Exhibit 99.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), is made and entered
into as of May 14, 2007, by and among Inverness Medical Innovations, Inc. a
Delaware corporation (the "COMPANY"), and the purchasers identified on the
signature pages hereto (each, an "INVESTOR" and collectively the "INVESTORS").
The Company has entered into Securities Purchase Agreements dated May 9,
2007 (the "PURCHASE AGREEMENT") with the Investors, under which the Company is
issuing up to $150,000,000 in aggregate principal amount of its 3% Convertible
Senior Subordinated Notes due 2016 (the "NOTES"), upon the terms and subject to
the conditions set forth in the Purchase Agreement.
In satisfaction of a condition to the obligations of the Investors under
the Purchase Agreement, the Company agrees with the Investors, for the benefit
of the "Holders" as defined below (including the Investors) of the Notes and the
Shares (as defined below), as follows:
1. Certain Definition.
Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Purchase Agreement. For purposes of this Registration
Rights Agreement, the following terms shall have the following meanings:
(a) "ADDITIONAL INTEREST" has the meaning assigned thereto in Section
2(e).
(b) "ADDITIONAL INTEREST PAYMENT DATE" has the meaning assigned
thereto in Section 2(e).
(c) "AFFILIATE" has the meaning set forth in Rule 405 under the
Securities Act, except as otherwise expressly provided herein.
(d) "AGREEMENT" means this Registration Rights Agreement, as the same
may be amended from time to time pursuant to the terms hereof.
(e) "BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed.
(f) "CLOSING DATE" means the date on which any Notes are initially
issued.
(g) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(h) "COMPANY" has the meaning specified in the first paragraph of this
Agreement.
(i) "COMPANY INDEMNITEE" has the meaning specified in Section 6(b).
(j) "DEFERRAL NOTICE" has the meaning assigned thereto in Section
3(b).
(k) "DEFERRAL PERIOD" has the meaning assigned thereto in Section
3(b).
(l) "EFFECTIVE PERIOD" has the meaning assigned thereto in Section
2(a).
(m) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(n) "HOLDER" means each holder, from time to time (including
Investors), of Registrable Securities.
(o) "INDEMNIFIED PARTY" has the meaning specified in Section 6(c).
(p) "INDEMNIFYING PARTY" has the meaning specified in Section 6(c).
(q) "INDENTURE" means the Indenture dated as of May 14, 2007 among the
Company and U.S. Bank Trust National Association, as Trustee, pursuant to
which the Notes are being issued.
(r) "INVESTORS" has the meaning specified in the first paragraph of
this Agreement.
(s) "MAJORITY HOLDERS" shall mean, on any date, Holders of the
majority of the Shares constituting Registrable Securities hereunder;
provided, for the purposes of this definition, Holders of Notes
constituting Registrable Securities shall be deemed to be the Holders of
the number of Shares equal to the applicable Conversion Rate (as defined in
the Indenture) as of such date multiplied by the aggregate number of $1,000
principal amount of Notes held by such Holder, and provided, further, that
for the purposes of Section 3(a) below relating to Shelf Registration
Statements, "Majority Holders" shall mean Holders holding a majority in
aggregate amount of the Securities being registered for sale by such
Holders under the Shelf Registration Statement.
(t) "MATERIAL EVENT" has the meaning assigned thereto in Section
3(a)(iii).
(u) "NASD" shall mean the National Association of Securities Dealers,
Inc.
(v) "NOTES" has the meaning specified in the first paragraph of this
Agreement.
(w) "NOTICE AND QUESTIONNAIRE" means a written notice delivered to the
Company containing (i) the information called for by the Form of Selling
Securityholder Notice and Questionnaire attached as Annex A to this
Agreement and (ii) and such other information in writing as the Company may
reasonably request in writing in connection therewith, executed by a duly
authorized agent of the Holder named therein.
(x) "NOTICE HOLDER" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company on or prior to such date.
(y) "PERSON" means a corporation, limited liability company,
association, partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
(z) "PROSPECTUS" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rules 430A, 430B or
430C under the Securities Act), as amended or supplemented by any amendment
or prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Prospectus.
(aa) "PURCHASE AGREEMENT" has the meaning specified in the first
paragraph of this Agreement.
(bb) REGISTRABLE SECURITIES" means:
- each Note until the earliest of (i) its effective
registration under the Securities Act and the resale of such
Note in accordance with the Shelf Registration Statement,
(ii) the expiration of the holding period applicable to such
Note under Rule 144(k) under the Securities Act or any
successor provision or similar provisions then in effect
("RULE 144(K)"), (iii) the date on which such Note is freely
transferable by persons who are not Affiliates of the
Company without registration under the Securities Act, or
(iv) the date on which such Note has been converted or
otherwise ceases to be outstanding; and
- each Share, if any, issuable upon conversion of any Note,
until the earliest of (i) its effective registration under
the Securities Act and the resale of such Share in
accordance with the Shelf Registration Statement, (ii) the
expiration of the holding period applicable to such Share
under Rule 144(k), (iii) the date on which such Share is
freely transferable by persons who are not Affiliates of the
Company without registration under the Securities Act, or
(iv) the date on which such Share ceases to be outstanding.
(cc) "REGISTRATION DEFAULT" has the meaning assigned thereto in
Section 2(e).
(dd) "REGISTRATION EXPENSES" has the meaning assigned thereto in
Section 5.
(ee) "RESTRICTED SECURITIES" has the meaning set forth under Rule 144.
(ff) "RULE 144," "RULE 144A," "RULE 405" and "RULE 415" mean, in each
case, such rule as promulgated under the Securities Act.
(gg) "SECURITIES" means, collectively, the Notes and the Shares.
(hh) "SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(ii) "SHARES" means the shares of Common Stock of the Company (as
defined in the Indenture), that are issuable upon conversion of the Notes
or that have been issued upon any conversion of Notes.
(jj) "SHELF INSPECTOR" has the meaning assigned thereto in Section
3(a)(vi).
(kk) "SHELF REGISTRATION STATEMENT" means the shelf registration
statement referred to in Section 2(a), as amended or supplemented by any
amendment or supplement, including post-effective amendments and any
additional information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the shelf
registration statement pursuant to Rules 430A, 430B or 430C, and all
materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Shelf Registration Statement.
(ll) "SPECIAL COUNSEL" shall have the meaning assigned thereto in
Section 5."
