(..continued)
<PAGE>
Exhibit 1.1
3,600,000 SHARES
INVERNESS MEDICAL TECHNOLOGY, INC.
COMMON STOCK
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
November __, 2000
ING BARINGS LLC
UBS WARBURG LLC
SG COWEN
GRUNTAL & CO, L.L.C.
As Representatives of the several
Underwriters named in Schedule 1,
C/O ING BARINGS LLC.
55 EAST 52ND ST.
New York, New York 10055
Dear Sirs:
Inverness Medical Technology, Inc., a Delaware corporation
(the "Company") and certain stockholders of the Company named in Schedule 2
hereto (the "Selling Stockholders"), propose to sell to the several
underwriters named in Schedule 1 hereto (the "Underwriters") an aggregate of
3,600,000 shares (the "Firm Shares") of the Company's Common Stock, $.001 par
value per share (the "Common Stock"). Of the 3,600,000 Firm Shares, 3,350,000
are being sold by the Company and 250,000 by the Selling Stockholders. In
addition, the Company and the Selling Stockholders propose to grant to the
Underwriters an option to purchase up to an additional 150,000 and 390,000
shares, respectively of Common Stock on the terms and for the purposes set
forth in Section 3 (the "Option Shares"). The Firm Shares and the Option
Shares, if purchased, are hereinafter collectively called the "Shares." This
is to confirm the agreement concerning the purchase of the Shares from the
Company by the Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-48510)
with respect to the Shares has (i) been prepared by the Company in conformity
with the requirements of the United States Securities Act of 1933, as
<PAGE>
amended (the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. If any
post-effective amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of this Agreement, the
most recent such amendment has been declared effective by the Commission.
Copies of such registration statement and all amendments thereto, including
post-effective amendments, if any, have been delivered by the Company to you
as the representatives (the "Representatives") of the Underwriters. As used
in this Agreement, "Effective Time" means the date and the time as of which
such registration statement, or the most recent post-effective amendment
thereto or any related registration statement filed pursuant to Rule 462(b),
if any, was declared effective by the Commission; "Effective Date" means the
date of the Effective Time; "Preliminary Prospectus" means each prospectus
included in such registration statement or amendments thereof, before it
became effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives pursuant to
Rule 424(a) of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including any
documents incorporated by reference therein at such time and all information
contained in the final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations in accordance with Section 6 hereof and
deemed to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations; if the
Company has filed or files a registration statement under Rule 462(b) of the
Rules and Regulations ("Rule 462(b)") to register additional shares (a "Rule
462(b) Registration Statement"), then the term "Registration Statement" shall
be deemed to include such registration statement; and "Prospectus" means such
final prospectus, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Rules and Regulations. Reference made herein
to any Preliminary Prospectus or to the Prospectus shall be deemed to refer
to and include any 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 the Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document filed under
the United States Securities Exchange Act of 1934 (the "Exchange Act") after
the date of such Preliminary Prospectus or the Prospectus, as the case may
be, and incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus
or the effectiveness of the Registration Statement, and no proceeding for any
such purpose has been initiated or, to the best of the Company's knowledge,
threatened by the Commission.
(b) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) contain an untrue statement of a
2
<PAGE>
material fact or omit to state a 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, where
such documents became or become effective or were or are filed with the
Commission, as the case may be, conformed or will conform in all material
respects to the requirements of the Securities Act or the Exchange Act and
the rules and regulations of the Commission thereunder and do not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; PROVIDED that
the Company makes no representation or warranty as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein. There is no contract or document required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required.
(c) The documents incorporated by reference in 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 none of such documents
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; 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 will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) The Company has no subsidiaries (as defined in Section 17
hereof) other than Selfcare Europe, Ltd., Bvba Selfcare Benelux sprl,
Inverness Europe, GmbH, Cambridge Diagnostics Ireland Limited, Cambridge
Affiliate Corporation, Selfhelp Israel, Ltd., Inverness Medical Limited,
Orgenics Ltd., (and its subsidiaries Orgenics France, S.A.; Orgenics do
Brasil Ltda.; Orgenics Reagentes para Loboratorios Ltda.; Orgenics Columbia;
Orgenics Biosensors Ltd; Orgenics O.S.A.); Orgenics International Holdings
B.V., Selfcare Development Verwaltungsgesellschaft GmbH, Selfcare Development
GmbH & Co. KG., Inverness Medical, Inc., Can-Am Care Corporation, Selfcare
Technology, Inc., Storebrands.net and Selfcare Pty Limited. The Company and
each of its subsidiaries have been duly incorporated and are validly existing
as corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in which their
respective ownership or leasing of property or the conduct of their
respective businesses requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, considered as a
single enterprise (a "Material Adverse Effect"), and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged; none of the subsidiaries (other
than Cambridge Diagnostics Ireland Limited) is a "significant subsidiary", as
such term is defined in Rule 405 of the Rules and Regulations.
3
<PAGE>
(e) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are fully
paid and non-assessable and, except as described in the Prospectus, are owned
directly by the Company, free and clear of all liens, encumbrances, equities
or claims. There are no preemptive rights or other rights to subscribe for or
to purchase, or, upon consummation of the offering to which this Agreement
relates, any restriction upon the voting or transfer of, any shares of
capital stock pursuant to the Company's Articles of Incorporation, By-laws or
other governing documents or any agreement or other instrument to which the
Company is a party or by which it may be bound, except pursuant to the
Company's stock option and employee stock purchase plans described in the
Prospectus.
(f) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable and not be subject to
any preemptive rights; and the Shares will conform to the description thereof
contained in the Prospectus.
(g) The Company has full right, corporate power and authority
to enter into this Agreement and to perform and discharge its obligations
hereunder, and this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and legally binding
agreement of the Company, except as rights to indemnification may be limited
by federal or state securities laws and except for the effect of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting the rights of creditors generally.
