EXHIBIT 1.1
6,000,000 SHARES
INVERNESS MEDICAL INNOVATIONS, INC.
COMMON STOCK, PAR VALUE $.001 PER SHARE
UNDERWRITING AGREEMENT
January 25, 2007
XXXXXXXXX & COMPANY, INC.
UBS SECURITIES LLC
As Representatives of the several Underwriters
c/o JEFFERIES & COMPANY, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
INTRODUCTORY. Inverness Medical Innovations, Inc., a Delaware corporation
(the "COMPANY"), proposes to issue and sell to the several underwriters named in
Schedule A (the "UNDERWRITERS") an aggregate of 6,000,000 shares of its common
stock, par value $.001 per share (the "SHARES"). The 6,000,000 Shares to be sold
by the Company are called the "FIRM SHARES." In addition, the Company has
granted to the Underwriters an option to purchase up to an additional 900,000
Shares as provided in Section 2. The additional 900,000 Shares to be sold by the
Company pursuant to such option are collectively called the "OPTIONAL SHARES."
The Firm Shares and, if and to the extent such option is exercised, the Optional
Shares are collectively called the "OFFERED SHARES." Jefferies & Company, Inc.
("JEFFERIES") and UBS Securities LLC ("UBS") have agreed to act as
representatives of the several Underwriters (in such capacity, the
"REPRESENTATIVES") in connection with the offering and sale of the Offered
Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") a shelf registration statement on Form S-3 (File
No. 333-138919), and has prepared a base prospectus (the "BASE PROSPECTUS") to
be used in connection with the public offering and sale of the Offered Shares.
Such registration statement, as amended, including the financial statements,
exhibits and schedules thereto, in the form in which it was declared effective
by the Commission under the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (collectively, the "SECURITIES ACT"),
including all documents incorporated or deemed to be incorporated by reference
therein and any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act or the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the "EXCHANGE ACT"), is called the "REGISTRATION
STATEMENT." The preliminary prospectus supplement dated January 18, 2007
describing the Offered Shares and the offering thereof, together with the Base
Prospectus, is called the "PRELIMINARY PROSPECTUS," and the Preliminary
Prospectus and any other preliminary prospectus supplement to the Base
Prospectus that describes the Offered Shares and the offering thereof and is
used prior to the filing of the Prospectus (as defined below), together with the
Base Prospectus, is called a "PRELIMINARY PROSPECTUS." As used herein, the term
"PROSPECTUS" shall mean the final prospectus supplement to the Base Prospectus
that describes the Offered Shares and the offering thereof (the "FINAL
PROSPECTUS SUPPLEMENT"), together with the Base Prospectus, in the form first
used by the Underwriters to confirm sales of the Offered Shares or in the form
first made
available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act. As used herein, "APPLICABLE TIME"
is 8:30 p.m. (New York time) on January 25, 2006. As used herein, "FREE WRITING
PROSPECTUS" has the meaning set forth in Rule 405 under the Securities Act, and
"TIME OF SALE PROSPECTUS" means the preliminary prospectus, as amended or
supplemented immediately prior to the Applicable Time, together with the free
writing prospectuses, if any, identified in Schedule B hereto, and each "ROAD
SHOW" (as defined in Rule 433 under the Securities Act), if any, related to the
offering of the Shares contemplated hereby that is a "WRITTEN COMMUNICATION" (as
defined in Rule 405 under the Securities Act) (each such road show, a "ROAD
SHOW"). As used herein, the terms "Registration Statement," "preliminary
prospectus," "Time of Sale Prospectus" and "Prospectus" shall include the
documents incorporated and deemed to be incorporated by reference therein. All
references in this Agreement to the Registration Statement, any preliminary
prospectus, or the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which are "CONTAINED," "INCLUDED" or "STATED" in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus
or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be,
and all references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus
or the Prospectus shall be deemed to mean and include the filing of any document
under the Exchange Act which is or is deemed to be incorporated by reference in
the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus or the Prospectus, as the case may be.
The Company hereby confirms its agreements with the Underwriters as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to each Underwriter, as of the date of this
Agreement, as of the First Closing Date (as hereinafter defined) and as of each
Option Closing Date (as hereafter defined), if any, and covenants with each
Underwriter, as follows:
(a) Compliance with Registration Requirements. (i) At the time of filing
the Registration Statement, (ii) at the time of the most recent amendment to the
Registration Statement for the purposes of complying with Section 10(a)(3) of
the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus) and (iii) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c) under the
Securities Act) made any offer relating to the Offered Shares in reliance on the
exemption of Rule 163 under the Securities Act, the Company was a "well-known
seasoned issuer" as defined in Rule 405 under the Securities Act, including not
having been an "ineligible issuer" as defined in Rule 405 under the Securities
Act.
The Registration Statement is an "automatic shelf registration statement,"
as defined in Rule 405, which became effective on November 22, 2006. The Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) under
the Securities Act objecting to the
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Company's use of the automatic shelf registration form. No stop order suspending
the effectiveness of the Registration Statement is in effect and no proceedings
for such purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all
material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical in all material respects to the copy
thereof delivered to the Underwriters for use in connection with the offer and
sale of the Offered Shares. Each of the Registration Statement, and any
post-effective amendment thereto, at the time it became effective and at all
subsequent times through the final Option Closing Date, complied and will comply
in all material respects with the Securities Act and, at the time it became
effective and as of the First Closing Date (as defined in Section 2) and as of
each Option Closing Date, did not and will not contain any 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. As of the Applicable
Time, the Time of Sale Prospectus did not, and at the First Closing Date, the
Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Prospectus, as
amended or supplemented, as of its date and at all subsequent times through the
final Option Closing Date, did not and will not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth in the three
immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement, or any post-effective amendment thereto, or the
Prospectus or the Time of Sale Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by the Representatives
expressly for use therein, it being understood and agreed that the only such
information furnished by the Representatives to the Company consists of the
information described in Section 8(b) below. There are no contracts or other
documents required to be described in the Time of Sale Prospectus or the
Prospectus or to be filed as exhibits to the Registration Statement which have
not been described or filed as required.
The Company is not an "ineligible issuer" in connection with the offering
of the Offered Shares pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant
to Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act. Each free
writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that was prepared by or behalf of or
used or referred to by the Company complies or will comply in all material
respects with the requirements of Rule 433 under the Securities Act including
timely filing with the Commission or retention where required and legending, and
each such free writing prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Shares
did not, does not and will not include any information that conflicted,
conflicts with or will conflict with the information contained in the
Registration Statement, the Prospectus or any preliminary prospectus, including
any document incorporated by reference therein. Except for the free writing
prospectuses, if any, identified in Schedule B hereto, and electronic road
shows, if any, furnished to you before first use, the Company has not prepared,
used or referred to, and will not, without your prior consent, prepare, use or
refer to, any free writing prospectus.
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(b) Offering Materials Furnished to Underwriters. The Company has
delivered to the Representatives two complete manually signed copies of the
Registration Statement, each amendment thereto and of each consent and
certificate of experts filed as a part thereof, and conformed copies of the
Registration Statement, each amendment thereto (without exhibits) and
preliminary prospectuses, the Time of Sale Prospectus, the Prospectus, as
amended or supplemented, and any free writing prospectus reviewed and consented
to by the Representatives, in such quantities and at such places as the
Representatives have reasonably requested for each of the Underwriters.
(c) Distribution of Offering Material By the Company. The Company has not
distributed and will not distribute, prior to the later of (i) the expiration or
termination of the option granted to the several Underwriters in Section 2 and
(ii) the completion of the Underwriters' distribution of the Offered Shares, any
offering material in connection with the offering and sale of the Offered Shares
other than a preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, any free writing prospectus reviewed and consented to by the
Representatives, or the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles.
