<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-K/A
<TABLE>
<C> <S>
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JUNE 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________
</TABLE>
COMMISSION FILE NUMBER 0-10252
---------------------
VIRAGEN, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 59-2101668
(State or other jurisdiction of (I.R.S. Employer identification No.)
incorporation or organization)
865 SW 78TH AVENUE, SUITE 100,
PLANTATION, FLORIDA 33324
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code:
(954) 233-8746
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
the registrant based upon the closing price of the common stock on September 16,
1998 was approximately $79,302,000.
As of September 16, 1998, the Company had outstanding 54,425,121 shares of
common stock.
DOCUMENTS INCORPORATED BY REFERENCE
Registration Statement on Form S-3, File No. 333-50429, dated April 17,
1998.
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<PAGE> 2
VIRAGEN, INC. AND SUBSIDIARIES
INDEX TO ANNUAL REPORT ON FORM 10-K/A
YEAR ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
PART I
Item 1. Business.................................................... 1
Item 2. Properties.................................................. 11
Item 3. Legal Proceedings........................................... 11
Item 4. Submission of Matters to a Vote of Security Holders......... 12
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 12
Item 6. Selected Financial Data..................................... 13
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 13
Item 8. Financial Statements and Supplementary Data................. 21
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosures................................... 21
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 21
Item 11. Executive Compensation and Employment Agreements............ 24
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 29
Item 13. Certain Relationships and Related Transactions.............. 31
PART IV
Item 14. Exhibits and Reports on Form 8-K............................ 32
</TABLE>
i
<PAGE> 3
PART IV
ITEM 14. EXHIBIT AND REPORTS ON FORM 8-K
(a) THE FOLLOWING IS A LIST OF DOCUMENTS FILED AS PART OF THIS ANNUAL
REPORT.
1. All financial statements See Index to Consolidated Financial
Statements
2. Exhibits
(2) Plan of acquisition, reorganization, arrangement, liquidation or
succession
(i) Plan of Merger between Florida Immunological Institute, Inc. and
Vira-Tech, Inc., dated September 30, 1986 (incorporated by reference to the
Company's registration statement on Form S-2, dated October 24, 1986, as
amended File No. 33-9714 ("1986 Form S-2"), Part II, Item 16, 2.1)
(ii) Articles of Merger of Florida Immunological Institute into
Vira-Tech, Inc., dated September 30, 1986 (incorporated by reference to
1986 Form S-2, Part II, Item 16, 2.2)
(3)
(i) Articles of Incorporation and By-Laws (incorporated by reference
to the Company's (ii) Amended Certificate of Incorporation (incorporated by
reference to 1986 Form S-2, Part II, Item 16, 4.2)
(4) Instruments defining the rights of security holders, including
indentures
(i) Certificate of Designation for Series A Preferred Stock, as
amended (incorporated by reference to 1986 Form S-2, Part II, Item 16, 4.4)
(ii) Specimen Certificate for Unit (Series A Preferred Stock and Class
A Warrant) (incorporated by reference to 1986 Form S-2, Part II, Item 15,
4.5)
(iii) Omitted
(iv) Omitted
(v) Omitted
(vi) Omitted
(vii) Omitted
(viii) Form of three years 8.5% Convertible Subordinated Debenture
(incorporated by reference to the Company's Current Report on Form 8-K
dated November 17, 1993)
(ix) Form of Stock Option Agreement dated November 19, 1993, issued to
Messrs. Dennis W. Healey and Peter D. Fischbein (incorporated by reference
to the Company's Current Report on Form 8-K dated November 17, 1993)
(x) 1995 Stock Option Plan (incorporated by reference to the Company's
Registration Statement on Form S-8 filed June 9, 1995)
(xi) Certificate of Designation of Series B Preferred Stock
(incorporated by reference to the Company's Current Report on Form 8-K
dated June 7, 1996)
(10) Material contracts
(i) Research Agreement between the Registrant and Viragen Research
Associates Limited Partnership dated December 29, 1983 (incorporated by
reference to Medicore's S-1, File No. 2-89390, dated February 10, 1984
("Medicore's S-1"), Part II, Item 16(a) (10) (xxxiii))
32
<PAGE> 4
(ii) License Agreement between the Registrant and Viragen Research
Associates Limited Partnership dated December 29, 1983 (incorporated by
reference to Medicore's S-1, Part II, Item 16 (a) (10) (xxxiv))
(iii) Omitted
(iv) Royalty Agreement between the Company and Medicore, Inc. dated
November 7, 1986 (incorporated by reference to the November 1986 Form 8-K,
Item 7(c) (i))
(v) Amendment to Royalty Agreement between the Company and Medicore,
Inc. dated November 21, 1989 (incorporated by reference to the Company's
Current Report on Form 8-K dated December 6, 1989, Item 7(c) (i))
(vi) Promissory Note from the Company to Medicore, Inc. dated August
6, 1991 (incorporated by reference to the Company's 1991 Form 10-K, Part
IV, Item 10(a) (10) (xx))
(vii) Loan Agreement between the Company and Medicore, Inc. dated
January 31, 1991 (incorporated by reference to the Company's Current Report
of Form 8-K dated February 26, 1991, Item 79c) (ii))
(viii) Amendment to Loan Agreement between the Company and Medicore,
Inc. dated August 6, 1991 (incorporated by reference to the Company's 1991
Form 10-K, Part IV, Item 14(a) (10) (xxi))
(ix) Florida Real Estate Mortgage and Security Agreement from the
Company to Medicore, Inc. dated August 6, 1991 (incorporated by reference
to the Company's 1991 Form 10-K, Part IV, Item 14(a) (10) (xxii))
(x) Omitted
(xi) Omitted
(xii) Promissory Note to Equitable Bank dated August 2, 1991
(incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the second quarter ended June 30, 1991 ("June, 1991 Form 10-Q"), Part
II, Item 6(a) (28) (i))
(xiii) Mortgage and Security Agreement issued to the Equitable Bank
dated August 2, 1991 (incorporated by reference to the Company's June, 1991
Form 10-Q, Part II, Item 6(a) (28) (ii))
(xiv) Acquisition Agreement between the Company and Medicore, Inc.
