<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
GAMMA BIOLOGICALS, INC.
(NAME OF SUBJECT COMPANY [ISSUER])
GAMMA ACQUISITION CORPORATION
IMMUCOR, INC.
(BIDDERS)
COMMON STOCK, PAR VALUE $.10 PER SHARE
(TITLE OF CLASS OF SECURITIES)
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
364 657 106
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
EDWARD L. GALLUP
GAMMA ACQUISITION CORPORATION
C/O IMMUCOR, INC.
3130 GATEWAY DRIVE
NORCROSS, GEORGIA 30091
TELEPHONE: (770)441-2051
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS
ON BEHALF OF BIDDERS)
------------------------
COPY TO:
PHILIP H. MOISE, ESQ.
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
FIRST UNION PLAZA, SUITE 1400
999 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
TELEPHONE: (404)817-6000
<PAGE> 2
CALCULATION OF FILING FEE
TRANSACTION AMOUNT OF
VALUATION* FILING FEE
$24,979,115 $4,995.82
* For purposes of calculating fee only. This amount assumes the purchase
at a purchase price of $5.40 per share of an aggregate of 4,625,762
shares of common stock. The amount of the filing fee, calculated in
accordance with Regulation 240.0-11 of the Securities Exchange Act of
1934, as amended, equals 1/50th of one percentum of the value of shares
purchased.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(A)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: NONE Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
1. Name of Reporting Person: Gamma Acquisition Corporation.
S.S. or I.R.S. Identification Nos. of Above Person: None.
Name of Reporting Person: Immucor, Inc.
S.S. or I.R.S. Identification Nos. of Above Person: 22-2408354
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2. Check the Appropriate Box if a Member of a Group: (a) [x]
(b) [ ]
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3. SEC Use Only:
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4. Sources of Funds: BK; WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f): [ ]
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6. Citizenship or Place of Organization: Texas (Gamma Acquisition Corp.);
Georgia (Immucor, Inc.)
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7. Aggregate Amount Beneficially Owned by Each Reporting Person:
375,887 (Gamma Acquisition Corporation); 1,149,221 Shares (Immucor, Inc.)
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8. Check if the Aggregate in Row (7) Excludes Certain Shares: [ ]
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9. Percent of Class Represented by Amount in Row (7):
8.1% (Gamma Acquisition Corporation); 19.9% (Immucor, Inc.)
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10. Type of Reporting Person: CO (Gamma Acquisition Corporation)
CO (Immucor, Inc.)
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<PAGE> 3
This Schedule 14D-1 Tender Offer Statement (this "Statement") relates
to the offer by Gamma Acquisition Corporation, a Texas corporation (the
"Purchaser") and a wholly owned subsidiary of Immucor, Inc., a Georgia
corporation (the "Parent"), to purchase all of the outstanding shares of common
stock, par value $.10 per share, and the associated common stock purchase rights
(together with the rights, the "Shares") of Gamma Biologicals, Inc., a Texas
corporation (the "Company"), at a price of $5.40 per Share, net to the seller in
cash, without interest thereon (the "Offer Price"), upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated September 25, 1998
(the "Offer to Purchase"), and in the related Letter of Transmittal (which, as
amended from time to time, together constitute the "Offer"). Copies of the Offer
to Purchase and the Letter of Transmittal are annexed hereto as Exhibits (a)(1)
and (a)(2), respectively.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Gamma Biologicals, Inc., a Texas
corporation with its principal executive offices at 3700 Mangum Road, Houston,
Texas 77092.
(b) The information set forth in the Introduction of the Offer to
Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 of the Offer to Purchase is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a-d, g) This Statement is being filed on behalf of the Parent and the
Purchaser for purposes of the Schedule 14D-1. The information set forth in the
Introduction, Section 8 and Schedule I of the Offer to Purchase is incorporated
herein by reference.
(e-f) During the last five years, neither the Parent nor the Purchaser,
nor, to the best knowledge of the Parent and the Purchaser, the persons listed
in Schedule I of the Offer to Purchase, has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree, or final order enjoining future violation of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of such
laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a-b) The information set forth in the Introduction, Sections 7, 8 and
10 and Schedule I of the Offer to Purchase is incorporated herein by reference.
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ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a-c) The information set forth in Section 9 of the Offer to Purchase
is incorporated herein by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDERS.
(a-b) The information set forth in the Introduction, and Sections 10,
11 and 12 of the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Sections 10, 11 and 12 of the Offer to
Purchase is incorporated herein by reference.
(d-e) The information set forth in Sections 6, 11 and 12 of the Offer
to Purchase is incorporated herein by reference.
(f-g) The information set forth in Sections 11 and 12 of the Offer to
Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information set forth in the Introduction, Sections 7 and 8 and
Schedule I of the Offer to Purchase is incorporated herein by reference.
(b) None.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introduction and Sections 8, 10, 11
and 12 of the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Introduction and Sections 10 and 15 of
the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 8 of the Offer to Purchase is
incorporated herein by reference.
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The incorporation by reference herein of the above-referenced financial
information does not constitute an admission that such information is material
to a decision by a shareholder of the Company whether to sell, tender or hold
Shares being sought in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in Sections 7, 8, 10, 11 and 12 of the
Offer to Purchase is incorporated herein by reference.
(b-c, e) The information set forth in Sections 12, 13 and 14 of the
Offer to Purchase is incorporated herein by reference.
(d) The information set forth in Sections 11 and 12 of the Offer to
Purchase is incorporated herein by reference.
(f) The information set forth in the Offer to Purchase and the Letter
of Transmittal, is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Press Release, dated September 21, 1998.
(a)(2) Offer to Purchase, dated September 25, 1998.
(a)(3) Letter of Transmittal.
(a)(4) Notice of Guaranteed Delivery.
(a)(5) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(6) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(8) Summary Advertisement, dated September 25, 1998.
(a)(9) Press Release, dated September 25, 1998.
(b) Bank Commitment Letter.
(c)(1) The Agreement and Plan of Merger, dated September 21, 1998, by and
among Gamma Biologicals, Inc., Immucor, Inc. and Gamma Acquisition
Corporation.
(c)(2) Stock Option Agreement, dated September 21, 1998, by and among Gamma
Biologicals, Inc., Immucor, Inc. and Gamma Acquisition Corporation.
(c)(3) Shareholders Agreement, dated September 21, 1998, by and among Immucor,
Inc., Gamma Acquisition Corporation and certain shareholders of Gamma
Biologicals, Inc.
(d) None.
(e) Not applicable.
(f) None.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
Dated: September 25, 1998
GAMMA ACQUISITION CORPORATION
By: /s/ EDWARD L. GALLUP
-------------------------------------
Name: Edward L. Gallup
Title: President
IMMUCOR, INC.
By: /s/ EDWARD L. GALLUP
-------------------------------------
Name: Edward L. Gallup
Title: Chairman of the Board of
Directors, President
and Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME
<S> <C>
(a)(1) Press Release, dated September 21, 1998
(a)(2) Offer to Purchase, dated September 25, 1998
(a)(3) Letter of Transmittal
(a)(4) Notice of Guaranteed Delivery
(a)(5) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees
(a)(6) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9
(a)(8) Summary Advertisement, dated September 25, 1998
(a)(9) Press Release, dated September 25, 1998.
(b) Bank Commitment Letter
(c)(1) The Agreement and Plan of Merger, dated September 21, 1998, by and
among Gamma Biologicals, Inc., Immucor, Inc. and Gamma Acquisition
Corporation
(c)(2) Stock Option Agreement, dated September 21, 1998, by and among Gamma
Biologicals, Inc., Immucor, Inc. and Gamma Acquisition Corporation
(c)(3) Shareholders Agreement, dated September 21, 1998, by and among Immucor,
Inc., Gamma Acquisition Corporation and certain shareholders of Gamma
Biologicals, Inc.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
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<PAGE> 1
EXHIBIT (a)(1)
FOR IMMEDIATE RELEASE CONTACT: Immucor, Inc.
Edward Gallup, Steve Ramsey or
Connie Vinson
770-441-2051
Gamma Biologicals, Inc.
David E. Hatcher
713-681-8481
IMMUCOR, INC. TO ACQUIRE GAMMA BIOLOGICALS, INC.
IN A CASH TENDER OFFER FOR $5.40 PER SHARE
NORCROSS, GA - September 21, 1998 - Immucor, Inc. (NASDAQ: BLUD) and Gamma
Biologicals, Inc. (AMEX: GBL) today jointly announced that they have executed a
definitive merger agreement under which Gamma Acquisition Corporation, an
Immucor subsidiary, will commence a cash tender offer to acquire all of the
outstanding shares of Gamma Biologicals for $5.40 per share. The merger
agreement has been unanimously approved by the Board of Directors of each
company. Upon completion of this transaction, Gamma Biologicals will operate as
a wholly owned subsidiary of Immucor, Inc.
The cash tender offer of $5.40 for each Gamma Biologicals share represents a
total transaction value of approximately $25 million. The tender offer is not
conditioned upon financing. Subject to satisfaction of customary closing
conditions, Immucor and Gamma Biologicals expect the transaction to close within
five weeks from the date hereof.
Upon completion of this acquisition, Immucor will become the market leader in
providing blood serology reagents and systems in the U.S. and Canada, and will
greatly strengthen its international market position. The combination of this
market leadership with a broad line of automated instrumentation, including
Immucor's newly approved ABS2000 system, and an extensive pipeline of new
products, including Gamma's gel-based ReACT system, is expected to generate
growth in both revenue and profitability. Given the substantial opportunities
for synergies and cost savings, this transaction is expected to increase
Immucor's earnings per share.
Edward L. Gallup, Immucor's President and CEO, stated "I am pleased to welcome
Gamma's customers, employees and suppliers to our company. I am confident that
the combined strengths of our organizations will set the standard for quality
products and services in our industry for years to come."
David E. Hatcher, Gamma's President and CEO, stated "In Immucor, we have found
the ideal partner to continue the growth of our business. Given the
consolidation of our industry and the
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resources which Immucor provides, I believe this transaction will best serve
Gamma's customers, shareholders and employees."
Immucor, Inc., founded in 1982, manufactures and sells a complete line of
reagents and systems used by hospitals, reference laboratories and donor centers
to detect and identify certain properties of the cell and serum components of
blood prior to transfusion. Immucor markets a complete family of automated
instrumentation for all of its market segments. Immucor's fiscal 1998 revenues
were approximately $40 million. For more information on Immucor, please visit
the Company's website at www.immucor.com.
Gamma Biologicals, Inc., with fiscal 1998 revenues of approximately $18 million,
manufactures and sells a wide variety of in-vitro diagnostic reagents to blood
donation centers, transfusion departments of hospitals, medical laboratories and
research institutions through a direct sales force and distributor network.
Gamma Biologicals distributes its products to more than 50 countries worldwide.
Additional information is available about Gamma Biologicals on its website at
www.gammabio.com.
This press release may contain forward-looking statements as that term is
defined in the Private Securities Reform Act of 1995, including, without
limitation, statements concerning each company's expectations, beliefs,
intentions or strategies regarding the future. Because such statements deal with
future events, they are subject to various risks and uncertainties and actual
results may differ materially from each company's current expectations. All
forward-looking statements included in this document are based on in formation
available to each company of the date hereof, and each company assumes no
obligations to update any such forward-looking statements. Further risks are
detailed in each company's filings with the Securities and Exchange commission,
including those set forth in each company's most recent form 10-K and Quarterly
Reports on Form 10-Q.
(end)
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<PAGE> 1
EXHIBIT (a)(2)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
GAMMA BIOLOGICALS, INC.
BY
GAMMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY
OF
IMMUCOR, INC.
AT
$5.40 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN
TIME, ON FRIDAY, OCTOBER 23, 1998, UNLESS THE OFFER IS EXTENDED.
THE BOARD OF DIRECTORS OF GAMMA BIOLOGICALS, INC. (THE "COMPANY") HAS
UNANIMOUSLY APPROVED THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT, HAS DETERMINED THAT THE TERMS OF THE OFFER
AND THE MERGER ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S
SHAREHOLDERS, AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER THEIR SHARES.
The Offer is conditioned upon, among other things, there being validly
tendered a number of Shares which, when added to the Shares beneficially owned
by Immucor, Inc. (the "Parent"), would represent at least 67% of the Shares
outstanding on a fully diluted basis on the date of purchase based on the number
of stock options and warrants exercised prior to the consummation of the Offer.
IMPORTANT
Any shareholder desiring to tender all or any portion of such
shareholder's Shares should either (i) complete and sign the Letter of
Transmittal (or a facsimile thereof) in
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accordance with the instructions in the Letter of Transmittal, have such
shareholder's signature thereon guaranteed if required by Instruction 1 to the
Letter of Transmittal, mail or deliver the Letter of Transmittal (or such
facsimile) and any other required documents to the Depositary and either deliver
the certificates for such Shares to the Depositary along with the Letter of
Transmittal (or facsimile) or deliver such Shares pursuant to the procedure for
book-entry transfer set forth in Section 2 or (ii) request such shareholder's
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for such shareholder. A shareholder having Shares registered in the
name of a broker, dealer, commercial bank, trust company or other nominee must
contact such broker, dealer, commercial bank, trust company or other nominee if
such shareholder desires to tender such Shares.
If a shareholder desires to tender Shares and such shareholder's
certificates for Shares are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis, or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date, such shareholder's tender may be effected by following the procedure for
guaranteed delivery set forth in Section 2.
Questions and requests for assistance may be directed to TM Capital
Corp., the Dealer Manager, or to Beacon Hill Partners, Inc., the Information
Agent, at their respective addresses and telephone numbers set forth on the back
cover of this Offer to Purchase. Additional copies of this Offer to Purchase,
the Letter of Transmittal, the Notice of Guaranteed Delivery and other related
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks and trust companies.
------------------------------------
The Dealer Manager for the Offer is:
[TM Capital Corp. Logo]
September 25, 1998
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 1. Terms of the Offer............................................. 2
Section 2. Procedures for Tendering Shares................................ 4
Section 3. Withdrawal Rights.............................................. 8
Section 4. Acceptance for Payment and Payment............................. 8
Section 5. Certain Federal Income Tax Consequences........................ 10
Section 6. Price Range of Shares; Dividends on the Shares................. 11
Section 7. Certain Information Concerning the Company..................... 11
Section 8. Certain Information Concerning the Parent and the Purchaser.... 13
Section 9. Source and Amount of Funds..................................... 16
Section 10. Background of the Offer........................................ 16
Section 11. Purpose of the Offer; Plans for the Company.................... 20
</TABLE>
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<TABLE>
<S> <C>
Section 12. The Merger..................................................... 20
Section 13. Certain Conditions of the Offer................................ 31
Section 14. Certain Legal Matters.......................................... 33
Section 15. Fees and Expenses.............................................. 35
Section 16. Miscellaneous.................................................. 35
</TABLE>
SCHEDULE I
Directors and Executive Officers of the Parent and the Purchaser
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<PAGE> 4
TO THE HOLDERS OF SHARES OF GAMMA BIOLOGICALS, INC.
Gamma Acquisition Corporation, a Texas corporation (the "Purchaser")
and a wholly owned subsidiary of Immucor, Inc., a Georgia corporation (the
"Parent"), hereby offers to purchase all outstanding shares of common stock, par
value $.10 per share, and the associated common stock purchase rights (together
with the rights, the "Shares"), of Gamma Biologicals, Inc., a Texas corporation
(the "Company"), at a price of $5.40 per Share, net to the seller in cash,
without interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer").
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to the
Offer. The Purchaser will pay all charges and expenses of TM Capital Corp. ("TM
Capital"), as Dealer Manager (in such capacity, the "Dealer Manager"), Harris
Trust Company of New York, as Depositary (the "Depositary"), and Beacon Hill
Partners, Inc., as Information Agent (the "Information Agent"), incurred in
connection with the Offer. See Section 15.
The Offer is being made pursuant to an Agreement and Plan of Merger,
dated as of September 21, 1998 (the "Merger Agreement"), among the Purchaser,
the Parent and the Company. The Merger Agreement provides, among other things,
for the merger of the Purchaser with and into the Company (the "Merger")
following the purchase of Shares pursuant to the Offer. In the Merger, each
outstanding Share (other than Shares owned by the Parent or any subsidiary of
the Parent, Shares held as treasury shares by the Company, and Shares owned by
shareholders who perfect appraisal rights under Texas law) will be converted
into the right to receive $5.40 per Share net in cash. See Section 12.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
OFFER, THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER
AGREEMENT, HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO
AND IN THE BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS, AND RECOMMENDS THAT THE
SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES.
The Offer is subject to the fulfillment of a number of conditions (the
"Offer Conditions"), including, among other things, there being validly tendered
a number of Shares which, when added to the Shares beneficially owned by the
Parent, constitutes at least 67% of the Shares outstanding on a fully diluted
basis on the date of purchase based on the number of stock options and warrants
exercised prior to the consummation of the Offer (the "Minimum Condition").
According to representations made by the Company in the Merger
Agreement, as of the date of the Merger Agreement: (i) 4,625,762 Shares were
issued and outstanding, (ii) 753,410
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<PAGE> 5
Shares were reserved for future issuance upon exercise of outstanding employee
stock options and (iii) 4,625,762 Shares were reserved for future issuance upon
the exercise of the rights.
Certain other Offer Conditions are described in Section 13. The
Purchaser expressly reserves the right, in its sole discretion, to waive any one
or more of the Offer Conditions. See Sections 13 and 14. The Offer is not
conditioned on the receipt of financing.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
SECTION 1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of any extension
or amendment), the Purchaser will accept for payment and pay for all Shares
validly tendered prior to the Expiration Date. The term "Expiration Date" means
12:00 midnight, Eastern Time, on Friday, October 23, 1998, unless the Purchaser
extends the period of time during which the Offer is open, in which event the
term "Expiration Date" shall mean the latest time and date at which the Offer,
as so extended by the Purchaser, will expire.
THE OFFER IS CONDITIONED UPON THE SATISFACTION OF THE MINIMUM CONDITION
AND THE SATISFACTION OF THE OTHER OFFER CONDITIONS SET FORTH IN SECTION 13. THE
OFFER IS NOT CONDITIONED ON THE RECEIPT OF FINANCING.
If all of the Offer Conditions are not satisfied on the Expiration Date
then, provided that Purchaser determines that all Offer conditions are
reasonably capable of being satisfied and subject to Securities and Exchange
Commission (the "SEC") rules with respect to extension of time periods,
Purchaser may extend the Offer from time to time until all Offer Conditions have
been satisfied or waived. The Merger Agreement also provides that upon the
Expiration Date, as the same may be extended, if all Offer Conditions have been
satisfied, the Purchaser shall accept Shares properly tendered for purchase,
subject to the right to extend the Offer not more than ten (10) business days in
the aggregate if less than 90% of the Shares have been properly tendered, such
90% to be calculated after giving effect to the conversion of any securities
convertible into Common Stock, and the exercise of any options, warrants or
other rights to acquire Common Stock. UNDER NO CIRCUMSTANCES WILL INTEREST BE
PAID ON THE PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER
EXERCISES ITS RIGHT TO EXTEND THE OFFER.
If, by the Expiration Date (including any extension in accordance with
the Merger Agreement), any or all of the Offer Conditions have not been
satisfied or waived, the Purchaser reserves the right (but will not be
obligated), subject to the applicable rules and regulations of the SEC, to (a)
terminate the Offer and not accept for payment or pay for any
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<PAGE> 6
Shares and return all tendered Shares to tendering shareholders, (b) waive all
the unsatisfied Offer Conditions and accept for payment and pay for all Shares
validly tendered prior to the Expiration Date, (c) extend the Offer and, subject
to the right of shareholders to withdraw Shares until the Expiration Date,
retain the Shares that have been tendered during the period or periods for which
the Offer is extended, or (d) amend the Offer.
The rights reserved by the Purchaser in the two preceding paragraphs
are in addition to the Purchaser's rights pursuant to Section 13. There can be
no assurance that the Purchaser will exercise its right to extend the Offer
beyond October 23, 1998. Any extension, amendment or termination will be
followed as promptly as practicable by public announcement as to such. In the
case of an extension, Rule 14e-l(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), requires that the announcement be issued no
later than 9:00 a.m., Eastern time, on the next business day after the
previously scheduled Expiration Date, or the first opening of the American Stock
Exchange (the "AMEX") on the next business day after the previously scheduled
Expiration Date, in accordance with the public announcement requirements of Rule
14d-4(c) under the Exchange Act. Subject to applicable law (including Rules
14d-4(c) and 14d-6(d) under the Exchange Act, which require that any material
change in the information published, sent or given to shareholders in connection
with the Offer be promptly disseminated to shareholders in a manner reasonably
designed to inform shareholders of such change), and without limiting the manner
in which the Purchaser may choose to make any public announcement, the Purchaser
will not have any obligation to publish, advertise or otherwise communicate any
such public announcement other than by making a release to the PR Newswire. As
used in this Offer to Purchase, "business day" has the meaning set forth in Rule
14d-1 under the Exchange Act.
If the Purchaser extends the Offer or if the Purchaser is delayed in
its acceptance for payment of or payment (whether before or after its acceptance
for payment of Shares) for Shares or it is unable to pay for Shares pursuant to
the Offer for any reason, then, without prejudice to the Purchaser's rights
under the Offer, the Depositary may retain tendered Shares on behalf of the
Purchaser, and such Shares may not be withdrawn except to the extent tendering
shareholders are entitled to withdrawal rights as described in Section 3.
However, the ability of the Purchaser to delay the payment for Shares that the
Purchaser has accepted for payment is limited by Rule 14e-1(c) under the
Exchange Act, which requires that a bidder pay the consideration offered or
return the securities tendered by or on behalf of holders of securities promptly
after the termination or withdrawal of such bidder's offer.
If the Purchaser makes a material change in the terms of the Offer or
the information concerning the Offer, the Purchaser will extend the Offer and
disseminate additional tender offer materials to the extent required by Rules
14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period during
which the Offer must remain open following material changes in the terms of the
Offer or information concerning the Offer, other than a change in price or a
change in the percentage of securities sought, will depend upon the facts and
circumstances then existing, including the relative materiality of the changed
terms or information. With respect to a change in price or a change in the
percentage of securities
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<PAGE> 7
sought, a minimum period of 10 business days is generally required to allow for
adequate dissemination to shareholders and investor response.
The Company has provided the Purchaser with the Company's shareholder
lists and security position listings for the purpose of disseminating the Offer
to holders of Shares. This Offer to Purchase, the related Letter of Transmittal
and other relevant materials will be mailed to record holders of Shares, and
will be furnished to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
shareholder lists, or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
SECTION 2. PROCEDURES FOR TENDERING SHARES
Valid Tender. For a shareholder validly to tender Shares pursuant to
the Offer, either (a) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message (as
defined below), and any other required documents, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date and either certificates for tendered
Shares ("Share Certificates") must be received by the Depositary at one of such
addresses or such Shares must be delivered pursuant to the procedures for
book-entry transfer set forth below (and a Book-Entry Confirmation (as defined
below) received by the Depositary), in each case prior to the Expiration Date,
or (b) the tendering shareholder must comply with the guaranteed delivery
procedures set forth below.
Book-Entry Transfer. The Depositary will establish an account with
respect to the Shares at The Depositary Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant in any
of the Book-Entry Transfer Facility's systems may make book-entry delivery of
Shares by causing a Book-Entry Transfer Facility to transfer such Shares into
the Depositary's account in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message (as defined below), and any other required documents, must,
in any case, be transmitted to, and received by, the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date, or the tendering shareholder must comply with the guaranteed
delivery procedures described below. The confirmation of a book-entry transfer
of Shares into the Depositary's account at a Book-Entry Transfer Facility as
described above is referred to herein as a "Book-Entry Confirmation." DELIVERY
OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
-4-
<PAGE> 8
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against such participant.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER.
SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS
WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter
of Transmittal (a) if the Letter of Transmittal is signed by the registered
holder (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facility's systems whose name appears on a
security position listing as the owner of the Shares) of Shares tendered
therewith and such registered holder has not completed either the box entitled
"Special Delivery Instructions" or the box entitled "Special Payment
Instructions" on the Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(an "Eligible Institution"). In all other cases, all signatures on the Letter of
Transmittal must be guaranteed by an Eligible Institution. See Instructions 1
and 5 to the Letter of Transmittal. If Share Certificates are registered in the
name of a person other than the signer of the Letter of Transmittal, or if
payment is to be made or Share Certificates for Shares not tendered or not
accepted for payment are to be returned to a person other than the registered
holder of the Share Certificates surrendered, the tendered Share Certificates
must be endorsed or accompanied by appropriate stock powers, in either case
signed exactly as the name or names of the registered holders appear on the
Share Certificates, with the signatures on the Share Certificates or stock
powers guaranteed as described above. See Instructions 1 and 5 to the Letter of
Transmittal.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant
to the Offer and such shareholder's Share Certificates are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such shareholder's tender may be
effected if all the following conditions are met:
-5-
<PAGE> 9
(i) the tender is made by or through an Eligible
Institution;
(ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by the
Purchaser, is received by the Depositary, as provided below, prior to
the Expiration Date; and
(iii) the Share Certificates, representing all tendered
Shares, in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), with any
required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message, and any other required documents are
received by the Depositary within three trading days after the date of
execution of such Notice of Guaranteed Delivery. A "trading day" is any
day on which the AMEX is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, fax or mail to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted
for payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) Share Certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares, (b) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering shareholders may be paid at different times depending
upon when Share Certificates or Book-Entry Confirmations with respect to Shares
are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE
PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The Purchaser's acceptance for payment of Shares validly tendered
pursuant to the Offer will constitute a binding agreement between the tendering
shareholder and the Purchaser upon the terms and subject to the conditions of
the Offer.
Appointment as Proxy. By executing a Letter of Transmittal as set forth
above, a tendering shareholder irrevocably appoints designees of the Purchaser
as such shareholder's attorneys-in-fact and proxies in the manner set forth in
the Letter of Transmittal, each with full power of substitution, to the full
extent of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities or rights issued or issuable in respect
of such Shares on or after September 25, 1998. All such proxies will be
irrevocable and considered coupled with an interest in the tendered Shares. Such
appointment will be effective when, and only to the extent that, the Purchaser
accepts such Shares for payment pursuant to the Offer.
-6-
<PAGE> 10
Upon such acceptance for payment, all prior powers of attorney, proxies and
consents given by such shareholder with respect to such Shares or other
securities or rights will, without further action, be revoked and no subsequent
powers of attorney, proxies, consents or revocations may be given (and, if
given, will not be deemed effective). The designees of the Purchaser will
thereby be empowered to exercise all voting and other rights with respect to
such Shares and other securities or rights in respect of any annual, special,
adjourned or postponed meeting of the Company's shareholders, actions by written
consent in lieu of any such meeting or otherwise, as they in their sole
discretion deem proper. The Purchaser reserves the right to require that, in
order for Shares to be deemed validly tendered, immediately upon the Purchaser's
acceptance for payment of such Shares, the Purchaser must be able to exercise
full voting, consent and other rights with respect to such Shares and other
securities or rights, including voting at any meeting of shareholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by the Purchaser, in its sole discretion, whose
determination will be final and binding on all parties. The Purchaser reserves
the absolute right to reject any or all tenders determined by it not to be in
proper form or the acceptance for payment of or payment for which may, in the
opinion of the Purchaser's counsel, be unlawful. The Purchaser also reserves the
absolute right to waive any defect or irregularity in the tender of any Shares
of any particular shareholder whether or not similar defects or irregularities
are waived in the case of other shareholders. No tender of Shares will be deemed
to have been validly made until all defects or irregularities relating thereto
have been cured or waived. None of the Purchaser, the Parent, the Depositary,
the Information Agent, the Dealer Manager or any other person will be under any
duty to give notification of any defects or irregularities in tenders or incur
any liability for failure to give any such notification. The Purchaser's
interpretation of the terms and conditions of the Offer (including the Letter of
Transmittal and the instructions thereto) will be final and binding on all
parties.
Backup Withholding. In order to avoid "backup withholding" of federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such shareholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such shareholder is not subject to backup withholding. If a
shareholder does not provide such shareholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such shareholder and the payment of cash to such shareholder
pursuant to the Offer may be subject to backup withholding of 31% of the amount
of such payment. All shareholders surrendering Shares pursuant to the Offer
should complete and sign the main signature form and the Substitute Form W-9
included as part of the Letter of Transmittal to provide the information and
certification necessary to avoid backup withholding (unless an applicable
exemption exists and is proved in a manner satisfactory to the Purchaser and the
Depositary). Noncorporate foreign shareholders should complete and sign the main
signature form and a Form W-8, Certificate of Foreign Status, a copy of which
may be obtained from the
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<PAGE> 11
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
SECTION 3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares
pursuant to the Offer are irrevocable. Shares tendered pursuant to the Offer may
be withdrawn pursuant to the procedures set forth below at any time prior to the
Expiration Date.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
its address set forth on the back cover of this Offer to Purchase and must
specify the name of the person having tendered the Shares to be withdrawn, the
number of Shares to be withdrawn and the name of the registered holder of the
Shares to be withdrawn, if different from the name of the person who tendered
the Shares. If Share Certificates have been delivered or otherwise identified to
the Depositary, then, prior to the physical release of such Share Certificates,
the serial numbers shown on such Share Certificates must be submitted to the
Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been delivered pursuant to the procedure
for book-entry transfer as set forth in Section 2, any notice of withdrawal must
also specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares and otherwise comply
with such Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares
properly withdrawn will thereafter be deemed not validly tendered for purposes
of the Offer. However, withdrawn Shares may be retendered by again following one
of the procedures described in Section 2 at any time prior to the Expiration
Date.
All questions as to the form and validity (including time of receipt)
of notices of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination will be final and binding on all parties. None
of the Purchaser, the Parent, the Depositary, the Information Agent, the Dealer
Manager or any other person will be under any duty to give notification of any
defects or irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification.
SECTION 4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of any such
extension or amendment), the Purchaser will accept for payment and will pay for
all Shares validly tendered promptly after the Expiration Date. All questions as
to the satisfaction of such terms and conditions will be determined by the
Purchaser, in its sole discretion, whose determination will be final and
-8-
<PAGE> 12
binding on all parties. See Sections 1 and 13. The Purchaser expressly reserves
the right, in its sole discretion, to delay acceptance for payment of or payment
for Shares in order to comply in whole or in part with any applicable law. See
Section 14. Any such delays will be effected in compliance with Rule 14e-l(c)
under the Exchange Act (relating to a bidder's obligation to pay for or return
tendered securities promptly after the termination or withdrawal of such
bidder's offer).
In all cases, payment for Shares accepted for payment pursuant to the
Offer will be made only after timely receipt by the Depositary of (a) Share
Certificates for (or a timely Book-Entry Confirmation with respect to) such
Shares, (b) a Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and (c) any other documents required by
the Letter of Transmittal. The per Share consideration paid to any shareholder
pursuant to the Offer will be the highest per Share consideration paid to any
other shareholder of the same class pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have
accepted for payment, and thereby purchased, Shares validly tendered to the
Purchaser as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such Shares. Payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for validly
tendering shareholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering shareholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT. Upon the deposit of funds with the Depositary for the purpose of making
payments to tendering shareholders, the Purchaser's obligation to make such
payment shall be satisfied and tendering shareholders must thereafter look
solely to the Depositary for payment of amounts owed to them by reason of the
acceptance for payment of Shares pursuant to the Offer. The Purchaser will pay
any stock transfer taxes with respect to the transfer and sale to it or its
order pursuant to the Offer, except as otherwise provided in Instruction 6 of
the Letter of Transmittal, as well as any charges and expenses of the Depositary
and the Information Agent.
If the Purchaser is delayed in its acceptance for payment of or payment
for Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act),
the Depositary may, nevertheless, on behalf of the Purchaser, retain tendered
Shares, and such Shares may not be withdrawn except to the extent tendering
shareholders are entitled to exercise, and duly exercise, withdrawal rights as
described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, Share Certificates for any such unpurchased Shares will be returned,
without expense to the tendering shareholder (or, in the case of Shares
delivered by book-entry transfer of such Shares into the
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<PAGE> 13
Depositary's account at a Book-Entry Transfer Facility pursuant to the procedure
set forth in Section 2, such Shares will be credited to an account maintained at
the appropriate Book-Entry Transfer Facility), as promptly as practicable after
the expiration, termination or withdrawal of the Offer.
The Purchaser reserves the right to transfer or assign, in whole or
from time to time in part, to the Parent, or to one or more direct or indirect
wholly owned subsidiaries of the Parent, the right to purchase Shares tendered
pursuant to the Offer, but any such transfer or assignment will not relieve the
Purchaser of its obligations under the Offer and will in no way prejudice the
rights of tendering shareholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
SECTION 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a
taxable transaction for federal income tax purposes under the Internal Revenue
Code of 1986, as amended (the "Code"), and may also be a taxable transaction
under applicable state, local or foreign income or other tax laws. Generally,
for federal income tax purposes, a tendering shareholder will recognize gain or
loss equal to the difference between the amount of cash received by the
shareholder pursuant to the Offer or the Merger and the adjusted tax basis in
the Shares tendered by the shareholder and purchased pursuant to the Offer or
converted in the Merger, as the case may be. Gain or loss will be calculated
separately for each block of Shares tendered and purchased pursuant to the Offer
or converted in the Merger, as the case may be.
If Shares are held by a shareholder as capital assets, gain or loss
recognized by the shareholder will be capital gain or loss, which will be
long-term capital gain or loss if the shareholder's holding period for the
Shares exceeds one year. In addition, any gain on the sale of Shares by an
individual may be taxed at the maximum rate of 20%, if, as of the date of sale,
the Shares were held by such individual for more than 18 months.
THE FOREGOING DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY AND
MAY NOT BE APPLICABLE WITH RESPECT TO SHARES RECEIVED AS COMPENSATION OR WITH
RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX TREATMENT UNDER THE
CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES, TAX-EXEMPT
ORGANIZATIONS AND FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A HOLDER OF
SHARES IN LIGHT OF INDIVIDUAL CIRCUMSTANCES. SHAREHOLDERS ARE URGED TO CONSULT
THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM
(INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN INCOME AND
OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
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<PAGE> 14
SECTION 6. PRICE RANGE OF SHARES; DIVIDENDS ON THE SHARES
The Shares are listed on the AMEX under the symbol GBL. The following
table sets forth the high and low closing sales prices per Share as reported on
the AMEX Composite tape, together with the per Share dividends paid by the
Company as reported in publicly available sources.
<TABLE>
<CAPTION>
HIGH LOW DIVIDENDS
<S> <C> <C> <C>
FISCAL 1997
First quarter $4 1/2 $3 3/4 $0.025
Second quarter 4 2 7/8 0.025
Third quarter 3 3/4 3 0.025
Fourth quarter 4 3 1/16 0.025
FISCAL 1998
First quarter $4 13/16 $3 9/16 $0.025
Second quarter 5 3/4 4 3/8 0.025
Third quarter 6 3/8 4 1/8 0.025
Fourth quarter 5 3/8 4 5/16 0.025
FISCAL 1999
First quarter $5 7/16 4 1/2 $0.025
Second quarter (through 5 1/16 2 1/4 0.025
September 24, 1998)
</TABLE>
On September 4, 1998, the Company declared a dividend $0.005 per share
payable October 20, 1998. On September 18, 1998, the last full trading day prior
to the public announcement of the execution of the Merger Agreement and the
Purchaser's intention to commence the Offer, the closing sale price for the
Shares was $2 7/8 per Share. On September 24, 1998, the last full trading day
before commencement of the Offer, the closing sale price for the Shares was $5
1/16 per Share. SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR
THE SHARES.
