Exhibit 99.3
EXECUTION COPY
STOCK OPTION AGREEMENT dated as of May 23,
2001 (this "Agreement"), by and between INVERNESS
MEDICAL TECHNOLOGY, INC., a Delaware corporation
("Issuer"), and XXXXXXX & XXXXXXX, a New Jersey
corporation ("Grantee").
RECITALS
A. Grantee, Sunrise Acquisition Corp., a Delaware corporation
and wholly owned subsidiary of Grantee ("Sub"), and Issuer have entered into an
Agreement and Plan of Split- Off and Merger dated as of the date hereof (the
"Merger Agreement"), providing for, among other things, the merger of Sub with
and into Issuer, with Issuer as the surviving corporation in the Merger and
becoming a wholly owned subsidiary of Grantee; and
B. As a condition and inducement to Grantee's willingness to
enter into the Merger Agreement, Grantee has requested that Issuer agree, and
Issuer has agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, Issuer and Grantee agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 1,202,271 shares of common stock, par value $0.001
per share, of Issuer (the "Issuer Common Stock") (which amount shall be
increased to 6,417,689 upon the filing with the Secretary of State of the State
of Delaware of the amendment to the Issuer's Amended and Restated Certificate of
Incorporation to increase the number of authorized shares of Issuer Common Stock
from 40,000,000 to 70,000,000 (the "Certificate Amendment") which was adopted by
the stockholders of the Issuer on May 21, 2001, which the Issuer will do
promptly after the date of this Agreement (as such total number may be adjusted
pursuant to Section 6, the "Option Shares")) at a purchase price of $38.00 per
Option Share (as such price may be adjusted pursuant to Section 6, the "Purchase
Price"); PROVIDED, HOWEVER, that in no event may the number of Option Shares
exceed 19.9% of the issued and outstanding shares of Issuer Common Stock at the
time of exercise without giving effect to the Option Shares.
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2. EXERCISE OF OPTION. (a) Subject to the provisions of
Section 2(c), Grantee may exercise the Option, with respect to any or all of the
Option Shares, at any time or times after the occurrence of any event as a
result of which Grantee is entitled to receive the Termination Fee pursuant to
Section 6.06(b) of the Merger Agreement (a "Purchase Event"); PROVIDED, HOWEVER,
that (i) except as provided in the last sentence of this Section 2(a), the
Option will terminate and be of no further force and effect upon the earliest to
occur of (A) the Effective Time, (B) 12 months after the first occurrence of a
Purchase Event, and (C) termination of the Merger Agreement in accordance with
its terms prior to the occurrence of a Purchase Event, unless, in the case of
clause (C), Grantee has the right to receive the Termination Fee following such
termination upon the occurrence of certain events, in which case the Option will
not terminate until the later of (x) 10 business days following the time such
Termination Fee becomes payable and (y) the expiration of the period in which
Grantee has such right to receive the Termination Fee, and (ii) any purchase of
Option Shares upon exercise of the Option will be subject to compliance with the
HSR Act and the obtaining or making of any consents, approvals, orders,
notifications, filings or authorizations, the failure of which to have obtained
or made would have the effect of making the issuance of Option Shares to Grantee
violate any law or regulation to which Issuer is subject (the "Regulatory
Approvals"). Notwithstanding the termination of the Option, Grantee will be
entitled to purchase the Option Shares if it has exercised the Option in
accordance with the terms hereof prior to the termination of the Option and the
termination of the Option will not affect any rights here under which by their
terms do not terminate or expire prior to or as of such termination.
(b) In the event that Grantee is entitled to and wishes to
exercise the Option, Grantee shall send to Issuer a written notice (an "Exercise
Notice"; the date of which being herein referred to as the "Notice Date") to
that effect, which Exercise Notice shall specify the number of Option Shares, if
any, Grantee wishes to purchase pursuant to this Section 2(b), the number of
Option Shares, if any, with respect to which Grantee wishes to exercise its
Cash- Out Right (as defined below) pursuant to Section 6(c), the denominations
of the certificate or certificates evidencing the Option Shares which Grantee
wishes to purchase pursuant to this Section 2(b) and a date (an "Option Closing
Date"), which, subject to the following sentence, shall not be earlier than
three business days nor later than 10 business days from the Notice Date for the
closing of such purchase (an "Option Closing"). Any Option Closing shall be at
an
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agreed location and time in New York, New York on the applicable Option Closing
Date or at such later date as may be necessary so as to comply with clause (ii)
of the proviso to the first sentence of Section 2(a).
