility to the Company
is solely contractual in nature and the Underwriters do not owe the Company, or
any other party, any fiduciary duty as a result of this Agreement.
12. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Company or any person controlling any of them and shall
survive delivery of and payment for the Stock.
13. NOTICES. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
facsimile transmission to SG Cowen Securities Corporation, 1221 Avenue
of the Americas, New York, New York 10020, Attention: Jorge Pedreira,
Esq. (Fax: 212-278-7995), with a copy to: Brown Raysman Millstein
Felder & Steiner LLP, 900 Third Avenue, New York, New York 10022,
Attention: Stuart Bressman, Esq. (Fax: 212-895-2900).
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to Inverness Medical Innovations, Inc., 51 Sawyer Road,
Suite 200, Waltham, Massachusetts 02453, Attention: Paul Hempel, Esq.
(Fax: 781-647-3939), with a copy to: Goodwin Procter LLP, Exchange
Place, Boston, Massachusetts 02109, Attention: Scott F. Duggan, Esq.
(Fax: 617-523-1231).
14. DEFINITIONS OF CERTAIN TERMS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday, a legal holiday, a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City
or any day on which the New York Stock Exchange, Inc. is not open for
trading.
"EFFECTIVE DATE" shall mean each date and time that the
Registration Statement and any post-effective amendment or amendments
thereto.
"EXECUTION TIME" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"INTERFERENCE PROCEEDING" shall have the meaning set forth in
35 U.S.C.ss.135.
"MATERIAL AGREEMENTS" shall mean all agreements filed as
exhibits to the Registration Statement, the Company's annual report on
Form 10-K, as amended, for the year ended December 31, 2001 and the
Company's quarterly report on Form 10-Q for the quarter ended March 31,
2002.
"MATERIAL SUBSIDIARIES" shall mean all or any of Inverness
Medical, Inc., Unipath Diagnostics, Inc., Inverness Medical Switzerland
GmbH, IVC Industries, Inc., Unipath Limited and Cambridge Diagnostics
Ireland Limited, as applicable.
"RULE 424" refers to such rule under the Securities Act.
24
<Page>
"SUBSIDIARIES" has the meaning set forth in Rule 405 of the
Rules and Regulations.
"U.S. MATERIAL SUBSIDIARY" shall mean Inverness Medical, Inc.,
Unipath Diagnostics, Inc. and IVC Industries Inc.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the paragraph on the
front cover page concerning the terms of the offering by the Underwriters; and
(ii) the statements concerning the Underwriters contained in the third and tenth
paragraph (relating to stabilization) under the heading "Underwriting".
17. AUTHORITY OF THE REPRESENTATIVE. In connection with this Agreement, you will
act for and on behalf of the several Underwriters, and any action taken under
this Agreement by the Representative, will be binding on all the Underwriters.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respects to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representative.
20. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
21. LIABILITY OF MATERIAL SUBSIDIARIES. In the event that the Underwriters
seek indemnification pursuant to Section 7 of this Agreement or otherwise
seek recourse with respect to any losses, claims, damages, liabilities or
actions under this Agreement, the underwriters hereby agree to use reasonable
efforts to seek such indemnification from or recourse against the Company
prior to seeking any such indemnification from or recourse against the
Material Subsidiaries.
25
<Page>
If the foregoing is in accordance with your understanding of the
agreement between the Company, and the several Underwriters, kindly indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
INVERNESS MEDICAL
INNOVATIONS, INC.
By: /s/ Ron Zwanziger
---------------------------------
Name: Ron Zwanziger
Title: President and CEO
INVERNESS MEDICAL, INC.
By: /s/ Ron Zwanziger
---------------------------------
Name: Ron Zwanziger
Title: Chairman and CEO
UNIPATH DIAGNOSTICS, INC.
By: /s/ Ron Zwanziger
---------------------------------
Name: Ron Zwanziger
Title: President
INVERNESS MEDICAL
SWITZERLAND GmbH
By: /s/ Paul T. Hempel
---------------------------------
Name: Paul T. Hempel
Title: Director
<Page>
UNIPATH LIMITED
By: /s/ Paul T. Hempel
---------------------------------
Name: Paul T. Hempel
Title:
CAMBRIDGE DIAGNOSTICS
IRELAND LIMITED
By: /s/ Ian Mitchell
---------------------------------
Name: Ian Mitchell
Title: Managing Director
Accepted as of
the date first above written:
SG COWEN SECURITIES CORPORATION
Acting on its own behalf
and as Representative of several
Underwriters referred to in the
foregoing Agreement.