SECTION 7. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Texas corporation with its principal offices at 3700
Mangum Road, Houston, Texas 77092. The Company's principal line of business is
manufacturing and selling a variety of refined and specialized testing products
known as in-vitro diagnostic reagents.
The reagents are sold to transfusion departments of hospitals, blood
collection center, medical laboratories and research institutions where they are
used to detect the presence of diagnostically significant substances in
biological fluids, primarily human blood. The company also develops test
systems, which use certain of the Company's reagents and serve to standardize
test procedures. See "New Technology -- Gamma reACT-TM- Test System".
-11-
<PAGE> 15
The Company's current products are used in a number of applications,
including:
- grouping donor and patient bloods and performing compatibility
tests prior to transfusion
- detecting hemolytic disease of the newborn
- identifying antibodies and certain inherited blood group
antigens
The Company markets its products to over 3,500 hospitals, blood centers
and laboratories in the United States and Canada, and to dealers in
approximately 50 countries. Domestic sales are made through the Company's direct
sales force, as well as through independent distributors. Internationally, the
Company sells its products and products manufactured by others through its
subsidiary, Gamma Biologicals, B.V., and independent distributors.
GAMMA BIOLOGICALS, INC.
SELECTED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31, THREE MONTHS ENDED JUNE 30,
--------------------------------------- -----------------------------
INCOME STATEMENT DATA 1996 1997 1998 1997 1998
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Net Sales $16,940,588 $17,554,502 $18,253,763 $ 4,827,992 $ 4,366,544
Operating Income 898,974 1,576,255 653,974 453,590 (293,514)
Net Income 823,530 1,115,820 1,309,616 309,006 (156,902)
BALANCE SHEET DATA (AT
END OF PERIOD)
Working Capital $10,298,982 $10,167,457 $ 9,121,701 $ 9,868,851 $ 8,525,970
Total Assets 18,425,700 19,869,527 22,133,240 20,247,247 21,698,624
Long-Term Debt 353,097 345,120 851,240 508,620 782,520
Shareholders' Equity 16,852,086 17,664,907 18,506,469 17,859,550 18,297,949
PER SHARE:
Net Income per Common
Share (Basic) $ 0.18 $ 0.24 $ 0.28 $ 0.07 $ (0.03)
Net Income Per Common
Share on a Fully Diluted
Basis $ 0.18 $ 0.24 $ 0.28 $ 0.07 $ (0.03)
</TABLE>
Available Information. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, files periodic
reports, proxy statements and other information with the SEC relating to its
business, financial condition and other matters. Information as of particular
dates concerning the Company's directors and officers, their remuneration, stock
options and other matters, the principal holders of the Company's securities and
any material interest of such persons in transactions with the Company is
required to be disclosed in proxy statements distributed to the Company's
shareholders and filed with the SEC. Such reports, proxy statements and other
information may be inspected at the public reference facilities of the SEC at
450 Fifth Street, N.W., Washington, DC
-12-
<PAGE> 16
20549, and at the regional offices of the Commission located at Seven World
Trade Center, 13th Floor, New York, NY 10048 and Citicorp Center, 500 West
Madison Street (Suite 1400), Chicago, IL 60661. Copies of such information are
obtainable, by mail, upon payment of the SEC's customary charges, by writing to
the Commission's principal office at 450 Fifth Street, N.W., Washington, DC
20549. The SEC also maintains a worldwide website on the internet at
http:\\www.sec.gov which site contains registration statements, reports, proxy
and information statements regarding registrants that file electronically with
the SEC including the Company.
Company Information. The information concerning the Company contained
in this Offer to Purchase has been supplied by the Company for inclusion herein
or has been taken from or based upon publicly available documents on file with
the Commission and other publicly available information. Although the Parent and
the Purchaser do not have any knowledge that any such information is untrue,
neither the Purchaser nor the Parent takes any responsibility for the accuracy
or completeness of such information or for any failure by the Company to
disclose events that may have occurred and may affect the significance or
accuracy of any such information.
SECTION 8. CERTAIN INFORMATION CONCERNING THE PARENT AND THE PURCHASER
The Purchaser is a newly incorporated Texas corporation and a wholly
owned subsidiary of the Parent which to date has not conducted any business
other than in connection with the Offer and the Merger. The Parent is a Georgia
corporation. The principal executive offices of the Parent and the Purchaser are
located at 3130 Gateway Drive, Norcross, Georgia 30091.
Description of Business. The Parent develops, manufactures and sells a
complete line of reagents and systems used primarily by hospitals, clinical
laboratories and blood banks in a number of tests performed to detect and
identify certain properties of the cell and serum components of human blood
prior to blood transfusion. The Parent also develops automated blood bank
instruments.
The Parent has developed an automated, "walk-away", blood bank
analyzer, using the Parent's proprietary Capturer technology called the ABS2000.
The instrument is designed for patient testing in hospital transfusion
laboratories and is the first fully automated blood bank system that performs
blood compatibility tests currently done manually by blood bank technologists.
The Parent also has the North American distribution rights for blood bank
applications of the ROSYS Plato system manufactured by ROSYS Anthos Ag of
Switzerland. In 1998, the Parent began marketing an automated medical
instrument, previously referred to as the ABSHV, utilizing DYNEX Technologies,
Inc.'s 510(k) clearance for its product called the DIAS PLUS. The instrument
provides large blood donor centers and clinical reference laboratories automated
batch processing and positive sample identification of routine blood donor
tests, and uses the Company's solid phase Capture (registered trademark) assays.
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<PAGE> 17
The Parent markets and sells its products to its over 4,000 customers
worldwide through sales personnel employed by the Parent and through
distributors located throughout the world. The Parent has sought to increase its
market share through the expansion of its product line to offer its customers a
full range of products for their reagent needs. The Company believes it can
increase its market share by marketing products based on its solid phase
technology.
Set forth below is a summary of certain consolidated financial
information with respect to the Parent and its subsidiaries excerpted or derived
from the information contained in the Parent's Annual Report on Form 10-K for
the year ended May 31, 1998 (the "Parent 10-K"). More comprehensive financial
information is included in the complete financial statements of the Parent
contained in the Parent 10-K on file with the Commission, and such financial
statements are incorporated herein by reference.
IMMUCOR, INC.
SELECTED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED MAY 31,
-----------------------------------------
INCOME STATEMENT DATA 1996 1997 1998
----------- ----------- -----------
<S> <C> <C> <C>
Net Sales $30,964,057 $35,653,617 $39,790,434
Operating Income 3,593,777 2,976,832 3,778,674
Net Income 2,772,635 1,839,914 2,068,773
BALANCE SHEET DATA (AT END OF PERIOD)
Working Capital $32,524,374 $31,868,041 $32,948,438
Total Assets 47,206,858 57,725,646 57,544,276
Long-Term Debt 3,908,795 10,665,658 8,911,727
Shareholders' Equity 39,345,250 41,220,868 42,432,550
PER SHARE:
Net Income per Common
Share (Basic) $ 0.35 $ 0.23 $ 0.26
Net Income Per Common
Share on a Fully Diluted
Basis $ 0.32 $ 0.22 $ 0.25
</TABLE>
Available Information. The Parent is subject to the informational
requirements of the Exchange Act and, in accordance therewith, files periodic
reports relating to its business, financial condition and other matters.
Information, as of particular dates, concerning the Parent's directors and
officers, their remuneration, stock options and other matters, the principal
holders of the Parent's securities and any material interest of such persons in
transactions with the Parent is required to be disclosed in proxy statements
distributed to the Parent's shareholders and filed with the SEC.
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Such reports, proxy statements and other information may be inspected at the
SEC, and copies thereof should be obtainable from the Commission in the same
manner as is set forth with respect to the Company in Section 7. The SEC also
maintains a worldwide website on the internet at http:\\www.sec.gov which site
contains registration statements, reports, proxy and information statements
regarding registrants that file electronically with the SEC including the
Purchaser.
Beneficial Ownership of Company Securities, Contacts with the Company,
etc. Except as set forth in this Offer to Purchase, neither the Purchaser, the
Parent, nor, to the best knowledge of the Purchaser or the Parent, any of the
persons listed in Schedule I hereto, or any associate or majority owned
subsidiary of such persons, beneficially owns any equity security of the
Company, and neither the Purchaser, the Parent, nor, to the best knowledge of
the Purchaser or the Parent, any of the persons listed in Schedule I hereto, any
associate or majority owned subsidiary of such persons, or any of their
respective directors, executive officers or subsidiaries, has effected any
transaction in any equity security of the Company during the past 60 days. On
September 21, 1998, the Purchaser, the Parent and the Company entered into that
certain Stock Option Agreement of even date pursuant to which the Company
granted to Purchaser an option to purchase up to 19.9% of the outstanding stock
of the Company for $5.40 per share. In addition, on September 21,1998, the
Purchaser, the Parent and certain of the Company's stockholders entered into
that certain Shareholders Agreement of even date pursuant to which stockholders
holding approximately 15.6% of the outstanding shares of the Company (giving
effect to the exercise of all options held by such stockholders) granted to
Purchaser an a proxy and an option to purchase all of their shares of Company
stock for $5.40 per share.
Except as set forth in this Offer to Purchase, neither the Purchaser,
the Parent, nor, to the best knowledge of the Purchaser or the Parent, any of
the persons listed in Schedule I hereto, has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, without limitation, any contract,
arrangement, understanding or relationship concerning the transfer or the voting
of any securities of the Company, joint ventures, loan or option arrangements,
puts or calls, guaranties of loans, guaranties against loss or the giving or
withholding of proxies. Except as set forth in this Offer to Purchase, neither
the Purchaser, the Parent, nor, to the best knowledge of the Purchaser or the
Parent, any of the persons listed in Schedule I hereto, has had any transactions
with the Company or any of its executive officers, directors or affiliates that
would require reporting under the rules of the Commission.
Except as set forth in this Offer to Purchase, there have been no
contacts, negotiations or transactions between the Purchaser, the Parent, or, to
the best knowledge of the Purchaser or the Parent, any of the persons listed in
Schedule I hereto or any subsidiary of such persons, on the one hand, and the
Company or its executive officers, directors or affiliates, on the other hand,
concerning a merger, consolidation or acquisition, tender offer or other
acquisition of securities, election of directors, or a sale or other transfer of
a material amount of assets that would require reporting under the rules of the
Commission.
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SECTION 9. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser to purchase all of
the Shares pursuant to the Offer, fund payments for cancellation of options and
pay fees and expenses related to the Offer and the Merger is estimated to be
approximately $27 million. The Purchaser plans to obtain all funds needed for
the Offer and the Merger through a capital contribution from the Parent.
Parent plans to obtain a portion of the funds for such capital
contribution through a new credit facility (the "Credit Facility"). The Credit
Facility will provide a term loan of $20 million to finance the acquisition. The
Credit Facility will initially bear interest at LIBOR plus 120 basis points. The
Credit Facility will contain customary covenants that include maintenance of
certain financial ratios. The remainder of the funds for the capital
contribution will be provided from the Parent's cash holdings.
Although no definitive plan or arrangement for repayment of borrowings
under the Credit Facility has been made, Parent anticipates such borrowings will
be repaid with internally generated funds (including, if the Merger is
accomplished, those of the Company) and from other sources which may include the
proceeds of future refinancings. No decision has been made concerning the method
Parent will use to repay the borrowings under the Credit Facility. Such decision
will be made based on Parent's review from time to time of the advisability of
particular actions, as well as prevailing interest rates, financial and other
economic conditions and such other factors as Parent may deem appropriate.
SECTION 10. BACKGROUND OF THE OFFER
Mr. Edward L. Gallup, CEO of Parent, and Mr. David E. Hatcher, CEO of
the Company, have known each other for over 30 years. For at least the last ten
years, the two of them have discussed at various times the possibility of
business combinations, joint ventures, and other transactions between Parent and
the Company.
On March 12, 1996, a representative of Parent wrote to a representative
of the Company requesting information and materials regarding the Company. On
March 20, 1996, Parent received a confidentiality agreement and an executive
summary regarding the Company. The confidentiality agreement was never executed
and contacts were discontinued.
On July 16, 1997, Mr. Gallup and Mr. Hatcher met to discuss the merits
of a business combination between Parent and the Company.
On August 5, 1997, Parent wrote to the Company proposing a transaction
offering $5.40 per Share in cash for all outstanding Shares, subject to
completion of due diligence, approval of the respective Boards of Directors of
Parent and the Company, and satisfactory negotiation of the terms of a
definitive merger agreement, and requested a reply by August 15, 1997.
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On August 7, 1997, the Board of Directors of the Company discussed the
written offer and established a committee to engage financial advisors and
report any results to the Board. The Company informed Parent of these procedures
and that it would not be able to respond by August 15, 1997.
On August 22, 1997, the Company engaged Rauscher Pierce Refsnes, Inc.
(which subsequently merged with Dain Bosworth Incorporated, which
simultaneously changed its name to Dain Rauscher Incorporated) as its
investment banker and financial advisor.
On October 20, 1997, representatives of Parent, the Company and Dain
Rauscher Wessels, a division of Dain Rauscher Incorporated ("Dain Rauscher
Wessels") met to discuss a potential transaction and a form of confidentiality
agreement. On October 28, 1997, Parent executed a confidentiality and standstill
agreement with the Company.
On November 5, 1997, representatives of Parent, the Company and Dain
Rauscher Wessels met to discuss a potential merger transaction and exchange
historical and projected financial information regarding the Company. The
Company also provided certain patent information for review by Parent's
attorneys.
On November 9, 1997, the Board of Directors of the Company met, and
representatives of Dain Rauscher Wessels addressed the Board. Given the increase
in the market price per share of the Company's Common Stock, representatives of
Dain Rauscher Wessels stated that Parent's offer was inadequate, and they would
have further discussions with Parent and its representatives and notify the
Board of any developments.
On February 4, 1998, Parent wrote to the Company formally withdrawing
its written offer of $5.40 per share presented on August 5, 1997.
In April 1998, Mr. Gallup and Mr. Hatcher met to discuss potential
business combinations between Parent and the Company.
On May 5, 1998, Parent retained TM Capital Corp. ("TM Capital") as its
investment banker and financial advisor in connection with a possible
acquisition of the Company. On May 13, 1998, representatives of TM Capital and
Dain Rauscher Wessels met to discuss a potential business combination between
Parent and the Company.
On May 18, 1998, Parent wrote to the Company proposing a transaction at
a premium price to be mutually agreed upon for all outstanding Shares on a cash
basis. Thereafter, Parent requested and the Company provided non-public
historical and projected financial information.
On June 4, 1998, Parent wrote to the Company proposing a transaction
offering $6.00 per Share for all outstanding Shares on a cash basis, subject to
the completion of due diligence, the negotiation of a definitive merger
agreement, and the approval of the Company's Board of Directors. Dain Rauscher
Wessels shortly thereafter informed TM Capital that the Company did not consider
this to be an adequate offer.
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On June 12, 1998, TM Capital indicated to Dain Rauscher Wessels that
Parent would be prepared to consider a transaction offering $6.50 per Share for
all outstanding Shares on a cash basis, subject to completion of due diligence,
approval of the respective Boards of Directors of Parent and the Company, and
satisfactory negotiation of the terms of a definitive merger agreement. On June
17, 1998, the Company received a letter from a third party indicating an
interest in a business combination at a premium over the stock price. The Board
of Directors of the Company met on June 17, 1998, to review the proposals from
Parent and the third party. The Company then informed Dain Rauscher Wessels that
it was not prepared at that time to accept Parent's offer, and Dain Rauscher
Wessels then informed TM Capital of the Board's decision. Discussions between
representatives of Parent, TM Capital, the Company and Dain Rauscher Wessels
continued.
On June 26, 1998, Mr. Hatcher met with representatives of the third
party and informed them that time was of the essence for any specific offer. The
representatives of the third party requested two weeks to discuss an offer with
its management and Board of Directors. On July 16, 1998, the Company received
written notice that the third party would not be able to present a viable offer
for the Company.
On July 21, 1998, representatives of Parent, TM Capital, the Company
and Dain Rauscher Wessels met and agreed to recommend a cash purchase price of
$6.50 per Share, subject to completion of due diligence, approval of the
respective Boards of Directors of Parent and the Company, and satisfactory
negotiation of the terms of a definitive merger agreement.
On July 27 and 28, 1998, representatives of Parent, TM Capital, the
Company, Dain Rauscher Wessels and their respective counsel met to conduct
business, financial and legal due diligence. Additional due diligence
information requests and exchanges between Parent and the Company continued
thereafter.
On August 11, 1998, the Company issued a press release which reported
results for the quarter ended June 30, 1998. The Company reported a decline in
net revenues, an operating loss and a net loss for the quarter. The Company also
stated that revenues from the newly launched ReACT product line were
materializing more slowly than had been forecasted.
On September 4, 1998, the Company issued a press release which declared
a 1/2-cent-per-share quarterly dividend payable October 20, 1998. This
represented a reduction from the Company's prior dividend rate of 2
1/2-cents-per-share per quarter.
On September 4, 1998, given the passage of time, the absence of an
agreement on a transaction, and the Company's desire to move forward with other
alternatives, the Company wrote to Parent and requested Parent withdraw its
offer. On September 4, 1998, Parent wrote to the Company declining to withdraw
the offer, and indicating that it was prepared to meet with the Company to
negotiate the final terms of a transaction.
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On September 11, 1998, counsel to Parent provided the Company with a
draft of the Agreement and Plan of Merger (the "Merger Agreement"), and the
Company provided Parent with updated financial information.
On September 16, 1998, representatives of Parent, TM Capital, the
Company, Dain Rauscher Wessels and their respective counsel met to discuss the
results of Parent's due diligence review. At this meeting, Parent submitted a
revised proposal of $5.25 per share in cash for all outstanding shares. After
further discussion and negotiations, Parent proposed a cash tender offer at
$5.40 per Share for 100% of the Company's outstanding shares, subject to
negotiation of satisfactory terms of the Merger Agreement. The Company held a
special telephonic meeting with its Board of Directors later that afternoon
whereby the proposed transaction was approved subject to negotiation of the
Definitive Merger Agreement. Between September 16 and September 20, 1998,
negotiations were conducted as to the details of the transaction and the Merger
Agreement. During this period the Company and Parent also negotiated the terms
of the Stock Option Agreement between the Company and Parent, and the
Shareholders Agreement between Parent, Purchaser and the Company's officers and
directors.
On September 17, 1998, Parent's Board of Directors held a special
telephonic meeting with all directors present. Parent's Board of Directors
reviewed and unanimously approved the proposed terms of the Offer and Merger.
On September 20, 1998, the Board of Directors of the Company held a
special telephonic meeting, with all directors present. Representatives of Dain
Rauscher as well as the Company's counsel also participated on the telephonic
call. The Board of Directors reviewed the terms of the Merger Agreement, the
Stock Option Agreement and Shareholders Agreement. Company counsel advised the
directors of their fiduciary duties in connection with their consideration of
the Merger Agreement, the Stock Option Agreement, the Offer and the Merger.
After presenting their financial analyses of the fairness of the consideration
to be received in the Offer and the Merger, Dain Rauscher Wessels delivered its
oral opinion that, as of the date of such opinion, the consideration of $5.40
per Share in cash to be received by the holders of Shares in the Offer and
Merger were fair to such holders from a financial point of view. The Board of
Directors then discussed the merits of the proposed Offer and Merger. Following
such discussion, the Board of Directors unanimously approved the Merger
Agreement and the Stock Option Agreement, determined that the Offer and the
Merger are fair to, and in the best interests of, the shareholders of the
Company, and resolved unanimously to recommend that the shareholders of the
Company tender their shares to the Purchaser pursuant to the Offer.
Early on the morning of September 21, 1998, Parent, Purchaser and the
Company entered into the Merger Agreement, the Company and Parent entered into
the Stock Option Agreement, and Parent, Purchaser and the Company's officers and
directors entered into the Shareholders Agreement. The parties announced the
transaction later that morning pursuant to a joint press release.
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SECTION 11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY
Purpose. The purpose of the Offer and the Merger is to enable the
Parent to acquire control of, and the entire equity interest in, the Company.
The Offer, as the first step in the acquisition of the Company, is intended to
facilitate the acquisition of all the Shares. The purpose of the Merger is to
acquire all Shares not purchased pursuant to the Offer or otherwise. Pursuant to
the Merger, each then outstanding Share (other than Shares owned by the Parent
or any of its subsidiaries) will be converted into the right to receive an
amount in cash equal to the price per Share paid by the Purchaser pursuant to
the Offer. Although it is the Purchaser's intention to consummate the Merger as
promptly as practicable, there can be no assurance that the Merger will be
consummated or, if consummated, of the timing thereof. In addition to approval
by the Company's Board of Directors, which occurred on September 20, 1998,
consummation of the Merger will require the affirmative vote of the holders of
at least 67% of the Shares. Alternatively, if the Purchaser purchases 90% or
more of the Shares, the Merger could be consummated without the approval of the
shareholders through a "short form" merger (described below in Section 12).
Plans for the Company. The Parent intends, upon acquiring control of
the Company, to continue its review and evaluation of the Company and its
subsidiaries and their respective assets, businesses, corporate structure,
capitalization, operations, properties, policies, management and personnel.
Generally, the Parent intends to integrate the Company's business with
the Parent's existing operations, with a view to achieving operating
efficiencies and cost savings while maintaining and enhancing customer service.
After the Parent conducts its review of the Company, it is possible that the
Parent might modify its current plans.
SECTION 12. THE MERGER
The Merger Agreement. The following is a summary of the Merger
Agreement. The summary is qualified in its entirety by reference to the Merger
Agreement, which has been filed as an exhibit to the Schedule 14D-1 and is
incorporated herein by reference.
The Tender Offer. Pursuant to the terms of the Merger
Agreement, the Purchaser has agreed to, and the Parent has agreed to
cause the Purchaser to, offer to purchase each outstanding Share of the
Company tendered pursuant to the Offer at a price of $5.40 per share,
net to the seller in cash, and to cause the Offer to remain open for
twenty business days (until October 23, 1998). If all of the Offer
Conditions are not satisfied on the Expiration Date then, provided that
Purchaser determines that all Offer Conditions are reasonably capable
of being satisfied and subject to SEC rules with respect to extension
of time periods, Purchaser may extend the Offer from time to time until
all Offer Conditions have been satisfied or waived. The Merger
Agreement also requires the Purchaser, upon the Expiration Date, as the
same may be extended, if
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all Offer Conditions have been satisfied, to accept Shares properly
tendered for purchase, subject to the Purchaser's right to extend the
Offer not more than ten (10) business days in the aggregate if less
than 90% of the Shares have been properly tendered, such 90% to be
calculated after giving effect to the conversion of any securities
convertible into Common Stock, and the exercise of any options,
warrants or other rights to acquire Common Stock.
The Company has agreed to include in its Tender Offer
Solicitation/Recommendation Statement filed with the Commission on
Schedule 14D-9 a recommendation by the Company's Board of Directors
that the Company's shareholders accept the Offer and tender their
Shares pursuant to the Offer. The Company's Board of Directors has
resolved to recommend that the Company's shareholders accept the Offer
and tender their Shares pursuant to the Offer and has received an
opinion from Dain Rauscher Wessels ("DRW") that, as of the date of such
opinion, the consideration to be received by the shareholders of the
Company pursuant to the Offer and the Merger is fair to such
shareholders from a financial point of view.
Board Designees. The Merger Agreement provides that promptly
following the purchase by the Purchaser pursuant to the Offer of that
number of Shares which, when aggregated with the Shares then owned by
the Parent and any of its affiliates, represents at least a majority of
the Shares then outstanding on a fully diluted basis, the Company will,
if requested by the Purchaser or the Parent, take all actions necessary
to cause persons designated by the Purchaser to become directors of the
Company so that the total number of directors so designated equals the
product, rounded up to the next whole number, of (i) the total number
of directors of the Company multiplied by (ii)the ratio of the number
of Shares beneficially owned by the Purchaser or its affiliates at the
time of such purchase over the number of Shares then outstanding. In
furtherance thereof, the Company will take whatever action is
necessary, including, but not limited to, amending the Company's bylaws
to increase the size of its Board of Directors, or using reasonable
efforts to secure the resignation of directors, or both, as is
necessary to permit that number of the Purchaser's designees to be
elected to the Company's Board of Directors; provided that, prior to
the Effective Time (as defined below), the Company's Board of Directors
will always have at least two members who are not officers, designees,
shareholders, or affiliates of the Purchaser (the "Independent
Directors"). All of the Independent Directors will be individuals who
are currently directors of the Company, except to the extent that no
such individuals wish to be directors. The Company's obligations to
appoint designees to its Board of Directors will be subject to Section
14(f)of the Exchange Act and Rule 14f-1 promulgated thereunder. The
Parent and the Purchaser will supply to the Company and will be solely
responsible for any information with respect to either of them and
their nominees, officers, directors, and affiliates required by Section
14(f) and Rule 14f-1. The Company will promptly take all actions
required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill
these obligations and (provided that the Purchaser shall have provided
to the Company on a timely basis all information required to be
included in the Information Statement with respect to the Purchaser's
designees) will include in the Schedule 14D-9
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such information with respect to the Company and its officers and
directors as is required under Section 14(f) and Rule 14f-1. Following
the election or appointment of the Purchaser's designees, any amendment
to the Merger Agreement, any termination of the Merger Agreement by the
Company, any extension by the Company of the time for the performance
of any of the obligations of the Purchaser or the Parent under the
Merger Agreement, any recommendation to shareholders or any
modification or withdrawal of any such recommendation, the retention of
counsel and other advisors in connection with the transactions
contemplated hereby, or any waiver of any of the Company's rights under
the Merger Agreement will require the concurrence of a majority of the
Independent Directors, unless no individuals who are currently
directors of the Company wish to be directors.
The Merger. Pursuant to the terms of the Merger Agreement, the
Purchaser will be merged with and into the Company in accordance with
the Texas Business Corporation Act (the "TBCA"). As a result, the
separate existence of the Purchaser will cease and the Company will be
the surviving corporation (the "Surviving Corporation"). As soon as
practicable after satisfaction or waiver of all conditions to the
Merger set forth in the Merger Agreement, the parties will cause
articles of merger to be duly filed with the Secretary of State of the
State of Texas. The Merger will become effective when the articles of
merger are so filed and the Secretary of State of the State of Texas
issues a certificate of merger (the "Effective Time").
By virtue of the Merger, at the Effective Time: (i) each share
of common stock of the Purchaser then issued and outstanding will be
converted into one share of the Surviving Corporation; and (ii) each
share then issued and outstanding, except for Shares held by the
Company as treasury shares or owned by the Parent or any subsidiary of
the Parent (which Shares will be immediately canceled and no payment
will be made with respect thereto) will be converted into the right to
receive, without interest, an amount in cash equal to the price per
Share paid in the Offer (the "Merger Consideration"). Subject to the
right of shareholders to dissent from the Merger and require appraisal
of their Shares pursuant to the TBCA, from and after the Effective Time
all Shares will be canceled and retired and cease to exist and each
holder of a certificate representing any Shares immediately prior to
the Effective Time will thereafter cease to have any rights with
respect to such Shares, except the right to receive the Merger
Consideration therefor.
Until amended in accordance with applicable law, the articles
of incorporation and bylaws of the Purchaser in effect immediately
prior to the Effective Time will be the articles of incorporation and
bylaws of the Surviving Corporation after the consummation of the
Merger. Until successors are duly elected or appointed and qualified in
accordance with applicable law, from and after the Effective Time, the
directors and officers of the Purchaser immediately prior to the
Effective Time will be the directors and officers of the Surviving
Corporation after the consummation of the Merger.
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Stock Options. The Board of Directors of the Company (or, if
appropriate, any committee administering the Stock Option Plans (as
defined below)) shall adopt such resolutions or take such other actions
as are required to provide that (i) each outstanding stock option or
warrant to purchase shares of Company Stock (a "Stock Option")
heretofore granted under any employee stock option plan, stock option
or warrant plan for directors, or other incentive plan of the Company
(collectively, the "Stock Option Plans") outstanding immediately prior
to the consummation of the Offer, whether or not then exercisable,
shall be canceled immediately prior to the consummation of the Offer in
exchange for an amount in cash, payable at the time of such
cancellation, equal to the product of (y) the number of shares of
Company Stock subject to such Stock Option immediately prior to the
consummation of the Offer and (z) the excess of the price per share to
be paid in the Offer over the per share exercise price of such Stock
Option. All Stock Option Plans shall terminate as of the Effective Time
and the provisions in any other Company Benefit Arrangement (as defined
in the Merger Agreement) providing for the issuance, transfer or grant
of any capital stock of the Company or any interest in respect of any
capital stock of the Company shall be deleted as of the Effective Time,
and the Company shall ensure that following the Effective Time no
holder of a Stock Option or any participant in any Stock Option Plan
shall have any right thereunder to acquire any capital stock of the
Company, Parent or the Surviving Corporation.
Representations and Warranties of the Company. In the Merger
Agreement, the Company has made customary representations and
warranties to the Purchaser and the Parent, including, but not limited
to, representations and warranties relating to the following: the
organization and qualifications of the Company and its subsidiaries;
the authority of the Company to enter into and perform its obligations
under the Merger Agreement and carry out the related transactions;
required consents and approvals; the capitalization of the Company and
its subsidiaries; filings made by the Company with the Commission; the
accuracy of the Company's consolidated financial statements; the
absence of certain changes or developments since March 31, 1998;
litigation; necessary permits; product warranties and liabilities;
labor and employee benefit matters; taxes; FDA; intellectual property
rights; environmental matters; finders and investment bankers;
insurance; indemnification; board approval and recommendation;
shareholder approval; the opinion of its financial advisor; state
takeover statutes; documents supplied, filed or distributed by the
Company relating to the Offer; the Company's Rights Agreement; and real
and personal property.
Representations and Warranties of the Parent and the
Purchaser. The Parent and the Purchaser have also made customary
representations and warranties in the Merger Agreement, including, but
not limited to, representations and warranties relating to the
following: the incorporation of the Parent and the Purchaser; the
authority of each of the Parent and the Purchaser to enter into and
perform its obligations under the Merger Agreement and consummate the
related transactions; government approvals; filings made by the Parent
with the Commission; the accuracy of the Parent's consolidated
financial statements; litigation; shareholder approval;
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availability of sufficient funds to consummate the Offer; documents
supplied, filed or distributed by the Parent or the Purchaser relating
to the Offer; finders and investment bankers; and board approval.
Additional Agreements of the Company. In the Merger Agreement,
the Company has agreed that, except as contemplated or permitted by the
Merger Agreement or specifically disclosed in the schedules thereto, or
as otherwise approved in writing by the Parent, from the date of the
Merger Agreement until the time that the designees of the Purchaser
have been appointed to the Board of Directors of the Company, the
Company will conduct, and will cause its subsidiaries to conduct, their
respective businesses in the ordinary course consistent with past
practice. Throughout this same period of time (i)the Company will not
adopt or approve any change or amendment in its articles of
incorporation or bylaws; (ii)the Company will not, and will not permit
any of its subsidiaries to, merge, consolidate, or enter into a share
exchange with any other individual, corporation, partnership,
association, trust or other entity or organization, including a
government or political subdivision or any agency or instrumentality
thereof (a "Person"), sell, lease, license, mortgage, pledge or
otherwise dispose of any material assets, except (a) in the ordinary
course consistent with past practice or (b) transfers between the
Company and/or its wholly owned subsidiaries; (iii) the Company will
not declare, set aside, or pay any dividends or make any distributions
in respect of the Shares; (iv) the Company will not, and will not
permit any of its subsidiaries to, (a) issue, deliver, sell, encumber,
or authorize or propose the issuance, delivery, sale, or encumbrance
of, any capital stock or other securities of the Company or any capital
stock or other securities of its subsidiaries ("Company Subsidiary
Securities"), other than pursuant to the Company's Rights Agreement,
dated as of September 5, 1989, as amended, (the "Company Rights
Agreement"), and the issuance of Shares pursuant to the Parent Stock
Option for Company Options granted prior to the date hereof, (b) split,
combine, or reclassify any Shares or Company Subsidiary Securities, (c)
repurchase, redeem, or otherwise acquire any capital stock or other
voting securities of the Company or any voting Company Subsidiary
Securities, or (d) amend the terms of any outstanding voting
securities; (v) the Company will not, without the prior written consent
of the Parent, which consent shall not be unreasonably withheld or
delayed, make any commitment or enter into any contract or agreement
that is reasonably likely to be, individually or in the aggregate,
material to the Company and its subsidiaries taken as a whole except in
the ordinary course of business consistent with past practices; (vi)
except to the extent required by law or by existing written agreements
or plans disclosed in Company reports to the Commission or the Company
disclosure schedule, neither the Company nor any of its subsidiaries
will increase in any manner the compensation or fringe benefits of any
of its directors or officers (other than increases in the ordinary
course of business in the compensation or fringe benefits of any
officers who are not executive officers), pay any pension or retirement
allowance to any such director or officer, become a party to, amend, or
commit itself to any pension, retirement, profit-sharing,
welfare-benefit plan, or employment agreement with or for the benefit
of any such director or officer, or grant any severance or termination
pay or stay-in-place bonus to any such director or officer, or increase
the
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benefits payable under any existing severance or termination pay or
stay-in-place bonus policies; (vii) the Company will not, and will not
permit any of its subsidiaries to, make any material tax election or
settle or compromise any material federal, state, local or foreign tax
liability; and (viii) the Company will not agree to do any of the
foregoing.
In the Merger Agreement, the Company has further agreed that,
from the date of the Merger Agreement until the Effective Time, it will
not, and will use its best efforts to cause its subsidiaries and the
officers, directors, employees, and agents of the Company and its
subsidiaries not to, directly or indirectly, (i) take any action to
solicit, to initiate, or knowingly to encourage any good faith offer or
proposal for (x) a merger or other business combination involving the
Company or any of its subsidiaries and any Person (other than the
Parent, the Purchaser, or any subsidiary of either the Parent or the
Purchaser), (y) an acquisition by any Person (other than the Parent,
the Purchaser, or any subsidiary of either the Parent or the Purchaser)
of assets or earning power of the Company or any of its subsidiaries,
in one or more transactions, representing 25% or more of the
consolidated assets or earning power of the Company and its
subsidiaries, or (z) an acquisition by any Person (other than the
Parent, the Purchaser, or any subsidiary of either the Parent or the
Purchaser) of securities representing 20% or more of the voting power
of the Company or any of its subsidiaries (any of the events in (x),
(y) and (z) being a "Company Acquisition Proposal"), (ii) take any
action knowingly to facilitate (including, without limitation, amending
the Company Rights Agreement or redeeming the rights issued thereunder)
any Company Acquisition Proposal; (iii) engage or participate in
discussions or negotiations, or enter into agreements, with any Person
with respect to a Company Acquisition Proposal, or (iv) in connection
with a Company Acquisition Proposal, disclose any nonpublic information
relating to the Company or any of its subsidiaries or afford access to
the properties, books, or records of the Company or any of its
subsidiaries to any Person, except that the Company may take action
described in clause (ii), (iii), or (iv) if (A) such action is taken in
connection with an unsolicited Company Acquisition Proposal, (B) the
failure to take such action would not be consistent with the fiduciary
duties of the Board of Directors under applicable law (as advised by
legal counsel to the Company), and (C) in the case of the disclosure of
nonpublic information relating to the Company or any of its
subsidiaries in connection with a Company Acquisition Proposal.
