EXHIBIT 99.1
PROXY AND RIGHT OF FIRST REFUSAL AGREEMENT
This PROXY AND RIGHT OF FIRST REFUSAL AGREEMENT (the "Agreement") is
made as of this 14th day of November, 1996, by and between the shareholders
of GLOBAL MED TECHNOLOGIES, INC., a Colorado corporation (the "Global"),
listed on the signature page hereof (the "Stockholders") and ORTHO
DIAGNOSTIC SYSTEMS INC., a New Jersey corporation ("ODSI").
WHEREAS, ODSI and Global have entered into an Exclusivity and Software
Development Agreement (the "Exclusivity Agreement"), dated the even date
herewith, providing for certain transactions and other matters; and
WHEREAS, the performance of all of ODSI's obligations under the
Exclusivity Agreement is conditioned upon, among other things, the
execution and delivery of this Agreement by the Stockholders; and
WHEREAS, each of the Stockholders acknowledges that it is in their
best interests to execute and deliver this Agreement;
NOW, THEREFORE, for $1.00 and for other good and valuable
consideration the receipt of which is hereby acknowledged, the Stockholders
hereby agree with ODSI as follows:
THE PARTIES AGREE AS FOLLOWS:
1. PROXY. Each of the Stockholders shall execute and deliver a
proxy (the "Proxy") to ODSI, or the ODSI representatives named therein,
substantially in the form of Exhibit A attached hereto.
2. RIGHT OF FIRST REFUSAL. For the period commencing with the date
hereof and ending at 5:00 p.m. Eastern Standard Time on November 14, 1997,
each of the Stockholders hereby agrees with ODSI that such Stockholder will
not transfer, dispose of, or otherwise sell to any third party of grant to
any third party an option or other right to buy any shares (the "Subject
Shares") of Global common stock held by it (all such transactions being
hereinafter referred to as a "Sale") (except for any gifts of such shares
to any non-profit institutions not to exceed 6%, in the aggregate, of the
number of shares set forth opposite the name of such Stockholder on
Schedule I) until it complies in full with the following:
(a) Prior to consummating a Sale of any of the Subject Shares,
each Stockholder shall present to ODSI a copy of the written offer by or
agreement with such third party (the "Third Party Offer") and ODSI shall
have the right (the "Right of First Refusal") to agree to enter into a
similar transaction with such Stockholder by delivering written notice to
such Stockholder within thirty (30) days after its receipt of the Third
Party Offer to enter into a similar transaction with such
Stockholder on the same terms as those set forth in the Third Party Offer.
In the event ODSI agrees to enter into such transaction, ODSI and such
Stockholder shall as promptly as practicable enter into such transaction.
In the event ODSI declines to enter into such transaction, then each
Stockholder shall have 90 days from the expiration of the foregoing thirty-
day period to consummate the transaction set forth in the Third Party
Offer, but only on the same terms and conditions as those that are set
forth in the Third Party Offer. In the event that such transaction is not
consummated within 90 days, then ODSI shall have the Right of First Refusal
with respect to any future proposed Sales of Subject Shares by the
Stockholder to any third party.
(b) ODSI's rights under this Section 2 shall not be assignable
except to an Affiliate of ODSI.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each of the
Stockholders hereby severally and not jointly represents and warrants to
ODSI that:
3.1 AUTHORIZATION. Such Stockholder has full power and authority or
legal capacity to execute, deliver and perform this Agreement. Assuming
due execution by ODSI hereto, this Agreement constitutes the valid and
legally binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
3.2 GLOBAL STOCK OWNERSHIP. Except as otherwise disclosed in the
Global Registration Statement (as filed with the Securities and Exchange
Commission on September 11, 1996), such Stockholder "beneficially owns" (as
determined pursuant to Rule 13d-3(d) of the Securities Exchange Act of
1934) the number of shares of Global Common Stock set forth opposite such
Stockholder's name on Schedule I hereto (the "Owned Shares"). Such
Stockholder's Owned Shares (to the extent issued and outstanding) are duly
authorized, validly issued and outstanding, fully paid and nonassessable,
and were issued in compliance with all applicable federal and state
securities laws and are free of any liens, encumbrances, preemptive rights
or rights of first refusal except for the Right of First Refusal and Proxy
set forth in this Agreement. Such Stockholder's Owned Shares (to the
extent underlying any option, warrant or other right to convert into Global
Common Stock) when issued in accordance with the terms thereof will be duly
authorized, validly issued and outstanding, fully paid and nonassessable,
will be issued in compliance with all applicable federal and state
securities laws, and will be free of any liens, encumbrances, preemptive
rights or rights of first refusal except for the Right of First Refusal and
Proxy set forth in this Agreement.