By: SG COWEN SECURITIES CORPORATION
By: /s/ William B. Buchanan, Jr.
---------------------------------------
Name: William B. Buchanan, Jr.
Title: Head of Equity Capital Markets
<Page>
SCHEDULE A
<Table>
<Caption>
Number Number of
of Firm Optional
Shares Shares
to be to be
Purchased Purchased
SG Cowen Securities Corporation 1,600,000 240,000
--------- -------
Total 1,600,000 240,000
========= =======
</Table>
<Page>
SCHEDULE B
Paul T. Hempel
Duane L. James
Anthony J. Bernado
Carol R. Goldberg
Doug Shaffer
John F. Levy
Jerry McAleer
Peter Townsend
David Scott
Earnest A. Carabillo, Jr.
Ron Zwanziger
John Yonkin
David Toohey
Robert P. Khederian
Alfred M. Zeien
<Page>
EXHIBIT I
May __, 2002
SG Cowen Securities Corporation
As representative of the
several Underwriters
1221 Avenue of the Americas
New York, New York 10020
Re: Inverness Medical Innovations, Inc. ____ Shares of Common Stock
Dear Sirs:
In order to induce SG Cowen Securities Corporation, as representative
of the several underwriters (the "REPRESENTATIVE"), to enter into a certain
underwriting agreement (the "UNDERWRITING AGREEMENT") with Inverness Medical
Innovations, Inc., a Delaware corporation (the "COMPANY"), with respect to the
public offering of shares of the Company's Common Stock, par value $.001 per
share ("COMMON STOCK"), the undersigned hereby agrees, subject to the
limitations set forth below, that for a period of 90 days following the date of
the final prospectus filed by the Company with the Securities and Exchange
Commission in connection with such public offering, the undersigned will not,
without the prior written consent of the Representative, directly or indirectly,
(i) offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of, any shares of Common Stock (including, without limitation, Common
Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations promulgated under the Securities Act
of 1933, as the same may be amended or supplemented from time to time (such
shares, the "BENEFICIALLY OWNED SHARES")) or securities convertible into or
exercisable or exchangeable into Common Stock, (ii) enter into any swap, hedge
or similar agreement or arrangement that transfers in whole or in part, the
economic risk of ownership of the Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable into Common Stock or (iii)
engage in any short selling of the Common Stock, provided that nothing herein
shall be deemed to prevent the conversion of any securities convertible into, or
the exercise of any options or warrants for, shares of Common Stock.
Notwithstanding the foregoing, if the undersigned is an individual, he
or she may transfer any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock either during his or her lifetime
or on death (i) by gift, will or intestacy or (ii) to his or her immediate
family or to a trust or family limited partnership the beneficiaries or parties,
as the case may be, of which are exclusively the undersigned and/or a member or
members of his or her immediate family PROVIDED, HOWEVER, that prior to any such
transfer, each transferee shall execute an agreement, reasonably satisfactory to
the Representative, pursuant to which each transferee shall agree to receive and
hold such shares of Common Stock, or securities exercisable or convertible into
or exchangeable for Common Stock, subject to the provisions hereof, and there
shall be no further transfer except in accordance with the provisions hereof.
For the purposes of this paragraph, "immediate family" shall mean spouse, lineal
descendant, father, mother, brother or sister of the transferor.
Anything contained herein to the contrary notwithstanding, any person
to whom shares of Common Stock or Beneficially Owned Shares are transferred from
the undersigned shall be bound by the terms of this Agreement.
<Page>
In addition, the undersigned hereby waives, from the date hereof until
the expiration of the 90 day period following the date of the Company's final
Prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of any shares of Common Stock that are registered
in the name of the undersigned or that are Beneficially Owned Shares. In order
to enable enforcement of the covenants made herein, the undersigned hereby
consents to the placing of stop-transfer orders with the transfer agent of the
Common Stock with respect to any shares of Common Stock or Beneficially Owned
Shares.
In the event the closing of the sale of Common Stock by the Company
pursuant to the Underwriting Agreement is not complete by June 10, 2002, then
the restrictions on transfer contained in this letter shall terminate and shall
be of no further force or effect and the undersigned shall have no further
obligations hereunder.
Name:__________________
Signature: _______________
Title
(if applicable):____________
31