(mm) TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
(nn) "TRUSTEE" shall have the meaning assigned such term in the
Indenture.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company agrees to use reasonable best efforts to file under
the Securities Act as soon as practicable, but in any event within 90 days
after the Closing Date, a shelf registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, pursuant to Rule 415 or any
similar rule that may be adopted by the Commission; provided that such
registration statement shall be an "automatic shelf registration
statement," as such term is defined in Rule 405 under the Securities Act,
if the Company is eligible to use automatic shelf registration statements
at the time of filing. If the Shelf Registration Statement is not an
automatic shelf registration statement, the Company agrees to use
reasonable best efforts to cause the Shelf Registration Statement to be
declared effective as promptly as possible, but in any event no later than
180 days after the Closing Date. Subject to the Company's right to suspend
use of the Shelf Registration Statement under Section 3(b), the Company
agrees to use reasonable best efforts to keep such Shelf Registration
Statement continuously effective until the earlier of (i) the second
anniversary of the Closing Date or (ii) such time as each of the
Registrable Securities covered by the Shelf Registration Statement ceases
to be a Registrable Security (as defined herein) (the "EFFECTIVE PERIOD").
(b) The Company further agrees that it shall cause the Shelf
Registration Statement, the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, and as of the date of any such amendment or supplement, (i) to
comply, subject to the proviso in the next succeeding clause (ii) of this
Section 2(b) in all material respects with the applicable requirements of
the Securities Act and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under
which they were made) not misleading; provided, however, that this
agreement shall not extend to, and the Company shall have no liability with
respect to, any untrue statement or alleged untrue statement in or omission
or alleged omission from the Shelf Registration Statement or the
Prospectus, or any amendment or supplement thereto, made in reliance upon
and in conformity with any information provided by any Holder in writing
expressly for use therein. The Company agrees to furnish to the Holders
seeking to sell Securities pursuant to such amendment or supplement, and to
any other Holder, such number of copies as such Holders may reasonably
request of any supplement or amendment prior to its being used or promptly
following its filing with the Commission; provided, however, that the
Company shall have no obligation to deliver to Holders copies of any
document publicly available through links on the Company's website or in
the Commission's XXXXX database. If the Shelf Registration Statement, as
amended or supplemented from time to time, ceases to be effective for any
reason at any time during the Effective Period (other than because all
Registrable Securities registered thereunder shall have been sold pursuant
thereto or shall have otherwise ceased to be Registrable Securities), the
Company shall use reasonable best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof.
(c) Notwithstanding any other provision hereof, no Holder shall be
entitled to include any of its Registrable Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company the Notice and Questionnaire for use in
connection with the Shelf Registration Statement or Prospectus included
therein. The Company shall issue one or more press releases through a
reputable national newswire service of its filing of (or intention to
designate an automatic shelf registration statement as) the Shelf
Registration Statement and of the effective date thereof. In order to be
named as a selling securityholder in the Prospectus at the time it is first
made available for use, each Holder must furnish the completed Notice and
Questionnaire to the Company in writing no later than the tenth Business
Day prior to the effective date of the Shelf Registration Statement.
(d) From and after the date the Shelf Registration Statement is
initially effective, the Company shall, as promptly as is practicable after
the date a proper Notice and Questionnaire is delivered, and in any event
within (x) ten (10) Business Days after the date such Notice and
Questionnaire is received by the Company or (y) if a Notice and
Questionnaire is so received during a Deferral Period, the later of the
tenth (10th) Business Day after the date such Notice and Questionnaire is
received by the Company or the fifth (5th) Business Day after the
expiration of such Deferral Period,
(i) if required by applicable law, file with the Commission a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling security holder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement and such
amendment is not automatically effective, use reasonable best efforts
to cause such post-effective amendment to
be declared or to otherwise become effective under the Securities Act
as promptly as is practicable;
(ii) provide such Holder with as many copies of any documents
filed pursuant to Section 2(d)(i) as such Holder may reasonably
request in connection with the Securities covered by such Holder's
Notice and Questionnaire; and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i).
Notwithstanding anything contained herein to the contrary, the Company
shall be under no obligation to name any Holder that is not a Notice Holder
as a selling securityholder in any Shelf Registration Statement or related
Prospectus; provided, however, that any Holder that becomes a Notice Holder
pursuant to the provisions of this Section 2(d) (whether or not such Holder
was a Notice Holder at the time the Shelf Registration Statement was
declared or otherwise become effective) shall be named as a selling
securityholder in the Shelf Registration Statement or related Prospectus in
accordance with the requirements of this Section 2(d).
(e) If any of the following events (any such event a "REGISTRATION
DEFAULT") shall occur, then additional interest (the "ADDITIONAL INTEREST")
shall become payable by the Company to Holders in respect of the Notes as
follows:
(i) if the Shelf Registration Statement is not filed with the
Commission within 90 days following the Closing Date (other than a
Registration Default relating to a failure to file a Shelf
Registration Statement with respect to the Shares), then commencing on
the 91st day after the Closing Date, Additional Interest shall accrue
on the principal amount of the outstanding Notes at a rate of 0.25%
per annum for the first 90 days following such 90th day and at a rate
of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement has not become or is not
declared effective by the Commission within 180 days following the
Closing Date (other than a Registration Default relating to a failure
to have a Shelf Registration Statement effective with respect to
Shares), then commencing on the 181st day after the Closing Date,
Additional Interest shall accrue on the principal amount of the
outstanding Notes at a rate of 0.25% per annum for the first 90 days
following such 180th day and at a rate of 0.5% per annum thereafter;
or
(iii) if the Company has failed to perform its obligations set
forth in Section 2(d) hereof within the time periods required therein,
then, commencing on the first day after the date by which the Company
was required to perform such obligations, Additional Interest shall
accrue on the principal amount of the outstanding Notes that are
Registrable Securities and for which a Holder has delivered a Notice
and Questionnaire under Section 2(d) with respect to which the Company
has failed to perform its obligations set forth in Section 2(d)
hereof, at a rate of 0.25% per annum for the first 90 days following
the date by which the Company was required to perform such obligations
and at a rate of 0.5% per annum thereafter; or
(iv) if the Shelf Registration Statement has become or been
declared effective but such Shelf Registration Statement ceases to be
effective at any time during the Effective Period (other than a
Registration Default relating to a failure to have a Shelf
Registration Statement effective with respect to the Shares) or
pursuant to Section 3(b) hereof), then, commencing on the day such
Shelf Registration Statement ceases to be effective, Additional
Interest shall accrue on the principal amount of the outstanding Notes
that are Registrable Securities at a rate of 0.25% per annum for the
first 90 days following such date on which the Shelf Registration
Statement ceases to be effective and at a rate of 0.5% per annum
thereafter; or
(v) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 3(b) hereof, then, commencing on the day the
aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period (and again on the
first day of any subsequent Deferral Period during such period),
Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of 0.25%
per annum for the first 90 days following the date the aggregate
duration of Deferral Periods in such period exceeds the number of days
permitted in respect of such period and at a rate of 0.5% per annum
thereafter;
provided, however, that the Additional Interest rate on the Notes shall not
exceed in the aggregate 0.5% per annum and shall not be payable under more
than one clause above for any given period of time, except that if
Additional Interest would be payable under more than one clause above, but
at a rate of 0.25% per annum under one clause and at a rate of 0.5% per
annum under the other, then the Additional Interest rate shall be the
higher rate of 0.5% per annum; provided further, however, that (1) upon the
filing of the Shelf Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Shelf Registration Statement (in
the case of clause (ii) above), (3) upon the performance by the Company of
its obligations set forth in Section 2(d) hereof (in the case of clause
(iii) above), (4) upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause (iv)
above), (5) upon the termination of the Deferral Period that caused the
limit on the aggregate duration of Deferral Periods in a period set forth
in Section 3(b) to be exceeded (in the case of clause (v) above) or (6) the
earlier of (A) the second anniversary of the Closing Date or (B) when any
Notes are no longer Registrable Securities (in the case of each of clauses
(i) - (v) above), Additional Interest on the Notes as a result of such
clause, as the case may be, shall cease to accrue.