(h) The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or its subsidiaries is a party or by which the Company or
its subsidiaries is bound or to which any of the property or assets of the
Company or its subsidiaries is subject [and which, in any such case, is
material to the Company and its subsidiaries (taken as a whole)], nor will
such actions result in any violation of the provisions of the Certificate of
Incorporation or By-laws or other organizational documents of the Company or
its subsidiaries, as amended, or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or its subsidiaries or any of their properties or assets; and except
for the registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable blue sky, state or foreign securities
laws in connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby.
4
<PAGE>
(i) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to include such securities for
registration in a registration statement filed by the Company under the
Securities Act; and the Company is not required to include any such
securities in the securities being registered pursuant to the Registration
Statement, nor is it 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 120 days after the Effective Date.
(j) 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 Amended and Restated 1996 Stock
Option and Grant Plan, the 1994 Incentive and Non-Qualified Stock Option
Plan, the 1992 Stock Plan and the Employee Stock Purchase Plan (collectively,
the "Stock Option and Purchase Plans").
(k) Neither the Company nor any of its subsidiaries have
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 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 or contemplated in the
Prospectus; and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or its subsidiaries or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and results
of operations of the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(m) Arthur Andersen LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and who
have delivered the initial letter referred to in Section 9(h) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(n) The Company and each of its subsidiaries have good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries. All real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries.
5
<PAGE>
(o) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is required by their
respective contractual relations, or as is adequate for the conduct of
their respective businesses and the value of their respective properties
and, to the Company's knowledge, as is customary for companies engaged in
similar businesses in similar industries.
(p) Except as described in the Prospectus, the Company and
its subsidiaries own or possess adequate rights to use all material
patents (or foreign equivalents), patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights and licenses, both in the United States and outside the United
States, necessary for the conduct of their respective businesses as currently
conducted and as contemplated to be conducted in the Prospectus and have no
reason to believe that the conduct of their respective businesses will
conflict in any material respect with, and have not received any notice of
any material claim of conflict with, any such rights of others.
(q) Except as described in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or its subsidiaries
are a party or of which any property or assets of the Company or its
subsidiaries are the subject which, if determined adversely to the Company or
its subsidiaries, could have a Material Adverse Effect, and to the best of
the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(r) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement.
(s) No relationship, direct or indirect, exists between or
among the Company or its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or its
subsidiaries on the other hand, which is required to be described in the
Prospectus but is not so described.
(t) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which could be expected to
have a Material Adverse Effect.
(u) The Company does not maintain any "pension plan" as defined
in the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA").
(v) The Company and its subsidiaries have filed all federal,
state and material local income and franchise tax returns (or the foreign
equivalents thereof) required to be filed through the date hereof or have
requested extensions thereof and have paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or its subsidiaries
which has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or its subsidiaries, could
have) a Material Adverse Effect.
6
<PAGE>
(w) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company has not (i) issued or granted any securities
(except pursuant to the exercise of any options or warrants that are
disclosed in the Prospectus), (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
(x) The Company (i) makes and keeps accurate books and
financial records in all material respects and (ii) maintains internal
accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its financial and corporate
books and records and financial accounts, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(y) Neither the Company nor any of its subsidiaries (i) is in
violation of its Certificate of Incorporation or By-laws or other
organizational documents, as amended, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its
business.
(z) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any unlawful bribe, rebate,
payoff, influence payment, kickback or other payment.
(aa) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or any of its subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
7
<PAGE>
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
singularly or in the aggregate with all such violations and remedial actions,
a Material Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have knowledge,
except for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes, dumpings
and releases, a Material Adverse Effect; and the terms "hazardous wastes",
"toxic wastes", "hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(ab) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of such term under the United
States Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(ac) 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.
(ad) The conditions for use of Form S-3, as forth in the
General Instructions thereto, have been satisfied.
(ae) Neither the Company nor any of its subsidiaries or
affiliates have taken, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the Shares.
(af) The Common Stock is listed on the AMEX, and the Company
meets or exceeds the requirements for maintaining such listing. The
Shares are approved for listing on the AMEX, subject only to official notice
of issuance.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally represents, warrants and agrees
that:
(a) The Selling Stockholder has, and immediately prior to the
First Delivery Date (as defined in Section 5 hereof) the Selling Stockholder
will have, good and valid title to the Shares to be sold by the Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such shares and
payment therefor pursuant hereto, good and valid title to such shares, free
and clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
(b) The Selling Stockholder has placed in custody under a custody
agreement (the "Custody Agreement") and, together with all other similar
agreements executed by the other Selling Stockholders, the "Custody Agreements"
8
<PAGE>
with the Company, as Custodian (the "Custodian"), for delivery under this
Agreement, certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent in the
United States or a member firm of the New York or American Stock Exchanges)
representing the Shares to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney" and, together with
all other similar agreements executed by the other Selling Stockholders, the
"Powers of Attorney") appointing the Custodian and one or more other persons,
as attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and deliver
this Agreement and to take such other action as may be necessary or desirable
to carry out the provisions hereof on behalf of the Selling Stockholder.
(d) The Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement, the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or to which any of the property or
assets of the Selling Stockholder is subject, nor will such actions result in
any violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling Stockholder
or the property or assets of the Selling Stockholder; and, except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Shares by the Underwriters, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Power of Attorney or the
Custody Agreement by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplate hereby.
(e) To the knowledge of the Selling Stockholders the
Registration Statement and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the case may be, 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 an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein.
(f) Without having undertaken to determine independently the
accuracy or completeness of either the representations and warranties of the
Company contained herein or the information contained in the Registration
Statement, the Selling Stockholder has no reason to believe that the
9
<PAGE>
representations and warranties of the Company contained in Section 1 hereof
are not materially true and correct, is familiar with the Registration
Statement and the Prospectus (as amended or supplemented) and has no
knowledge of any material fact, condition or information not disclosed in the
Registration Statement, as of the effective date, or the Prospectus (or any
amendment or supplement thereto), as of the applicable filing date, which has
materially adversely affected or may materially adversely affect the business
of the Company and is not prompted to sell the Shares to be sold by such
Selling Stockholder by any information concerning the Company which is not
set forth in the Registration Statement and the Prospectus.