Neither the Board of Directors of the Company nor any
committee thereof shall (i) withdraw or modify, or propose to withdraw
or modify, in a manner adverse to the Parent, the approval or
recommendation by such Board of Directors or such committee of the
Offer, the Merger, or the Merger Agreement, (ii) approve or recommend,
or propose publicly to approve or recommend, any Company Acquisition
Proposal, or (iii) cause the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or other similar
agreement (each, an "Acquisition Agreement") related to any Company
Acquisition Proposal, except that, in any case set forth in clause (i),
(ii), or (iii) above, prior to the acceptance for payment of Shares
pursuant to the Offer, the Board of Directors of the Company may, in
response to an unsolicited Company
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Acquisition Proposal, (A) withdraw or modify its approval or
recommendation of the Offer, the Merger, or the Merger Agreement or (B)
approve or recommend any such Company Acquisition Proposal if, in the
case of any action described in clause (A) or (B), the failure to take
such action would not be consistent with the fiduciary duties of the
Board of Directors under applicable law (as advised by legal counsel to
the Company) and, in the case of the actions described in clause (B),
concurrently with such approval or recommendation the Company
terminates the Merger Agreement and promptly thereafter enters into an
Acquisition Agreement with respect to a Company Acquisition Proposal.
Merger Meeting; Proxy Statement. The Merger will be
consummated as soon as practicable after the purchase of Shares
pursuant to the Offer. If Purchaser is able to do so under the TBCA it
will consummate the Merger pursuant to the "short form" merger
provisions of the TBCA. If required by the TBCA in order to consummate
the Merger, as soon as practicable following the purchase of Shares
pursuant to the Offer, the Company will take all action necessary in
accordance with the TBCA and with the Company's articles of
incorporation and bylaws to convene a meeting of its shareholders to
approve the Merger and adopt the Merger Agreement (the "Merger
Meeting"). The Company's Board of Directors will recommend that the
Company's shareholders approve the Merger and adopt the Merger
Agreement, and will cause the Company to use all reasonable efforts to
solicit from the shareholders proxies to vote therefor, unless (i) such
recommendation would not be consistent with the fiduciary duties of the
Board of Directors under applicable law (as advised by legal counsel to
the Company) or (ii) the Merger Agreement is terminated in accordance
with its terms. The Company will, if required by law for the
consummation of the Merger, prepare and file with the Commission
preliminary proxy materials relating to the approval of the Merger and
the adoption of the Merger Agreement by the Company's shareholders, and
will file with the Commission revised preliminary proxy materials, if
appropriate, and definitive proxy materials in a timely manner as
required by the rules and regulations of the Commission. Except as
otherwise provided in clauses (i) and (ii) of this paragraph, the proxy
materials relating to the Merger Meeting will include the
recommendation of the Company's Board of Directors. The Parent will
vote, or cause to be voted, all Shares beneficially owned by it in
favor of the Merger.
Covenants of the Parent and the Purchaser. The Parent will use
all reasonable efforts to, without any lapse in coverage, either (i)
for at least four years after the Effective Time, provide directors'
and officers' liability insurance ("D&O Insurance") in respect of acts
or omissions occurring at or prior to the Effective Time covering each
such Person currently covered by the Company's D&O Insurance policy on
terms with respect to coverage and amount no less favorable than those
of such policy in effect on the date of the Merger Agreement; provided
that the Parent will not be required to pay per annum more than the
last premium (annualized) paid by the Company for such policy prior to
the date of the Merger Agreement, (ii) purchase tail insurance in
respect of the Company's existing D&O Insurance for four years for a
premium not to exceed the amount of the customary premium for such tail
insurance, or (iii) if such D&O
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Insurance or tail insurance is only available at premiums in excess of
the premiums set forth in clauses (i) or (ii), as applicable, then
purchase the highest level of D&O Insurance or tail insurance available
at such applicable premium.
Covenants of the Company, the Parent and the Purchaser.
Subject to the terms and conditions of the Merger Agreement, the
Company, the Parent and the Purchaser agree to use their best efforts
to take all actions and to do all things necessary or advisable under
applicable laws and regulations to consummate the transactions
contemplated by the Merger Agreement as promptly as practicable. If any
"fair price," "moratorium," or other similar statute or regulation
becomes applicable to the transactions contemplated by the Merger
Agreement, each of the parties and, subject to applicable fiduciary
duties, their respective Boards of Directors will use all reasonable
efforts to grant such approvals and take such actions as are necessary
so that the transactions contemplated by the Merger Agreement may be
consummated as promptly as practicable on the terms contemplated
thereby and otherwise act to minimize the effects of such statute or
regulation on the transactions contemplated by the Merger Agreement.
Conditions to the Merger. The obligations of the Company, the
Parent and the Purchaser to consummate the Merger are subject to the
satisfaction of the following conditions: (i) if required by applicable
law, the Merger has been approved, and the Merger Agreement has been
adopted, by the requisite vote of the Company's shareholders; (ii) the
Purchaser shall have purchased all validly tendered and not properly
withdrawn Shares in accordance with the Offer; and (iii) no provision
of any applicable domestic law or regulation and no judgment,
injunction, order or decree of a court or governmental agency or
authority of competent jurisdiction is in effect that has the effect of
making the Offer or the Merger illegal or otherwise restrains or
prohibits the purchase of Shares pursuant to the Offer or the
consummation of the Merger. The obligations of the Parent and the
Purchaser to consummate the Merger are further subject to satisfaction
or waiver of the following conditions: consummation of the Offer;
compliance by the Company with its obligation to cause persons
designated by the Parent to become directors of the Company in
accordance with the Merger Agreement; and the exercise of dissenters'
rights by Company Shareholders with respect to 10% or less of the
Shares.
Termination. The Merger Agreement may be terminated and the
Offer and the Merger may be abandoned at any time prior to the
Effective Time, notwithstanding any prior approval of the Merger and
adoption of the Merger Agreement by the Company's shareholders, (i) by
the mutual written consent of the Company, the Parent, and the
Purchaser; (ii) by either the Company or the Parent if the Merger has
not been consummated by March 30, 1999, provided that such right of
termination will not be available to any party that, at the time of
termination, is in material breach of any of its obligations under the
Merger Agreement; (iii) by either the Company or the Parent if any
applicable domestic law, rule, or regulation makes consummation of the
Merger illegal or if any judgment, injunction, order, or decree of a
court or governmental
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agency or authority of competent jurisdiction restrains or prohibits
the consummation of the Offer or Merger and such judgment, injunction,
order, or decree has become final and nonappealable; (iv) by either the
Company or the Parent if the requisite vote of the Company's
shareholders approving the Merger and adopting the Merger Agreement has
not been obtained at the Merger Meeting; provided that the right to so
terminate the Merger Agreement will not be available to the Parent if
it has not voted, or caused to be voted, all Shares beneficially owned
by it in favor of the Merger; (v) by either the Company or the Parent
if the Offer terminates without the purchase of Shares thereunder;
provided that the right to so terminate the Merger Agreement shall not
be available to (i) the Parent, if the Purchaser shall have breached
its obligations to conduct the tender offer in accordance with the
terms of the Merger Agreement, or (ii) any party whose willful failure
to perform any of its obligations under the Merger Agreement results in
the failure of any of the Offer Conditions or if the failure of any
such Offer Conditions results from facts or circumstances that
constitute a material breach of the representations or warranties of
such party under the Merger Agreement; or (vi) by the Company if the
Company receives an unsolicited Company Acquisition Proposal that the
Board of Directors determines in good faith, after consultation with
its legal and financial advisors, is likely to lead to a merger,
acquisition, consolidation, or similar transaction that is more
favorable to the shareholders of the Company than the transactions
contemplated by the Merger Agreement; provided that the Company has
given the Parent at least five business days notice of the material
terms of such Company Acquisition Proposal and such termination shall
not be effective until the Company has paid the Termination Fee (as
defined below), if and to the extent required under the terms of the
Merger Agreement.
In the event of any such termination of the Merger Agreement
and abandonment of the Offer and the Merger, no party to the Merger
Agreement (or any of its directors, officers, employees, agents, or
advisors) will have any liability or further obligation to any other
party to the Merger Agreement except (i) for obligations of the Company
to pay, under circumstances described below, the Termination Fee and
certain expenses of the Parent and the Purchaser, (ii) for obligations
arising out of the applicability of the Confidentiality Agreement to
information provided pursuant to the Merger Agreement, and (iii) for
liability for any breach of covenants or agreements of the Merger
Agreement.
Fees and Expenses. The Merger Agreement provides that, except
as set forth below, all costs and expenses incurred in connection with
the Merger Agreement will be paid by the party incurring the costs and
expenses.
Pursuant to the Merger Agreement, if (i) the Merger Agreement
is terminated by the Company because the Company receives an
unsolicited Company Acquisition Proposal that the Board of Directors of
the Company determines in good faith, after consultation with its legal
and financial advisors, is likely to lead to a merger, acquisition,
consolidation, or similar transaction that is more favorable to the
shareholders of the Company than the Merger, (ii) any Person publicly
makes a
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Company Acquisition Proposal and thereafter the Merger Agreement is
terminated because an insufficient number of Shares are tendered in the
Offer, or (iii) any Person publicly makes a Company Acquisition
Proposal and thereafter the Merger Agreement is terminated, prior to
the purchase of Shares by the Purchaser pursuant to the Offer, by the
Parent because (a) the Company has violated its obligations under the
terms of the Merger Agreement with respect to Company Acquisition
Proposals in any material respects and a Company Acquisition Proposal
was made by any Person after such violation or (b) the Board of
Directors of the Company did not publicly recommend in the Schedule
14D-9 that the Company's shareholders accept the Offer and tender their
Shares pursuant to the Offer and approve the Merger and adopt the
Merger Agreement, or the Board of Directors of the Company withdrew,
modified, or changed such recommendation in any manner materially
adverse to the Parent, then the Company will reimburse the Parent and
the Purchaser for up to $500,000 of the reasonable documented
out-of-pocket expenses and fees actually incurred by the Parent and the
Purchaser in connection with the transactions contemplated by the
Merger Agreement prior to the termination of the Merger Agreement,
including, without limitation, all reasonable fees and expenses of
counsel, financial advisors, accountants, and environmental and other
experts and consultants to the Parent and the Purchaser ("Transaction
Costs").
If (x) the Merger Agreement is terminated by the Company as
set forth in clause (i) of the immediately preceding paragraph, (y) any
Person publicly makes a Company Acquisition Proposal, thereafter the
Merger Agreement is terminated as set forth in clause (ii) of the
immediately preceding paragraph, and within 12 months after termination
the Company agrees to or consummates any Company Acquisition Proposal,
or (z) any Person publicly makes a Company Acquisition Proposal and
thereafter the Merger Agreement is terminated as set forth in clause
(iii) of the immediately preceding paragraph, then, in addition to
reimbursing the Parent and the Purchaser for their Transaction Costs,
the Company has agreed to pay the Parent a fee of $1,250,000 (the
"Termination Fee").
Waiver and Amendment. Subject to applicable law and the terms
of the Merger Agreement, any provision of the Merger Agreement may be
amended or waived prior to the Effective Time if, and only if, such
amendment or waiver is in writing and duly executed and delivered, in
the case of an amendment, by each of the parties to the Merger
Agreement or, in the case of a waiver, by the party against whom the
waiver is to be effective.
Required Vote. In general, under Texas law, the Merger requires the
approval of the Company's Board of Directors and the approval by the holders of
two-thirds of all outstanding Shares.
Accordingly, if the Purchaser acquires more than two-thirds of the
outstanding Shares pursuant to the Offer, the Purchaser would have the voting
power to approve the Merger without the vote of any other shareholders and could
effect the Merger by so voting and by
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action of the Board of Directors of the Purchaser, the Company's Board of
Directors having already approved the Merger on September 20, 1998. This will be
the case if the Minimum Condition is satisfied. In the Merger Agreement, the
Purchaser has agreed to vote in favor of the Merger all of the Shares purchased
in the Offer.
Further, Texas law provides that, if a parent corporation owns 90% or
more of each class of outstanding shares of a subsidiary, the parent corporation
may merge the subsidiary into itself, or merge itself into the subsidiary, by
action of the board of directors of the parent corporation and without action or
vote by the shareholders of either corporation. Accordingly, if the Purchaser
owns 90% or more of the outstanding Shares after consummation of the Offer, a
"short form" merger could be effected by action of the Purchaser's Board of
Directors and without the approval of the Company's shareholders.
Dividends and Distributions. The Company has agreed that, from the date
of the Merger Agreement until the time that the designees of the Purchaser have
been appointed to the Board of Directors of the Company, the Company will not
declare, set aside, or pay any dividends or make any distributions on the
Shares.
Appraisal Rights. Shareholders do not have appraisal rights as a result
of the Offer. However, if the Merger is consummated, shareholders of the Company
at the time of the Merger who comply with all statutory requirements and do not
vote in favor of the Merger will have the right under the TBCA to demand an
appraisal of, and receive payment in cash of the fair value of, their Shares
outstanding immediately prior to the Effective Time in accordance with Article
5.13 of the TBCA.
Under the TBCA, shareholders who properly demand appraisal and
otherwise comply with the applicable statutory procedures will be entitled to
receive a judicial determination of the fair value of their Shares (exclusive of
any element of value arising from the accomplishment or expectation of the
Merger) and to receive payment of such fair value in cash. Any such judicial
determination of the fair value of such Shares could be based upon
considerations other than or in addition to the price paid in the Offer and the
Merger and the market price of the Shares.
THE FOREGOING SUMMARY OF THE RIGHTS OF SHAREHOLDERS DOES NOT PURPORT TO
BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY SHAREHOLDERS
DESIRING TO EXERCISE ANY AVAILABLE APPRAISAL RIGHTS. THE PRESERVATION AND
EXERCISE OF APPRAISAL RIGHTS REQUIRE STRICT ADHERENCE TO THE APPLICABLE
PROVISIONS OF TEXAS LAW.
"Going Private" Transactions. The Commission has adopted Rule 13e-3
under the Exchange Act which is applicable to certain "going private"
transactions and which may under certain circumstances apply to the Merger.
However, Rule 13e-3 would not apply to the Merger if (i) the Shares are
deregistered under the Exchange Act prior to the Merger or other business
combination or (ii) the Merger or other business combination is consummated
within
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one year after the purchase of the Shares pursuant to the Offer and the amount
paid per Share in the Merger or other business combination is at least equal to
the amount paid per Share in the Offer. If applicable, Rule 13e-3 requires,
among other things, that certain financial information concerning the fairness
of the proposed transaction and the consideration offered to minority
shareholders in such transaction be filed with the SEC and disclosed to
shareholders prior to the consummation of the transaction.
SECTION 13. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term or provision of the Offer, the Purchaser
will not be required to accept for payment or, subject to any applicable rules
and regulations of the Commission, including Rule 14e-1(c) under the Exchange
Act (relating to a bidder's obligation to pay for or return tendered shares
after the termination or withdrawal of the Offer), to pay for any Shares not
theretofore accepted for payment or paid for pursuant to the Offer, if (1) there
are not validly tendered and not properly withdrawn prior to the expiration of
the Offer that number of Shares which, when aggregated with the Shares then
owned by the Parent and any of its affiliates, represents at least 67% of the
Shares then outstanding on a fully diluted basis (the "Minimum Condition") or
(2) at any time on or after the date of the Merger Agreement and at or before
the time that any Shares are accepted for payment any of the following
conditions exist:
(a) Any provision of any applicable domestic law or
regulation, or any judgment, injunction, order, or decree of a court or
governmental agency or authority of competent jurisdiction, is in
effect that (i) makes the Offer or the Merger illegal or otherwise,
directly or indirectly or prohibits or materially restrains the making
of the Offer, the acceptance for payment of, payment for, or ownership,
directly or indirectly, of some or all of the shares of Company Stock
by Purchaser or Parent, (ii) prohibits or materially limits the
ownership or operation by the Company or any of its Subsidiaries that
owns a material portion of the business and assets of the Company and
its Subsidiaries, taken as a whole, or by Parent, Purchaser, or any
Subsidiaries of Parent of all or a material portion of the business or
assets of the Company and its Subsidiaries, taken as a whole, or of
Parent and its Subsidiaries, taken as a whole, as a result of the
Offer, the Merger, or the other transactions contemplated by the
Agreement, or (iii) imposes material limitations on the ability of
Purchase or Parent to acquire, hold, or exercise full rights of
ownership of the shares of Company Stock, including but not limited to
the right to vote any shares of Company Stock acquired or owned by
Purchaser or Parent on all matters properly presented to the
stockholders of the Company, including but not limited to the approval
of the Agreement and approval of the Merger and the right to vote any
shares of capital stock of any Subsidiaries of the Company (other than
immaterial Subsidiaries), or would impose any such limitations with
respect to the Common Stock of the Surviving Corporation after the
Merger.
(b) Any consents, authorizations, orders, and approvals of, or
filings or registrations with, any governmental commission, board, or
other regulatory body
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required in connection with the execution, delivery, and performance of
the Agreement has not been obtained or made, except (i) the filing of
appropriate articles of merger in accordance with applicable law,
including Texas Law, (ii) compliance with applicable requirements of
the Exchange Act, and (iii) where Parent reasonably concludes that the
failure to obtain or make any such consent, authorization, order,
approval, filing, or registration (A) is not likely to have,
individually or in the aggregate, a material adverse effect on the
financial condition, results of operations, or business of the Company
and its Subsidiaries before or after the Merger, taken as a whole (a
"Company Material Adverse Effect"), or on the financial condition,
results of operations, or business of Parent and Purchaser before or
after the Merger, taken as a whole (a "Parent Material Adverse
Effect"), and (B) would not render the Offer or the Merger illegal or
provide a reasonable basis to conclude that the parties or their
affiliates or any of their respective directors or officers will be
subject to a risk of criminal liability.
(c) Any Third Party Consents have not been obtained except
where Parent reasonably concludes that the failure to obtain any Third
Party Consents is not likely to have, individually or in the aggregate,
a Company Material Adverse Effect.
(d) The Company has failed to perform in any material respect
any of its agreements, covenants, or other obligations to be performed
by it under the Agreement at or prior to such time, or any
representations and warranties of the Company contained in the
Agreement are not true in any material respect at such time as if made
at and as of such time (unless the representation or warranty is made
as of a specified date, in which case such representation or warranty
is not true as of such date). For purposes of determining whether this
condition has been satisfied, all qualifications in the representations
and warranties as to the knowledge of the Company will be disregarded.
(e) There shall have occurred any event or any development
that, insofar as reasonably can be foreseen, is reasonably likely to
result in a Company Material Adverse Effect.
(f) There shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the United States, (ii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in
the United States, (iii) any limitation (whether or not mandatory) by
any U.S. government or governmental, administrative or regulatory
authority or agency, on, or any other event that materially adversely
affects, the extension of credit by banks or other lending
institutions, (iv) a commencement or a war or armed hostilities or
other national or international calamity directly or indirectly
involving the United States which would reasonably be expected to have
a Company Material Adverse Effect, a Parent Material Adverse Effect or
materially adversely affect (or materially delay) the consummation of
the Offer or (v) in the case of any of the
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foregoing existing at the time of the execution of the Agreement, a
material acceleration or worsening thereof which acceleration of
worsening is reasonably expected to have a Company Material Adverse
Effect, a Parent Material Adverse Effect or to materially adversely
affect the consummation of the Offer.
(g) It shall have been publicly disclosed that beneficial
ownership (determined for the purposes of this paragraph as set forth
in Rule 13d-3 promulgated under the Exchange Act) of 20% or more the
Company Stock, before any potential dilution related to such beneficial
ownership, has been acquired by any corporation (including the Company
or any of its subsidiaries or affiliates), partnership, person or other
entity or group (as defined in Section 13(d)(3) of the Exchange Act),
other than Parent or any of its affiliates, or (ii) (A) the Board of
Directors of the Company or any committee thereof shall have withdrawn
or modified in a manner adverse to Parent or Merger Sub the approval or
recommendation of the Offer, the Merger or the Agreement and, within
ten business days of taking and disclosing to its stockholders the
aforementioned position, shall not have publicly reconfirmed its
recommendation of the Offer, the Merger or the Agreement; (B) the Board
of Directors of the Company or any committee thereof shall have
approved or recommended any takeover proposal or any other acquisition
of Company Stock other than the Offer and the Merger; (C) any such
corporation, partnership, person or other entity or group shall have
entered into a definitive agreement or an agreement in principle with
the Company with respect to a tender offer or exchange offer for any
Company Stock or a merger, consolidation or other business combination
with or involving the Company or any of its Subsidiaries or (D) the
Board of Directors of the Company or any committee thereof shall have
resolved to do any of the foregoing.
(h) The Agreement has been terminated in accordance with
its terms.
The foregoing conditions are for the sole benefit of the Purchaser and
the Parent and may be waived by the Purchaser in whole or in part at any time
and from time to time in its sole discretion. The failure by the Purchaser at
any time to exercise any of the foregoing rights will not be deemed a waiver of
any such right, the waiver of any such right with respect to particular facts
and circumstances will not be deemed a waiver with respect to any other facts
and circumstances and each such right will be deemed an ongoing right that may
be asserted at any time and from time to time.
SECTION 14. CERTAIN LEGAL MATTERS
General. Except as otherwise disclosed herein, based on information
furnished by the Company or filed by the Company with the Commission, neither
the Purchaser nor the Parent is aware of (i) any license or regulatory permit
that appears to be material to the business of the Company and its subsidiaries,
taken as a whole, that might be adversely affected by the acquisition of Shares
by the Purchaser pursuant to the Offer or the Merger or (ii) any approval
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or other action, by any governmental, administrative or regulatory agency or
authority, domestic, foreign or supranational, that would be required for the
acquisition or ownership of Shares by the Purchaser as contemplated herein. The
Purchaser's obligation under the Offer to accept for payment and pay for Shares
is subject to certain conditions. See Section 13.
Certain State Laws. Article 13.03 of the TBCA provides that, except in
certain circumstances, a Texas corporation may not engage in a "business
combination" with an "interested" shareholder for three years following the date
on which the shareholder became an "interested" shareholder unless, among other
things, prior to such date the board of directors of the corporation approved
either the "business combination" or the transaction that resulted in the
shareholder becoming an "interested" shareholder. If the Minimum Condition is
satisfied, the Purchaser will become an "interested" shareholder of the Company
when it purchases Shares pursuant to the Offer, and the Merger will be a
"business combination." However, the Board of Directors of the Company has
approved both the Offer and the Merger, and, therefore, the Company will not
need to wait for three years before completing the Merger.
The Company, directly or through subsidiaries, conducts business in a
number of states throughout the United States, some of which have enacted
takeover laws. The Purchaser cannot be certain that these laws will not apply to
the Offer and has not complied with any such laws. Should any person seek to
apply any state takeover law, the Purchaser will take such action as it then
deems appropriate, which may include challenging the validity or applicability
of any such statute in appropriate court proceedings. In the event it is
asserted that one or more state takeover laws is applicable to the Offer and the
Merger, and an appropriate court does not determine that it is inapplicable or
invalid as applied to the Offer, the Purchaser might be required to file certain
information with, or receive approvals from, the relevant state authorities. In
addition, if enjoined, the Purchaser might be unable to accept for payment any
Shares tendered pursuant to the Offer, or be delayed in continuing or
consummating the Offer. In such case, the Purchaser may not be obligated to
accept for payment any Shares tendered. See Section 13.
Foreign Approvals. The Company owns property in the Netherlands. In
connection with the acquisition of the Shares pursuant to the Offer, the laws of
the Netherlands may require the filing of information with, or the obtaining of
the approval of, governmental authorities in such countries and jurisdictions.
The government in the Netherlands might attempt to impose additional conditions
on the Company's operations conducted in such countries and jurisdictions as a
result of the acquisition of the Shares pursuant to the Offer or the Merger.
There can be no assurance that the Purchaser will be able to cause the Company
or its subsidiaries to satisfy or comply with such laws or that compliance or
non-compliance will not have adverse consequences for the Company or any
subsidiary after purchase of the Shares pursuant to the Offer or the Merger.
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SECTION 15. FEES AND EXPENSES
TM Capital Corp. is acting as Dealer Manager in connection with the
Offer and serving as exclusive financial advisor to the Parent in connection
with the Offer and the Merger. Pursuant to the terms of Dealer Manager's
engagement, the Parent has agreed to pay Dealer Manager a fee of $430,000 in
connection with the Offer and the Merger. In addition, the Parent has agreed to
reimburse Dealer Manager for its reasonable travel and out-of-pocket expenses,
including, without limitation, fees and disbursements of its counsel, incurred
in connection with the Offer and the Merger or otherwise arising out of Dealer
Manager's engagement, and has also agreed to indemnify Dealer Manager and
certain related parties against certain liabilities and expenses, including,
without limitation, certain liabilities under the federal securities laws,
arising out of Dealer Manager's engagement.
Beacon Hill Partners, Inc. has been retained by the Purchaser as
Information Agent in connection with the Offer. The Information Agent may
contact holders of Shares by mail, telephone, telex, telegraph and personal
interview and may request brokers, dealers and other nominee shareholders to
forward material relating to the Offer to beneficial owners of Shares. The
Purchaser will pay the Information Agent reasonable and customary compensation
for all such services in addition to reimbursing the Information Agent for
reasonable out-of-pocket expenses in connection therewith. The Purchaser has
agreed to indemnify the Information Agent against certain liabilities and
expenses in connection with the Offer, including, without limitation, certain
liabilities incurred by reason of a material misstatement or omission.
Harris Trust Company of New York has been retained as the Depositary.
The Purchaser will pay the Depositary reasonable and customary compensation for
its services in connection with the Offer, will reimburse the Depositary for its
reasonable out-of-pocket expenses in connection therewith and will indemnify the
Depositary against certain liabilities and expenses in connection therewith,
including, without limitation, certain liabilities under the federal securities
laws.
Except as set forth above, neither the Parent nor the Purchaser will
pay any fees or commissions to any broker, dealer or other person for soliciting
tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and
trust companies and other nominees will, upon request, be reimbursed by the
Parent or the Purchaser for customary clerical and mailing expenses incurred by
them in forwarding offering materials to their customers.
SECTION 16. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the securities,
blue sky or other laws of such jurisdiction.
-35-
<PAGE> 39
Neither the Purchaser nor the Parent is aware of any jurisdiction in which the
making of the Offer or the acceptance thereof would not be in compliance with
the laws of such jurisdiction. To the extent the Purchaser or the Parent becomes
aware of any state law that would limit the class of offerees in the Offer, the
Purchaser will amend the Offer and, depending on the timing of such amendment,
if any, will extend the Offer to provide adequate dissemination of such
information to such holders of Shares prior to the expiration of the Offer. In
any jurisdiction the securities, blue sky or other laws of which require the
Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of the Purchaser by the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR THE PARENT NOT CONTAINED HEREIN OR
IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THE PURCHASER AND THE PARENT HAVE FILED WITH THE COMMISSION A TENDER
OFFER STATEMENT ON SCHEDULE 14D-1 PURSUANT TO RULE 14D-3 UNDER THE EXCHANGE ACT,
TOGETHER WITH EXHIBITS, FURNISHING CERTAIN ADDITIONAL INFORMATION WITH RESPECT
TO THE OFFER, AND MAY FILE AMENDMENTS THERETO. SUCH SCHEDULE 14D-1 AND ANY
AMENDMENTS THERETO, INCLUDING EXHIBITS, MAY BE INSPECTED AND COPIES MAY BE
OBTAINED IN THE MANNER SET FORTH IN SECTION 7 WITH RESPECT TO THE COMPANY
(EXCEPT THAT SUCH MATERIAL WILL NOT BE AVAILABLE AT THE REGIONAL OFFICES OF THE
COMMISSION).
GAMMA ACQUISITION CORPORATION
September 25, 1998
-36-
<PAGE> 40
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF THE PARENT AND THE PURCHASER
The Parent. Set forth below are the name, business address and present
principal occupation or employment, and material occupations, positions, offices
or employments for the past five years of each director and executive officer of
the Parent. Except as otherwise noted, the business address of each such person
is 3130 Gateway Drive, Norcross, Georgia 30091, and each such person is a United
States citizen. In addition, except as otherwise noted, each director and
executive officer of the Parent has been employed in his or her present
principal occupation listed below during the last five years. Directors of the
Parent are indicated by an asterisk.
PRINCIPAL OCCUPATION OR EMPLOYMENT,
NAME 5-YEAR EMPLOYMENT HISTORY
Edward L. Gallup Mr. Gallup has been chairman of the Board of
Directors, President and Chief Executive
Officer of Parent since its founding in
1982. Mr. Gallup has worked in the blood
banking business for over 33 years.
Ralph A. Eatz Mr. Eatz, who has been working in the blood
banking reagent field for over 29 years, has
been a director and Vice President-
Operations of the Parent since its founding,
and Senior Vice President-Operations since
December 1988.
Daniel T. McKeithan Mr. McKeithan has been a director of the
Parent since February 28, 1983. Mr.
McKeithan also has 29 years experience in
pharmaceutical and diagnostic products with
Johnson and Johnson, Inc., including Vice
President-manufacturing of the Ortho
Diagnostic Systems division. Mr. McKeithan's
business address is 8539 Via De Los Libros,
Scottsdale, Arizona 85258.
Didier L. Lanson Mr. Lanson has been a director of the Parent
since October 24, 1989. Since September
1992, he has served as Vice President,
Europe, of syStemix International,
subsidiary of syStemix, Inc., a publicly
traded biotechnology company recently
acquired by Novartis Biotech Holding
Corporation, a wholly owned subsidiary of
Novartis Inc., and primarily engaged in the
development of cellular processes and
cellular products. Mr. Lanson is a citizen
of
-1-
<PAGE> 41
France. Mr. Lanson's business address is
1651 Page Mill Road, Palo Alto, California
94305.
Dr. Gioacchino De Chiricio Dr. De Chiricio has been President of
Immucor Italia S.r.l. since February 1994.
From 1989 until 1994, he was employed in the
United States by Ortho Diagnostic Systems,
Inc., a Johnson and Johnson Company, as
General Manager, Immunocytometry, with
worldwide responsibility. Mr. De Chiricio is
a citizen of Italy. Mr. De Chiricio's
business address is 20090 Noverasco Di
Opera, Via Sporting Mirasole, 4, Italy.
G. Bruce Papesh Mr. Papesh is the co-founder of Dart, Papesh
& Co., a Lansing, Michigan based company
that provides investment consulting and
other financial services. He has served as
President of Dart, Papesh & Co. Inc., since
1987. Mr. Papesh has over 27 years of
experience in investment services while
serving in stock broker, consulting and
executive management positions. He provides
investment services to Kenneth B. Dart and
Robert C. Dart and their affiliates. Mr.
Papesh also serves as a Director and as
Secretary of Neogen Corporation, an
agricultural biotechnology company. Mr.
Papesh's business address is 501 South
Capital Avenue, Suite 111, Lansing, Michigan
48933.
Dennis M. Smith, Jr. MD. Dr. Smith has served as Director of the
Parent since April 17, 1998. Dr. Smith is
the Chair of the Section of Pathology and
the Director of Laboratories at Columbia
Memorial Hospital in Jacksonville, Florida.
In addition to these duties, Dr. Smith is a
member of the Board of Directors of Medical
Equity Partners, Jacksonville, Florida, Vice
President of AmeriPath, Inc. Dr. Smith is a
past president of the American Association
of Blood Banks and is currently Chairman of
the Board of Trustees of the National Blood
Foundation. He has over 19 years of
experience in the medical field. Mr. Smith's
business address is 3349 University
Boulevard South, Jacksonville, Florida
32216.
Joseph E. Rosen Mr. Rosen has served as a Director of the
Parent April 20, 1998. Mr. Has been with
Sera-Tec Biologicals since its inception in
1969 and has served as President for the
past 15 years. Mr. Rosen is currently
serving as Chairman of the American Blood
Resources Association. He has over
-2-
<PAGE> 42
25 years of experience in the blood banking
industry. Mr. Rosen's business address is
223 North Center Drive, North Brunswick, New
Jersey 08902.
The Purchaser. The name and position with the Purchaser of each
director and executive officer of the Purchaser are set forth below. The
business address, present principal occupation or employment, five-year
employment history and citizenship of Mr. Gallup is set forth above.
NAME POSITION WITH THE PURCHASER
Edward L. Gallup President, Chief Executive Officer and Sole
Director
Steven C. Ramsey Vice President, Treasurer and Secretary. Mr.
Ramsey has been Chief Financial Officer of
Parent since April, 1998. Prior to joining
Parent, Mr. Ramsey served as Vice President
and Chief Financial Officer of International
Murex Technologies Corporation. Mr. Ramsey's
business address is 3130 Gateway Drive,
Norcross, Georgia 30091.
-3-
<PAGE> 43
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each shareholder of the
Company or such shareholder's broker, dealer, commercial bank, trust company or
other nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
Harris Trust Company of New York
By Mail: By Overnight Courier: By Hand:
Wall Street Station Wall Street Station Receive Window
P.O. Box 1023 88 Pine Street, 19th Floor Wall Street Station
New York, NY 10268-1023 New York, NY 10005 88 Pine Street, 19th Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions
Only)
(212) 706-7636 or 7637
For Information Telephone
(call collect):
(212 701-7624
Questions and requests for assistance may be directed to the
Information Agent or the Dealer Manager at their respective addresses or
telephone numbers set forth below. Additional copies of this Offer to Purchase,
the Letter of Transmittal and all other tender offer materials may be obtained
from the Information Agent as set forth below, and will be furnished promptly at
the Purchaser's expense. You may also contact your broker, dealer, commercial
bank, trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
Beacon Hill Partners, Inc.
90 Broad Street
New York, New York 10004
(212) 843-8500
or
Toll Free (800) 566-9061
The Dealer Manager for the Offer is:
[TM Capital Corp. Logo]
-4-
<PAGE> 44
One Battery Park Plaza, 35th Floor
New York, New York 10004
(212) 809-1360
-5-
<PAGE> 1
Exhibit (a)(3)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
GAMMA BIOLOGICALS, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED SEPTEMBER 25, 1998
BY
GAMMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
IMMUCOR, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON
FRIDAY, OCTOBER 23, 1998, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
Harris Trust Company of New York
By Mail: By Overnight Courier: By Hand:
Wall Street Station Wall Street Plaza Receive Window
P.O. Box 1023 88 Pine Street, 19th Floor Wall Street Plaza
New York, NY 10268-1023 New York, NY 10005 88 Pine Street, 19th Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636 or 7637
For Information Telephone
(call collect):
(212) 701-7624
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER
OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9
PROVIDED BELOW.