dated August 2, 1991 (incorporated by reference to the Company's 1991 Form
10-K, Part II, Item 14(a) (10) (xxiii))
(xv) Lease between the Company and Medicore, Inc. dated December 8,
1992 (incorporated by reference to the Company's Current Report on Form
8-K, dated January 21, 1993 ("January 1993 Form 8-K"), Item 7(c) (10) (i))
(xvi) Addendum to Lease between the Company and Medicore, Inc. dated
January 15, 1993 (incorporated by reference to the Company's January 1993
Form 8-K, Item 7(c) (10) (ii))
(xvii) Agreement for Sale of Stock between the Company and Cytoferon
Corp. dated February 5, 1993 (incorporated by reference to the Company's
Current Report on Form 8-K dated February 11, 1993 Item 7(c) (28))
(xviii) Addendum to Agreement for Sale of Stock between the Company
and Cytoferon Corp. dated May 4, 1993 (incorporated by reference to the
Company's Current Report on Form 8-K dated May 5, 1993, Item 7(c) (28) (i))
(xix) Amendment No. 2 to the Royalty Agreement between the Company and
Medicore, Inc. dated May 11, 1993 (incorporated by reference to the
Company's June 30, 1993 Form 10-K, Part IV, Item 14(a) (10) (xix))
33
<PAGE> 5
(xx) Note and Mortgage Modification Agreement between the Company and
Medicore, Inc. dated August 18, 1993 (incorporated by reference to the
Company's June 30, 1993 Form 10-K, Part IV, Item 14(a)(10)(xx))
(xxi) Amendment No. 2 to the Loan Agreement between the Company and
Medicore, Inc. dated August 18, 1993 (incorporated by reference to the
Company's June 30, 1993 Form 10-K, Part IV, Item 14(a)(10)(xxi))
(xxii) Amendment to Acquisition Agreement between the Company and
Medicore, Inc. dated August 18, 1993 (incorporated by reference to the
Company's June 30, 1993 Form 10-K, Part IV, Item 14(a)(10)(xxii))
(xxiii) Marketing and Management Services Agreement between the
Company and Cytoferon Corp. dated August 18, 1993 (incorporated by
reference to the Company's June 30, 1993 Form 10-K, Part IV, Item
14(a)(10)(xxiii))
(xxiv) Agreement for Sale of Stock between Cytoferon and the Company
dated November 19, 1993 (incorporated by reference to the Company's June
30, 1994 Form 10-K, Part IV, Item 14(a)(10)(xxiv))
(xxv) Employment Agreement between Gerald Smith and the Company dated
November 19, 1993 (incorporated by reference to the Company's June 30, 1994
Form 10-K, Part IV, Item 14(a)(10)(xxv)) as amended by modified Employment
Agreement dated December 15, 1994 (incorporated by reference to the
Company's 1995 Form SB-2, Part II, Item 27(10)(xxv))
(xxvi) Common Stock Purchase Warrant Agreement between Northlea
Partners Ltd. and the Company dated January 6, 1994 (incorporated by
reference to the Company's June 30, 1994 Form 10-K, Part IV, Item
14(a)(10)(xxvi))
(xxvii) Management Consulting Agreement between the Company, Medvest,
Inc. and Dr. John Abeles dated January 6, 1994 (incorporated by reference
to the Company's Current Report on Form 8-K, dated November 17, 1993)
(xxviii) Employment Agreement between Dennis W. Healey and the Company
dated April 8, 1994 (incorporated by reference to the Company's June 30,
1994 Form 10-K, Part IV, Item 14(a)(10) (xxvii) as amended by Modified
Employment Agreement dated December 15, 1994 (incorporated by reference to
the Company's 1995 SB-2, Part II, Item 27(10)(xxvii))
(xxix) Promissory Note between the Company and Gerald Smith dated
April 18, 1994 (incorporated by reference to the Company's June 30, 1994
Form 10-K, Part IV, Item 14(a)(10)(xxviii))
(xxx) Employment Agreement between Charles F. Fistel and the Company
dated July 1, 1994 (incorporated by reference to the Company's June 30,
1994 Form 10-K, Part V, Item 14(a)(10) (xxix)) as amended by Modified
Employment Agreement dated December 15, 1994 (incorporated by reference to
the Company's 1995 Form SB-2, Part II, Item 27(10)(xxix))
(xxxi) Placement Agent Agreement and Common Stock Purchase Warrant
issued to Laidlaw Equities, Inc. and designees (incorporated by reference
to the Company's 1995 Form SB-2, Part II, Item 27(10)(xxxi))
(xxxii) Amendment No. 1 to Agreement for Sale of Stock with Cytoferon
(incorporated by reference to the Company's 1995 Form SB-2, Part II, Item
27(10)(xxxii))
(xxxiii) Modified Sale of Stock and Stock Option Agreement with Peter
D. Fischbein (incorporated by reference to the Company's 1995 Form SB-2,
Part II, Item 27(10)(xxxiii))
(xxxiv) Agreement with Moty Hermon (incorporated by reference to the
Company's 1995 Form SB-2, Part II, Item 27(10)(xxxiv))
34
<PAGE> 6
(xxxv) Agreement with University of Nebraska-Medical Center
(incorporated by reference to the Company's 1995 Form SB-2, Part II, Item
27(10)(xxxv))
(xxxvi) License and Manufacturing Agreement with Common Services
Agency (incorporated by reference to the Company's 1995 Form SB-2, Part II,
Item 27(10)(xxxvi))
(xxxvii) Agreed Motion for Consent Final Order and Settlement
Agreement dated August 29, 1995 (incorporated by reference to the Company's
June 30, 1995 Form 10-KSB)
(xxxviii) Agreement and Plan of Reorganization dated November 8, 1995
and Amendment thereto (incorporated by reference to the Company's
Post-Effective Amendment No. 1 to Registration Statement on Form SB-2)
(xxxix) Securities Purchase Agreement dated June 7, 1996 (incorporated
by references to the Company's current report on Form 8-K dated June 7,
1996).