(e) Authorization of the Offered Shares. The Offered Shares have been duly
authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and the issuance and sale of the Offered Shares is
not subject to any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase the Offered Shares.
(f) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights as have been
duly waived.
(g) No Material Adverse Change. Except as otherwise disclosed in the Time
of Sale Prospectus, subsequent to the respective dates as of which information
is given in Time of Sale Prospectus: (i) there has been no material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is called a "MATERIAL
ADVERSE CHANGE"); (ii) the Company and its subsidiaries, considered as one
entity, have not incurred any material liability or obligation, indirect, direct
or contingent, not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of business; and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any class
of capital stock.
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(h) Independent Accountants. To the Company's knowledge, BDO Xxxxxxx, LLP,
who have expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission as a part of the Registration
Statement and included in the Prospectus and Time of Sale Prospectus (each, an
"APPLICABLE PROSPECTUS" and collectively, the "APPLICABLE PROSPECTUSES"), are
(i) independent public or certified public accountants as required by the
Securities Act and the Exchange Act, (ii) in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X and (iii) a registered public accounting firm as defined by the
Public Company Accounting Oversight Board (the "PCAOB") whose registration has
not been suspended or revoked and who has not requested such registration to be
withdrawn.
(i) Preparation of the Financial Statements. The financial statements
filed with the Commission as a part of the Registration Statement and included
in the Time of Sale Prospectus and the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of and at
the dates indicated and the results of their operations and cash flows for the
periods specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated therein. Such
financial statements and supporting schedules have been prepared in conformity
with generally accepted accounting principles as applied in the United States
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other financial statements or
supporting schedules are required to be included in the Registration Statement
or any Applicable Prospectus. The financial data set forth in each Applicable
Prospectus under the captions "Prospectus Summary--Summary Consolidated
Financial Data," and "Capitalization" fairly present the information set forth
therein on a basis consistent with that of the audited financial statements
contained in the Registration Statement and each Applicable Prospectus. The pro
forma condensed financial statements of the Company and its subsidiaries and the
related notes thereto included in the Time of Sale Prospectus and the Prospectus
present fairly the information contained therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly presented on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. To the Company's knowledge, no person who
has been suspended or barred from being associated with a registered public
accounting firm, or who has failed to comply with any sanction pursuant to Rule
5300 promulgated by the PCAOB, has participated in or otherwise aided the
preparation of, or audited, the financial statements, supporting schedules or
other financial data filed with the Commission as a part of the Registration
Statement and included in any Applicable Prospectus.
(j) Company's Accounting System. The Company makes and keeps accurate
books and records and maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. There has not been and is no material
weakness in the Company's internal control over financial reporting (whether or
not remediated) since January 1, 2005, and since December 31, 2005, there has
been no change in the Company's internal
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control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over financial
reporting.
(k) Incorporation and Good Standing of the Company and its Subsidiaries.
Each of the Company and its subsidiaries has been duly incorporated or
organized, as the case may be, and is validly existing as a corporation,
partnership or limited liability company, as applicable, in good standing under
the laws of the jurisdiction of its incorporation or organization and has the
power and authority (corporate or other) to own, lease and operate its
properties and to conduct its business as described in each Applicable
Prospectus and, in the case of the Company, to enter into and perform its
obligations under this Agreement. Each of the Company and each subsidiary of the
Company set forth on Schedule C attached hereto (each a "SUBSIDIARY" and,
collectively, the "SUBSIDIARIES") is duly qualified as a foreign corporation,
partnership or limited liability company, as applicable, to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, result in a Material
Adverse Change. Each "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X) of the Company is set forth on Schedule C attached
hereto. All of the issued and outstanding capital stock or other equity or
ownership interests of each Subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or adverse claim. The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
(i) the subsidiaries listed in Exhibit 21 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2005 and the subsidiaries list in
Schedule C attached hereto and (ii) such other entities omitted from Exhibit 21
or Schedule C attached hereto which, when such omitted entities are considered
in the aggregate as a single subsidiary, would not constitute a "significant
subsidiary" within the meaning of Rule 1-02(w) of Regulation S-X.
(l) Capitalization and Other Capital Stock Matters. The authorized, issued
and outstanding capital stock of the Company is as set forth in each Applicable
Prospectus under the caption "Capitalization" (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the Time of
Sale Prospectus or upon the exercise of outstanding options or warrants
described in each Applicable Prospectus). The Shares (including the Offered
Shares) conform in all material respects to the description thereof contained in
the Time of Sale Prospectus. All of the issued and outstanding Shares have been
duly authorized and validly issued, are fully paid and nonassessable and have
been issued in compliance with federal and state securities laws. None of the
outstanding Shares was issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities of
the Company. All outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of the
Company are as set forth and accurately and fairly described, in all material
respects, in each Applicable Prospectus. The description of the Company's stock
option, stock bonus and other stock plans or arrangements, and the options or
other rights granted thereunder, set forth in each Applicable Prospectus
accurately and fairly presents, in all material respects, the information
required to be shown with respect to such plans, arrangements, options and
rights.
(m) Stock Exchange Listing. The Shares are registered pursuant to Section
12(b) of the Exchange Act and are listed on the American Stock Exchange, and the
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Shares under the Exchange Act or delisting
the Shares from the American Stock Exchange, nor has the
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Company received any notification that the Commission or the American Stock
Exchange is contemplating terminating such registration or listing.
(n) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws, partnership agreement or operating
agreement or similar organizational document, as applicable, or is in default
(or, with the giving of notice or lapse of time, would be in default)
("DEFAULT") under any indenture, mortgage, loan or credit agreement, note,
contract, franchise, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound
(including, without limitation, any credit agreement, indenture, pledge
agreement, security agreement or other instrument or agreement evidencing,
guaranteeing, securing or relating to indebtedness of the Company or any of its
subsidiaries ), or to which any of the property or assets of the Company or any
of its subsidiaries is subject (each, an "EXISTING INSTRUMENT"), except for such
Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change. The Company's execution, delivery and performance of this
Agreement, consummation of the transactions contemplated hereby and by each
Applicable Prospectus and the issuance and sale of the Offered Securities (i)
have been duly authorized by all necessary corporate action and will not result
in any violation of the provisions of the charter or by-laws, partnership
agreement or operating agreement or similar organizational document of the
Company or any subsidiary, as applicable, (ii) will not conflict with or
constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable to the
Company or any subsidiary, except, with respect to clauses (ii) and (iii), for
such conflicts, breaches, Defaults, Debt Repayment Triggering Events, liens,
charges, encumbrances or violations as would not, individually or in the
aggregate, result in a Material Adverse Change. No consent, approval,
authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency, is required for the
Company's execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by each Applicable Prospectus,
except such as have been obtained or made by the Company and are in full force
and effect under the Securities Act, applicable state securities or blue sky
laws and from the NASD. As used herein, a "DEBT REPAYMENT TRIGGERING EVENT"
means any event or condition which gives, or with the giving of notice or lapse
of time would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
(o) No Material Actions or Proceedings. Except as otherwise disclosed in
each Applicable Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the Company's knowledge, threatened (i) against or
affecting the Company or any of its subsidiaries, (ii) which have as the subject
thereof any officer or director of, or property owned or leased by, the Company
or any of its subsidiaries or (iii) relating to environmental or discrimination
matters, where in any such case (A) there is a reasonable possibility that such
action, suit or proceeding might be determined adversely to the Company, such
subsidiary or such officer or director, (B) any such action, suit or proceeding,
if so determined adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement or (C) any such action, suit or proceeding is or
would be material in the context of the sale of Shares. No material labor
dispute
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with the employees of the Company or any of its Subsidiaries exists or, to the
Company's knowledge, is threatened or imminent.
