EXHIBIT 10-B
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EXECUTION COPY
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VOTING AGREEMENT
AGREEMENT, dated as of June 17, 1999, among Xxxx X. Xxxxxx
("Xxxxxx"), Anvil Investment Partners, L.P. ("Anvil"), Anvil Investors, Inc.
("Anvil Investors"), and Avatex Corporation, a Delaware corporation ("Avatex").
Xxxxxx, Anvil and Anvil Investors sometimes are referred to herein collectively
as the "Stockholders" and individually as a "Stockholder."
W I T N E S S E T H:
WHEREAS, each of the Stockholders is the beneficial and record
owner of the shares of capital stock of Avatex set forth opposite each such
Stockholder's name on Schedule A hereto;
WHEREAS, it is contemplated that promptly following the
execution of this Agreement, Avatex and Xetava Corporation, a Delaware
corporation and wholly-owned subsidiary of Avatex ("Xetava"), will be entering
into an Amended and Restated Agreement and Plan of Merger in substantially the
form attached hereto as Exhibit A (the "Merger Agreement") pursuant to which,
among other things, Xetava will be merged with and into Avatex (the "Merger"),
with Avatex continuing as the Surviving Corporation;
WHEREAS, concurrently with the execution of this Agreement,
Avatex and each of the Stockholders, as well as certain other stockholders of
Avatex, are entering into (or causing its counsel to enter into) a Stipulation
of Settlement (the "Settlement Agreement") relating to the settlement and
dismissal of all litigation brought by the Stockholders and such other
stockholders and/or their affiliates against Avatex, Xetava and/or certain of
Avatex's and/or Xetava's directors in respect of a proposed merger of Avatex
with and into Xetava, which proposed merger was previously announced on April
14, 1998, including the lawsuits filed in April 1998 in the Delaware Chancery
Court styled Harbor Finance Partners Ltd. and Anvil Investment Partners, L.P.,
on behalf of themselves and all other similarly situated, x. Xxxxxx, et al.,
C.A. No. 16334 (the "Harbor Action") and Strougos x. Xxxxxx, et al., C.A. No.
16345 (the "Strougo Action") (the Harbor Action and the Strougo Action were
consolidated by the Delaware Chancery Court in May 1998 under the caption In re:
Avatex Corporation Shareholders Litigation, C.A. No. 16334), and Xxxxxxx
Associates, L.P. v. Avatex Corporation, et al., C.A. 16336 (the lawsuits
referred to in this recital are sometimes hereinafter collectively referred to
as the "Lawsuits"); and
WHEREAS, in order to induce Avatex to enter into the
Settlement Agreement and Avatex and Xetava to enter into the Merger Agreement,
the Stockholders are making certain representations, warranties, covenants and
agreements in connection with the Merger.
#393429 v10.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Article I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Merger Agreement, and the following terms shall have the following meanings:
"Affiliate" means with respect to any Person, any Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person. For purposes of this definition, a subsidiary
of a Person is an Affiliate of such Person and of each other subsidiary of that
Person.
"Associate" shall, with respect to any Person, have the
meaning set forth in Rule 405 under the Securities Act.
"beneficially own" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Control" shall mean, as to any Person, the power to direct or
cause the direction of the management and policies of such person, whether
through the ownership of Voting Securities, by contract or otherwise. The terms
"Controlling Person", "Controlling" and "Controlled by" shall have correlative
meanings.
"Equity Securities" shall have the meaning set forth in Rule
405 under the Securities Act, and, with respect to Avatex or the Surviving
Corporation, as applicable, shall include, but not be limited to, Old Avatex
Common Stock, Convertible Preferred Stock, Series A Preferred Stock, New Avatex
Common Stock and the warrants to be issued as part of the Convertible Preferred
Stock Alternate Consideration or the Series A Preferred Stock Alternate
Consideration.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Person" shall mean and include an individual, a partnership,
a limited liability company, a joint venture, a corporation, a trust, an
unincorporated organization, a governmental or regulatory body or any
department, instrumentality or agency thereof, and any court.