(g) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
3. PURCHASE OF THE SHARES BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 3,350,000 Firm
Shares and the Selling Stockholders agree to sell an aggregate of 250,000
Firm Shares, as set forth opposite such Selling Stockholder's name in
Schedule 2 hereto, to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of the Firm Shares
appearing opposite that Underwriter's name in Schedule 1. Each Underwriter
shall be obligated to purchase from the Company, and from each Selling
Stockholder, that number of Firm Shares which represents the same proportion
of the number of Firm Shares to be sold by the Company, and by each Selling
Stockholder, as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of Firm Shares to be
purchased by all of the Underwriters pursuant to this Agreement. The
respective purchase obligations of the Underwriters with respect to the Firm
Shares shall be rounded among the Underwriters to avoid fractional shares, as
the Representatives may determine.
In addition, the Company hereby grants to the Underwriters
an option to purchase up to 150,000 Option Shares and the Selling
Stockholders hereby grant to the Underwriters an option to purchase up to an
aggregate of 390,000 Option Shares, as set forth opposite such Selling
Stockholder's name in Schedule 2 attached hereto. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Shares
and is exercisable as provided in Section 5 hereof. Option Shares shall be
purchased severally for the account of the Underwriters in proportion to the
number of Firm Shares set forth opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option Shares shall be adjusted by the Representatives so
that no Underwriter shall be obligated to purchase Option Shares other than
in 100 share quantities.
The price of both the Firm Shares and any Option Shares shall be
$____ per share.
The Company shall not be obligated to deliver any of the
Shares to be delivered on the First Delivery Date or the Second Delivery Date
(as hereinafter defined), as the case may be, except upon payment for all of
the Shares to be purchased on such Delivery Date as provided herein.
10
<PAGE>
4. OFFERING OF SHARES BY THE UNDERWRITERS.
Upon authorization by the Representatives of the release
of the Firm Shares, the several Underwriters propose to offer the Firm
Shares for sale upon the terms and conditions set forth in the Prospectus.
5. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and payment
for the Firm Shares shall be made at the offices of ING Barings LLC, 55 East
52nd St., New York, New York 10285, at 10:00 A.M., New York time, on the
third full business day following the date of this Agreement (or on the
fourth full business day if the pricing of the Firm Shares should take place
after 4:30 p.m., New York time) or at such other date or place as shall be
determined by agreement between the Representatives and the Company. This
date and time are sometimes referred to as the "First Delivery Date." On the
First Delivery Date, the Company and the Selling Stockholders shall deliver
or cause to be delivered certificates representing the Firm Shares to the
Representatives for the account of each Underwriter against payment to or
upon the order of the Company and the Selling Stockholders of the purchase
price by certified or official bank check or checks payable in New York
Clearing House (next-day) funds. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Firm Shares shall be registered in such names and in such denominations as
the Representatives shall request in writing not less than two full business
days prior to the First Delivery Date. For the purpose of expediting the
checking and packaging of the certificates for the Firm Shares, the Company
and the Selling Stockholders shall make the certificates representing the
Firm Shares available for inspection by the Representatives in New York, New
York, not later than 2:00 p.m., New York City time, on the business day prior
to the First Delivery Date.
At any time on or before the thirtieth day after the date
of this Agreement, the option granted in Section 3 may be exercised by
written notice being given to the Company by the Representatives. Such notice
shall set forth the aggregate number of Option Shares as to which the option
is being exercised, the names in which the Option Shares are to be
registered, the denominations in which the Option Shares are to be issued and
the date and time, as determined by the Representatives, when the Option
Shares are to be delivered; PROVIDED, HOWEVER, that this date and time shall
not be earlier than the First Delivery Date nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the fifth business day after the date on which the option shall
have been exercised. The date and time the Option Shares are delivered are
sometimes referred to as the "Second Delivery Date" and the First Delivery
Date and the Second Delivery Date are sometimes each referred to as a
"Delivery Date".
Delivery of and payment for the Option Shares shall be made
at the place specified in the first sentence of the first paragraph of this
Section 5 (or at such other place as shall be determined by agreement between
the Representatives and the Company) at 10:00 a.m., New York City time, on
the Second Delivery Date. On the Second Delivery Date, the Company and the
Selling Stockholders shall deliver or cause to be delivered the certificates
representing the Option Shares to the Representatives for the account of each
Underwriter against payment to or upon the order of the Company of the
11
<PAGE>
purchase price by certified or official bank check or checks payable in New
York Clearing House (next-day) funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Option Shares shall be registered in such names and in such
denominations as the Representatives shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Shares, the Company and the Selling Stockholders
shall make the certificates representing the Option Shares available for
inspection by the Representatives in New York, New York, not later than 2:00
p.m., New York City time, on the business day prior to the Second Delivery
Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company hereby covenants
and agrees:
(a) To prepare the Prospectus in the form required by the
Securities Act and reasonably acceptable to the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under the Securities
Act; to make no further amendment or any supplement to the Registration
Statement or to the Prospectus prior to the last delivery date except as
permitted herein, to advise the Representatives, 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 Representatives with
copies thereof; to 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 offers or sale of the Shares,
to file, if the Company elects to rely upon Rule 462(b), a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) and
to pay the applicable fees in accordance with Rules 111 and 3(a) of the Rules
and Regulations by the earlier of (i) 10.00 p.m., New York time on the date
of this Agreement or (ii) the time confirmations are sent or given, as
specified by Rule 462(b); to advise the Representatives, 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
Shares 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, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives 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;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed with
12
<PAGE>