-6-
<PAGE> 2
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by shareholders either if
certificates evidencing Shares (as defined below) are to be forwarded herewith
or if delivery of Shares is to be made by book-entry transfer to the
Depositary's account at The Depositary Trust Company ("Book-Entry Transfer
Facility") pursuant to the book-entry transfer procedure described in Section 2
of the Offer to Purchase (as defined below). Delivery of documents to a
Book-Entry Transfer Facility does not constitute delivery to the Depositary.
Shareholders whose certificates evidencing Shares ("Share
Certificates") are not immediately available or who cannot deliver their Share
Certificates and all other documents required hereby to the Depositary prior to
the Expiration Date (as defined in Section l of the Offer to Purchase) or who
cannot complete the procedure for delivery by book-entry transfer on a timely
basis and who wish to tender their Shares must do so pursuant to the guaranteed
delivery procedure described in Section 2 of the Offer to Purchase. See
Instruction 2.
[ ] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution
- ---------------------------------------
Check Box of Applicable Book-Entry Transfer Facility:
(CHECK)
[ ] The Depositary Trust Company
- --------------------------------
Account Number Transaction Code Number
- ------------------- ------------------------------
[ ] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING. PLEASE
ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY:
Name(s) of Registered Holder(s)
- -----------------------------------------------------------
Window Ticket No. (if any)
- -----------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
- -----------------------------------------------------------
2
<PAGE> 3
Name of Institution which Guaranteed Delivery
- -----------------------------------------------------------
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S)
SHARE CERTIFICATE(S) AND SHARE(S)TENDERED
APPEAR(S) ON SHARE CERTIFICATE(S))
(ATTACH ADDITIONAL LIST, IF NECESSARY)
- --------------------------------------------------------------------------------
NUMBER SHARE TOTAL NUMBER OF SHARES EVIDENCED
SHARES CERTIFICATE BY SHARE OF CERTIFICATE(S)*
TENDERED** NUMBERS(S)*
TOTAL SHARES
* Need not be completed by shareholders delivering Shares by book-entry
transfer.
** Unless otherwise indicated, it will be assumed that all Shares
evidenced by each Share Certificate delivered to the Depositary are
being tendered hereby. See Instruction 4.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Gamma Acquisition Corporation, a
Texas corporation ("Purchaser") and a wholly owned subsidiary of Immucor, Inc.,
a Georgia corporation ("Parent"), the above-described shares of common stock,
par value $.10 per share, and the associated common stock purchase rights
(together with the rights, the "Shares"), of Gamma Biologicals, Inc., a Texas
corporation (the "Company"), pursuant to Purchaser's offer to purchase all
outstanding Shares, at $5.40 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated September 25, 1998 (the
"Offer to Purchase"), receipt of which is hereby acknowledged, and in this
Letter of Transmittal (which, as amended from time to time, together constitute
the "Offer"). The undersigned understands that Purchaser reserves the right to
transfer or assign, in whole or from time to time in part, to one or more of its
affiliates, the right to purchase all or any portion of the Shares tendered
pursuant to the Offer.
3
<PAGE> 4
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby and all dividends, distributions (including, without
limitation, distributions of additional Shares and other securities) and rights
declared, paid or distributed in respect of such Shares (collectively,
"Distributions"), and irrevocably appoints the Depositary the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares and
all Distributions, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to (i) deliver
Share Certificates evidencing such Shares and all Distributions, or transfer
ownership of such Shares and all Distributions on the account books maintained
by a Book-Entry Transfer Facility, together, in either case, with all
accompanying evidences of transfer and authenticity, to or upon the order of
Purchaser, (ii) present such Shares and all Distributions for transfer on the
books of the Company, and (iii) receive all benefits and otherwise exercise all
rights of beneficial ownership of such Shares and all Distributions, all in
accordance with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned irrevocably
appoints Edward L. Gallup and Steven C. Ramsey of the Purchaser as proxies of
the undersigned, each with full power of substitution, to the full extent of the
undersigned's rights with respect to the Shares tendered by the undersigned and
accepted for payment by the Purchaser (and any and all Distributions). All such
proxies shall be considered coupled with an interest in the tendered Shares.
This appointment will be effective if, when, and only to the extent that, the
Purchaser accepts such Shares for payment pursuant to the Offer. Upon such
acceptance for payment, all prior proxies given by the undersigned with respect
to such Shares (and any such other Shares and securities) will, without further
action, be revoked, and no subsequent proxies may be given nor any subsequent
written consent executed by the undersigned (and, if given or executed, will not
be deemed to be effective) with respect thereto. The designees of the Purchaser
named above will, with respect to the Shares and other securities for which the
appointment is effective, be empowered to exercise all voting and other rights
of the undersigned as they in their sole discretion may deem proper at any
annual or special meeting of the shareholders of the Company or any adjournment
or postponement thereof, by written consent in lieu of any such meeting or
otherwise, and the Purchaser reserves the right to require that, in order for
Shares or other securities to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment of such Shares, the Purchaser must be able to
exercise full voting rights with respect to such Shares or other securities.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and all Distributions, and that when such Shares are accepted
for payment by Purchaser, Purchaser will acquire good, marketable and
unencumbered title thereto and to all Distributions, free and clear of all
liens, restrictions, charges and encumbrances, and that none of such Shares and
Distributions will be subject to any adverse claim. The undersigned, upon
request, shall execute and deliver all additional documents deemed by the
Depositary or Purchaser to be
4
<PAGE> 5
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned shall
remit and transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer, and, pending such remittance and transfer
or appropriate assurance thereof, Purchaser shall be entitled to all rights and
privileges as owner of each such Distribution and may withhold the entire
purchase price of the Shares tendered hereby, or deduct from such purchase
price, the amount or value of such Distribution as determined by Purchaser in
its sole discretion.
No authority herein conferred or agreed to be conferred shall be
affected by, and all such authority shall survive, the death or incapacity of
the undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as otherwise stated in the Offer to Purchase, this tender is
irrevocable.
The undersigned understands that tenders of Shares pursuant to any one
of the procedures described in Section 2 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer. Purchaser's acceptance of such Shares for payment
will constitute a binding agreement between the undersigned and Purchaser upon
the terms and subject to the conditions of the Offer, including, without
limitation, the undersigned's representation and warranty that the undersigned
owns the Shares being tendered.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price of all Shares
purchased, and return all Share Certificates evidencing Shares not purchased or
not tendered, in the name(s) of the registered holder(s) appearing above under
"Description of Shares Tendered." Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions," please mail the check for the
purchase price of all Shares purchased and all Share Certificates evidencing
Shares not tendered or not purchased (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of Shares Tendered." In the event that the boxes entitled
"Special Payment Instructions" and "Special Delivery Instructions" are both
completed, please issue the check for the purchase price of all Shares purchased
and return all Share Certificates evidencing Shares not purchased or not
tendered in the name(s) of, and mail such check and Share Certificates to, the
person(s) so indicated. The undersigned recognizes that Purchaser has no
obligation, pursuant to the Special Payment Instructions, to transfer any Shares
from the name of the registered holder(s) thereof if Purchaser does not purchase
any of the Shares tendered hereby.
5
<PAGE> 6
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificate(s) evidencing Shares not tendered or not
purchased are to be issued in the name of someone other than the undersigned.
Issue [ ] Check [ ] Share Certificate(s) to:
Name:
- -----------------------------------------------------------
(PRINT)
Address:
- -----------------------------------------------------------
- -----------------------------------------------------------
(ZIP CODE)
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificate(s) evidencing Shares not tendered or not
purchased are to be mailed to someone other than the undersigned, or to the
undersigned at an address other than that shown under "Description of Shares
Tendered."
Mail [ ] Check [ ] Share Certificate(s) to:
Name:
- -----------------------------------------------------------
(PRINT)
Address:
- -----------------------------------------------------------
- -----------------------------------------------------------
(ZIP CODE)
IMPORTANT
- --------------------------------------------------------------------------------
6
<PAGE> 7
SHAREHOLDER(S): SIGN HERE
(ALSO PLEASE COMPLETE SUBSTITUTE FORM W-9 INCLUDED HEREIN)
X
- -----------------------------------------------------------
X
- -----------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Dated: 1998
(Must be signed by registered holder(s) exactly as name(s) appear(s) on the
Share Certificate(s) or on a security position listing or by a person authorized
to become a registered holder by certificates and documents transmitted
herewith. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, please provide the following information. See
Instruction 5.)
Name(s):
- -----------------------------------------------------------
- -----------------------------------------------------------
(PLEASE PRINT)
Capacity (full title):
- -----------------------------------------------------------
Address:
- -----------------------------------------------------------
- -----------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone No.:
- -----------------------------------------------------------
Taxpayer Identification or Social Security No.:
- -----------------------------------------------------------
(SEE SUBSTITUTE FORM W-9 INCLUDED HEREIN)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY.
7
<PAGE> 8
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. All signatures on this Letter of
Transmittal must be guaranteed by a firm which is a member of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., or by a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(an "Eligible Institution"), unless (i) this Letter of Transmittal is signed by
the registered holder(s) of the Shares (which term, for purposes of this
document, shall include any participant in a Book-Entry Transfer Facility whose
name appears on a security position listing as the owner of Shares) tendered
hereby and such holder(s) has (have) completed neither the box entitled "Special
Payment Instructions" nor the box entitled "Special Delivery Instructions" or
(ii) such Shares are tendered for the account of an Eligible Institution. See
Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES. This
Letter of Transmittal is to be used either if Share Certificates are to be
forwarded herewith or if Shares are to be delivered by book-entry transfer
pursuant to the procedure set forth in Section 2 of the Offer to Purchase. Share
Certificates evidencing all physically tendered Shares, or a confirmation of a
book-entry transfer into the Depositary's account at a Book-Entry Transfer
Facility of all Shares delivered by book-entry transfer, in each case together
with a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) and any other documents required by this Letter of Transmittal, must be
received by the Depositary at one of its addresses set forth at the front hereof
prior to the Expiration Date (as defined in Section l of the Offer to Purchase).
If Share Certificates are forwarded to the Depositary in multiple deliveries, a
properly completed and duly executed Letter of Transmittal must accompany each
such delivery. Shareholders whose Share Certificates are not immediately
available, who cannot deliver their Share Certificates and all other required
documents to the Depositary prior to the Expiration Date or who cannot complete
the procedure for delivery by book-entry transfer on a timely basis may tender
their Shares pursuant to the guaranteed delivery procedure described in Section
2 of the Offer to Purchase. Pursuant to such procedure: (i) such tender must be
made by or through an Eligible Institution; (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form made available
by Purchaser, must be received by the Depositary prior to the Expiration Date;
and (iii) the Share Certificates evidencing all physically delivered Shares in
proper form for transfer by delivery, or a confirmation of a book-entry transfer
into the Depositary's account at a Book-Entry Transfer Facility of all Shares
delivered by book-entry transfer, in each case together with a Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed, with
any required signature guarantees, and any other documents required by this
Letter of Transmittal, must be received by the Depositary within three American
Stock Exchange, Inc. ("AMEX") trading days after the date of execution of such
Notice of Guaranteed Delivery, all as described in Section 2 of the Offer to
Purchase.
8
<PAGE> 9
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE
CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY
BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING
SHAREHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY
THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and
no fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering shareholders waive any right
to receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the Share Certificate numbers, the number of
Shares evidenced by such Share Certificates and the number of Shares tendered
should be listed on a separate schedule and attached hereto.
4. PARTIAL TENDERS (NOT APPLICABLE TO SHAREHOLDERS WHO TENDER BY
BOOK-ENTRY TRANSFER). If fewer than all the Shares evidenced by any Share
Certificate delivered to the Depositary herewith are to be tendered hereby, fill
in the number of Shares which are to be tendered in the box entitled "Number of
Shares Tendered." In such cases, new Share Certificate(s) evidencing the
remainder of the Shares that were evidenced by the Share Certificates delivered
to the Depositary herewith will be sent to the person(s) signing this Letter of
Transmittal, unless otherwise provided in the box entitled "Special Delivery
Instructions," as soon as practicable after the expiration or termination of the
Offer. All Shares evidenced by Share Certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the Share Certificates evidencing such Shares without
alteration, enlargement or any other change whatsoever.
If any Share tendered hereby is owned of record by two or more persons,
all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
Shares.
9
<PAGE> 10
If this Letter of Transmittal is signed by the registered holder(s) of
the Shares tendered hereby, no endorsements of Share Certificates or separate
stock powers are required, unless payment is to be made to, or Share
Certificates evidencing Shares not tendered or not purchased are to be issued in
the name of, a person other than the registered holder(s), in which case, the
Share Certificate(s) evidencing the Shares tendered hereby must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s)of the registered holder(s) appear(s) on such Share Certificate(s).
Signatures on such Share Certificate(s) and stock powers must be guaranteed by
an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Share Certificate(s). Signatures on such
Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Share Certificate or stock power
is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of such person's authority so to act must be
submitted.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this
Instruction 6, Purchaser will pay all stock transfer taxes with respect to the
sale and transfer of any Shares to it or its order pursuant to the Offer. If,
however, payment of the purchase price of any Shares purchased is to be made to,
or Share Certificate(s) evidencing Shares not tendered or not purchased are to
be issued in the name of, a person other than the registered holder(s), the
amount of any stock transfer taxes (whether imposed on the registered holder(s),
such other person or otherwise) payable on account of the transfer to such other
person will be deducted from the purchase price of such Shares purchased, unless
evidence satisfactory to Purchaser of the payment of such taxes, or exemption
therefrom, is submitted. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT
BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATES
EVIDENCING THE SHARES TENDERED HEREBY.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the
purchase price of any Shares tendered hereby is to be issued, or Share
Certificate(s) evidencing Shares not tendered or not purchased are to be issued,
in the name of a person other than the person(s) signing this Letter of
Transmittal or if such check or any such Share Certificate is to be sent to
someone other than the person(s) signing this Letter of Transmittal or to the
person(s) signing this Letter of Transmittal but at an address other than that
shown in the box entitled "Description of Shares Tendered," the appropriate
boxes on the reverse of this Letter of Transmittal must be completed.
10
<PAGE> 11
8. WAIVER OF CONDITIONS. Except as described in the Offer to Purchase,
the conditions to the Offer may be waived by the Purchaser in whole or in part
at any time and from time to time in its sole discretion.
9. QUESTIONS AND REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Dealer Manager or
the Information Agent at their respective addresses or telephone numbers set
forth below. Additional copies of the Offer to Purchase, this Letter of
Transmittal and the Notice of Guaranteed Delivery may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
10. SUBSTITUTE FORM W-9. Each tendering shareholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN") on
the Substitute Form W-9 which is provided under "Important Tax Information"
below and to certify, under penalties of perjury, that such number is correct
and that such shareholder is not subject to backup withholding of federal income
tax. If a tendering shareholder has been notified by the Internal Revenue
Service that such shareholder is subject to backup withholding, such shareholder
must cross out item (2) of the Certification box of the Substitute Form W-9,
unless such shareholder has since been notified by the Internal Revenue Service
that such shareholder is no longer subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
shareholder to 31% federal income tax withholding on the payment of the purchase
price of all Shares purchased from such shareholder. If the tendering
shareholder has not been issued a TIN and has applied for one or intends to
apply for one in the near future, such shareholder should write "Applied For" in
the space provided for the TIN in Part I of the Substitute Form W-9, and sign
and date the Substitute Form W-9. If "Applied For" is written in Part l and the
Depositary is not provided with a TIN within 60 days, the Depositary will
withhold 31% on all payments of the purchase price to such shareholder until a
TIN is provided to the Depositary.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED WITH ANY REQUIRED SIGNATURE GUARANTEES, AND SHARE
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND OR A PROPERLY COMPLETED
AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY AND ALL OTHER REQUIRED DOCUMENTS
MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
THE OFFER TO PURCHASE).
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Shares
are accepted for payment is required by law to provide the Depositary (as payer)
with such shareholder's correct TIN on Substitute Form W-9 below. If such
shareholder is an individual, the TIN is such shareholder's social security
number. If the Depositary is not provided with the correct TIN, the shareholder
may be subject to a $50 penalty imposed by the Internal Revenue
11
<PAGE> 12
Service. In addition, payments that are made to such shareholder with respect to
Shares purchased pursuant to the Offer may be subject to backup withholding of
31%.
Certain shareholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such individual must submit a statement, signed under
penalties of perjury, attesting to such individual's exempt status. Forms of
such statements can be obtained from the Depositary. See the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies, the Depositary is required to withhold
31% of any payments made to the shareholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a
shareholder with respect to Shares purchased pursuant to the Offer, the
shareholder is required to notify the Depositary of such shareholder's correct
TIN by completing the form below certifying (a) that the TIN provided on
Substitute Form W-9 is correct (or that such shareholder is awaiting a
TIN)and (b) that (i) such shareholder has not been notified by the
Internal Revenue Service that such shareholder is subject to backup withholding
as a result of a failure to report all interest or dividends or (ii) the
Internal Revenue Service has notified such shareholder that such shareholder is
no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance on
which number to report. If the tendering shareholder has not been issued a TIN
and has applied for a number or intends to apply for a number in the near
future, the shareholder should write "Applied For" in the space provided for the
TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For" is
written in Part I and the Depositary is not provided with a TIN within 60 days,
the Depositary will withhold 31% of all payments of the purchase price to such
shareholder until a TIN is provided to the Depositary.
ALL TENDERING SHAREHOLDERS MUST COMPLETE THE FOLLOWING:
PAYER'S NAME: [_______________________________________________]
12
<PAGE> 13
SUBSTITUTE PART I -- Taxpayer Identification Number -- For all accounts, enter
taxpayer FORM W-9 identification number in the box at right. Social Security
Number(s) (For most individuals, this is your social OR DEPARTMENT OF THE
TREASURY security number. If you do not have a INTERNAL REVENUE SERVICE number,
see Obtaining a Number in the Employer Identification Number enclosed
Guidelines.) Certify by signing and (If awaiting TIN write dating below. Note:
If the account is in "Applied For") more than one name, see the chart in the
enclosed Guidelines to determine which number to give the payer.
PAYER'S REQUEST FOR TAXPAYER PART II -- For Payees Exempt From Backup
Withholding, see the enclosed IDENTIFICATION NUMBER Guidelines and complete as
instructed therein.
("TIN") CERTIFICATION -- Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer
Identification Number (or I am waiting for a number to be
issued to me), and
(2) I am not subject to backup withholding either because I have
not been notified by the Internal Revenue Service (the "IRS")
that I am subject to backup withholding as a result of failure
to report all interest or dividends, or the IRS has notified
me that I am no longer subject to backup withholding.
CERTIFICATE INSTRUCTIONS -- You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding you received
another notification from the IRS that you are no longer subject to backup
withholding, do not cross out item (2). (Also see instructions in the enclosed
Guidelines.)
Signature
- -----------------------------------------------------------
Date
- -------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
The Information Agent for the Offer is:
Beacon Hill Partners, Inc.
90 Broad Street
13
<PAGE> 14
New York, New York 10004
(212) 843-8500
or
Toll Free (800) 566-9061
The Dealer Manager for the Offer is:
TM Capital Corp.
One Battery Park Plaza, 35th Floor
New York, New York 10004
(212) 809-1360
September 25, 1998
14
<PAGE> 1
EXHIBIT (A)(4)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
GAMMA BIOLOGICALS, INC.
TO
GAMMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
IMMUCOR, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or one substantially in the form
hereof, must be used to accept the Offer (as defined below) if (i) certificates
("Share Certificates") evidencing shares of common stock, par value $.10 per
share, and the associated common stock purchase rights (together with the
rights, the "Shares"), of Gamma Biologicals, Inc., a Texas corporation (the
"Company"), are not immediately available, (ii) time will not permit all
required documents to reach Harris Trust Company of New York as Depositary (the
"Depositary"), prior to the Expiration Date (as defined in Section 1 of the
Offer to Purchase (as defined below)), or (iii) the procedure for book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand or transmitted by telegram, facsimile
transmission or mail to the Depositary. See Section 2 of the Offer to Purchase.
The Depositary for the Offer is:
Harris Trust Company of New York
By Mail: By Overnight Courier: By Hand:
Wall Street Station Wall Street Plaza Receive Window
P.O. Box 1023 88 Pine Street, 19th Floor Wall Street Plaza
New York, NY 10268-1023 New York, NY 10005 88 Pine Street, 19th Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636 or 7637
For Information Telephone (call collect):
(212) 701-7624
<PAGE> 2
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER
THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to Gamma Acquisition Corporation, a
Texas corporation and a wholly owned subsidiary of Immucor, Inc., a Georgia
corporation, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated September 25, 1998 (the "Offer to Purchase"), and the related
Letter of Transmittal (which, as amended from time to time, together constitute
the "Offer"), receipt of each of which is hereby acknowledged, the number of
Shares specified below pursuant to the guaranteed delivery procedures described
in Section 2 of the Offer to Purchase.
Number of Shares:
- -----------------------------------------------------------
Certificate No(s). (if available):
- -----------------------------------------------------------
Check box if Shares will be tendered by book-entry transfer:
[ ] The Depository Trust Company
Account Number:
- -----------------------------------------------------------
Name(s) of Record Holder(s):
- -----------------------------------------------------------
- -----------------------------------------------------------
PLEASE PRINT
Address(es):
- -----------------------------------------------------------
ZIP CODE
Company Area Code and Tel. No.
- -----------------------------------------------------------
Area Code and Tel. No.:
- -----------------------------------------------------------
Signature(s)
- -----------------------------------------------------------
- -----------------------------------------------------------
Dated: __________ , 1998
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a firm that is a commercial bank, broker, dealer,
credit union, savings association or other entity which is a member in good
standing of the Securities Transfer Agents Medallion Program, the New York Stock
Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion
Program hereby (a) represents that the tender of Shares effected hereby complies
with Rule 14e-4 of the Securities Exchange Act of 1934, as amended, and (b)
guarantees delivery to the Depositary, at one of its addresses set forth above,
of Share Certificates evidencing the Shares tendered hereby in proper form for
transfer, or confirmation of book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company, in each case with delivery
of a properly completed and duly executed Letter of Transmittal (or a facsimile
thereof) with any required signature guarantees, or an Agent's Message (as
defined in Section 2 of the Offer to Purchase), and any other documents required
by the Letter of Transmittal, within three American Stock Exchange, Inc. three
trading days after the date of execution of this Notice of Guaranteed Delivery.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and Share
Certificates to the Depositary within the time period shown herein. Failure to
do so could result in financial loss to such Eligible Institution.
3
<PAGE> 4
Name of Firm:
- -----------------------------------------------------------
Address:
- -----------------------------------------------------------
- -----------------------------------------------------------
(Zip Code)
AUTHORIZED SIGNATURE:
Name:
- -----------------------------------------------------------
Please Print
Title:
- -----------------------------------------------------------
Area Code and Tel. No.
- -----------------------------------------------------------
Dated:_________, 1998
NOTE: DO NOT SEND SHARE CERTIFICATE(S) WITH THIS NOTICE OF GUARANTEED
DELIVERY. SHARE CERTIFICATE(S) SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
4
<PAGE> 1
EXHIBIT (A)(5)
TM CAPITAL CORP
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
GAMMA BIOLOGICALS, INC.
AT
$5.40 NET PER SHARE
BY
GAMMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY
OF
IMMUCOR, INC.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME, ON FRIDAY, OCTOBER 23, 1998,
UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
September 25, 1998
To Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees:
We have been appointed by Gamma Acquisition Corporation, a Texas
corporation ("Purchaser") and a wholly owned subsidiary of Immucor, Inc., to act
as Dealer Manager in connection with Purchaser's offer to purchase all of the
outstanding shares of common stock, par value $.10 per share (the "Shares"), of
Gamma Biologicals, Inc. (the "Company"), at $5.40 per Share, net to the seller
in cash, upon the terms and subject to the conditions set forth in Purchaser's
Offer to Purchase dated September 25, 1998 (the "Offer to Purchase") and the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer") enclosed herewith.
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Shares registered in your name or in the name of your
nominee.
THE OFFER IS SUBJECT TO SEVERAL CONDITIONS CONTAINED IN THE OFFER TO
PURCHASE INCLUDING THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR
TO THE EXPIRATION OF THE OFFER AT LEAST 67% OF THE SHARES THEN OUTSTANDING ON A
FULLY DILUTED BASIS. CERTAIN DIRECTORS AND SHAREHOLDERS HOLDING APPROXIMATELY
15.6% OF THE OUTSTANDING SHARES ON A FULLY DILUTED BASIS HAVE AGREED TO TENDER
THEIR SHARES. THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED
IN
<PAGE> 2
THE OFFER TO PURCHASE. SEE INTRODUCTION AND SECTIONS 1 AND 13 IN THE OFFER TO
PURCHASE.
For your information and for forwarding to your clients for whom you
hold Shares registered in your name or in the name of your nominee, we are
enclosing the following documents:
1. Offer to Purchase dated September 25, 1998;
2. Letter of Transmittal to tender Shares for your use and for
the information of your clients, together with Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9
providing information relating to backup federal income tax withholding
(facsimile copies of the Letter of Transmittal may be used to tender
Shares);
3. Notice of Guaranteed Delivery to be used to accept the
Offer if the certificates for the Shares being tendered and all other
required documents cannot be delivered to the Depositary by the
Expiration Date (as defined in the Offer to Purchase) or if procedures
for book-entry transfer cannot be completed by the Expiration Date;
4. A printed form of letter which may be sent to your clients
for whose accounts you hold Shares registered in your name or in the
name of your nominee, with space provided for obtaining such clients'
instructions with regard to the Offer; and
5. A letter to shareholders of the Company from David E.
Hatcher, Chief Executive Officer and Chairman of the Board of Gamma
Biologicals, Inc., together with a Solicitation/Recommendation
Statement on Schedule 14D-9, filed with the Securities and Exchange
Commission by the Company and mailed to shareholders of the Company
recommending that the Company's shareholders accept the Offer and
tender their Shares.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT EASTERN TIME, ON FRIDAY, OCTOBER 23, 1998, UNLESS THE
OFFER IS EXTENDED.
Upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of any such
extension or amendment), Purchaser will accept for payment and pay for the
Shares which are validly tendered prior to the Expiration Date and not
theretofore properly withdrawn when, as and if Purchaser gives oral or written
notice to the Depositary of Purchaser's acceptance of such Shares for payment
pursuant to the Offer. Payment for the Shares purchased pursuant to the Offer
will in all cases be made only after timely receipt by the Depositary of
certificates for the Shares or timely confirmation of a book-entry transfer of
such Shares into the Depositary's account at The Depository Trust Company,
pursuant to the procedures described in "Section 2. Procedures for Tendering
Shares" of the Offer to Purchase, a properly completed and duly executed Letter
of Transmittal (or manually signed facsimile thereof) or an Agent's Message in
connection with a book-entry transfer, and all other documents required by the
Letter of Transmittal.
If holders of Shares wish to tender, but it is impracticable for them
to forward their certificates or other required documents on or prior to the
Expiration Date or to comply with the book-entry
2
<PAGE> 3
transfer procedure on a timely basis, a tender may be effected by following the
guaranteed delivery procedures specified in "Section 2. Procedures for Tendering
Shares" in the Offer to Purchase.
Purchaser will not pay any fees or commissions to any broker or dealer
or other person (other than to the Dealer Manager as described in the Offer to
Purchase) for soliciting tenders of the Shares pursuant to the Offer. Purchaser
will, however, upon request, reimburse you for reasonable and necessary costs
and expenses incurred by you in forwarding materials to your customers.
Purchaser will pay all stock transfer taxes applicable to its purchase of Shares
pursuant to the Offer, subject to Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be
addressed to, and additional copies of the enclosed materials may be obtained
from, any of Beacon Hill Partners, Inc., the Information Agent or the
undersigned, as Dealer Manager, at the addresses and telephone numbers set forth
on the back cover of the Offer to Purchase and the Letter of Transmittal.
Very truly yours,
TM CAPITAL CORP.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY PERSON AS AN AGENT OF PURCHASER, THE COMPANY, THE DEALER MANAGER, THE
INFORMATION AGENT OR THE DEPOSITARY, OR ANY AFFILIATE OF ANY OF THEM, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
EXHIBIT(A)(6)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
GAMMA BIOLOGICALS, INC.
AT
$5.40 NET PER SHARE
BY
GAMMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY
OF
IMMUCOR, INC.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME, ON FRIDAY, OCTOBER 23, 1998,
UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
September 25, 1998
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated
September 25, 1998 (the "Offer to Purchase") and the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") in connection with the offer by Gamma
Acquisition Corporation, a Texas corporation ("Purchaser") and a wholly owned
subsidiary of Immucor, Inc., to purchase all of the outstanding shares of common
stock, par value $.10 per share (the "Shares"), of Gamma Biologicals, Inc., a
Texas corporation (the "Company"), at a price of $5.40 per share, net to the
seller in cash, without interest thereon, upon the terms and conditions set
forth in the Offer.
We are (or our nominee is) the holder of record of the Shares held for
your account. A tender of such Shares can be made only by us as the holder of
record and pursuant to your instructions. THE LETTER OF TRANSMITTAL IS FURNISHED
TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD
BY US FOR YOUR ACCOUNT.
THE COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY HAS DETERMINED THAT THE
OFFER AND THE MERGER (AS DEFINED IN THE OFFER TO PURCHASE) ARE FAIR TO AND IN
THE BEST INTERESTS OF THE COMPANY AND ITS SHAREHOLDERS AND UNANIMOUSLY HAS
APPROVED THE OFFER AND THE MERGER AND RECOMMENDS THAT SHAREHOLDERS OF THE
COMPANY ACCEPT THE OFFER.
We request instructions as to whether you wish us to tender any or all
of the Shares held by us for your account, upon the terms and subject to the
conditions set forth in the Offer.
1
<PAGE> 2
PLEASE NOTE CAREFULLY THE FOLLOWING:
1. The tender price is $5.40 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer.
2. The Offer and withdrawal rights expire at 12:00 Midnight,
Eastern time, on Friday, October 23, 1998, unless the Offer is
extended.
3. The Offer is being made for all of the Shares.
4. The Offer is conditioned upon, among other things, there
being validly tendered and not properly withdrawn prior to the
expiration of the Offer at least a 67% of Shares then outstanding on a
fully diluted basis. Certain directors and shareholders holding
approximately 15.6% of the outstanding Shares on a fully diluted basis
have agreed to tender their Shares. The Offer is also subject to other
terms and conditions in the Offer to Purchase. See Introduction and
Sections 1 and 13 in the Offer to Purchase.
5. Tendering shareholders will not be obligated to pay
brokerage fees or commissions to the Dealer Manager, the Depositary or
the Information Agent or, except as otherwise provided in Instruction 6
of the Letter of Transmittal, stock transfer taxes with respect to the
purchase of Shares by Purchaser pursuant to the Offer. However, backup
federal income tax withholding at a rate of 31% may be required,
unless an exemption applies or unless the required taxpayer
identification information is provided. See Instruction 10 of, and
"IMPORTANT TAX INFORMATION" in, the Letter of Transmittal.
6. In all cases, payment for Shares purchased pursuant to the
Offer will be made only after timely receipt by the Depositary of
certificates for, or a Book-Entry Confirmation (as defined in the Offer
to Purchase) with respect to, such Shares and a Letter of Transmittal
(or a manually signed facsimile thereof), properly completed and duly
executed, with all required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and all other documents
required by the Letter of Transmittal. See "Section 2. Procedures for
Tendering Shares" of the Offer to Purchase.
If you wish to have us tender any or all of your Shares, please so
instruct us by completing, executing, detaching and returning to us the
instruction form set forth below. An envelope to return your instructions to us
is enclosed. If you authorize tender of your Shares, all such Shares will be
tendered unless otherwise specified on the instruction form set forth below.
YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US
TO SUBMIT A TENDER ON YOUR BEHALF BY THE EXPIRATION OF THE OFFER. THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON FRIDAY,
OCTOBER 23, 1998, UNLESS PURCHASER EXTENDS THE OFFER.
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of Shares pursuant thereto, Purchaser will
make a good faith effort to comply with such state statute. If, after such good
faith
2
<PAGE> 3
effort, Purchaser cannot comply with such state statute, the Offer will not be
made to (nor will tenders be accepted from or on behalf of) the holders of
Shares in such state. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of Purchaser by TM Capital Corp. or
one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
3
<PAGE> 4
INSTRUCTIONS WITH RESPECT TO
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
GAMMA BIOLOGICALS, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase dated September 25, 1998 and the related Letter of Transmittal
(which collectively constitute the "Offer") in connection with the offer by
Gamma Acquisition Corporation, a Texas corporation and a wholly owned subsidiary
of Immucor, Inc., a Georgia corporation, to purchase all of the outstanding
shares of common stock, par value $.10 per share (the "Shares") of Gamma
Biologicals, Inc., a Texas corporation.
This will instruct you to tender the number of Shares indicated below
(or if no number is indicated below, all Shares) held by you for the account of
the undersigned, upon the terms and subject to the conditions set forth in the
Offer to Purchase and the related Letter of Transmittal.
- --------------------------------------------------------------------------------
Number(1) of Shares to be Tendered: Shares
--------------------
Account Number:
-----------------------------------
Dated: , 1998
-----------------------------------
- --------------------------------------------------------------------------------
SIGN HERE
Signature(s):
- --------------------------------------------------------------------------------
Print Name(s):
------------------------------------------------------------------
Print Address(ses):
-------------------------------------------------------------
Area Code and Telephone No.:
----------------------------------------------------
Taxpayer ID No. or Social Security No.:
-----------------------------------------
- --------------------------------------------------------------------------------
- ---------------
(1) Unless otherwise indicated, it will be assumed that all Shares held by us
for your account are to be tendered.
<PAGE> 1
EXHIBIT (A)(7)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<S> <C>
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF --
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if
combined funds, any one of the individuals (1)
3. Husband and wife (joint account) The actual owner of the account or, if joint
funds, either person (1)
4. Custodian account of a minor (Uniform The minor (2)
Gift to Minors Act
5. Audit and minor (joint account) The audit or, if the minor is the only
contributor, the minor (1)
6. Account in the name of guardian or The ward, minor or incompetent person (3)
committee for a designated ward,
minor, or incompetent person
7. a. The usual revocable savings trust The grantor-trustee (1)
account (granter is also trustee)
b. So-called trust account that is not a
legal or invalid trust under State law.
8. Sole proprietorship account The owner (4)
9. A valid trust, estate, or pension trust The legal entity (Do not furnish the
identifying number of the personal
representative or trustee unless the
legal entity itself is not designated
in the account title.) (5)
10. Corporate account The corporation
11. Religious, charitable, or educational The organization
organization account
12. Partnership account held in the name of The partnership
the business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker of nominee
15. Account with the Department of The pubic entity
Agriculture in the name of a public
entity (such as a State or local
government, school district, or prison)
that received agricultural program
</TABLE>
<PAGE> 2
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish
such person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an
individual retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United
States, or any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign
government, or any agency or instrumentality thereof.
- An international organization or any agency, or
instrumentality thereof.
