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EXHIBIT (c)(2)
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT, dated as of September 21, 1998 (the
"AGREEMENT"), is by and between Gamma Biologicals, Inc., a Texas corporation
("ISSUER"), and Immucor, Inc., a Georgia corporation ("PARENT").
WHEREAS, Issuer and Parent have entered into that certain Agreement
and Plan of Merger dated as of the date hereof (the "MERGER AGREEMENT")
providing for the strategic combination of Issuer and Gamma Acquisition
Corporation, a Texas corporation and wholly-owned subsidiary of Parent
("GRANTEE"), providing for, among other things, the tender offer to Issuer's
shareholders followed by the merger of Issuer and Grantee (the "MERGER"); and
WHEREAS, as an inducement to Grantee's execution of the Merger
Agreement, Issuer hereby grants to Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, Issuer and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the "OPTION") to
purchase up to 19.9% shares (the "OPTION SHARES") of Issuer Common Stock at a
price per Option Share of $5.40 (the "PURCHASE PRICE"); provided, however, that
in no event shall the number of shares of Issuer Common Stock for which this
Option is exercisable exceed 19.9% of Issuer's issued and outstanding shares of
Common Stock as determined in accordance with Section 4(e) of this Agreement.
2. Exercise of Option.
(a) Provided that no preliminary or permanent injunction or other
order against the delivery of the Option Shares issued by any court of
competent jurisdiction in the United States shall be in effect, Grantee 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). Subject to Sections
6(b)-(h) of this Agreement, except as to Option Shares for which a notice of
exercise previously has been given pursuant to the terms hereof, the Option
shall terminate and be of no further force or effect upon the first anniversary
of the date hereof, unless Issuer and the Grantee shall agree in writing to
extend this Agreement to a date specified in such writing (hereinafter
sometimes referred to as the "TERMINATION DATE"); provided that any purchase of
Option Shares upon exercise of the Option shall be subject to compliance with
applicable law.
(b) If Grantee wishes to exercise the Option, it shall send Issuer
a written notice (the date of which being herein referred to as the "NOTICE
DATE") specifying: (i) the total number of Option 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
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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.
Issuer shall cooperate with Grantee 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).
3. Payment and Delivery of Certificates.
(a) On each Closing Date, Grantee shall: (i) pay to Issuer, in
cash in immediately available funds by wire transfer to a bank account
designated by Issuer, an amount equal to the Purchase Price multiplied by the
number of Option Shares to be purchased on such Closing Date; and (ii) present
and surrender this Agreement to Issuer at the address of Issuer specified in
Section 10(f) hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 3(a) above, (i) Issuer shall deliver to Grantee (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever and subject to no preemptive rights, and
(B) if the Option is exercised in part only, an executed, new Stock Option
Agreement with the same terms as this Agreement evidencing the right to
purchase the balance of the shares of Issuer Common Stock purchasable
hereunder, and (ii) Grantee shall deliver to Issuer a letter agreeing that
Grantee shall not offer to sell or otherwise dispose of such Option Shares in
violation of applicable federal and state securities laws or of the provisions
of this Agreement.
(c) In addition to any other legend that is required by applicable
law, certificates for the Option Shares delivered at each Closing shall be
endorsed with a restrictive legend which shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AND PURSUANT TO THE
TERMS OF A STOCK OPTION AGREEMENT DATED AS OF SEPTEMBER 21, 1998. A COPY OF
SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON
RECEIPT BY ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if Grantee shall have
delivered to Issuer a copy of a letter from the staff of the Securities and
Exchange Commission (the "SEC"), or an opinion of counsel in form and substance
reasonably satisfactory to Issuer and its counsel, to the effect that such
legend is not required for purposes of the Securities Act of 1933.
(d) Upon the giving by Grantee to Issuer of the written notice of
exercise of the Option provided for under Section 2(b), the tender of the
applicable purchase price in immediately available funds and the tender of this
Agreement to Issuer, Grantee shall be deemed to be the
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holder of record of the shares of Issuer Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of Issuer shall then be
closed or that certificates representing such shares of Issuer Common Stock
shall not then be actually delivered to Grantee. Issuer shall pay all expenses,
and any and all United States federal, state, and local taxes and other charges
that may be payable in connection with the preparation, issuance and delivery
of stock certificates under this Section in the name of the Grantee, and
Grantee shall pay all expenses and any United States federal, state and local
taxes and other charges that may be payable in connection with the preparation,
issuance and delivery of stock certificates under this Section in the name of
Grantee's assignee, transferee or designee.