the Commission and each amendment thereto; and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus; and,
if the delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the Shares or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus in order to comply with the Securities
Act, to notify the Representatives and, upon their request, to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request
of an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Representatives,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement, Rule 462(b) Registration Statement or supplement to
the Prospectus, any document incorporated by reference in the Prospectus, or
any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish
a copy thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing, which consent shall
not be unreasonably withheld;
(f) As soon as practicable after the Effective Date
(provided that the Company shall have until at least 45 days after the
end of the fiscal quarter in which the first anniversary of the Effective
Date occurs), to make generally available to the Company's shareholders and
to deliver to the Representatives in accordance with Rule 158 of the Rules
and Regulations 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 and covering a period of at least twelve
consecutive months beginning after the Effective Date;
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder, except for any portion of such report furnished to such exchange
or to the Commission for which Confidential Treatment has been requested;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Shares; PROVIDED that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
13
<PAGE>
(i) For a period of ninety (90) days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock (other than the
Shares, shares issued pursuant to the Stock Option and Purchase Plans, shares
issued in connection with the acquisition of Integ, Inc. and shares issued in
connection with the acquisition of a business or businesses by the Company,
provided that the total number of shares, including securities convertible
into shares, shall not exceed 50% of the actual number of shares of Common
Stock outstanding on the date hereof), or sell or grant options, rights or
warrants with respect to any shares of Common Stock (other than the grant of
options pursuant to the Stock Option and Purchase Plans), without the prior
written consent of ING Barings LLC; and to cause each officer, director and
certain shareholders of the Company, to furnish to the Representatives, prior
to the First Delivery Date, a letter or letters, in form and substance
satisfactory to counsel for the Underwriters, pursuant to which each such
person shall agree not to, directly or indirectly, offer for sale, sell or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock or other securities
of the Company for a period of 90 days from the date of the Prospectus,
without the prior written consent of ING Barings LLC;
(j) Prior to the Effective Date, to apply for the listing of the
Shares on the American Stock Exchange and to complete such listing as of the
date hereof;
(k) To apply the net proceeds from the sale of the Shares being
sold by the Company as set forth in the Prospectus;
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any of its subsidiaries shall become an "investment
company" within the meaning of such term under the United States Investment
Company Act of 1940 and the rules and regulations of the Commission
thereunder.
7. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees:
(a) Not to, directly or indirectly, without the prior written
consent of ING Barings LLC, acting singly, or the Underwriters, acting
jointly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose
of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (other than the Shares), or (ii)
enter into any swap or other arrangements that transfers to another, in whole
or in part, any of the economic consequences of ownership of Common Stock,
whether any such transaction described in clauses in (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in such
other securities, in cash or otherwise, for a period of 90 days following the
date of the Prospectus.
14
<PAGE>
(b) That the Shares to be sold by the Selling Stockholder
hereunder, which is represented by the certificates held in custody for
the Selling Stockholder, is subject to the interest of the Underwriters and
the other Selling Stockholders thereunder, that the arrangements made by the
Selling Stockholder for such custody are to that extent irrevocable, and that
the obligations of the Selling Stockholder hereunder shall not be terminated
by any act of the Selling Stockholder, by operation of law, by the death or
incapacity of any individual Selling Stockholder or, in the case of a trust,
by the death or incapacity of any executor or trustee or the termination of
such trust, or the occurrence of any other event.
(c) To deliver to the Representatives prior to the First
Delivery Date a properly completed and executed United States Treasury
Department Form W-8 (if the Selling Stockholder is a non-United States
person) or Form W-9 (if the Selling Stockholder is a United States person.)
8. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Shares and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided
in this Agreement; (d) the costs of producing and distributing this
Agreement, the Agreement Among Underwriters and any other related documents
in connection with the offering, purchase, sale and delivery of the Shares;
(e) the costs of delivering and distributing the Custody Agreement and the
Power of Attorney (f) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms
of sale of the Shares; (g) any applicable American Stock Exchange listing or
other fees; (h) the fees and expenses of qualifying the Shares under the
securities laws of the several jurisdictions as provided in Section 6(h) and
of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters related thereto);
the Underwriters to employees and persons having business relationships with
the Company and its subsidiaries, as described in Section 4; and (i) all
other costs and expenses incident to the performance of the obligations of
the Company and the Selling Stockholders under this Agreement; PROVIDED that,
except as provided in this Section 8 and in Section 13, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Shares which they may sell and the
expenses of advertising any offering of the Shares made by the Underwriters.
9. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company and the Selling Stockholders, contained herein, to the performance by
the Company and the Selling Stockholders of their respective obligations
hereunder, and to each of the following additional terms and conditions:
15
<PAGE>
(a) The Prospectus shall have been filed in a timely manner
with the Commission in accordance with Section 6(a); the Registration
Statement and all post-effective amendments thereto shall have become
effective, all filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made, and no such filings shall have been made
without the consent of the Representatives, which consent shall not have been
unreasonably withheld; if the Company has elected to rely on Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective not later than
the earlier of (i) 10:00 p.m., New York Time on the date of this Agreement or
(ii) the time confirmations are sent or given as specified in Rule 462(b); no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been disclosed to you and
complied with to your satisfaction.
