ACCUMED, INC.
AFFILIATE AGREEMENT
This AFFILIATE AGREEMENT (this "Agreement") is made and entered into as of
April 21, 1995 by and among ACCUMED, INC., an Illinois corporation ("Company"),
ALAMAR BIOSCIENCES, INC., a California corporation ("Alamar"), and the
undersigned affiliate ("Affiliate") of the Company.
R E C I T A L S
A. The Company and Alamar have entered into an Agreement and Plan of
Reorganization, dated April 21, 1995 (the "Reorganization Agreement"), providing
for the merger ("Merger") of the Company with and into the Alamar. Pursuant to
the Merger, among other things, the outstanding shares of Common Stock of the
Company will be converted into shares of Common Stock of Alamar at the rate
determined in accordance with the Reorganization Agreement.
B. Affiliate is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such number
of shares of the outstanding Common Stock, no par value per share, of the
Company as is indicated on the final page of this Agreement (the "Shares").
C. Affiliate understands that Affiliate may be deemed to be an "affiliate"
of the Company (within the meaning of Rule 145 promulgated under the Securities
Act of 1933, as amended (the "Securities Act")), the Shares may only be disposed
of in conformity with the limitations described herein. Affiliate has been
informed that the treatment of the Merger as a tax-free reorganization under
applicable provisions of the Internal Revenue Code of 1986, as amended, is
dependent upon the accuracy of certain of the representations and warranties and
the compliance with certain of the agreements set forth herein. Affiliate
further understands that the representations, warranties and agreements set
forth herein will be relied upon by Alamar, the Company and their respective
counsel and accounting firms.
NOW, THEREFORE, the parties agree as follows:
1. Tax Treatment; Rule 145. Affiliate understands and agrees that it is
intended that the Merger will be treated as a "reorganization" for federal
income tax purposes. Affiliate further understands and agrees that Affiliate may
be deemed to be an "affiliate" of the Company within the meaning of Rule 145
under the Securities Act, although nothing contained herein should be construed
as an admission of such fact.
2. Reliance Upon Representations Warranties and Covenants. Affiliate has
been informed that the treatment of the Merger as a reorganization for federal
income tax purposes requires that a sufficient number of former shareholders of
the Company maintain a meaningful
continuing equity ownership interest in Alamar after the Merger. Affiliate
understands that the representations, warranties and covenants of Affiliate set
forth herein will be relied upon by Alamar, the Company and their respective
counsel and accounting firms.
3. Representations Warranties and Covenants of Affiliate. Affiliate
represents, warrants and covenants as follows:
(a) Affiliate has full power and authority to execute this Agreement,
to make the representations, warranties and covenants herein contained and
to perform Affiliate's obligations hereunder.
(b) Set forth below the signature below is the number of shares of
Common Stock of the Company ("Company Stock") owned by Affiliate, including
all Company Stock as to which Affiliate has sole or shared voting or
investment power and all rights, options and warrants to acquire Company
Stock owned or held by Affiliate.
(c) Affiliate will not sell, transfer, exchange, pledge or otherwise
dispose of, or make any offer or agreement relating to any of the foregoing
with respect to, any shares of Common Stock of Alamar ("Alamar Stock") that
Affiliate may acquire in connection with the Merger, or any securities that
may be paid as a dividend or otherwise distributed thereon or with respect
thereto or issued or delivered in exchange or substitution therefor (all
such shares and other securities of Alamar are sometimes collectively
referred to as "Restricted Securities"), or any option, right or other
interest with respect to any Restricted Securities, unless: (i) such
transaction is permitted pursuant to Rule 145(c) and 145(d) under the
Securities Act; (ii) counsel representing Affiliate, which counsel is
reasonably satisfactory to Alamar, shall have advised Alamar in a written
opinion letter satisfactory to Alamar and Alamar's legal counsel, and upon
which Alamar and its legal counsel may rely, that no registration under the
Securities Act would be required in connection with the proposed sale,
transfer or other disposition; (iii) a registration statement under the
Securities Act covering the Alamar Stock proposed to be sold, transferred
or otherwise disposed of, describing the manner and terms of the proposed
sale, transfer or other disposition, and containing a current prospectus,
shall have been filed with the Securities and Exchange Commission (the
"SEC") and made effective under the Securities Act; or (iv) an authorized
representative of the SEC shall have rendered written advice to Affiliate
(sought by Affiliate or counsel to Affiliate, with a copy thereof and all
other related communications delivered to Alamar) to the effect that the
SEC would take no action, or that the staff of the SEC would not recommend
that the SEC take any action, with respect to the proposed disposition if
consummated.
(d) Affiliate has, and as of the Effective Time will have, no present
plan or intention (a "Plan") to sell, transfer, exchange, pledge or
otherwise dispose of, including a distribution by a partnership to its
partners, or a corporation to its shareholders, or any other transaction
which results in a reduction in the risk of ownership (any of the
foregoing, a "Sale") of the shares of Alamar Stock that Affiliate may
acquire in connection with the Merger, or any securities that may be paid
as a dividend or otherwise distributed thereon with respect thereto or
issued or delivered in exchange or substitution therefor. Affiliate is not
aware of, or participating in, any Plan on the part
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of the Company's shareholders to engage in Sales of the shares of Alamar Stock
to be issued in the Merger. If any of Affiliate's representations in this
Section 4(d) cease to be true at any time prior to the Effective Time, Affiliate
will deliver to each of the Company and Alamar, prior to the Effective Time, a
written statement to that effect, signed by Affiliate.