(e) Issuer agrees: (i) that it shall at all times maintain, free
from preemptive rights, sufficient authorized but unissued or treasury shares
of Issuer Common Stock so that the Option may be exercised without additional
authorization of Issuer Common Stock after giving effect to all other options,
warrants, convertible securities and other rights to purchase Issuer Common
Stock; (ii) that it will not, by amendment to its Articles of Incorporation or
Bylaws or through reorganization, consolidation, merger, dissolution or sale of
assets, or by any other voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to be observed
or performed hereunder by Issuer; (iii) promptly to take all action as may from
time to time be required (including complying (if applicable) with all
premerger notification, reporting and waiting period requirements specified in
15 U.S.C. ss. 18a and regulations promulgated thereunder) in order to permit
Grantee to exercise the Option and Issuer duly and effectively to issue shares
of Issuer Common Stock pursuant hereto; and (iv) promptly to take all action
provided herein to protect the rights of Grantee against dilution.
4. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee as follows:
(a) Due Authorization. Issuer has all requisite corporate power
and authority to enter into this Agreement to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Issuer. This Agreement has
been duly executed and delivered by Issuer.
(b) Authorized Stock. Issuer has taken all necessary corporate and
other action to authorize and reserve and to permit it to issue, and, at all
times from the date hereof until the obligation to deliver Issuer Common Stock
upon the exercise of the Option terminates, will have reserved for issuance,
upon exercise of the Option, the number of shares of Issuer Common Stock
necessary for Grantee to exercise the Option in full, and Issuer will take all
necessary corporate action to authorize and reserve for issuance all additional
shares of Issuer Common Stock or other securities which may be issued pursuant
to Section 6 upon exercise of the Option. The shares of Issuer Common Stock to
be issued upon due exercise of the Option, including all additional shares of
Issuer Common Stock or other securities which may be issuable pursuant to
Section 6, upon issuance pursuant hereto, shall be duly and validly issued,
fully paid and nonassessable, and shall be delivered free and clear of all
liens, claims, charges and encumbrances of any kind or nature whatsoever,
including any preemptive right of any shareholder of Issuer.
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(c) No Violation. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation pursuant to any provisions of
the Articles of Incorporation or Bylaws of Issuer or any subsidiary of Issuer
or result in any violation of any material loan or credit agreement, note,
mortgage, indenture, lease, plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Issuer or any subsidiary of Issuer
or their respective properties or assets.
(d) Business Combination Statute. Prior to the execution and
delivery of this Agreement, the Board of Directors of Issuer has unanimously
approved any and all transactions, events, agreements and circumstances
(including, without limitation, the execution, delivery and performance of this
Agreement and the grant of the Option) that could have the effect of causing
Grantee to become an "interested stockholder" (as defined in Article 13.03 of
the Texas Business Corporation Act ("TEXAS LAW")); (ii) after giving effect to
this Agreement neither Parent nor Grantee is an "interested shareholder" as
such term is defined in Article 13.03 of Texas Law; and (iii) except for
Article 13.03, no "fair price," "moratorium," or other similar antitakeover
statute or provision applies to the transaction contemplated by this Agreement.
(e) At the date hereof, the Option Shares consist of 1,149,221
shares of Issuer Common Stock, which represents 19.9% of the shares of Issuer
Common Stock that would be outstanding immediately after the exercise in full
of the option on the date hereof; provided, however, that no such Issuer Common
Stock held by a subsidiary of Issuer (in whatever capacity) shall be treated as
"issued and outstanding" for purposes of the foregoing calculation.
5. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that:
(a) Due Authorization. Grantee has all requisite corporate power
and authority to enter into this Agreement and, subject to any approvals or
consents referred to herein, to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Grantee. This Agreement has been duly executed
and delivered by Grantee.
(b) Purchase Not for Distribution. This Option is not being, and
any Option Shares or other securities acquired by Grantee upon exercise of the
Option will not be, acquired with a view to the public distribution thereof and
will not be transferred or otherwise disposed of except in a transaction
registered or exempt from registration under the Securities Act.
6. Adjustment upon Changes in Capitalization, etc.
(a) In the event of any change in Issuer Common Stock by reason of
a stock dividend, stock split, split-up, recapitalization, combination,
exchange of shares or similar transaction, the type and number of shares or
securities subject to the Option, and the Purchase Price therefor, shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transaction so that Grantee shall receive, upon exercise of the
Option, the number and class of
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shares or other securities or property that Grantee would have received in
respect of Issuer Common Stock if the Option had been exercised immediately
prior to such event, or the record date therefor, as applicable.