"Preferred Shares" shall mean, collectively, shares of
Convertible Preferred Stock and Series A Preferred Stock.
"Securities Act" shall mean the Securities Act of 1933, or
amended and the rules and regulations promulgated thereunder.
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"Voting Securities" shall have the meaning set forth in Rule
405 under the Securities Act.
For the purposes of this Agreement, the term "Surviving
Corporation" shall include any successor, by operation of law or otherwise, or
any Person that acquires or succeeds to all or substantially all of the assets
of, Avatex, and the term "Avatex" shall include the Surviving Corporation.
Article II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
2.1 Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants, jointly and severally, to Avatex as
follows:
(a) Ownership of Avatex Shares. Such Stockholder is the
beneficial owner of the Avatex Shares set forth opposite such Stockholder's name
on Schedule A hereto, free and clear of all liens, claims, charges, security
interests or other encumbrances and, except for this Agreement, the Merger
Agreement or as otherwise indicated on Schedule A hereto, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder or, to its best knowledge after due inquiry,
any of its Affiliates, is a party relating to the holding, pledge, disposition,
acquisition or voting of any shares of capital stock of Avatex (or securities
convertible into or exchangeable for shares of capital stock of Avatex), and
there are no voting trusts or voting agreements with respect to such shares (or
securities convertible into or exchangeable for shares of capital stock of
Avatex). The Avatex Shares set forth opposite such Stockholder's name on
Schedule A hereto constitute all of the outstanding shares of capital stock of
Avatex owned beneficially or of record by such Stockholder and, to its best
knowledge after due inquiry, any of its Affiliates, and neither such Stockholder
nor, to its best knowledge after due inquiry, any of its Affiliates has any
options, warrants or other rights (including through derivative transactions) to
acquire any additional shares of capital stock of Avatex or any security
exercisable or exchangeable for, or convertible into, shares of capital stock of
Avatex.
(b) Authority to Execute and Perform Agreements. Such
Stockholder has the full legal right and power and all authority required to
enter into, execute and deliver this Agreement and to perform fully such
Stockholder's obligations hereunder. The execution and delivery of this
Agreement by such Stockholder have been duly authorized by all requisite
organizational action, if any, on the part of such Stockholder. This Agreement
has been duly executed and delivered and constitutes the legal, valid and
binding obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms, except as the enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws now or hereafter in effect generally affecting creditors' rights or
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
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(c) No Conflicts; Consents.
(i) The execution and delivery by such Stockholder of this
Agreement do not, and the consummation of the transactions contemplated hereby
will not, conflict with or result in any violation of or default (with or
without notice or lapse of time, or both) under (A) any contract, agreement or
other binding arrangement to which such Stockholder is a party or (B) any
judgment, order, writ, injunction or decree of any court, governmental body,
administrative agency or arbitrator applicable to such Stockholder.
(ii) No consents, approvals or authorizations of, or notices
or filings with, any Person are required to be obtained or made by such
Stockholder in connection with the execution and delivery by such Stockholder of
this Agreement and the consummation of the transactions contemplated hereby.
(d) Information Supplied. None of the written information
specifically supplied or to be supplied by such Stockholder with respect to such
Stockholder for inclusion or incorporation by reference in (i) the Registration
Statement will, at the time the Registration Statement is filed with the SEC and
at the time it becomes effective under the Securities Act, contain any 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 in which they were made, not misleading and (ii) the Proxy
Statement will, at the date the Proxy Statement is first mailed to stockholders
of Avatex and at the time of the Stockholders' Meeting, 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 are made, not misleading.
Article III
REPRESENTATIONS AND WARRANTIES OF AVATEX
3.1 Representations and Warranties of Avatex. Avatex
represents and warrants to each Stockholder as follows:
(a) Authority.
(i) Avatex has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by Avatex and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Avatex.
(ii) Avatex has the requisite corporate power and authority to
execute and deliver the Merger Agreement and, subject to obtaining the
Stockholder Approval, to consummate the transactions contemplated thereby. The
execution, delivery and performance of the Merger Agreement by Avatex and the
consummation of the transactions contemplated thereby have been duly authorized
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by all necessary corporate action on the part of Avatex subject to obtaining the
Stockholder Approval.
