SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT, dated as of September 21, 1998, among
IMMUCOR, INC., a Georgia corporation ("PARENT"), GAMMA ACQUISITION
CORPORATION, a Texas corporation and a wholly owned subsidiary of Parent (the
"PURCHASER"), and the shareholders identified on the signature page hereof
(the "SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, the Purchaser and GAMMA BIOLOGICALS, INC., a Texas corporation (the
"COMPANY"), have entered into an Agreement and Plan of Merger (as such agreement
may hereafter be amended from time to time, the "MERGER AGREEMENT"), pursuant to
which the Purchaser will be merged with and into the Company (the "MERGER");
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that as soon as practicable after the announcement of the execution of the
Merger Agreement, the Purchaser shall commence a cash tender offer (the
"OFFER") to purchase at a price of $5.40 per share all outstanding shares of
Common Stock (as defined in Section 1 hereof) of the Company, including all
of the Shares (as defined in Section 2 hereof) beneficially owned by the
Shareholders; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Shareholders agree, and the
Shareholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section 13(d)(3) of
the Exchange Act.
(b) "COMMON STOCK" shall mean at any time the Common Stock, $.10 par
value, of the Company.
(c) "PERSON" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
(d) Capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
(a) In order to induce Parent and the Purchaser to enter into the Merger
Agreement, each of the Shareholders hereby agrees to validly tender (or cause
the record owner of such shares to validly tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not later than the
fifteenth business day after commencement of the offer pursuant to Section 1.01
of the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of
shares of Common Stock set forth opposite each Shareholder's name on Schedule I
hereto (the "EXISTING SHARES"), all of which are Beneficially owned by such
Shareholder, and any shares of Common Stock acquired by such Shareholder in any
capacity after the date hereof and prior to the termination of this Agreement by
means of purchase, exercise of any option, dividend, distribution or in any
other way (such shares of Common Stock, together with the Existing Shares, the
"SHARES"). Each of the Shareholders hereby acknowledges and agrees that
Parent's and the Purchaser's obligation to accept for payment and pay for the
Shares in the offer, including the Shares Beneficially Owned by such
Shareholder, is subject to the terms and conditions of the Offer.
(b) The Shareholders hereby permit Parent and the Purchaser to publish and
disclose in the Offer Documents and, if approval of the Company's shareholders
is required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC) its identity and ownership of the Shares and
the nature of its commitments, arrangements and understandings under this
Agreement.
3. ADDITIONAL AGREEMENTS.
(a) GRANT OF OPTION.
(i) Each of the Shareholders hereby grants to Purchaser an irrevocable
option (the "OPTION") to purchase the Existing Shares at a price per share of
$5.40 (the "OPTION PURCHASE PRICE"); provided, however, such grant shall be
ineffective and without any legal effect as to any Shareholder if the
granting of the Option by that Shareholder would subject such Shareholder to
liability under Section 16(b) of the Exchange Act.
(ii) Provided that no preliminary or permanent injunction or other order
against the delivery of the Existing Shares issued by any court of competent
jurisdiction in the United States shall be in effect, Purchaser may exercise
the Option, in whole or in part, at any time and from time to time at or
prior to the Termination Date (as defined below). The Option shall terminate
and be of no further force or effect upon the first anniversary of the date
hereof, unless the Shareholders and the Purchaser shall agree in writing to
extend this Agreement to a date specified in such writing (as it may be so
extended, hereinafter sometimes
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referred to as the "TERMINATION DATE") ; PROVIDED THAT any purchase of
Existing Shares upon exercise of the Option shall be subject to compliance
with applicable law. If Purchaser wishes to exercise the Option, it shall
send the Shareholders a written notice (the date of which being herein
referred to as the "NOTICE DATE") specifying: (i) the total number of
Existing Shares it intends to purchase pursuant to such exercise; and
(ii) subject to the next sentence, a place and date not earlier than three
business days nor later than 15 business days after the Notice Date for the
closing (the "CLOSING") of such purchase (the "CLOSING DATE"). If prior
notification to or consent of any regulatory authority is required in
connection with such purchase, or if the Notice Date is less than three
business days prior to the Termination Date, then, notwithstanding the prior
occurrence of the Termination Date, the Closing Date shall be extended for
such period as shall be necessary to enable such prior notification or
consent to occur or to be obtained (and the expiration of any mandatory
waiting period), and/or until the Closing Date properly specified in the
notice of exercise. Each of the Shareholders shall cooperate with Purchaser
in the filing of any application or documents necessary to obtain any
required consent or in connection with any required prior notification and
the Closing shall occur immediately following receipt of such consent or the
filing of any such prior notification (and the expiration of any mandatory
waiting period).
