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
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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. 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
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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 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. Section 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
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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.
(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.
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(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 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
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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 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
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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 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, with 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
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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 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
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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 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
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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.
(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.
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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 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.
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(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
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
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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:
Xxxxxx X. Xxxxxx, President
GAMMA BIOLOGICALS, INC.
By:
----------------------------
Xxxxx X. Xxxxxxx, President
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