(b) Due Execution.
(i) This Agreement has been duly executed and delivered by
Avatex and, assuming this Agreement constitutes the valid and binding obligation
of the Stockholders, constitutes the valid and binding obligation of Avatex,
enforceable against Avatex in accordance with its terms, except that (A) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter relating to creditors' rights generally,
and (B) the remedy of specific performance and injunctive relief hereunder may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(ii) The Merger Agreement has been duly executed and delivered
by Avatex and constitutes the valid and binding obligation of Avatex,
enforceable against Avatex in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter relating to creditors' rights generally.
Article IV
COVENANTS
4.1 Voting Arrangements. Each of the Stockholders agrees,
that, except pursuant to this Agreement or the Merger Agreement, it shall not
grant any proxies, deposit any Avatex Shares into a voting trust or enter into
any voting agreement with respect to any Avatex Shares now or hereafter owned by
such Stockholder.
4.2 Standstill; Transfer Restrictions.
(a) Each Stockholder agrees that, from the date hereof until
the date that is the tenth anniversary of the Closing Date, such Stockholder
shall not, and shall use its best efforts to cause its Affiliates not to,
without the prior written consent of the Board of Directors of Avatex, (i)
except for the Merger Consideration to be received by such Stockholder in the
Merger, in any manner acquire, agree to acquire or make any proposal to acquire,
directly or indirectly, any Equity Securities or other securities of Avatex or
the Surviving Corporation, or any rights, warrants, options or securities to
acquire any such Equity Securities or such other securities; provided, however,
that, the Stockholders may engage in hedging and other similar transactions with
respect to the shares of New Avatex Common Stock it then owns as long as such
transactions are for trading purposes only and do not violate or conflict with
any of the other provisions of this Section 4.2, (ii) other than with respect to
the Merger, propose to enter into, directly or indirectly, a merger or other
business combination involving Avatex or the Surviving Corporation or propose to
purchase, directly or indirectly, a material portion of the assets of Avatex or
the Surviving Corporation, (iii) make, or in any way participate, directly or
indirectly, in, any "solicitation" of "proxies" (as such terms are used in
Regulation 14A under the Exchange Act) to vote or consent or seek to advise or
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influence any Person with respect to the voting of, or granting of a consent
with respect to, any Equity Securities of Avatex or the Surviving Corporation,
including, but not limited to, for the purpose of nominating candidates for
election, or otherwise electing directors, to the Board of Directors of Avatex
at any meeting of the stockholders of Avatex or otherwise, (iv) form, join or in
any way participate in a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) for the purpose of acquiring, holding, voting or disposing of any
Equity Securities of Avatex or the Surviving Corporation (other than with an
Affiliate of such Stockholder), (v) except in connection with the prosecution of
the claims presently asserted in the New York Action (as defined in Section 5.3
below), otherwise act, alone or in concert with others, to seek to control or
influence in any public manner or public forum the management or policies of
Avatex or the Surviving Corporation, (vi) disclose any intention, plan or
arrangement inconsistent with the foregoing, (vii) advise, assist (including by
knowingly providing or arranging financing for that purpose) or encourage any
other Person in connection with any of the foregoing, (viii) request Avatex or
the Surviving Corporation or any agent of Avatex or the Surviving Corporation,
directly or indirectly, to amend or waive any provision of this Section 4.2(a)
(including this sentence) or (ix) other than with respect to entering into this
Agreement or the consummation of the Merger or any settlement of the New York
Action, take any action which might require Avatex or the Surviving Corporation
to make a public announcement regarding the possibility of a transaction between
such Stockholder and Avatex or the Surviving Corporation (including any of their
respective Affiliates).