Additional Interest on the Notes, if any, will be payable in cash on
May 1 and November 1 of each year (the "ADDITIONAL INTEREST PAYMENT DATE")
to Holders of record of outstanding Notes that are Registrable Securities
at the close of business on April 15 or November 15 (whether or not a
Business Day), as the case may be, immediately preceding the relevant
interest payment date in the manner and subject to the exceptions provided
for the payment of regular interest on the Notes as set forth in the
Indenture; provided that in the case of an event of the type described in
clause (iii) above, such Additional Interest shall be paid only to the
Holders of Registrable Securities. Following the cure of all Registration
Defaults requiring the payment of Additional Interest to the Holders of
Notes that are Registrable Securities pursuant to this Section,
the accrual of Additional Interest will cease (without in any way limiting
the effect of any subsequent Registration Default requiring the payment of
Additional Interest).
Additional Interest will be computed on the basis of a 360-day year
composed of twelve 30-day months.
The Company shall notify the Trustee immediately upon the happening of
each and every Registration Default. The Trustee shall be entitled, on
behalf of Holders of Securities, to seek any available remedy for the
enforcement of this Agreement, including for the payment of any Additional
Interest. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement
with respect to which additional monetary amounts are expressly provided
shall be as set forth in this Section 2(e). Nothing shall preclude a Holder
from pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
3. Registration Procedures
The following provisions shall apply to the Shelf Registration Statement
filed pursuant to Section 2:
(a) The Company shall:
(i) before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto with the Commission, furnish
to "Special Counsel" acting for the Majority Holders as described in
Section 5 below, copies of all such documents proposed to be filed and
use reasonable best efforts to reflect in each such document when so
filed with the Commission such comments as such Special Counsel
reasonably shall propose within three (3) Business Days of the
delivery of such copies to such Special Counsel;
(ii) use reasonable best efforts to prepare and file with the
Commission such amendments and post-effective amendments to the Shelf
Registration Statement and file with the Commission any other required
document as may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective Period;
cause the related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the
Securities Act; and otherwise comply in all material respects with the
provisions of the Securities Act applicable to it with respect to the
disposition of all Securities covered by such Shelf Registration
Statement during the Effective Period in accordance with the plan of
distribution set forth in such Shelf Registration Statement as so
amended or such Prospectus as so supplemented;
(iii) as promptly as reasonably practicable, notify the Notice
Holders (A) when such Shelf Registration Statement or the Prospectus
included therein or any amendment or supplement to the Prospectus or
post-effective amendment has been filed with the Commission, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same is declared or has become effective
(provided, however, that the Company shall have no obligation to
deliver to Holders copies of any document publicly available through
the links
on the Company's website or in the Commission's XXXXX database), (B)
of any request, following the effectiveness of the Shelf Registration
Statement, by the Commission or any other Federal or state
governmental authority for amendments or supplements to the Shelf
Registration Statement or related Prospectus, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or written threat of
any proceedings for that purpose, (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or written threat of any proceeding for such purpose, (E)
of the occurrence off (but not the nature of or details concerning)
any event or the existence of any fact (a "MATERIAL EVENT") as a
result of which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (provided, however, that no notice by the Company shall
be required pursuant to this clause (E) in the event that the Company
either promptly files a prospectus supplement to update the Prospectus
or a Form 8-K or other appropriate Exchange Act report that is
incorporated by reference into the Shelf Registration Statement,
which, in either case, contains the requisite information with respect
to such Material Event that results in such Shelf Registration
Statement or Prospectus, as the case may be, no longer containing any
untrue statement of material fact or omitting to state a material fact
necessary to make the statements contained therein, in the case of the
Prospectus, in light of the circumstances under which they were made,
not misleading), (F) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement (other
than for the purpose of naming a Notice Holder as a selling security
holder therein) will be filed with the Commission, which notice may,
at the discretion of the Company (or as required pursuant to Section
3(b)), state that it constitutes a Deferral Notice, in which event the
provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required (or but for the exemption contained in Rule 172
would be required) to be delivered under the Securities Act, that the
Shelf Registration Statement, Prospectus, Prospectus amendment,
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder;
(iv) prior to any offering of the Registrable Securities pursuant
to the Shelf Registration Statement, use reasonable best efforts to
register or qualify, or cooperate with the Notice Holders of
Securities included therein and their respective counsel in connection
with the registration or qualification of such Securities for offer
and sale under the securities or blue sky laws of such jurisdictions
in the United States as any such Notice Holder reasonably requests in
writing and do any and all other acts or things reasonably necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by the Shelf Registration Statement; prior to any
public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective
during the Effective Period in connection with such Notice Holder's
offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities in
the manner set forth in the Shelf Registration Statement and the
related Prospectus; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction
where it is not then so subject;
(v) use reasonable best efforts to prevent the issuance of, and
if issued, to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or any
post-effective amendment thereto, and to lift any suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in each case
at the earliest practicable date;
(vi) upon reasonable notice, for a reasonable period prior to the
filing of the Shelf Registration Statement, and throughout the
Effective Period, (A) make reasonably available for inspection by a
representative of, and Special Counsel acting for, the Majority
Holders and any underwriter (and its counsel) participating in any
disposition by the Majority Holders of Securities pursuant to such
Shelf Registration Statement (collectively, the "SHELF INSPECTORS"),
all relevant financial and other records and pertinent corporate
documents of the Company and its subsidiaries and (B) use commercially
reasonable efforts to have its officers, employees, accountants and
counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter in connection
with such Shelf Registration Statement, in each case as is reasonable
and customary for similar "due diligence" examinations; provided,
however, that with respect to any Special Counsel engaged by the
Majority Holders, the foregoing inspection and information gathering
shall be coordinated by one counsel designated by the Majority
Holders; and provided further, that neither the Company nor any of its
officers, directors, employees, accountants, counsel or other agents
or advisors shall have any obligation to disclose any information (x)
that is the subject of a binding agreement with a third party or other
legal obligation (including, without limitation, federal laws of the
United States relating to the secrecy of government information) that
does not permit such disclosure or (y) that, in the Company's sole
opinion, is subject to the attorney-client privilege or another legal
privilege; and provided further that as a condition to the Company's
obligations under this clause (vi), each Shelf Inspector shall
expressly agree in writing to maintain disclosed information in
confidence to the extent the Company's disclosure of such information
to the Shelf Inspectors would otherwise violate Regulation FD of the
Commission and provided further, that, as an additional condition to
the Company's obligations under this clause (vi), each Shelf Inspector