(c) Notwithstanding anything to the contrary contained herein,
any exercise of the Option and purchase of Option Shares shall be subject to
compliance with applicable laws and regulations, which may prohibit the purchase
of all the Option Shares specified in the Exercise Notice without first
obtaining or making certain Regulatory Approvals. In such event, if the Option
is otherwise exercisable and Grantee wishes to exercise the Option, the Option
may be exercised in accordance with Section 2(b) and Grantee shall acquire the
maximum number of Option Shares specified in the Exercise Notice that Grantee is
then permitted to acquire under the applicable laws and regulations, and if
Grantee thereafter obtains the Regulatory Approvals to acquire the remaining
balance of the Option Shares specified in the Exercise Notice, then Grantee
shall be entitled to acquire such remaining balance. Issuer agrees to use its
commercially reasonable efforts to assist Grantee in seeking the Regulatory
Approvals.
In the event (i) Grantee receives notice that a Regulatory
Approval required for the purchase of any Option Shares will not be issued or
granted or (ii) such Regulatory Approval has not been issued or granted within
six months of the date of the Exercise Notice, Grantee shall have the right to
exercise its Cash-Out Right pursuant to Section 6(c) with respect to the Option
Shares for which such Regulatory Approval will not be issued or granted or has
not been issued or granted.
3. PAYMENT AND DELIVERY OF CERTIFICATES. (a) At any Option
Closing, Grantee will pay to Issuer in immediately available funds by wire
transfer to a bank account designated in writing by Issuer an amount equal to
the Purchase Price multiplied by the number of Option Shares to be purchased at
such Option Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer will deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares will be free and clear of
all Liens. If at the time of issuance of Option Shares pursuant to an exercise
of the Option hereunder, Issuer shall have issued any securities similar to
rights under a stockholder rights plan, then each Option Share issued pursuant
to such exercise will also represent
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such a corresponding right with terms substantially the same as and at least as
favorable to Grantee as are provided under any such stockholder rights plan then
in effect.
(c) Certificates representing the Option Shares delivered at
an Option Closing will have typed or printed thereon a restrictive legend which
will read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION
AGREEMENT DATED AS OF MAY 23, 2001, A COPY OF WHICH MAY BE OBTAINED
FROM THE SECRETARY OF INVERNESS MEDICAL TECHNOLOGY, INC., AT ITS
PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
pursuant to the Securities Act, such Option Shares have been sold in reliance on
and in accordance with Rule 144 under the Securities Act or Grantee has
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act and (ii) the reference to restrictions pursuant to this Agreement
in the above legend will be removed by delivery of substitute certificate(s)
without such reference if the Option Shares evidenced by certificate(s)
containing such reference have been sold or transferred in compliance with the
provisions of this Agreement under circumstances that do not require the
retention of such reference.
4. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby
represents and warrants to Grantee as follows:
AUTHORIZED STOCK. Issuer has taken all necessary corporate and
other action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act or any
other applicable Federal, state or foreign competition, anti- trust or
similar law or regulation, to permit it to issue, and, at all times
from the date hereof until the obligation to deliver Option Shares upon
an exercise of
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the Option terminates, shall have reserved for issuance, upon exercise
of the Option, shares of Issuer Common Stock necessary for Grantee to
exercise the Option (subject, in the case of those shares of Issuer
Common Stock to be authorized for issuance pursuant to the Certificate
Amendment, to the filing of the Certificate Amendment with Secretary of
State of the State of Delaware) and Issuer will take all necessary
corporate action to authorize and reserve for issuance all additional
shares of Issuer Common Stock or other securities which may be issuable
pursuant to Section 6 upon exercise of the Option. The shares of Issuer
Common Stock to be issued upon due exercise of the Option, including
all additional shares of Issuer Common Stock or other securities which
may be issuable upon exercise of the Option or any other securities
which may be issuable pursuant to Section 6, upon issuance pursuant
hereto, will be duly and validly issued, fully paid and nonassessable,
and will be delivered free and clear of all Liens, including without
limitation any preemptive rights of any stockholder of Issuer.
5. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee hereby
represents and warrants to Issuer that:
PURCHASE NOT FOR DISTRIBUTION. Any Option Shares or other
securities acquired by Grantee upon exercise of the Option will be
acquired for Grantee's own account for investment only and not with a
view towards their distribution, and will not be transferred or
otherwise disposed of except in a transaction registered, or exempt
from registration, under the Securities Act.