(xl) Employment Agreement between Charles F. Fistel and the Company
dated July 1, 1996 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended June 30, 1996)
(xli) Stock Option Agreement between the Company and Fred D. Hirt
dated August 2, 1996 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended June 30, 1996)
(xlii) Form of Private Securities Subscription Agreement dated
November 27, 1996 and related Registration Rights Agreement and Common
Stock Purchase Warrant (incorporated by reference to the Company's Current
Report on Form 8-K dated February 14, 1997)
(xliii) Private Securities Subscription Agreement dated February 3,1
997 and related Regulation Rights Agreement, Common Stock Purchase Warrant
and related agreements (incorporated by reference to the Company's Current
Report on Form 8-K dated February 14, 1997)
(xliv) Securities Purchase Agreement dated as of December 31, 1996 and
related Registration Rights Agreement (incorporated by reference to the
Company's Current Report on Form 8-K dated March 6, 1997)
(xlv) Employment Agreement between Gerald Smith and the Company dated
March 1, 1997 (incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended June 30, 1997)
(xlvi) Employment Agreement between Dennis W. Healey and the Company
dated March 1, 1997 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended June 30, 1997)
(xlvii) Employment Agreement between Robert C. Rech and the Company
dated May 19, 1997 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended June 30, 1997)
(xlviii) 11 month 10% Promissory Note dated July 1, 1997 (incorporated
by reference to the Company's Current Report on Form 8-K dated August 28,
1997)
(xlix) Employment Agreement between Robert H. Zeiger and the Company
dated August 1, 1997 (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended June 30, 1997)
(l) Certificate of Designations, Preferences and Rights of the Series
F Convertible Preferred Shares (incorporated by reference to the Company's
Current Report on Form 8-K dated August 28, 1997)
(li) Certificate of Designations, Preferences and Rights of 10%
Cumulative Convertible Preferred Stock, Series G (incorporated by reference
to the Company's Current Report on Form 8-K dated August 28, 1997)
35
<PAGE> 7
(lii) Series F Convertible Preferred Stock Exchange Agreement, dated
July 23, 1997 (incorporated by reference to the Company's Current Report on
Form 8-K dated August 28, 1997)
(liii) Series G Convertible Preferred Stock Exchange Agreement, dated
August 27, 1997 (incorporated by reference to the Company's Current Report
on Form 8-K dated August 28, 1997)
(liv) 10% Promissory Note to Clearwater Fund IV, Ltd. (incorporated by
reference to the Company's current Report on Form 8-K dated September 22,
1997, Item 7 (c)1)
(lv) Omitted.
(lvi) Series H Convertible Preferred Stock, Form of Subscription
Agreement dated February 17, 1998 and related Registration Agreement and
Common Stock Purchase Warrants (incorporated by reference to the Company's
Registration Statement on Form S-3 dated April 17, 1998)
(lvii) Series I Convertible Preferred Stock, Form of Subscription
Agreement dated April 2, 1998 and related Registration Rights Agreement and
Common Stock Purchase Warrants (incorporated by reference to the Company's
Registration Statement on Form S-3 dated April 17, 1998)
(lviii) Cooperation and Supply Agreement between the Company, Viragen
Deutschland GmbH and German Red Cross dated March 19, 1998 (incorporated by
reference to the Company's Annual Report on Form 10-K/A for the year ended
June 30, 1998) (Certain portions of this exhibit have been redacted
pursuant to a Confidentiality Request submitted to the Securities and
Exchange Commission)
(lix) Buffycoat Supply Agreement between America's Blood Centers and
the Company dated July 15, 1998 (incorporated by reference to the Company's
Annual Report on Form 10-K for the year ended June 30, 1998, except for
related exhibits filed herein) (Certain portions of this exhibit have been
redacted pursuant to a Confidentiality Request submitted to the Securities
and Exchange Commission)
(lx) Agreement between the Company and the American Red Cross dated
August 18, 1998 (incorporated by reference to the Company's Annual Report
on Form 10-K/A for the year ended June 30, 1998) (Certain portions of this
exhibit have been redacted pursuant to a Confidentiality Request submitted
to the Securities and Exchange Commission)
(lxi) Strategic Alliance Agreement between the Company and
Inflammatics, Inc. and Inflammatics Inc. Series A Convertible Preferred
Stock Purchase Agreement (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended June 30, 1998)
(lxii) Common Stock Private Equity Line Subscription Agreement,
Registration Rights Agreement, Private Placement Agreement, Placement Agent
Warrant and Investor Warrant dated September 22, 1998 (incorporated by
reference to the Company's Annual Report on Form 10-K for the year ended
June 30, 1998)
(lxiii) Gerald Smith Pledge and Escrow Agreement for 200,000 shares
dated September 1, 1998 (incorporated by reference to the Company's Annual
Report on Form 10-K/A for the year ended June 30, 1998).
(lxiv) Gerald Smith Pledge and Escrow Agreement for 50,000 shares
dated September 1, 1998 (incorporated by reference to the Company's Annual
Report on Form 10-K/A for the year ended June 30, 1998).
(lxv) Dennis W. Healey Pledge and Escrow Agreement for 200,000 shares
dated September 1, 1998 (incorporated by reference to the Company's Annual
Report on Form 10-K/A for the year ended June 30, 1998).
(lxvi) Dennis W. Healey Pledge and Escrow Agreement for 50,000 shares
dated September 1, 1998 (incorporated by reference to the Company's Annual
Report on Form 10-K/A for the year ended June 30, 1998).
(lxvii) Southern Health SDN. BHD Option to Purchase Master License
dated March 23, 1998 (incorporated by reference to the Company's Annual
Report on Form 10-K/A for the year ended June 30, 1998). (Certain portions
of this exhibit have been redacted pursuant to a Confidentiality Request
submitted to the Securities and Exchange Commission).
(11) Statement re computation of loss per share (incorporated by reference
to the Company's Annual Report on Form 10-K/A for the year ended June 30,
1998).
