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EXHIBIT D
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "AGREEMENT") is made and
entered into as of September 21, 2001 by and between Inverness Medical
Innovations, Inc., a Delaware corporation ("INNOVATIONS"), and Xxxxx Xxxxx, as
Executrix for the Estate of Xxxxxx Xxxxx, the undersigned stockholder (the
"STOCKHOLDER") of IVC Industries, Inc., a Delaware corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Innovations and
the Company have entered into a Non-Binding Summary of Terms and Conditions
dated as of the date hereof (the "LETTER OF INTENT"). Subject to the conditions
set forth therein, the Letter of Intent provides for Innovations and the Company
to negotiate and enter into a mutually acceptable definitive acquisition
agreement (the "MERGER AGREEMENT"), whereby Innovations would acquire all of the
fully diluted capital stock of the Company through the merger (the "MERGER") of
the Company with and into a newly formed, wholly owned subsidiary of
Innovations.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of the
number of shares of outstanding capital stock of the Company and other
securities convertible into, or exercisable or exchangeable for, shares of
capital stock of the Company, all as set forth on the signature page of this
Agreement (collectively, the "SHARES").
C. In exchange for good and valuable consideration, receipt of which is
hereby confirmed, including the execution of the Letter of Intent by
Innovations, Stockholder desires to restrict the transfer or disposition of any
of the Shares, or any other shares of capital stock of the Company acquired by
Stockholder hereafter and prior to the Expiration Date (as defined in SECTION
1.1 hereof), and desires to vote the Shares and any other such shares of capital
stock of the Company so as to facilitate the consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees, during the
period beginning on the date hereof and ending on the Expiration Date (as
defined below), not to transfer, sell, exchange, pledge or otherwise dispose of
or encumber (collectively, "TRANSFER") any of the Shares or any New Shares (as
defined in SECTION 1.2 hereof), or to discuss, negotiate, or make any offer or
agreement relating thereto, other than to or with Innovations. Stockholder
acknowledges that the intent of the foregoing sentence is to ensure that
Innovations retains the right under the Proxy (as defined in SECTION 3 hereof)
to vote the Shares and any New Shares in accordance with the terms of the Proxy.
As used herein, the term "EXPIRATION DATE" shall mean the earlier to occur of
(i) such date and time as the Merger shall become effective in accordance with
the terms and provisions of the
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Merger Agreement, (ii) the termination of the Letter of Intent by Innovations
in accordance with its terms or (iii) one hundred twenty (120) days after the
date of this Agreement.
1.2 NEW SHARES. Stockholder agrees that any shares of capital
stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date, including, without limitation,
shares issued or issuable upon the conversion, exercise or exchange, as the case
may be, of all securities held by Stockholder which are convertible into, or
exercisable or exchangeable for, shares of capital stock of the Company ("NEW
SHARES"), shall be subject to the terms and conditions of this Agreement to the
same extent as if they constituted Shares.
2. AGREEMENT TO VOTE SHARES. Until the Expiration Date, at every
meeting of stockholders of the Company called with respect to any of the
following, and at every adjournment or postponement thereof, and on every action
or approval by written consent of stockholders of the Company with respect to
any of the following (the "MEETING"), Stockholder shall vote the Shares and any
New Shares:
(i) in favor of approval of the Merger, the execution and
delivery by the Company of the Merger Agreement and the adoption and approval of
the terms thereof and in favor of each of the other actions contemplated by the
Letter of Intent and the Merger Agreement and any action required in furtherance
thereof;
(ii) against approval of any proposal made in opposition to,
or in competition with, consummation of the Merger and the Merger Agreement as
contemplated by the Letter of Intent; and
(iii) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Letter of Intent and/or the Merger Agreement): (A) any merger, consolidation,
business combination, sale of assets, reorganization or recapitalization of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any of its subsidiaries, (C) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company or any
of its subsidiaries, (D) any material change in the capitalization of the
Company or the Company's corporate structure, or (E) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Letter of Intent and/or the Merger Agreement
(any of the foregoing are referred to herein as an "OPPOSING PROPOSAL").
Prior to the Expiration Date, Stockholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with this SECTION 2.
3. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Innovations an irrevocable proxy in
the form attached hereto as EXHIBIT A (the "PROXY"), which shall be irrevocable
to the fullest extent permitted by applicable law, covering the total number of
Shares and New Shares of capital stock of the Company beneficially owned (as
such
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term is defined in Rule 13d-3 under the Exchange Act) by Stockholder as set
forth therein. Innovations agrees to vote the Proxy at the Meeting.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder represents, warrants and covenants as follows:
4.1 OWNERSHIP OF SHARES. Stockholder is the sole beneficial
owner of the Shares with full power to vote or direct the voting of the Shares.
As of the date hereof the Shares are, and at all times up until the Expiration
Date the Shares will be, free and clear of any rights of first refusal, co-sale
rights, security interests, liens, pledges, claims, options, charges or other
encumbrances. Stockholder does not beneficially own any shares of capital stock
of the Company other than the Shares. Stockholder has full power and authority
to make, enter into and carry out the terms of this Agreement and the Proxy.
4.2 OPPOSING PROPOSALS. Stockholder will not, and will not
permit any entity under Stockholder's control to: (i) solicit proxies or become
a participant in a solicitation with respect to an Opposing Proposal or
otherwise encourage or assist any party in taking or planning any action that
would compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Letter of
Intent and the Merger Agreement; or (ii) initiate a stockholders' vote or action
by consent of the stockholders with respect to an Opposing Proposal.
4.3 RESTRICTED SHARES. Stockholder understands that the shares
of capital stock of Innovations that Stockholder will receive as a result of the
Merger (the "INNOVATIONS SHARES") have not been registered under the Securities
Act of 1933 (the "ACT") or qualified under the securities or "blue sky" laws of
any jurisdiction. Stockholder further understands that the Innovations Shares
will constitute "restricted securities" within the meaning of Rule 144
promulgated under the Act and that, as such, the Innovations Shares must be held
indefinitely unless they are subsequently registered under the Act or unless an
exemption from the registration requirements thereof is available. Stockholder
intends to hold the Innovations Shares for Stockholder's own account for
investment and not for, with a view to, or in connection with any resale or
distribution thereof.
4.4 INVESTOR STATUS. Stockholder is an "accredited investor"
within the meaning of Rule 501 promulgated under the Act. Stockholder by reason
of his business and financial experience and the business and financial
experience of those persons retained by Stockholder to advise Stockholder with
respect to its investment in the Innovations Shares, has such knowledge,
sophistication and experience in business and financial matters as to be capable
of evaluating the merits and risks of the prospective investment, and is able to
bear the economic risk of such investment and is able to afford a complete loss
of such investment.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to
execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of the Letter of Intent, this
Agreement and the Merger.
6. CONSENTS AND WAIVERS. Stockholder (solely in his capacity as a
stockholder of the Company) hereby agrees to give any consents or waivers that
may reasonably be required for the
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consummation of the Merger under the terms of any agreement to which Stockholder
is a party or pursuant to any rights Stockholder may have.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect on the
Expiration Date.
8. LEGENDING OF SHARES. If so requested by Innovations, Stockholder
agrees that the Shares and any New Shares shall bear a legend stating that they
are subject to this Agreement and to an irrevocable proxy. Subject to the terms
of SECTION 1 hereof, Stockholder agrees that Stockholder will not Transfer the
Shares or any New Shares without first having the aforementioned legend affixed
to the certificates representing the Shares or any New Shares.
9. MISCELLANEOUS.
9.1 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
9.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of Stockholder may be assigned by
Stockholder without the prior written consent of Innovations.
9.3 AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
9.4 WAIVER. No failure on the part of Innovations to exercise
any power, right, privilege or remedy under this Agreement, and no delay on the
part of Innovations in exercising any power, right, privilege or remedy under
this Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Innovations shall not be deemed to have
waived any claim arising out of this Agreement, or any power, right, privilege
or remedy under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of Innovations; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
9.5 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
acknowledge that Innovations will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Innovations upon any such violation,
Innovations shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Innovations at law or in equity.
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9.6 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial messenger or courier service, or mailed by registered or certified
mail (return receipt requested) or sent via facsimile (with acknowledgment of
complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice); provided,
however, that notices sent by mail will not be deemed given until received:
If to Innovations, to: Xxx Xxxxxxxxx, Chief Executive Officer
Inverness Medical Innovations, Inc.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
signature page hereof.
9.7 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Delaware, without regard to its principles of conflicts of laws.