(b) No Underwriter shall have been advised by the Company or
shall have discovered and disclosed to the Company on or prior to such
Delivery Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of fact which,
in your opinion or in the opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., counsel for the Underwriters, is material or omits to state a
fact which, in your opinion or 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 this Agreement, the
Shares, 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 and Selling Stockholders shall have furnished
to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) On each Delivery Date, there shall have been furnished to
you the written opinion of Goodwin, Procter & Hoar LLP, counsel to the
Company, addressed to the Underwriters and dated such Delivery Date, in form
and substance reasonably satisfactory to the Representatives and their
counsel, 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 qualified to do
business and is in good standing as a foreign corporation in
The Commonwealth of Massachusetts and has all corporate power
and authority necessary to own or hold its properties and
conduct the businesses in which it is engaged;
(ii) The Company has the authorized capital
stock as set forth in the Prospectus under the caption
"Capitalization." The Shares, including the Shares being sold
by the Selling Stockholders, have been, upon issuance and
delivery and payment therefore in the manner provided for
16
<PAGE>
herein, will be, duly and validly authorized and issued, fully
paid and non-assessable and conform in all material respects
to the description thereof contained in the Prospectus under
the caption "Capitalization"; and, except as described in the
Prospectus, all of the outstanding shares of capital stock of
the subsidiaries of the Company which have material assets or
business operations are owned directly by the Company, free
and clear of all liens, encumbrances, equities or claims,
other than one share in each of Cambridge Diagnostics Ireland
Ltd. and Inverness Medical Limited held by officers of the
Company, and 1,000,000 shares of 6% Cumulative Redeemable
Preference Shares in Inverness Medical Limited held by
Inverness & Nairn Local Enterprise Company and there are no
statutory preemptive or similar rights to subscribe for or
to purchase, nor, upon consummation of the offering to which
this Agreement relates, any restriction upon the voting or
transfer of, any of the Shares pursuant to the Company's
Certificate of Incorporation or By-laws, as amended, or any
agreement or other instrument known to such counsel;
(iii) To such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
assets of the Company or its subsidiaries is the subject
which, if determined adversely to the Company or its
subsidiaries, would be reasonably likely to have a Material
Adverse Effect; and, to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) The Registration Statement and all post
effective amendments thereto filed on or prior to the date
hereof, if any, have been declared effective (or in the case
of any Rule 462(b) Registration Statement, has become
effective) under the Securities Act, the Prospectus has been
filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion
on the date specified therein;
(v) The Registration Statement and the
Prospectus and each amendment or supplement thereto made by
the Company (other than the financial statements and related
schedules included therein or incorporated by reference
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Rules and
Regulations of the Commission thereunder and the documents
incorporated by reference in the Prospectus and any further
amendment or supplement to any such incorporated document made
by the Company prior to such Delivery Date (other than the
financial statements and related schedules included therein or
incorporated by reference therein, as to which such counsel
need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the Commission
thereunder;
(vi) The statements made in the Prospectus
under the heading "Business -- Strategic Transactions" and in
the Registration Statement insofar as such statements are, or
refer to statements of law or legal conclusions, are true and
correct in all material respects;
17
<PAGE>
(vii) To such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described or filed as
exhibits to the Registration Statement or incorporated therein
by reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly
authorized, executed and delivered by the Company;
(ix) The issue and sale of the Shares being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions
contemplated hereby will not to such counsel's knowledge
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or By-laws or
other organizational documents of the Company or, to such
counsel's knowledge, any of its subsidiaries, as in effect on
the date hereof, or to such counsel's knowledge any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; and,
except for the registration of the Shares under the Securities
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required and have
been obtained under the Exchange Act and applicable blue sky,
state or foreign securities laws in connection with the
purchase and distribution of the Shares by the Underwriters,
no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement by the Company and the consummation of the
transactions contemplated hereby;
(x) Except as described in the Prospectus,
to such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right to require the Company
to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned
by such person or to include such securities for registration
in a registration statement filed by the Company under the
Securities Act; and the Company is not required to include any
such securities in the securities being registered pursuant to
the Registration Statement, nor is it 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 90 days after the Effective
Date; and
18
<PAGE>
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the United
States of America, the laws of The Commonwealth of Massachusetts and the
General Corporation Law of the State of Delaware. Such counsel shall also
have furnished to the Representatives a written statement, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that (x) such counsel has
acted as counsel to the Company on a regular basis in connection with
securities laws matters and certain other matters, including the preparation
of the Registration Statement and (y) based on the foregoing, no facts have
come to the attention of such counsel which lead them to believe that (I) the
Registration Statement, as of the Effective Date, or any amendment thereto,
contains or contained any untrue statement of a material fact or omits or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (II) any document incorporated
by reference in the Prospectus or any further amendment or supplement to any
such incorporated document made by the Company prior to such Delivery Date,
when they became effective or were filed with the Commission, as the case may
be, contained in the case of a registration statement which became effective
under the Securities Act, any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or, in the case of other
documents which were filed under the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the
Prospectus, or any amendment or supplement thereto, contains or contained any
untrue statement of a material fact or omits or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) The respective counsel for each of the Selling
Stockholders shall each have furnished to the Representatives their
written opinion, as counsel to each of the Selling Stockholders for whom
they are acting as counsel, addressed to the Underwriters and dated the First
Delivery Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Selling Stockholder has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement, the execution, delivery
and performance of this Agreement, the Power of Attorney and
the Custody Agreement by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions
contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the property or assets of such
19
<PAGE>
Selling Stockholder is subject, nor will such actions result
in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over such Selling
Stockholder or the property or assets of such Selling
Stockholder; and to such counsel's knowledge, except for
the registration of the Shares under the Securities Act
and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters,
no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency
or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the
Custody Agreement by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions
contemplated hereby;
(ii) This Agreement has been duly executed
and delivered by or on behalf of such Selling Stockholder;
(iii) A Power-of-Attorney and a Custody
Agreement have been duly executed and delivered by such
Selling Stockholder and constitute valid and binding
agreements of such Selling Stockholder, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and
(iv) Selling Stockholder has full right,
power and authority to sell, assign, transfer and deliver the
Shares pursuant to this Agreement; and upon the Underwriters
obtaining control of the Shares and assuming that the
Underwriters are acquiring the Shares without notice of any
adverse claim within the meaning of Section 8-102 of the
Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts, upon delivery of the Shares by or on behalf of
the Selling Stockholder to the Underwriters and payment
therefor in accordance with this Agreement, the Underwriters
will acquire all rights of the Selling Stockholder in the
Shares free of any adverse claim.
In rendering such opinion, such counsel may (i) state that
their opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of Delaware and the
Commonwealth of Massachusetts. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and dated
the First Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as the special
counsel to such Selling Stockholder in connection with the preparation of the
Registration Statement, and (y) based on the foregoing, no facts have come to
the attention of such counsel which lead them to believe that the
Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact relating to such Selling Stockholder or omitted
to state such a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the Prospectus
contains any untrue statement of a material fact relating to such Selling
Stockholder or omits to state such a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus.