(21) Subsidiaries of the registrant (incorporated by reference to the
Company's Annual Report on Form 10-K/A for the year ended June 30, 1998).
(23) Consent of Independent Certified Public Accountants (incorporated by
reference to the Company's Annual Report on Form 10-K/A for the year ended
June 30, 1998).
(27) Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K filed during the fourth quarter
None
36
<PAGE> 8
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
VIRAGEN, INC.
By: /s/ DENNIS W. HEALEY
------------------------------------
Dennis W. Healey
Executive Vice President, Treasurer
Principal Financial Officer
Dated: July 14, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ GERALD SMITH Chairman of the Board of July 14, 1999
- ------------------------------------------------ Directors, Principal Executive
Gerald Smith Officer and President
Chief Executive Officer and July 14, 1999
- ------------------------------------------------ Director
Robert H. Zeiger
/s/ CARL N. SINGER Director and Chairman of the July 14, 1999
- ------------------------------------------------ Executive Committee
Carl N. Singer
/s/ DENNIS W. HEALEY Executive Vice President, July 14, 1999
- ------------------------------------------------ Treasurer, Principal Financial
Dennis W. Healey Officer and Director
/s/ CHARLES J. SIMONS Director and Chairman of the July 14, 1999
- ------------------------------------------------ Audit, Finance and
Charles J. Simons Compensation Committee
/s/ PETER D. FISCHBEIN Director July 14, 1999
- ------------------------------------------------
Peter D. Fischbein
/s/ SIDNEY DWORKIN Director July 14, 1999
- ------------------------------------------------
Sidney Dworkin
/s/ JOSE I. ORTEGA Controller and Principal July 14, 1999
- ------------------------------------------------ Accounting Officer
Jose I. Ortega
</TABLE>
37
<PAGE> 1
EXHIBIT 10(lix)(02)
EXHIBIT 1
VUSA BUFFYCOAT SPECIFICATIONS
o Delivery of Buffycoat units to VUSA shall be in less than * hours from
the original time of blood donation (draw).
o Buffycoats shall be made from units satisfactory for transfusion use under
applicable FDA regulations and guidelines.
o Storage, handling and transport of Buffycoats units shall be at
*.
o Hematocrit of * per Buffycoat unit.
o All FDA required and recommended transmissible disease and other testing
on all blood samples (which currently includes testing for the following
infectious diseases: HIV-I/HIV-II, HTLV-I, HBsAg, HBc, HCV, and Syphilis)
and shown to be negative (e.g., non-reactive).
o VUSA recognizes that Buffycoats may from time to time be shipped before
test results are available, in which case they shipped with a provisional
certificate of analysis for the test results and other information that is
available at the time of shipment, and will be promptly followed by a
final certificate of analysis for all test data.
o A unit of Buffycoats will be derived from a unit of whole blood that has a
volume greater than or equal to *, and the whole blood will have an
average of approximately * million white blood cells per ml, and shall
contain on average not less than * billion white blood cells per
delivered Buffycoat unit per * of whole blood source.
o Packaged and labeled for shipping (transport) per the PBIC standard
operating procedures.
o To the extent not specifically required otherwise herein, Buffycoats will
be manufactured (including all steps pertaining thereto, such as, but not
limited to, collection, handling, storage, testing, packaging, labeling,
shipment, and documentation) in compliance with (i) FDA cGMP and other
requirements and recommendations applicable to the manufacture of blood
for transfusion, and (ii) to the extent not in conflict with such FDA
requirements and recommendations, with the PBIC's standard operating
procedures.
* The information redacted herefrom is the subject of a Confidentiality
Request submitted to the Securities and Exchange Commission.
CONFIDENTIAL EXHIBIT 1 7/15/98
<PAGE> 2
EXHIBIT 2
PIBC SUBAGREEMENT FOR SUPPLY OF BUFFYCOATS
This subagreement ("Subagreement") is made and entered into this __ day of
______, ____ by and between ____________________________, a ____________
non-profit corporation with its principal office at
__________________________________ (hereafter "PIBC"), and America's Blood
Centers ("ABC"), an Arizona non-profit corporation with its principal office at
725 15th St., N.W., Suite 700, Washington, DC 20005 and Viragen, U.S.A., Inc.
("VUSA"), a Delaware corporation, having its principal office at 865 SW 78th
Ave., Suite 100, Plantation, FL 33324.
RECITALS
PIBC is a non-profit blood center which holds a valid license from U.S. Food
and Drug and Administration to manufacture and distribute human source
leukocytes and is a member in good standing of America's Blood Centers ("ABC").
VUSA and its Affiliates are engaged in the research, development and production
of products made from human source leukocytes. ABC has entered into an
agreement with VUSA and Viragen for access to human source leukocytes supplied
by ABC members ("the Agreement"). PIBC has thoroughly read and reviewed the
terms of the Agreement, and the parties desire to have the PIBC supply human
source leukocytes in accordance with the terms and conditions of the Agreement
and this Subagreement.
COVENANTS
2.1. INCORPORATION OF AGREEMENT.
1.1 AGREEMENT TERMS AND CONDITIONS. All definitions, terms, covenants,
conditions and exhibits of the Agreement are incorporated herein and made
a part of this Subagreement, and the PIBC, ABC and VUSA agree to be fully
bound by all such terms, covenants, conditions and exhibits of the
Agreement applicable to the PIBC and to Buffycoats supplied by the PIBC,
and to otherwise fully cooperate with ABC and VUSA in the performance of
the Agreement, including all audits of the PIBC which ABC or VUSA may
carry out under the Agreement.
1.2 ABC ROLE. PIBC agrees that ABC shall act as the interface between VUSA and
PIBC to the extent provided in the Agreement, including receipt of
forecasts, purchase orders, and payments from VUSA. PIBC shall not hold
VUSA or its Affiliates responsible for any payments received from VUSA or
its Affiliates and not delivered by ABC to PIBC, or for any ABC
misfeasance or malfeasance in any task ABC is to carry out under the
Agreement or otherwise undertakes.
