SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
AMENDMENT NO. 1
IVC INDUSTRIES, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
45070M101
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(CUSIP Number)
RON ZWANZIGER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INVERNESS MEDICAL INNOVATIONS, INC.
51 SAWYER ROAD, SUITE 200
WALTHAM, MA 02453
(781) 647-3900
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
DECEMBER 21, 2001
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box |_|.
NOTE. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
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CUSIP NO. 45070M101 13D PAGE 2 OF 7 PAGES
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
INVERNESS MEDICAL INNOVATIONS, INC.
I.R.S. IDENTIFICATION NO.: 04-3565120
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) (b)
NOT APPLICABLE
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
NOT APPLICABLE
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
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8 SHARED VOTING POWER
NUMBER OF SHARES 1,197,029
BENEFICIALLY --------------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING PERSON
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10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,197,029
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
NOT APPLICABLE
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
53.3%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
This Amendment No. 1 to Schedule 13D relates to shares of common stock of IVC
Industries, Inc. ("IVC") and is filed by Inverness Medical Innovations, Inc., a
Delaware corporation ("Innovations"), to amend the Schedule 13D originally filed
by Innovations with the Securities and Exchange Commission on October 1, 2001.
ITEMS 3
AND 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION AND PURPOSE OF
TRANSACTION.
Items 3 and 4 are hereby amended and restated in their entirety to
read as follows:
Innovations and IVC signed a non-binding letter of intent on September
21, 2001 (the "Letter of Intent"). The Letter of Intent provided for
Innovations and IVC to negotiate and enter into a mutually acceptable
definitive acquisition agreement, whereby Innovations would acquire
all of the capital stock of IVC through the merger (the "Merger") of
IVC with a subsidiary of Innovations. The Letter of Intent
contemplated that each stockholder of IVC would receive from
Innovations, in connection with the Merger, $2.50 cash for each share
of IVC common stock held by such stockholder, except that certain of
IVC's principal stockholders and directors would receive either cash,
restricted shares of common stock of Innovations or a combination
thereof, valued at $2.50 for each share of IVC common stock held by
such stockholders.
In connection with the signing of the Letter of Intent, Innovations
entered into Stockholder Voting Agreements and Irrevocable Proxies
(collectively, the "Original Voting Agreements", filed as Exhibits A
through D to the Schedule 13D filed on October 1, 2001) with four
stockholders of IVC (each such stockholder an "Original Proxy Grantor"
and, collectively, the "Original Proxy Grantors") holding in the
aggregate approximately 42.3% of the outstanding common stock of IVC
(based on the number of shares of common stock of IVC outstanding on
June 1, 2001 as reported in IVC's Quarterly Report on Form 10-Q for
the quarter ended April 30, 2001). According to the terms of the
Original Voting Agreements, each Original Proxy Grantor (i) agreed to
vote in favor of approval of the Merger, the execution and delivery by
IVC of a mutually acceptable acquisition agreement and the other
transactions contemplated by the Letter of Intent and such mutually
acceptable acquisition agreement and (ii) granted to Ron Zwanziger and
David Scott, each acting on behalf of Innovations, an irrevocable
proxy to vote such Original Proxy Grantor's shares, at any time prior
to the Expiration Date (as then defined in the Original Voting
Agreements), in favor of the Merger, the execution and delivery by IVC
of a mutually acceptable acquisition agreement and the other
transactions contemplated by the Letter of Intent and such mutually
acceptable acquisition agreement.
On December 21, 2001, as contemplated by the Letter of Intent,
Innovations, IVC and Nutritionals Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Innovations, entered into
an Agreement and Plan of Merger (the "Merger Agreement"). In
connection with the signing of the Merger Agreement and on the date
thereof, Innovations and each of the Initial Proxy Grantors executed
an Amendment to Stockholder Voting Agreement and new Irrevocable
Proxies (collectively, the "Amendments to Voting Agreements", filed as
Exhibits A through D to this Amendment No. 1 to Schedule 13D),
pursuant to which Innovations and each Initial Proxy Grantor agreed to
amend the definition of Expiration Date in the Original Voting
Agreements to extend the effective time of the Original Voting
Agreements.