(b) Nothing contained in this Section 4.2 shall prevent a
Stockholder from (i) enforcing its rights with respect to the Merger, the
Convertible Preferred Stock Alternate Consideration and/or the Series A
Preferred Stock Alternate Consideration, (ii) discussing with Avatex or other
stockholders of the Company any possible amendments or modifications to the
Merger, the Merger Agreement or the Merger Consideration proposed by Avatex, or
(iii) following the consummation of the Merger, discussing with the Surviving
Corporation or other recipients of the Convertible Preferred Stock Alternate
Consideration or the Series A Preferred Stock Alternate Consideration any
possible amendments or modifications proposed by the Surviving Corporation to
the 6.75% Notes, the 6.75% Notes Indenture, the Warrants or any other document,
agreement or instrument related to the Convertible Preferred Stock Alternate
Consideration or the Series A Preferred Stock Alternate Consideration.
(c) In consideration for the agreements and covenants of the
Stockholders set forth in this Section 4.2, within one business day following
the Effective Time, Avatex shall pay to Anvil (or as otherwise directed by
Anvil) an amount in cash equal to $300,000 by wire transfer of immediately
available funds to the following account: Citibank, AB # 021000089, Acct. A/C
00000000 for the account of Bear Xxxxxxx for further credit to Anvil Investment
Partners, L.P. A/C 10300702-29.
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Article V
AGREEMENT TO VOTE;
WAIVER OF RIGHTS
5.1 Agreement to Vote. Each Stockholder hereby agrees that, at
any meeting of the stockholders of Avatex, however called, including the
Stockholders' Meeting, and at every adjournment thereof, and in any action by
written consent of the stockholders of Avatex, in any such case, and/or in which
holders of Avatex Shares are given the right or are entitled to vote, to (i)
vote all of the Avatex Shares then owned (or owned on the record date to
determine stockholders entitled to vote thereat or thereby, as applicable) by
such Stockholder, in favor of the adoption of the Merger Agreement as in effect
on the date hereof (as such agreement may be amended as contemplated by the
Merger Agreement and as long as any such amendment could not be reasonably
deemed to adversely affect the Merger Consideration to be received by such
Stockholders in the Merger), the Merger and each of the other transactions
contemplated thereby and any action required in furtherance thereof, (ii) vote
such Avatex Shares against any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of Avatex or Xetava under the Merger Agreement, and (iii) vote such
shares against any other action or agreement that, directly or indirectly, is
inconsistent with or that would, or is reasonably likely to, directly or
indirectly, impede, interfere with or attempt to discourage the Merger or any
other transaction contemplated by the Merger Agreement, including, but not
limited to (A) any extraordinary corporate transaction (other than the Merger on
the terms set forth in the Merger Agreement), such as a merger, consolidation,
business combination, reorganization, recapitalization or liquidation involving
Avatex, (B) a sale or transfer of a material amount of assets of Avatex, or (C)
any material change in Avatex's corporate structure or business, unless such
action or agreement has been approved by the Board of Directors of Avatex and
recommended for approval by the Stockholders of Avatex.
5.2 Waiver of Appraisal Rights. Subject to Section 6.1 hereof,
each Stockholder hereby waives its rights to appraisal under Section 262 of the
DGCL with respect to any Preferred Shares owned by it in connection with the
transactions contemplated by the Merger Agreement.
5.3 Waiver of Certain Rights; Dismissal and Settlement of the
Lawsuits.