1.3 OTHER HUMAN SOURCE LEUKOCYTES SUPPLY AGREEMENTS. The parties expressly
recognize that PIBC has the preexisting contractual obligation(s) to
supply human source leukocytes to other Persons as set forth in Exhibit A
hereto, and that such preexisting obligation(s) shall be deemed an
exception to VUSA's First and Preferential Access and to the Available
Supply in accordance with the Agreement.
2. PIBC ADDITIONAL OBLIGATIONS.
2.1. FORECAST OBLIGATION. Upon the Effective Date and thereafter during the
term of-this Subagreement, at least sixty (60) days before the start of
the each subsequent calendar quarter, PIBC shall provide ABC
CONFIDENTIAL 1 7/15/98
<PAGE> 3
with good faith rolling quarterly forecasts of PIBC's anticipated
Available Supply for each of the subsequent four calendar quarters (the
"PIBC Rolling Supply Forecast"). The forecast made in the PIBC Rolling
Supply Forecast of anticipated PIBC Available Supply for the calendar
quarter immediately subsequent to the quarter following the date the
Rolling Forecast is provided shall be the "PIBC's Confirmed Supply
Forecast. PIBC shall immediately inform ABC of any condition that might
adversely affect its Available Supply or its ability to supply the
quantities of Buffycoats specified In any PIBC Rolling Supply Forecast or
PIBC's Confirmed Supply Forecast.
CONFIDENTIAL 2 7/15/98
<PAGE> 4
2.2. SUPPLY OBLIGATION. PIBC shall accept purchase orders for Buffycoats,
up to the PIBC's Confirmed Available Supply, allocated by ABC to the PIBC.
PIBC shall deliver to VUSA the Buffycoats specified in such purchase order
in accordance with the Agreement and the purchase order. PIBC shall
immediately inform ABC (which ABC shall promptly forward such information
to VUSA) of any condition that might adversely affect its Available Supply
or its ability to supply the quantities of Buffycoats specified in any
purchase order; provided, that all information described under Section 5.4
of the Agreement is directly and immediately transmitted to VUSA.
3. PIBC WARRANTIES.
PIBC represents and warrants to VUSA and ABC that:
3.1. CORPORATE ORGANIZATION & AUTHORITY. PIBC is a corporation duly organized,
validly existing, and in good standing under the laws of the ____________,
and has all requisite corporate power and authority to own, lease and
operate its properties and carry on its business as now conducted, to
execute and deliver this Subagreement and to perform the obligations
contemplated hereunder. This Subagreement has been duly and validly
executed and delivered by PIBC and constitutes the legal, valid and
binding obligation of PIBC enforceable against PIBC by VUSA and ABC in
accordance with its terms and that of the Agreement.
3.2. No Conflict, Legal Compliance. The execution and delivery of this
Agreement by PIBC does not, and the performance of this Subagreement by
PIBC during its term shall not (i) conflict with or violate any laws,
regulations, guidelines or any order, award, judgment or decree, or
permit, license or approval of any governmental agency applicable to it or
by which their properties or operations are bound or affected, (ii) result
in any breach of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under any mortgage,
contract, license, permit, insurance policy or other obligation to which
they are a party, or by which they or their properties are bound or
affected, or (iii) require any consent, approval, authorization or filing
with or notification to any Governmental Agency or third party.
3.3. PIBC AVAILABLE SUPPLY. Its annual Available Supply is at least ___,000
Buffycoats on the Effective Date, and that the Available Supply shall be
maintained at no less than that level during the term of this
Subagreement, except for such reductions from that level to the extent
necessary to meet the PIBC's obligations to supply human source leukocytes
for direct human transfusion. Notwithstanding the foregoing, PIBC
represents and warrants that it will use its reasonable best efforts to
maximize its Available Supply in a timely manner consistent with expected
forecasts.
3.4. NON-INFRINGEMENT, ABILITY TO PROVIDE. PIBC warrants that it shall not
disclose or cause to be disclosed to VUSA or its Affiliates any trade
secrets or any third party patent or proprietary rights, or use same in
the manufacture of the Buffycoats under this Agreement, and shall not
provide to VUSA any Buffycoats which have been manufactured using any
process that infringes or misappropriates any third party patent or trade
secret. PIBC's warranties under this Section 3.4 shall not extend to any
procedure, Specification, method, Confidential Information or materials
provided by VUSA, Viragen or their respective Affiliates.
CONFIDENTIAL 3 7/15/98
<PAGE> 5
4. TERM AND TERMINATION.
4.1. TERM. This Subagreement shall commence on the date of its execution or on
the Effective Date of the Agreement, whichever is later, and shall
continue until the Agreement terminates or until this Subagreement is
terminated, whichever is sooner. Upon termination of this Subagreement,
each party agrees to honor any obligations that, under the Section 10.8 of
the Agreement, continue past termination. This Subagreement shall be
automatically renewed or extended for the duration of any renewal or
extension period of the Agreement; provided, however, that (i) each PIBC
shall have the right not to renew this Subagreement if it provides ABC and
VUSA written notice of its intent not to renew this Subagreement at least
eighteen (18) months prior to expiration of the term of the Agreement, or
(ii) if the renewal or extension of the Agreement provides for any
material changes to the material terms of the Agreement, each PIBC shall
have fifteen (15) days from the date of its receipt of such extended or
renewed Agreement to notify ABC and VUSA in writing that the PIBC will not
extend or renew this Subagreement.
4.2. SEPARATE TERMINATION OF SUBAGREEMENT. Either PIBC or VUSA may terminate
this Subagreement (without terminating the Agreement or any other
Subagreement) in the event of a material breach by the other party of the
Agreement or this Subagreement, provided such Person follows the
procedures in 10.6 of the Agreement. Additionally, VUSA may terminate this
Subagreement immediately (without terminating the Agreement or any other
Subagreement) in the event of (a) PIBC's failure to comply with FDA or
other federal, state, and local government requirements (including the
terms of any undissolved consent decrees) to be a supplier of Buffycoats
or (b) PIBC's bankruptcy or insolvency as defined in 10.7 of the
Agreement. Finally, VUSA may terminate this Subagreement (without
terminating the Agreement), without fault and after consultation with ABC
and PIBC, in the event that PIBC is repeatedly unable to supply conforming
Buffycoats on a basis and quality comparable to other ABC members that
also are supplying Buffycoats under the Agreement, or is unable to
maintain an adequate Available Supply of Buffycoats.