3.3 EFFECT OF TRANSACTIONS. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby, and compliance
with the provisions hereof by such Stockholder do not and will not, with or
without the passage of time or the giving of notice of both, (a) violate
any provision of law, statute, rule or regulation or any ruling, writ,
injunction, order, judgment or decree of any court, administrative agency
or other governmental body or (b) conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default (or
give rise to any right of termination, cancellation or acceleration) under,
or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of such
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Stockholder under any note, indenture, mortgage, lease, agreement,
contract, purchase order or other instrument, document or agreement to
which such Stockholder is a party or by which it or any of its properties
or assets is bound or affected.
3.4 NO GOVERNMENTAL CONSENT OR APPROVAL REQUIRED. No authorization,
consent, approval or other order of, declaration to, or registration,
qualification, designation or filing with, any federal, state or local
governmental agency or body is required for or in connection with the valid
and lawful authorization, execution and delivery by such Stockholder of
this Agreement or the Proxy entered into by such Stockholder and the
consummation of the transactions contemplated hereby.
3.5 VOTING ARRANGEMENTS. Except for the Voting Agreement dated May
23, 1995 between and among Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xx., Xxxx
X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxxx, MDS Health Group, Ltd. and Xxxxxxx X.
Xxxxx, such Stockholder is not a party to any shareholder agreement, voting
trust, proxy or other arrangements or understandings among the shareholders
of Global relating to the voting of its Global shares.
4. MISCELLANEOUS.
4.1 SURVIVAL OF WARRANTIES. The warranties, representations,
agreements, covenants and undertakings of each Stockholder contained in or
made pursuant to this Agreement shall survive the execution and delivery of
this Agreement and shall in no way be affected by an investigation of the
subject matter thereof made by or on behalf of ODSI or any Stockholder.
4.2 INCORPORATION BY REFERENCE. All Exhibits and Schedules appended
to this Agreement are herein incorporated by reference and made a part
hereof.
4.3 SUCCESSOR AND ASSIGNEES. All terms, covenants, agreements,
representations, warranties and undertakings in this Agreement made by and
on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
permitted transferees of any Securities) whether so expressed or not.
4.4 STOCKHOLDERS' REPRESENTATIVE; AMENDMENTS AND WAIVERS.
(a) Each Stockholder, by its execution of this Agreement, hereby
appoints Xxxxxxx X. Xxxxx, M.D. as such Stockholder's agent, representative
and attorney-in-fact with respect to this Agreement ("Stockholders'
Representative"), and specifically empowers (i) Stockholders'
Representative to receive and send all notices and to do all things and to
cite all actions (including, without limitation, entering into amendments
of this Agreement and consenting to waivers and other actions for which
Stockholders' consent is required hereunder) deemed necessary or desirable
by Stockholders' Representative to consummate the transactions contemplated
hereby and (ii) ODSI to address all notices and other communications
required to be delivered to Stockholders hereunder solely to Stockholders'
Representative.
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(b) Changes in or additions to this Agreement may be made or
compliance with any term, covenant, agreement, condition or provision set
forth herein may be omitted or waived, only upon the written consent of the
Stockholders' Representative and ODSI.
4.5 GOVERNING LAW. This Agreement shall be deemed a contract made
under the laws of the State of Colorado and, together with the rights or
obligations of the parties hereunder, shall be construed under and governed
by the laws of such State.
4.6 NOTICES. All notices, requests, consents and demands shall be in
writing and shall be deemed given when (i) personally delivered, (ii)
mailed in a registered or certified envelope, postage prepaid or (iii) sent
by Federal Express or another nationally recognized overnight delivery
service (paid by sender):
to any Stockholder at:
c/o Global Med Technologies, Inc.
00000 Xxxx Xxxxxx
Xxxxx X-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, M.D.
with a copy to:
Xxxxxxx Key & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: D. Xxxxxxxxx Xxxxx, Esq.
or to ODSI at:
Ortho Diagnostic Systems Inc.