20
<PAGE>
(f) On each Delivery Date, counsel to Cambridge Diagnostics
Ireland Ltd., Can-Am Care Corporation, Inverness Medical, Inc. and Inverness
Medical Limited (collectively, the "Significant Subsidiaries"), acceptable to
the Representatives and their counsel, shall have furnished to you their
written opinions, as counsel to the Significant Subsidiaries, addressed to
the Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Representatives and their counsel, to the
effect that:
(i) The Significant Subsidiaries are
validly existing as corporations or limited liability
companies, as the case may be, in good standing under
the laws of their respective jurisdictions of
incorporation or organization, are duly qualified to do
business and are in good standing in each jurisdiction
in which their respective ownership or leasing 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 conduct
the businesses in which they are engaged;
(ii) All of the issued shares of capital
stock of each Significant Subsidiary have been duly and
validly authorized and issued and are fully paid,
non-assessable and, except as set forth in the Prospectus, are
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(iii) All real property and buildings held
under lease by the Significant Subsidiaries are held by them
under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and
buildings by them.
(iv) The issue and sale of the Shares being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which any Significant Subsidiary is a party
or by which any Significant Subsidiary is bound or to which
any of the property or assets of any Significant Subsidiary is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws or other organizational
documents of any Significant Subsidiary or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Significant Subsidiary or any of its properties or assets.
21
<PAGE>
(f)(I) On each delivery date, the Company
shall have furnished to the Representatives an opinion of Oppedahl & Larsen,
and Lahive & Cockfield, United States patent counsel for the Company,
addressed to the Underwriters and dated such Delivery Date in form and
substance reasonably satisfactory to the Representatives to the effect that:
(i) The statements in the Registration
Statement and Prospectus under the caption "Risk Factors -- We
may need to initiate lawsuits to protect or enforce our
patents and other intellectual property rights, which would be
expensive and, if we lose, could cause us to lose some of our
intellectual property rights, which would reduce our ability
to compete in the market," "--If we choose to acquire new and
complementary businesses products or technologies instead of
developing them ourselves, we may be unable to complete these
acquisitions or to successfully integrate an acquired business
or technology in a cost-effective and non-disruptive manner,"
and "--The rights we rely upon to protect the intellectual
property underlying our products may not be adequate, which
could enable third parties to use our technology and would
reduce our ability to compete in the market" insofar as
such statements constitute summaries of matters of law,
are accurate statements or summaries of the matters set
forth therein.
(ii) The statements in the Registration
Statement and Prospectus under the caption "Business -
Patents and Proprietary Rights," insofar as those statements
relate to pending U.S. patent applications of the Company,
to licenses for non-invasive blood glucose monitoring
systems and a new infrared technique, or to trademark
registrations and applications filed by the Company are
accurate statements or summaries of the matters set forth
therein, and that such counsel is not aware of any facts
which would form a basis for a belief that any of the other
statements in this section are untrue or misleading.
(iii) No facts have come to the attention of
such counsel which would form a basis for the belief that (a)
the Registration Statement or any amendment thereto or (b) the
Prospectus, as amended or supplemented, contain any untrue
statement of a material fact with respect to the patent
position of the Company or any of its subsidiaries, or omit to
state any material fact relating to the patent position of the
Company or any of its subsidiaries, which is necessary to make
the statements contained therein not misleading.
(iv) The Company has obtained assignment
documents from the named inventors for each of its United
States patent applications, and to the inventions described
and claimed therein and foreign applications filed for such
inventions, and has caused these assignments to be recorded in
the United States Patent and Trademark Office.
(v) The Company has valid license rights to
the patents and patent applications listed in Schedule A to
such counsel's opinion.
(vi) No facts have come to the attention
of such counsel that would form a basis for the belief that
any of the United States patents owned by the Company is
unenforceable or invalid.
(vii) Such counsel is not aware of any US
patents of others which are or would be infringed by the
specific current or proposed products or processes for
monitoring of blood glucose referred to in the Prospectus in
such manner as to materially and adversely affect the Company
or any of its subsidiaries; such counsel has no knowledge of
any pending or threatened action, suit, proceeding or claim by
others that the Company or any of its subsidiaries is
infringing any patent which could result in any material
adverse effect on the Company.
22
<PAGE>
(viii) Such counsel does not know of any
contracts or other documents relating to the proprietary
information of the Company or its subsidiaries or United
States patents or patent applications other than those
described in the Registration Statement and the Prospectus or
identified on Schedule A.
(II) On each delivery Date, the Company shall have
furnished to the Representatives an opinion of Lahive & Cockfield, special
patent counsel for the Company, addressed to the Underwriters and dated such
Delivery Date in form and substance reasonably satisfactory to the
Representatives and with respect to patent matters relating to the Company's
exclusive worldwide alliance with LifeScan, Inc., a subsidiary of Johnson &
Johnson, to the effect that:
(i) The statements in the Registration
Statement and Prospectus, insofar as such statements
constitute summaries of matters of law, are accurate
statements or summaries of the matters set forth therein.
(ii) No facts have come to the attention of
such counsel which would form a basis for the belief that (a)
the Registration Statement or any amendment thereto or (b) the
Prospectus, as amended or supplemented, contain any untrue
statement of a material fact, or omit to state any material
fact, which is necessary to make the statements contained
therein not misleading.
(iii) Such counsel is not aware of any
patents of others which are or would be infringed by specific,
current or proposed products or processes referred to in the
Prospectus in such manner as to adversely affect the Company
or any of its subsidiaries; such counsel has no knowledge of
any pending or threatened action, suit, proceeding or claim by
others that the Company or any of its subsidiaries is
infringing any patent which could result in any material
adverse effect on the Company.