5. MISCELLANEOUS.
5.1. NOTICES. Any and all notices, designations, consents, offers, acceptances
or other communication provided herein shall be given as provided in the
Agreement directed to the address shown below, unless notice of a change
of address is furnished:
IF TO PIBC: IF TO VUSA, VIRAGEN OR ABC:
[PIBC Name] As set forth in the Agreement:
[PIBC Address]
Attn: [Name]
Fax:
ALL NOTICES OF RECALLS OR ANY OTHER MATTER THAT MAY RELATE TO THE SAFETY OF THE
BUFFYCOATS SHALL BE COMMUNICATED BY THE MOST EXPEDIENT METHOD, AND PROMPTLY
CONFIRMED IN WRITING.
5.2. ENTIRE AGREEMENT. Except as expressly set forth herein, this Subagreement
together with the Agreement and their Exhibits constitute the entire
agreement between the parties with respect to the subject matter hereof
and supersede all other agreements and undertakings, both written and
oral, between the parties with respect to the subject matters covered in
the Subagreement, the Agreement
CONFIDENTIAL 4 7/15/98
<PAGE> 6
and the Exhibits. No modification of the terms of this Subagreement, or
any waiver of any breach thereof, shall be effective unless made in
writing and executed by authorized representatives of VUSA, ABC, and the
PIBC.
5.3. CHOICE OF LAW; ALTERNATIVE DISPUTE RESOLUTION. The parties agree that this
Subagreement shall be governed by the choice of law, venue and alternative
dispute provisions of the Agreement.
VIRAGEN USA., INC. [PIBC]
By: By:
------------------------------- ------------------------------------
Charles F. Fistel [Name]
Executive Vice President [Title]
AMERICA'S BLOOD CENTERS
By: By:
--------------------------------- ------------------------------------
Byron B. Buhner Jim MacPherson
President Executive Director
CONFIDENTIAL 5 7/15/98
<PAGE> 7
EXHIBIT 3
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (the "Agreement") is made and entered into
July 15, 1998, by and among American Blood Centers, Inc. ("ABC"), a non-profit
Arizona corporation with its principal offices at 725 15th Street, N.W., Suite
700, Washington, DC 20005 and Viragen. Inc. ("Viragen"), a Delaware
corporation, and Viragen U.S.A., Inc. ("VUSA"), a Delaware corporation and a
wholly-owned subsidiary of Viragen. with their principal offices at 865 S.W.
78th Avenue, Suite 100, Plantation, Florida 33324.
WHEREAS, ABC, Viragen and VUSA are parties to an Agreement dated even
date herewith (the "Agreement");
WHEREAS, pursuant to the Agreement, ABC will be authorized to receive
shares of Common Stock of VUSA ("Shares") in certain events as provided for in
the Agreement; and
WHEREAS, the parties desire to provide for the orderly management of
the business and affairs of VUSA, to place certain restrictions on the transfer
of the Shares by ABC and to provide for a harmonious relationship among
themselves;
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. CERTIFCATES OF STOCK. Each certificate of Shares subject to this
Agreement may have endorsed thereon the followings words:
"This certificate and the shares of stock represented hereby are held
subject to the terms and restrictions of a certain Stockholders
Agreement dated July 15, 1998, by and among American's Blood Centers,
Inc., Viragen, Inc. and Viragen U.S.A., Inc. Said Agreement, among
other things, restricts the disposition of certain shares of stock,
and gives Viragen U.S.A., Inc., and Viragen. Inc. a first option to
buy the stock represented hereby in the event of any termination of
the Agreement or if the holder named herein desires to dispose of the
same. A copy of said Agreement is on file in the office of Viragen
U.S.A., Inc."
2. RESTRICTION ON DISPOSITION OF SHARES.
(a) Neither ABC nor any permitted transferee or assign shall
dispose of any Shares except in accordance with the balance of the terms
hereinafter set forth; provided, however, that ABC is authorized to transfer
and assign, some or all of the Shares to PIBCs (as defined in the Agreement),
and PIBCs are authorized to transfer and assign to other PIBCs or to ABC, upon
ten (10) days written notice to VUSA and subject to such PIBC executing a copy
of this Agreement or comparable stockholders' agreement. As used in this
Agreement, the term "dispose" or "disposition" means a sale, exchange, bequest,
devise. assignment, pledge, encumbrance. hypothecation, contribution to capital
or other disposition, with or without consideration, effective during the term
of this Agreement.
(b) Except as otherwise provided in subsection 2 (a) above or
elsewhere in this Agreement, at any time, ABC may sell all, but not less than
all, of its Shares (hereinafter referred to as the "Offered Shares") to any
person (hereinafter referred to as the "Transferee"), but only upon
satisfaction of all of the conditions set forth in paragraphs (i) through (iv)
below:
(i) The Transferee has delivered to ABC a signed writing setting
forth the terms of the proposed acquisition of the Offered Shares,
including confirmation of the number of the Offered Shares to be acquired
by the Transferee, the price per share to be paid, the cash down payment
and the payment provisions, interest rate or other terms of any promissory
note or other extension of credit (hereinafter referred to as the
"Offer");
1
<PAGE> 8
(ii) The Transferee has deposited with an independent escrow agent
an amount equal to twenty percent (20%) of the total purchase price to be
paid for such Offered Shares and has delivered to ABC a writing from such
independent escrow agent evidencing receipt by it of such deposit
(hereinafter referred to as the "Receipt");
(iii) Within ten (10) days following the receipt of the Offer and
of the Receipt, ABC has delivered to the VUSA a true and complete copy of
each (hereinafter referred to as the "Notice").