0000 X.X. Xxx. 000
Xxxxxxx, Xxx Xxxxxx 00000
Attention: President
with a copy to:
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Office of General Counsel
or such other address as may be furnished in writing by a party to the
other party hereto.
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4.7 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
4.8 EFFECT OF HEADINGS. The section and paragraph headings herein
are for convenience only and shall not affect the construction hereof.
4.9 ENTIRE AGREEMENT. This Agreement, the Ancillary Agreements and
the Exhibits and Schedules hereto and thereto constitute the entire
agreement among Global and J&J with respect to the subject matter hereof.
There are no representations, warranties, covenants or undertakings with
respect to the subject matter hereof other than those expressly set forth
herein. This Agreement supersedes all prior agreements between the parties
with respect to the Shares purchased hereunder and the subject matter
hereof.
4.10 PUBLICITY. No party shall originate any publicity, news release,
or other announcement, written or oral, relating to this Agreement, or to
performance hereunder or the existence of an arrangement between the
parties hereto without the prior written approval of the other.
4.11 SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of
any other provision.
4.12 FURTHER ASSURANCES. Each of the Stockholders and ODSI shall
each, from time to time after the date hereof, at the request of the other
and without further consideration, execute and deliver such further
documents and instruments and take such further action as the other may
reasonably request in order more effectively to give effect to the
transactions contemplated hereby. All out-of-pocket expenses involved in
compliance with this Section shall be promptly reimbursed by the requesting
Party to the other Party
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written, by the individuals named below or the duly authorized
representatives of the parties hereto, as the case may be.
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxxx, Xx.
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/s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx
ORTHO DIAGNOSTIC SYSTEMS INC.
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
-------------------------
Title: President
-------------------------
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Schedule I
Name of Stockholder Number of Shares
------------------- ----------------
Xxxxxxx X. Xxxxx, M.D. 952,917
Xxxxxxx X. Xxxxxxx 664,006
Xxxxxx X. Xxxxxxx, Xx. 938,514
Xxxx X. Xxxxxxx 938,514
Xxxxxxx X. Xxxxxxxxxx 363,480
Xxxxxx Xxxxx 262,917
Exhibit A
Form of Proxy
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to, Xxx X. Xxxxx and Xxxx
Xxxxxxxxx, and each of them severally, with full power of substitution and
resubstitution, an irrevocable proxy, coupled with an interest, pursuant to
the provisions of Section 0-000-000 of the Colorado Business Corporation
Act to vote, or to execute and deliver written consents or otherwise act
with respect to, all shares of capital stock (the "Stock") of GLOBAL MED
TECHNOLOGIES, INC., a Colorado corporation (the "Company"), now owned or
hereafter acquired by the undersigned as fully, to the same extent and with
the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of stockholders of a
Colorado corporation, as to the following matters (notwithstanding the fact
that any record date with respect to the following actions may have
occurred before the date hereof):
(1) at any time, in favor of any proposal with respect to a
definitive agreement (the "Agreement") with ORTHO DIAGNOSTIC SYSTEMS, INC.,
a New Jersey corporation ("ODSI"), pursuant to which the Company and ODSI
shall have agreed to a transaction or transactions involving the Company's
information technology and intellectual property relating to donor and
transfusion medicine (the "Technology") after such proposal has been
approved by the Company's Board of Directors; PROVIDED, HOWEVER, that if a
meeting of stockholders is held with respect to such proposal, and the
Stock is not voted pursuant to this proxy for any reason whatsoever, then
the undersigned will have the right to vote the Stock in favor of the
proposal described above; and
(2) at any vote or other shareholder action held on or before
November 14, 1997 in connection with any proposal with respect to the sale
of any of the capital stock of the Company or all or substantially all of
the assets of the Company or any of the Technology after such proposal has
been approved by the Company's Board of Directors unless, prior to such
date the Agreement has been terminated for any reason other than the
occurrence of any event that would trigger the payment of the termination
fees pursuant to Section 4.1(b) of the Exclusivity Agreement (as hereafter
defined) or any similar provision set forth in the Agreement, or ODSI has
materially breached any of its material obligations under the Agreement, in
any of which events this proxy shall terminate upon such termination of the
Agreement. The proxy granted in this paragraph (2) will expire on November
14, 1997 (unless it is terminated earlier pursuant to the preceding
sentence) and after such expiration or termination the undersigned may vote
or take other action with respect to the Stock or grant other proxies with
respect to the matters covered by this paragraph (2) as fully as if such
proxy had never existed.