- A registered dealer in securities or commodities registered in
the U.S. or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust
described in section 4947(a)(1).
- An entity registered at all times under the Investment Company
Act of 1940.
- A foreign central bank of issue. Payments of dividends and
patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under
section 1441.
2
<PAGE> 3
- Payments to partnerships not engaged in a trade or business in
the U.S. and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is
not paid in money.
- Payments made by certain foreign organizations.
- Payments made to a nominee. Payments of interest generally
subject to backup withholding include the following:
- Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this
interest is $600 or more and is paid in the course of the
payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest
dividends under section 852).
- Payments described in section 6049(b)(5) to nonresident
aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Payments made to a nominee. Exempt payees described above
should file Form W-9 to avoid possible erroneous backup
withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF
THE FORM, AND RETURN IT TO THE PAYER, IF THE PAYMENTS ARE
INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND
DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE -- Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Beginning January 1, 1993, payers
must generally withhold 31% of taxable interest, dividends, and certain other
payments to a payee who does not furnish a taxpayer identification number to a
payer. Certain penalties may also apply.
PENALTIES:
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure
is due to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. -- If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications
or affirmations may subject you to criminal penalties including fines
3
<PAGE> 4
and/or imprisonments. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE
4
<PAGE> 1
EXHIBIT (A)(8)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase, dated
September 25, 1998, and the related Letter of Transmittal and any amendments or
supplements thereto, and is being made to all holders of Shares. The Offer is
not being made to (nor will tenders be accepted from or on behalf of) holders of
Shares in any jurisdiction in which the making of the Offer or the acceptance
thereof would not be in compliance with the securities, blue sky or other laws
of such jurisdiction. Neither the Purchaser nor the Parent is aware of any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
GAMMA BIOLOGICALS, INC.
AT
$5.40 NET PER SHARE
BY
GAMMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY
OF
IMMUCOR, INC.
Gamma Acquisition Corporation, a Texas corporation (the "Purchaser") and a
wholly owned subsidiary of Immucor, Inc., a Georgia corporation (the "Parent"),
is offering to purchase all outstanding shares of common stock, par value $.10
per share and the associated common stock purchase rights (together with the
rights, the "Shares"), of Gamma Biologicals, Inc., a Texas corporation (the
"Company"), at a price of $5.40 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
September 25, 1998, and in the related Letter of Transmittal (which, together
constitute the "Offer").
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME,
ON FRIDAY, OCTOBER 23, 1998, UNLESS THE OFFER IS EXTENDED.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as
of September 21, 1998 (the "Merger Agreement"), among the Purchaser, the Parent,
and the Company. The Merger Agreement provides, among other things, for the
merger of the Purchaser with and into the Company (the "Merger") following the
purchase of Shares pursuant to the Offer. In the Merger, each outstanding Share
(other than Shares owned by the Parent or any subsidiary of the Parent, Shares
held as treasury shares by the Company, and Shares owned by shareholders who
perfect appraisal rights under Texas law) will be converted into the right to
receive $5.40 per Share net in cash.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER, THE
MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, HAS
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO AND IN THE
BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS, AND RECOMMENDS THAT THE
SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES.
The Offer is conditioned upon, among other things, there being validly
tendered a number of Shares which, when added to the Shares beneficially owned
by the Parent, would represent at least 67% of the Shares outstanding on a fully
diluted basis on the date of purchase (the "Minimum Condition"). The Offer is
not conditioned on the receipt of financing. If, by the Expiration Date (as
defined in the Offer to Purchase), any or all of the conditions to the Offer
have not been satisfied or waived, the Purchaser reserves the right to (a)
terminate the Offer and not accept for payment or pay for any Shares and return
all tendered Shares to tendering shareholders, (b) waive all the unsatisfied
conditions and accept for payment and pay for all Shares validly tendered prior
to the Expiration Date, (c) extend the Offer and, subject to the right of
shareholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended, or (d) amend the Offer. The Purchaser has also reserved the right to
extend the Offer not more than ten (10) business days in the aggregate if less
than 90% of the Shares (on a fully-diluted basis) have been tendered by the
Expiration Date.
For purposes of the Offer, the Purchaser shall be deemed to have accepted for
payment tendered Shares when, as and if the Purchaser gives oral or written
notice to the Depositary of its acceptance of the tenders of such Shares.
Payment for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of certificates for such Shares (the
"Share Certificates") (or a confirmation of a book-entry transfer of such Shares
into the Depositary's account at the Book-Entry Transfer Facility (as defined in
the Offer to Purchase)), a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) and any other required
documents. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF
THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER
OR ANY DELAY IN MAKING SUCH PAYMENT.
Except as otherwise provided below, tenders of Shares pursuant to the Offer
are irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant
to the procedures set forth below at any time prior to the Expiration Date
unless theretofore accepted for payment by the Purchaser pursuant to the Offer.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
its address set forth on the back cover of the Offer to Purchase and must
specify the name of the person having tendered the Shares to be withdrawn, the
number of Shares to be withdrawn and the name of the registered holder of the
Shares to be withdrawn, if different from the name of the person who tendered
the Shares. If Share Certificates have been delivered or otherwise identified to
the Depositary, then, prior to the physical release of such Share Certificates,
the serial numbers shown on such Share Certificates must be submitted to the
Depositary and, unless such Shares have been tendered by an Eligible Institution
(as defined in the Offer to Purchase), the signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution. If Shares have been
delivered pursuant to the procedure for book-entry transfer as set forth in
Section 2 of the Offer to Purchase, any notice of withdrawal must also specify
the name and number of the account at the appropriate Book-Entry Transfer
Facility to be credited with the withdrawn Shares and otherwise comply with such
Book-Entry Transfer Facility's procedures.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated herein by reference.
The Company has provided the Purchaser with the Company's shareholder list
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares and
furnished to brokers, dealers, banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the shareholder lists or, if
applicable, who are listed as participants in a clearing agency's security
position listing, for subsequent transmittal to beneficial owners of Shares.
THE OFFER TO PURCHASE AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION
WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
Requests for copies of the Offer to Purchase and the related Letter of
Transmittal and other tender offer materials may be directed to the Information
Agent or Dealer Manager as set forth below and copies will be furnished promptly
at the Purchaser's expense.
The Information Agent for the Offer is:
BEACON HILL PARTNERS, INC.
90 BROAD STREET
NEW YORK, NEW YORK 10004
(800) 755-5001
The Dealer Manager for the Offer is:
(TM LOGO)
ONE BATTERY PARK PLAZA, 35TH FLOOR
NEW YORK, NEW YORK 10004
(212) 809-1360
September 25, 1998
<PAGE> 1
EXHIBIT (A)(9)
FOR IMMEDIATE RELEASE CONTACT: Edward Gallup, Steve Ramsey or
Connie Vinson
770-441-2051
Immucor, Inc. Commences Cash Tender Offer For All Outstanding Shares of Gamma
Biologicals, Inc.
NORCROSS, GA - SEPTEMBER 25, 1998 - Immucor, Inc. (NASDAQ: BLUD), a leading
provider of blood bank reagents and related products, announced today that Gamma
Acquisition Corporation, an Immucor subsidiary, has commenced a cash tender
offer for all outstanding shares of the common stock of Gamma Biologicals, Inc.
(AMEX: GBL) at $5.40 per share.
The offer is being made pursuant to the previously announced merger agreement
among Immucor and Gamma Biologicals. The offer is conditioned upon, among other
things, the tender of 67% of the outstanding shares of Gamma Biologicals and
satisfaction of customary closing conditions.
The tender offer and withdrawal rights are scheduled to expire at midnight,
Eastern Time, on Friday, October 23, 1998, unless extended pursuant to the
merger agreement.
TM Capital Corp. is acting as the Dealer Manager and Beacon Hill Partners, Inc.
is acting as the Information Agent in connection with the offer. The information
filed with the Securities and Exchange Commission in connection with the tender
offer may be obtained by calling Beacon Hill at (800) 755-5001.
Immucor, Inc., founded in 1982, manufactures and sells a complete line of
reagents and systems used by hospitals, reference laboratories and donor centers
to detect and identify certain properties of the cell and serum components of
blood prior to transfusion. Immucor markets a complete family of automated
instrumentation for all of our market segments. Immucor's fiscal 1998 revenues
were approximately $40 million.
For more information on Immucor, please visit our website at www.immucor.com.
xxx
<PAGE> 1
EXHIBIT (b)
September 18, 1998
Steven C. Ramsey
Vice President, Chief Financial Officer
Immucor, Inc.
3130 Gateway Drive
P. O. Box 5625
Norcross, Georgia 30091-5625
Dear Steve,
[The Bank] is pleased to issue the following commitment to Immucor Inc.,
subject to the general terms and conditions outlined in the attached credit
facilities exhibit. As stated in the attached exhibit, the Bank's financing
commitment is comprised of a $2,000,000 revolving line of credit, a $20,000,000
acquisition term loan, and a $4,500,000 term loan.
This commitment is contingent upon a satisfactory execution of the Bank's loan
documents, maintenance by your company of a condition satisfactory to the Bank
and other terms as outlined in the attached credit facilities exhibit. The
general terms and conditions included in the attached credit facilities exhibit
includes some, but not all of the terms and conditions that will be part of the
final loan documentation. This commitment letter may be executed via facsimile
and in counterparts.
If the terms and conditions, as summarized, are acceptable to Immucor Inc.,
please evidence the acceptance of this commitment by signing in the space
provided below and returning a copy of this letter to me. This commitment must
be accepted by September 25, 1998.
Steve, we appreciate the opportunity to deliver this commitment to finance
Immucor Inc., and look forward to a continued fruitful relationship.
Very truly yours,
[BANK]
/s/
[Bank Officer]
Assistant Vice-President
Accepted this 18 day of September, 1998
Immucor Inc.:
By: /s/ Steven C. Ramsey
Title: CFO
<PAGE> 2
CREDIT FACILITIES, GENERAL TERMS AND CONDITIONS
IMMUCOR INC.
September 18, 1998
- ----------------- -------------------------------------------------------------
1. BORROWER Immucor Inc. (the Borrower).
- ----------------- -------------------------------------------------------------
2. GUARANTORS All present and future subsidiaries
- ----------------- -------------------------------------------------------------
3. FACILITIES (A) $2,000,000 revolving line of credit
(B) $20,000,000 acquisition term loan
(C) $4,500,000 term loan
- ----------------- -------------------------------------------------------------
4. PURPOSE (A) Finance ongoing working capital needs and general
corporate purposes
(B) The proceeds of the Acquisition Term Loan shall be
used to finance the Transactions. The Borrower intends
to acquire (the Acquisition) 100% of the common stock
of Gamma Biological Inc., and to pay related fees and
expenses (the Acquisition and the payment of such fees
and expenses, collectively, the Transactions).
(C) The proceeds of the Term Loan shall be used to finance
the (i) the re-purchase of Immucor common stock, or
(ii) buy back distribution rights from Immucor's
Canadian and Belgian distributors.
- ----------------- -------------------------------------------------------------
5. REPAYMENT (A) The line of credit will expire three (3) years from
Closing, Interest shall be due and payable quarterly
(B) The Acquisition Term Loan will amortize quarterly, plus
all accrued interest, as follows:
- ----------------- -------------------------------------------------------------
Year 1 $375,000 Year 5 $875,000
Year 2 $375,000 Year 6 $875,000
Year 3 $750,000 Year 7 $875,000
Year 4 $875,000
- ----------------- -------------------------------------------------------------
(C) The Term Loan will amortize quarterly, plus all accrued
interest, as follows:
- ----------------- -------------------------------------------------------------
Year 1 $ 0 Year 5 $250,000
Year 2 $250,000 Year 6 $250,000
Year 3 $250,000
Year 4 $250,000
- ----------------- -------------------------------------------------------------
6. INTEREST RATE As set forth on Annex I.
<PAGE> 3
- ----------------- -------------------------------------------------------------
7. FEES The loans shall be subject to the following fees:
1. An upfront fee of 0.15% of the Facilities'
commitment amount shall be due at Closing.
2. The Borrower shall pay a fee of 0.25% per annum
based on the average unused portion of the
revolving line of credit, assessed quarterly .
- ----------------- -------------------------------------------------------------
8. MANDATORY PRE- 50% of excess cashflow (to be defined in a mutually
PAYMENTS AND satisfactory manner) for each fiscal year of the Borrower
COMMITMENT (commencing with the fiscal year immediately following
REDUCTIONS COMMITMENT the fiscal year in which the Closing Date occurs)
shall be applied to the REDUCTIONS prepayment of the
Acquisition Term Loan first, and upon complete repayment of
the Acquisition term Loan, to the prepayment of the Term Loan
(in inverse order of maturity).
- ----------------- -------------------------------------------------------------
9. REPORTING On a quarterly basis, required information will include an
REQUIREMENTS unauditied statement prepared by the Company that shall be due
within forty five days (45) of the end of each fiscal quarter.
- ----------------- -------------------------------------------------------------
On an annual basis, required information will include
consolidated and consolidated audited statement prepared by a
CPA acceptable to the Bank that shall be due within one
hundred twenty days (120) of the end of the fiscal year.
- ----------------- -------------------------------------------------------------
All quarterly financial information, inclusive of compliance
certificates, must be signed by an officer of the Company
informed in such matters as to the authenticity of the
material.
- ----------------- -------------------------------------------------------------
10Q and 10K SEC filings shall be due when published.
- ----------------- -------------------------------------------------------------
10. FINANCIAL As set forth in Annex II. Tested quarterly.
COVENANTS
- ----------------- -------------------------------------------------------------
11. CONDITIONS (a) satisfactory loan documentation consistent with
PRECEDENT transactions of this type to include representations and
warranties, affirmative and negative covenants, financial
covenants, and events of default; (b) as of the date of the
loan's funding, no change in control of the Borrower's
ownership interest has occurred, two out of three of the
Borrower's key executives form an active part of the
Borrower's management team, and no material adverse change has
occurred in the financial condition of the Borrower since
receipt of the most current financial statement prior to the
issuance of this letter by the Bank; (c) as of the date of the
loan's funding, there exists no Event
<PAGE> 4
- ----------------- -------------------------------------------------------------
of Default (or event with which notice or lapse of time
or both could constitute an Event of Default) under any of
the Loan Documents; (d) satisfactory quantification of
attorney's fees and legal expenses, and impact on the Company
of the Gamma Biological Inc. patent-infringement lawsuit; and
(e) satisfactory review of agreement to purchase Gamma
Biological Inc.
- ----------------- -------------------------------------------------------------
12. OTHER (a) all loans will be cross-defaulted with the Company's
CONDITIONS direct and indirect obligations; (b) maintenance of key
officers; (c) limitations on: indebtedness; liens, guarantee
obligations; mergers; consolidations; liquidations and
dissolutions; and sale of assets; (d) no change in control of
the Borrower's ownership interest, two out of three of the
Borrower's key executives from an active part of the
Borrower" management team, and no material adverse change in
the financial condition of the Borrower since receipt of the
most current financial statement (e) maintenance of adequate
insurance coverage, including general liability, product
liability, and business interruption underwritten by
insurance companies and policies that are acceptable to the
Bank; (f) prior to closing, the Borrower shall have developed
and delivered to Lender a written plan (Y2K Plan),
satisfactory to lender, detailing all actions necessary to
assure that their computer-based systems are able to
effectively process data, including dates, on and after
January 1, 2000; and (g) Bank's right to inspect property,
books, and records at any reasonable time in its sole
discretion.
- ----------------- -------------------------------------------------------------
13. COSTS The Borrower agrees to pay all of the costs, expenses,
and fees incurred in connection with the negotiation,
preparation for, and closing of the Facilities herein
outlined, whether or not the outlined Facilities are closed,
including but not limited to all legal fees including the
fees of the Bank" counsel.
- ----------------- -------------------------------------------------------------
14. CONSEQUENTIAL In no event shall either the Borrower or the Bank be liable to
DAMAGES the other for indirect, special, or consequential damages,
including the loss of anticipated profits that may arise out
of or are in any way connected with the issuance of this term
sheet.
- ----------------- -------------------------------------------------------------
15. MODIFICATIONS No condition or other term of this term sheet may be waived or
modified except by a writing signed by both the Borrower and
the Bank. This requirement of a writing to waive or modify
provisions of this commitment cannot itself be waived or
negated.
- ----------------- -------------------------------------------------------------
16. APPLICABLE State of Georgia
LAW
- -------------------------------------------------------------------------------
This term sheet is not assignable by the Borrower and no other party other than
the Borrower is entitled to reply. Without the prior consent of the Bank, the
contents or existence of this term sheet may not be disclosed to any third
party (including, without any limitation, any other
<PAGE> 5
bank or financial institution), either orally or in writing (except by the
Borrower (i) to their equity-owners, directors, officers, employees, legal
counsel, financial advisors and accountants on a confidential basis or (ii) as
required by law).
<PAGE> 6
ANNEX I
Pricing Grid
The Borrower, at its option will have the option of borrowing at the Prime Rate
of LIBOR.
The Prime rate refers to that interest rate so denominated and set forth by the
Bank from time to time as an interest rate basis for borrowings. The Prime rate
is one of several interest rate bases used by the Bank. The Bank lends at
interest rates above and below the Prime rate.
The LIBOR rate shall be determined by the following matrix as of the end of the
last fiscal quarter and shall be calculated on the basis of a 360-day year. The
initial rate will be LIBOR plus 120 basis points. A maximum of three (3) LIBOR
contracts may be outstanding at any one time. LIBOR borrowings shall be in
minimum increments of $500,000.
Basis Points over LIBOR
- ----------------- --------------- --------------- --------------- --------------
F/E < 2.00 2.50>F/E>2.00 3.00>F/E>2.50 3.50>F/E>3.00 F/E > 3.50
- ----------------- --------------- --------------- --------------- --------------
- ----------------- --------------- --------------- --------------- --------------
50 75 100 120 140
- ----------------- --------------- --------------- --------------- --------------
- ----------------- --------------- --------------- --------------- --------------
- ----------------- --------------- --------------- --------------- --------------
Funded Debt to EBITDA (F/E): The ratio of (i) all obligations evidenced
by bonds, debentures, notes or other
similar instruments (inclusive of capital
leases, banker's acceptances, obligations
to reimburse, but exclusive of trade
accounts payable in the ordinary course of
business) to (ii) Net income plus Interest,
Taxes, Depreciation and Amortization for
the Fiscal/Calendar Quarter just ended and
the immediately preceding three
Fiscal/Calendar Quarters.
The rate of interest of an applicable Interest Period shall be equal to the
quotient obtained by dividing (i) the applicable LIBOR for such Interest Period
by (ii) 1.00 minus the "Eurodollar Reserve Percentage."
LIBOR for an applicable Interest Period shall mean a rate for deposits in U.S.
Dollars, with maturities comparable to the applicable Interest Period, that
appears on the display designated as page "3750" of the Telerate Service (or
such page as may replace page 3750 of that service or services as may be
designated by the British Banker's Association for the purpose of displaying
London Interbank Offered Rates for U.S. Dollar deposits) determined as of 11:00
a.m. (London time) two (2) business days prior to the commencement of such
Interest Period.
<PAGE> 7
The applicable Interest Period will be defined as the period commencing on the
borrowing date and ending one, two, three or six months thereafter.
Eurodollar reserve Percentage means for any day that percentage (expressed as
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal reserve System (or any successor) for determining the
maximum reserve requirement for a member bank of the Federal reserve System in
respect of Eurocurrency Liabilities (as adjusted automatically on and as of the
effective date of any change in the Eurodollar reserve Percentage).
<PAGE> 8
ANNEX II
Financial Covenants
Fixed Charge Coverage
The ratio of (i) Net income plus Interest, Taxes, Depreciation and
Amortization, and Rental and Lease Expense for the Fiscal/Calendar Quarter just
ended and the immediately preceding three Fiscal/Calendar Quarters to (ii)
Principal repayments of term Debt, plus Interest Expense, Rental and Lease
Expense, plus Non-Financed Capital Expenditures, and Dividend Distributions for
the Fiscal/Calendar Quarter just ended and the immediately preceding three
Fiscal/Calendar Quarters.
Funded Debt to EBITDA
The ratio of (i) all obligations evidenced by bonds, debentures, notes or other
similar instruments (inclusive of capital leases, banker's acceptances,
obligations to reimburse, but exclusive of trade accounts payable in the
ordinary course of business) to (ii) Net income plus Interest, Taxes,
Depreciation and Amortization for the Fiscal/Calendar Quarter just ended and
the immediately preceding three Fiscal/Calendar Quarters.
Funded Debt to Capitalization
The ratio of (i) all obligations evidenced by bonds, debentures, notes or other
similar instruments (inclusive of capital leases, banker's acceptances,
obligations to reimburse, but exclusive of trade accounts payable in the
ordinary course of business) to (ii) all obligations included in (I) plus
Stockholder's Equity.
Liquidity Ratio
The ratio of (i) cash plus trade accounts receivable plus inventories to (ii)
current liabilities, inclusive of current portion of long-term debt.
<PAGE> 1
EXHIBIT (c)(1)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of September 21, 1998
(this "AGREEMENT"), is made by and among IMMUCOR, INC., a Georgia corporation
("PARENT"), GAMMA ACQUISITION CORPORATION, a Texas corporation and wholly owned
subsidiary of Parent ("MERGER SUB"), and GAMMA BIOLOGICALS, INC., a Texas
corporation (the "Company").
In consideration of the respective representations, warranties, and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I.
THE TENDER OFFER AND MERGER
SECTION 1.01 TENDER OFFER
(a) As promptly as practicable, but in no event later than five
business days after the public announcement of the execution of this Agreement,
Merger Sub will, and Parent will cause Merger Sub to, offer to purchase (the
"OFFER") each outstanding share of Common Stock, $.10 par value (the "COMMON
STOCK"), of the Company, including the associated Company Right (as defined in
Section 3.06) (together with the Company Right, "COMPANY STOCK"), tendered
pursuant to the Offer at a price of $5.40 per share, net to the seller in cash.
The obligations of Merger Sub and Parent to consummate the Offer and to accept
for payment and purchase the Company Stock tendered in the Offer will be
subject only to the conditions set forth in Schedule 1.01(a) (Offer Conditions)
(the "OFFER CONDITIONS"). The expiration date of the Offer shall be twenty (20)
business days after commencement. Parent and Merger Sub agree that if all of
the Offer Conditions are not satisfied on such initial expiration date then,
provided that Parent determines that all Offer Conditions are reasonably
capable of being satisfied and subject to Securities and Exchange Commission
(the "SEC") rules with respect to extension of time periods, Merger Sub may
extend the Offer from time to time until all Offer Conditions have been
satisfied or waived. Parent and Merger Sub agree that upon the expiration date
of the Offer, as the same may be extended in accordance with the immediately
preceding sentence, if all Offer Conditions have been satisfied, Merger Sub
shall accept the shares of Company Stock properly tendered for purchase,
subject to the right to extend the Offer not more than ten (10) business days
in the aggregate if less than 90% of the Company Stock have been properly
tendered, such 90% to be calculated after giving effect to the conversion of
any securities convertible into Common Stock, and the exercise of any options,
warrants or other rights to acquire Common Stock.
(b) On the date of the commencement of the Offer, Merger Sub and
Parent will file with the SEC their Tender Offer Statement on Schedule 14D-1
(together with all supplements or amendments thereto, and including all
exhibits, the "OFFER DOCUMENTS"). Merger Sub and Parent will give the Company
and its counsel a reasonable opportunity to review and comment upon the Offer
Documents prior to their being filed with the SEC or disseminated to the
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Company's stockholders. Parent and Merger Sub agree that the Offer Documents
shall comply as to form in all material respects with the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations
promulgated thereunder, and the Offer Documents, on the date filed with the SEC
and on the date first published, sent, or given to the Company's stockholders,
shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representation or warranty is made by Parent or
Merger Sub with respect to information supplied by the Company or any of its
stockholders in writing specifically for inclusion or incorporation by
reference in the Offer Documents. Each of Parent, Merger Sub, and the Company
agrees promptly to correct any information provided by it for use in the Offer
Documents if and to the extent that such information shall have become false or
misleading in any material respect, and Parent and Merger Sub further agree to
take all steps necessary to cause the Offer Documents as so corrected to be
filed with the SEC and the other Offer Documents as so corrected to be
disseminated to the Company's stockholders, in each case as and to the extent
required by applicable federal securities laws. Parent and Merger Sub agree to
provide the Company and its counsel any comments Parent, Merger Sub, or their
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments.
(c) As promptly as practicable, but in no event later than the
date on which Parent shall have notified the Company that the Offer Documents
initially are to be filed with the SEC, the Company will file its Tender Offer
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the
Offer (together with all supplements or amendments thereto, and including all
exhibits, ("SCHEDULE 14D-9"), which shall include a recommendation by the
Company's Board of Directors that the Company's stockholders accept the Offer
and tender their Company Stock pursuant to the Offer. The Company agrees that
the Schedule 14D-9 shall comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder and, on the date filed with the SEC and on the date first published,
sent, or given to the Company's stockholders, shall not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, except that no
representation or warranty is made by the Company with respect to information
supplied by Parent or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9. Each of the Company, Parent, and Merger Sub agrees promptly to
correct any information provided by it for use in the Schedule 14D-9 if and to
the extent that such information shall have become false or misleading in any
material respect, and the Company further agrees to take all steps necessary to
amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so
amended or supplemented to be filed with the SEC and disseminated to the
Company's stockholders, in each case as and to the extent required by
applicable federal securities laws. Parent and its counsel shall be given
reasonable opportunity to review and comment upon the Schedule 14D-9 prior to
its filing with the SEC or dissemination to stockholders of the Company. The
Company agrees to provide Parent and its counsel any comments the Company or
its counsel may receive from the SEC or its staff with respect to the Schedule
14D-9 promptly after the receipt of such comments. The Company's Board of
Directors has resolved to recommend that the Company's stockholders accept the
Offer and tender their Company Stock pursuant to the Offer and has received an
opinion from Dain
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Rauscher Wessels that, as of the date of such opinion, the consideration to be
received by the stockholders of the Company pursuant to the Offer and the
Merger is fair to such stockholders from a financial point of view. In
addition, the Company shall cause its transfer agent to furnish Parent and
Merger Sub with mailing labels, security position listings and any available
listings or computer files containing the names and addresses of record holders
of the Common Stock or the Company Stock as of a recent date, and shall furnish
to Parent and Merger Sub such information and assistance as the Parent or
Merger Sub may reasonably request in communicating the Offer to the Company's
stockholders.
(d) If requested by Parent or Merger Sub, the Company will,
promptly following the purchase by Merger Sub pursuant to the Offer of that
number of shares of Company Stock which, when aggregated with the shares of
Company Stock then owned by Parent and any of its affiliates, represents at
least a majority of the shares of Company Stock then outstanding on a fully
diluted basis, take all actions necessary to cause persons designated by Merger
Sub to become directors of the Company so that the total number of directors so
designated equals the product, rounded up to the next whole number, of (i) the
total number of directors of the Company multiplied by (ii) the ratio of the
number of shares of Company Stock beneficially owned by Merger Sub or its
affiliates at the time of such purchase over the number of shares of Company
Stock then outstanding. In furtherance thereof, the Company will take whatever
action is necessary, including but not limited to amending the Company's
bylaws, to increase the size of its Board of Directors, or use reasonable
efforts to secure the resignation of directors, or both, as is necessary to
permit that number of Merger Sub's designees to be elected to the Company's
Board of Directors; provided that, prior to the Effective Time, the Company's
Board of Directors will always have at least two members who are not officers,
designees, stockholders, or affiliates of Merger Sub ("INDEPENDENT Directors").
All of the Independent Directors will be individuals who are currently
directors of the Company, except to the extent that no such individuals wish to
be directors. The Company's obligations to appoint designees to its Board of
Directors will be subject to Section 14(f) of the Exchange Act, and Rule 14f-1
promulgated thereunder. Parent and Merger Sub will supply to the Company and
will be solely responsible for any information with respect to either of them
and their nominees, officers, directors, and affiliates required by Section
14(f) and Rule 14f-1. The Company will promptly take all actions required
pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations
under this Section 1.01 and (provided that Merger Sub shall have provided to
the Company on a timely basis all information required to be included in the
Information Statement with respect to Merger Sub's designees) will include in
the Schedule 14D-9 such information with respect to the Company and its
officers and directors as is required under Section 14(f) and Rule 14f-1.
(e) Following the election or appointment of Merger Sub's
designees pursuant to Section 1.01(d), any amendment to this Agreement, any
termination of this Agreement by the Company, any extension by the Company of
the time for the performance of any of the obligations of Merger Sub or Parent
under this Agreement, any recommendation to stockholders or any modification or
withdrawal of any such recommendation, the retention of counsel and other
advisors in connection with the transactions contemplated hereby, or any waiver
of any of the Company's rights under this Agreement will require the
concurrence of a majority of the Independent Directors, unless no individuals
who are currently directors of the Company wish to be directors. In addition,
the Independent Directors shall have the right to retain, at the expense
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of the Company, one separate firm of counsel to represent them in connection
with the transactions contemplated hereby.
(f) The parties will cooperate with each other, including by
furnishing any necessary information and making any filings required by
applicable law, to ensure that the matters contemplated by this Section 1.01
are consummated as promptly as practicable.
SECTION 1.02 THE MERGER.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as defined in Section 1.02(b)), Merger Sub
will be merged with and into the Company in accordance with the Texas Business
Corporation Act ("TEXAS LAW"). As a result of this merger (the "MERGER"), the
separate existence of Merger Sub will cease and the Company will be the
surviving corporation (the "SURVIVING CORPORATION").
(b) As soon as practicable after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger set forth in
Article VII, the parties will cause articles of merger in such form as is
required by, and executed in accordance with, Texas Law to be duly filed with
the Secretary of State of the State of Texas. The Merger will become effective
when the articles of merger are so filed and the certificate of merger is
issued by the Secretary of State of Texas (the "EFFECTIVE TIME").
(c) From and after the Effective Time, the Merger will have the
effects specified in Texas Law.
(d) The closing of the Merger (the "CLOSING") will take place
(i) at the offices of Nelson Mullins Riley & Scarborough, L.L.P., 999 Peachtree
Street, N.E., Suite 1400, Atlanta, Georgia 30309, at 10:00 a.m. on the first
business day following the date on which the last to be fulfilled or waived of
the conditions set forth in Article VII (other than those conditions that by
their nature are to be satisfied at the Closing, but subject to the fulfillment
or waiver of those conditions at the Closing) have been satisfied or waived in
accordance with this Agreement or (ii) at such other place and time as the
parties may agree.
SECTION 1.03 CONVERSION OF SHARES.
At the Effective Time:
(a) Each share of Common Stock of Merger Sub (a share of "MERGER
SUB COMMON STOCK") issued and outstanding immediately prior to the Effective
Time will be converted into one share of Common Stock of the Surviving
Corporation.
(b) Each share of Company Stock issued and outstanding immediately
prior to the Effective Time will, except as otherwise provided in Section
1.03(c), be converted, by virtue of the Merger and without any action on the
part of the holder thereof, into the right to receive, without interest, an
amount in cash equal to the price per share paid in the Offer (the "MERGER
CONSIDERATION"). Subject to Section 1.06, from and after the Effective Time,
all shares of
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Company Stock, by virtue of the Merger and without any action on the part of
the holders thereof, will be canceled and retired and cease to exist, and each
holder of a certificate representing any shares of Company Stock immediately
prior to the Effective Time (a "STOCK CERTIFICATE") will thereafter cease to
have any rights with respect to such shares of Company Stock, except the right
to receive the Merger Consideration therefor upon the surrender of the Stock
Certificate in accordance with Section 1.04.
(c) Each outstanding share of Company Stock held by the Company
as a treasury share or owned by Parent, Merger Sub, or any other Subsidiary (as
defined in Section 3.07) of Parent immediately prior to the Effective Time will
be canceled, and no payment will be made with respect thereto.
SECTION 1.04 SURRENDER AND PAYMENT.
(a) Prior to the Effective Time, Parent will appoint a bank or
trust company reasonably acceptable to the Company (the "EXCHANGE AGENT") for
the purpose of exchanging Stock Certificates. Parent will make available to the
Exchange Agent funds in amounts and at the times necessary for the payment of
the Merger Consideration in accordance with this Section 1.04 (such cash is
referred to as the "EXCHANGE FUND").
(b) Promptly, but in no event more than five business days, after
the Effective Time, Parent will send, or will cause the Exchange Agent to send,
to each holder of a Stock Certificate a letter of transmittal and instructions
for use in surrendering the Stock Certificates for payment in accordance with
this Section 1.04. The agreement with the Exchange Agent will provide that,
upon surrender to the Exchange Agent of such Stock Certificates, together with
the letter of transmittal, duly executed and completed in accordance with the
instructions thereto and such other documents as may be reasonably required by
the Exchange Agent, the Exchange Agent shall promptly pay to the persons
entitled thereto, out of the Exchange Fund, a check in the amount to which such
persons are entitled pursuant to Section 1.03(b), after giving effect to any
required tax withholdings, and such Stock Certificate shall forthwith be
canceled.
(c) After the Effective Time, Stock Certificates will represen
the right, upon surrender thereof to the Exchange Agent, together with a duly
executed and properly completed letter of transmittal relating thereto, to
receive (i) cash in the amount to which such holder is entitled under Section
1.03 after giving effect to any required tax withholding or (ii) payment from
the Surviving Corporation of the "fair value" of such shares of Company Stock
as determined under Articles 5.11, 5.12, and 5.16(E), as applicable, of Texas
Law, subject to the conditions set forth therein and in accordance with Section
1.06 of this Agreement. No interest will be paid or will accrue on such amount.
(d) If any cash is to be paid to a Person other than the
registered holder of the Stock Certificates surrendered in exchange therefor,
it will be a condition to such payment that the Stock Certificates so
surrendered be properly endorsed or otherwise in proper form for transfer and
that the Person requesting such payment pay to the Exchange Agent any transfer
or other taxes required as a result of such issuance or establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. For purposes of this Agreement, "PERSON"
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means an individual, a corporation, a partnership, a limited liability company,
an association, a trust, or any other entity or organization, including a
governmental or political subdivision or any agency or instrumentality thereof.
(e) At and after the Effective Time, the stock transfer books of
the Company will be closed, and there will be no further registration of
transfers of shares of Company Stock outstanding prior to the Effective Time.
If, at or after the Effective Time, Stock Certificates are presented to the
Surviving Corporation, they will be canceled and exchanged in accordance with
this Article I.
(f) Any cash in the Exchange Fund that remains unclaimed by the
holders of shares of Company Stock six months after the Effective Time will be
returned to Parent, upon demand, and any such holder who has not surrendered
his shares of Company Stock in accordance with this Section 1.04 prior to that
time will thereafter look only to Parent, as a general creditor thereof, to pay
the Merger Consideration to which such holder is entitled. Notwithstanding the
foregoing, Parent will not be liable to any holder of shares of Company Stock
for any amount paid to a public official pursuant to applicable abandoned
property, escheat, or similar laws.