(a) Except with respect to each of the claims asserted in the
Lawsuits, the lawsuit styled Xxxxxxx Xxxxx XXX and Anvil Investment Partners,
X.X. x. Xxxxxx, et. al., No. 602773/98, filed on June 5, 1998, in the Supreme
Court of the State of New York, County of New York (the "New York Action"), and
the lawsuit styled Xxxxxxxxx, et. al. v. FoxMeyer Health Corporation, et. al.,
in the United States District Court for the Northern District of Texas, Dallas
Division, Case No. 396-CV-2258-L, each Stockholder, for him or itself and his or
its Affiliates and Associates, hereby irrevocably waives, releases and
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discharges, and agrees not to assert, any claim, action, cause of action, suit,
right or demand, known or unknown, he or it, or his or its Affiliates or
Associates, has or can, shall or may have against Avatex or any director,
officer, employee, Affiliate, representative, successor and assign of Avatex
(including, but not limited to, the Surviving Corporation) based upon, in
respect of, as a result of, or by reason of any matter, cause or thing,
whatsoever arising out of, in connection with, or in any way related to, (i) the
Original Merger Agreement or the transactions contemplated thereby, (ii) the
approval or adoption of the Merger Agreement or the consummation of the Merger
or the other transactions contemplated thereby, including, but not limited to,
any registration statement, prospectus, proxy statement, public filing or
statement by or of Avatex or any of its Affiliates relating to the Merger
Agreement or the Merger, or (iii) such Stockholder's investment in and/or
ownership of Avatex Shares at any time prior to the date hereof. Each
Stockholder hereby acknowledges and confirms in all respects that the execution
and delivery to Avatex by each of them of a release (the "Bring-Down Release")
as of, and effective immediately upon, the effectiveness of the Merger, with
substantially the provisions set forth in the preceding sentence and in form
reasonably satisfactory to Avatex, shall be a condition precedent to Avatex
consummating the Merger. Notwithstanding anything to the contrary contained
herein, including, but not limited to, Section 4.2 and 5.1 hereof, in this
Voting Agreement and the Bring-Down Release shall in no way be deemed to
prejudice or compromise the rights of the Stockholders with respect to the
claims presently asserted in the New York Action. It is understood and agreed by
the parties that the Stockholders shall be free to prosecute the claims now
asserted in the New York Action as if this Voting Agreement and the Bring-Down
Release had not been executed and that no challenge to the prosecution of the
New York Action shall be made based on this Voting Agreement or the Bring-Down
Release.
(b) Each Stockholder hereby agrees, effective as of the
Effective Time, to settle and dismiss (or cause to be settled and dismissed)
with prejudice each of the Lawsuits in accordance with the Settlement Agreement,
which settlements shall be final and non-appealable.
(c) Without limiting the generality of Section 4.2 hereof,
Section 5.1 hereof and paragraph (a) above of this Section 5.3, each Stockholder
hereby agrees that in no event and under no circumstances will such Stockholder,
directly or indirectly, challenge, attempt to prohibit or enjoin, or otherwise
object to the right or ability of any Person, including, but not limited to, any
director, officer, employee or Affiliate of Avatex (including Phar-Mor, Inc. or
any pension plan sponsored by Avatex or any of its Affiliates), to vote, in such
Person's capacity as a holder of Avatex Shares, on the Merger Agreement or the
Merger at any meeting of stockholders of Avatex, including the Stockholders'
Meeting, or otherwise.
Article VI
MISCELLANEOUS
6.1 Termination.
(a) This Agreement shall terminate upon the earlier to occur
of (i) the mutual consent of Avatex and all of the Stockholders and (ii) the
termination of the Merger Agreement prior to the consummation of the Merger. The
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Stockholders, acting unanimously, may terminate this Agreement if the Effective
Time shall have not occurred on or before the later of (i) the day on which the
settlements of each of the Lawsuits becomes final and non-appealable and (ii)
December 31, 1999, provided that no Stockholder shall have breached any
provision of or any of its obligations under this Agreement. In addition, the
Stockholders, acting unanimously, shall have the right to terminate this
Agreement only if the Merger Agreement in effect on the date hereof is amended
or modified, or if any provision thereof is waived or not complied with, and
such amendment, modification, waiver or non-compliance could reasonably be
deemed to adversely affect the Merger Consideration to be received by the
Stockholders in the Merger.
(b) If this Agreement is terminated pursuant to Section 6.1(a)
above, this Agreement, except for the provisions of this Section 6.1(b), shall
forthwith become void and have no effect.
6.2 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
6.3 Notices. Notices, requests, permissions, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand,
deposited in the United States mail (registered or certified, return receipt
requested), properly addressed and postage prepaid, or delivered by telecopy:
If to Avatex, to:
Avatex Corporation
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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If to the Stockholders, at such address as may be furnished
to Avatex from time to time;
with a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Wolosky LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx. Esq.
6.4 Counterparts. This Agreement may be executed in one or
more counterparts and each counterpart shall be deemed to be an original, but
all of which shall constitute one and the same original.