The undersigned hereby represents (a) that this proxy is given as a
condition of the Exclusivity and Software Development Agreement dated the
even date herewith between the Company and ODSI (the "Exclusivity
Agreement") and as such is coupled with an interest and is irrevocable, (b)
that this proxy constitutes the valid and legally binding obligation of the
undersigned enforceable against the undersigned in accordance with its
terms and (c) as of the date of this Proxy, the undersigned owns _____
shares of Company Common Stock.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK EXCEPT TO THE EXTENT
SUCH DONEE IS A NON-PROFIT INSTITUTION ("EXEMPT ORGANIZATION"). THE STOCK
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR CONVEYED BY THE UNDERSIGNED
EXCEPT FOR ANY GIFTS TO EXEMPT ORGANIZATIONS THAT IN THE AGGREGATE DO NOT
EXCEED 6% OF THE AMOUNT OF SHARES SET FORTH IN THE IMMEDIATELY PRECEDING
PARAGRAPH.
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
Dated as of this 14th day of November, 1996
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK EXCEPT TO THE EXTENT
SUCH DONEE IS A NON-PROFIT INSTITUTION ("EXEMPT ORGANIZATION"). THE STOCK
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR CONVEYED BY THE UNDERSIGNED
EXCEPT FOR ANY GIFTS TO EXEMPT ORGANIZATIONS THAT IN THE AGGREGATE DO NOT
EXCEED 6% OF THE AMOUNT OF SHARES SET FORTH IN THE IMMEDIATELY PRECEDING
PARAGRAPH.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
Dated as of this 14th day of November, 1996
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THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK EXCEPT TO THE EXTENT
SUCH DONEE IS A NON-PROFIT INSTITUTION ("EXEMPT ORGANIZATION"). THE STOCK
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR CONVEYED BY THE UNDERSIGNED
EXCEPT FOR ANY GIFTS TO EXEMPT ORGANIZATIONS THAT IN THE AGGREGATE DO NOT
EXCEED 6% OF THE AMOUNT OF SHARES SET FORTH IN THE IMMEDIATELY PRECEDING
PARAGRAPH.
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Dated as of this 14th day of November, 1996
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THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK EXCEPT TO THE EXTENT
SUCH DONEE IS A NON-PROFIT INSTITUTION ("EXEMPT ORGANIZATION"). THE STOCK
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR CONVEYED BY THE UNDERSIGNED
EXCEPT FOR ANY GIFTS TO EXEMPT ORGANIZATIONS THAT IN THE AGGREGATE DO NOT
EXCEED 6% OF THE AMOUNT OF SHARES SET FORTH IN THE IMMEDIATELY PRECEDING
PARAGRAPH.
/s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
Dated as of this 14th day of November, 1996
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THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK EXCEPT TO THE EXTENT
SUCH DONEE IS A NON-PROFIT INSTITUTION ("EXEMPT ORGANIZATION"). THE STOCK
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR CONVEYED BY THE UNDERSIGNED
EXCEPT FOR ANY GIFTS TO EXEMPT ORGANIZATIONS THAT IN THE AGGREGATE DO NOT
EXCEED 6% OF THE AMOUNT OF SHARES SET FORTH IN THE IMMEDIATELY PRECEDING
PARAGRAPH.
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxxx
Dated as of this 14th day of November, 1996
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THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK EXCEPT TO THE EXTENT
SUCH DONEE IS A NON-PROFIT INSTITUTION ("EXEMPT ORGANIZATION"). THE STOCK
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR CONVEYED BY THE UNDERSIGNED
EXCEPT FOR ANY GIFTS TO EXEMPT ORGANIZATIONS THAT IN THE AGGREGATE DO NOT
EXCEED 6% OF THE AMOUNT OF SHARES SET FORTH IN THE IMMEDIATELY PRECEDING
PARAGRAPH.
/s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx
Dated as of this 14th day of November, 1996
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