(b) If Issuer, prior to the Termination Date, shall enter into an
agreement: (i) to consolidate with or merge into any person, other than Grantee
or one of its subsidiaries, and shall not be the continuing or surviving
corporation of such consolidation or merger; (ii) to permit any person, other
than Grantee or one of its subsidiaries, to merge into Issuer and Issuer shall
be the continuing or surviving corporation, but, in connection with such
merger, the then outstanding shares of Issuer Common Stock shall be changed
into or exchanged for stock or other securities of Issuer or any other person
or cash or any other property or the outstanding shares of Issuer Common Stock
immediately prior to such merger shall after such merger represent less than
50% of the outstanding shares and share equivalents of the merged company;
(iii) to sell or otherwise transfer all or any substantial part of its assets
to any person, other than Grantee or one of its subsidiaries; or (iv) to enter
into a transaction with an economic effect similar to that described in clauses
(i)-(iii), then, and in each such case, the agreement governing such
transaction shall make proper provisions so that, upon the consummation of any
such transaction and upon the terms and conditions set forth herein, the
Option, notwithstanding the fact that as of the date of consummation of such
transaction the Termination Date shall have occurred, shall be converted into,
or exchanged for, an option (the "SUBSTITUTE OPTION"), at the election of
Grantee, of either (x) the Acquiring Corporation (as defined below), (y) any
person that controls the Acquiring Corporation, or (z) in the case of a merger
described in clause (ii), Issuer (in each case, such entity being referred to
as the "SUBSTITUTE OPTION ISSUER").
(c) The Substitute Option shall have the same terms as the Option,
provided that, if the terms of the Substitute Option cannot, because of the
applicability of any law or regulation, have the exact terms as the Option,
such terms shall be as similar as possible and in no event less advantageous to
Grantee. The Substitute Option Issuer shall also enter into an agreement with
the then-holder or holders of the Substitute Option in substantially the same
form as this Agreement, which shall be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of
shares of the Substitute Common Stock (as hereinafter defined) as is equal to
the Assigned Value (as hereinafter defined) multiplied by the number of shares
of Issuer Common Stock for which the Option was theretofore exercisable,
divided by the Average Price (as hereinafter defined). The exercise price of
each share of Substitute Common Stock subject to the Substitute Option (the
"SUBSTITUTE PURCHASE PRICE") shall be equal to the Purchase Price multiplied by
a fraction in which the numerator is the number of shares of Issuer Common
Stock for which the Option was theretofore exercisable and the denominator is
the number of shares for which the Substitute Option is exercisable.
(e) The following terms have the meanings indicated:
(i) "ACQUIRING CORPORATION" shall mean (x) the continuing or
surviving corporation of a consolidation or merger with Issuer (if
other than Issuer), (y) Issuer in a consolidation or merger or in
which Issuer is the continuing or surviving person, and (z) the
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transferee of all or any substantial part of Issuer's assets (or the
assets of its subsidiaries).
(ii) "SUBSTITUTE COMMON STOCK" shall mean the common stock
issued by the Substitute Option Issuer upon exercise of the Substitute
Option.
(iii) "ASSIGNED VALUE" shall mean the highest of (x) the
price per share of Issuer Common Stock at which a tender offer or
exchange offer therefor has been made by any person (other than
Grantee), and (y) the price per share of Issuer Common Stock to be
paid by any person (other than the Grantee) pursuant to an agreement
with Issuer; provided, however, that in the event of a sale of less
than all of Issuer's assets, the Assigned Value shall be the sum of
the price paid in such sale for such assets and the current market
value of the remaining assets of Issuer as determined by a nationally
recognized investment banking firm selected by Grantee, divided by the
number of shares of Issuer Common Stock outstanding at the time of
such sale. In the event that a tender offer or exchange offer is made
for Issuer Common Stock or an agreement is entered into for a merger
or consolidation involving consideration other than cash, the value of
the securities or other property issuable or deliverable in exchange
for Issuer Common Stock shall be determined by a nationally recognized
investment banking firm mutually selected by Grantee and Issuer (or if
applicable, Acquiring Corporation), provided that if a mutual
selection cannot be made as to such investment banking firm, it shall
be selected by Grantee.