(p) Intellectual Property Rights. To the Company's knowledge, the Company
owns, possesses or can acquire on reasonable terms sufficient trademarks,
servicemarks, trade names, patents, copyrights, and any registrations and
applications for any of the foregoing, domain names, licenses, approvals, trade
secrets, know-how, inventions, technology and other similar rights
(collectively, "INTELLECTUAL PROPERTY RIGHTS") reasonably necessary to conduct
its business as now conducted and as proposed to be conducted as set forth in
each Applicable Prospectus (the "BUSINESS"). The operation of the Business by
the Company, together with the Company's use of the Intellectual Property Rights
purported to be owned by, or exclusively licensed to, the Company and used by
the Company in the Business (collectively, "COMPANY INTELLECTUAL PROPERTY
RIGHTS"), does not infringe, misappropriate or otherwise violate the
Intellectual Property Rights of any third party, other than the rights of any
third party under any patent, and to the Company's knowledge, the operation of
the Business, together with the Company's use of any Company Intellectual
Property Rights, does not infringe or otherwise violate the rights of any third
party under any patent. Except as disclosed in each Applicable Prospectus, no
actions, suits, claims or proceedings have been asserted or, to the knowledge of
the Company, threatened against the Company alleging any of the forgoing or
seeking to challenge, deny or restrict the operation of the Business by the
Company, except for such actions, suits claims or proceedings as would not,
individually or in the aggregate, result in a Material Adverse Change. The
Company has not received any written notice of a claim of infringement,
misappropriation or conflict with Intellectual Property Rights of others, except
for such claims, individually or in the aggregate, as would not result in a
Material Adverse Change. No court, administrative body or arbitral body has
issued any order, judgment, decree or injunction restricting the operation of
the Business by the Company.
Except as disclosed in each Applicable Prospectus or except as would not,
individually or in the aggregate, result in a Material Adverse Change, the
Company Intellectual Property Rights owned by the Company and, to the knowledge
of the Company, any Intellectual Property Rights exclusively licensed to the
Company have not been adjudged invalid or unenforceable, in whole or in part,
and there is no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property Rights. Except as disclosed in each Applicable Prospectus,
there is no pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by others challenging the Company's rights in or to
any Company Intellectual Property Rights. Except as otherwise disclosed in each
Applicable Prospectus, the Company is not a party to or bound by any agreements
with respect to the Intellectual Property Rights of any other person or entity
that are required to be set forth in each such Applicable Prospectus. None of
the technology or intellectual property included in, or that is the subject
matter of, the Company Intellectual Property Rights has been obtained or is
being used by the Company in violation of any contractual obligation binding on
the Company or, to the Company's knowledge, any of its officers, directors or
employees.
Other than the patent applications acquired by the Company from a third
party (the "ACQUIRED PATENT APPLICATIONS"), the Company has duly filed or caused
to be filed with the U.S. Patent and Trademark Office (the "PTO") or foreign and
international patent authorities all patent applications disclosed in each
Applicable Prospectus as owned by the Company (the "COMPANY PATENT
APPLICATIONS"). The Company has complied with the PTO's duty of candor and
disclosure for the Company Patent Applications and has made no material
misrepresentation during prosecution of the Company Patent Applications and the
Acquired Patent Applications.
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To the Company's knowledge, the Company Patent Applications disclose patentable
subject matters, correctly name the inventors of the claimed subject matter and
the Company has not been notified of any inventorship challenges nor has any
interference been declared.
The Company has used reasonable security measures, but in no event less
than those efforts that would accord with normal industry practice, to maintain
the confidentiality of the trade secrets and other confidential information
included in the Company Intellectual Property Rights. To the knowledge of the
Company, all material trade secrets included in the Company Intellectual
Property Rights are valid and protectible. Furthermore, to the knowledge of the
Company, (i) there has been no misappropriation of any material trade secrets
included in the Company Intellectual Property Rights by any other person, (ii)
no employee, independent contractor or agent of the Company has misappropriated
any trade secrets of any other person in the course of performance as an
employee, independent contractor or agent of the Company, and (iii) no employee,
independent contractor or agent of the Company is in default or breach of any
term of any employment agreement, nondisclosure agreement, assignment of
invention agreement or similar agreement or contract relating in any way to the
protection, ownership, development, use or transfer of Company Intellectual
Property Rights owned by the Company.
(q) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, and neither the Company nor any subsidiary
has received, or has any reason to believe that it will receive, any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Change.
(r) Title to Properties. Except as otherwise disclosed in each Applicable
Prospectus, the Company and each of its subsidiaries has good and marketable
title to all of the real and personal property and other assets reflected as
owned in the financial statements referred to in Section 1(i) above (or
elsewhere in any Applicable Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, adverse claims and
other defects, except such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases, with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such real property, improvements, equipment or
personal property by the Company or such subsidiary.
(s) Tax Law Compliance. The Company and its consolidated subsidiaries have
filed all necessary federal, state and foreign income and franchise tax returns
and have paid all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied against any
of them, except for such failure to file or pay as would not, individually or in
the aggregate, result in a Material Adverse Change. The Company has made
adequate charges, accruals and reserves in the applicable financial statements
referred to in Section 1(i) above in respect of all federal, state and foreign
income and franchise taxes for all periods as to which the tax liability of the
Company or any of its consolidated subsidiaries has not been finally determined.
9
(t) Company Not an "Investment Company". The Company has been advised of
the rules and requirements under the Investment Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT"). The Company is not, and will not be, either
after receipt of payment for the Offered Shares or after the application of the
proceeds therefrom as described under "Use of Proceeds" in each Applicable
Prospectus, an "INVESTMENT COMPANY" within the meaning of Investment Company
Act.
(u) Insurance. Each of the Company and its subsidiaries are insured by
recognized institutions with policies in such amounts and with such deductibles
and covering such risks as are generally deemed adequate and customary for their
businesses including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries against theft,
damage, destruction, acts of vandalism and earthquakes and policies covering the
Company and its subsidiaries for product liability claims and clinical trial
liability claims. The Company has no reason to believe that it or any subsidiary
will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change. Neither of the
Company nor any subsidiary has been denied any insurance coverage which it has
sought or for which it has applied.
(v) No Price Stabilization or Manipulation; Compliance with Regulation M.
The Company has not taken, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Shares or any other "reference security" (as
defined in Rule 100 of Regulation M under the 1934 Act ("REGULATION M")) whether
to facilitate the sale or resale of the Offered Shares or otherwise, and has
taken no action which would directly or indirectly violate Regulation M.
(w) Related-Party Transactions. There are no business relationships or
related-party transactions involving the Company or any of its subsidiaries or
any other person required to be described in each Applicable Prospectus which
have not been described as required.
(x) S-3 Eligibility. At the time the Registration Statement was originally
declared effective and at the time the Company's Annual Report on Form 10-K for
the year ended December 31, 2005 was filed with the Commission, the Company met
the applicable requirements for use of Form S-3 under the Securities Act. The
Company meets the requirements for use of Form S-3 under the Securities Act
specified in Rule 2710(b)(7)(C)(i) of the National Association of Securities
Dealers Inc. (the "NASD").
(y) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in each Applicable Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act, and, when read
together with the other information in each Applicable Prospectus, at the time
the Registration Statement and any amendments thereto become effective and at
the First Closing Date and the applicable Option Closing Date, as the case may
be, will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(z) NASD Matters. All of the information provided to the Underwriters or
to counsel for the Underwriters by the Company, its officers and directors and
the holders of any securities (debt or equity) or options to acquire any
securities of the Company in connection with letters, filings
10
or other supplemental information provided to NASD Regulation Inc. pursuant to
NASD Conduct Rule 2710 or 2720 is true, complete and correct.