In addition to amending the Original Voting Agreements, on December
21, 2001, Innovations also entered into new Stockholder Voting
Agreements and Irrevocable Proxies (collectively, the "Subsequent
Voting Agreements", filed as Exhibits E through F to this Amendment
No. 1 to Schedule 13D, and together with the Original Voting
Agreements, the "Voting Agreements") with two additional stockholders
of IVC (each such additional stockholder a "Subsequent Proxy Grantor"
and, collectively, the "Subsequent Proxy Grantors"; together with the
Original Proxy Grantors, the "Proxy Grantors"). The Proxy Grantors
hold in the aggregate approximately 53.3% of the outstanding common
stock of IVC (based on the number of shares of common stock of IVC
outstanding on November 30, 2001 as reported in IVC's Quarterly Report
on Form 10-Q for the quarter ended September 30, 2001]). Pursuant to
the terms of the Subsequent Voting Agreements, each Subsequent Proxy
Grantor has (i) agreed to vote in favor of approval of the Merger, the
execution and delivery by IVC of the Merger Agreement and the other
transactions contemplated by the Merger Agreement and (ii) granted to
Ron Zwanziger and David Scott, each acting on behalf of Innovations,
an irrevocable proxy to vote such Subsequent Proxy Grantor's shares,
at any time prior to the Expiration Date (as defined in the Subsequent
Voting Agreements), in favor of the Merger, the execution and delivery
by IVC of the Merger Agreement and the other transactions contemplated
by the Merger Agreement.
If the Merger is completed, Innovations expects at least initially to
continue the business operations of IVC substantially as they are
currently being conducted. Upon completion of the Merger, Innovations
intends to conduct a detailed review of IVC and its assets, corporate
structure, capitalization, operations, policies, management and
personnel. After such review, Innovations will determine what actions
or changes, if any, would be desirable in light of the circumstances
which then exist. Innovations expects to fund the cash portion of the
purchase price for the Merger from its working capital.
If the Merger is completed, IVC's stock will no longer be quoted on
the OTC Bulletin Board.
Completion of the Merger is subject to a number of conditions,
including approval of IVC's stockholders, modification of loan
agreements with IVC's principal lender, and approval of Innovations'
principal lender.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and restated in its entirety to read as
follows:
(a)-(c) As a result of Innovations' entering into the Original Voting
Agreements, as amended by the Amendments to Voting Agreements, and the
Subsequent Voting Agreements (and obtaining an irrevocable proxy with
respect to certain shares pursuant to the Original Voting Agreements
and Subsequent Voting Agreements as described herein), Innovations may
be deemed to own beneficially an aggregate of 1,197,029 shares of IVC,
representing approximately 53.3% of IVC's common shares outstanding.
Innovations, however, disclaims beneficial ownership of such shares,
and this statement shall not be construed as an admission that
Innovations is, for any or all purposes, the beneficial owner of such
shares.
(d) Each Proxy Grantor retains the right to receive dividends in respect
of, and the proceeds from the sale of, the shares of such Proxy
Grantor subject to the Voting Agreements.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended and restated in its entirety to read as
follows:
The following summary of certain provisions of the Voting Agreements
is qualified in its entirety by reference to the actual text of the
Original Voting Agreements (see Exhibits A, B, C, and D to the
Schedule 13D filed on October 1, 2001), as amended by the Amendments
to Voting Agreements (see Exhibits A, B, C and D filed herewith), and
the Subsequent Voting Agreements (see Exhibits E and F filed
herewith).
Pursuant to the Voting Agreements, each Proxy Grantor has agreed, for
the period beginning on September 21, 2001, in the case of the
Original Proxy Grantors, and for the period beginning on December 21,
2001, in the case of the Subsequent Proxy Grantors, and ending on the
Expiration Date (as defined in the respective Voting Agreements), to
vote any IVC common stock with respect to which the Proxy Grantor has
voting power ("Proxy Shares"): (i) in favor of approval of the Merger,
the execution and delivery by IVC 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 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; and (iii) against any of the
following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Merger Agreement): (A) any
merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of IVC with any party, (B) any
sale, lease or transfer of any significant part of the assets of IVC
or any of its subsidiaries, (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of IVC or any of its
subsidiaries, (D) any material change in the capitalization of IVC or
IVC'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 Merger Agreement.