shall, at the Company's request, execute such confidentiality
agreements as the Company shall deem reasonably appropriate to protect
its trade secrets and other confidential information;
(vii) if requested by the Majority Holders, their Special Counsel
or the managing underwriters (if any) in connection with an
underwritten offering by the
Majority Holders under such Shelf Registration Statement, use
reasonable best efforts to cause (A) its counsel to deliver an opinion
relating to the Shelf Registration Statement and the Securities in a
reasonable and customary form, (B) its officers to execute and deliver
all customary documents and certificates reasonably requested by the
Majority Holders, their Special Counsel or such managing underwriters
(if any) and (C) its independent registered public accounting firm to
provide a comfort letter or letters relating to the Shelf Registration
Statement in a reasonable and customary form, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72 or any successor statement
thereto, covering matters of the type customarily covered in comfort
letters in connection with secondary underwritten offerings;
(viii) if reasonably requested by the Majority Holders as a
result of the "due diligence" examinations referred to in Section
3(a)(vi) above, promptly incorporate in a prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Majority Holders shall, on the basis of a written
opinion of nationally recognized counsel experienced in such matters
provided to the Company, determine to be required to be included
therein by applicable law and make any required filings of such
prospectus supplement or such post-effective amendment; provided, that
the Company shall not be required to take any actions under this
Section 3(a)(viii) that are not, in the reasonable opinion of counsel
for the Company, in compliance with applicable law;
(ix) as promptly as practicable, furnish to each Notice Holder,
upon their request and without charge, at least one (1) conformed copy
of the Shelf Registration Statement and any amendments thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all
exhibits; provided, however, that the Company shall have no obligation
to deliver to any Holders a copy of any document publicly available on
the Company's website or in the Commission's XXXXX database;
(x) during the Effective Period, deliver to each Notice Holder in
connection with any sale of Registrable Securities pursuant to the
Shelf Registration Statement, upon their request and without charge,
as many copies of the Prospectus relating to such Registrable
Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such Notice Holder may reasonably request;
and the Company hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use of
the then-current Prospectus, together will all amendments and
supplements thereto then available, by each Notice Holder in
connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in
the manner set forth therein and subject to applicable law;
(xi) cooperate with the Notice Holders to facilitate the timely
preparation and delivery of certificates representing Securities to be
sold pursuant to the Shelf Registration Statement free of any
restrictive legends imposed by the Company under the Securities Act
and in such denominations as permitted by the
Indenture and registered in such names as the Notice Holders thereof
may request in writing at least three (3) Business Days prior to sales
of Securities pursuant to such Shelf Registration Statement; and
(xii) knowingly deliver to any third party (excluding the
directors, officers, employees, agents, counsel and advisors of the
Company) or refer any such third party to, or authorize or approve
either the delivery to such third party of, or the referring of such
third party to, any "free writing prospectus", as defined in Rule 405
under the Securities Act, in connection with the offering or sale of
the Securities, without the consent of Holders who are seeking to sell
Securities pursuant to the Shelf Registration Statement or relevant
supplement or amendment thereto, which consent shall not be
unreasonably withheld.
(b) Upon (A) the issuance by the Commission of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any Material Event as a result of which the Shelf Registration
Statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any corporate development
that, in the judgment of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related
Prospectus, the Company will (i) in the case of clause (B) above, subject
to the second sentence of this Section 3(b), as promptly as practicable
prepare and file an amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document that would be incorporated
by reference into such Shelf Registration Statement and Prospectus so that
such Shelf Registration Statement does not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and, in the case of a post-effective
amendment to the Shelf Registration Statement, subject to the second
sentence of this Section 3(b), use reasonable efforts to cause it to be
declared effective or otherwise become effective as promptly as practicable
and (ii) give notice to the Notice Holders that the availability of the
Shelf Registration Statement is suspended (a "DEFERRAL NOTICE"). The
Company will use reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly
as practicable, (y) in the case of clause (B) above, as soon as, in the
sole judgment of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company or,
if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (z) in the case of clause (C) above, as soon as,
in the judgment of the Company, such suspension is no longer appropriate;
provided that the period during which the availability of the Shelf
Registration Statement and any Prospectus is suspended (the "DEFERRAL
PERIOD"), without the Company incurring any obligation to pay Additional
Interest pursuant to Section 2(e), shall not exceed thirty (30) days in any
fiscal quarter or sixty (60) days in the aggregate
in any twelve (12) month period. The Company need not specify the nature of
the event giving rise to a Deferral Notice in any notice to Notice Holders
of the existing of a Deferral Notice.
(c) Each Holder agrees that upon receipt of any Deferral Notice from
the Company, such Holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the offer, sale or other disposition of Registrable Securities
pursuant to the Shelf Registration Statement until such Holder (i) shall
have received copies of such amended or supplemented Prospectus (including
copies of any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus) required under clause
(i) of Section 3(b) and, if so directed by the Company, such Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
and any amendments or supplements thereto covering such Registrable
Securities at the time of receipt of such notice and (ii) shall have
received notice from the Company that the disposition of Registrable
Securities pursuant to the Shelf Registration Statement may continue.
(d) The Company may require each Holder as to which any registration
pursuant to Section 2(a) is being effected to furnish to the Company such
information regarding such Holder and such Holder's intended method of
distribution of such Registrable Securities as the Company may from time to
time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act.
(e) The Company shall comply in all material respects with all
applicable rules and regulations of the Commission and make generally
available to its securityholders earning statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of the Shelf Registration
Statement, which statements shall cover said 12-month periods.
(f) The Company shall provide a CUSIP number for all Registrable
Securities covered by the Shelf Registration Statement not later than the
effective date of such Shelf Registration Statement and provide the Trustee
and the transfer agent for the Shares with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.
(g) The Company shall use commercially reasonable efforts to provide
such information as is required for any filings required to be made with
the NASD.
(h) Until the expiration of the Effective Period, the Company will
not, and will not permit any of its Affiliates, to the extent the Company
controls such Affiliates, to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(i) The Company shall use commercially reasonable efforts to cause the
Indenture to be qualified under the Trust Indenture Act in a timely manner,
and shall
cooperate with the Trustee to effect such changes to the Indenture or
supplemental indentures as may be required for the Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act and
execute, and use all reasonable efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner.
(j) The Company shall enter into such reasonable and customary
agreements and take such other reasonable and lawful actions in connection
therewith (including those reasonably requested by the Majority Holders) in
order to expedite or facilitate disposition of such Registrable Securities.