(aa) Statistical and Market-Related Data. The statistical, demographic and
market-related data included in the Registration Statement and each Applicable
Prospectus are based on or derived from sources that the Company believes to be
reliable and accurate or represent the Company's good faith estimates that are
made on the basis of data derived from such sources.
(bb) No Unlawful Contributions or Other Payments. Neither the Company nor
any of its subsidiaries nor, to the Company's knowledge, any employee or agent
of the Company or any subsidiary, has made any contribution or other payment to
any official of, or candidate for, any federal, state or foreign office in
violation of any law or of the character required to be disclosed in the
Registration Statement and each Applicable Prospectus.
(cc) Disclosure Controls and Procedures; Deficiencies in or Changes to
Internal Control Over Financial Reporting. The Company has established and
maintains disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)), which (i) are designed to ensure that material
information relating to the Company, including its consolidated subsidiaries, is
made known to the Company's principal executive officer and its principal
financial officer by others within those entities, particularly during the
periods in which the periodic reports required under the Exchange Act are being
prepared; (ii) have been evaluated by management of the Company for
effectiveness as of a date within 90 days prior to the earlier of the date that
the Company filed its most recent annual or quarterly report with the Commission
and the date of the Time of Sale Prospectus and the Prospectus; and (iii) are
effective in all material respects to perform the functions for which they were
established. The Company is not aware of (i) any significant deficiencies or
material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
Company's ability to record, process, summarize and report financial information
or (ii) any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company's internal control over
financial reporting. The Company is not aware of any change in its internal
control over financial reporting that has occurred during its most recent fiscal
quarter that has materially affected, or is reasonably likely to materially
affect, the Company's internal control over financial reporting. The principal
executive officers (or their equivalents) and principal financial officers (or
their equivalents) of the Company have made all certifications required by the
Xxxxxxxx-Xxxxx Act of 2002 (the "XXXXXXXX-XXXXX ACT") and any related rules and
regulations promulgated by the Commission.
(dd) Compliance with Environmental Laws. Except as described in each
Applicable Prospectus and except as would not, singly or in the aggregate,
result in a Material Adverse Change, (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (ii) the Company and
its subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no
11
pending or, to the Company's knowledge, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (iv) there
are no events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(ee) ERISA Compliance. The Company and its subsidiaries and any "EMPLOYEE
BENEFIT PLAN" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA AFFILIATE" means, with respect to the
Company or a subsidiary, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the "CODE") of
which the Company or such subsidiary is a member. No "REPORTABLE EVENT" (as
defined under ERISA) has occurred or is reasonably expected to occur with
respect to any "employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"AMOUNT OF UNFUNDED BENEFIT LIABILITIES" (as defined under ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(ff) Brokers. Except for the underwriting discounts and commissions
payable to the Underwriters as described in each Applicable Prospectus, there is
no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder's fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(gg) No Outstanding Loans or Other Extensions of Credit. Since the
adoption of Section 13(k) of the Exchange Act, neither the Company nor any of
its subsidiaries has extended or maintained credit, arranged for the extension
of credit, or renewed any extension of credit, in the form of a personal loan,
to or for any director or executive officer (or equivalent thereof) of the
Company and/or such subsidiary except for such extensions of credit as are
expressly permitted by Section 13(k) of the Exchange Act.
(hh) Compliance with Laws. The Company has not been advised, and has no
reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure to be so
in compliance would not result in a Material Adverse Change. The Company, its
subsidiaries and, to the Company's knowledge, the Company's directors and
officers are each in compliance in all material respects with all applicable
effective provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations of
the Commission and the American Stock Exchange promulgated thereunder.
12
(ii) Dividend Restrictions. Except as otherwise described in each
Applicable Prospectus, no subsidiary of the Company is prohibited or restricted,
directly or indirectly, from paying dividends to the Company, or from making any
other distribution with respect to such subsidiary's equity securities or from
repaying to the Company or any other subsidiary of the Company any amounts that
may from time to time become due under any loans or advances to such subsidiary
from the Company or from transferring any property or assets to the Company or
to any other subsidiary.
(jj) Foreign Corrupt Practices Act. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company or any of
its subsidiaries is aware of or has taken any action, directly or indirectly,
that has resulted or would result in a violation of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the
"FCPA"), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "FOREIGN OFFICIAL" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company and its
subsidiaries and, to the knowledge of the Company, the Company's affiliates have
conducted their respective businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably intended to continue to ensure, continued compliance therewith.
(kk) Money Laundering Laws. The operations of the Company and its
subsidiaries are, and have been conducted at all times, in compliance in all
material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar applicable rules,
regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the "MONEY LAUNDERING LAWS") and no action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(ll) OFAC. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or
person acting on behalf of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of this offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
The Company acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 6 hereof, counsel to the Company
and counsel to the Underwriters,
13
will rely upon the accuracy and truthfulness of the foregoing representations
and hereby consents to such reliance.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE OFFERED SHARES.
(a) The Firm Shares. Upon the terms herein set forth, the Company agrees
to issue and sell to the several Underwriters the Firm Shares. On the basis of
the representations, warranties and agreements herein contained, and upon the
terms but subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company the respective number of
Firm Shares set forth opposite their names on Schedule A. The purchase price per
Firm Share to be paid by the several Underwriters to the Company shall be
$37.86575 per share.
(b) The First Closing Date. Delivery of certificates for the Firm Shares
to be purchased by the Underwriters and payment therefor shall be made at the
offices of Jefferies, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (or such other
place as may be agreed to by the Company and the Representatives) at 9:00 a.m.
New York time, on January 31, 2007, or such other time and date not later than
1:30 p.m. New York time, on February 14, 2007 as the Representatives shall
designate by notice to the Company (the time and date of such closing are called
the "FIRST CLOSING DATE"). The Company hereby acknowledges that circumstances
under which the Representatives may provide notice to postpone the First Closing
Date as originally scheduled include, but are in no way limited to, any
determination by the Company or the Representatives to recirculate to the public
copies of an amended or supplemented Prospectus or a delay as contemplated by
the provisions of Section 10.
(c) The Optional Shares; Option Closing Date. In addition, on the basis of
the representations, warranties and agreements herein contained, and upon the
terms but subject to the conditions herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to an aggregate of 900,000 Optional Shares from the Company at the purchase
price per share to be paid by the Underwriters for the Firm Shares. The option
granted hereunder is for use by the Underwriters solely in covering any
over-allotments in connection with the sale and distribution of the Firm Shares.
The option granted hereunder may be exercised at any time and from time to time
in whole or in part upon notice by the Representatives to the Company, which
notice may be given at any time within 30 days from the date of this Agreement.
Such notice shall set forth (i) the aggregate number of Optional Shares as to
which the Underwriters are exercising the option, (ii) the names and
denominations in which the certificates for the Optional Shares are to be
registered and (iii) the time, date and place at which such certificates will be
delivered (which time and date may be simultaneous with, but not earlier than,
the First Closing Date; and in the event that such time and date are
simultaneous with the First Closing Date, the term "FIRST CLOSING DATE" shall
refer to the time and date of delivery of certificates for the Firm Shares and
such Optional Shares). Any such time and date of delivery, if subsequent to the
First Closing Date, is called an "OPTION CLOSING DATE" and shall be determined
by the Representatives and shall not be earlier than three nor later than five
full business days after delivery of such notice of exercise. If any Optional
Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Optional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Optional Shares to be purchased as the
number of Firm Shares set forth on Schedule A opposite the name of such
Underwriter bears to the total number of Firm Shares. The Representatives may
cancel the option at any time prior to exercise thereof and prior to its
expiration by giving written notice of such cancellation to the Company.