(b) VOTING AGREEMENT. Each of the Shareholders shall, at any meeting
of the holders of Common Stock, however called, or in connection with any
written consent of the holders of Common Stock, vote (or cause to be voted)
the Shares (if any) then held of record or Beneficially Owned by such
Shareholder, (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof and
each of the other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and hereof; and
(ii) against any Acquisition Proposal and against any action or agreement
that would impede, frustrate, prevent or nullify this Agreement, or result in
a breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or
which would result in any of the conditions set forth in Schedule 1.01(a) to
the Merger Agreement or set forth in Article VII of the Merger Agreement not
being fulfilled.
(c) NO INCONSISTENT ARRANGEMENTS. Each of the Shareholders hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, it shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent
to any transfer of, any or all of the Shares or any interest therein, (ii)
enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of the Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other authorization in or with
respect to the Shares, (iv) deposit the Shares into a voting trust or enter
into a voting agreement or arrangement with respect to the Shares or (v) take
any other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby or by the Merger Agreement.
(d) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
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(i) Each Shareholder hereby irrevocably grants to, and appoints Xxxxxx
X. Xxxxxx and Xxxxxx X. Xxxxxx or either of them, in their respective
capacities as officers of Parent, and any individual who shall hereafter
succeed to any such office held by such individuals with Parent, and each of
them individually, and also irrevocably grants to, and appoints Parent, such
Shareholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of the Shareholder, to vote the Shares,
or grant a consent or approval in respect of the Shares in favor of the
transactions contemplated hereby or by the Merger Agreement, and against any
Acquisition Proposal.
(ii) Each Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(iii) Each Shareholder understands and acknowledges that Parent and the
Purchaser are entering into the Merger Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement. Each Shareholder
hereby affirms that the irrevocable proxy set forth in this Section 3(c) is
given in connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the duties of such
Shareholder under this Agreement. Each Shareholder hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Each Shareholder hereby ratifies and confirms all
that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Each Shareholder agrees immediately to deliver to Parent, upon its
request, all certificates representing all of such Shareholder's Shares for
the purpose of noting such irrevocable proxy on such certificates. Such
irrevocable proxy is executed and intended to be irrevocable in accordance
with the provisions of Section C of Article 2.29 of the Texas Law.
(e) NO SOLICITATION. Each Shareholder hereby agrees, in its capacity
as a shareholder of the Company, that neither such Shareholder nor any of its
subsidiaries or affiliates shall (and such Shareholder shall cause its
officers, directors, partners, employees, representatives and agents,
including, but not limited to, investment bankers, attorneys and accountants,
not to), directly or indirectly, encourage, solicit, participate in or
initiate discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Parent,
any of its affiliates or representatives) concerning any Acquisition
Proposal. Each Shareholder will immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any Acquisition Proposal. Each Shareholder will immediately
communicate to Parent the terms of any proposal, discussion, negotiation or
inquiry (and will disclose any written materials received by the Shareholder
in connection with such proposal, discussion, negotiation or inquiry) and the
identity of the party making such proposal or inquiry which it may receive in
respect of any such transaction. Any action taken by the Company or any
member of the Board of Directors of the Company in accordance with
Section 5.3(b) of the Merger Agreement shall be deemed not to violate this
Section 3(d).
(f) BEST EFFORTS. Subject to the terms and conditions of
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this Agreement, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement and the Merger Agreement. Each party shall promptly consult with
the other and provide any necessary information and material with respect to
all filings made by such party with any Governmental Entity in connection
with this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder hereby represents and warrants to Parent and the Purchaser as
follows:
(a) OWNERSHIP OF SHARES. The Shareholder is the record and Beneficial
Owner of the Existing Shares, as set forth on Schedule I. On the date hereof,
the Existing Shares constitute all of the Shares owned of record or
Beneficially Owned by the Shareholder. The Shareholder has sole voting power
and sole power to issue instructions with respect to the matters set forth in
Sections 2, 3 and 4 hereof, sole power of disposition and sole power to agree
to all of the matters set forth in this Agreement, in each case with respect
to all of the Existing Shares with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the
terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Each Shareholder has the power
(corporate, partnership or other) and authority to enter into and perform all
of its obligations under this Agreement. The execution, delivery and
performance of this Agreement by the Shareholder will not violate any other
agreement to which such Shareholder is a party including, without limitation,
any voting agreement, proxy arrangement, pledge agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly executed
and delivered by the Shareholder and constitutes a valid and binding
agreement of such Shareholder, enforceable against the Shareholder in
accordance with its terms. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which such Shareholder is
a trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such Shareholder of the transactions
contemplated hereby.