4. Holders' Obligations
(a) By acquisition of any Registrable Securities, each Holder agrees
that it shall be bound by all of the obligations of a Holder under this
Agreement. Each Holder agrees that no Holder of Registrable Securities
shall be entitled to sell any of such Registrable Securities pursuant to
the Shelf Registration Statement or to receive a Prospectus relating
thereto, unless and until such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(c) hereof
(including the information required to be included in such Notice and
Questionnaire) such other information as the Company shall reasonably
request in writing and the information set forth in the next sentence. Each
Notice Holder agrees to notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by such Notice
Holder to the Company or otherwise reflected in the Shelf Registration
Statement, any Prospectus or any amendment or supplement thereto or of the
occurrence of any event in either case as a result of which the Shelf
Registration Statement, any Prospectus or any amendment or supplement
thereto contains or would contain an untrue statement of a material fact
regarding such Notice Holder or such Notice Holder's intended method of
disposition of such Registrable Securities or omits to state any material
fact regarding such Notice Holder or such Notice Holder's intended method
of disposition of such Registrable Securities required to be stated therein
or necessary to make the statements therein not misleading, and promptly to
furnish to the Company (i) any additional information required to correct
and update any previously furnished information or required so that the
Shelf Registration Statement, each Prospectus and each amendment or
supplement thereto shall not contain, with respect to such Notice Holder or
the disposition of such Registrable Securities, 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 and (ii)
any other information regarding such Notice Holder and the distribution of
such Registrable Securities as may be reasonably required to be disclosed
in the Shelf Registration Statement under applicable law. Each Holder
agrees not to offer or sell any Registrable Securities pursuant to the
Shelf Registration Statement before it is declared or otherwise becomes
effective. Each Holder agrees that any sale of Registrable Securities by it
or on its behalf shall be made in compliance with the Securities Act and
that any such sale purporting to be made pursuant to the Shelf Registration
Statement shall be made only in accordance with the plan of distribution
set forth in the then-current Prospectus, together will all amendments and
supplements thereto then available. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement
without delivering, causing to be delivered, or, if permitted by applicable
law, making available, the then-current Prospectus, together
will all amendments and supplements thereto then available to the purchaser
thereof and, following termination of the Effective Period, to notify the
Company in writing, within ten (10) Business Days of a request by the
Company, of the amount of Registrable Securities sold pursuant to the Shelf
Registration Statement; and the absence of a response within such ten (10)
Business Day period shall constitute a representation by such Holder to the
Company that all of the Holder's Registrable Securities were so sold in
compliance with applicable law and this Agreement.
(b) Any sale of any Registrable Securities pursuant to a Shelf
Registration Statement by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and
its plan of distribution is as set forth in the Shelf Registration
Statement and in the Prospectus delivered by such Holder in connection with
such disposition, that the Shelf Registration Statement and such Prospectus
do not as of the time of such sale contain any untrue statement of a
material fact relating to or provided by such Holder or its plan of
distribution and that the Shelf Registration Statement and such Prospectus
do not as of the time of such sale omit to state any material fact relating
to such Holder or its plan of distribution required to be stated therein or
necessary to make the statements in the Shelf Registration Statement and
such Prospectus relating to such Holder or its plan of distribution, in the
light of the circumstances under which they were made, not misleading. Each
Holder further agrees that such Holder will not make any offer relating to
the Registrable Securities that would constitute an "issuer free writing
prospectus" (as defined in Rule 433 under the Securities Act) or that would
otherwise constitute a "free writing prospectus" (as defined in Rule 405
under the Securities Act) required to be filed by the Company with the
Commission or retained by the Company under Rule 433 of the Securities Act,
unless it has obtained the prior written consent of the Company.
5. Registration Expenses
The Company agrees to bear and to pay or cause to be paid promptly after
request being made therefor all fees and expenses incident to the Company's
performance of or compliance with this Agreement, including, but not limited to,
(a) all Commission and any NASD registration and filing fees and expenses, (b)
all fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(a)(v) hereof, including reasonable fees and disbursements of one
counsel for the placement agent or underwriters, if any, in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of the Shelf Registration Statement, the related
Prospectus, each amendment or supplement to each of the foregoing, the
certificates representing the Securities and all other documents relating
hereto, (d) fees and expenses of the Trustee under the Indenture, any escrow
agent or custodian, and of the registrar and transfer agent for the Shares, (e)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance) and
(f) reasonable fees, disbursements and expenses of one counsel for all Holders
retained in connection with the Shelf Registration Statement, as selected by the
Company (unless reasonably objected to by Holders holding a majority in
aggregate amount of the Securities being registered for sale by such Holders
under the Shelf Registration Statement, in which case such Majority Holders
shall select such counsel for the Holders) ("SPECIAL COUNSEL"), and fees,
expenses and disbursements of any other Persons, including special experts,
retained by the Company in connection with such registration (collectively, the
"REGISTRATION EXPENSES"). To the extent that
any Registration Expenses are incurred, assumed or paid with the prior written
consent of the Company by any Holder of Registrable Securities or any
underwriter or placement agent therefor, the Company shall reimburse such Person
for the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a documented request therefor. Notwithstanding the
foregoing, the Holders of the Registrable Securities being registered shall pay
all underwriting discounts and commissions, placement agent fees and commissions
attributable to the sale of such Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such
Holders (severally or jointly), other than the counsel and experts specifically
referred to above.
6. Indemnification.
(a) The Company shall indemnify and hold harmless each Notice Holder,
its Affiliates, their respective officers and directors and each person, if
any, who controls such Notice Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (collectively referred
to for purposes of this Section 6(a) and Section 7 as an "INDEMNIFIED
HOLDER") from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which that Indemnified Holder
may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law 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
Shelf Registration Statement or any Prospectus, or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and shall
reimburse each Indemnified Holder promptly upon demand for any legal or
other expenses reasonably incurred by that Indemnified Holder in connection
with investigating or defending or preparing to defend against or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company 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, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with any information provided by such Indemnified Holder in its
Notice and Questionnaire or otherwise provided by such Indemnified Holder
in writing to the Company expressly for use therein. This indemnity
agreement shall be in addition to any liability that the Company may
otherwise have.