Concurrently with the execution of the Voting Agreements, each Proxy
Grantor delivered to Innovations an Irrevocable Proxy, pursuant to
which each such Proxy Grantor appointed each of Ron Zwanziger and
David Scott (each, a "Proxy Holder") as the sole and exclusive proxy
of such Proxy Grantor, with full power of substitution and
resubstitution, to vote the Proxy Shares, and to exercise all voting,
consent and similar rights of the undersigned with respect to the
Proxy Shares (including, without limitation, the power to execute and
deliver written consents) at every annual, special, adjourned or
postponed meeting of IVC's stockholders called for purposes of
considering any proposal described in the preceding paragraph, and in
any action by written consent of IVC's stockholders in lieu of any
such meeting, and instructs each Proxy Holder to vote in the manner
specified in the preceding paragraph on any such proposal. Each of
Messrs. Zwanziger and Scott is an executive officer of Innovations and
is acting as Proxy Holder on behalf of Innovations.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit A Amendment to Stockholder Voting Agreement and Irrevocable
Proxy, dated as of December 21, 2001, by and between
Inverness Medical Innovations, Inc. and E. Joseph Edell.
Exhibit B Amendment to Stockholder Voting Agreement and Irrevocable
Proxy, dated as of December 21, 2001, by and between
Inverness Medical Innovations, Inc. and Beverly Edell.
Exhibit C Amendment to Stockholder Voting Agreement and Irrevocable
Proxy, dated as of December 21, 2001, by and between
Inverness Medical Innovations, Inc. and Ethel Edell,
Executrix for the Estate of Arthur Edell.
Exhibit D Amendment to Stockholder Voting Agreement and Irrevocable
Proxy, dated as of December 21, 2001, by and between
Inverness Medical Innovations, Inc. and the Edell Family
Partnership.
Exhibit E Stockholder Voting Agreement and Irrevocable Proxy, dated
as of December 21, 2001, by and between Inverness Medical
Innovations, Inc. and Andrew Pinkowski.
Exhibit F Stockholder Voting Agreement and Irrevocable Proxy, dated
as of December 21, 2001, by and between Inverness Medical
Innovations, Inc. and Rita Pinkowski.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete, and
correct.
December 31, 2001
INVERNESS MEDICAL INNOVATIONS, INC.
/s/ RON ZWANZIGER
---------------------------------------
Ron Zwanziger
President and Chief Executive Officer
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
Exhibit A Amendment to Stockholder Voting Agreement and Irrevocable Proxy,
dated as of December 21, 2001, by and between Inverness Medical
Innovations, Inc. and E. Joseph Edell.
Exhibit B Amendment to Stockholder Voting Agreement and Irrevocable Proxy,
dated as of December 21, 2001, by and between Inverness Medical
Innovations, Inc. and Beverly Edell.
Exhibit C Amendment to Stockholder Voting Agreement and Irrevocable Proxy,
dated as of December 21, 2001, by and between Inverness Medical
Innovations, Inc. and Ethel Edell, Executrix for the Estate of
Arthur Edell.
Exhibit D Amendment to Stockholder Voting Agreement and Irrevocable Proxy,
dated as of December 21, 2001, by and between Inverness Medical
Innovations, Inc. and Edell Family Partnership.
Exhibit E Stockholder Voting Agreement and Irrevocable Proxy, dated as of
December 21, 2001, by and between Inverness Medical Innovations,
Inc. and Andrew Pinkowski.
Exhibit F Stockholder Voting Agreement and Irrevocable Proxy, dated as of
December 21, 2001, by and between Inverness Medical Innovations,
Inc. and Rita Pinkowski.
EXHIBIT A
AMENDMENT TO STOCKHOLDER VOTING AGREEMENT
THIS AMENDMENT TO STOCKHOLDER VOTING AGREEMENT (this "AMENDMENT") is made
and entered into as of December 21, 2001 by and between Inverness Medical
Innovations, Inc., a Delaware corporation ("INNOVATIONS"), and E. Joseph Edell,
the undersigned stockholder (the "STOCKHOLDER") of IVC Industries, Inc., a
Delaware corporation (the "COMPANY").
WITNESSETH
WHEREAS, Stockholder is the beneficial owner 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
(collectively, the "SHARES").
WHEREAS, on September 21, 2001, Innovations and the Company entered into
a Non-Binding Summary of Terms and Conditions (the "LETTER OF INTENT"),
providing for Innovations and the Company to negotiate and enter into a mutually
acceptable definitive acquisition agreement.
WHEREAS, concurrently with the execution of the Letter of Intent,
Innovations and the Stockholder entered into a Stockholder Voting Agreement
dated September 21, 2001 (the "ORIGINAL VOTING AGREEMENT"). In connection with
the execution of the Original Voting Agreement, the Stockholder granted an
irrevocable proxy to Ron Zwanziger and David Scott, each officers of
Innovations, dated September 21, 2001 (the "ORIGINAL PROXY").
WHEREAS, concurrently with the execution of this Amendment, Innovations,
the Company and Nutritionals Acquisition Corporation have entered into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") and, in connection
therewith, have agreed (i) to amend the definition of "EXPIRATION DATE" as set
forth in the Original Voting Agreement and (ii) that Stockholder shall deliver
to Innovations a new irrevocable proxy, effective until the new Expiration Date
(as defined herein).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Original Voting Agreement.
2. AGREEMENT TO RETAIN SHARES UNTIL THE EXPIRATION DATE. Section 1.1 of
the Original Voting Agreement is hereby amended by deleting the third and final
sentence thereof (defining Expiration Date) and replacing it with the following:
"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 Merger Agreement in
accordance with its terms or (iii) May 31, 2002."
3. IRREVOCABLE PROXY. Concurrently with the execution of this Amendment,
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 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. The Proxy shall
replace the Original Proxy and the Original Proxy shall be of no further force
or effect.
4. MISCELLANEOUS. The Original Voting Agreement, as modified by this
Amendment, and the Proxy attached hereto represent the entire agreement of the
parties with respect to their subject matter and may only be amended in a
writing signed by both parties. Nothing herein shall be deemed to amend or waive
any term or provision of the Original Voting Agreement, except as expressly set
forth herein, and all other terms and conditions of the Original Voting
Agreement are hereby ratified and confirmed in all respects.
* * * * *
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Stockholder Voting Agreement as an agreement under seal on the date first above
written.
INVERNESS MEDICAL STOCKHOLDER:
INNOVATIONS, INC.:
/S/ RON ZWANZIGER /S/ E. JOSEPH EDELL
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
E. JOSEPH EDELL
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Print Name
787 OCEAN AVE. #1205
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WEST END, NJ 07740
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Address
732-761-2801
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Fax Number
Number of shares of Company Common
Stock owned by Stockholder:
608,094
Other securities convertible into,
exercisable or for, shares of Company
Common Stock owned by Stockholder:
0
---------------------------------------
-3-
Exhibit A
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 Ron Zwanziger and David Scott, 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 Amendment to
Stockholder Voting Agreement dated as of the date hereof by and between
Innovations and the Stockholder, and is granted for good and valuable
consideration, including in consideration of Innovations entering into that
certain Agreement and Plan of Merger, dated as of the date hereof, by and among
Innovations, Nutritionals Acquisition Corporation ("MERGER SUB") and the Company
(the "MERGER AGREEMENT"), whereby Innovations will acquire all of the fully
diluted capital stock of the Company through the merger (the "MERGER") of the
Company with and into Merger Sub. 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 Merger Agreement in accordance with its
terms or (iii) May 31, 2002.
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 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; and
-4-
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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: December 21, 2001
/S/ RON ZWANZIGER /S/ E. JOSEPH EDELL
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
E. JOSEPH EDELL
---------------------------------------
Print Name
787 OCEAN AVE. #1205
---------------------------------------
WEST END, NJ 07740
---------------------------------------
Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
608,094
---------------------------------------
cert. 0061 - 585,003 shares
cert. 0114 - 9,625
13,466 - held in Smith Barney
-5-
EXHIBIT B
AMENDMENT TO STOCKHOLDER VOTING AGREEMENT
THIS AMENDMENT TO STOCKHOLDER VOTING AGREEMENT (this "AMENDMENT") is made
and entered into as of December 21, 2001 by and between Inverness Medical
Innovations, Inc., a Delaware corporation ("INNOVATIONS"), and Beverly Edell,
the undersigned stockholder (the "STOCKHOLDER") of IVC Industries, Inc., a
Delaware corporation (the "COMPANY").
WITNESSETH
WHEREAS, Stockholder is the beneficial owner 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
(collectively, the "SHARES").
WHEREAS, on September 21, 2001, Innovations and the Company entered into
a Non-Binding Summary of Terms and Conditions (the "LETTER OF INTENT"),
providing for Innovations and the Company to negotiate and enter into a mutually
acceptable definitive acquisition agreement.
WHEREAS, concurrently with the execution of the Letter of Intent,
Innovations and the Stockholder entered into a Stockholder Voting Agreement
dated September 21, 2001 (the "ORIGINAL VOTING AGREEMENT"). In connection with
the execution of the Original Voting Agreement, the Stockholder granted an
irrevocable proxy to Ron Zwanziger and David Scott, each officers of
Innovations, dated September 21, 2001 (the "ORIGINAL PROXY").
WHEREAS, concurrently with the execution of this Amendment, Innovations,
the Company and Nutritionals Acquisition Corporation have entered into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") and, in connection
therewith, have agreed (i) to amend the definition of "EXPIRATION DATE" as set
forth in the Original Voting Agreement and (ii) that Stockholder shall deliver
to Innovations a new irrevocable proxy, effective until the new Expiration Date
(as defined herein).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Original Voting Agreement.
2. AGREEMENT TO RETAIN SHARES UNTIL THE EXPIRATION DATE. Section 1.1 of
the Original Voting Agreement is hereby amended by deleting the third and final
sentence thereof (defining Expiration Date) and replacing it with the following:
"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 Merger Agreement in
accordance with its terms or (iii) May 31, 2002."
3. IRREVOCABLE PROXY. Concurrently with the execution of this Amendment,
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 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. The Proxy shall
replace the Original Proxy and the Original Proxy shall be of no further force
or effect.
4. MISCELLANEOUS. The Original Voting Agreement, as modified by this
Amendment, and the Proxy attached hereto represent the entire agreement of the
parties with respect to their subject matter and may only be amended in a
writing signed by both parties. Nothing herein shall be deemed to amend or waive
any term or provision of the Original Voting Agreement, except as expressly set
forth herein, and all other terms and conditions of the Original Voting
Agreement are hereby ratified and confirmed in all respects.
* * * * *
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Stockholder Voting Agreement as an agreement under seal on the date first above
written.
INVERNESS MEDICAL STOCKHOLDER:
INNOVATIONS, INC.:
/s/ RON ZWANZIGER /s/ BEVERLY EDELL
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
BEVERLY EDELL
---------------------------------------
Print Name
787 OCEAN AVE. #1205
---------------------------------------
WEST END, NJ 07740
---------------------------------------
Address
732-761-2801
---------------------------------------
Fax Number
Number of shares of Company Common
Stock owned by Stockholder:
75,340
---------------------------------------
Other securities convertible into,
exercisable or exchangeable for,
shares of Company Common Stock owned by
Stockholder:
0
---------------------------------------
-3-
Exhibit A
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 Ron Zwanziger and David Scott, 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 Amendment to
Stockholder Voting Agreement dated as of the date hereof by and between
Innovations and the Stockholder, and is granted for good and valuable
consideration, including in consideration of Innovations entering into that
certain Agreement and Plan of Merger, dated as of the date hereof, by and among
Innovations, Nutritionals Acquisition Corporation ("MERGER SUB") and the Company
(the "MERGER AGREEMENT"), whereby Innovations will acquire all of the fully
diluted capital stock of the Company through the merger (the "MERGER") of the
Company with and into Merger Sub. 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 Merger Agreement in accordance with its
terms or (iii) May 31, 2002.
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 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; and
-4-
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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: December 21, 2001
/s/ BEVERLY EDELL
---------------------------------------
Signature
BEVERLY EDELL
---------------------------------------
Print Name
787 OCEAN AVE. #1205
---------------------------------------
WEST END, NJ 07740
---------------------------------------
Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
75,340
---------------------------------------
cert. 0060 - 75,177 shares
163 shares - held at Smith Barney
-5-
EXHIBIT C
AMENDMENT TO STOCKHOLDER VOTING AGREEMENT
THIS AMENDMENT TO STOCKHOLDER VOTING AGREEMENT (this "AMENDMENT") is made
and entered into as of December 21, 2001 by and between Inverness Medical
Innovations, Inc., a Delaware corporation ("INNOVATIONS"), and Ethel Edell, as
Executrix for the Estate of Arthur Edell, the undersigned stockholder (the
"STOCKHOLDER") of IVC Industries, Inc., a Delaware corporation (the "COMPANY").
WITNESSETH
WHEREAS, Stockholder is the beneficial owner 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
(collectively, the "SHARES").
WHEREAS, on September 21, 2001, Innovations and the Company entered into
a Non-Binding Summary of Terms and Conditions (the "LETTER OF INTENT"),
providing for Innovations and the Company to negotiate and enter into a mutually
acceptable definitive acquisition agreement.
WHEREAS, concurrently with the execution of the Letter of Intent,
Innovations and the Stockholder entered into a Stockholder Voting Agreement
dated September 21, 2001 (the "ORIGINAL VOTING AGREEMENT"). In connection with
the execution of the Original Voting Agreement, the Stockholder granted an
irrevocable proxy to Ron Zwanziger and David Scott, each officers of
Innovations, dated September 21, 2001 (the "ORIGINAL PROXY").
WHEREAS, concurrently with the execution of this Amendment, Innovations,
the Company and Nutritionals Acquisition Corporation have entered into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") and, in connection
therewith, have agreed (i) to amend the definition of "EXPIRATION DATE" as set
forth in the Original Voting Agreement and (ii) that Stockholder shall deliver
to Innovations a new irrevocable proxy, effective until the new Expiration Date
(as defined herein).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Original Voting Agreement.
2. AGREEMENT TO RETAIN SHARES UNTIL THE EXPIRATION DATE. Section 1.1 of
the Original Voting Agreement is hereby amended by deleting the third and final
sentence thereof (defining Expiration Date) and replacing it with the following:
"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 Merger Agreement in
accordance with its terms or (iii) May 31, 2002."
3. IRREVOCABLE PROXY. Concurrently with the execution of this Amendment,
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 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. The Proxy shall
replace the Original Proxy and the Original Proxy shall be of no further force
or effect.
4. MISCELLANEOUS. The Original Voting Agreement, as modified by this
Amendment, and the Proxy attached hereto represent the entire agreement of the
parties with respect to their subject matter and may only be amended in a
writing signed by both parties. Nothing herein shall be deemed to amend or waive
any term or provision of the Original Voting Agreement, except as expressly set
forth herein, and all other terms and conditions of the Original Voting
Agreement are hereby ratified and confirmed in all respects.
* * * * *
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Stockholder Voting Agreement as an agreement under seal on the date first above
written.
INVERNESS MEDICAL STOCKHOLDER:
INNOVATIONS, INC.:
/s/ RON ZWANZIGER /s/ ETHEL EDELL
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
ETHEL EDELL, EXECUTRIX
---------------------------------------
Print Name
511 CHANNEL DR.
---------------------------------------
MONMOUTH BEACH, NJ 07750
---------------------------------------
Address
732-222-2097
---------------------------------------
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:
---------------------------------------
-3-
Exhibit A
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 Ron Zwanziger and David Scott, 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 Amendment to
Stockholder Voting Agreement dated as of the date hereof by and between
Innovations and the Stockholder, and is granted for good and valuable
consideration, including in consideration of Innovations entering into that
certain Agreement and Plan of Merger, dated as of the date hereof, by and among
Innovations, Nutritionals Acquisition Corporation ("MERGER SUB") and the Company
(the "MERGER AGREEMENT"), whereby Innovations will acquire all of the fully
diluted capital stock of the Company through the merger (the "MERGER") of the
Company with and into Merger Sub. 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 Merger Agreement in accordance with its
terms or (iii) May 31, 2002.
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 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; and
-4-
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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: December 21, 2001
/s/ ETHEL EDELL
---------------------------------------
Signature
ETHEL EDELL, EXECUTRIX
---------------------------------------
Print Name
511 CHANNEL DR.
---------------------------------------
MONMOUTH BEACH, NJ 07750
---------------------------------------
Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
17,586, #203 - 1,775, #209 - 15,811
---------------------------------------
-5-
EXHIBIT D
AMENDMENT TO STOCKHOLDER VOTING AGREEMENT
THIS AMENDMENT TO STOCKHOLDER VOTING AGREEMENT (this "AMENDMENT") is made
and entered into as of December 21, 2001 by and between Inverness Medical
Innovations, Inc., a Delaware corporation ("INNOVATIONS"), and Edell Family
Partnership, the undersigned stockholder (the "STOCKHOLDER") of IVC Industries,
Inc., a Delaware corporation (the "COMPANY").
WITNESSETH
WHEREAS, Stockholder is the beneficial owner 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
(collectively, the "SHARES").
WHEREAS, on September 21, 2001, Innovations and the Company entered into
a Non-Binding Summary of Terms and Conditions (the "LETTER OF INTENT"),
providing for Innovations and the Company to negotiate and enter into a mutually
acceptable definitive acquisition agreement.
WHEREAS, concurrently with the execution of the Letter of Intent,
Innovations and the Stockholder entered into a Stockholder Voting Agreement
dated September 21, 2001 (the "ORIGINAL VOTING AGREEMENT"). In connection with
the execution of the Original Voting Agreement, the Stockholder granted an
irrevocable proxy to Ron Zwanziger and David Scott, each officers of
Innovations, dated September 21, 2001 (the "ORIGINAL PROXY").
WHEREAS, concurrently with the execution of this Amendment, Innovations,
the Company and Nutritionals Acquisition Corporation have entered into an
Agreement and Plan of Merger (the "MERGER AGREEMENT") and, in connection
therewith, have agreed (i) to amend the definition of "EXPIRATION DATE" as set
forth in the Original Voting Agreement and (ii) that Stockholder shall deliver
to Innovations a new irrevocable proxy, effective until the new Expiration Date
(as defined herein).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Original Voting Agreement.
2. AGREEMENT TO RETAIN SHARES UNTIL THE EXPIRATION DATE. Section 1.1 of
the Original Voting Agreement is hereby amended by deleting the third and final
sentence thereof (defining Expiration Date) and replacing it with the following:
"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 Merger Agreement in
accordance with its terms or (iii) May 31, 2002."
3. IRREVOCABLE PROXY. Concurrently with the execution of this Amendment,
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 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. The Proxy shall
replace the Original Proxy and the Original Proxy shall be of no further force
or effect.
4. MISCELLANEOUS. The Original Voting Agreement, as modified by this
Amendment, and the Proxy attached hereto represent the entire agreement of the
parties with respect to their subject matter and may only be amended in a
writing signed by both parties. Nothing herein shall be deemed to amend or waive
any term or provision of the Original Voting Agreement, except as expressly set
forth herein, and all other terms and conditions of the Original Voting
Agreement are hereby ratified and confirmed in all respects.
* * * * *
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Stockholder Voting Agreement as an agreement under seal on the date first above
written.
INVERNESS MEDICAL STOCKHOLDER:
INNOVATIONS, INC.:
/s/ RON ZWANZIGER /s/ ETHEL EDELL
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
ETHEL EDELL, GENERAL PARTNER
---------------------------------------
Print Name
511 CHANNEL DR.
---------------------------------------
MONMOUTH BEACH, NJ 07750
---------------------------------------
Address
732-222-2097
---------------------------------------
Fax Number
Number of shares of Company Common
Stock owned by Stockholder:
187,500
---------------------------------------
Other securities convertible into,
exercisable or exchangeable for,
shares of Company Common Stock owned by
Stockholder:
---------------------------------------
-3-
Exhibit A
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 Ron Zwanziger and David Scott, 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 Amendment to
Stockholder Voting Agreement dated as of the date hereof by and between
Innovations and the Stockholder, and is granted for good and valuable
consideration, including in consideration of Innovations entering into that
certain Agreement and Plan of Merger, dated as of the date hereof, by and among
Innovations, Nutritionals Acquisition Corporation ("MERGER SUB") and the Company
(the "MERGER AGREEMENT"), whereby Innovations will acquire all of the fully
diluted capital stock of the Company through the merger (the "MERGER") of the
Company with and into Merger Sub. 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 Merger Agreement in accordance with its
terms or (iii) May 31, 2002.
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 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; and
-4-
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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: December 21, 2001
/s/ ETHEL EDELL
---------------------------------------
Signature
ETHEL EDELL, GENERAL PARTNER
---------------------------------------
Print Name
511 CHANNEL DR.
---------------------------------------
MONMOUTH BEACH, NJ 07750
---------------------------------------
Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
187,500 #13
---------------------------------------
-5-
EXHIBIT E
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "AGREEMENT") is made and entered
into as of December 21, 2001 by and between Inverness Medical Innovations, Inc.,
a Delaware corporation ("INNOVATIONS"), and Andrew Pinkowski, the undersigned
stockholder (the "STOCKHOLDER") of IVC Industries, Inc., a Delaware corporation
(the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Innovations, the
Company and Nutritionals Acquisition Corporation, a wholly owned subsidiary of
Innovations (the "MERGER SUB"), have entered into an Agreement and Plan of
Merger (the "MERGER AGREEMENT"), pursuant to which Innovations will acquire all
of the fully diluted capital stock of the Company through the merger (the
"MERGER") of the Company with and into the Merger Sub.
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 Merger Agreement 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 Merger Agreement, (ii) the termination of the
Merger Agreement in accordance with its terms or (iii) May 31, 2002.
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
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; and
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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 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,
-2-
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 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 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
-3-
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.
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:
-4-
If to Innovations, to: Ron Zwanziger, Chief Executive Officer
Inverness Medical Innovations, Inc.
51 Sawyer Road, Suite 200
Waltham, Massachusetts 02453
Telephone No.: (781) 647-3900
Facsimile No.: (781) 647-3939
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.
* * * * *
-5-
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/ RON ZWANZIGER /s/ ANDREW PINKOWSKI
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
ANDREW PINKOWSKI
---------------------------------------
Print Name
5725 SW MENEFEE DRIVE
---------------------------------------
PORTLAND, OR 97201
---------------------------------------
Address
503-293-2421
---------------------------------------
Fax Number
Number of shares of Company Common
Stock owned by Stockholder:
190,528
---------------------------------------
Other securities convertible into,
exercisable or exchangeable for,
shares of Company Common Stock owned by
Stockholder:
0
---------------------------------------
-6-
EXHIBIT A
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 Ron Zwanziger and David Scott, 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 Agreement and Plan of Merger dated as of December 21, 2001 (the
"MERGER AGREEMENT") by and among Innovations, the Company and Nutritionals
Acquisition Corporation, a wholly owned subsidiary of Innovations (the "MERGER
SUB"). Subject to the conditions set forth therein, the Merger Agreement
provides for Innovations to acquire all of the fully diluted capital stock of
the Company through the merger (the "MERGER") of the Company with and into the
Merger Sub. 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 Merger Agreement in accordance with its terms or (iii) May
31, 2002.
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
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; and
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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: December 21, 2001
/s/ ANDREW PINKOWSKI
---------------------------------------
Signature
ANDREW PINKOWSKI
---------------------------------------
Print Name
5725 SW MENEFEE DRIVE
---------------------------------------
PORTLAND, OR 97201
---------------------------------------
Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
190,528 SHARES IVU 11 AND 90
---------------------------------------
-2-
EXHIBIT F
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "AGREEMENT") is made and entered
into as of December 21, 2001 by and between Inverness Medical Innovations, Inc.,
a Delaware corporation ("INNOVATIONS"), and Rita Pinkowski, the undersigned
stockholder (the "STOCKHOLDER") of IVC Industries, Inc., a Delaware corporation
(the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Innovations, the
Company and Nutritionals Acquisition Corporation, a wholly owned subsidiary of
Innovations (the "MERGER SUB"), have entered into an Agreement and Plan of
Merger (the "MERGER AGREEMENT"), pursuant to which Innovations will acquire all
of the fully diluted capital stock of the Company through the merger (the
"MERGER") of the Company with and into the Merger Sub.
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 Merger Agreement 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 Merger Agreement, (ii) the termination of the
Merger Agreement in accordance with its terms or (iii) May 31, 2002.
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
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; and
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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 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,
-2-
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 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 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
-3-
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.
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:
-4-
If to Innovations, to: Ron Zwanziger, Chief Executive Officer
Inverness Medical Innovations, Inc.
51 Sawyer Road, Suite 200
Waltham, Massachusetts 02453
Telephone No.: (781) 647-3900
Facsimile No.: (781) 647-3939
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.
* * * * *
-5-
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/ RON ZWANZIGER /s/ RITA PINKOWSKI
------------------------------------ ---------------------------------------
By: Ron Zwanziger Signature
Its: Chief Executive Officer
RITA PINKOWSKI
---------------------------------------
Print Name
5725 SW MENEFEE DRIVE
---------------------------------------
PORTLAND, OR 97201
---------------------------------------
Address
503-293-2421
---------------------------------------
Fax Number
Number of shares of Company Common
Stock owned by Stockholder:
117,981
---------------------------------------
Other securities convertible into,
exercisable or exchangeable for,
shares of Company Common Stock owned by
Stockholder:
0
---------------------------------------
-6-
EXHIBIT A
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 Ron Zwanziger and David Scott, 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 Agreement and Plan of Merger dated as of December 21, 2001 (the
"MERGER AGREEMENT") by and among Innovations, the Company and Nutritionals
Acquisition Corporation, a wholly owned subsidiary of Innovations (the "MERGER
SUB"). Subject to the conditions set forth therein, the Merger Agreement
provides for Innovations to acquire all of the fully diluted capital stock of
the Company through the merger (the "MERGER") of the Company with and into the
Merger Sub. 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 Merger Agreement in accordance with its terms or (iii) May
31, 2002.
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
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; and
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by 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 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: December 21, 2001
/S/ RITA PINKOWSKI
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Signature
RITA PINKOWSKI
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Print Name
5725 SW MENEFEE DRIVE
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PORTLAND, OR 97201
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Address
Number of shares of Company Common
Stock owned by Stockholder (include
stock certificate numbers):
117,981
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