(iv) "AVERAGE PRICE" shall mean the average last sales price
or closing price of a share of the Substitute Common Stock for the 20
trading days immediately preceding the consolidation, merger or sale
in question, but in no event higher than the last sales price or
closing price of the shares of the Substitute Common Stock on the day
preceding such consolidation, merger, or sale; provided that if Issuer
is Issuer of the Substitute Option, the Average Price shall be
computed with respect to a share of common stock issued by Issuer, the
person merging into Issuer or by any company which controls or is
controlled by such person, as Grantee may elect.
(f) In no event pursuant to any of the foregoing paragraphs shall
the Substitute Option be exercisable for more than 19.9% of the aggregate of
the shares of the Substitute Common Stock outstanding (calculated as described
in Section 4(e)) prior to exercise of the Substitute Option. In the event that
the Substitute Option would be exercisable for more than 19.9% (calculated as
described in Section 4(e)) of the aggregate of the shares of Substitute Common
Stock but for this clause (f), the Substitute Option Issuer shall make a cash
payment to Grantee equal to the excess of (i) the value of the Substitute
Option without giving effect to the limitation in this clause (f) over (ii) the
value of the Substitute Option after giving effect to the limitation in this
clause (f). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee.
(g) Issuer shall not enter into any transaction described in
subsection (b) of this Section 6 unless the Acquiring Corporation and any
person that controls the Acquiring Corporation assumes in writing all of the
obligations of Issuer hereunder and takes all other actions that may be
necessary so that the provisions of this Section 6 are given full force and
effect (including, without limitation, any action that may be necessary so that
the shares of Substitute Common Stock are in
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no way distinguishable from or have lesser economic value (other than any
diminution resulting from the fact that the Substitute Common Stock is
"restricted securities" within the meaning of Rule 144 under the Securities
Act) than other shares of common stock issued by the Substitute Option Issuer).
(h) The provisions of Sections 7 and 8 shall apply, wit
appropriate adjustments, to any securities for which the Option becomes
exercisable pursuant to this Section 6 and, as applicable, references in such
sections to "Issuer," "Option," "Purchase Price," and "Issuer Common Stock"
shall be deemed to be references to "Substitute Option Issuer," "Substitute
Option," "Substitute Purchase Price," and "Substitute Common Stock,"
respectively.
7. Registration Rights.
(a) Demand Registration Rights. Issuer shall, subject to the
conditions of subparagraph (c) below, if requested by Grantee, as expeditiously
as possible prepare, file and keep current a registration statement under the
Securities Act if such registration is necessary (in the reasonable judgment of
Issuer's counsel) in order to permit the sale or other disposition of any or
all shares of Issuer Common Stock or other securities that have been acquired
by or are issuable to Grantee upon exercise of the Option in accordance with
the intended method of sale or other disposition stated by Grantee in such
request, including without limitation a "shelf" registration statement under
Rule 415 under the Securities Act or any successor provision, and Issuer shall
use its best efforts to qualify such shares or other securities for sale under
any applicable state securities laws.
(b) Additional Registration Rights. If Issuer at any time after
the exercise of the Option proposes to register any shares of Issuer Common
Stock under the Securities Act in connection with an underwritten public
offering of such Issuer Common Stock, Issuer will promptly give written notice
to Grantee (and any permitted transferee) of its intention to do so and, upon
the written request of Grantee (or any such permitted transferee of Grantee)
given within 30 days after receipt of any such notice (which request shall
specify the number of shares of Issuer Common Stock intended to be included in
such underwritten public offering by Grantee (or such permitted transferee)),
Issuer will cause all such shares, the holders of which shall have requested
participation in such registration, to be so registered and included in such
underwritten public offering.
(c) Conditions to Required Registration. Issuer shall use all
reasonable efforts to cause each registration statement referred to in
subparagraph (a) above to become effective and to obtain all consents or
waivers of other parties which are required therefor and to keep such
registration statement effective until the completion of Grantee's sale of all
shares or other securities covered by such registration statement, provided,
however, Issuer shall not be required to register Option Shares under the
Securities Act pursuant to subparagraph (a) above:
(i) prior to a Purchase Event;
(ii) on more than two occasions; and
(iii) within 90 days after the effective date of a
registration referred to in
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subparagraph (b) above pursuant to which the holder or holders of the
Option Shares concerned were afforded the opportunity to register such
shares under the Securities Act and such shares were registered as
requested.
