Exhibit 4
AMENDED AND RESTATED LOCK UP AGREEMENT
RBS Mezzanine Limited
As Arranger and Agent
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Re: INVERNESS MEDICAL INNOVATIONS, INC. (THE "COMPANY")
Ladies and Gentlemen:
Reference is hereby made to that certain Mezzanine Loan Agreement by and
among the Company, Inverness Medical Switzerland GmbH, certain banks, RBS
Mezzanine Limited, as arranger and agent ("RBS"), and certain other parties (the
"Mezzanine Loan Agreement"). Each of the undersigned is an owner of record and
beneficially of certain shares of the common stock, $.001 par value per share,
of the Company ("Common Stock") and securities convertible into or exchangeable
or exercisable for Common Stock. It is a requirement of the Mezzanine Loan
Agreement that the undersigned execute and deliver this agreement. The
undersigned recognize that the Mezzanine Loan Agreement will benefit the Company
by, among other things, raising additional capital for its operations. The
undersigned acknowledge that RBS and the other banks party to the Mezzanine Loan
Agreement are relying on the representations and agreements of the undersigned
contained in this agreement in entering into the Mezzanine Loan Agreement and
advancing funds to the Company thereunder.
This agreement amends and restates in its entirety the Lock Up Agreement
among RBS and the undersigned dated December 20, 2001. This agreement shall be
effective as of December 20, 2001 and shall remain in effect until the Company
has made full and final payment of all amounts due under the Mezzanine Loan
Agreement (the "Termination Date"). For the avoidance of doubt, the Company's
obligations under the common stock purchase warrants issued in connection with
the Mezzanine Loan Agreement shall not be deemed to represent amounts due under
the Mezzanine Loan Agreement.
In consideration of the foregoing, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned hereby agree that the undersigned will not, without the prior
written consent of RBS (which consent may be withheld in its sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, or otherwise
dispose of (collectively, "Sell") any shares of Common Stock, options or
warrants to acquire shares of Common Stock, or securities exchangeable for or
convertible into shares of Common Stock (collectively, "Company Securities")
currently or hereafter owned either of record or beneficially by the undersigned
during the period beginning on the date of this agreement and ending on December
20, 2004. During the period from December 21, 2004 through the Termination Date,
the undersigned will not Sell Company
RBS Mezzanine Limited
As Arranger and Agent
December __, 2001
Page 2
Securities representing more than an aggregate of twenty five percent (25%) of
the total number of shares of Common Stock represented by all of the Company
Securities owned either of record or beneficially by the undersigned on December
20, 2004, and will not Sell more than an aggregate of 10% of such number in any
twelve (12) month period, provided, however, that the undersigned will not Sell
any Company Securities at any time that the Company is in default under the
Mezzanine Loan Agreement. The undersigned consent to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of Company Securities held by the undersigned except in compliance with
the foregoing restrictions. The foregoing restrictions shall not be deemed to
prohibit the undersigned from exercising any option or warrant to purchase
Company Securities or from exercising the exchange or conversion rights of any
Company Security, provided, however, that the Company Securities received by the
undersigned as a result of any such exercise shall remain subject to the
provisions of this agreement. In addition, the foregoing restrictions shall not
be deemed to prohibit any Sale of Company Securities that results in either of
the undersigned becoming or remaining as a beneficial owner of such Company
Securities.
Each of the undersigned hereby represents and warrants that he or it has
full power and authority to enter into this agreement. This agreement is
irrevocable and will be binding on the undersigned and the respective successors
and assigns of the undersigned.
Dated: December 20, 2001
XXXXXXXXX FAMILY VENTURES, LLC
/s/ XXX XXXXXXXXX By: /s/ XXX XXXXXXXXX
---------------------------------- -----------------------------------
Xxx Xxxxxxxxx Name: Xxx Xxxxxxxxx
Title: Manager
ACCEPTED AND AGREED TO:
RBS Mezzanine Limited
By: /s/ XXXXXX XXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Manager
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