(b) Each Notice Holder shall indemnify and hold harmless the Company,
its Affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (collectively referred to for purposes of this
Section 6(b) and Section 7 as a "COMPANY INDEMNITEE"), from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company may become subject, whether commenced
or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law 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 such Shelf Registration Statement or any
Prospectus forming part thereof, or (ii) the omission or alleged omission
to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, 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 any information furnished to the Company by the
Notice Holder in its Notice and Questionnaire or otherwise in writing by
such Notice Holder expressly for use therein, and shall reimburse the
Company promptly upon demand for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Notice Holder shall
be liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Notice Holder from the sale of Securities
pursuant to such Shelf Registration Statement. This indemnity agreement
will be in addition to any liability which any such Notice Holder may
otherwise have.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person (an "INDEMNIFYING PARTY")in respect of which
indemnification may be sought by either an Indemnified Holder pursuant to
paragraph 6(a) or a Company Indemnitee pursuant to 6(b) above (an
"INDEMNIFIED PARTY"), the Indemnified Party shall promptly notify the
Indemnifying Party in writing of such suit, action, proceeding, claim or
demand; provided, however, that the failure to notify the Indemnifying
Party shall not relieve it from any liability that it may have under this
Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure;
and provided, further, that the failure to notify the Indemnifying Party
shall not relieve it from any liability that it may have to an Indemnified
Party otherwise than under this Section 6. If any such proceeding shall be
brought or asserted against an Indemnified Party and it shall have notified
the Indemnifying Party thereof, the Indemnifying Party shall retain counsel
reasonably satisfactory to the Indemnified Party (who shall not, without
the consent of the Indemnified Party, be counsel to the Indemnifying Party
in such proceeding) to represent the Indemnified Party and any others
entitled to indemnification pursuant to this Section 6 that the
Indemnifying Party may designate in such proceeding and shall pay the fees
and expenses of such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary in writing; (ii) the
Indemnifying Party shall have failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Party; (iii) the
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Party; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them, in each of which cases the Indemnifying Party shall
be responsible for the fees and expenses of such counsel. It is understood
and agreed that, except to the extent provided in the next preceding
sentence, the Indemnifying Party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for all indemnified parties and that all
such reasonable fees and
expenses shall be reimbursed as they are incurred. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Party agrees to
indemnify each Indemnified Party to the extent set forth in Section 6(a) or
6(b), as the case may be, from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if
at any time an Indemnified Party shall have requested that an Indemnifying
Party reimburse the Indemnified Party for reasonable fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Party shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after
receipt by the Indemnifying Party of such request and more than 30 days
after notice of such settlement is received by the Indemnifying Party and
(ii) the Indemnifying Party shall not have reimbursed the Indemnified Party
in accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been
a party and indemnification could have been sought hereunder by such
Indemnified Party, unless such settlement (x) includes an unconditional
release of such Indemnified Party, in form and substance reasonably
satisfactory to such Indemnified Party, from all liability on claims that
are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Party.
(d) The provisions of this Section 6 and Section 7 shall remain in
full force and effect, regardless of any investigation made by or on behalf
of any Notice Holder, the Company, or any of the indemnified persons
referred to in this Section 6 and Section 7, and shall survive the sale by
a Notice Holder of Securities covered by the Shelf Registration Statement.
7. Contribution
If the indemnification provided for in Section 6 is unavailable or
insufficient to hold harmless an Indemnified Party under Section 6(a) or 6(b),
then each Indemnifying Party shall, in lieu of indemnifying such Indemnified
Party, contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Notes, on the one
hand, and a Holder with respect to the sale by such Holder of Securities, on the
other, 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 on the one hand and such Holder on the other with respect to the
statements or omissions that 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 on the one hand
and a Holder on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes (before deducting expenses) received by or on behalf of the
Company, on the one hand, and the total net proceeds (before deducting expenses)
received by such Holder upon a resale of the Securities, on the other, bear to
the total gross proceeds from the sale of all Securities pursuant to the Shelf
Registration Statement in the offering of the Securities from which the
contribution claim arises. The relative fault shall be determined by reference
to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to the Company or information supplied by the
Company on the one hand or to such Holder or any information supplied by such
Holder on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 7 were to be determined by
pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an Indemnified Party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7
shall be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, no Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities sold by such Holder to any purchaser exceeds the amount of any
damages which such Holder has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
8. Information Requirements
The Company covenants that, if at any time before the end of the Effective
Period the Company is not subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder and take such further reasonable and
customary action as any Holder may reasonably request in writing (including,
without limitation, making such reasonable and customary representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitations of the exemptions provided by
Rule 144 and Rule 144A and customarily taken in connection with sales pursuant
to such exemptions. Upon the written request of any Holder, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such filing requirements, unless such a statement has been included in the
Company's most recent report filed pursuant to Section 13 or Section 15(d) of
Exchange Act. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company to register any of its securities under any
section of the Securities Act or the Exchange Act.
9. Miscellaneous
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of the Majority Holders. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities are being sold
pursuant to the Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate amount of the Securities being sold by such Holders
pursuant to the Shelf Registration Statement who are so affected. Each Holder at
the time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 9(a), whether or not any
notice,
writing or marking indicating such amendment, modification, supplement, waiver
or consent appears on the Registrable Securities or is delivered to such Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) If to the Company, initially at the address set forth in the
Purchase Agreements;
(2) If to a Holder, to the address of such Holder set forth in
the security register, the Notice and Questionnaire or other records
of the Company.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one (1) Business Day
after being delivered to a next-day air courier; five (5) Business Days after
being deposited in the mail, if being delivered by first-class mail; and when
receipt is acknowledged by the recipient's telecopier machine, if sent by
telecopier.
(c) Successors and Assigns. This Agreement shall be binding upon the
Company and each of its successors and assigns. Any person who purchases any
Registrable Securities from an Investor shall be deemed, for purposes of this
Agreement, to be an assignee of the Investor. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and shall inure to the benefit of and be binding upon each Holder, provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Securities in violation of the terms of the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities, such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the benefits hereof.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(g) Remedies. In the event of a breach by the Company or by any Holder
of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of its obligations hereunder for which
Additional Interest has been paid pursuant to Section 2 hereof), will be
entitled to specific performance of its rights under this Agreement. The Company
and each Holder agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agree
that, in the event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be adequate.
(h) No Contrary Agreements. The Company represents, warrants and
agrees that (i) it has not entered into and shall not on or after the date of
this Agreement enter into any agreement that violates the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof and
(ii) without limiting the generality of the foregoing, without the written
consent of the Majority Holders, it shall not grant to any Person the right to
request the Company to register any securities of the Company under the
Securities Act unless the rights so granted do not violate the provisions of
this Agreement.
(i) No Piggyback on Registrations. Neither the Company nor any of its
security holders (other than the Holders in such capacity) shall have the right
to include any securities of the Company in any Shelf Registration Statement
other than Registrable Securities.
(j) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any term, provision, covenant or restriction that may be hereafter
declared invalid, illegal, void or unenforceable.
(k) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any Holder, any
director, officer or partner of such Holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Registrable
Securities pursuant to the Purchase Agreement and the transfer and registration
of Registrable Securities by such Holder.
(l) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of Securities is required
hereunder, Securities held by the Company or its subsidiaries shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(m) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effective Period, except for any
liabilities or obligations under Sections 4, 5, 6 and 7 hereof and the
obligations to make payments of and provide for Additional Interest under
Section 2(e) hereof, to the extent such liabilities, obligations or Additional
Interest accrue prior to the end of the Effective Period, each of which shall
remain in effect in accordance with its terms.
* * *
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date set forth in the first paragraph hereof.