Issuer shall use all reasonable efforts to make any filings, and take
all steps, under all applicable state securities laws to the extent necessary
to permit the sale or other disposition of the Option Shares so registered in
accordance with the intended method of distribution for such shares.
(d) Expenses. Except where applicable state law prohibits such
payments, Issuer will pay all expenses (including without limitation
registration fees, qualification fees, blue sky fees and expenses, legal
expenses of Issuer, printing expenses and the costs of special audits or "cold
comfort" letters, expenses of underwriters, excluding discounts and commissions
but including liability insurance if Issuer so desires or the underwriters so
require, and the reasonable fees and expenses of any necessary special experts)
in connection with each registration pursuant to subparagraph (a) or (b) above
(including the related offerings and sales by holders of Option Shares) and all
other qualifications, notifications or exemptions pursuant to subparagraph (a)
or (b) above.
(e) Indemnification. In connection with any registration under
subparagraph (a) or (b) above Issuer hereby indemnifies the holder of the
Option Shares, and each underwriter thereof, including each person, if any, who
controls such holder or underwriter within the meaning of Section 15 of the
Securities Act against all expenses, losses, claims, damages and liabilities
caused by any untrue, or alleged untrue, statement of a material fact contained
in any registration statement or prospectus or notification or offering
circular (including any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission, or alleged omission, to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such expenses, losses, claims,
damages or liabilities of such indemnified party are caused by any untrue
statement or alleged untrue statement that was included by Issuer in any such
registration statement or prospectus or notification or offering circular
(including any amendments or supplements thereto) in reliance upon and in
conformity with, information furnished in writing to Issuer by such indemnified
party expressly for use therein, and Issuer and each officer, director and
controlling person of Issuer within the meaning of Section 15 of the Securities
Act shall be indemnified by such holder of the Option Shares, or by such
underwriter, as the case may be, for all such expenses, losses, claims, damages
and liabilities caused by any untrue, or alleged untrue, statement, that was
included by Issuer in any such registration statement or prospectus or
notification or offering circular (including any amendments or supplements
thereto) in reliance upon, and in conformity with, information furnished in
writing to Issuer by such holder or such underwriter, as the case may be,
expressly for such use.
Promptly upon receipt by a party indemnified under this subparagraph
(e) of notice of the commencement of any action against such indemnified party
in respect of which indemnity or reimbursement may be sought against any
indemnifying party under this subparagraph (e), such indemnified party shall
notify the indemnifying party in writing of the commencement of such action,
but the failure so to notify the indemnifying party shall not relieve it of any
liability which it may otherwise have to any indemnified party under this
subparagraph (e). In case notice of
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commencement of any such action shall be given to the indemnifying party as
above provided, the indemnifying party shall be entitled to participate in and,
to the extent it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and satisfactory to such indemnified party. The indemnified party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
(other than reasonable costs of investigation) shall be paid by the indemnified
party unless (i) the indemnifying party either agrees to pay the same, (ii) the
indemnifying party fails to assume the defense of such action with counsel
satisfactory to the indemnified party, or (iii) the indemnified party has been
advised by counsel that one or more legal defenses may be available to the
indemnifying party that may be contrary to the interest of the indemnified
party, in which case the indemnifying party shall be entitled to assume the
defense of such action notwithstanding its obligation to bear fees and expenses
of such counsel. No indemnifying party shall be liable for any settlement
entered into without its consent, which consent may not be unreasonably
withheld.
If the indemnification provided for in this subparagraph (e) is
unavailable to a party otherwise entitled to be indemnified in respect of any
expenses, losses, claims, damages or liabilities referred to herein, then the
indemnifying party, in lieu of indemnifying such party otherwise entitled to be
indemnified, shall contribute to the amount paid or payable by such party to be
indemnified as a result of such expenses, losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by Issuer, the selling shareholders and the underwriters from
the offering of the securities and also the relative fault of Issuer, the
selling shareholders and the underwriters in connection with the statements or
omissions which resulted in such expenses, losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The amount
paid or payable by a party as a result of the expenses, losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim; provided, however, that in no
case shall the holders of the Option Shares be responsible, in the aggregate,
for any amount in excess of the net offering proceeds attributable to its
Option Shares included in the offering. 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. Any obligation by any holder to indemnify shall
be several and not joint with other holders.
In connection with any registration pursuant to subparagraph (a) or
(b) above, Issuer and each holder of any Option Shares (other than Grantee)
shall enter into an agreement containing the indemnification provisions of this
subparagraph (e) or such other indemnification and contribution agreement as
may be required.