(iv) Within thirty (30) days following the delivery of the Notice
to VUSA, Viragen or VUSA fails to notify the ABC in writing that it
intends to redeem or purchase the Offered Shares described in the Offer as
provided in subsection (c) of this Section.
If all of the conditions set forth in subparagraphs (i) through (iv)
above are satisfied, and Viragen or VUSA fails to elect to redeem and/or
purchase all of the Offered Shares as provided in subsection (c) of this
Section, then ABC shall sell the Offered Shares to the Transferee at the price
and in accordance with the precise terms and conditions set forth in the Offer.
VUSA shall be under no obligation to recognize the sale or transfer or such
Offered Shares, however, until and unless: (i) ABC or the Transferee shall
furnish to VUSA evidence satisfactory to it that such sale has been or will be
consummated in accordance with the terms set forth in the Offer; and (ii) the
Transferee agrees that it shall be bound by all of the terms and conditions of
this Agreement and any other terms and conditions reasonably imposed by VUSA
(but shall have none of the rights of ABC unless otherwise agreed to herein or
subsequently agreed to in writing by VUSA. If the sale is proposed to be made
at a price or upon terms or conditions which are different from those set forth
in the Offer, then ABC shall again fully comply with the procedures herein
required to be observed in order to sell its Shares.
(c) During the thirty (30) day period described in paragraph (iv)
of subsection (b) of this Section, VUSA shall have the initial right to redeem
an of the Offered Shares at the same price and on the same terms and conditions
set forth in the Offer by notifying ABC in writing of the exercise of such
right. If VUSA fails to agree to redeem all of the Offered Shares, Viragen
shall have the right to purchase all of such remaining Offered Shares at the
same price and on the same terms and conditions set forth in the Offer by so
notifying ABC in a writing delivered by hand within the foregoing thirty (30)
day period. In the event VUSA and Viragen fail to redeem and/or purchase all of
the Offered Shares, ABC shall be free to sell the Offered Shares as
contemplated in subsection (b) of this Section.
(d) VUSA shall redeem, Viragen shall purchase and ABC shall
surrender to VUSA or sell to Viragen the number of Shares subject to the
respective written elections made pursuant to subsection (c) of this Section at
the principal office of VUSA on such date or dates which shal1 be mutually
determined by ABC and VUSA, but which shall not be later than ten (10) days
after the commencement of the thirty (30) day period referred to in subsection
(c) of this Section (hereinafter referred to as a "Closing"). At each Closing,
VUSA and/or Viragen, as the case may be, shall tender the consideration set
forth in the Offer for the Offered Shares to be redeemed or acquired by it, and
ABC shall surrender to VUSA and/or Viragen one or more stock certificates
representing such Offered Shares together with such duly executed stock powers
as are necessary to transfer ownership to such Shares to VUSA and/or Viragen,
as the case may be. If appropriate, the terms of payment set forth in the Offer
shall be apportioned among the Offered Shares to be redeemed or purchased.
(e) The foregoing notwithstanding, in the event that ABC or any
permitted transferee or assign (the "Selling Party") shall desire to dispose of
any of the Shares in an ordinary market transaction following such time as VUSA
shall have completed a public offering of its Common Stock, a public trading
market shall exist for VUSA's Common Stock and the Selling party is eligible
to effect sales of thc Shares as registered shares or in accordance with Rule
144 under the Securities Act of 1933, the following procedures shall apply. The
Selling Party shall send by facsimile written notice to VUSA of its intent to
effect sales of all or some of the Shares (the "Noticed Shares") in an ordinary
market transaction. VUSA shall have seven days from the date of notice to
provide or cause to be provided through a separate buyer cash to the Selling
Party an amount equal to the Purchase Price (as hereinafter defined) multiplied
times the
2
<PAGE> 9
number of Noticed Shares. The purchase price (the "Purchase Price") per share
of Common Stock shall be equal to the closing bid price for VUSA Common Stock
on the securitics exchange or in the principal securities market on the date
that VUSA provides its reciprocal notice of the commitment by VUSA or such
other buyer to purchase the Noticed Shares. In the event VUSA does not so
provide or cause to be provided such amount within seven days of the Selling
Party's notice, then the Selling Party shall be free without restriction for 30
days to sell the Noticed Shares. If the Noticed Shares are not sold during such
subsequent 30-day time period, then the Selling Party prior to any future sale
of the Noticed Shares must again fully comply with all the procedures set forth
herein.
3. TERMINATION. This Agreement shall be effective for a period
beginning with the date hereof and continuing for either the earlier to occur
of (i) ABC or the PIBCs shall no longer beneficially own any shares of Common
Stock of VUSA or (ii) the termination of the Agreement for any reason.
4. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the law of the State of Delaware notwithstanding the laws that might
otherwise govern under applicable principles of conflicts of laws hereof.
(b) Any notice or other communication under this Agreement shall be
in writing and shall be considered given when delivered personally or sent by
facsimile (with a copy by any other means permitted for the giving of notices
under this Agreement), or three days after being mailed by registered mail,
return receipt requested, to the parties at the addresses specified in the
first paragraph or this Agreement.
(c) This Agreement contains a complete statement of all of the
arrangements among the parties with respect to its subject matter, and cannot
be changed or terminated orally.
(d) This Agreement may be executed in two or more counterparts,
each of which shall be considered an original, but all of which together shall
constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
AMERICAN BLOOD CENTERS, INC., A
NON-PROFIT ARIZONA CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
VIRAGEN, INC., A DELAWARE CORPORATION
By:
-------------------------------------
Gerald Smith, President
VIRAGEN U.S.A., INC., A DELAWARE
CORPORATION
By:
-------------------------------------
Charles F. Fistel, Executive Vice President
3
<PAGE> 10
INVESTMENT LETTER
Viragen U.S.A. Inc.
865 S.W. 78th Avenue
Suite l00
Plantation, Florida 33324
Gentlemen:
The undersigned hereby represents and warrants to Viragen U.S.A., Inc.