6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. (a) In the
event of any change in Issuer Common Stock by reason of a stock dividend,
split-up, merger, recapitali zation, combination, exchange of shares, or similar
trans action, the type and number of shares or securities subject to the Option,
and the Purchase Price thereof, will be adjusted appropriately, and proper
provision will be made in the agreements governing such transaction, so that
Grantee will receive upon exercise of the Option the number and class of shares
or other securities or property that Grantee would have received in respect of
Issuer Common Stock if the Option had been exercised immediately prior to such
event or the record date therefor, as applicable. Subject to Section 1, and
without limiting the parties' relative rights and obligations under the Merger
Agreement, if any addi tional shares of Issuer Common Stock are issued after the
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date of this Agreement (other than pursuant to this Agreement or an event
described in the first sentence of this Section 6(a)) or if the number of
outstanding shares of Issuer Common Stock is reduced, the number of shares of
Issuer Common Stock subject to the Option will be adjusted so that, after such
issuance or reduction, it equals the same percentage of the aggregate number of
shares of Issuer Common Stock issued and outstanding after giving effect to such
issuance or reduction as immediately prior to such issuance or reduction, in
each case without giving effect to any shares subject to the Option.
(b) Without limiting the parties' relative rights and
obligations under the Merger Agreement, in the event that Issuer enters into an
agreement (i) to consolidate with or merge into any person, other than Grantee
or one of its subsidiaries, and Issuer will not be the continuing or surviving
corporation in such consolidation or merger, (ii) to permit any person, other
than Grantee or one of its subsidiaries, to merge into Issuer and Issuer will be
the continuing or surviving corporation, but in connection with such merger, the
shares of Issuer Common Stock outstanding immediately prior to the consummation
of such merger will be changed into or exchanged for stock or other securities
of Issuer or any other person or cash or any other property, or the shares of
Issuer Common Stock outstanding immediately prior to the consummation of such
merger will, after such merger, represent less than 50% of the outstanding
voting securities of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Grantee or one
of its subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of shares or other
securities or property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised in full with respect to all Option
Shares then purchasable immediately prior to such consolidation, merger, sale,
or transfer, or the record date therefor, as applicable, and make any other
necessary adjustments.
(c) If, at any time during the period commencing on a Purchase
Event and ending on the termination of the Option in accordance with Section 2,
Grantee sends to Issuer an Exercise Notice indicating Grantee's election to
exercise its right (the "Cash-Out Right") pursuant to this Section 6(c), then
Issuer shall pay to Grantee, on the
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Option Closing Date, in exchange for the cancellation of the Option with respect
to such number of Option Shares as Grantee specifies in the Exercise Notice, an
amount in cash equal to such number of Option Shares multiplied by the
difference between (i) the average closing price, for the 10 trading days
commencing on the 12th trading day immediately preceding the Notice Date, per
share of Issuer Common Stock as reported on the American Stock Exchange
("AMEX"), (or, if not listed on AMEX, as reported on any other national
securities exchange or national securities quotation system on which the Issuer
Common Stock is listed or quoted, as reported in THE WALL STREET JOURNAL
(Northeast edition), or, if not reported therein, as reported in any other
authoritative source) (the "Closing Price") and (ii) the Purchase Price.
Notwithstanding the termination of the Option, Grantee will be entitled to
exercise its rights under this Section 6(c) if Grantee has exercised such rights
in accordance with the terms hereof prior to the termination of the Option.
7. PROFIT LIMITATIONS. (a) Notwithstanding any other provision
of this Agreement, in no event shall the Total Option Profit (as defined below)
exceed in the aggregate $28,000,000 minus any Termination Fee actually received
by Grantee pursuant to the terms of the Merger Agreement (such net amount, the
"Profit Limit") and, if any payment to be made to Grantee hereunder or as part
of the Termination Fee otherwise would cause the Profit Limit to be exceeded,
Grantee, at its sole election and in its sole discretion, shall (i) reduce the
number of shares of Issuer Common Stock subject to the Option, (ii) deliver to
Issuer for cancellation Option Shares previously purchased by Grantee, (iii) pay
cash to Issuer or (iv) take any combination of the foregoing actions, so that
the Total Option Profit shall not exceed the Profit Limit after taking into
account all the foregoing actions taken by Grantee. For the avoidance of doubt,
Grantee shall not receive any amounts under the terms of this Agreement or as a
Termination Fee which aggregate more than $28,000,000 and will cause any excess
above such amount to be repaid to Issuer promptly.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of shares of Issuer Common Stock as
would, as of the date of exercise, result in a Notional Total Option Profit (as
defined below) that would exceed in the aggregate the Profit Limit and, if the
Notional Total Option Profit otherwise would exceed such amount, Grantee, at its
sole election and in its sole discretion, shall on or prior to the date of
exercise (i) reduce the number of shares of Issuer Common
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Stock subject to such exercise, (ii) deliver to Issuer for cancellation Option
Shares previously purchased by Grantee, (iii) pay cash to Issuer or (iv) take
any combination of the foregoing actions, so that the Notional Total Option
Profit shall not exceed the Profit Limit after taking into account all the
foregoing actions taken by Grantee, PROVIDED that this paragraph (b) shall not
be construed as to restrict any exercise of the Option that is not prohibited
hereby on any subsequent date.