4. Rules 144 and 145. From and after the Effective Time and for so long as
is necessary in order to permit Affiliate to sell the Alamar Stock held by
Affiliate pursuant to Rule 145 under the Securities Act and, to the extent
applicable, Rule 144 under the Securities Act, Alamar will use its reasonable
efforts to file on a timely basis all reports required to be filed by it
pursuant to Section 13 of the Exchange Act, referred to in paragraph (c)(1) of
Rule 144 under the Securities Act, in order to permit Affiliate to sell the
Alamar Stock held by it pursuant to the terms and conditions of Rule 145 under
the Securities Act and the applicable provisions of Rule 144 under the
Securities Act.
5. Limited Resales. Affiliate understands that, in addition to the
restrictions imposed under Section 3 of this Agreement, the provisions of Rule
145 under the Securities Act limit Affiliate's public resales of Restricted
Securities, in the manner set forth in subsections (a), (b) and (c) below:
(a) Unless and until the restriction "Cut-off" provisions of Rule
145(d)(2) or Rule 145(d)(3) under the Securities Act set forth below become
available, public resales of Restricted Securities may only be made by
Affiliate in compliance with the requirements of Rule 145(d)(1) under the
Securities Act. Rule 145(d)(1) under the Securities Act permits such
resales only: (i) while Alamar meets the public information requirements of
Rule 144(c) under the Securities Act; (ii) in brokers' transactions or in
transactions with a market maker; and (iii) where the aggregate number of
Restricted Securities sold at any time together with all sales of
restricted Alamar Stock sold for Affiliate's account during the preceding
three-month period does not exceed the greater of (A) one percent (1%) of
the Alamar Stock outstanding or (B) the average weekly volume of trading in
Alamar Stock on all national securities exchanges, or reported through the
automated quotation system of a registered securities association, during
the four (4) calendar weeks preceding the date of receipt of the order to
execute the sale.
(b) Affiliate may make unrestricted sales of Restricted Securities
pursuant to Rule 145(d)(2) of the Securities Act if: (i) Affiliate has
beneficially owned (within the meaning of Rule 144(d) under the Securities
Act) the Restricted Securities for at least two (2) years after the
Effective Time; (ii) Affiliate is not an affiliate of Alamar; and (iii)
Alamar meets the public information requirements of Rule 144(c) under the
Securities Act.
(c) Affiliate may make unrestricted sales of Restricted Securities
pursuant to Rule 145(d)(3) under the Securities Act if Affiliate has
beneficially owned (within the meaning of Rule 144(d) under the Securities
Act) the Restricted Securities for at least three (3) years and is not, and
has not been for the last three (3) months, an affiliate of Alamar.
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(d) Parent acknowledges that the provisions of Section 3(c) of this
Agreement will be satisfied as to any sale by the undersigned of the
Restricted Securities pursuant to Rule 145(d) under the Securities Act, by
a broker's letter and a letter from the undersigned with respect to that
sale stating that each of the above-described requirements of Rule
145(d)(1) under the Securities Act has been met or is inapplicable by
virtue of Rule 145(d)(2) under the Securities Act or Rule 145(d)(3) under
the Securities Act; provided, however, that Alamar has no reasonable basis
to believe that such sales were not made in compliance with such provisions
of Rule 145(d) under the Securities Act.
6. Legends. Affiliate also understands and agrees that stop transfer
instructions will be given to Alamar's transfer agent with respect to
certificates evidencing the Restricted Securities and that there will be placed
on the certificates evidencing the Restricted Securities legends stating in
substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY
NOT BE OFFERED, SOLD, PLEDGED, EXCHANGED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES
ACT OF 1933, AS AMENDED, AND THE OTHER CONDITIONS
SPECIFIED IN THAT CERTAIN AFFILIATE AGREEMENT
DATED AS OF APRIL 10, 1995 BY AND AMONG ALAMAR
BIOSCIENCES, INC., ACCUMED, INC. AND THE
SHAREHOLDER, A COPY OF WHICH AFFILIATE AGREEMENT
MAY BE INSPECTED BY THE HOLDER OF THIS CERTIFICATE
AT THE OFFICES OF ALAMAR BIOSCIENCES, INC. ALAMAR
BIOSCIENCES, INC. WILL FURNISH, WITHOUT CHARGE, A
COPY THEREOF TO THE HOLDER OF THIS CERTIFICATE,
UPON WRITTEN REQUEST THEREFOR.
Alamar agrees to remove promptly such stop transfer instructions and legend upon
full compliance with this Agreement by the undersigned, including, without
limitation, a sale or transfer of Alamar Stock permitted under Section 3(c)
above.
7. Termination. This Agreement shall be terminated and shall be of no
further force and effect upon the termination of the Reorganization Agreement
pursuant to Article VII of the Reorganization Agreement.
8. Counterparts. This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
9. Binding Agreement. This Agreement will inure to the benefit of and be
binding upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees
and devisees of Affiliate and any pledgee holding Restricted Securities as
collateral.
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10. Waiver. No waiver by any party hereto of any condition or of any breach
of any provision of this Agreement shall be effective unless in writing and
signed by each party hereto.
11. Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of Illinois.
12 Effect of Headiings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
13. Third Party Reliance. Counsel to and accountants for the parties shall
be entitled to rely upon this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
ACCUMED, INC., AFFILIATE:
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxxx By:/s/ Xxxxx X. Xxxxxxxx
-------------------------- -------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Title: Chairman, President and Chief
Officer. Executive Officer
ALAMAR BIOSCIENCES, INC., Affiliate's Address for Notice:
a California corporation
000 X. Xxxxxxxx
Xxxxx 000
By: /s/ Xxxxxxx X. Xxxxxx Xxxxxxx, Xxxxxxxx 00000
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
Shares beneficially owned:
1,347,000 shares of AccuMed, Inc.
Common Stock
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