(the "Company"), that (i) the ________ shares of the Company's Common Stock,
$.01 par value (the "Securities") which are being acquired by the undersigned
are being acquired from the Company for its own account and for investment and
not with a view to the public resale or distribution thereof; (ii) the
undersigned will not sell, transfer or otherwise dispose of the Securities
except in compliance with the Securities Act of 1933, as amended (the "Act");
and (iii) the undersigned is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 of the General Rules and
Regulations under the Act.
The undersigned acknowledges that it has been furnished with
disclosure documents, including among other things, the Company's financial
statements.
The undersigned further acknowledges that it has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Company concerning the terms and conditions persuant to which the
Securities are being offered. The undersigned acknowledges that it has been
afforded an opportunity to examine such documents and other information which
it has requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned further acknowledges that it is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
Securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
By reason of the undersigned's knowledge and experience in financial
and business matters in general, and investments in particular, the undersigned
is capable of evaluating the merits and risks of an investment in the
Securities. The undersigned is capable of bearing the economic risks of an
investment in the Securities and fully understands the speculative nature of
the Securities and the possibility of such loss.
The undersigned's present financia1 condition is such that it is under
no present or contemplated future need to dispose of any portion of the
Securities to satisfy any existing or contemplated undertaking, need or
indebtedness.
1
<PAGE> 11
Any and all certificates representing the Securities, and any and all
Securities issued in replacement thereof or in exchange therefor, shall bear
the following or comparable legends, which the undersigned has read and
understands:
"The Securities represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act"). The Securities
have been acquired for investment and may not be sold or transferred
in the absence of an effective Registration Statement for the
Securities under the Act unless in the opinion of counsel satisfactory
to the Company, registration is not required under the Act."
"The Securities represented by this Certificate are subject
to the terms of an Agreement dated July 15, 1998 and a related
Stockholders Agreement which provides for the repurchase of the
Securities evidenced by this Certificate under certain conditions. The
Securities represented by this Certificate are also subject to the
terms and conditions of a Stockholders Agreement which provides
certain restrictions on the public resale and transfer of the
Securities evidenced hereby and provides a right of first refusal and
option to purchase the Securities by the Company. A copy of the
Agreement and the Stockholders Agreement may be obtained at the
principal office of the Company."
Very truly yours,
AMERICAN BLOOD CENTERS, INC.
By:
-------------------------------------
Name: Jim MacPherson
-----------------------------------
Its: Exec. Director
-----------------------------------
Dated:
2
<PAGE> 12
EXHIBIT 4
VOTING AGREEMENT
This Voting Agreement (the "Voting Agreement") is made and entered
into July 15, 1998 by and among America's Blood Centers, Inc. ("ABC"), a
non-profit Arizona corporation with its principal offices at 725 15th Street,
N.W., Suite 700, Washington, DC 20005, and Viragen, Inc. ("Viragen"), a
Delaware corporation, and Viragen U.S.A., Inc. ("VUSA"), a Delaware corporation
and a wholly-owned subsidiary of Viragen, with their principal offices at 865
S.W. 78th Avenue, Suite 100, Plantation, Florida 33324.
WHEREAS, ABC, Viragen and VUSA are parties to an Agreement dated even
date herewith (the "Agreement");
WHEREAS, pursuant to the Agreement, ABC will be authorized to receive
shares of Common Stock of VUSA in certain events as provided for in the
Agreement; and
WHEREAS, the parties desire to provide for the orderly management of
the business and affairs of VUSA at such time as ABC receives shares of Common
Stock of VUSA, including the election of one ABC nominee as a VUSA director;
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
1. Election of ABC's Nominee. Commencing at such time as ABC receives
shares of Common Stock of VUSA under the terms of the Agreement and for the
term of this Voting Agreement, Viragen agrees that it will vote all of its
shares of Common Stock of VUSA to elect to VUSA's Board of Directors a nominee
designated by ABC, who shall meet VUSA Board's good and reasonable criteria as
specified from time to time by VUSA. The number of directors which may be
nominated by ABC shall not be affected by any increase or decrease in the
number of directors constituting the Board of Directors of VUSA.
2. Change of Director. If ABC gives written notice to Viragen of its
desire to remove ABC's designated director for any reason, Viragen shall vote
all of its shares and Viragen and VUSA shall take all other action reasonably
necessary to remove that director. If for any reason any director previously
nominated by ABC ceases to hold office, ABC shall promptly nominate an
individual to fill the vacancy so created for the unexpired term and Viragen
shall vote all of its shares and Viragen and VUSA shall take all other action
reasonably necessary to cause the individual so nominated to fill the vacancy.
3. Termination. This Voting Agreement shall be effective for a period
beginning with the date hereof and continuing for either the earlier to occur
of (i) ABC or the PIBCs (as defined in the Agreement) shall no longer
beneficially own any shares of Common Stock of VUSA or (ii) the termination of
the Agreement for any reason.
4. Miscellaneous.
(a) This Voting Agreement shall be governed by and construed in
accordance with the law of the State of Delaware notwithstanding the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.
(b) Any notice or other communication under this Voting Agreement
shall be in writing and shall be considered given when delivered personally or
sent by facsimile (with a copy by any other means permitted for the giving of
notices under this Voting Agreement), or three days after being mailed by
registered mail, return receipt requested, to the parties at the addresses
specified in the first paragraph of this Voting Agreement.
(c) This Voting Agreement contains a complete statement of all of
the arrangements among the parties with respect to its subject matter, and
cannot be changed or terminated orally.
1
<PAGE> 13
(d) This Voting Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement on the day and year first above written.
AMERICAN BLOOD CENTERS, INC., A
NON-PROFIT ARIZONA CORPORATION
By:
-------------------------------------
Name: Jim MacPherson
-----------------------------------
Title: Exec. Director
----------------------------------
VIRAGEN, INC., A DELAWARE CORPORATION
By:
-------------------------------------
Gerald Smith, President
VIRAGEN U.S.A., INC., A DELAWARE
CORPORATION
By:
-------------------------------------
Charles F. Fistel, Executive Vice President
2