(g) If any Stock Certificate is lost, stolen, or destroyed, upon
the making of an affidavit of that fact by the Person claiming such Stock
Certificate to be lost, stolen, or destroyed and, if required by the Surviving
Corporation, the posting by such Person of a bond in such reasonable amount as
Parent may direct as indemnity against any claim that may be made against it
with respect to such Stock Certificate, the Exchange Agent will pay the Merger
Consideration payable in respect of such Stock Certificate pursuant to this
Agreement.
SECTION 1.05 COMPANY OPTIONS.
The Board of Directors of the Company (or, if appropriate, any
committee administering the Stock Option Plans (as defined below)) shall adopt
such resolutions or take such other actions as are required to provide that (i)
each outstanding stock option or warrant to purchase shares of Company Stock (a
"STOCK OPTION") heretofore granted under any employee stock option plan, stock
option or warrant plan for directors, or other incentive plan of the Company
(collectively, the "STOCK OPTION PLANS") outstanding immediately prior to the
consummation of the Offer, whether or not then exercisable, shall be cancelled
immediately prior to the consummation of the Offer in exchange for an amount in
cash, payable at the time of such cancellation, equal to the product of (y) the
number of shares of Company Stock subject to such Stock Option immediately
prior to the consummation of the Offer and (z) the excess of the price per
share to be paid in the Offer over the per share exercise price of such Stock
Option. All Stock Option Plans shall terminate as of the Effective Time and the
provisions in any other Company Benefit Arrangement (as defined herein)
providing for the issuance, transfer or grant of any capital stock of the
Company or any interest in respect of any capital stock of the Company shall be
deleted as of the Effective Time, and the Company shall ensure that following
the Effective Time no holder of a Stock Option or any participant in any Stock
Option Plan shall have any right thereunder to acquire any capital stock of the
Company, Parent or the Surviving Corporation, except as provided in Section
1.05.
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SECTION 1.06 SHARES OF DISSENTING STOCKHOLDERS.
Notwithstanding anything in this Agreement to the contrary, any issued
and outstanding shares of Company Stock held by a person (a "DISSENTING
STOCKHOLDER") who objects to the Merger and complies with all the provisions of
Texas Law concerning the right of holders of shares of Company Stock to dissent
from the Merger and require appraisal of their shares shall not be converted as
described in Section 1.03(b), but shall be converted into the right to receive
such consideration as may be determined to be due to such Dissenting
Stockholder pursuant to Texas Law. If, after the Effective Time, such
Dissenting Stockholder withdraws his demand for appraisal in accordance with
Article 5.13 of Texas Law or fails to perfect or otherwise loses his right to
appraisal, in any case pursuant to Texas Law, his shares of Company Stock shall
be deemed to be converted as of the Effective Time into the right to receive
the Merger Consideration. The Company shall give Parent (i) prompt notice of
any demands for appraisal of shares of Company Stock received by the Company
and (ii) the opportunity to participate in all negotiations and proceedings
with respect to any such demands. The Company shall not, without the prior
written consent of Parent, make any payment with respect to, or settle, offer
to settle, or otherwise negotiate, any such demands.
SECTION 1.07 OTHER AGREEMENTS.
In connection with the execution and delivery of this Agreement, the
Company has granted to Merger Sub an option to purchase 19.9% of the Company's
Company Stock, giving effect to the exercise of such option (the "PARENT STOCK
OPTION"); and certain shareholders of the Company have granted options to
Merger Sub to purchase their shares of Company Stock (the "INSIDER LOCK-UP
OPTIONS").
ARTICLE II.
THE SURVIVING CORPORATION
SECTION 2.01 ARTICLES OF INCORPORATION.
The articles of incorporation of Merger Sub in effect immediately
prior to the Effective Time will be the articles of incorporation of the
Surviving Corporation after the consummation of the Merger until amended in
accordance with applicable law.
SECTION 2.02 BYLAWS.
The bylaws of Merger Sub in effect immediately prior to the Effective
Time will be the bylaws of the Surviving Corporation after the consummation of
the Merger until amended in accordance with applicable law.
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SECTION 2.03 DIRECTORS AND OFFICERS.
From and after the Effective Time, until successors are duly elected
or appointed and qualified in accordance with applicable law, the directors and
officers of Merger Sub immediately prior to the Effective Time will be the
directors and officers of the Surviving Corporation after the consummation of
the Merger.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent that:
SECTION 3.01 CORPORATE EXISTENCE AND POWER.
The Company is a corporation duly incorporated, validly existing, and
in good standing under the laws of the State of Texas and has all requisite
corporate power and authority to own, lease, and operate its properties and to
carry on its business as now conducted. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where it is required to be so qualified by reason of the character of the
property owned or leased by it or the nature of its activities, except where
the failure to be qualified or in good standing is not, individually or in the
aggregate, reasonably likely to have a Company Material Adverse Effect (as
defined in the Offer Conditions).
SECTION 3.02 CORPORATE AUTHORIZATION.
The execution, delivery, and performance by the Company of this
Agreement and the consummation by the Company of the Merger and the other
transactions contemplated hereby are within the Company's corporate power and
authority and, except for any required approval by the Company's stockholders
in connection with the consummation of the Merger, have been duly authorized by
all necessary corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company and, assuming the due
authorization, execution, and delivery hereof by Parent and Merger Sub,
constitutes a legal, valid, and binding agreement of the Company.
SECTION 3.03 GOVERNMENTAL AUTHORIZATION.
The execution, delivery, and performance by the Company of this
Agreement and the consummation by the Company of the Merger and the other
transactions contemplated hereby do not require any material consent, approval,
authorization, or permit of, other action by, or filing with, any governmental
body, agency, official, or authority other than (i) as set forth on Section
3.03 of the Disclosure Schedule delivered by the Company to Parent concurrently
with the execution and delivery of this Agreement (the "COMPANY DISCLOSURE
SCHEDULE"), (ii) the filing of appropriate certificates of merger in accordance
with Texas Law, (iii) the filing and delivery of the Schedule 14D-9, and (iv)
compliance with applicable requirements of the Exchange Act.
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SECTION 3.04 ARTICLES OF INCORPORATION AND BYLAWS.
Section 3.04 of the Company Disclosure Schedule includes true, correct
and complete copies of the articles of incorporation and the bylaws or the
equivalent organizational documents, in each case as amended or restated as of
the date hereof, of the Company and each of its Subsidiaries.
SECTION 3.05 NON-CONTRAVENTION.
The execution, delivery, and performance by the Company of this
Agreement, the purchase of shares of Company Stock by Merger Sub pursuant to
the Offer, and the consummation by the Company of the Merger and the other
transactions contemplated by this Agreement do not and will not (i) contravene
or conflict with the articles of incorporation or bylaws of the Company or any
of its Subsidiaries (ii) contravene, conflict with, or constitute a violation
of any provision of any law, rule, regulation, judgment, injunction, order, or
decree binding upon or applicable to the Company or any of its Subsidiaries,
(iii) constitute a default, give rise to a right of termination, cancellation,
or acceleration of any material right or obligation of the Company or any of
its Subsidiaries, or give rise to a loss of any material benefit to which the
Company or any of its Subsidiaries is entitled, under any provision of any
agreement or other instrument binding upon the Company or any of its
Subsidiaries or under any license, franchise, permit, or other similar
authorization held by the Company or any of its Subsidiaries, or (iv) result in
the creation or imposition of any Lien on any asset of the Company or any of
its Subsidiaries; in each case except as set forth in Section 3.05 of the
Company Disclosure Schedule and except for any occurrences or results referred
to in clauses (ii), (iii), and (iv) that would not be reasonably likely to
prevent or delay consummation of the Offer or the Merger or, individually or in
the aggregate, have a Company Material Adverse Effect. For purposes of this
Agreement, "Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, encumbrance, or other right or interest of another
to or in, or adverse claim of any kind in respect of, such asset.
SECTION 3.06 CAPITALIZATION.
(a) The Company has 26,000,000 authorized shares, consisting of
25,000,000 shares of Common Stock and 1,000,000 shares of Preferred Stock,
$10.00 par value, of the Company ("COMPANY PREFERRED STOCK"). As of the date
hereof, (i) 4,625,762 shares of Company Stock were issued and outstanding, (ii)
753,410 shares of Company Stock were reserved for future issuance upon exercise
of outstanding Company Options granted pursuant to the Company Option Plans,
and (iii) 4,625,762 shares of Company Common Stock were reserved for issuance
upon exercise of the rights (the "COMPANY RIGHTS" or, individually, a "COMPANY
RIGHT") distributed in connection with the Rights Agreement, adopted as of
September 5, 1989 and subsequently amended (as amended, the "COMPANY RIGHTS
AGREEMENT"). As of the date of this Agreement, no shares of Company Preferred
Stock were issued and outstanding. Except as described in this Section 3.06 or
in Section 3.06 of the Company Disclosure Schedule, as of the date of this
Agreement, no shares of capital stock of the Company are reserved for issuance.
Each of the issued and outstanding shares of Common Stock is duly authorized,
validly issued,
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and fully paid and nonassessable and has not been issued in violation of (nor
are any of the authorized shares of Common Stock subject to) any preemptive or
similar rights created by statute, the articles of incorporation or the bylaws
of the Company, or any agreement to which the Company is a party or is bound,
or any applicable provision of law. Each of the issued and outstanding Company
Rights is duly authorized and validly issued,
(b) Except as set forth in paragraph (a) of this Section 3.06 o
as set forth on Section 3.06 of the Company Disclosure Schedule, there are no
options, warrants, or other rights (including but not limited to registration
rights and conversion rights), agreements, arrangements, or commitments to
which the Company is a party relating to the issued or unissued capital stock
of the Company or obligating the Company to grant, issue, or sell any capital
stock of the Company or other security of the Company. Except as set forth in
Section 3.06 of the Company Disclosure Schedule, there are no obligations,
contingent or otherwise, of the Company to (i) purchase, redeem, or otherwise
acquire any shares of Company Stock, other capital stock of the Company, or
capital stock or other equity interests of any Subsidiary of the Company; or
(ii) (other than advances to Subsidiaries, and prepayments to other Persons for
goods or services, in the ordinary course of business) provide a material
amount of funds to, or make any material investment in, or provide any
guarantee with respect to the obligations of, any Subsidiary of the Company or
any other Person.
(c) Section 3.06 of the Company Disclosure Schedule lists, as of
the date indicated, the number of shares of Company Stock subject to
outstanding Company Options and the exercise price of each outstanding Company
Option. The Company has made available to Parent and Merger Sub complete and
correct copies of the Company Option Plans and all forms of Company Options.
SECTION 3.07 SUBSIDIARIES.
(a) For purposes of this Agreement, "SUBSIDIARY" of any Person
means (i) any corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are, directly
or indirectly, owned by such Person, and (ii) any partnership of which such
Person is a general partner. Section 3.07 of the Company Disclosure Schedule
sets forth a complete and accurate list of the Subsidiaries of the Company and
indicates for each such Subsidiary the jurisdiction of incorporation or
organization. Each Subsidiary of the Company is a corporation duly
incorporated, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation or is a partnership duly constituted under
its governing law, has the requisite corporate or partnership power and
authority to own, lease, and operate its properties and to carry on its
business substantially as now conducted, and is duly qualified to do business
as a foreign corporation or partnership and is in good standing in each
jurisdiction where it is required to be so qualified by reason of the character
of the property owned or leased by it or the nature of its activities, except
where the failure to be qualified or in good standing is not, individually or
in the aggregate, reasonably likely to have a Company Material Adverse Effect.
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(b) Except as set forth in Section 3.07 of the Company Disclosure
Schedule, all of the outstanding capital stock or other ownership interests in
each Subsidiary of the Company is owned by the Company, directly or indirectly,
free and clear of any Lien and free and clear of any other limitation or
restriction (including any restriction on the right to vote, sell, or otherwise
dispose of such capital stock or other ownership interests). Except as set
forth in Section 3.07 of the Company Disclosure Schedule, there are no
outstanding (i) securities of the Company or any of its Subsidiaries
convertible into or exchangeable for shares of capital stock or other voting
securities or ownership interests in any such Subsidiary of the Company or (ii)
options or other rights to acquire from the Company or any of its Subsidiaries,
and no other obligation of the Company or any of its Subsidiaries to issue, any
capital stock, voting securities, or other ownership interests in, or any
securities convertible into or exchangeable for any capital stock, voting
securities, or ownership interests in, any such Subsidiary of the Company (the
items in clauses (i) and (ii), including capital stock, are collectively
referred to as the "COMPANY SUBSIDIARY SECURITIES"). There are no outstanding
obligations of the Company or any of its Subsidiaries to transfer, sell,
pledge, repurchase, redeem, or otherwise acquire any outstanding Company
Subsidiary Securities.
SECTION 3.08 COMPANY SEC REPORTS.
Since April 1, 1993, the Company has filed all forms, reports,
registration statements and other documents required to be filed by it with the
SEC, including without limitation (i) all Annual Reports on Form 10-K, (ii) all
Quarterly Reports on Form 10-Q, (iii) all proxy statements relating to meetings
of stockholders (whether annual or special), and (iv) all Current Reports on
Form 8-K. (All of the documents filed by the Company with the SEC during such
period, including all exhibits contained or incorporated by reference in such
documents, are collectively referred to as the "COMPANY SEC REPORTS"). The
Company SEC Reports, as amended to date, (x) were prepared in accordance with
the requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT"), or the Exchange Act, as the case may be, and (y) did not at the time
they were filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 3.09 FINANCIAL STATEMENTS; NO UNDISCLOSED LIABILITIES.
The audited consolidated financial statements and unaudited
consolidated interim financial statements (including the related notes and
schedules) of the Company and its Subsidiaries included or incorporated by
reference in the Company SEC Reports (the "COMPANY FINANCIAL STATEMENTS") were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis (except as may be indicated in the notes thereto and except
that such unaudited interim financial statements do not contain full footnote
disclosure) and fairly present the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the periods then ended,
subject, in the case of any unaudited interim financial statements, to normal
year-end adjustments, none of which would be reasonably likely to be,
individually or in the aggregate, material in amount. Neither the Company nor
its Subsidiaries have any liabilities, whether accrued, contingent, or
otherwise, required by generally accepted accounting principles
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or applicable SEC rules to be disclosed by the Company in the Company Financial
Statements other than (i) liabilities disclosed in the Company Financial
Statements or the Company SEC Reports, and (ii) liabilities for which the
Company has made adequate reserves as reflected in the Company Financial
Statements.
SECTION 3.10 MATERIAL CONTRACTS.
Except as set forth in Section 3.10 of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries is a party to, or is
bound by (a) any material agreement, indenture, or other instrument relating to
the borrowing of money by the Company or any of its Subsidiaries or the
guarantee by the Company or any of its Subsidiaries of any such obligation or
(b) any other contract or agreement or amendment thereto that (i) should be or
should have been filed as an exhibit to a Form 10-K filed or to be filed by the
Company with the SEC, (ii) places any material restrictions on the right of the
Company or any of its Subsidiaries to engage in any material business activity
currently conducted, or (iii) is otherwise material to the financial condition,
results of operations or business of the Company and its Subsidiaries, taken as
a whole (collectively, the "COMPANY CONTRACTS"). Neither the Company nor any of
its Subsidiaries is in material default under any Company Contract, and there
has not occurred any event that with the lapse of time or the giving of notice
or both would constitute such a material default.
SECTION 3.11 ABSENCE OF CERTAIN CHANGES.
Except as disclosed in Section 3.11 of the Company Disclosure
Schedule, since March 31, 1998: (a) the Company and its Subsidiaries have
conducted their business in all material respects in the ordinary course
consistent with reasonable past practices, (b) there has not been any change or
development, or combination of changes or developments, in the business,
operations, or financial condition of the Company or any of its Subsidiaries
which are reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect, (c) there has not been any declaration,
setting aside, or payment of any dividend or other distribution with respect to
any shares of capital stock of the Company, or any repurchase, redemption, or
other acquisition by the Company or any of its Subsidiaries of any outstanding
shares of capital stock or other securities of, or other ownership interests
in, the Company or any of its Subsidiaries, (d) there has not been any
amendment of any term of any outstanding security of the Company or any of its
Subsidiaries, (e) there has not been any incurrence, assumption, or guarantee
by the Company or any of its Subsidiaries of any indebtedness for borrowed
money other than in the ordinary course of business and in amounts and on terms
consistent with reasonable past practices, (f) there has not been any creation
or assumption by the Company or any of its Subsidiaries of any Lien on a
material amount of assets (including the sale, pledge, or assignment of a
material amount of receivables) other than in the ordinary course of business
consistent with past practices, and (g) there has not been any change in any
method of accounting or accounting practice by the Company or any of its
Subsidiaries, except for any such change required by reason of a concurrent
change in generally accepted accounting principles or to conform a Subsidiary's
accounting policies and practices to those of the Company. Furthermore, except
as disclosed in Section 3.11 of the Company Disclosure Schedule, since March
31, 1998, there has not been any (i) grant of any severance or termination pay
or stay-in-place bonus to any director or officer of the Company or any of its
Subsidiaries, (ii) entering into
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of any employment, deferred compensation, or other similar agreement (or any
amendment to any such existing agreement) with any director or officer of the
Company or any of its Subsidiaries, (iii) increase in benefits payable under
any existing severance or termination pay or stay-in-place bonus policies or
agreements with any director or officer of the Company or any of its
Subsidiaries, (iv) increase in compensation, bonus, or other benefits payable
to directors or executive officers of the Company or any of its Subsidiaries,
or (v) general increase in the compensation payable or benefits provided to
other employees of the Company or any of its Subsidiaries.
SECTION 3.12 LITIGATION.
Except as disclosed in Section 3.12 of the Company Disclosure
Schedule, (i) there are no actions, suits, or proceedings pending before, and,
to the knowledge of the Company, there is no pending investigation by, any
court or arbitrator or any governmental body, agency, official, or authority
against the Company, any of its Subsidiaries, or any of their respective
properties, (ii) to the knowledge of the Company, there is no threat of any
such action, suit, or proceeding, and (iii) no judgment, decree, injunction,
rule, order, or similar action of any court or arbitrator or any governmental
body, agency, official or authority, domestic or foreign, is outstanding
against the Company or any of its Subsidiaries.
SECTION 3.13 PERMITS; COMPLIANCE.
Except as is disclosed in Section 3.13 of the Company Disclosure
Schedule, the Company and its Subsidiaries are in possession of all franchises,
grants, authorizations, licenses, permits, easements, variances, exemptions,
consents, certificates, approvals and orders necessary to own, lease and
operate their properties and to carry on their businesses as they are now being
conducted (collectively, the "COMPANY Permits"). Except as set forth in Section
3.13 of the Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries is in conflict with, or in material default or violation of, (a)
any federal, state, or foreign law applicable to the Company or such Subsidiary
or by which any of its properties are bound or subject or (b) any of the
Company Permits. Except as set forth in Section 3.13 of the Company Disclosure
Schedule, since March 31, 1993, the Company has not received any notification
with respect to possible conflicts, defaults, or violations of any federal,
state, or foreign law applicable to the Company or any of its Subsidiaries or
by which any of its or their properties are bound or subject which have not
been cured.
SECTION 3.14 PRODUCT WARRANTIES AND LIABILITIES.
Except as set forth in Section 3.14 of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries knows or has any
reason to believe there is any basis for alleging any claim, liability, damage,
loss, cost or expense as a result of any defect or other deficiency (whether of
design, materials, workmanship, labeling instructions or otherwise) ("PRODUCT
LIABILITY") with respect to any product sold or services rendered by or on
behalf of the Company or any of its Subsidiaries now or in the past, whether
such Product Liability is incurred by reason of any express warranty
(including, without limitation, any warranty of merchantability or fitness),
any doctrine of common law (tort, contract or other), any statutory
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provision, or otherwise and irrespective of whether such Product Liability is
covered by insurance.
SECTION 3.15 ERISA.
(a) As used in this Section 3.15, each of the following terms has the
indicated meaning:
(i) "AFFILIATE" of any Person means any other Person that,
together with such Person, would be treated as a single employer under Section
414 of the Internal Revenue Code of 1986, as amended (the "CODE").
(ii) "COMPANY EMPLOYEE PLANS" means each "employee benefit
plan," as defined in Section 3(3) of ERISA that (A) is subject to any provision
of ERISA and (B) is maintained, administered, contributed to, or required to be
contributed to, as the case may be, by the Company or any Affiliate (while it
is or was an Affiliate of the Company) and covers any employee or former
employee of the Company or any such Affiliate or under which the Company or any
such Affiliate has any liability.
(iii) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
(iv) "COMPANY BENEFIT ARRANGEMENT" means each employment,
severance, welfare, or other similar contract, arrangement, or policy and each
plan or arrangement (written or oral) providing for compensation, benefit,
bonus, pension, retirement, profit-sharing, stock option or other stock related
rights, other forms of incentive or deferred compensation, and each cafeteria,
Section 125, medical, vision, dental, disability, death benefit, life
insurance, health and/or accident, sickness, vacation, paid time off, sick pay,
education-reimbursement, incentive, "change of control," and any other or
similar plan, program, arrangement, agreement or understanding, that (A) is not
a Company Employee Plan, (B) is entered into, maintained, or contributed to, as
the case may be, by the Company or any of its Affiliates (while it is or was an
Affiliate of the Company), or (C) covers any employee or former employee or
director or former director of the Company or any such Affiliate.
(v) "FOREIGN BENEFIT PLAN" means each "employee benefit
plan," as defined in Section 3(3) of ERISA that (A) is established and
maintained outside of the United States primarily for the benefit of
individuals substantially all of whom are nonresident aliens and which is not
subject to any provision of ERISA and (B) is maintained, administered,
contributed to, or required to be contributed to, as the case may be, by the
Company or any Affiliate (while it is or was an Affiliate of the Company) and
covers any employee or former employee of the Company or any such Affiliate
under which the Company or any such Affiliate has any liability, and means each
Company Benefit Arrangement that is established and maintained outside of the
United States primarily for the benefit of individuals substantially all of
whom are nonresident aliens and which is not subject to ERISA.
(b) The Company has heretofore made available to Parent, and
agrees that it will as soon as practicable after the date of this Agreement
furnish Parent upon Parent's request with, copies
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of all Company Employee Plans (and, if applicable, related trust agreements)
and all amendments thereto and the most recent Forms 5500 required to be filed
with respect thereto, Internal Revenue Service determination letters, and
actuarial reports, in each case to the extent applicable. All annual reports
(as described in ERISA Section 103), Treasury Forms 5500, and other documents
or writings required to be filed or otherwise submitted in connection with one
or more of the Company Employee Plans or Company Benefit Arrangements have been
timely and properly filed or otherwise submitted in accordance with applicable
law.
(c) Section 3.15 of the Company Disclosure Schedule identifies
each Company Employee Plan, and further identifies whether a given Company
Employee Plan constitutes a "defined benefit plan" as defined in Section 3(35)
of ERISA. Except as set forth on Section 3.15 of the Company Disclosure
Schedule, no Company Employee Plan constitutes a "multiemployer plan," as
defined in Section 3(37) of ERISA, and no Company Employee Plan or Company
Benefit Arrangement is maintained in connection with any trust described in
Section 501(c)(9) of the Code. Except as set forth on Section 3.15 of the
Company Disclosure Schedule, no Company Employee Plan provides retiree medical
or life insurance benefits or is subject to Title IV of ERISA. Neither the
Company nor any of its Affiliates has incurred, or will have incurred as of
Closing, any liability under Title IV of ERISA, including, without limitation,
arising in connection with the termination of, or complete or partial
withdrawal from, any plan currently or previously covered by Title IV of ERISA,
and the Pension Benefit Guarantee Corporation has not instituted proceedings to
terminate any such plan nor, to the knowledge of the Company, do any conditions
exist that present a risk of such occurrence. Nothing done or omitted to be
done by the Company or any of its Subsidiaries or, to the knowledge of the
Company, by any other Person, and no transaction or holding of any asset under
or in connection with any Company Employee Plan by the Company or any of its
Subsidiaries or, to the knowledge of the Company, by any other Person, has or
will make the Company or any of its Subsidiaries or any officer or director of
the Company or any of its Subsidiaries subject to any liability under Title I
of ERISA or for any tax, penalty, assessment or material liability pursuant to
Section 4975 of the Code or Section 502 of ERISA. With respect to each Company
Employee Plan subject to Title IV of ERISA, the Company has made available to
Parent the most recent actuarial report showing the present value of accrued
benefits under such plan, based upon the actuarial assumptions used for funding
purposes with respect to such plan. No Company Employee Plan or any trust
established thereunder has incurred any "accumulated funding deficiency" (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year of each such plan
ended prior to the date hereof; and all contributions required to be made with
respect thereto (whether pursuant to the terms of any Company Employee Plan or
otherwise) on or prior to the date hereof have been timely made. All Company
Employee Plans and Company Benefit Arrangements are in compliance with all
applicable laws, and the consummation of the transactions contemplated by this
Agreement will not cause any such plan to violate any applicable law or
provision of any such plan.
(d) Each Company Employee Plan and Company Benefit Arrangement and
related trusts comply with and have been maintained, funded and administered in
compliance with all applicable provisions of the Code relating to qualification
and tax exemption, or other intended tax consequences, under Code Sections
401(a), 501(a) and/or 125, and Company has received no notice from any Person,
government, instrumentality or agency challenging such compliance.
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Favorable IRS determination letters (to the extent such may be sought) on the
qualification of each such plan are in full force and effect.
(e) No termination or partial termination exists or will exist as
of the Closing with respect to any Company Benefit Arrangement or Company
Employee Plan.
(f) As of the Closing, full payment will have been made of all
amounts which the Company or each Subsidiary of the Company is required to have
made after or prior to such time, under any applicable law or terms of an
applicable such plan, as a contribution to or in relation to any such plan, and
no accumulated funding deficiency (as defined in ERISA Section 302 or Code
Section 412), whether or not waived, will exist with respect to any such plan.
(g) Except as disclosed in Section 3.15 of the Company Disclosure
Schedule, the consummation of the transactions contemplated by this Agreement
will not (i) give rise to any severance pay or any payment contingent upon or
as a result of a direct or indirect change in control or ownership of the
Company or any Subsidiary of the Company, or (ii) accelerate the time of
payment or vesting, or increase the amount of any compensation due to, or
benefits under any Company Benefit Arrangement or Company Employee Plan.
(h) Section 3.15 of the Company Disclosure Schedule lists each
material Company Benefit Arrangement currently in effect provided to any
director, executive officer, or employee of the Company or any former director,
executive officer, or employee of the Company and sets forth each Company
Benefit Arrangement with respect to which benefits will be accelerated or paid
as a result of the transactions contemplated by this Agreement. Copies of all
written Company Benefit Arrangements and all amendments thereto have heretofore
been made available to Parent, and will promptly be furnished to Parent upon
Parent's request after the date of this Agreement. Each Company Benefit
Arrangement has been maintained in compliance with its terms and with the
requirements prescribed by any and all statutes, orders, rules, and regulations
that are applicable to such Company Benefit Arrangement.
(i) There are no pending claims, or, to the knowledge of the
Company, threats of claims by, in relation to, or on behalf of any Company
Employee Plan or Company Benefit Arrangement, by any employee, former employee
or beneficiary covered under any such plan or arrangement, or any government or
governmental agency or instrumentality or otherwise involving any such plan or
arrangement other than claims for benefits in the ordinary course.
(j) Section 3.15 of the Company Disclosure Schedule identifies
each Foreign Benefit Plan. The Foreign Benefit Plans maintained, contributed
to, or required to be contributed to, by one or more of the Company, any
Subsidiary of the Company, or any Affiliate of one or more of the foregoing,
have at all times complied with and been administered in all material respects
in accordance with all applicable laws, tax, funding, and other or similar
requirements, and the consummation of the transactions contemplated by this
Agreement will not cause any such plan to violate any such law or requirement.
Without limiting the foregoing, there is no failure to comply with any
applicable law, requirement or any other or similar circumstance which would or
is likely to result in a loss of tax-related approval or other regulatory
related approval for any Foreign Benefit Plan, regardless of whether such
approval is or is intended to be applicable.
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SECTION 3.16 LABOR.
Neither the Company nor any of its Subsidiaries is a party to or bound
by any collective bargaining agreement respecting its employees, nor is there
existing, or to the knowledge of the Company any threat of, any strike,
organized walkout, or other organized work stoppage or labor organizational
effort by any employees of the Company or of any of its Subsidiaries.
SECTION 3.17 TAXES.
Except as set forth in the Company SEC Reports:
(a) the Company and its Subsidiaries have timely filed all Tax
Returns required to be filed by them with any taxing authority with respect to
Taxes for all periods heretofore ended, taking into account any extension of
time to file granted to or obtained on behalf of the Company and its
Subsidiaries;
(b) all Taxes required to be paid prior to the Effective Time have
been duly and timely paid or will be duly and timely paid by the Effective
Time;
(c) no material deficiency for any amount of Tax has been asserted
or assessed by a taxing authority against the Company or any of its
Subsidiaries, except for amounts for which the Company has made an adequate
reserve as reflected in the Company Financial Statements;
(d) all liability for Taxes of the Company or any of its
Subsidiaries that are or will become due or payable with respect to periods
covered by the Company Financial Statements have, in all material respects,
been paid or adequately reserved for in the Company Financial Statements to the
extent required by generally accepted accounting principles, and all prepaid
Taxes and other Tax assets reflected in the Company Financial Statements
represent valid accounts determined in accordance with generally accepted
accounting principles;
(e) neither the Company nor any of its Subsidiaries is liable for
any material amount of Taxes arising out of membership or participation in any
consolidated, affiliated, combined, or unitary group in which they were at any
time members, other than the group of which the Company is the common parent;
(f) there are no material Liens for Taxes upon the assets of the
Company or of any of its Subsidiaries other than for Taxes not yet due and
payable;
(g) there are no outstanding waivers or comparable consents
extending the statute of limitations with respect to any Taxes or Tax Returns
of the Company or any of its Subsidiaries;
(h) there are no material audits, claims, actions, suits, or
proceedings now pending, nor, to the knowledge of the Company, is there a
material threat of any such audits, claims, actions, suits, or proceedings,
nor, to the knowledge of the Company, is there any material
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pending investigation, against or with respect to the Company or any of its
Subsidiaries in respect of any Taxes;
(i) neither the Company nor any of its Subsidiaries is a party to
any agreement providing for the allocation or sharing of Taxes; and
(j) there has been no change in the method of accounting utilized
by the Company or any of its Subsidiaries that would require a material
adjustment to taxable income under Section 481 of the Code.
For purposes of this Agreement, "TAXES" or "TAX" means all federal,
state, local, and foreign taxes, levies, and other assessments, including
without limitation, all income, excise, property, sales, use, value added,
transfer, franchise, profits, withholding, payroll, social security, Medicare,
or other taxes including any interest, additions to tax, and penalties
applicable thereto; and "TAX RETURN" means any return, declaration, statement,
report, schedule, information return, and other document (including any related
or supporting information) with respect to Taxes.
SECTION 3.18 FDA AND RELATED MATTERS.
(a) Section 3.18 of the Company Disclosure Schedule sets forth a
complete and accurate list, referencing relevant records and documents, since
January 1, 1993, of (i) all Regulatory or Warning Letters, Notices of Adverse
Findings, and Section 305 Notices and similar letters or notices issued by the
Food and Drug Administration (the "FDA") or any other federal, state, local, or
foreign governmental entity that is concerned with the safety, efficacy,
reliability, or manufacturing of medical products, including drugs and devices,
relating to the conduct of the business of the Company and its Subsidiaries,
(ii) all United States Pharmacopoeia product problem reporting program
complaints or reports, MedWatch FDA Forms 3500, and device experience network
complaints received by the Company or any of its Subsidiaries and all Drug and
Medical Device Reports, adverse drug experience reports, and therapeutic
failure reports filed by the Company or any of its Subsidiaries, which
complaints or reports pertain to any incident involving death, serious injury,
or a serious adverse drug experience, and for which incident there has been any
(1) notice or follow up inquiry to the Company or any of its Subsidiaries by
the FDA, (2) litigation or arbitration claim or cause of action commenced, or
(3) notice to any insurance carrier of the Company or any of its Subsidiaries
tendering the defense or giving notice of a possible or actual claim against
the Company or any of its Subsidiaries, (iii) all product recalls and safety
alerts conducted by or issued to the Company or any of its Subsidiaries and any
requests from the FDA or any other drug and medical device regulatory agency
requesting the Company or any of its Subsidiaries to cease to investigate,
test, or market any product, (iv) any civil penalty actions begun by the FDA or
any other drug and medical device regulatory agency against the Company or any
of its Subsidiaries and all consent decrees issued with respect to the Company
or any of its Subsidiaries, and (v) any other written communications between
the FDA or any other drug and medical device regulatory agency, on the one
hand, and the Company or any of its Subsidiaries, on the other hand. The
Company has delivered to Parent copies of all documents referred to in Section
3.18 of the Company Disclosure Schedule, as well as copies of all complaints
and other
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information required to be maintained by the Company pursuant to Section 820 of
Title 21 of the Code of Federal Regulations ("CFR") or 21 CFR Section 211.
(b) The Company and its Subsidiaries have obtained all consents,
approvals, certifications, authorizations, and permits of, and have made all
filings with, or notifications to, the FDA and all other drug and medical
device regulatory agencies pursuant to applicable requirements of all FDA laws,
rules, and regulations, and all corresponding state and foreign laws, rules,
and regulations applicable to the Company and its Subsidiaries. All
representations made by the Company or any of its Subsidiaries in connection
with any such consents, approvals, certifications, authorizations, permits,
filings, and notifications were true and correct in all material respects at
the time such representations were made, and the products of the Company and
its Subsidiaries comply with, and perform in accordance with the specifications
described in, such representations. The Company and its Subsidiaries are in all
material respects in compliance with all applicable FDA laws, rules, and
regulations, and all corresponding applicable state and foreign laws, rules,
and regulations (including Good Manufacturing Practices, as defined in 21 CFR
Parts 210, 211, and 820, Medical Device Reporting requirements, and Adverse
Experience Reporting) applicable to the business of the Company. The Company
has not received any notice that any of the consents, approvals,
certifications, authorizations, registrations, permits, filings, or
notifications that it has received or made to operate its business have been or
are being revoked or challenged. Except as set forth on Section 3.18 of the
Company Disclosure Schedule, to the knowledge of the Company, there are no
investigations or inquiries pending, and there is no threat of any
investigation or inquiry, by the FDA or any other drug and medical device
regulatory agency relating to the operation of the business of the Company and
its Subsidiaries or its compliance with FDA laws, rules, and regulations, and
corresponding state and foreign laws, rules, and regulations, applicable to the
business of the Company and its Subsidiaries. None of the matters set forth on
Section 3.18 of the Company Disclosure Schedule is reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect.
SECTION 3.19 INTELLECTUAL PROPERTY RIGHTS.
(a) Section 3.19 of the Company Disclosure Schedule lists each of
the following items that are related to the business of the Company and its
Subsidiaries: (i) patents and applications therefor, registrations of
trademarks (including service marks) and applications therefor, and
registrations of copyrights and applications therefor that are owned by the
Company or any of its Subsidiaries, (ii) unexpired licenses relating to
Intellectual Property Rights (as defined in paragraph (d) of this Section 3.19)
that have been granted to or by the Company or any of its Subsidiaries, and
(iii) other agreements relating to Intellectual Property Rights (as defined
below).