14
(d) Public Offering of the Offered Shares. The Representatives hereby
advise the Company that the Underwriters intend to offer for sale to the public,
initially on the terms set forth in the Time of Sale Prospectus and the
Prospectus, their respective portions of the Offered Shares as soon after this
Agreement has been executed and the Registration Statement has been declared
effective as the Representatives, in its sole judgment, has determined is
advisable and practicable.
(e) Payment for the Offered Shares. Payment for the Offered Shares shall
be made at the First Closing Date (and, if applicable, at each Option Closing
Date) by wire transfer of immediately available funds to the order of the
Company.
It is understood that the Representatives have been authorized, for their
own accounts and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the Firm Shares and
any Optional Shares the Underwriters have agreed to purchase. Jefferies or UBS,
individually and not as a Representative of the Underwriters, may (but shall not
be obligated to) make payment for any Offered Shares to be purchased by any
Underwriter whose funds shall not have been received by the Representatives by
the First Closing Date or the applicable Option Closing Date, as the case may
be, for the account of such Underwriter, but any such payment shall not relieve
such Underwriter from any of its obligations under this Agreement.
(f) Delivery of the Offered Shares. The Company shall deliver, or cause to
be delivered, to the Representatives for the accounts of the several
Underwriters certificates for the Firm Shares at the First Closing Date, against
the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The Company shall also deliver, or
cause to be delivered, to the Representatives for the accounts of the several
Underwriters, certificates for the Optional Shares the Underwriters have agreed
to purchase at the First Closing Date or the applicable Option Closing Date, as
the case may be, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price therefor. The
certificates for the Offered Shares shall be in definitive form and registered
in such names and denominations as the Representatives shall have requested at
least two full business days prior to the First Closing Date (or the applicable
Option Closing Date, as the case may be) and shall be made available for
inspection on the business day preceding the First Closing Date (or the
applicable Option Closing Date, as the case may be) at a location in New York
City as the Representatives may designate. Time shall be of the essence, and
delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
SECTION 3. ADDITIONAL COVENANTS OF THE COMPANY. The Company further
covenants and agrees with each Underwriter as follows:
(a) Delivery of Registration Statement, Time of Sale Prospectus and
Prospectus. The Company shall furnish to you, upon request, without charge, two
signed copies of the Registration Statement and any amendments thereto
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement and any amendments thereto (without
exhibits thereto) and shall furnish to you in New York City, without charge,
prior to 10:00 a.m. New York City time on the business day next succeeding the
date of this Agreement and during the period mentioned in Section 3(e) or 3(f)
below, as many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement as you may
reasonably request.
15
(b) Representatives' Review of Proposed Amendments and Supplements. Prior
to amending or supplementing the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus or the Prospectus (including any
amendment or supplement through incorporation by reference of any report filed
under the Exchange Act), the Company shall furnish to the Representatives for
review, a reasonable amount of time prior to the proposed time of filing or use
thereof, a copy of each such proposed amendment or supplement, and the Company
shall not file or use any such proposed amendment or supplement without the
Representatives' consent, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.
(c) Free Writing Prospectuses. The Company shall furnish to the
Representatives for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed free writing prospectus
or any amendment or supplement thereto to be prepared by or on behalf of, used
by, or referred to by the Company and the Company shall not file, use or refer
to any proposed free writing prospectus or any amendment or supplement thereto
without the Representatives' consent. The Company shall furnish to each
Underwriter, without charge, as many copies of any free writing prospectus
prepared by or on behalf of, or used by the Company, as such Underwriter may
reasonably request. If at any time when a prospectus is required by the
Securities Act (including, without limitation, pursuant to Rule 173(d)) to be
delivered in connection with sales of the Offered Shares (but in any event if at
any time through and including the First Closing Date) there occurred or occurs
an event or development as a result of which any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company conflicted
or would conflict with the information contained in the Registration Statement
or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company shall promptly amend or supplement such free writing
prospectus to eliminate or correct such conflict or so that the statements in
such free writing prospectus as so amended or supplemented will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
prevailing at such subsequent time, not misleading, as the case may be;
provided, however, that prior to amending or supplementing any such free writing
prospectus, the Company shall furnish to the Representatives for review, a
reasonable amount of time prior to the proposed time of filing or use thereof, a
copy of such proposed amended or supplemented free writing prospectus and the
Company shall not file, use or refer to any such amended or supplemented free
writing prospectus without the Representatives' consent.
(d) Filing of Underwriter Free Writing Prospectuses. The Company shall not
to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e) Amendments and Supplements to Time of Sale Prospectus. If the Time of
Sale Prospectus is being used to solicit offers to buy the Shares at a time when
the Prospectus is not yet available to prospective purchasers and any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances when delivered to a prospective purchaser, not misleading, or if
any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the
16
Registration Statement, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, including the Securities Act, the Company shall (subject to
Sections 3(b) and 3(c)) forthwith prepare, file with the Commission and furnish,
at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements
in the Time of Sale Prospectus as so amended or supplemented will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances when
delivered to a prospective purchaser, not misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law including the Securities Act.
(f) Securities Act Compliance. After the date of this Agreement, through
the last time that a prospectus is required by the Securities Act (including,
without limitation, pursuant to Rule 173(d)) to be delivered in connection with
sales of the Shares (but in any event if at any time through and including the
final Option Closing Date), the Company shall promptly advise the
Representatives in writing (i) of the receipt of any comments of, or requests
for additional or supplemental information from, the Commission, (ii) of the
time and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any preliminary prospectus, the Time
of Sale Prospectus, any free writing prospectus or the Prospectus, (iii) of the
time and date that any post-effective amendment to the Registration Statement
becomes effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or any amendment or supplement to any preliminary prospectus,
the Time of Sale Prospectus or the Prospectus or of any order preventing or
suspending the use of any preliminary prospectus, the Time of Sale Prospectus,
any free writing prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing the Shares from any securities exchange upon
which they are listed for trading or included or designated for quotation, or of
the threatening or initiation of any proceedings for any of such purposes. If
the Commission shall enter any such stop order at any time through the last time
that a prospectus is required by the Securities Act (including, without
limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of
the Shares (but in any event if at any time through and including the final
Option Closing Date), the Company will use its reasonable commercial efforts to
obtain the lifting of such order at the earliest possible moment. Additionally,
the Company agrees that it shall comply with the provisions of Rule 424(b) and
Rule 433, as applicable, under the Securities Act and will use its reasonable
efforts to confirm that any filings made by the Company under such Rule 424(b)
or Rule 433 were received in a timely manner by the Commission. If, after the
date of this Agreement and through the last time that a prospectus is required
by the Securities Act (including, without limitation, pursuant to Rule 173(d))
to be delivered in connection with sales of the Shares (but in any event if at
any time through and including the final Option Closing Date), the Company
receives notice pursuant to Rule 401(g)(2) under the Securities Act from the
Commission or otherwise ceases to be eligible to use the automatic shelf
registration form, the Company shall promptly advise the Representatives in
writing of such notice or ineligibility and, if Offered Shares remain unsold by
the Underwriters, the Company will (i) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Offered
Shares, (ii) use its reasonable commercial efforts to cause such registration
statement or post-effective amendment to be declared effective by the Commission
as soon as practicable and (iii) promptly notify the Representatives in writing
of such effectiveness.