(c) NO CONFLICTS. Except for filings under the Exchange Act (i) no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by each
Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder with any
of the provisions hereof shall (A) conflict with or result in any breach of
any organizational documents applicable to such Shareholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation
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of any kind to which such Shareholder is a party or by which such Shareholder
or any of its properties or assets may be bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Shareholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Except as permitted by this Agreement, the
Existing Shares and the certificates representing the Existing Shares are
now, and at all times during the term hereof will be, held by such
Shareholder, or by a nominee or custodian for the benefit of such
Shareholder, free and clear of all Encumbrances, proxies, voting trusts or
agreements, understandings or arrangements or any other rights whatsoever,
except for any such Encumbrances or proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of each of
the Shareholders.
(f) RELIANCE BY PARENT. Each Shareholder understands and acknowledges
that Parent and the Purchaser are entering into the Merger Agreement in
reliance upon such Shareholder's execution and delivery of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER. Each of
Parent and the Purchaser hereby represents and warrants to each Shareholder
as follows:
(a) POWER; BINDING AGREEMENT. Parent and the Purchaser each has the
corporate power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance of
this Agreement by each of Parent and the Purchaser will not violate any other
agreement to which either of them is a party. This Agreement has been duly
and validly executed and delivered by each of Parent and the Purchaser and
constitutes a valid and binding agreement of each of Parent and the
Purchaser, enforceable against each of Parent and the Purchaser in accordance
with its terms.
(b) NO CONFLICTS. Except for filings under the Exchange Act, (i) no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by each
of Parent and the Purchaser and the consummation by each of Parent and the
Purchaser of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by each of Parent and the Purchaser,
the consummation by each of Parent and the Purchaser of the transactions
contemplated hereby or compliance by each of Parent and the Purchaser with
any of the provisions hereof shall (A) conflict with or result in any breach
of any organizational documents applicable to either of Parent or the
Purchaser, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
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of any kind to which either of Parent or the Purchaser is a party or by which
either of Parent or the Purchaser or any of their properties or assets may be
bound, or (C) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to either of Parent or the Purchaser
or any of their properties or assets.
6. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further lawful action
as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
7. STOP TRANSFER. No Shareholder shall request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer
is made in compliance with this Agreement. In the event of a stock dividend
or distribution, or any change in the Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
8. TERMINATION. The covenants, agreements and proxy contained herein
with respect to the Shares shall terminate upon the termination of the Merger
Agreement in accordance with its terms.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations hereunder
shall attach to the Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of the Shares shall pass, whether by
operation of law or otherwise, including, without limitation, each
Shareholder's administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties
hereto, provided that Parent or the Purchaser may assign, in its sole
discretion, its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of Parent, but no such assignment shall relieve
Parent or the Purchaser of its obligations hereunder if such assignee does
not perform such obligations.
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(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy
(with a confirmation copy sent for next day delivery via courier service,
such as Federal Express), or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered
to the respective parties at the following addresses:
If to a Shareholder, to the address set forth on Schedule I hereto.
If to Parent or the Purchaser: Immucor Inc.
0000 Xxxxxxx Xxxxx,
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
Copy to: Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx,
L.L.P.
First Union Plaza, Suite 1400
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and
this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore in
the event of any such breach the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and agreements
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and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall not constitute a waiver
by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Texas, without giving effect to the
principles of conflicts of law thereof.
(l) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
(continued on next page)
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IN WITNESS WHEREOF, Parent, the Purchaser and each of the Shareholders
listed below have caused this Agreement to be duly executed as of the day and
year first above written.
IMMUCOR, INC.
By:
Name:
Title:
GAMMA ACQUISITION CORPORATION
By:
Name:
Title:
SHAREHOLDERS:
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xx. Xxxxxxx X. Xxxxx
H.H. "Will" Xxxxxx
Xxxxx X. Xxxxxxx
(Signatures continued on next page)
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SHAREHOLDERS AGREEMENT
September 21, 1998
(Continuation of Signatures)
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxxxx
Xxxx Xxxx
Xxxxxx X. Frame
Xxxxxxxx X'Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
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SCHEDULE I
EXISTING SHARES
Name Shares (1) Address for Notice (2)
---- ---------- ----------------------
Xxxxx X. Xxxxxxx 228,764
Xxxxx X. Xxxxxxx 163,099
H.H. "Will" Xxxxxx 102,363
Xx. Xxxxxxx X. Xxxxx 33,685
Xxxxx X. Xxxxxxx 23,300
Xxxxx X. Xxxxxxxx 28,385
Xxxx Xxxx 24,099
Xxxx X. Xxxxxxx 19,750
Xxxxxx X. Xxxxxx 47,447
Xxxxxx X. Frame 17,250
Xxxxxxxx X. X'Xxxxxxx 37,350
Xxxx X. Xxxxxxx 20,100
Xxxxx X. Xxxxxx 18,725
Xxxxxxx X. Xxxxxx 18,084
(1) Includes all options, whether or not currently exercisable.
(2) The address for notice for all Shareholders is:
c/o Gamma Biologicals, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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