(b) The Company and its Subsidiaries collectively own or have the
right to use all of the Intellectual Property Rights that are used in the
conduct of the business of the Company and its Subsidiaries. Except as set
forth in Section 3.19 of the Company Disclosure Schedule, such ownership and
right to use are free and clear of all Liens, claims, and rights of third
parties. Except as set forth in Section 3.19 of the Company Disclosure
Schedule, such ownership and right to use will not be affected by the
consummation of the Offer, the Merger, or by any of the
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transactions contemplated herein whether because of non-assignment provisions,
change of control provisions, or otherwise. The Company and its Subsidiaries
have the right to license to others the use of all Intellectual Property Rights
owned by them.
(c) Except as set forth on Section 3.19 of the Company Disclosure
Schedule, to the knowledge of the Company there are no material allegations or
claims that any product or process manufactured, used, sold, or under
development by or for the Company or its Subsidiaries infringes on the
Intellectual Property Rights of any third party, and no challenges to the
validity, ownership, or right to use or license by the Company or any of its
Subsidiaries of any of the Intellectual Property Rights owned, used, or
licensed by the Company or any of its Subsidiaries.
(d) As used in this Agreement, the term "INTELLECTUAL PROPERTY
RIGHTS" includes patents, patent applications, trademarks, trademark
applications, service marks, service mark applications, copyrights, copyright
applications, and proprietary trade names, publication rights, computer
programs (including source codes and object codes), inventions, know how, trade
secrets, technology, processes, and formulae.
SECTION 3.20 ENVIRONMENTAL PROTECTION
(a) As used in this Agreement, each of the following terms has the
indicated meaning:
(i) "COMPANY REAL PROPERTY" means the real property now or
formerly owned or leased by the Company or any of its Subsidiaries, except as
otherwise expressly limited where the term is used.
(ii) "ENVIRONMENTAL LAW" means federal, state, local, or
foreign laws, statutes, rules, regulations, and ordinances relating to the
protection of the environment.
(iii) "HAZARDOUS MATERIAL" means any hazardous, toxic, or
dangerous substance defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended ("CERCLA"),
or any other Environmental Law.
(b) Except as set forth on Section 3.20 of the Company Disclosure
Schedule:
(i) The Company and each of its Subsidiaries is and has been
in compliance with all applicable Environmental Laws, except for any such
non-compliance which has been cured and for which neither the Company nor any
of its Subsidiaries has any further liability or obligation.
(ii) Neither the Company nor any of its Subsidiaries has
treated, stored, disposed of, or released any Hazardous Material on Company
Real Property in violation of any applicable Environmental Laws, and, to the
knowledge of the Company, none of the conditions at the Company Real Property
is reasonably likely to give rise to any remedial obligation of the Company or
any of its Subsidiaries under any Environmental Laws.
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(iii) Neither the Company nor any of its Subsidiaries has
received any written notices, demand letters, or written requests for
information from any governmental body, agency, official, or authority or from
any third party indicating that the Company or any of its Subsidiaries is in
violation of, or liable in a amount to any Person under, any Environmental Law,
except for any such violation which has been cured and for which neither the
Company nor any of its Subsidiaries has any further liability or obligation.
(iv) There are no actions, suits, or proceedings pending,
and, to the knowledge of the Company, there is no threat of any actions, suits,
or proceedings, and, to the knowledge of the Company, there are no
investigations pending, against the Company or any of its Subsidiaries or
involving any of the presently owned or leased Company Real Property before any
court or arbitrator or any governmental body, agency, official, or authority
relating to any violation, or alleged violation, by the Company or any of its
Subsidiaries of any Environmental Law or relating to the contamination of any
such Company Real Property.
(v) There are no underground storage tanks on any presently
owned or leased Company Real Property, and no underground storage tanks have
been closed or removed from any Company Real Property while the Company Real
Property was owned or leased by the Company or any of its Subsidiaries, the
closure or removal of which is reasonably likely to give rise to a liability of
the Company or any of its Subsidiaries under any Environmental Law.
(vi) None of the Company, any of its Subsidiaries, or any of
the presently owned or leased Company Real Property is currently subject to,
any liabilities, fixed or contingent, relating to any suit, settlement, court
order, administrative order, judgment, or claim asserted under any
Environmental Law.
(vii) The Company and its Subsidiaries have made available to
Parent (A) all studies, reports, and similar documents that have been generated
by third-party consultants, internal compliance reports of the Company or any
of its Subsidiaries, and documents filed by the Company or any of its
Subsidiaries with any governmental agency, relating to environmental matters at
any Company Real Property, and (B) all other documents relating to any actual
or potential contamination of Company Real Property. The Company has furnished
Parent with copies of any such studies, reports, and documents indicating that
the conditions at any of the Company Real Property are reasonably likely to
give rise to a remedial obligation or other liability of the Company or any of
its Subsidiaries under any Environmental Laws.
(viii) The Company and its Subsidiaries have all permits
required by applicable Environmental Laws and are in all material respects in
compliance with the provisions of all such permits.
(ix) Neither the Company nor any of its Subsidiaries has any
obligation to any third party with respect to any previously owned, or
presently or previously leased, Company Real Property relating to the
remediation of any contamination under any Environmental Laws.
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(c) Neither the Company nor any of its Subsidiaries has received
written notice from any Person that any part of the Company Real Property has
been or is listed as a site containing Hazardous Material requiring remediation
under CERCLA or any other Environmental Law.
SECTION 3.21 FINDERS AND INVESTMENT BANKERS.
Except for Dain Rauscher Wessels, no investment banker, broker,
finder, or other similar intermediary has been retained by or is authorized to
act on behalf of the Company or any of its Subsidiaries, or otherwise is
entitled to any fee or commission in connection with the transactions
contemplated by this Agreement. The Company has provided Parent with a copy of
the engagement letter with Dain Rauscher Wessels, as amended to date.
Dain Rauscher Wessels' fees will be paid by the Company.
SECTION 3.22 INSURANCE.
Section 3.22 of the Company Disclosure Schedule lists, and the Company
has made available to Parent or its representatives for review current and
complete copies of, all insurance policies, binders, and surety and fidelity
bonds relating to the Company and its Subsidiaries (including, without
limitation, all policies or binders of casualty, general liability, and
workers' compensation, but excluding the owner's and lessee's policies of title
insurance referred to in Section 3.30(h)), all of which are currently in force
and effect. All premiums and other amounts due and payable under each such
policy, binder, and bond have been paid. Neither the Company nor any of its
Subsidiaries is in default with respect to any material provision contained in
any such policy, binder, or bond and has not failed to give any notice of or
present any material claim thereunder as required under the terms of the
policy. There are no outstanding unpaid claims under any such policy, binder,
or bond, and neither the Company nor any of its Subsidiaries has received any
written notice of cancellation or non-renewal of any such policy, binder, or
bond. Neither the Company nor any of its Subsidiaries has received any written
notice from any of its insurance carriers that any insurance premiums paid by
it will be materially increased in the future as a result of the claims
experience of the Company or such Subsidiary.
SECTION 3.23 INDEMNIFICATION.
Except as set forth in the articles of incorporation and bylaws of the
Company or its Subsidiaries or as disclosed in the Company SEC Reports or on
Section 3.23 of the Company Disclosure Schedule, neither the Company nor any of
its Subsidiaries is a party to any indemnification agreement with any of its
present or former directors, officers, employees, agents, or other persons who
serve in any similar capacity.
SECTION 3.24 BOARD APPROVAL AND RECOMMENDATION.
Prior to the execution of this Agreement, the Board of Directors of
the Company, at a meeting duly called and held, unanimously (a) determined that
this Agreement and the transactions contemplated hereby, including the Merger,
the Offer, and the Parent Stock Option, are fair to the stockholders of the
Company, (b) approved this Agreement and the transactions contemplated hereby,
including the Merger, the Offer, and the Parent Stock Option, and (c)
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recommended that the Company's stockholders tender their shares of Company
Stock pursuant to the Offer and approve this Agreement and the transactions
contemplated herein, including the Merger (unless approval of this Agreement
and the Merger is not required by reason of the fact that immediately prior to
the Effective Time Merger Sub owns at least 90% of the Company Stock
outstanding at such time).
SECTION 3.25 VOTE REQUIRED.
The only vote of the holders of any class or series of capital stock
of the Company necessary to approve the Merger is the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Company Stock. No
such vote by the holders of any class or series of capital stock of the Company
will be necessary if at the Effective Time Merger Sub owns at least 90% of the
shares of Company Stock outstanding at the Effective Time. There is no vote of
the holders of any class or series of capital stock of the Company necessary in
order for Merger Sub to commence and consummate the Offer.
SECTION 3.26 OPINION OF FINANCIAL ADVISOR.
The Company has received the opinion of Dain Rauscher Wessels to the
effect that the consideration to be received by the stockholders of the Company
pursuant to the Offer and the Merger is fair to such stockholders from a
financial point of view.
SECTION 3.27 COMPANY RIGHTS AGREEMENT.
Neither Parent nor any of its affiliates or associates is an
"ACQUIRING PERSON" (as defined in the Company Rights Agreement) and there has
not been a "SHARES ACQUISITION DATE" or a "DISTRIBUTION DATE" (as defined in
the Company Rights Agreement) under the Company Rights Agreement. The Company
has amended the Company Rights Agreement to provide that (i) the execution,
delivery, and performance of this Agreement, the Parent Stock Option and the
Insider Lock-Up Options, the purchase of shares of Company Stock pursuant to
the Offer, the purchase of shares pursuant to the Parent Stock Option and the
Insider Lock-Up Options, and the consummation of the Merger and the other
transactions contemplated by this Agreement will not (A) cause Parent or any of
its affiliates or associates to become an Acquiring Person or (B) otherwise
cause a Shares Acquisition Date or Distribution Date to occur, and (ii) upon
purchase of shares of Company Stock pursuant to the Offer, the Parent Stock
Option or the Insider Lock-Up Options, the Company Rights will no longer be
exercisable, and the former holders of the Company Rights will not have any
claims or rights thereunder. The Company has filed with the SEC and made
available to Parent a true and correct copy of the Company Rights Agreement, as
amended through the date hereof.
SECTION 3.28 TAKEOVER STATUTES.
The Board of Directors of the Company has heretofore expressly
approved the acquisition of shares of Company Stock by Merger Sub pursuant to
the Offer, the Parent Stock Option and the Insider Lock-Up Options, and the
Merger for purposes of Article 13.03 of Texas Law, and such approval is
sufficient to render inapplicable to the Merger and the other
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transactions contemplated by this Agreement the provisions of Article 13.03 of
Texas Law. Except for Section 13.03, no "fair price," "moratorium," or other
similar antitakeover statute or provision applies or purports to apply to the
Offer, the Merger, the Parent Stock Option, or the other transactions
contemplated hereby. Except for the Company Rights Agreement and the related
shares of Common Stock issuable upon exercise of the Company Rights, no
provision of the articles of incorporation or bylaws of the Company or any of
its Subsidiaries would, directly or indirectly, restrict or impair the ability
of Merger Sub or Parent to vote, or otherwise to exercise the rights of a
stockholder with respect to, the Common Stock.
SECTION 3.29 INFORMATION SUPPLIED.
None of the information that is included in the Offer Documents in
reliance upon and in conformity with written information furnished to Parent by
the Company specifically for use in the Offer Documents will, at the time such
information is furnished to Parent, contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Schedule 14D-9, at the time the
Schedule 14D-9 or any amendment thereto is filed with the SEC, will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; except
that, the foregoing does not apply to the extent that any such untrue statement
of a material fact or omission to state a material fact was or is made by the
Company in reliance upon and in conformity with written information furnished
to the Company by Merger Sub or Parent specifically for use in the Schedule
14D-9.
SECTION 3.30 REAL AND PERSONAL PROPERTY.
(a) For purposes of this Section 3.30, "PERMITTED LIEN" means any
(A) Lien that does not materially interfere with the use of, or materially
diminish the value of, the property subject thereto and (B) capital lease
obligation entered into in the ordinary course of business.
(b) Section 3.30 of the Company Disclosure Schedule lists all o
the real property owned (the "OWNED REAL PROPERTY") or leased (the "LEASED REAL
PROPERTY") by the Company or any of its Subsidiaries.
(c) Except as set forth in Section 3.30 of the Company Disclosure
Schedule, the Company or its Subsidiary, as the case may be, has (i) good and
valid fee simple title to the Owned Real Property, (ii) good and valid title to
all of the tangible personal property recorded as an asset in the Company
Financial Statements as of June 30, 1998, and not disposed of since that date
in the ordinary course of business, and (iii) a valid and subsisting leasehold
interest in the Leased Real Property, that, in the case of each of clauses (i),
(ii), and (iii) above, is free and clear of any Lien other than Permitted
Liens.
(d) All of the buildings, improvements and other facilities
including in the Owned Real Property or Leased Real Property are in good
condition, normal wear and tear excepted, and
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are suitable for their present purposes, and none of such buildings,
improvements or facilities is subject to any material structural defect.
(e) The primary business operations currently conducted on the
Owned Real Property and the Leased Real Property are not in violation of
applicable zoning laws and regulations, except for violations that individually
or in the aggregate are not material.
(f) The buildings and other structures located on the Owned Real
Property do not encroach on real property of another Person, and no building or
structure of any other Person encroaches on any of the Owned Real Property,
except for encroachments that individually or in the aggregate, are not
material.
(g) The buildings and structures on the Owned Real Property have
direct vehicular access (or indirect vehicular access through valid and
enforceable easements) to public roads and all appropriate utilities necessary
for the conduct of the business thereon as it is presently conducted.
(h) The Company has made available to Parent all owner's policies
of title insurance as to Owned Real Property, lessee's policies of title
insurance as to Leased Real Property (if any), and related surveys that are in
its possession.
SECTION 3.31 RELATED PARTY TRANSACTIONS.
Except as set forth in Section 3.31 of the Company Disclosure
Schedule, no director, officer, partner, employee, "affiliate" or "associate"
(as such terms are defined in Rule 12b-2 under the Exchange Act) of the Company
or any of its Subsidiaries (i) has borrowed any monies from or has outstanding
any indebtedness or other similar obligations to the Company or any of its
Subsidiaries; (ii) owns any direct or indirect interest of any kind in, or is a
director, officer, employee, partner, affiliate or associate of, or consultant
or lender to, or borrower from, or has the right to participate in the
management, operations or profit of, any person or entity which is (1) a
competitor, supplier, customer, distributor, lessor, tenant, creditor or debtor
of the Company or any of its Subsidiaries, (2) engaged in a business related to
the business of the Company or any of its Subsidiaries, or (3) participating in
any transaction to which the Company or any of its Subsidiaries is a party; or
(iii) is otherwise a party to any contract, arrangement or understanding with
the Company or any of its Subsidiaries.
SECTION 3.32 CERTAIN BUSINESS PRACTICES.
Neither the Company, any of its Subsidiaries, nor to the Company's
knowledge any directors, officers, agents or employees of the Company or any of
its Subsidiaries (i) has used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to political activity; (ii)
has made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns or violated
any provision of the Foreign Corrupt Practices Act of 1977, as amended; (iii)
has made any other payment prohibited by applicable law; or (iv) in the case of
the Company, any of its Subsidiaries
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or any of its officers or key employees, is a party to or bound by any
noncompetition or similar agreement or obligation with any third party, which
restricts its or his or her business practices.
SECTION 3.33 SUPPLIERS AND CUSTOMERS.
As of the date hereof, and except as set forth in Section 3.33 of the
Company Disclosure Schedule, the Company has received no written notice from
or, to its knowledge, any oral notice from any significant supplier to or
customer of the Company's business of such supplier's or customer's intention
to materially and adversely alter its existing business relationship with the
Company.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
Parent and Merger Sub jointly and severally represent and warrant to the
Company that:
SECTION 4.01 CORPORATE EXISTENCE.
Parent and Merger Sub are corporations duly incorporated, validly
existing, and in good standing under the laws of the State of Georgia and
Texas, respectively.
SECTION 4.02 CORPORATE AUTHORIZATION.
The execution, delivery, and performance by Parent and Merger Sub of
this Agreement, the purchase by Merger Sub of shares of Company Stock pursuant
to the Offer and pursuant to the Parent Stock Option, and the consummation of
the Merger and the other transactions contemplated hereby by Parent and Merger
Sub are within their respective corporate power and authority and have been
duly authorized by all necessary corporate action on the part of Parent and
Merger Sub, respectively. This Agreement has been duly executed and delivered
by Parent and Merger Sub and, assuming the due authorization, execution, and
delivery hereof by the Company, constitutes a legal, valid, and binding
agreement of Parent and Merger Sub.
SECTION 4.03 GOVERNMENTAL AUTHORIZATION.
The execution, delivery, and performance by Parent and Merger Sub of
this Agreement, the purchase of shares of Company Stock by Merger Sub pursuant
to the Offer and pursuant to the Parent Stock Option, and the consummation of
the Merger and the other transactions contemplated hereby by Parent and Merger
Sub do not require any material consent, approval, authorization, or permit of,
other action by, or filing with, any governmental body, agency, official, or
authority other than (i) the filing of appropriate certificates of merger in
accordance with Texas Law, (ii) the filing and delivery of the Offer Documents,
and (iii) compliance with applicable requirements of the Exchange Act.
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SECTION 4.04 NON-CONTRAVENTION.
The execution, delivery, and performance by Parent and Merger Sub of
this Agreement, the purchase by Merger Sub of the shares of Company Stock
pursuant to the Offer, and the consummation of the Merger and the other
transactions contemplated hereby by Parent and Merger Sub do not and will not
(i) contravene or conflict with the articles of incorporation or bylaws of
Parent or the articles of incorporation or bylaws of Merger Sub, (ii)
materially contravene, conflict with, or constitute a violation of any
provision of any law, rule, regulation, judgment, injunction, order, or decree
binding upon or applicable to Parent, Merger Sub, or any of their Subsidiaries,
or (iii) constitute a default, give rise to a right of termination,
cancellation, or acceleration of any material right or obligation of Parent,
Merger Sub, or any of their Subsidiaries, or give rise to a loss of any
material benefit to which Parent, Merger Sub which would prevent or materially
delay consummation of the Offer or the Merger.
SECTION 4.05 PARENT SEC REPORT.
Parent's Annual Report on Form 10-K for the year ended May 31, 1998
and filed with the SEC was prepared in accordance with the requirements of the
Exchange Act, and did not at the time it was filed contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
SECTION 4.06 AVAILABILITY OF FUNDS.
Parent and Merger Sub have available to them, and shall maintain the
availability of, sufficient funds to enable them to consummate the transactions
contemplated by this Agreement.
SECTION 4.07 INFORMATION SUPPLIED.
None of the information that is included in the Schedule 14D-9 in
reliance upon and in conformity with written information furnished to the
Company by Parent or Merger Sub specifically for use in the Offer Documents
will, at the time such information is furnished to the Company, contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Offer
Documents, at the time they or any amendments thereto are filed with the SEC or
on the date first published, sent, or given to the Company's stockholders, will
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; except that, the foregoing does not apply to the extent that any
such untrue statement of a material fact or omission to state a material fact
was or is made by Parent or Merger Sub in reliance upon and in conformity with
written information furnished to Parent or Merger Sub by the Company
specifically for use in the Offer Documents.
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SECTION 4.08 FINDERS AND INVESTMENT BANKERS.
Except for TM Capital Corp., no investment banker, broker, finder, or
other similar intermediary has been retained by or is authorized to act on
behalf of Parent, Merger Sub, or any of their Subsidiaries who might be
entitled to any fee or commission in connection with the transactions
contemplated by this Agreement.
SECTION 4.09 BOARD APPROVAL.
Prior to the execution of this Agreement, each of the Boards of
Directors of Parent and Merger Sub approved this Agreement and the transactions
contemplated hereby, including the Merger and the Offer.
ARTICLE V.
ADDITIONAL AGREEMENTS OF THE COMPANY
The Company agrees that:
SECTION 5.01 CONDUCT OF THE COMPANY.
Except as contemplated or permitted by this Agreement or as otherwise
approved in writing by Parent, from the date of this Agreement until the time
that the designees of Merger Sub have become members of the Board of Directors
of the Company in accordance with Section 1.01(d) hereof, the Company will, and
will cause its Subsidiaries to, conduct their respective businesses in the
ordinary course consistent with reasonable past practice. Subject to the
foregoing exceptions, from the date hereof until the time that the designees of
Merger Sub have become members of the Board of Directors of the Company in
accordance with Section 1.01(d) hereof:
(a) the Company will not adopt or approve any change or amendment
in its articles of incorporation or bylaws;
(b) the Company will not, and will not permit any of its
Subsidiaries to, merge, consolidate, or enter into a share exchange with any
other Person; acquire any material stock or any material amount of assets of
any other Person; or sell, lease, license, mortgage, pledge, or otherwise
dispose of any material assets except in the ordinary course of business
consistent with reasonable past practice, or transfers between the Company
and/or its wholly owned Subsidiaries;
(c) the Company will not declare, set aside, or pay any dividends
(other than dividends declared prior to the date hereof) or make any
distributions in respect of shares of Company Stock;
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(d) the Company will not, and will not permit any of its
Subsidiaries to, (i) issue, deliver, sell, encumber, or authorize or propose
the issuance, delivery, sale, or encumbrance of, any capital stock or other
securities of the Company or any Company Subsidiary Securities, other than (A)
pursuant to the Company Rights Agreement (as amended pursuant to Section 3.27)
and (B) the issuance of shares of Company Stock upon the exercise of the Parent
Stock Option or Company Options granted prior to the date hereof, (ii) split,
combine, or reclassify any shares of Company Stock or Company Subsidiary
Securities, (iii) repurchase, redeem, or otherwise acquire any capital stock or
other voting securities of the Company or any voting Company Subsidiary
Securities, or (iv) amend the terms of any outstanding voting securities;
(e) the Company will not, without the prior written consent of
Parent, which consent shall not be unreasonably withheld or delayed, make any
commitment or enter into any contract or agreement that, individually or in the
aggregate, is reasonably likely to be material to the Company and its
Subsidiaries taken as a whole except in the ordinary course of business
consistent with reasonable past practices;
(f) except to the extent required by law or by existing written
agreements or plans disclosed in the Company SEC Reports, neither the Company
nor any of its Subsidiaries will increase in any manner the compensation or
fringe benefits of any of its directors, officers or employees (other than
increases in the ordinary course of business in the compensation or fringe
benefits of any officers or employees who are not executive officers); pay any
pension or retirement allowance to any such directors, officers or employees;
become a party to, amend, or commit itself to any pension, retirement,
profit-sharing, welfare benefit plan, or employment agreement with or for the
benefit of any such director, officer or employee; grant any severance or
termination pay or stay-in-place bonus to any such director, officer or
employee; or increase the benefits payable under any existing severance or
termination pay or stay-in-place bonus policies;
(g) the Company will not, and will not permit any of its
Subsidiaries to, make any material Tax election or settle or compromise any
material federal, state, local, or foreign Tax liability; and
(h) the Company will not agree to do any of the foregoing.
SECTION 5.02 ACCESS TO INFORMATION.
From the date hereof until the Effective Time or earlier termination
of this Agreement, the Company will give Parent and Merger Sub, their counsel,
financial advisors, auditors, and other authorized representatives reasonable
access during regular business hours to the offices, properties, books, and
records of the Company and its Subsidiaries, and will furnish to Parent and
Merger Sub, their counsel, financial advisors, auditors, and other authorized
representatives such financial and operating data and other information as such
Persons may reasonably request, and will instruct the Company's employees,
counsel, and financial advisors to cooperate with Parent and Merger Sub in
their evaluation.
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SECTION 5.03 OTHER OFFERS.
(a) From the date hereof until the Effective Time or the earlier
termination of this Agreement, the Company will not, and will use its best
efforts to cause its Subsidiaries and the officers, directors, employees, and
agents of the Company and its Subsidiaries not to, directly or indirectly, (i)
take any action to solicit, to initiate, or knowingly to encourage any Company
Acquisition Proposal (as defined below), (ii) take any action knowingly to
facilitate (including, without limitation, amending the Company Rights
Agreement other than as contemplated herein or redeeming the rights issued
thereunder) any Company Acquisition Proposal, (iii) engage or participate in
discussions or negotiations, or enter into agreements, with any Person with
respect to a Company Acquisition Proposal, or (iv) in connection with a Company
Acquisition Proposal, disclose any nonpublic information relating to the
Company or any of its Subsidiaries or afford access to the properties, books,
or records of the Company or any of its Subsidiaries to any Person; and further
the Company agrees that it will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing and each will take the
necessary steps to inform the individuals or entities referred to above of the
obligations undertaken in this Section 5.03. Notwithstanding the foregoing, the
Company may take the action described in clause (ii), (iii), or (iv) of the
preceding sentence if (A) such action is taken in connection with an
unsolicited Company Acquisition Proposal, (B) the Company's Board of Directors
has determined, based on the written advice of its independent financial
advisors, that such Company Acquisition Proposal would, if consummated, result
in a transaction more favorable to the Company's shareholders from a financial
point of view than the transactions contemplated by this Agreement, (C) legal
counsel to the Company has advised the Company's Board of Directors in writing
that the failure to take such action would be a breach of the fiduciary duties
of the Board of Directors under applicable law, and (D) in the case of the
disclosure of nonpublic information relating to the Company or any of its
Subsidiaries in connection with a Company Acquisition Proposal, such
information is covered by a confidentiality agreement that provides
substantially the same or better protection to the Company as is afforded by
the Confidentiality Agreement. The Company will immediately notify Parent
orally and in writing of any Company Acquisition Proposal or any inquiries with
respect thereto. Any such written notification will include the identity of the
Person making such inquiry or Company Acquisition Proposal and a description of
the material terms of such Company Acquisition Proposal (or the nature of the
inquiry) and will indicate whether the Company is providing or intends to
provide the person making the Company Acquisition Proposal with access to
nonpublic information relating to the Company or any of its Subsidiaries. For
purposes of this Agreement, "COMPANY ACQUISITION PROPOSAL" means any good faith
offer or proposal for (x) a merger or other business combination involving the
Company or any of its Subsidiaries and any Person (other than Parent, Merger
Sub, or any other Subsidiary of either Parent or Merger Sub), (y) an
acquisition by any Person (other than Parent, Merger Sub, or any other
Subsidiary of either Parent or Merger Sub) of assets or earning power of the
Company or any of its Subsidiaries, in one or more transactions, representing
25% or more of the consolidated assets or earning power of the Company and its
Subsidiaries, or (z) an acquisition by any Person (other than Parent, Merger
Sub, or any other Subsidiary of either Parent or Merger Sub) of securities
representing 20% or more of the voting power of the Company or any of its
Subsidiaries.
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(b) Except as set forth in this Section 5.03, neither the Board of
Directors of the Company nor any committee thereof shall (i) withdraw or
modify, or propose to withdraw or modify, in a manner adverse to Parent or
Merger Sub, the approval or recommendation by such Board of Directors or such
committee of the Offer, the Merger, or this Agreement, (ii) approve or
recommend, or propose publicly to approve or recommend, any Company Acquisition
Proposal, or (iii) cause the Company to enter into any letter of intent,
agreement in principle, acquisition agreement or other similar agreement (each,
an "ACQUISITION AGREEMENT") related to any Company Acquisition Proposal, except
that, in any case set forth in clause (i), (ii), or (iii) above, prior to the
acceptance for payment of shares of Company Stock pursuant to the Offer, the
Board of Directors of the Company may, in response to an unsolicited Company
Acquisition Proposal, (A) withdraw or modify its approval or recommendation of
the Offer, the Merger, or this Agreement or (B) approve or recommend any such
Company Acquisition Proposal if, in the case of any action described in clause
(A) or (B), the events stated in clauses (B) and (C) of the second sentence of
Section 5.03(a) have occurred, and, in the case of the actions described in
clause (B), concurrently with such approval or recommendation the Company
terminates this Agreement and promptly thereafter enters into an Acquisition
Agreement with respect to a Company Acquisition Proposal.
(c) Nothing contained in this Agreement shall prohibit the Company
from taking and disclosing to its stockholders a position contemplated by Rule
14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to the Company's stockholders if, in the good faith judgment of the
Board of Directors of the Company, after consultation with outside counsel,
failure so to disclose would be a breach of applicable law; provided that,
neither the Company nor its Board of Directors nor any committee thereof shall,
except as permitted by Section 5.03(b), withdraw or modify, or propose to
withdraw or modify, its position with respect to the Offer, the Merger, or this
Agreement or approve or recommend, or propose to approve or recommend, a
Company Acquisition Proposal.
SECTION 5.04 NOTICES OF CERTAIN EVENTS.
The Company will promptly notify Parent of:
(a) any notice or other communication from any Person alleging
that the consent of any third party (other than consents listed in Section 3.03
or 3.05 of the Company Disclosure Schedule) is or may be required in connection
with the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement;
(c) any actions, suits, claims, or proceedings commenced against,
or, to the knowledge of the Company, any threat of an action, suit, claim, or
proceeding made against, or any pending investigation of, the Company or any of
its Subsidiaries that, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Section 3.12 or that relate to
the consummation of the transactions contemplated by this Agreement; and
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(d) the receipt by the Company or any of its Subsidiaries
subsequent to the date of this Agreement of any notice of, or other
communication relating to, a default, or an event that with notice or lapse of
time or both would become a default, under any Company Contract.
SECTION 5.05 PATENT LITIGATION.
With respect to the law suit by MicroTyping Systems and Stiftung fur
Diagnostiche Forschung against the Company concerning an alleged patent
infringement by the Company, without the express prior consent of Parent the
Company shall not make any filings with the court, comply with any discovery
requests, or engage in any discussions with the plaintiffs or their respective
legal counsel concerning the prosecution, defense or settlement of such law
suit, any claims covered thereby or any related claims.
SECTION 5.06 MERGER MEETING; PROXY STATEMENT.
(a) If required by applicable law, including Texas Law, in order
to consummate the Merger, as soon as practicable following the purchase of
shares of Company Stock pursuant to the Offer, the Company will take all action
necessary in accordance with applicable law and with the Company's articles of
incorporation and bylaws to convene a meeting of its stockholders to approve
the Merger and adopt this Agreement (the "MERGER MEETING"). The Company's Board
of Directors has heretofore recommended, and will continue to recommend, that
the Company's stockholders approve the Merger and adopt this Agreement, and
will cause the Company to use all reasonable efforts to solicit from the
stockholders proxies to vote therefor, unless (i) legal counsel to the Company
has advised the Company's Board of Directors in writing that such
recommendation would be a breach of the fiduciary duties of the Board of
Directors under applicable law or (ii) this Agreement is terminated in
accordance with Article VIII.
(b) The Company will, if required by law for the consummation of
the Merger, prepare and file with the SEC preliminary proxy materials relating
to the approval of the Merger and the adoption of this Agreement by the
Company's stockholders, and will file with the SEC revised preliminary proxy
materials, if appropriate, and definitive proxy materials in a timely manner as
required by the rules and regulations of the SEC. Subject to the last sentence
of Section 5.06(a), the proxy materials relating to the Merger Meeting will
include the recommendation of the Company's Board of Directors.
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ARTICLE VI.
ADDITIONAL AGREEMENTS OF PARENT, MERGER SUB, AND THE COMPANY
Parent, Merger Sub, and the Company agree that:
SECTION 6.01 BEST EFFORTS.
Subject to the terms and conditions of this Agreement, each party will
use its best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary or advisable under applicable laws and
regulations to consummate the transactions contemplated by this Agreement as
promptly as practicable.
SECTION 6.02 CERTAIN FILINGS AND CONSENTS.
The Company and Parent will cooperate with one another (a) in
determining whether any action by or in respect of, or filing with, any
governmental body, agency, official, or authority is required, or any actions,
consents, approvals, or waivers are required to be obtained from parties to any
Company Contracts ("THIRD PARTY CONSENTS") in connection with the transactions
contemplated by this Agreement and (b) in attempting to take all such actions,
to obtain all such consents, approvals, and waivers, and to make all such
filings.
SECTION 6.03 PUBLIC ANNOUNCEMENTS.
Parent and the Company will consult with each other before issuing any
press release or making any public statement with respect to this Agreement and
the transactions contemplated hereby and, except as may be required by
applicable law or any listing agreement with the American Stock Exchange, Inc.
or The Nasdaq Stock Market, Inc., will not issue any such press release or make
any such public statement prior to such consultation.
SECTION 6.04 STATE TAKEOVER LAWS.
If any "fair price," "moratorium," or other similar statute or
regulation becomes applicable to the transactions contemplated by this
Agreement, the Company, Parent, and Merger Sub and, subject to applicable
fiduciary duties, their respective Boards of Directors will use all reasonable
efforts to grant such approvals and take such actions as are necessary so that
the transactions contemplated by this Agreement may be consummated as promptly
as practicable on the terms contemplated hereby and otherwise act to minimize
the effects of such statute or regulation on the transactions contemplated
hereby.
SECTION 6.05 MERGER MEETING.
The Merger will be consummated as soon as practicable (and in no event
later than two months) after the purchase of shares of Company Stock pursuant
to the Offer. If Merger Sub is able to do so under Texas Law, it will
consummate the Merger pursuant to Article 5.16 of Texas
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Law. Each of the Merger Sub and Parent will vote, or cause to be voted, all
shares of Company Stock beneficially owned by it in favor of the Merger.
SECTION 6.06 DIRECTOR AND OFFICER LIABILITY. Parent and Merger Sub agree
that:
(a) The articles of incorporation and the bylaws of the Surviving
Corporation will contain provisions with respect to exculpation from liability
and indemnification substantially as set forth in the articles of incorporation
and bylaws of the Company as of the date hereof, which provisions shall not be
amended, repealed, or otherwise modified in any manner that would adversely
affect the rights thereunder of individuals who at the Effective Time were
present or former directors or officers of the Company, unless such
modification is required by law.
(b) Parent will use all reasonable efforts to, without any lapse
in coverage, either (i) for at least four years after the Effective Time,
provide officers' and directors' liability insurance ("D&O INSURANCE") in
respect of acts or omissions occurring at or prior to the Effective Time
covering each such Person currently covered by the Company's D&O Insurance
policy on terms with respect to coverage and amount no less favorable than
those of such policy in effect on the date hereof; provided that, in no event
will Parent be required to pay per annum more than the last premium
(annualized) paid by the Company for such policy prior to the date hereof, (ii)
purchase tail insurance in respect of the Company's existing D&O Insurance for
four years for a premium not to exceed the amount of the customary premium for
such tail insurance, or (iii) if such D&O Insurance or tail insurance is only
available at premiums in excess of the premiums set forth in clauses (i) or
(ii), as applicable, then purchase the highest level of D&O Insurance or tail
insurance available at such applicable premium.
SECTION 6.07 WAIVER.
The Company hereby waives the Company's rights under paragraph 8 of
that certain letter agreement dated October 28, 1997, by and between the
Company and Parent (the "STANDSTILL AGREEMENT") so that Parent's and Merger
Sub's execution, delivery and performance of this Agreement, the consummation
of the Offer and the Merger, and the exercise of the Parent Stock Option and
the Insider Lock-Up Options, and their consummation of the transactions
contemplated thereby, will not violate or breach any provision of the
Standstill Agreement. If any of the terms of the Standstill Agreement conflict
with the terms of this Agreement, the Parent Stock Option or the Insider
Lock-Up Options, the terms of this Agreement, the Parent Stock Option or the
Insider Lock-Up Options, as the case may be, shall control.