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
INVESTOR SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
* SEE SCHEDULE OF INVESTORS BELOW
----------------------------------------
(print full legal name of Investor)
By:
------------------------------------
(signature of authorized
representative)
Name:
----------------------------------
Its:
-----------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Telephone:
-----------------------------
Email:
---------------------------------
Tax I.D. or SSN:
-----------------------
*SCHEDULE OF INVESTORS
PRINCIPAL
NAME AMOUNT
---- -----------
*Fidelity Puritan Fund: Fidelity Balanced Fund 9,274,000
*Fidelity Advisor Series I Fidelity Advisor Balanced Fund 517,000
*Variable Insurance Products Fund III: Balanced Portfolio 186,000
*Fidelity Financial Trust: Fidelity Convertible Securities Fund 21,000,000
*Fidelity Advisor Series VII: Fidelity Advisor Health Care Fund 719,000
*Variable Insurance Products Fund IV: Health Care Portfolio 86,000
*Fidelity Select Portfolios: Health Care Portfolio 2,190,000
*Fidelity Select Portolios: Medical Delivery Portfolio 677,000
*Fidelity Central Investment Portfolio LLC: Fidelity Healthcare
Central Investment Portfolio 851,000
*Fidelity Financial Trust: Fidelity Strategic Dividend & Income
Fund 4,000,000
Xxxxxx Xxxxxxx Convertible Securities Trust 1,700,000
Xxx Xxxxxx Harbor Fund 3,300,000
Evergreen Strategic Income 13,500,000
Evergreen Strategic Income VA 4,000,000
Xxxxxxxxx & Company, Inc. 25,000,000
OCM Convertible Trust 1,685,000
Delaware Public Employee's Retirement System 2,985,000
Vanguard Convertible Securities Fund Inc. 8,400,000
Microsoft Capital Group, L.P. - Domestic Convertible 530,000
International Truck & Engine Corporation NonContributory
Retirement Plan Trust 515,000
International Truck & Engine Corporation Retirement Plan for
Salaried Employees Trust 285,000
International Truck and Engine Corporation Retiree Health
Benefit Trust 310,000
X.X. Xxxxx Foundation Inc. 915,000
Virginia Retirement System 5,330,000
ACE Tempest Reinsurance Ltd. - Domestic Convertible 1,185,000
National Railroad Retirement Investment Trust 2,860,000
Xxxxxx Privelege Portfolio SICAV 10,000,000
Arkansas P.E.R.S. 1,525,000
Boilermakers Blacksmith Pension Trust 1,665,000
FPL Group Employees Pension Plan 810,000
Columbia Convertible Securities Fund 10,000,000
Mill River Master Fund, L.P. 8,000,000
Blue Chip Multi-Strategy Master Fund L.P. 2,000,000
Allstate Insurance Company 4,000,000
-----------
TOTAL 150,000,000
===========
* This Investor, or an affiliate thereof, has filed a disclosure on Form SC-13G
with the SEC disclosing holdings of greater than 5% of our common stock.
ANNEX A
NOTICE AND QUESTIONNAIRE
INVERNESS MEDICAL INNOVATIONS, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of __________% Convertible Senior Subordinated
Notes due 2016 (the "Notes") of Inverness Medical Innovations, Inc. (the
"Company") and/or common stock, par value $.001 per share, issued or issuable
upon conversion of the Notes (the "Registrable Securities") understands that the
Company has filed or intends to file with the Securities and Exchange Commission
a registration statement (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities, in accordance with the
terms of the registration rights agreement to be dated as of May __, 2007 (the
"Registration Rights Agreement"), among the Company and the Initial Purchasers
named therein. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not
otherwise defined herein shall have the meaning ascribed thereto in the
Registration Rights Agreement.
Each beneficial holder of Registrable Securities, including beneficial holders
of Notes convertible into Registrable Securities (each a "beneficial owner"), is
entitled to the benefits of the Registration Rights Agreement. In order to sell
or otherwise dispose of any Registrable Securities pursuant to the Shelf
Registration Statement, a beneficial owner of Registrable Securities will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Company as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, within 10 business days
after such receipt, file such amendments to the Shelf Registration Statement or
supplements to the related prospectus as are necessary to permit such holder to
deliver such prospectus to purchasers of Registrable Securities.
The Company has agreed to pay additional amounts pursuant to the
Registration Rights Agreement under certain circumstances set forth therein.
Also, certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of Registrable
Securities hereby gives notice to the Company of its intention to sell or
otherwise dispose of Registrable Securities beneficially owned by it and listed
below in Item 3 (unless otherwise specified under such Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
Pursuant to the Registration Rights Agreement the undersigned has agreed to
indemnify and hold harmless the Company's directors and officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against certain losses arising in
connection with statements concerning the undersigned made in the Company's
Shelf Registration Statement or the related prospectus in reliance upon the
information provided in this Notice and Questionnaire.
If the Selling Securityholder transfers all or any portion of the Registrable
Securities listed in Item 3 below after the date on which such information is
provided to the Company, the Selling Securityholder agrees to notify the
transferee(s) at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
QUESTIONNAIRE
Please respond to every item, even if your response is "none" or "not
applicable." If you need more space for any response, please attach additional
sheets of paper. Please be sure to indicate your name and the number of the item
being responded to on each such additional sheet of paper, and to sign each such
additional sheet of paper before attaching it to this Questionnaire. Please note
that you may be asked to answer additional questions depending on your responses
to the following questions.
If you have any questions about the contents of this Questionnaire or who should
complete this Questionnaire, please contact the Company's Chief Legal Officer at
telephone number: (000) 000-0000.
The undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:
1. Your Identity and Background as the Beneficial Owner of the Registrable
Securities.
(a) Your full legal name:
_____________________________________________________________________
(b) Your business address (including street address) (or residence if no
business address), telephone number and facsimile number:
Address: _____________________________________________________________
_____________________________________________________________________
Telephone No.: _______________________________________________________
Fax No.: _____________________________________________________________
(c) Are you a broker-dealer registered pursuant to Section 15 of the
Exchange Act?
[ ] Yes
[ ] No
(d) If your response to Item 1(c) above is no, are you an "affiliate" of a
broker-dealer registered pursuant to Section 15 of the Exchange Act?
[ ] Yes
[ ] No
For the purposes of this Item 1(d), an "affiliate" of a registered
broker-dealer includes any person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, such broker-dealer, and does not include any
individuals employed by such broker-dealer or its affiliates.
(e) Full legal name of person through which you hold the Registrable
Securities--(i.e., name of your broker or the DTC participant, if
applicable, through which your Registrable Securities are held):
Name of Broker: ______________________________________________________
DTC No.: _____________________________________________________________
Contact person: ______________________________________________________
Telephone No.: _______________________________________________________
2. Your Relationship with the Company.
(a) Have you or any of your affiliates, officers, directors or principal
equity holders (owners of 5% or more of the equity securities of the
undersigned) held any position or office or have you had any other
material relationship with the Company (or its predecessors or
affiliates) within the past three years?