(g) The Representatives shall have received from Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such
opinion or opinions, dated such Delivery Date, with respect to the issuance
and sale of the Shares, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from Arthur Andersen LLP a letter,
in form and substance satisfactory to the Representatives, addressed to
the Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
23
<PAGE>
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (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 five days prior to the date hereof), the conclusions and findings
of such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(i) With respect to the letter of Arthur Andersen LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial letter"),
on each Delivery Date the Company shall have furnished to the Representatives
a letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, 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 five 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 the initial letter and
(iii) confirming in all material respects the conclusions and findings set
forth in the initial letter.
(j) On each Delivery Date, the Company shall have furnished to
the Representatives a certificate, dated such Delivery Date, of its Chief
Executive Officer, its President or a Vice President and its Vice President
- Finance stating that:
(i) The representations and warranties of
the Company contained in this Agreement are true and correct
as of such Delivery Date, and the Company has complied with
all agreements and satisfied all conditions on its part to be
complied with or satisfied prior to such Delivery Date; and
the conditions set forth in Sections 9(a) and 9(n) have been
fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus 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 not misleading, and (B) since the Effective
Date no event has occurred which should have been set forth in
a supplement or amendment to the Registration Statement or the
Prospectus.
(k) The Underwriters shall have been furnished such additional
documents and certificates as they or their counsel may reasonably request.
(l) The letter agreements among you and officers, directors and
certain stockholders of the Company relating to restrictions on sales of the
Company's securities, delivered to you on or prior to the date hereof,
shall be in full force and effect on such Delivery Date.
24
<PAGE>
(m) Each Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholders) shall have
furnished to the Representatives on the First Delivery Date a certificate,
dated the First Delivery Date, signed by, or on behalf of, the Selling
Stockholder (or the Custodian or one or more attorneys-in-fact) stating that
the representations, warranties and agreements of the Selling Stockholder
contained herein are true and correct as of the First Delivery Date and that
the Selling Stockholder has complied with all agreements contained herein to
be performed by the Selling Stockholder at or prior to the First Delivery
Date.
(n) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Prospectus or incorporated by reference any loss or
interference with its business from fire, explosion, flood 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 or
contemplated in the Prospectus or (ii) since such date there shall not have
been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in any such case described in clause (i) or (ii), is, in
the judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(o) 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 or the American Stock
Exchange or in the over-the-counter market shall have been suspended or
minimum 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, (iii) the United States
shall have become engaged in hostilities, 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 a majority in interest of the Underwriters, impracticable
or inadvisable to proceed with the public offering or delivery of the Shares
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(p) The American Stock Exchange shall have approved the Shares
for listing, subject only to official notice of issuance.
All such opinions, letters, evidence, certificates and
documents shall be in compliance with the provisions of this Agreement only
if they are satisfactory in form and substance to the Underwriters and
counsel for the Underwriters. The Company shall furnish to you conformed
copies of such opinions, letters, evidence, certificates and documents in
such number as you shall reasonably request. If any of the conditions
specified in this Section 9 shall not have been fulfilled when and as
required by this Agreement, the Agreement and all obligations of the
Underwriters hereunder may be canceled at, or prior to, each Delivery date,
25
<PAGE>
by you. Any such cancellation shall be without liability of the Underwriters
to the Company. Notice of such cancellation shall be given to the Company in
writing, or by telecopy or telephone confirmed in writing.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Underwriter (including any Underwriter in its role as a qualified
independent underwriter pursuant to the rules of the National Association
of Securities Dealers, Inc.), its officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
Shares), to which that Underwriter, officer, employee or controlling person
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
(A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (B) in any blue sky
application or other document prepared or executed by the Company (or based
upon any written information furnished by the Company) specifically for the
purpose of qualifying any or all of the Shares under the securities laws of
any state or other jurisdiction (any such application, document or
information being hereinafter called a Blue Sky Application"), (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, or in any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Shares or
the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (PROVIDED that the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts
or failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Company 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, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any such amendment or supplement, or in
any Blue Sky Application, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein; and PROVIDED FURTHER, that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any untrue statement,
alleged untrue statement, omission or alleged omission made in any
Preliminary Prospectus but eliminated or remedied in the Prospectus, such
indemnity agreement shall not inure to the benefit of any Underwriter from
whom the person asserting any loss, claim, damage or liability purchased the
Shares which are the subject thereof (or to the benefit of any person who
26
<PAGE>
controls such Underwriter) if a copy of the Prospectus was not sent or given
to such person with or prior to the written confirmation of the sale of such
Shares to such person. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any Underwriter or to
any officer, employee or controlling person of that Underwriter.