SECTION 6.08 COMPANY BENEFIT PLANS.
Parent shall cause the Surviving Corporation to take such actions as
are necessary so that, for a period of at least one year after the Effective
Time, employees of the Company and its Subsidiaries who continue their
employment after the Effective Time will be provided employee benefits which in
the aggregate are at least generally comparable to those provided to such
employees as of the date hereof; provided, that it is understood that after the
Effective Time (i) neither Parent nor the Surviving Corporation will have any
obligation to issue or adopt any plans or arrangements to provide for the
issuance of shares of capital stock, warrants, options, stock
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<PAGE> 35
appreciation rights or other rights in respect of any shares of capital stock
of any entity or any securities convertible or exchangeable into such shares
pursuant to any such plan or program, and (ii) nothing herein shall require the
Surviving Corporation to maintain any particular plan or arrangement.
ARTICLE VII.
CONDITIONS TO THE MERGER
SECTION 7.01 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY.
The obligations of the Company, Parent, and Merger Sub to consummate
the Merger are subject to the satisfaction of the following conditions:
(a) if required by applicable law, the Merger has been approved,
and this Agreement has been adopted, by the requisite vote of the Company's
stockholders;
(b) Merger Sub shall have purchased all validly tendered and not
properly withdrawn shares of Company Stock in accordance with the Offer; and
(c) no provision of any applicable domestic law or regulation, and
no judgment, injunction, order, or decree of a court or governmental agency or
authority of competent jurisdiction, that has the effect of making the Offer or
the Merger illegal or otherwise restrains or prohibits the purchase of shares
of Company Stock pursuant to the Offer or the consummation of the Merger is in
effect.
SECTION 7.02 CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER SUB.
The obligations of Parent and Merger Sub to consummate the Merger are
subject to the satisfaction of the following conditions:
(a) the Offer shall have been consummated;
(b) the Company shall have complied with its obligations unde
Section 1.01(d); and
(c) if any holders of Company Stock exercise their rights, if any,
under Articles 5.11 and 5.12 of Texas Law (Appraisal Rights), such rights shall
not have been exercised as to more than 10% of the outstanding Company Stock.
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ARTICLE VIII.
TERMINATION
SECTION 8.01 TERMINATION.
This Agreement may be terminated and the Offer and the Merger may be
abandoned at any time prior to the Effective Time (notwithstanding any approval
of the Merger and adoption of this Agreement by the Company's stockholders):
(a) by mutual written consent of the Company, Parent, and Merger
Sub;
(b) by either the Company or Parent and Merger Sub if the Merger
has not been consummated by March 30, 1999, provided that the right to
terminate this Agreement under this clause (b) will not be available to any
party that, at the time of termination, is in material breach of any of its
obligations under this Agreement;
(c) by either the Company or Parent and Merger Sub if any
applicable domestic law, rule, or regulation makes consummation of the Offer or
the Merger illegal or if any judgment, injunction, order, or decree of a court
or governmental agency or authority of competent jurisdiction restrains or
prohibits the consummation of the Offer or the Merger, and such judgment,
injunction, order, or decree has become final and nonappealable;
(d) by either the Company or Parent if the stockholder approval
referred to in Section 7.01(a) has not been obtained at the Merger Meeting;
(e) by either the Company or Parent if the Offer terminates
without the purchase of shares of Company Stock thereunder; provided that, the
right to terminate this Agreement pursuant to this Section 8.01(e) shall not be
available to (i) Parent, if Merger Sub shall have breached its obligations
under Section 1.01(a), or (ii) any party whose willful failure to perform any
of its obligations under this Agreement results in the failure of any of the
Offer Conditions or if the failure of any such Offer Conditions results from
facts or circumstances that constitute a material breach of the representations
or warranties of such party under this Agreement;
(f) by Parent and Merger Sub if (i) the Company violates its
obligations under Section 5.03 in any material respect and thereafter any
Person publicly makes a Company Acquisition Proposal or (ii) the Board of
Directors of the Company does not publicly recommend in the Schedule 14D-9 that
the Company's stockholders accept the Offer and tender their shares of Company
Stock pursuant to the Offer and approve the Merger and adopt the Agreement, or
if the Board of Directors of the Company withdraws, modifies, or changes such
recommendation in any manner materially adverse to Parent; or
(g) by the Company if the Company receives an unsolicited Company
Acquisition Proposal and the events stated in clauses (B) and (C) of the second
sentence of Section 5.03(a) have occurred, provided that the Company has given
Parent at least five business days notice of the material terms of such Company
Acquisition Proposal and such termination shall not be
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effective until the Company has paid the Termination Fee, if and to the extent
required under Section 9.04(b), to Parent either by delivery of a certified or
bank check payable to Parent or by wire transfer to an account designated in
writing by Parent, at the Company's option.
SECTION 8.02 EFFECT OF TERMINATION.
If this Agreement is terminated and the Offer and the Merger are
abandoned pursuant to Section 8.01, no party to this Agreement (or any of its
directors, officers, employees, agents, or advisors) will have any liability or
further obligation to any other party except (a) as provided in Section 9.04,
(b) that the agreements contained in Section 9.04 and in the Standstill
Agreement will survive the termination hereof, and (c) that nothing herein will
relieve any party from liability for any breach of its covenants or agreements
under this Agreement.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 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 of receipt, to the following address or such other address of
which a party subsequently may give notice to all the other parties:
If to Parent or Merger Sub, to:
Immucor Inc.
3130 Gateway Drive,
Norcross, GA 30091
Attention: Chief Executive Officer
Fax: (770) 242-8930
with a copy to:
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree Street, N.E.
Suite 1400, First Union Plaza
Atlanta, Georgia 30309
Attn: Philip H. Moise
Fax: (404) 817-6050
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if to the Company, to:
Gamma Biologicals, Inc.
3700 Mangum Road
Houston, TX 77092
Attn: Chief Executive Officer
Fax: (713) 956-3333
with a copy to:
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
600 Travis Street
3400 Texas Commerce Tower
Houston, Texas 77002
Attention: David F. Taylor
Fax: (713) 223-3717
SECTION 9.02 SURVIVAL.
None of the representations and warranties, agreements, and other
provisions contained in this Agreement or in any certificate or other writing
delivered pursuant to this Agreement, other than Articles I and II, will
survive the Effective Time.
SECTION 9.03 AMENDMENTS; NO WAIVERS.
(a) Subject to the applicable provisions of Texas Law and Section
1.01(e) of this Agreement, any provision of this Agreement may be amended or
waived prior to the Effective Time if, and only if, such amendment or waiver is
in writing and duly executed and delivered, in the case of an amendment, by the
Company, Parent, and Merger Sub or, in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power, or privilege hereunder will operate as a waiver thereof, nor will any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.
SECTION 9.04 FEES AND EXPENSES.
(a) Subject to paragraph (b) of this Section, all costs and
expenses incurred in connection with this Agreement will be paid by the party
incurring the costs and expenses.
(b) If (i) this Agreement is terminated by the Company pursuant to
Section 8.01(g)(pertaining to a Company Acquisition Proposal), (ii) any Person
publicly makes a Company Acquisition Proposal and thereafter this Agreement is
terminated pursuant to Section 8.01(e) because an insufficient number of shares
of Company Stock are tendered in the Offer, or (iii) any Person publicly makes
a Company Acquisition Proposal and thereafter this Agreement is terminated
pursuant to Section 8.01(f), then the Company will reimburse Parent and Merger
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Sub for up to $500,000.00 of their reasonable documented out-of-pocket expenses
and fees actually incurred by Parent in connection with the transactions
contemplated by this Agreement prior to the termination of this Agreement, and
in enforcing its rights under this Section 9.04 after such termination,
including but not limited to all fees and expenses of counsel, financial
advisors, accountants, and environmental and other experts and consultants to
Parent and Merger Sub (the "TRANSACTION COSTS"). In addition, the Company will
pay to Parent a fee of $1,250,000.00 (the "TERMINATION FEE"). The Termination
Fee will be payable by delivery of immediately available funds at the time of
termination.
(c) If Parent receives such Transaction Costs and Termination Fee
under circumstances in which such Transaction Costs and Termination Fee are
payable, neither Parent, Merger Sub, nor any of their affiliates will assert or
pursue in any manner, directly or indirectly, any claim or cause of action
against the Company or any of its directors, officers, employees, agents, or
representatives based in whole or in part upon its or their receipt,
consideration, recommendation, or approval of a Company Acquisition Proposal,
including the Company's exercise of its right of termination of this Agreement
under Section 8.01(g).
SECTION 9.05 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES.
The provisions of this Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party may assign, delegate, or otherwise transfer any of its
rights or obligations under this Agreement without the consent of the other
parties. Notwithstanding the foregoing, Merger Sub shall have the right (a) to
assign to Parent or any direct or indirect wholly-owned subsidiary of Parent
any and all rights and obligations of Merger Sub under this Agreement,
including, without limitation, the right to substitute in its place such a
subsidiary as one of the constituent corporations in the Merger (such
subsidiary assuming all of the obligations of Merger Sub in connection with the
Merger) and may require subsidiaries of the Company to merge with subsidiaries
of Merger Sub (or its assignees) in connection with the Merger and (b) to
restructure the transaction to provide for the Merger of the Company with and
into Merger Sub or such other entity as provided above; provided, however, that
the Company shall not be deemed to have breached any of its representations and
warranties herein by reason of Merger Sub exercising its rights hereunder, and
by exercising such rights Parent will be deemed to have waived the receipt of
any additional consents of third parties required by virtue thereof; and
provided further that no such assignment shall affect any obligation of Parent
or Merger Sub hereunder and that it shall remain primarily liable as to its
assigned obligations. If Merger Sub exercises its right to so restructure the
transaction, the Company shall promptly enter into appropriate agreements to
reflect such restructuring.
SECTION 9.06 GOVERNING LAW.
The interpretation, validity, and enforceability of this Agreement
will be governed by the law of the State of Texas without regard to principles
of conflict of laws therein that would apply the laws of any other
jurisdiction.
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SECTION 9.07 COUNTERPARTS; EFFECTIVENESS.
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
SECTION 9.08 ENTIRE AGREEMENT.
This Agreement, the Company Disclosure Schedule, the Parent Stock
Option, the Insider Lock-Up Options and the Standstill Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements, both written and oral, among the parties
with respect to the subject matter of this Agreement. No representation,
warranty, or inducement not set forth herein has been made or relied upon by
any party. Neither this Agreement nor any provision hereof is intended to
confer upon any Person other than the parties any rights or remedies.
SECTION 9.09 HEADINGS.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
SECTION 9.10 SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal,
or unenforceable, all other provisions of this Agreement will remain in full
force and effect so long as the economic and legal substance of the
transactions contemplated hereby is not affected.
SECTION 9.11 SPECIFIC PERFORMANCE.
Except as set forth in Section 9.04, the parties agree that
irreparable damage would occur if any of the provisions of this Agreement is
not performed in accordance with the terms hereof and that the parties will be
entitled to specific performance of the terms hereof in addition to any other
remedies at law or in equity.
SECTION 9.12 "KNOWLEDGE" OF THE COMPANY.
For purposes of this Agreement, unless otherwise expressly provided
where the term is used, "knowledge" of the Company will be deemed to mean (i)
the actual knowledge of any director or executive officer of the Company and
(ii) the knowledge that any such director or executive officer would have had
if he or she, in connection with the confirmation of the accuracy of the
representations and warranties of the Company in this Agreement, had made due
inquiry of the officers, employees, advisors, and agents of the Company and its
Subsidiaries who are primarily responsible for the subject matter of such
representations and warranties.
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SECTION 9.13 DEFINITIONS.
Terms defined in the Exchange Act, used herein and not otherwise
defined herein shall have the meaning given in the Exchange Act.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
written above.
IMMUCOR, INC.
By:/s/ Edward L. Gallup
---------------------------
Edward L. Gallup, President
GAMMA ACQUISITION CORPORATION
By:/s/ Edward L. Gallup
---------------------------
Edward L. Gallup, President
GAMMA BIOLOGICALS, INC.
By:/s/ David E. Hatcher
---------------------------
David E. Hatcher, President
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LIST OF SCHEDULES
<TABLE>
<CAPTION>
Schedule Designation
- --------------------------------------
<S> <C>
1.01(a) Offer Conditions
3.05 Violations
3.06 Capitalization
3.07 Subsidiaries
3.10 Material Contracts
3.11 Absence of Certain Changes
3.12 Litigation
3.13 Permits; Compliance
3.14 Product Warranties and Liabilities
3.15 Employee Benefits
3.18 FDA and Related matters
3.20 Intellectual Property
3.21 Environmental
3.22 Finders and Investment Bankers
3.23 Insurance
3.24 Indemnification
3.31 Real and Personal Property
</TABLE>
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SCHEDULE 1.01(A)--OFFER CONDITIONS
Merger Sub will not be required to accept for payment or, subject to
any applicable rules and regulations of the SEC, including, without limitation,
Rule 14e-1(c) under the Exchange Act (relating to Merger Sub's obligation to
pay for or return tendered shares after the termination or withdrawal of the
Offer), to pay for any shares of Company Stock not theretofore accepted for
payment or paid for pursuant to the Offer, if (1) there are not validly
tendered and not properly withdrawn prior to the expiration of the Offer that
number of shares of Company Stock which, when aggregated with the shares of
Company Stock then owned by Parent and any of its affiliates, represents at
least sixty-seven percent (67%) of the shares of Company Stock then outstanding
on a fully diluted basis, based on the number of stock options and warrants
exercised prior to the consummation of the Offer (the "MINIMUM CONDITION"), or
(2) at any time on or after the date of the Agreement and at or before the time
that any shares of Company Stock are accepted for payment any of the following
conditions exist:
(a) Any provision of any applicable domestic law or regulation,
or any judgment, injunction, order, or decree of a court or governmental agency
or authority of competent jurisdiction, is in effect that (i) makes the Offer
or the Merger illegal or otherwise, directly or indirectly or prohibits or
materially restrains the making of the Offer, the acceptance for payment of,
payment for, or ownership, directly or indirectly, of some or all of the shares
of Company Stock by Merger Sub or Parent, (ii) prohibits or materially limits
the ownership or operation by the Company or any of its Subsidiaries that owns
a material portion of the business and assets of the Company and its
Subsidiaries, taken as a whole, or by Parent, Merger Sub, or any Subsidiaries
of Parent of all or a material portion of the business or assets of the Company
and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries,
taken as a whole, as a result of the Offer, the Merger, or the other
transactions contemplated by the Agreement, or (iii) imposes material
limitations on the ability of Merger Sub or Parent to acquire, hold, or
exercise full rights of ownership of the shares of Company Stock, including but
not limited to the right to vote any shares of Company Stock acquired or owned
by Merger Sub or Parent on all matters properly presented to the stockholders
of the Company, including but not limited to the approval of the Agreement and
approval of the Merger and the right to vote any shares of capital stock of any
Subsidiaries of the Company (other than immaterial Subsidiaries), or would
impose any such limitations with respect to the Common Stock of the Surviving
Corporation after the Merger.
(b) Any consents, authorizations, orders, and approvals of, or
filings or registrations with, any governmental commission, board, or other
regulatory body required in connection with the execution, delivery, and
performance of the Agreement has not been obtained or made, except (i) the
filing of appropriate articles of merger in accordance with applicable law,
including Texas Law, (ii) compliance with applicable requirements of the
Exchange Act, and (iii) where Parent reasonably concludes that the failure to
obtain or make any such consent, authorization, order, approval, filing, or
registration (A) is not likely to have, individually or in the aggregate, a
material adverse effect on the financial condition, results of operations, or
business of the Company and its Subsidiaries before or after the Merger, taken
as a whole (a "COMPANY MATERIAL ADVERSE EFFECT"), or on the financial
condition, results of operations, or business of Parent and Merger Sub before
or after the Merger, taken as a whole (a "PARENT MATERIAL ADVERSE EFFECT"), and
(B) would not render the Offer or the Merger illegal or provide
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a reasonable basis to conclude that the parties or their affiliates or any of
their respective directors or officers will be subject to a risk of criminal
liability.
(c) Any Third Party Consents have not been obtained except where
Parent reasonably concludes that the failure to obtain any Third Party Consents
is not likely to have, individually or in the aggregate, a Company Material
Adverse Effect.
(d) The Company has failed to perform in any material respect
any of its agreements, covenants, or other obligations to be performed by it
under the Agreement at or prior to such time, or any representations and
warranties of the Company contained in the Agreement are not true in any
material respect at such time as if made at and as of such time (unless the
representation or warranty is made as of a specified date, in which case such
representation or warranty is not true as of such date). For purposes of
determining whether this condition has been satisfied, all qualifications in
the representations and warranties as to the knowledge of the Company will be
disregarded.
(e) There shall have occurred any event or any development that,
insofar as reasonably can be foreseen, is reasonably likely to result in a
Company Material Adverse Effect;
(f) There shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national securities
exchange or in the United States, (ii) a declaration of a banking moratorium or
any suspension of payments in respect of banks in the United States, (iii) any
limitation (whether or not mandatory) by any U.S. government or governmental,
administrative or regulatory authority or agency, on, or any other event that
materially adversely affects, the extension of credit by banks or other lending
institutions, (iv) a commencement or a war or armed hostilities or other
national or international calamity directly or indirectly involving the United
States which would reasonably be expected to have a Company Material Adverse
Effect, a Parent Material Adverse Effect or materially adversely affect (or
materially delay) the consummation of the Offer or (v) in the case of any of
the foregoing existing at the time of the execution of the Agreement, a
material acceleration or worsening thereof which acceleration of worsening is
reasonably expected to have a Company Material Adverse Effect, a Parent
Material Adverse Effect or to materially adversely affect the consummation of
the Offer.
(g) It shall have been publicly disclosed that beneficial
ownership (determined for the purposes of this paragraph as set forth in Rule
13d-3 promulgated under the Exchange Act) of 20% or more the Company Stock,
before any potential dilution related to such beneficial ownership, has been
acquired by any corporation (including the Company or any of its subsidiaries
or affiliates), partnership, person or other entity or group (as defined in
Section 13(d)(3) of the Exchange Act), other than Parent or any of its
affiliates, or (ii) (A) the Board of Directors of the Company or any committee
thereof shall have withdrawn or modified in a manner adverse to Parent or
Merger Sub the approval or recommendation of the Offer, the Merger or the
Agreement and, within ten business days of taking and disclosing to its
stockholders the aforementioned position, shall not have publicly reconfirmed
its recommendation of the Offer, the Merger or the Agreement; (B) the Board of
Directors of the Company or any committee thereof shall have approved or
recommended any takeover proposal or any other acquisition of Company Stock
other than the Offer and the Merger; (C) any such
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corporation, partnership, person or other entity or group shall have entered
into a definitive agreement or an agreement in principle with the Company with
respect to a tender offer or exchange offer for any Company Stock or a merger,
consolidation or other business combination with or involving the Company or
any of its Subsidiaries or (D) the Board of Directors of the Company or any
committee thereof shall have resolved to do any of the foregoing.
(h) The Agreement has been terminated in accordance with its
terms.
The foregoing conditions are for the sole benefit of Merger Sub and Parent and
may, subject to the terms of the Agreement, be waived by Merger Sub and Parent
in whole or in part at any time and from time to time in their sole discretion.
The failure by Parent or Merger Sub at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right, the waiver of
any such right with respect to particular facts and circumstances shall not be
deemed a waiver with respect to any other facts and circumstances, and each
such right shall be deemed an ongoing right that may be asserted at any time
and from time to time.
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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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<PAGE> 4
(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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<PAGE> 5
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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<PAGE> 6
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
10
<PAGE> 11
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.
3700 Mangum Road
Houston, TX 77092
Attn: Chief Executive Officer
Fax: (713) 956-3333
with a copy to: Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
600 Travis Street
3400 Texas Commerce Tower
Houston, Texas 77002
Attention: David F. Taylor
Fax: (713) 223-3717
If to Grantee to: Immucor Inc.
3130 Gateway Drive,
Norcross, GA 30091
Attention: Chief Executive Officer
Fax: (770) 242-8930
11
<PAGE> 12
with a copy to: Nelson Mullins Riley & Scarborough, L.L.P.
First Union Plaza
999 Peachtree Street
Suite 1400
Atlanta, Georgia 30309
Fax: (404) 817-6050
Attn: Philip H. Moise, 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)
12
<PAGE> 13
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/ EDWARD L. GALLUP
--------------------------------
Edward L. Gallup, President
GAMMA BIOLOGICALS, INC.
By: /s/ DAVID E. HATCHER
--------------------------------
David E. Hatcher, President
13
<PAGE> 1
EXHIBIT (C)(3)
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT, dated as of September 21, 1998, among
IMMUCOR, INC., a Georgia corporation ("Parent"), GAMMA ACQUISITION CORPORATION,
a Texas corporation and a wholly owned subsidiary of Parent (the "Purchaser"),
and the shareholders identified on the signature page hereof (the
"Shareholders").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, the Purchaser and GAMMA BIOLOGICALS, INC., a Texas
corporation (the "Company"), have entered into an Agreement and Plan of Merger
(as such agreement may hereafter be amended from time to time, the "Merger
Agreement"), pursuant to which the Purchaser will be merged with and into the
Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that as soon as practicable after the announcement of the execution of the
Merger Agreement, the Purchaser shall commence a cash tender offer (the "Offer")
to purchase at a price of $5.40 per share all outstanding shares of Common Stock
(as defined in Section 1 hereof) of the Company, including all of the Shares (as
defined in Section 2 hereof) beneficially owned by the Shareholders; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Shareholders agree, and the Shareholders
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section 13(d)(3) of
the Exchange Act.
(b) "Common Stock" shall mean at any time the Common Stock, $.10 par
value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
<PAGE> 2
(d) Capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
(a) In order to induce Parent and the Purchaser to enter into the
Merger Agreement, each of the Shareholders hereby agrees to validly tender (or
cause the record owner of such shares to validly tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not later than the
fifteenth business day after commencement of the offer pursuant to Section 1.01
of the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of
shares of Common Stock set forth opposite each Shareholder's name on Schedule I
hereto (the "Existing Shares"), all of which are Beneficially owned by such
Shareholder, and any shares of Common Stock acquired by such Shareholder in any
capacity after the date hereof and prior to the termination of this Agreement by
means of purchase, exercise of any option, dividend, distribution or in any
other way (such shares of Common Stock, together with the Existing Shares, the
"Shares"). Each of the Shareholders hereby acknowledges and agrees that Parent's
and the Purchaser's obligation to accept for payment and pay for the Shares in
the offer, including the Shares Beneficially Owned by such Shareholder, is
subject to the terms and conditions of the Offer.
(b) The Shareholders hereby permit Parent and the Purchaser to publish
and disclose in the Offer Documents and, if approval of the Company's
shareholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and ownership of
the Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
3. ADDITIONAL AGREEMENTS.
(a) GRANT OF OPTION.
(i) Each of the Shareholders hereby grants to Purchaser an irrevocable
option (the "Option") to purchase the Existing Shares at a price per share of
$5.40 (the "Option Purchase Price"); provided, however, such grant shall be
ineffective and without any legal effect as to any Shareholder if the granting
of the Option by that Shareholder would subject such Shareholder to liability
under Section 16(b) of the Exchange Act.
(ii) Provided that no preliminary or permanent injunction or other
order against the delivery of the Existing Shares issued by any court of
competent jurisdiction in the United States shall be in effect, Purchaser may
exercise the Option, in whole or in part, at any time and from time to time at
or prior to the Termination Date (as defined below). The Option shall terminate
and be of no further force or effect upon the first anniversary of the date
hereof, unless the Shareholders and the Purchaser shall agree in writing to
extend this Agreement to a date specified in such writing (as it may be so
extended, hereinafter sometimes referred to as the "Termination Date") ;
provided that any purchase of Existing Shares upon exercise of the Option shall
be subject to compliance with applicable law. If Purchaser wishes to exercise
the Option, it
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<PAGE> 3
shall send the Shareholders a written notice (the date of which being herein
referred to as the "Notice Date") specifying: (i) the total number of Existing
Shares it intends to purchase pursuant to such exercise; and (ii) subject to the
next sentence, a place and date not earlier than three business days nor later
than 15 business days after the Notice Date for the closing (the "Closing") of
such purchase (the "Closing Date"). If prior notification to or consent of any
regulatory authority is required in connection with such purchase, or if the
Notice Date is less than three business days prior to the Termination Date,
then, notwithstanding the prior occurrence of the Termination Date, the Closing
Date shall be extended for such period as shall be necessary to enable such
prior notification or consent to occur or to be obtained (and the expiration of
any mandatory waiting period), and/or until the Closing Date properly specified
in the notice of exercise. Each of the Shareholders shall cooperate with
Purchaser in the filing of any application or documents necessary to obtain any
required consent or in connection with any required prior notification and the
Closing shall occur immediately following receipt of such consent or the filing
of any such prior notification (and the expiration of any mandatory waiting
period).
(b) VOTING AGREEMENT. Each of the Shareholders shall, at any meeting of
the holders of Common Stock, however called, or in connection with any written
consent of the holders of Common Stock, vote (or cause to be voted) the Shares
(if any) then held of record or Beneficially Owned by such Shareholder, (i) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; and (ii) against any Acquisition Proposal and
against any action or agreement that would impede, frustrate, prevent or nullify
this Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which would result in any of the conditions set
forth in Schedule 1.01(a) to the Merger Agreement or set forth in Article VII of
the Merger Agreement not being fulfilled.
(c) NO INCONSISTENT ARRANGEMENTS. Each of the Shareholders hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shares or any interest therein, (ii) enter into
any contract, option or other agreement or understanding with respect to any
transfer of any or all of the Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Shares, (iv) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or (v) take any other action
that would in any way restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby or by the Merger
Agreement.
(d) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(i) Each Shareholder hereby irrevocably grants to, and appoints
Edward L. Gallup and Steven C. Ramsey or either of them, in their respective
capacities as officers of Parent, and any individual who shall hereafter succeed
to any such office held by such individuals with Parent, and each of them
individually, and also irrevocably grants to, and appoints Parent, such
Shareholder's proxy and attorney-in-fact (with full power of substitution),
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<PAGE> 4
for and in the name, place and stead of the Shareholder, to vote the Shares, or
grant a consent or approval in respect of the Shares in favor of the
transactions contemplated hereby or by the Merger Agreement, and against any
Acquisition Proposal.
(ii) Each Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(iii) Each Shareholder understands and acknowledges that Parent and the
Purchaser are entering into the Merger Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement. Each Shareholder hereby
affirms that the irrevocable proxy set forth in this Section 3(c) is given in
connection with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of such Shareholder under
this Agreement. Each Shareholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked.
Each Shareholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Each Shareholder agrees
immediately to deliver to Parent, upon its request, all certificates
representing all of such Shareholder's Shares for the purpose of noting such
irrevocable proxy on such certificates. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section C of
Article 2.29 of the Texas Law.
(e) NO SOLICITATION. Each Shareholder hereby agrees, in its capacity as
a shareholder of the Company, that neither such Shareholder nor any of its
subsidiaries or affiliates shall (and such Shareholder shall cause its officers,
directors, partners, employees, representatives and agents, including, but not
limited to, investment bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, participate in or initiate discussions or
negotiations with, or provide any information to, any corporation, partnership,
person or other entity or group (other than Parent, any of its affiliates or
representatives) concerning any Acquisition Proposal. Each Shareholder will
immediately cease any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any Acquisition Proposal. Each
Shareholder will immediately communicate to Parent the terms of any proposal,
discussion, negotiation or inquiry (and will disclose any written materials
received by the Shareholder in connection with such proposal, discussion,
negotiation or inquiry) and the identity of the party making such proposal or
inquiry which it may receive in respect of any such transaction. Any action
taken by the Company or any member of the Board of Directors of the Company in
accordance with Section 5.3(b) of the Merger Agreement shall be deemed not to
violate this Section 3(d).
(f) BEST EFFORTS. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
and the Merger Agreement. Each party shall promptly consult with the other and
provide any necessary information and material with respect to all filings made
by such party with any Governmental Entity in connection with this Agreement and
the Merger Agreement and the transactions contemplated hereby and thereby.
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<PAGE> 5
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each Shareholder
hereby represents and warrants to Parent and the Purchaser as follows:
(a) OWNERSHIP OF SHARES. The Shareholder is the record and Beneficial
Owner of the Existing Shares, as set forth on Schedule I. On the date hereof,
the Existing Shares constitute all of the Shares owned of record or Beneficially
Owned by the Shareholder. The Shareholder has sole voting power and sole power
to issue instructions with respect to the matters set forth in Sections 2, 3 and
4 hereof, sole power of disposition and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Existing Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Each Shareholder has the power
(corporate, partnership or other) and authority to enter into and perform all of
its obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Shareholder will not violate any other agreement to which
such Shareholder is a party including, without limitation, any voting agreement,
proxy arrangement, pledge agreement, shareholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by the
Shareholder and constitutes a valid and binding agreement of such Shareholder,
enforceable against the Shareholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which such Shareholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such Shareholder
of the transactions contemplated hereby.
(c) NO CONFLICTS. Except for filings under the Exchange Act (i) no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by each
Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to such Shareholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Shareholder is a party or by
which such Shareholder or any of its properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to the Shareholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Except as permitted by this Agreement, the
Existing Shares and the certificates representing the Existing Shares are now,
and at all times during the term hereof will be, held by such Shareholder, or by
a nominee or custodian for the benefit of such Shareholder, free and clear of
all Encumbrances, proxies, voting trusts or
-5-
<PAGE> 6
agreements, understandings or arrangements or any other rights whatsoever,
except for any such Encumbrances or proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of each of the Shareholders.
(f) RELIANCE BY PARENT. Each Shareholder understands and acknowledges
that Parent and the Purchaser are entering into the Merger Agreement in reliance
upon such Shareholder's execution and delivery of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER. Each of
Parent and the Purchaser hereby represents and warrants to each Shareholder as
follows:
(a) POWER; BINDING AGREEMENT. Parent and the Purchaser each has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by each of Parent and the Purchaser will not violate any other agreement to
which either of them is a party. This Agreement has been duly and validly
executed and delivered by each of Parent and the Purchaser and constitutes a
valid and binding agreement of each of Parent and the Purchaser, enforceable
against each of Parent and the Purchaser in accordance with its terms.
(b) NO CONFLICTS. Except for filings under the Exchange Act, (i) no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by each of
Parent and the Purchaser and the consummation by each of Parent and the
Purchaser of the transactions contemplated hereby and (ii) none of the execution
and delivery of this Agreement by each of Parent and the Purchaser, the
consummation by each of Parent and the Purchaser of the transactions
contemplated hereby or compliance by each of Parent and the Purchaser with any
of the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to either of Parent or the Purchaser, (B)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which either of Parent or the
Purchaser is a party or by which either of Parent or the Purchaser or any of
their properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
either of Parent or the Purchaser or any of their properties or assets.
6. FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to
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<PAGE> 7
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
7. STOP TRANSFER. No Shareholder shall request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
8. TERMINATION. The covenants, agreements and proxy contained herein
with respect to the Shares shall terminate upon the termination of the Merger
Agreement in accordance with its terms.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations hereunder
shall attach to the Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of the Shares shall pass, whether by
operation of law or otherwise, including, without limitation, each Shareholder's
administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties hereto,
provided that Parent or the Purchaser may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent, but no such assignment shall relieve Parent or the
Purchaser of its obligations hereunder if such assignee does not perform such
obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as
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<PAGE> 8
Federal Express, providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following addresses:
If to a Shareholder, to the address set forth on Schedule I hereto.
\
If to Parent or the Purchaser: Immucor Inc.
3130 Gateway Drive,
Norcross, GA 30091
Attention: Chief Executive Officer
Fax: (770) 242-8930
Copy to: Nelson Mullins Riley & Scarborough, L.L.P.
First Union Plaza, Suite 1400
999 Peachtree Street
Atlanta, Georgia 30309
Fax: (404) 817-6050
Attention: Philip H. Moise
\
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law
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<PAGE> 9
or in equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Texas, without giving effect to the
principles of conflicts of law thereof.
(l) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
(continued on next page)
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<PAGE> 10
IN WITNESS WHEREOF, Parent, the Purchaser and each of the Shareholders
listed below have caused this Agreement to be duly executed as of the day and
year first above written.
IMMUCOR, INC.
By: /s/ EDWARD L. GALLUP
--------------------------------------
Name: Edward L. Gallup
Title: President
GAMMA ACQUISITION CORPORATION
By: /s/ DAVID E. HATCHER
--------------------------------------
Name: David E. Hatcher
Title: President
SHAREHOLDERS:
/s/ DAVID E. HATCHER
-----------------------------------------
David E. Hatcher
/s/ BETTY F. HATCHER
-----------------------------------------
Betty F. Hatcher
/s/ RICHARD H. ASTER
-----------------------------------------
Dr. Richard H. Aster
/s/ H. H. HARDEE
-----------------------------------------
H.H. "Will" Hardee
/s/ BRYAN J. BRIEDEN
-----------------------------------------
Bryan J. Brieden
(Signatures continued on next page)
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<PAGE> 11
SHAREHOLDERS AGREEMENT
September 21, 1998
(Continuation of Signatures)
/s/ HAYLE B. RANDOLPH
-----------------------------------------
Hayle B. Randolph
/s/ JIMMIE L. TURNER
-----------------------------------------
Jimmie L. Turner
/s/ RAUL ALVEREZ
-----------------------------------------
Raul Alverez
/s/ JOHN CASE
-----------------------------------------
John Case
/s/ THOMAS H. FRAME
-----------------------------------------
Thomas H. Frame
/s/ MARGARET O'BANNION
-----------------------------------------
Margaret O'Bannion
/s/ GARY L. PARRISH
-----------------------------------------
Gary L. Parrish
/s/ SUSAN A. BATCHA
-----------------------------------------
Susan A. Batcha
/s/ MARILYN K. MOULDS
-----------------------------------------
Marilyn K. Moulds
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<PAGE> 12
SCHEDULE I
EXISTING SHARES
<TABLE>
<CAPTION>
Name Shares(1) Address for Notice(2)
---- --------- ---------------------
<S> <C> <C>
Betty F. Hatcher 228,764
David E. Hatcher 163,099
H.H. "Will" Hardee 102,363
Dr. Richard H. Aster 33,685
Bryan J. Brieden 23,300
Hayle B. Randolph 28,385
John Case 24,099
Raul F. Alvarez 19,750
Jimmie L. Turner 47,447
Thomas H. Frame 17,250
Margaret J. O'Bannion 37,350
Gary L. Parrish 20,100
Susan A. Batcha 18,725
Marilyn K. Moulds 18,084
</TABLE>
(1) Includes all options, whether or not currently exercisable.
(2) The address for notice for all Shareholders is: c/o Gamma Biologicals, Inc.
3700 Mangum Road
Houston, TX 77092
Fax: (713) 956-3333
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