(c) As used herein, the term "Total Option Profit" shall mean
the aggregate amount (before taxes) of the following: (i) any amount received by
Grantee pursuant to the Cash-Out Right and (ii)(x) the net consideration, if
any, received by Grantee pursuant to the sale of Option Shares (or any other
securities into which such Option Shares are converted or exchanged) to any
unaffiliated party, valuing any non-cash consideration at its fair market value
(as defined below), less (y) the Purchase Price of such Option Shares and any
cash paid by Grantee to Issuer pursuant to Section 7(a)(iii) or Section
7(b)(iii), as the case may be.
(d) As used herein, the term "Notional Total Option Profit"
with respect to any number of shares of Issuer Common Stock as to which Grantee
may propose to exercise the Option shall be the aggregate of (i) the Total
Option Profit determined under paragraph (c) above with respect to prior
exercises of the Option and (ii) Total Option Profit determined under paragraph
(c) above with respect to (x) such number of shares of Issuer Common Stock as to
which Grantee proposes to exercise the Option and (y) all other Option Shares
held by Grantee and its affiliates as of such date, assuming that all such
shares were sold for cash at the closing market price for the Issuer Common
Stock as of the close of business on the preceding trading day (less customary
brokerage commissions or underwriting discounts).
(e) As used herein, the "fair market value" of any non-cash
consideration consisting of:
(i) securities listed on a national securities exchange or
traded on The Nasdaq National Market ("Nasdaq") shall be equal to the
average closing price per share of such security as reported on such
exchange or Nasdaq for the five trading days after the date of
determination; and
(ii) consideration which is other than cash or securities of
the form specified in clause (i) above
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shall be agreed upon in good faith by the parties or, in the absence of
such agreement, determined by a nationally recognized independent
investment banking firm mutually agreed upon by the parties within five
business days of the event requiring selection of such banking firm,
PROVIDED that if the parties are unable to agree within two business
days after the date of such event as to the investment banking firm,
then the parties shall each select one investment banking firm, and
those firms shall select a third nationally recognized independent
investment banking firm, which third firm shall make such
determination.
8. REGISTRATION RIGHTS. Issuer will, if requested by Grantee
at any time and from time to time within two years of the exercise of the
Option, as promptly as practicable (but in no event later than 90 days after
receipt of such request) prepare and file up to three registration statements
("demand registration statements") under the Securities Act if such registration
is necessary in order to permit the sale or other disposition of any or all
shares of securities that have been acquired by or are issuable to Grantee upon
exercise of the Option in accordance with the intended method of sale or other
disposition stated by Grantee, including a "shelf" registration statement under
Rule 415 under the Securities Act or any successor provision, and Issuer will
use its best efforts to qualify such shares or other securities under any
applicable state securities laws; PROVIDED, HOWEVER, that the Issuer shall have
no obligation to prepare and file a demand registration statement hereunder
unless such registration statement will cover at least 25% of the Option Shares.
Grantee agrees to use its commercially reasonable efforts to cause, and to cause
any underwriters of any sale or other disposition to cause, any sale or other
disposition pursuant to such registration statement to be effected on a widely
distributed basis so that upon consummation thereof no purchaser or transferee
will own beneficially more than 5% of the then-outstanding voting power of
Issuer. Issuer will use its commercially reasonable efforts to cause each such
registration statement to become effective, to obtain all consents or waivers of
other parties which are required therefor, and to keep such registration
statement effective for such period not in excess of 180 calendar days from the
day such registration statement first becomes effective as may be reasonably
necessary to effect such sale or other disposition. The obligations of Issuer
hereunder to file a registration statement and to maintain its effectiveness may
be suspended for up to 90 calendar days in the aggregate if the Board of
Directors of Issuer shall have determined that the filing of such registration
statement or the maintenance
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of its effectiveness would require premature disclosure of material nonpublic
information that would materially and adversely affect Issuer or otherwise
interfere with or adversely affect any pending or proposed offering of
securities of Issuer or any other material transaction involving Issuer. Any
registration statement prepared and filed under this Section 8, and any sale
covered thereby, will be at Issuer's expense except for underwriting discounts
or commissions, brokers' fees and the fees and disbursements of Grantee's
counsel related thereto. Grantee will provide all information reasonably
requested by Issuer for inclusion in any registration statement to be filed
hereunder. If, during the time periods referred to in the first sentence of this
Section 8, Issuer effects a registration under the Securities Act of Issuer
Common Stock for its own account or for any other stockholders of Issuer (other
than on Form S-4 or Form S-8, or any successor form), it will allow Grantee the
right to participate in such registration, and such participation will not
affect the obligation of Issuer to effect demand registration statements for
Grantee under this Section 8; PROVIDED that, if the managing underwriters of
such offering advise Issuer in writing that in their opinion the number of
shares of Issuer Common Stock requested to be included in such registration
exceeds the number which can be sold in such offering, Issuer will include only
that portion of the shares requested to be included therein by Grantee that may,
in the written opinion of the managing underwriters, be included therein without
adversely affecting the success of the offering. In connection with any
registration pursuant to this Section 8, Issuer and Grantee will provide each
other and any underwriter of the offering with customary representations,
warranties, covenants, indemnification and contribution in connection with such
registration.