(g) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. If any event shall occur or condition exist as a result of which it is
necessary to amend or
17
supplement the Prospectus so that the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if in the reasonable
opinion of the Representatives or counsel for the Underwriters it is otherwise
necessary to amend or supplement the Prospectus to comply with applicable law,
including the Securities Act, the Company agrees (subject to Section 3(b) and
3(c)) to promptly prepare, file with the Commission and furnish at its own
expense to the Underwriters and to dealers, amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with applicable law including the Securities Act. Neither the Representatives'
consent to, or delivery of, any such amendment or supplement shall constitute a
waiver of any of the Company's obligations under Sections 3(b) or (c).
(h) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Offered Shares for sale under (or obtain exemptions from the application of) the
state securities or blue sky laws or Canadian provincial securities laws of
those jurisdictions designated by the Representatives, shall comply with such
laws and shall continue such qualifications, registrations and exemptions in
effect so long as required for the distribution of the Offered Shares. The
Company shall not be required to qualify as a foreign corporation or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Offered Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its reasonable commercial
efforts to obtain the withdrawal thereof at the earliest possible moment.
(i) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Offered Shares sold by it in the manner described under the caption
"Use of Proceeds" in each Applicable Prospectus.
(j) Transfer Agent. The Company shall engage and maintain, at its expense,
a registrar and transfer agent for the Shares.
(k) Earnings Statement. As soon as practicable, but in any event not later
than 16 months after the date of this Agreement, the Company will make generally
available to its security holders and to the Representatives an earnings
statement (which need not be audited) covering a period of at least twelve
months beginning after the date of this Agreement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder.
(l) Exchange Act Compliance. During the period through the last time that
a prospectus is required by the Securities Act (including, without limitation,
pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares
(but in any event if at any time through and including the final Option Closing
Date), the Company shall file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner
and within the time periods required by the Exchange Act.
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(m) Listing. The Company will use its reasonable commercial efforts to
list, subject to official notice of issuance, the Offered Shares on the American
Stock Exchange and to maintain the listing of the Shares on the American Stock
Exchange.
(n) Agreement Not to Offer or Sell Additional Shares. During the period
commencing on and including the date hereof and ending on and including the 30th
day following the date of the Prospectus (as the same may be extended as
described below, the "LOCK-UP PERIOD"), the Company will not, without the prior
written consent of the Representatives (which consent may be withheld at the
sole discretion of the Representatives), directly or indirectly, sell
(including, without limitation, any short sale), offer, contract or grant any
option to sell, pledge, transfer or establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of or transfer, or announce the offering of, or file any registration statement
under the Securities Act in respect of, any Shares, options, rights or warrants
to acquire Shares or securities exchangeable or exercisable for or convertible
into Shares (other than as contemplated by this Agreement with respect to the
Offered Shares) or publicly announce the intention to do any of the foregoing;
provided, however, that the Company may (i) issue Shares or options to purchase
Shares, or issue Shares upon exercise of options, pursuant to any stock option,
stock bonus or other stock plan or arrangement described in each Applicable
Prospectus, (ii) issue Shares upon exercise of warrants described in each
Applicable Prospectus and outstanding as of the date of this Agreement and (iii)
issues Shares, options rights or warrants to acquire Shares or securities
exchangeable or exercisable for or convertible into Shares (A) as consideration
for any acquisition, collaboration or other similar strategic transaction to
which the Company or any of its subsidiaries is party pursuant to the terms of a
definitive agreement or (B) in an offering exempt from the registration
requirements under the Securities Act to finance any acquisition, collaboration
or other similar strategic transaction to which the Company or any of its
subsidiaries is party pursuant to the terms of a definitive agreement.
(o) Investment Limitation. The Company shall not invest, or otherwise use
the proceeds received by the Company from its sale of the Offered Shares in such
a manner as would require the Company or any of its subsidiaries to register as
an investment company under the Investment Company Act.
(p) No Stabilization or Manipulation; Compliance with Regulation M. The
Company will not take, directly or indirectly, any action designed to or that
might be reasonably expected to cause or result in stabilization or manipulation
of the price of the Shares or any other reference security, whether to
facilitate the sale or resale of the Offered Shares or otherwise, and the
Company will, and shall cause each of its affiliates to, comply with all
applicable provisions of Regulation M. If the limitations of Rule 102 of
Regulation M ("RULE 102") do not apply with respect to the Offered Shares or any
other reference security pursuant to any exception set forth in Section (d) of
Rule 102, then promptly upon notice from the Representatives (or, if later, at
the time stated in the notice), the Company will, and shall cause each of its
affiliates to, comply with Rule 102 as though such exception were not available
but the other provisions of Rule 102 (as interpreted by the Commission) did
apply.
The Representatives, on behalf of the Underwriters, may, in their sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or extend the time for their performance.
SECTION 4. PAYMENT OF EXPENSES. The Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all
19
expenses incident to the issuance and delivery of the Offered Shares (including
all printing and engraving costs), (ii) all fees and expenses of the registrar
and transfer agent of the Shares, (iii) all necessary issue, transfer and other
stamp taxes in connection with the issuance and sale of the Offered Shares to
the Underwriters, (iv) all fees and expenses of the Company's counsel,
independent public or certified public accountants and other advisors, (v) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of
experts), the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company,
and each preliminary prospectus, and all amendments and supplements thereto, and
this Agreement, (vi) upon receipt of such evidentiary documentation as the
Company shall reasonably request, all filing fees, reasonable attorneys' fees
and expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Offered Shares for offer and sale under
the state securities or blue sky laws or the provincial securities laws of
Canada, and, if requested by the Representatives, preparing and printing a "Blue
Sky Survey" or memorandum and a "Canadian wrapper" and any supplements thereto,
advising the Underwriters of such qualifications, registrations and exemptions,
which fees and expenses shall not exceed $10,000, (vii) the filing fees incident
to, and the reasonable fees and expenses of counsel for the Underwriters in
connection with, the NASD's review, if any, and approval of the Underwriters'
participation in the offering and distribution of the Offered Shares, (viii) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the preparation
or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives, employees and officers of the Company and of the
Representatives and any such consultants, and 50% of the cost of any aircraft
chartered in connection with the road show, (ix) the fees and expenses
associated with listing the Offered Shares on the American Stock Exchange, and
(x) all other fees, costs and expenses of the nature referred to in Item 14 of
Part II of the Registration Statement. Except as provided in this Section 4,
Section 7, Section 8 and Section 9 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel, and including
50% of the cost of any aircraft chartered in connection with the road show. The
Underwriters agree to reimburse the Company for up to $500,000 of the Company's
costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby.
SECTION 5. COVENANT OF THE UNDERWRITERS. Each Underwriter severally and
not jointly, covenants with the Company not to take any action that would result
in the Company being required to file with the Commission pursuant to Rule
433(d) under the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that otherwise would not be required to be filed by
the Company thereunder, but for the action of the Underwriter
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Offered
Shares as provided herein on the First Closing Date and, with respect to the
Optional Shares, each Option Closing Date, shall be subject to the accuracy of
the representations and warranties on the part of the Company set forth in
Section 1 hereof as of the date hereof and as of the First Closing Date as
though then made and, with respect to the Optional Shares, as of each Option
Closing Date as though then made, to the
20
timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Representatives
shall have received from BDO Xxxxxxx, LLP, independent public or certified
public accountants for the Company, (i) a letter dated the date hereof addressed
to the Underwriters, in form and substance satisfactory to the Representatives,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters, delivered according to Statement
of Auditing Standards No. 72 (or any successor bulletin), with respect to the
audited and unaudited financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus, and each
free writing prospectus, if any, and, with respect to each letter dated the date
hereof only, the Prospectus (and the Representatives shall have received an
additional two conformed copies of such accountants' letter for each of the
several Underwriters), and (ii) confirming that they are (A) independent public
or certified public accountants as required by the Securities Act and the
Exchange Act and (B) in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X.