(b) The Selling Stockholders, severally in proportion to the
number of Shares to be sold by each of them hereunder, shall indemnify and
hold harmless Underwriter, its officers and employees, and each person, if
any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
Shares), to which that Underwriter, officer, employee or controlling person
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 any 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, Registration Statement or
the Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter, its officers and employees
and each such controlling person for any legal or other expenses reasonably
incurred by that Underwriter, its officers and employees or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred; PROVIDED, HOWEVER, that the Selling Stockholders 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, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in
any such amendment or supplement in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein IN THE PRELIMINARY PROSPECTUS, THE REGISTRATION
STATEMENT OR THE PROSPECTUS OR ANY AMENDMENT OR SUPPLEMENT THERETO; PROVIDED,
FURTHER, THAT (I) SUCH SELLING STOCKHOLDER SHALL ONLY BE LIABLE HEREUNDER FOR
CIRCUMSTANCES OF WHICH THEY HAD ACTUAL KNOWLEDGE WITHOUT FURTHER
INVESTIGATION, UPON REVIEWING THE PRELIMINARY PROSPECTUS, THE REGISTRATION
STATEMENT OR THE PROSPECTUS OR ANY AMENDMENT OR SUPPLEMENT THERETO, (II) THE
FOREGOING INDEMNITY AGREEMENT IS SUBJECT TO THE CONDITION THAT, INSOFAR AS IT
RELATES TO ANY UNTRUE STATEMENT, ALLEGED UNTRUE STATEMENT, OMISSION OR
ALLEGED OMISSION MADE IN ANY PRELIMINARY PROSPECTUS BUT ELIMINATED OR
REMEDIED IN THE PROSPECTUS, SUCH INDEMNITY AGREEMENT SHALL NOT INURE TO THE
BENEFIT OF ANY UNDERWRITER FROM WHOM THE PERSON ASSERTING ANY LOSS, CLAIM,
DAMAGE OR LIABILITY PURCHASED THE SHARES WHICH ARE THE SUBJECT THEREOF (OR TO
THE BENEFIT OF ANY PERSON WHO CONTROLS SUCH UNDERWRITER) IF A COPY OF THE
PROSPECTUS WAS NOT SENT OR GIVEN TO SUCH PERSON WITH OR PRIOR TO THE WRITTEN
CONFIRMATION OF THE SALE OF SUCH SHARES TO SUCH PERSON, AND (III) THE
AGGREGATE LIABILITY OF ANY SELLING STOCKHOLDER SHALL BE LIMITED TO AN AMOUNT
EQUAL TO THE PROCEEDS (LESS UNDERWRITING COMMISSIONS AND DISCOUNTS) RECEIVED
BY SUCH SELLING STOCKHOLDER FROM THE UNDERWRITERS FOR THE SALE OF SHARES
SOLD BY SUCH SELLING STOCKHOLDER HEREUNDER.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of
its directors (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company), and
each person, if any, who controls the Company within the meaning of the
27
<PAGE>
Securities Act or otherwise, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person 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 (A) in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or (B) in any Blue Sky Application 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, or in any Blue Sky Application any 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 concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 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 10, 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 10 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 10. 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 10 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
the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company or the Selling Stockholders under this
Section 10 if, in the reasonable judgment of the Representatives, it is
advisable for the Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by
the Company or the Selling Stockholders. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
28
<PAGE>
indemnified party from all liability arising out of such claim, action, suit
or proceeding, or (ii) 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 the consent of the indemnifying party or if
there be a final judgment of 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.
(e) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, 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 Selling
Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders 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 Selling Stockholders 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 Shares purchased under this Agreement (before deducting
expenses) received by the Company and the Selling Stockholders on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement, on
the other hand, bear to the total gross proceeds from the offering of the
Shares 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 whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Selling Stockholders or the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 10 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 10 shall be
deemed to include, for purposes of this Section 10(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 10(e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds 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)
29
<PAGE>
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 10(e) are several in
proportion to their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Shares by the Underwriters set forth on the cover page of, the legend
concerning over-allotments on the inside front cover page of and the
concession and reallowance figures appearing under the caption "Underwriting"
in, the Prospectus are correct and constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
11. DEFAULTING UNDERWRITERS. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Shares which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number
of the Firm Shares set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of the Firm Shares
set opposite the names of all the remaining non-defaulting Underwriters in
Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Shares on such
Delivery Date if the total number of Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase on such date exceeds 9.09% of
the total number of Shares to be purchased on such Delivery Date, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of Shares which it agreed to purchase on such
Delivery Date pursuant to the terms of Section 3. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Shares to be purchased on such Delivery Date.
If the remaining non-defaulting Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase on
such Delivery Date, this Agreement (or, with respect to the Second Delivery
Date, the obligation of the Underwriters to purchase, and of the Company and
the Selling Stockholders to sell, the Option Shares) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company and
the Selling Stockholders, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 8 and 13. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 11, purchases Firm Shares
which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Shares of a defaulting or withdrawing Underwriter, either the Representatives
30
<PAGE>
or the Company may postpone the Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
12. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Shares if, prior to
that time, any of the events described in Sections 9(n) or 9(o), shall have
occurred or if the Underwriters shall decline to purchase the Shares for any
reason permitted under this Agreement.
13. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall
fail to tender the Shares for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company or the Selling
Stockholders to perform any agreement on its part to be performed, or because
any other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company or the Selling Stockholders is not fulfilled, the
Company will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of
the Shares, and upon demand (accompanied by reasonable documentation of such
expenses) the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 11 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.
14. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to ING Barings LLC, 55 East 52nd
Street, New York, New York 10055, Attention: Syndicate Department (Fax:
212___________), with a copy, in the case of any notice pursuant to Section
10(d), to the Director of Litigation, Office of the General Counsel, ING
Barings LLC, 55 East 52nd Street, 10th Floor, New York, NY 10055;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Ron Zwanziger (Fax: 617-647-3939);
(c) if to any Selling Stockholders, shall be delivered or sent
by mail, telex or facsimile transmission to such Selling Stockholder at
the address set forth on Schedule 2 hereto; PROVIDED, HOWEVER, that any
notice to an Underwriter pursuant to Section 10(d) shall be delivered or sent
by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its acceptance telex to the Representatives, which address will
be supplied to any other party hereto by the Representatives upon request.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Selling Stockholders shall be
entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by the Representatives.
15. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
31
<PAGE>
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 10(c) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who
have signed the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
16. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf on them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Shares and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
17. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has
the meaning set forth in Rule 405 of the Rules and Regulations.
18. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of New York.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
20. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
32
<PAGE>
If the foregoing correctly sets forth the agreement between the
Company the Selling Stockholders and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
INVERNESS MEDICAL TECHNOLOGY, INC.
By_______________________________
Ron Zwanziger, Chairman and
Chief Executive Officer
Accepted:
_______________________________
For themselves and as Representatives Ron Zwanziger
of the several Underwriters named
in Schedule 1 hereto
_______________________________
Kenneth D. Legg, Ph.D.
By ING BARINGS LLC _______________________________
John P. Alberico
By____________________________ _______________________________
Authorized Representative Duane L. James
_______________________________
Keith May, Ph.D.
_______________________________
Jerry McAleer, Ph.D.
_______________________________
David Scott, Ph.D.
_______________________________
Douglas Shaffer
_______________________________
John Yonkin
33