9. TRANSFERS. Shares of Issuer Common Stock acquired by
Grantee pursuant to an exercise of the Option may not be sold, assigned,
transferred, or otherwise disposed of except (i) in an underwritten public
offering as provided in Section 8 or (ii) to any purchaser or transferee who
would not, to the knowledge of Grantee after reasonable inquiry, immediately
following such sale, assignment, transfer or disposal, beneficially own more
than 5% of the then-outstanding voting power of the Issuer; PROVIDED, HOWEVER,
that Grantee shall be permitted to sell any shares of Issuer Common Stock
acquired pursuant to an exercise of the Option if such sale is made pursuant to
a tender or exchange offer that has been approved or recommended by a majority
of the members of the Board of Directors of Issuer (which majority shall include
a majority of directors who were directors as of the date hereof).
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10. LISTING. If the Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then listed on AMEX
(or any other national securities exchange or approved for quotation on any
national securities quotation system), Issuer, upon the request of Grantee,
shall promptly file an application to list the shares of Issuer Common Stock or
other securities to be acquired upon exercise of the Option on AMEX (or any such
other national securities exchange or file an application to have approved for
quotation on any such national securities quotation system) and will use its
commercially reasonable efforts to obtain approval of such listing (or
quotation) as promptly as practicable.
11. LOSS OR MUTILATION. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date.
12. MISCELLANEOUS. (a) EXPENSES. Except as otherwise provided
in this Agreement or in the Merger Agreement, each of the parties hereto will
bear and pay all costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder, including fees and
expenses of its own financial consultants, investment bankers, accountants, and
counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) EXTENSION; WAIVER. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for performance,
will be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise will not constitute a waiver of such
rights.
(d) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement, the other Transaction Agreements (including the documents and
instruments attached thereto as exhibits or schedules or delivered in connection
therewith) and the Confidentiality Agreement (i) constitute the entire
agreement, and supersede all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter of this
Agreement, and (ii) except as provided in Section 9.06 of the Merger
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Agreement, are not intended to confer upon any person other than the parties any
rights or remedies.
(e) GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
(f) NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be sent in the manner and to the
addresses set forth in the Merger Agreement.
(g) ASSIGNMENT. Neither this Agreement, the Option nor any of
the rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by Issuer or
Grantee without the prior written consent of the other, except that Grantee may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to any direct or indirect wholly owned
subsidiary of Grantee, but no such assignment shall relieve Grantee of any of
its obligations hereunder. Any assignment or delegation in violation of the
preceding sentence shall be void. Subject to the first and second sentences of
this Section 12(g), this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
(h) FURTHER ASSURANCES. In the event of any exercise of the
Option by Grantee, Issuer and Grantee shall execute and deliver all other
documents and instruments and take all other actions that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
(i) SPECIFIC ENFORCEMENT; CONSENT TO JURISDICTION. The parties
agree that irreparable damage would occur and that the parties would not have
any adequate remedy at law in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in any state court located in the
State of Delaware, the foregoing being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties hereto
(i) consents to
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submit itself to the personal jurisdiction of any Federal court located in the
State of Delaware or any state court located in the State of Delaware in the
event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a Federal court sitting in the State of Delaware or a state court
located in the State of Delaware.
(j) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(k) DEFINED TERMS. All terms used but not defined herein shall
have the meanings ascribed to such terms in the Merger Agreement.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the day and year first written above.
INVERNESS MEDICAL TECHNOLOGY, INC.,
by /s/ Xxx Xxxxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxxxx
Title: Chief Executive Officer
XXXXXXX & XXXXXXX,
by /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