9.8 ATTORNEYS' FEES AND EXPENSES. If any action or other
proceeding relating to the enforcement of any provision of this Agreement is
brought by either party, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
9.9 ENTIRE AGREEMENT. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties hereto
with respect to such subject matter.
9.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.11 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as an
agreement under seal on the date first above written.
INVERNESS MEDICAL STOCKHOLDER:
INNOVATIONS, INC.:
/s/ Xxx Xxxxxxxxx /s/ Xxxxx Xxxxx, Executrix
--------------------------------------- ---------------------------------
By: Xxx Xxxxxxxxx Signature
Its: Chief Executive Officer
Xxxxx Xxxxx, Executrix
---------------------------------
Print Name
000 Xxxxxxx Xx.
---------------------------------
Xxxxxxxx Xxxxx, XX 00000
---------------------------------
Address
000-000-0000
---------------------------------
Fax Number
Number of shares of Company
Common Stock owned by
Stockholder:
17,586
---------------------------------
Other securities convertible
into, exercisable or exchangeable
for, shares of Company Common
Stock owned by Stockholder:
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IRREVOCABLE PROXY
The undersigned Stockholder (the "STOCKHOLDER") of IVC Industries,
Inc., a Delaware corporation (the "COMPANY"), hereby irrevocably (to the fullest
extent permitted by law) appoints Xxx Xxxxxxxxx and Xxxxx Xxxxx, each officers
of Inverness Medical Innovations, Inc., a Delaware corporation ("INNOVATIONS"),
and each of them, as the sole and exclusive attorney and proxy of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of the
Company that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "SHARES"), in
accordance with the terms of this Proxy. The Shares beneficially owned by the
undersigned Stockholder of the Company as of the date of this Proxy are listed
on the final page of this Proxy, along with the number(s) of the share
certificate(s) which represent such Shares. Upon the undersigned's execution of
this Proxy, any and all prior proxies given by each undersigned with respect to
any Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Stockholder
Voting Agreement dated as of the date hereof by and between Innovations and the
Stockholder (the "STOCKHOLDER VOTING AGREEMENT"), and is granted for good and
valuable consideration, including in consideration of Innovations entering into
that certain Letter of Intent dated as of September 21, 2001 by and between
Innovations and the Company (the "LETTER OF INTENT"). Subject to the conditions
set forth therein, the Letter of Intent provides for Innovations and the Company
to negotiate and enter into a mutually acceptable definitive acquisition
agreement (the "MERGER AGREEMENT") whereby Innovations would acquire all of the
fully diluted capital stock of the Company through the merger (the "MERGER") of
the Company with and into a newly formed, wholly owned subsidiary of
Innovations. As used herein, the term "EXPIRATION DATE" shall mean the earlier
to occur of (i) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement, (ii) the
termination of the Letter of Intent by Innovations in accordance with its terms
or (iii) one hundred twenty (120) days after the date of the Stockholder Voting
Agreement.
The attorney and proxy named above is hereby authorized and empowered
by the undersigned, at any time prior to the Expiration Date, to act as the
undersigned's attorney and proxy to vote the Shares, and to exercise all voting,
consent and similar rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents) at every annual, special, adjourned or postponed meeting of
Stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger, the execution and
delivery by the Company of the Merger Agreement and the adoption and approval of
the terms thereof and in favor of each of the other actions contemplated by the
Letter of Intent and/or Merger Agreement and any action required in furtherance
thereof;
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(ii) against approval of any proposal made in opposition to,
or in competition with, consummation of the Merger and the Merger Agreement as
contemplated by the Letter of Intent; and
(iii) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Letter of Intent and/or the Merger Agreement): (A) any merger, consolidation,
business combination, sale of assets, reorganization or recapitalization of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any of its subsidiaries, (C) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company or any
of its subsidiaries, (D) any material change in the capitalization of the
Company or the Company's corporate structure, or (E) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Letter of Intent and/or the Merger Agreement.
The attorney and proxy named above may not exercise this Proxy on any
other matter except as provided in clauses (i), (ii) or (iii) above. The
Stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: September 21, 2001
/s/ Xxxxx Xxxxx, Executrix
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Signature
Xxxxx Xxxxx, Executrix
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Print Name
000 Xxxxxxx Xx.
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Xxxxxxxx Xxxxx, XX 00000
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Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
17,586, #203 - 1,775, #209- 15,811
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