[ ] Yes
[ ] No
(b) If your response to Item 2(a) above is yes, please state the nature
and duration of your relationship with the Company:
______________________________________________________________________
______________________________________________________________________
3. Your Interest in the Registrable Securities.
(a) State the type and aggregate amount of Registrable Securities
beneficially owned by you:
______________________________________________________________________
State the CUSIP No(s). of such Registrable Securities beneficially
owned by you:
______________________________________________________________________
State the amount of such Registrable Securities, if any, that you have
previously reported to the Company using this form of Questionnaire:
______________________________________________________________________
(b) Other than as set forth in your response to Item 3(a) above, do you
beneficially own any other securities of the Company?
[ ] Yes
[ ] No
(c) If your answer to Item 3(b) above is yes, state the type, the
aggregate amount and CUSIP No. of such other securities of the Company
beneficially owned by you:
Type: ________________________________________________________________
Aggregate amount: ____________________________________________________
CUSIP No.: ___________________________________________________________
(d) Did you acquire the securities listed in Item 3(a) above in the
ordinary course of business?
[ ] Yes
[ ] No
(e) At the time of your purchase of the securities listed in Item 3(a)
above, did you have any agreements or understandings, direct or
indirect, with any person to distribute the securities?
[ ] Yes
[ ] No
(f) If your response to Item 3(e) above is yes, please describe such
agreements or understandings:
______________________________________________________________________
______________________________________________________________________
4. Nature of your Beneficial Ownership. YOU MUST FULLY COMPLETE (A), (B) OR
(C) BELOW.
(a) Check if the beneficial owner set forth in your response to Item 1(a)
is any of the below:
(i) A reporting company under the Exchange Act. [ ]
(ii) A majority owned subsidiary of a reporting company under the
Exchange Act. [ ]
(iii) A registered investment fund under the 0000 Xxx. [ ]
(b) If the beneficial owner of the Registrable Securities set forth in
your response to Item 1(a) above is a limited partnership, state the
names of the general partners of such limited partnership:
______________________________________________________________________
______________________________________________________________________
(i) With respect to each general partner listed in Item 4(b) above
who is not a natural person and is not publicly held, name each
shareholder (or holder of partnership interests, if applicable)
of such general partner. If any of these named shareholders are
not natural persons or publicly-held entities, please provide the
same information. This process should be repeated until you reach
natural persons or a publicly-held entity.
(c) Name your controlling shareholder(s) (the "Controlling Entity"). If
the Controlling Entity is not a natural person and is not a
publicly-held entity, name each shareholder of such Controlling
Entity. If any of these named shareholders are not natural persons or
publicly-held entities, please provide the same information, This
process should be repeated until you reach natural persons or a
publicly-held entity.
(i) (A) Full legal name of Controlling Entity(ies) or natural
person(s) who have sole or shared voting or dispositive power
over the Registrable Securities:
_________________________________________________________________
_________________________________________________________________
(B) Business address (including street address) (or residence
if no business address), telephone number and facsimile number
of such person(s):
Address: _______________________________________________________
________________________________________________________________
Telephone No. __________________________________________________
________________________________________________________________
Fax No.: _______________________________________________________
(C) Name of shareholders: ______________________________________
(ii) (A) Full legal name of Controlling Entity(ies): _________________
(B) Business address (including street address) (or residence
if no business address), telephone number and facsimile number
of such person(s):
Address: ________________________________________________________
_________________________________________________________________
Telephone No.: __________________________________________________
_________________________________________________________________
Fax No.: ________________________________________________________
_________________________________________________________________
(iii) Name of shareholders:
________________________________________________________________
________________________________________________________________
5. Plan of Distribution.
Except as set forth below, the undersigned (including its donees or ledges)
intends to distribute the Registrable Securities listed above in Item 3 pursuant
to the Shelf Registration Statement only as follows (if at all): The notes and
the common stock issuable upon conversion
of the notes may be sold or otherwise distributed in one or more transactions
at fixed prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale or at negotiated prices. The sales or
other distributions may be completed in transactions (which may involve block or
cross transactions):
- on any national securities exchange or quotation service on which the notes
or the common stock issuable upon conversion of the notes are listed or
quoted at the time of sale;
- in the over-the-counter market;
- in ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- in purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- in an exchange distribution in accordance with the rules of the applicable
exchange;
- pursuant to Rule 144;
- in a combination of any such methods of sale; or
- in any other method permitted pursuant to applicable law.
In connection with sales of the notes and the common stock issuable upon
conversion of the notes, the selling security holders may:
- loan or pledge the securities to broker-dealers or other financial
institutions that in turn may sell the securities; or
- enter into option or other transactions with broker-dealers or other
financial institutions that require the delivery by the selling security
holders of notes or the common stock issuable upon conversion of the notes,
which the broker-dealer or other financial institution may resell pursuant
to this prospectus;.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior written
agreement of the Company.
The undersigned acknowledges its obligation to comply with the provisions of the
Exchange Act and the rules thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Registrable Securities pursuant to the
Registration Rights Agreement. The undersigned agrees that neither it nor any
person acting on its behalf will engage in any transaction in violation of such
provisions.
The undersigned beneficial owner and selling securityholder hereby acknowledges
its obligations under the Registration Rights Agreement to indemnify and hold
harmless certain persons as set forth therein. Pursuant to the Registration
Rights Agreement, the Company has agreed under certain circumstances to
indemnify the undersigned beneficial owner and selling securityholder against
certain liabilities.
In accordance with the undersigned's obligation under the Registration Rights
Agreement to provide such information as may be required by law for inclusion in
the Shelf Registration Statement, the undersigned agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein that
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains effective.
All notices to the beneficial owner hereunder and pursuant to the Registration
Rights Agreement shall be made in writing to the undersigned at the address set
forth in Item 1(b) of this Notice and Questionnaire.
By signing below, the undersigned acknowledges that it is the beneficial owner
of the Registrable Securities set forth herein, represents that the information
provided herein is accurate, consents to the disclosure of the information
contained in this Notice and Questionnaire and the inclusion of such information
in the Shelf Registration Statement and the related prospectus. The undersigned
understands that such information will be relied upon by the Company in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus.
Once this Notice and Questionnaire is executed by the undersigned beneficial
owner and received by the Company, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives and assigns of the Company and the
undersigned beneficial owner. This Notice and Questionnaire shall be governed in
all respects by the laws of the State of New York, without giving effect to
rules governing the conflict of laws.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
NAME OF BENEFICIAL OWNER:
----------------------------------------
(Please Print)
Signature:
-----------------------------
Date:
----------------------------------
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE TO THE COMPANY INTERNATIONAL INC AS FOLLOWS:
Inverness Medical Innovations, Inc.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Legal Officer
with a faxed copy to:
Xxxxx Xxxx LLP
Seaport World Trade Center West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxx
