Form of Founder Warrant for Delaware corporation









Exhibit

10.28




 




THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF

1933, AS AMENDED (THE “SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER ANY

APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED

UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES

ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR  (B) EXEMPTIONS FROM SUCH REGISTRATION OR

QUALIFICATION REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY

TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH

AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO

REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFER.




 




	

  For the Purchase


  
	

  of 385,000

  shares of


  
	

  Common Stock


  
	

   


  





 




WARRANT FOR THE PURCHASE

OF




SHARES OF COMMON STOCK




OF




INVERNESS

MEDICAL INNOVATIONS, INC.




 




VOID AFTER 5:00 P.M., EASTERN STANDARD TIME, ON DECEMBER 19, 2006




 




Inverness Medical

Innovations, Inc., a Delaware corporation (the “Company”), hereby certifies

that Zwanziger Family Ventures, LLC, or its registered assigns (the “Registered

Holder”), is entitled, subject to the terms set forth below, to purchase from

the Company, at any time or from time to time on or before the earlier of (a)

December 19, 2006 at not later than 5:00 p.m. (Eastern Standard Time) and (b)

the termination of this Warrant as provided in Section 9 below, 385,000 shares

of Common Stock, $.001 par value, of the Company (“Common Stock”), at a

purchase price of $17.15 per share.  The

number of shares purchasable upon exercise of this Warrant, and the purchase

price per share, each as adjusted from time to time pursuant to the provisions

of this Warrant, are hereinafter referred to as the “Warrant Stock” and the

“Purchase Price,” respectively.




 




1.             Exercise.




 




(a)           This Warrant may be exercised by the

Registered Holder, in whole or in part, by surrendering this Warrant, with the

purchase form appended hereto as Exhibit I duly executed by such

Registered Holder, at the principal office of the Company, or at such other

office or agency as the Company may designate, accompanied by payment in full,

as provided in subsection 1(b) below, of the aggregate Purchase Price payable

in respect of the number of shares of Warrant Stock purchased upon such

exercise.




 




(b)           The aggregate Purchase Price may be

paid, at the Registered Holder’s election, at any time during the term of this

Warrant, (i) by cash (including by wire transfer of 




 




 





























 




immediately available

funds to an account designated by the Company) or certified or bank check in

lawful money of the United States or (ii) by exercise of the “net issuance”

right described below in this subsection 1(b) (“Net Issuance”).  If the Registered Holder elects the Net

Issuance method, the Company will issue Common Stock to the Registered Holder

upon exercise of this Warrant in accordance with the following formula:




 




X = Y(A-B)




A




 




Where:       X =       the

number of shares of Common Stock that shall be issued to the Registered Holder.




 




Y =      the number of shares of Common Stock

requested to be exercised under  this

Warrant.




 




A =      the current fair market value of one (1)

share of Common Stock at the time of issuance of such shares of Common Stock.




 




B =      the Purchase Price.




 




For purposes of the above

calculation, current fair market value of each share of Common Stock shall be

determined as follows:




 




(i)            if the Common Stock is traded on a

national securities exchange, the fair market value shall be deemed to be the

average of the closing prices of the Common Stock over the ten (10) trading day

period ending immediately prior to the day as of which the current fair market

value of the Common Stock is being determined; or




 




(ii)           if the Common Stock is traded

over-the-counter, the fair market value shall be deemed to be the product of

the average of the closing bid and asked prices of the Common Stock quoted on

the NASDAQ System (or similar system) over the ten (10) trading day period

ending immediately prior to the day as of which the current fair market value

of the securities is being determined; or




 




(iii)          if at any time the Common Stock is not

listed on any national securities exchange or quoted in the NASDAQ System (or

similar system) or the over-the-counter market, the current fair market value

of the Common Stock shall be as determined in good faith by the Company’s Board

of Directors.




 




(c)           Each exercise of this Warrant shall

be deemed to have been effected immediately prior to the close of business on

the day on which this Warrant shall have been surrendered to the Company as

provided in subsection 1(a) above.  At

such time, the person or persons in whose name or names any certificates for

Warrant Stock shall be issuable upon such exercise as provided in subsection

1(d) below shall be deemed to have become the holder or holders of record of

the Warrant Stock represented by such certificates.




 




(d)           As soon as practicable after the

exercise of this Warrant in full or in part and whether by payment by cash or

check or by Net Issuance, and in any event within fifteen (15) days thereafter,

the Company, at its expense, will cause to be issued in the name of, and

delivered to, the Registered Holder, or, subject to the terms and conditions

hereof, as such 




 




2





























 




Registered Holder (upon

payment by such Registered Holder of any applicable transfer taxes) may direct:




 




(i)            a certificate or certificates for

the number of full shares of Warrant Stock to which such Registered Holder

shall be entitled upon such exercise plus, in lieu of any fractional share to

which such Registered Holder would otherwise be entitled, cash in an amount

determined pursuant to Section 3 hereof, and




 




(ii)           in case such exercise is in part

only, a new warrant or warrants (dated the date hereof) of like tenor, representing

the right to purchase in the aggregate the number of shares of Warrant Stock

equal (without giving effect to any adjustment therein) to the number of such

shares called for on the face of this Warrant minus the number of such shares

purchased or exercised by the Registered Holder upon such exercise as provided

in subsections 1(a) and 1(b) above.




 




(e)           To the extent this Warrant is not

previously exercised as to all of the Warrant Stock subject hereto, and if the

fair market value of one share of Common Stock is greater than the Purchase

Price then in effect, this Warrant shall be deemed automatically exercised

pursuant to the Net Issuance method as provided in subsection 1(b) above (even

if not surrendered) immediately before its expiration.  For purposes of such automatic exercise, the

fair market value of one (1) share of the Common Stock upon such expiration

shall be determined pursuant to the Net Issuance provisions of subsection

1(b).  To the extent this Warrant or any

portion thereof is deemed automatically exercised pursuant to this subsection

1(e), the Company agrees to promptly notify the Registered Holder hereof of the

number of shares of Warrant Stock, if any, that the Registered Holder hereof is

to receive by reason of such automatic exercise.




 




2.             Adjustments.




 




(a)           If outstanding shares of the Common

Stock shall be subdivided into a greater number of shares or a dividend in

Common Stock shall be paid in respect of Common Stock, the Purchase Price in

effect immediately prior to such subdivision or at the record date of such

dividend shall simultaneously with the effectiveness of such subdivision or

immediately after the record date of such dividend be proportionately

reduced.  If outstanding shares of Common

Stock shall be combined into a smaller number of shares, the Purchase Price in

effect immediately prior to such combination shall, simultaneously with the

effectiveness of such combination, be proportionately increased.  When any adjustment is required to be made

in the Purchase Price, the number of shares of Warrant Stock purchasable upon

the exercise of this Warrant shall be changed to the number determined by

dividing (i) an amount equal to the number of shares issuable upon the exercise

of this Warrant immediately prior to such adjustment, multiplied by the

Purchase Price in effect immediately prior to such adjustment, by (ii) the

Purchase Price in effect immediately after such adjustment.




 




(b)           If there shall occur any capital

reorganization or reclassification of the Common Stock (other than a change in

par value or a subdivision or combination as provided for in subsection 2(a)

above), then, as part of any such reorganization or reclassification, lawful

provision shall be made so that the Registered Holder of this Warrant shall

have the right 




 




3





























 




thereafter to receive

upon the exercise hereof the kind and amount of shares of stock or other

securities or property which such Registered Holder would have been entitled to

receive if, immediately prior to any such reorganization or reclassification,

such Registered Holder had held the number of shares of Common Stock which were

then purchasable upon the exercise of this Warrant.  In any such case, appropriate adjustment (as reasonably

determined by the Board of Directors of the Company) shall be made in the

application of the provisions set forth herein with respect to the rights and

interests thereafter of the Registered Holder of this Warrant such that the

provisions set forth in this Section 2 (including provisions with respect to

adjustment of the Purchase Price) shall thereafter be applicable, in as nearly

equivalent a manner as may be practicable, in relation to any shares of stock

or other securities or property thereafter deliverable upon the exercise of

this Warrant.




 




(c)           Subject to the provisions of Section

8, if there shall be a merger or consolidation of the Company with or into

another corporation (other than a merger or reorganization involving only a

change in the state of incorporation of the Company or the acquisition by the

Company of other businesses where the Company survives as a going concern), or

the sale of all or substantially all of the Company’s capital stock or assets

to any other person, then as a part of such transaction, provision shall be

made so that the Registered Holder shall thereafter be entitled to receive the

number of shares of stock or other securities or property of the Company, or of

the successor corporation resulting from the merger, consolidation or sale, to

which the Registered Holder would have been entitled if the Registered Holder

had exercised its rights pursuant to the Warrant immediately prior

thereto.  In any such case, appropriate

adjustment shall be made in the application of the provisions of this Section 2

to the end that the provisions of this Section 2 shall be applicable after that

event in as nearly equivalent a manner as may be practicable.




 




(d)           When any adjustment is required to be

made in the Purchase Price, the Company shall promptly mail to the Registered

Holder a certificate setting forth the Purchase Price after such adjustment and

setting forth a brief statement of the facts requiring such adjustment.  Such certificate shall also set forth the kind

and amount of stock or other securities or property into which this Warrant

shall be exercisable following the occurrence of any of the events specified in

this Section 2.




 




3.             Fractional

Shares.  The Company shall not be

required upon the exercise of this Warrant to issue any fractional shares, but

shall make an adjustment therefor in cash on the basis of the closing market

price of the Common Stock on the American Stock Exchange or, if applicable, any

other national securities exchange on the trading day immediately prior to the

date of exercise or on the basis of the mean between the low bid and high asked

prices of the Common Stock on the over-the-counter market as reported by the

NASDAQ System (or similar system), whichever is applicable, or if neither is

applicable, then on the basis of the then current market value of the Common

Stock as shall be reasonably determined by the Company’s Board of Directors.




 




4.             Limitation

on Sales, etc.  Each holder of this

Warrant acknowledges that this Warrant and the Warrant Stock have not been

registered under the Securities Act of 1933, as now in force or hereafter

amended, or any successor legislation (the “Securities Act”), and agrees not to

sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this

Warrant 




 




4





























 




or any Warrant Stock issued upon its exercise unless (a) there is an

effective registration statement under the Securities Act as to this Warrant or

such Warrant Stock and this Warrant or such Warrant Stock has been registered or

qualified under any applicable state securities or “blue sky” laws then in

effect, or (b) the Company receives an opinion of counsel, satisfactory to the

Company, that such registration and qualification are not required.




 




Without limiting the generality of the foregoing,

unless the offering and sale of the Warrant Stock to be issued upon the

particular exercise of the Warrant shall have been effectively registered under

the Securities Act, the Company shall be under no obligation to issue the

shares covered by such exercise unless and until the Registered Holder shall

have executed an investment letter in form and substance satisfactory to the

Company, including a warranty at the time of such exercise that it is acquiring

such shares for its own account, for investment and not for, with a view to, or

in connection with, the distribution or resale of any such shares, and the

holder of this Warrant shall be bound by the provisions of the following legend

or a legend in substantially similar form which shall be endorsed upon the

certificate(s) evidencing the Warrant Stock issued pursuant to such exercise:




 




“THESE SECURITIES

HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

(“SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE

SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS (A) COVERED BY

AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR

QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR  (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION

REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE

SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF

COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR

QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFER.”




 




In addition, without limiting the generality of the

foregoing, the Company may delay issuance of the Warrant Stock until completion

of any action or obtaining of any consent, which the Company deems necessary

under any applicable law (including, without limitation, state securities or

“blue sky” laws).




 




5.             Registration.




 




(a)           Incidental

Registration; Registration Procedures and Expenses, etc.




 




(i)            (A)          Whenever the Company proposes to file

a Registration Statement (as defined below) at any time and from time to time,

it shall, prior to such filing, give written notice to the Registered Holder of

its intention to do so and, upon the written request of the Registered Holder,

given within ten (10) business days after the Company provides such notice

(which request shall state the intended method of disposition of the

Registrable Shares (as defined below) requested to be registered), the Company

shall use its reasonable best efforts to cause all Registrable Shares which the

Company has been requested by the Registered Holder to register to be so

registered under the Securities Act to the extent 




 




5





























 




necessary to permit their sale or other disposition in accordance with

the intended methods of distribution specified in the request of the Registered

Holder; provided, however, that the Company shall have the right

to postpone or withdraw any registration effected pursuant to this subsection

5(a) without obligation to the Registered Holder.  As used in this Warrant, the term “Registration Statement” shall

mean a registration statement filed by the Company with the Securities and

Exchange Commission (the “Commission”) for a public offering and sale of Common

Stock by the Company (other than a registration statement on Form S-8 or Form

S-4, or their successors, or any other form for a similar limited purpose, or

any registration statement covering only securities proposed to be issued in

exchange for securities or assets of another company).  As used in this Warrant, the term

“Registrable Shares” shall mean (i) any Common Stock issued or issuable upon

exercise of this Warrant and (ii) any shares of Common Stock issued in respect

of such shares (because of stock splits, stock dividends, reclassifications,

recapitalizations, or similar events).




 




(B)           In

connection with any registration under this subsection 5(a) involving an

underwriting, the Company shall not be required to include any Registrable

Shares in such registration unless the Registered Holder accepts the terms of

the underwriting as agreed upon between the Company and the underwriters

selected by it.  If in the opinion of

the managing underwriter it is desirable because of marketing factors to limit

the number of Registrable Shares to be included in the offering, then the

Company shall be required to include in the registration only that number of

Registrable Shares, if any, that the managing underwriter believes should be

included therein.




 




(ii)           If

and whenever the Company is required by the provisions of this subsection 5(a)

to use its reasonable best efforts to effect the registration of any

Registrable Shares under the Securities Act, the Company shall:




 




(A)          so

long as such Registration Statement is effective covering any Registrable

Shares owned by the Registered Holder, furnish to the Registered Holder such

number of copies of prospectuses and such other documents as the Registered

Holder may reasonably request in order to facilitate the public sale or other

disposition of all or any of such Registrable Shares by the Registered Holder;




 




(B)           file

documents required of the Company for blue sky clearance in states specified in

writing by the Registered Holder; provided,  however, that the

Company shall not be required to qualify to do business or consent to service

of process in any jurisdiction in which it is not so qualified or has not so

consented; and




 




(C)           bear

all expenses in connection with the procedures in paragraphs (A) and (B) of

this subsection 5(a)(ii) and the registration of the Registrable Shares

pursuant to such Registration Statement, and the reasonable legal fees and

expenses, if any, of one (1) counsel to the Registered Holder and all other

selling stockholders, if any, under such Registration Statement, and except for

any underwriting discounts, brokerage fees and commissions incurred by the

Registered Holder and/or such other selling stockholders, if any.




 




6





























 




(b)           Additional

Obligations.




 




(i)            With

a view to making available to the Registered Holder the benefits of Rule 144

promulgated by the Commission under the Securities Act (or its successor rule)

(“Rule 144”) and any other rule or regulation of the Commission that may at any

time permit the Registered Holder to sell the Registrable Shares to the public

without registration, the Company covenants and agrees to: (A) make and keep

public information available, as those terms are understood and defined in Rule

144, until the earlier of (x) such date as all of the Registered Holder’s

Registrable Shares may be resold within a given three-month period pursuant to

Rule 144 or any other rule of similar effect or (y) such date as all of the

Registered Holder’s Registrable Shares shall have been resold and (B) file with

the Commission in a timely manner all reports and other documents required of

the Company under the Securities Act and under the Securities Exchange Act of

1934, as amended (the “Exchange Act”).




 




(ii)           If

the Registered Holder owns Registrable Shares included in any Registration

Statement and the Company has delivered preliminary or final prospectuses to

the Registered Holder in connection therewith, and after such delivery the

prospectus is amended to comply with the requirements of the Securities Act,

the Company shall promptly notify the Registered Holder and, if requested, the

Registered Holder shall immediately cease making offers of Registrable Shares

and return all prospectuses to the Company. 

The Company shall promptly provide the Registered Holder with revised

prospectuses and, following receipt of the revised prospectuses, the Registered

Holder shall be free to resume making offers of the Registrable Shares.




 




(iii)          In

the event that, in the judgment of the Company, it is advisable to suspend use

of a prospectus included in a Registration Statement due to pending material

developments or other events that have not yet been publicly disclosed and as

to which the Company believes public disclosure would be detrimental to the

Company, the Company shall notify the Registered Holder to such effect, and,

upon receipt of such notice, the Registered Holder shall immediately

discontinue any sales of Registrable Shares pursuant to such Registration

Statement until the Registered Holder has received copies of a supplemented or

amended prospectus or until the Registered Holder is advised in writing by the

Company that the then current prospectus may be used and has received copies of

any additional or supplemental filings that are incorporated or deemed

incorporated by reference in such prospectus. 

Notwithstanding anything to the contrary herein, the Company shall not

exercise its rights under this clause (iii) to suspend sales of Registrable

Shares for a period in excess of 90 days in any 365-day period.




 




(iv)          If

the Registered Holder includes any Registrable Shares in any Registration

Statement, the Registered Holder shall furnish to the Company such information

regarding the Registered Holder as the Company may reasonably request and as

shall be required in connection with any registration, qualification or

compliance referred to in this Warrant.




 




(v)           The

Registered Holder covenants with the Company not to make any sale of the

Registrable Shares without satisfying the prospectus delivery requirements

under the Securities Act, if any.




 




7





























 




(vi)          The

Registered Holder covenants to provide to the Company an updated, accurate and

complete plan of distribution at all times during which the Company is required

to keep in effect any Registration Statement covering any Registrable Shares

held by the Registered Holder.




 




(c)           Indemnification.  For the purpose of this subsection 5(c):




 




(1)           the term “Registered Holder” shall

include the Registered Holder and any affiliate of the Registered Holder; and




 




(2)           the term “Registration Statement”

shall include any final prospectus, exhibit, supplement or amendment included

in or relating to any Registration Statement referred to in subsection 5(a)

above.




 




(i)            In

the event of any registration of any Registrable Shares under the Securities

Act pursuant to this Warrant, the Company agrees to indemnify and hold harmless

the Registered Holder and each person, if any, who controls the Registered

Holder within the meaning of the Securities Act against any losses, claims,

damages, liabilities or expenses, joint or several, to which the Registered

Holder or any such controlling person may become subject, under the Securities

Act, the Exchange Act, or any other federal or state statutory law or

regulation, or at common law or otherwise (including in settlement of any

litigation, if such settlement is effected with the written consent of the

Company), insofar as such losses, claims, damages, liabilities or expenses (or

actions in respect thereof as contemplated below) arise out of or are based

upon any untrue statement or alleged untrue statement of any material fact

contained in any Registration Statement covering any Registrable Shares,

including the prospectus, financial statements and schedules, and all other

documents filed as a part thereof, as amended at the time of effectiveness of

such Registration Statement, including any information deemed to be a part

thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A,

or pursuant to Rule 434, under the Securities Act, or the prospectus, in the

form first filed with the Commission pursuant to Rule 424(b) under the

Securities Act, or filed as part of such Registration Statement at the time of

effectiveness if no Rule 424(b) filing is required (a “Prospectus”), or any

amendment or supplement thereto, or arise out of or are based upon the omission

or alleged omission to state a material fact required to be stated in such

Registration Statement, Prospectus or any amendment or supplement thereto or

necessary to make the statements therein, in light of the circumstances in

which they were made, not misleading, and will reimburse the Registered Holder

and each such controlling person for any legal and other expenses reasonably

incurred, as such expenses are reasonably incurred, by the Registered Holder or

such controlling person in connection with investigating, defending, settling,

compromising or paying any such loss, claim, damage, liability, expense or

action; provided, however, that the Company will not be liable in

any such case to the extent that any such loss, claim, damage, liability or

expense arises out of or is based upon (A) an untrue statement or alleged

untrue statement or omission or alleged omission made in any Registration

Statement, Prospectus or any amendment or supplement thereto in reliance upon

and in conformity with written information furnished to the Company by or on

behalf of the Registered Holder expressly for use therein, or (B) the failure

of the Registered Holder to comply with subsection 5(b)(v) hereof respecting

any sale of the Registrable Shares, or (C) the inaccuracy of any

representations made by the Registered Holder in this Warrant or in any

investment 




 




8





























 




representation letter executed by the Registered Holder in connection

with the issuance or exercise of this Warrant  or (D) any statement or

omission in any Prospectus that is corrected in any subsequent Prospectus that

was delivered to Registered Holder prior to the pertinent sale or sales by the

Registered Holder.




 




(ii)           In

the event of any registration of any Registrable Shares under the Securities

Act pursuant to this Warrant, the Registered Holder thereto will indemnify and

hold harmless the Company, each of its directors, each of its officers who sign

any Registration Statement covering any Registrable Shares and each person, if

any, who controls the Company within the meaning of the Securities Act, against

any losses, claims, damages, liabilities or expenses to which the Company, each

of its directors, each of its officers who signed such Registration Statement

or controlling person may become subject, under the Securities Act, the

Exchange Act, or any other federal or state statutory law or regulation, or at

common law or otherwise (including in settlement of any litigation, if such

settlement is effected with the written consent of the Registered Holder)

insofar as such losses, claims, damages, liabilities or expenses (or actions in

respect thereof as contemplated below) arise out of or are based upon (A) any

failure by the Registered Holder to comply with subsection 5(b)(v) hereof

respecting any sale of the Registrable Shares, or (B) the inaccuracy of any

representation made by the Registered Holder in this Warrant or in any

investment representation letter executed by the Registered Holder in

connection with the issuance or exercise of this Warrant or (C) any untrue or

alleged untrue statement of any material fact contained in any Registration

Statement, Prospectus or any amendment or supplement thereto, or the omission

or alleged omission to state a material fact required to be stated therein or

necessary to make the statements therein, in light of the circumstances in

which they were made, not misleading, in each case to the extent, but only to

the extent, that such untrue statement or alleged untrue statement or omission

or alleged omission was made in such Registration Statement, Prospectus or any

amendment or supplement thereto, in reliance upon and in conformity with

written information furnished to the Company by or on behalf of the Registered

Holder expressly for use therein, and will reimburse the Company, each of its

directors, each of its officers who signed Registration Statement and each such

controlling person for any legal and other expense reasonably incurred, as such

expenses are reasonably incurred, by the Company, each of its directors, each

of its officers who signed such Registration Statement or such controlling

person in connection with investigating, defending, settling, compromising or

paying any such loss, claim, damage, liability, expense or action.




 




(iii)          Promptly

after receipt by an indemnified party under this subsection 5(c) of notice of

the threat or commencement of any action, such indemnified party will, if a

claim in respect thereof is to be made against an indemnifying party under this

subsection 5(c), promptly notify the indemnifying party in writing thereof, but

the omission so to notify the indemnifying party will not relieve it from any

liability which it may have to any indemnified party for contribution or

otherwise to the extent it is not actually prejudiced as a result of such

failure.  In case any such action is

brought against any indemnified party and such indemnified party seeks or

intends to seek indemnity from an indemnifying party, the indemnifying party

will be entitled to participate in, and, to the extent that it may wish,

jointly with all other indemnifying parties similarly notified, to assume the

defense thereof with counsel reasonably satisfactory to such indemnified party;

provided, however, that if the defendants in any such action

include both the indemnified party and the indemnifying party 




 




9





























 




and the indemnified party shall have reasonably concluded that there

may be a conflict between the positions or defenses of the indemnifying party

and the indemnified party in conducting the defense of any such action, the

indemnified party or parties shall have the right to select separate counsel to

assume such legal defenses and to otherwise participate in the defense of such

action on behalf of such indemnified party or parties.  Upon receipt of notice from the indemnifying

party to such indemnified party of its election so to assume the defense of

such action and approval by the indemnified party of counsel, the indemnifying

party will not be liable to such indemnified party under this subsection 5(c)

for any legal or other expenses subsequently incurred by such indemnified party

in connection with the defense thereof unless: (A) the indemnified party shall

have employed such counsel in connection with the assumption of legal defenses

in accordance with the proviso to the preceding sentence (it being understood,

however, that the indemnifying party shall not be liable for the expenses of

more than one separate counsel, reasonably satisfactory to the indemnifying

party, representing the indemnified parties who are parties to such action and

all other purchasers of Registrable Shares, if any, who may be parties to such

action; provided, however, that if any indemnified party shall

have reasonably concluded that there may be a conflict between the positions or

defenses of such indemnified party and the positions or defenses of other

indemnified parties or other purchasers in conducting the defense of any such

action, the indemnified party shall have the right to select a separate counsel

to assume such legal defenses) or (B) the indemnifying party shall not have

employed counsel reasonably satisfactory to the indemnified party to represent

the indemnified party within a reasonable time after notice of commencement of

action, in each of which cases the reasonable fees and expenses of counsel

shall be at the expense of the indemnifying party.  The indemnity agreements contained in subsections 5(c)(i) and

(ii) shall not apply to amounts paid in settlement of any action if such

settlement is effected without the prior written consent of the indemnifying

party (which consent shall not be unreasonably withheld or delayed), or to

amounts paid in settlement of any action if the indemnifying party is not fully

released under such settlement from any claim or liability under such action.




 




(iv)          If

the indemnification provided for in this subsection 5(c) is required by its

terms but is for any reason held to be unavailable to or otherwise insufficient

to hold harmless an indemnified party under paragraphs (i), (ii) or (iii) of

this subsection 5(c) in respect to any losses, claims, damages, liabilities or

expenses referred to herein, then each applicable indemnifying party shall

contribute to the amount paid or payable by such indemnified party as a result

of any losses, claims, damages, liabilities or expenses referred to herein (A)

in such proportion as is appropriate to reflect the relative benefits received

by the Company and the Registered Holder from the issuance of this Warrant or

(B) if the allocation provided by clause (A) above is not permitted by

applicable law, in such proportion as is appropriate to reflect not only the

relative benefits referred to in clause (A) above but the relative fault of the

Company and the Registered Holder in connection with the statements or

omissions or inaccuracies in the representations and warranties in this Warrant

which resulted in such losses, claims, damages, liabilities or expenses, as

well as any other relevant equitable considerations.  The respective relative benefits received by the Company on the

one hand and the Registered Holder on the other shall be deemed to be in the

same proportion as the amount paid by the Registered Holder to the Company

pursuant to this Warrant for the Registrable Shares that were sold pursuant to

any Registration Statement bears to the difference (the “Difference”) between

the amount the Registered Holder paid for such Registrable Shares and 




 




10





























 




the amount received by the Registered Holder from the sale of such

Registrable Shares.  The relative fault

of the Company and the Registered Holder shall be determined by reference to,

among other things, whether the untrue or alleged untrue statement of a

material fact or the omission or alleged omission to state a material fact or

the inaccurate or the alleged inaccurate representation and/or warranty relates

to information supplied by the Company or by the Registered Holder and the

parties’ relative intent, knowledge, access to information and opportunity to

correct or prevent such statement or omission. 

The amount paid or payable by a party as a result of the losses, claims,

damages, liabilities and expenses referred to above shall be deemed to include,

subject to the limitations set forth in paragraph (iii) of this subsection

5(c), any legal or other fees or expenses reasonably incurred by such party in

connection with investigating or defending any action or claim.  The provisions set forth in paragraph (iii)

of this subsection 5(c) with respect to the notice of the threat or commencement

of any threat or action shall apply if a claim for contribution is to be made

under this paragraph (iv); provided, however, that no additional

notice shall be required with respect to any threat or action for which notice

has been given under paragraph (iii) for purposes of indemnification.  The Company and the Registered Holder agree

that it would not be just and equitable if contribution pursuant to this

subsection 5(c) were determined solely by pro rata allocation or by any other

method of allocation which does not take account of the equitable

considerations referred to in this paragraph. 

Notwithstanding the provisions of this subsection 5(c), the Registered

Holder shall not be required to contribute any amount in excess of the amount

by which the Difference exceeds the amount of any damages that the Registered

Holder has otherwise been required to pay by reason of such untrue or alleged

untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning

of Section 11(f) of the Securities Act) shall be entitled to contribution from

any person who was not guilty of such fraudulent misrepresentation.




 




6.             Notices

of Record Date, etc.  In case:




 




(a)           the

Company shall take a record of the holders of its Common Stock (or other stock

or securities at the time deliverable upon the exercise of this Warrant) for

the purpose of entitling or enabling them to receive any dividend or other

distribution, or to receive any right to subscribe for or purchase any shares

of stock of any class or any other securities, or to receive any other right;

or




 




(b)           of

any capital reorganization of the Company, any reclassification of the capital

stock of the Company, any consolidation or merger of the Company with or into

another corporation (other than a consolidation or merger in which the Company

is the surviving entity), or any transfer of all or substantially all of the

assets of the Company; or




 




(c)           of

the voluntary or involuntary dissolution, liquidation or winding-up of the

Company;




 




then, and in each such

case, the Company will mail or cause to be mailed to the Registered Holder of

this Warrant a notice specifying, as the case may be, (i) the date on which a

record is to be taken for the purpose of such dividend, distribution or right,

and stating the amount and character of such dividend, distribution or right,

or (ii) the effective date on which such reorganization, reclassification,

consolidation, merger, transfer, dissolution, liquidation or 




 




11





























 




winding-up is to take

place, and the time, if any is to be fixed, as of which the holders of record

of Common Stock (or such other stock or securities at the time deliverable upon

the exercise of this Warrant) shall be entitled to exchange their shares of

Common Stock (or such other stock or securities) for securities or other

property deliverable upon such reorganization, reclassification, consolidation,

merger, transfer, dissolution, liquidation or winding-up.  Such notice shall be mailed at least ten

(10) days prior to the record date or effective date for the event specified in

such notice.




 




7.             Reservation

of Stock.  The Company will at all

times reserve and keep available, solely for issuance and delivery upon the

exercise of this Warrant, such shares of Common Stock and other stock,

securities and property, as from time to time shall be issuable upon the

exercise of this Warrant.




 




8.             Replacement

of Warrants.  Upon receipt of

evidence reasonably satisfactory to the Company of the loss, theft, destruction

or mutilation of this Warrant and (in the case of loss, theft or destruction)

upon delivery of an indemnity agreement (with surety if reasonably required) in

an amount reasonably satisfactory to the Company, or (in the case of

mutilation) upon surrender and cancellation of this Warrant, the Company will

issue, in lieu thereof, a new Warrant of like tenor.




 




9.             Termination

In Certain Events.  In the event of

a transfer of all or substantially all of the assets of the Company or a merger

or consolidation of the Company with or into any other entity (other than a

merger the sole purpose of which is to change the state of incorporation of the

Company) or a dissolution or winding-up or the adoption of a plan of

liquidation of the Company, this Warrant shall terminate on the effective date

of such transfer, merger, consolidation, dissolution, winding-up or adoption

(the “Transaction Effective Date”) and shall become null and void, provided

that the Registered Holder shall have received the prior notice with respect to

such transaction or event required by Section 6 hereof, and provided further,

however, that if this Warrant shall not have otherwise terminated or

expired, the Registered Holder hereof shall have the right until 5:00 p.m.

(Eastern Standard Time) on the day immediately prior to the Transaction

Effective Date to exercise its rights hereunder to the extent not previously

exercised.




 




10.           Warrant

Register; Transfers, etc.




 




(a)           The

Company will maintain a register containing the names and addresses of the

Registered Holders of this Warrant.  Any

Registered Holder may change its, his or her address as shown on the warrant

register by written notice to the Company requesting such change.




 




(b)           This

Warrant shall not be transferable by the Registered Holder without the prior written

consent of the Company and shall be exercisable only by the Registered

Holder.  Without the prior written

consent of the Company, the Warrant shall not be assigned, pledged or

hypothecated in any way (whether by operation of law or otherwise) and shall

not be subject to execution, attachment or similar process.  Any attempted transfer, assignment, pledge,

hypothecation or other disposition of the Warrant or of any rights granted

hereunder 




 




12





























 




contrary to the provisions of this Paragraph, or the levy of any

attachment or similar process upon the Warrant or such rights, shall be null

and void.




 




(c)           Until

any transfer of this Warrant is made in the warrant register, the Company may

treat the Registered Holder of this Warrant as the absolute owner hereof for

all purposes; provided, however, that if and when this Warrant is

properly assigned in blank, the Company may (but shall not be obligated to)

treat the bearer hereof as the absolute owner hereof for all purposes,

notwithstanding any notice to the contrary.




 




11.           Mailing

of Notices, etc.  Any notice

required or permitted to be given to the Company or the Registered Holder under

this Warrant shall be made in writing at the address or facsimile number of such

person specified below (or such other address or facsimile number as such

person may specify in a written notice to the other party) and shall be deemed

to have been given, if delivered personally or sent via electronic facsimile

transmission with confirmation received, on the date of delivery or, if sent

via nationally recognized overnight express courier with established tracking

capability marked for delivery on the next business day, on the earlier of the

date of delivery, as demonstrated by the tracking records of the courier, or

two (2) business days after deposit of the notice with the courier:




 




if to the Company, to:




 




Inverness Medical Innovations, Inc.




51 Sawyer Road, Suite 200




Waltham, Massachusetts 02453




Facsimile: 

(781) 674-3939




Attention:  Ron Zwanziger, President




 




with a copy to:




 




Foley, Hoag & Eliot, LLP




One Post Office Square




Boston, Massachusetts

02109




Facsimile: (617) 832-7000




Attention:  John D. Patterson, Jr., Esq.




 




if to the Registered Holder of this Warrant, to the address furnished to

the Company in writing by the last Registered Holder of this Warrant who shall

have furnished an address to the Company in writing.




 




12.           No

Rights as Stockholder.  Until the

exercise of this Warrant, the Registered Holder of this Warrant shall not have

or exercise any rights by virtue hereof as a stockholder of the Company.




 




13.           Change

or Waiver.  Any term of this Warrant

may be changed or waived only by an instrument in writing signed by the party

against which enforcement of the change or waiver is sought.




 




13





























 




14.           Headings.  The headings in this Warrant are for

purposes of reference only and shall not limit or otherwise affect the meaning

of any provision of this Warrant.




 




15.           Governing

Law.  This Warrant shall be governed

by, and construed and enforced in accordance with, the substantive laws of the

Commonwealth of Massachusetts without regard to its principles of conflicts of

laws.  Any dispute arising out of or relating

to this Warrant shall be filed and prosecuted in any court of competent subject

matter jurisdiction located in Massachusetts. 

The Company and the Registered Holder hereby consent to the personal

jurisdiction of such courts over them, stipulate to the convenience, fairness

and efficiency of proceeding in such courts, and covenant not to assert any

objection to proceeding in such courts based on any alleged lack of

jurisdiction or any alleged inconvenience, unfairness or inefficiency of such

courts.




 




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




 




14





























 




 




IN WITNESS WHEREOF, the undersigned has caused this

Warrant to be executed by its duly authorized officer as of the date written

below.




 




	

  Date: As of December

  20, 2001


  	

  INVERNESS MEDICAL

  INNOVATIONS, INC.


  
	

   


  	

   


  
	

   


  	

  By: 


  	

  /s/ Duane L. James


  
	

   


  	

   


  	

  Name:  Duane L. James


  
	

  [Corporate Seal]


  	

   


  	

  Title:  Treasurer


  
	

   


  	

   


  
	

  ATTEST:


  	

   


  
	

   


  	

   


  
	

  /s/ Jay McNamara


  	

   


  	

   


  
	

   


  	

   


  
				





 




ACCEPTED AND AGREED:




 




ZWANZIGER FAMILY

VENTURES, LLC




 




	

  By:


  	

  /s/ Ron Zwanziger


  	

   


  
	

   


  	

  Name: Ron Zwanziger


  	 

	

   


  	

  Title: Manager


  	 

	

   


  	

   


  	 

				





 





























 




EXHIBIT I




 




PURCHASE FORM




 




	

  To:


  	

  INVERNESS

  MEDICAL INNOVATIONS, INC.


  	

   


  	

  Dated:


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  





 




 




The undersigned, pursuant

to the provisions set forth in the attached Warrant, hereby irrevocably elects

to purchase            shares of the

Common Stock (the “Common Stock”) covered by such Warrant and [cash or

check payment:  herewith

tenders payment of $________]  [Net Issuance:  elects pursuant to Section 1(b) of the Warrant to effect a Net

Issuance],

representing the full purchase price for such shares at the price per share

provided for in such Warrant.




 




[The provisions set forth below will

be revised appropriately by the Company in the event that the shares of Common

Stock purchased by the undersigned have been registered under the Securities Act.]




 




The undersigned is aware

that the Common Stock has not been registered under the Securities Act of 1933,

as amended (the “Securities Act”), or any state securities laws.  The undersigned understands that the reliance

by the Company on exemptions under the Securities Act is predicated in part

upon the truth and accuracy of the statements of the undersigned in this

Purchase Form.




 




The undersigned

represents and warrants that (1) it has been furnished with all information

which it deems necessary to evaluate the merits and risks of the purchase of

the Common Stock; (2) it has had the opportunity to ask questions concerning

the Common Stock and the Company and all questions posed have been answered to

its satisfaction; (3) it has been given the opportunity to obtain any

additional information it deems necessary to verify the accuracy of any

information obtained concerning the Common Stock and the Company; and (4) it

has such knowledge and experience in financial and business matters that it is

able to evaluate the merits and risks of purchasing the Common Stock and to

make an informed investment decision relating thereto.




 




The undersigned is an

“accredited investor,” as such term is defined in Rule 501 promulgated by the

Securities and Exchange Commission (the “SEC”) under the Securities Act.




 




The undersigned hereby

represents and warrant that it is purchasing the Common Stock for its own

account for investment and not for, with a view to, or in connection with, the

distribution or resale of all or any part of the Common Stock.




 




The undersigned

understands that because the Common Stock have not been registered under the

Securities Act, it must continue to bear the economic risk of the investment

for an indefinite time and the Common Stock cannot be sold unless the Common

Stock is subsequently registered under applicable federal and state securities

laws or an exemption from such registration is available.




 




 





























 




The undersigned agrees

that it will in no event sell or distribute or otherwise dispose of all or any

part of the Common Stock unless (1) there is an effective registration

statement under the Securities Act and registration or qualification under

applicable state securities laws covering any such transaction involving the

Common Stock or (2) the Company receives an opinion of its legal counsel

(concurred in by legal counsel for the Company) stating that such transaction

is exempt from registration and qualification or the Company otherwise

satisfies itself that such transaction is exempt from registration and

qualification.




 




The undersigned consents

to the placing of a legend on its certificate for the Common Stock stating that

the Common Stock has not been registered and setting forth the restriction on

transfer contemplated hereby and to the placing of a stop transfer order on the

books of the Company and with any transfer agents against the Common Stock

until the Common Stock may be legally resold or distributed without

restriction.




 




The undersigned

understands that, at the present time, the undersigned may not be entitled to

rely on Rule 144 promulgated by the SEC under the Securities Act for the resale

or distribution of the Securities.  The

undersigned understands that, except as set forth in the Warrant or as may

otherwise have been separately and expressly agreed by the Company and the

Registered Holder, the Company has no obligation to the undersigned to register

the Common Stock under the Securities Act and has not represented that it will

register the Common Stock.




 




The undersigned has

considered the federal and state income tax implications of the exercise of the

Warrant and the purchase and subsequent sale of the Common Stock.




 




____________________




 




Dated:_______________