(f) Miscellaneous Reporting. Issuer shall comply with all
reporting requirements and will do all such other things as may be necessary to
permit the expeditious sale at any time of any Option Shares by the holder
thereof in accordance with and to the extent permitted by any rule or
regulation promulgated by the SEC from time to time. Issuer shall at its
expense provide the holder of any Option Shares with any information necessary
in connection with the completion and filing of any reports or forms required
to be filed by them under the Securities Act or the Exchange Act, or required
pursuant to any state securities laws or the rules of any stock exchange.
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(g) Issue Taxes. Issuer will pay all stamp taxes in connection
with the issuance and the sale of the Option Shares to Grantee and in
connection with the exercise of the Option, and will save Grantee harmless,
without limitation as to time, against any and all liabilities, with respect to
all such taxes. Grantee will pay all stamp taxes in connection with the
issuance and the sale of the Option Shares to an assignee, transferee or
designee of Grantee, and will save Issuer harmless, without limitation as to
time, against any and all liabilities with respect to all such taxes.
8. Quotation; Listing. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then authorized for
quotation or trading or listing on the AMEX or any other securities exchange or
market, Issuer, upon the request of Grantee, will promptly file an application,
if required, to authorize for quotation or trading or listing the shares of
Issuer Common Stock or other securities to be acquired upon exercise of the
Option on the AMEX or such other securities exchange or market and will use its
best efforts to obtain approval, if required, of such quotation or listing as
soon as practicable.
9. Division of Option. This Agreement (and the Option granted
hereby) are exchangeable, without expense, at the option of Grantee, upon
presentation and surrender of this Agreement at the principal office of Issuer
for other Agreements providing for Options of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Issuer Common Stock purchasable hereunder. The terms "Agreement" and "Option"
as used herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Agreement, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Agreement, if mutilated, Issuer will execute and deliver a
new Agreement of like tenor and date. Any such new Agreement executed and
delivered shall constitute an additional contractual obligation on the part of
Issuer, whether or not the Agreement so lost, stolen, destroyed or mutilated
shall at any time be enforceable by anyone.
10. Miscellaneous.
(a) Expenses. Except as otherwise provided in Section 7, each of
the parties hereto shall bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision if such waiver is in writing. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
This Agreement and the other documents and instruments referred to herein
between Grantee and Issuer (a) constitute the entire agreement and supersede
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof and (b) is not intended to
confer upon
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any person other than the parties hereto (other than any transferees of the
Option Shares or any permitted transferee of this Agreement pursuant to Section
10(h)) any rights or remedies hereunder. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or a
federal or state regulatory agency to be invalid, void or unenforceable, 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. If for any reason such court or regulatory
agency determines that the Option does not permit Grantee to acquire the full
number of shares of Issuer Common Stock as provided in Section 3 (as adjusted
pursuant to Section 6), it is the express intention of Issuer to allow Grantee
to acquire or to require Issuer to repurchase such lesser number of shares as
may be permissible without any amendment or modification hereof.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without regard to
any applicable conflicts of law rules.
(e) Descriptive Heading. The descriptive headings contained herein
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Notices. All notices, requests, demands, consents and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by overnight courier or express
mail service or by postage pre-paid certified or registered mail, return
receipt requested (the return receipt constituting prima facie evidence of the
giving of such notice, request, demand or other communication), by personal
delivery, or by fax with confirmation or receipt, to the following address or
such other address of which a party subsequently may give notice to all the
other parties:
If to Issuer to: Gamma Biologicals, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
with a copy to: Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P.
000 Xxxxxx Xxxxxx
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
If to Grantee to: Immucor Inc.
0000 Xxxxxxx Xxxxx,
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
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with a copy to: Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
First Union Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
(g) Counterparts. This Agreement and any amendments hereto may be
executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when both counterparts have been
signed, it being understood that both parties need not sign the same
counterpart.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder or under the Option shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other party, except that Grantee may assign this
Agreement or any of its rights hereunder to a wholly owned subsidiary of
Grantee. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
(i) Further Assurances. In the event of any exercise of the Option
by Grantee, Issuer and Grantee shall execute and deliver all other documents
and instruments and take all other action that may be reasonably necessary in
order to consummate the transactions provided for by such exercise.
(j) Specific Performance. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
(CONTINUED ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of the
day and year first written above.
IMMUCOR, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx, President
GAMMA BIOLOGICALS, INC.
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Xxxxx X. Xxxxxxx, President
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