(b) Compliance with Registration Requirements; No Stop Order; No Objection
from NASD. For the period from and after effectiveness of this Agreement and
prior to the First Closing Date and, with respect to the Optional Shares, each
Option Closing Date:
(i) the Company shall have filed the Prospectus with the Commission
(including the information previously omitted from the Registration
Statement pursuant to Rule 430B under the Securities Act) in the manner
and within the time period required by Rule 424(b) under the Securities
Act; or the Company shall have filed a post-effective amendment to the
Registration Statement containing the information previously omitted
pursuant to such Rule 430B, and such post-effective amendment shall have
become effective;
(ii) no stop order suspending the effectiveness of the Registration
Statement, or any post-effective amendment to the Registration Statement,
shall be in effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For the period
from and after the date of this Agreement through and including the First
Closing Date and, with respect to the Optional Shares, each Option Closing Date:
(i) in the judgment of the Representatives there shall not have
occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of the Company or
any of its subsidiaries by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
21
(d) Opinion of Counsel for the Company. On each of the First Closing Date
and each Option Closing Date the Representatives shall have received the opinion
of Xxxxxxx Procter LLP, counsel for the Company, dated as of such Closing Date,
in form and substance satisfactory to the Representatives and counsel to the
Underwriters (and the Representatives shall have received an additional two
signed copies of each such counsel's legal opinion for each of the several
Underwriters).
(e) Opinion of Counsel for the Underwriters. On each of the First Closing
Date and each Option Closing Date, the Representatives shall have received the
opinion of Xxxxx Day, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters, dated as of such Closing Date.
(f) Officers' Certificate. On each of the First Closing Date and each
Option Closing Date, the Representatives shall have received a written
certificate executed by the Chief Executive Officer or President of the Company
and the Chief Financial Officer of the Company, dated as of such Closing Date,
to the effect set forth in subsections (b)(ii) and (c)(ii) of this Section 6,
and further to the effect that:
(i) for the period from and including the date of this Agreement and
through and including such Closing Date, there has not occurred any
Material Adverse Change;
(ii) to their knowledge, the representations, warranties and
covenants of the Company set forth in Section 1 of this Agreement are true
and correct with the same force and effect as though expressly made on and
as of such Closing Date; and
(iii) to their knowledge, the Company has complied with all the
agreements hereunder and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date.
(g) Bring-down Comfort Letter. On each of the First Closing Date and each
Option Closing Date the Representatives shall have received from BDO Xxxxxxx,
LLP, independent public or certified public accountants for the Company, a
letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made in the
letter furnished by them pursuant to subsection (a) of this Section 6, except
that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the First Closing Date or the
applicable Option Closing Date, as the case may be (and the Representatives
shall have received an additional two conformed copies of such accountants'
letter for each of the several Underwriters).
(h) Additional Documents. On or before each of the First Closing Date and
each Option Closing Date, the Representatives and counsel for the Underwriters
shall have received such information, documents and opinions as they may
reasonably request for the purposes of enabling them to pass upon the issuance
and sale of the Offered Shares as contemplated herein, or the satisfaction of
any of the conditions or agreements, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale of the Offered Shares as
contemplated herein and in connection with the other transactions contemplated
by this Agreement shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
If any condition specified in this Section 6 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time
22
on or prior to the First Closing Date and, with respect to the Optional Shares,
at any time on or prior to the applicable Option Closing Date, which termination
shall be without liability on the part of any party to any other party, except
that Section 4, Section 7, Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
SECTION 7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If this Agreement is
terminated by the Representatives pursuant to Section 6 or Section 11, or if the
sale to the Underwriters of the Offered Shares on the First Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Representatives and the other Underwriters
(or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Representatives and the Underwriters in
connection with the proposed purchase and the offering and sale of the Offered
Shares, including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its officers and employees, and each person,
if any, who controls any Underwriter within the meaning of the Securities Act or
the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter or such officer, employee or controlling
person may become subject, under the Securities Act, the Exchange Act, other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading; or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus that the
Company has used, referred to or filed, or is required to file, pursuant to Rule
433(d) of the Securities Act or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon any matter
covered by clause (i) or (ii) above, provided that the Company shall not be
liable under this clause (iii) to the extent that a court of competent
jurisdiction shall have determined by a final judgment that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its bad faith
or willful misconduct and to reimburse each Underwriter and each such officer,
employee and controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by Jefferies) as such expenses are reasonably
incurred by such Underwriter or such officer, employee or controlling person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information
23
furnished to the Company by the Representatives expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any such free writing prospectus or the Prospectus (or any amendment or
supplement thereto), it being understood and agreed that the only such
information furnished by the Representatives to the Company consists of the
information described in subsection (b) below. The indemnity agreement set forth
in this Section 8(a) shall be in addition to any liabilities that the Company
may otherwise have.
(b) Indemnification of the Company and its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation), insofar
as such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus that the Company has used, referred to or filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act or the
Prospectus (or such amendment or supplement thereto), or arises out of or is
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, such preliminary prospectus, the Time of Sale
Prospectus, such free writing prospectus that the Company has used, referred to
or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act,
the Prospectus (or such amendment or supplement thereto), in reliance upon and
in conformity with written information furnished to the Company by the
Representatives expressly for use therein; and to reimburse the Company, or any
such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The Company
hereby acknowledges that the only information that the Representatives and the
Underwriters have furnished to the Company expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or
supplement thereto) are the statements set forth in the table in the first
paragraph and as set forth in the third and tenth paragraphs under the caption
"Underwriting" in the Time of Sale Prospectus and the Prospectus. The indemnity
agreement set forth in this Section 8(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any indemnified party for contribution under
Section 9 below or otherwise under the indemnity agreement contained in this
Section 8, except to the extent such indemnifying party is materially prejudiced
as a proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to
24
participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the fees and expenses of more than
one separate firm of attorneys (together with local counsel), representing the
indemnified parties who are parties to such action), which counsel (together
with any local counsel) for the indemnified parties shall be selected by
Jefferies (in the case of counsel for the indemnified parties referred to in
Section 8(a) above) or by the Company (in the case of counsel for the
indemnified parties referred to in Section 8(b) above)), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party authorizes the
indemnified party to employ separate counsel at the indemnifying party's
expense, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written consent
(such consent not to be unreasonably withheld, delayed or conditioned), but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 8(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such 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, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was
or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
SECTION 9. CONTRIBUTION. If the indemnification provided for in Section 8
is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each
25
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the Offered
Shares pursuant to this Agreement 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 the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Offered Shares pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Offered Shares pursuant to this Agreement
(before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth on the front cover page of the Prospectus bear to the aggregate initial
public offering price of the Offered Shares as set forth on such cover. The
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Underwriters, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 8(c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(c) for purposes of indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions received by such Underwriter in connection with the Offered Shares
underwritten by it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their respective names
on Schedule A. For purposes of this Section 9, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company with the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the Company.
26
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS. If, on the
First Closing Date or the applicable Option Closing Date, as the case may be,
any one or more of the several Underwriters shall fail or refuse to purchase
Offered Shares that it or they have agreed to purchase hereunder on such date,
and the aggregate number of Offered Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Offered Shares to be purchased on such date, the
Representatives may make arrangements satisfactory to the Company for the
purchase of such Offered Shares by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
other Underwriters shall be obligated, severally and not jointly, in the
proportions that the number of Firm Shares set forth opposite their respective
names on Schedule A bears to the aggregate number of Firm Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase the Offered Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If, on the First Closing Date or the applicable Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Offered Shares and the aggregate number of Offered Shares
with respect to which such default occurs exceeds 10% of the aggregate number of
Offered Shares to be purchased on such date, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Offered Shares are
not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of
Section 4, Section 8 and Section 9 shall at all times be effective and shall
survive such termination. In any such case either the Representatives or the
Company shall have the right to postpone the First Closing Date or the
applicable Option Closing Date, as the case may be, but in no event for longer
than seven days in order that the required changes, if any, to the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected.
As used in this Agreement, the term "UNDERWRITER" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 11. TERMINATION OF THIS AGREEMENT. Prior to the purchase of the
Firm Shares by the Underwriters on the First Closing Date this Agreement may be
terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Company's securities shall have been
suspended or limited by the Commission or by American Stock Exchange, or trading
in securities generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended or limited, or minimum or maximum
prices shall have been generally established on any of such stock exchanges by
the Commission or the NASD; (ii) a general banking moratorium shall have been
declared by any of federal, New York, or Delaware authorities; (iii) there shall
have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or development
involving a prospective substantial change in United States' or international
political, financial or economic conditions, as in the judgment of the
Representatives is material and adverse and makes it impracticable to market the
Offered Shares in the manner and on the terms described in the Time of Sale
Prospectus or the Prospectus or to enforce contracts for the sale of securities;
(iv) in the judgment of the Representatives there shall have occurred any
Material Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
in the judgment of the Representatives may interfere materially with the conduct
of the business and operations of the Company regardless of whether or not such
loss
27
shall have been insured. Any termination pursuant to this Section 11 shall be
without liability on the part of (a) the Company to any Underwriter, except that
the Company shall be obligated to reimburse the expenses of the Representatives
and the Underwriters pursuant to Sections 4 and 7 hereof, (b) any Underwriter to
the Company, or (c) of any party hereto to any other party except that the
provisions of Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
SECTION 12. NO ADVISORY OR FIDUCIARY RELATIONSHIP. The Company
acknowledges and agrees that (a) the purchase and sale of the Offered Shares
pursuant to this Agreement, including the determination of the public offering
price of the Offered Shares and any related discounts and commissions, is an
arm's-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
SECTION 13. RESEARCH ANALYST INDEPENDENCE. The Company acknowledges that
the Underwriters' research analysts and research departments are required to and
should be independent from their respective investment banking divisions and are
subject to certain regulations and internal policies, and as such Underwriters'
research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company or
the offering that differ from the views of their respective investment banking
divisions. The Company understands that each of the Underwriters is a full
service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of
its customers and hold long or short positions in debt or equity securities of
the companies that may be the subject of the transactions contemplated by this
Agreement.
SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the Offered Shares
sold hereunder and any termination of this Agreement.
SECTION 15. NOTICES. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
28
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
If to the Company:
Inverness Medical Innovations, Inc.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxx Procter LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx III, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 10 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "SUCCESSORS" shall not include any purchaser
of the Offered Shares as such from any of the Underwriters merely by reason of
such purchase.
SECTION 17. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 18. GOVERNING LAW PROVISIONS. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state. Any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby ("RELATED PROCEEDINGS")
29
may be instituted in the federal courts of the United States of America located
in the Borough of Manhattan in the City of New York or the courts of the State
of New York in each case located in the Borough of Manhattan in the City of New
York (collectively, the "SPECIFIED COURTS"), and each party irrevocably submits
to the exclusive jurisdiction (except for proceedings instituted in regard to
the enforcement of a judgment of any such court (a "RELATED JUDGMENT"), as to
which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or document by
mail to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
With respect to any Related Proceeding, each party irrevocably waives, to
the fullest extent permitted by applicable law, all immunity (whether on the
basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts, and with respect to any Related
Judgment, each party waives any such immunity in the Specified Courts or any
other court of competent jurisdiction, and will not raise or claim or cause to
be pleaded any such immunity at or in respect of any such Related Proceeding or
Related Judgment, including, without limitation, any immunity pursuant to the
United States Foreign Sovereign Immunities Act of 1976, as amended.
SECTION 19. GENERAL PROVISIONS. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, each free writing prospectus and the
Prospectus (and any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
30
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Xxx Xxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxx
Title: President & CEO
The foregoing Underwriting Agreement is hereby confirmed and accepted by
the Representatives in New York, New York as of the date first above written.
XXXXXXXXX & COMPANY, INC.
UBS SECURITIES LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By: XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
By: UBS SECURITIES LLC
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate Director
31
SCHEDULE A
NUMBER OF
FIRM SHARES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
Xxxxxxxxx & Company, Inc. ................................ 2,400,000
UBS Securities LLC........................................ 1,800,000
Xxxxx & Company, LLC...................................... 900,000
Leerink Xxxxx & Co., Inc.................................. 900,000
Total............................................ 6,000,000
SCHEDULE B
Schedule of Free Writing Prospectuses included in the Time of Sale
Prospectus
Term Sheet, dated January 25, 2007, set forth below:
Issuer: Inverness Medical Innovations, Inc.
Symbol: IMA
Exchange: American Stock Exchange
Shares Offered: 6,000,000 shares of Common Stock
Over-Allotment Option: 900,000 shares of Common Stock
Public Offering Price Per Share: $39.65
Underwriting Discounts and $ 1.78
Commissions Per Share:
Net Proceeds: Inverness will receive net proceeds from
this offering of approximately $227.2
million (approximately $261.3 million if
the underwriters' over-allotment option is
exercised in full), after deducting
underwriting discounts and commissions and
taking into effect the reimbursement by the
underwriters of a portion of the offering
expenses payable by Inverness.
Use of Proceeds: Inverness intends to use approximately $37.9
million (approximately $43.5 million if the
underwriters' over-allotment option is
exercised in full) of the net proceeds to
repay a portion of the indebtedness
outstanding under its U.S. term loan and the
remaining net proceeds for working capital
and other general corporate purposes,
including the financing of potential
acquisitions or other investments, if and
when suitable opportunities arise, and for
capital expenditures. Inverness currently
has no agreements or commitments to complete
any acquisition with any net proceeds, but
is in the process of completing some small
acquisitions that would not be significant
for financial reporting purposes and for
which the purchase prices would be paid in
cash from existing sources of liquidity.
Dilution: Adjusted net tangible book value per share
after offering: $5.52 (approximately $6.16
if the underwriters' over-allotment option
is exercised in full)
Dilution per share to new investors: $34.13
(approximately $33.49 if the underwriters'
over-allotment option is exercised in full)
Number of Shares of Common Stock 44,760,806 (45,660,806 if the underwriters'
Outstanding After the Offering: over-allotment option is exercised in full)
(based on number of shares outstanding as of
September 30, 2006)
Trade Date: January 26, 2007
Settlement Date: January 31, 2007
Underwriters: Xxxxxxxxx & Company, Inc.
UBS Securities LLC
Xxxxx and Company, LLC
Leerink Xxxxx & Co., Inc.
SCHEDULE C
Applied Biotech, Inc.
Inverness Medical, Inc.
Inverness Medical Switzerland GmbH
IMG Holding GmbH
Inverness Medical Deutschland GmbH
Xxxxxxx Laboratories, LLC
Inverness Medical (UK) Holdings Limited
Unipath Diagnostics GmbH
Unipath Limited
Inverness Medical Investments, LLC
Innovacon, Inc.
IVC Industries, Inc.
Inverness Medical France S.A.S.
Binax, Inc.
Stirling Medical Innovations Limited
Unipath Diagnostics GmbH
Inverness Medical Japan, Ltd.
Inverness Medical Hong Kong Trading Co.,
Limited
1