6.5 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO CHOICE OF LAW PRINCIPLES, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
6.6 Severability; Enforcement. The invalidity of any portion
hereof shall not affect the validity, force or effect of the remaining portions
hereof. If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that
any court of the United States located in the State of Delaware or any Delaware
state court may enforce such restriction to the maximum extent permitted by law,
and each party hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
6.7 Further Assurances. Each party hereto shall execute and
deliver such additional documents as may be reasonably requested by another
party to consummate the transactions contemplated by this Agreement.
6.8 Parties in Interest; Assignment. Neither this Agreement
nor any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties.
6.9 Entire Agreement. This Agreement and the Merger Agreement
and the other agreements and documents referred to in the Merger Agreement
contain the entire understanding of the parties hereto and thereto with respect
to the subject matter contained herein and therein, and supersede and cancel all
prior agreements, negotiations, correspondence, undertakings and communications
of the parties, oral or written, respecting such subject matter. There are no
restrictions, promises, representations, warranties, agreements or undertakings
of any party hereto or to the Merger Agreement or any of the other agreements
and documents referred to in the Merger Agreement with respect to the
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transactions contemplated by this Agreement and the Merger Agreement and the
other agreements and documents referred to in the Merger Agreement other than
those set forth or described herein or therein or made hereunder or thereunder.
6.10 Specific Performance; Consent to Jurisdiction.
(a) The parties hereto agree that the remedy at law for any
breach of this Agreement will be inadequate and that any party by whom this
Agreement is enforceable shall be entitled to specific performance in addition
to any other appropriate relief or remedy. SUCH PARTY MAY, IN ITS SOLE
DISCRETION, APPLY TO ANY COURT OF THE UNITED STATES LOCATED IN THE STATE OF
DELAWARE OR ANY DELAWARE STATE COURT FOR SPECIFIC PERFORMANCE OR INJUNCTIVE OR
SUCH OTHER RELIEF AS SUCH COURT MAY DEEM JUST AND PROPER IN ORDER TO ENFORCE
THIS AGREEMENT OR PREVENT ANY VIOLATION HEREOF AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY WAIVES ANY OBJECTION TO THE IMPOSITION OF SUCH
RELIEF.
(b) IN ADDITION, EACH OF THE PARTIES HERETO (I) CONSENTS TO
SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE
STATE OF DELAWARE OR ANY DELAWARE STATE COURT IN THE EVENT ANY DISPUTE ARISES
OUT OF THIS AGREEMENT OR ANY MATTER REFERRED TO HEREIN, (II) AGREES THAT IT WILL
NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER
REQUEST FOR LEAVE FROM ANY SUCH COURT AND (III) AGREES THAT IT WILL NOT BRING
ANY ACTION RELATING TO THIS AGREEMENT OR ANY MATTER REFERRED TO HEREIN IN ANY
COURT OTHER THAN A FEDERAL OR STATE COURT SITTING IN THE STATE OF DELAWARE.
6.11 Headings; References. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Sections" or "Schedules" shall be deemed to be references to Sections
hereof or Schedules hereto unless otherwise indicated.
6.12 Effectiveness. This Agreement shall become and be
effective as to, and binding upon, each of the parties hereto, without any
further action by any party hereto, immediately upon the execution and delivery
of the Merger Agreement by Avatex and Xetava
[Signatures appear on following page]
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IN WITNESS WHEREOF, each of the parties hereto had caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
AVATEX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Co-Chief Executive Officer
ANVIL INVESTMENT PARTNERS, L.P.
By: Anvil Investors, Inc.,
as General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
President
ANVIL INVESTORS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
President
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Schedule A
Number of Shares
Number of Shares of Convertible Number of Shares
of Old Avatex Preferred of Series A
Stockholder Common Stock(1) Stock Preferred Stock
--------------------------------- --------------------------- -------------------- ----------------------
Xxxx X. Xxxxxx 0 6,000 10,262
Anvil Investment Partners, L.P. 0 40,200 53,705
Anvil Investors, Inc.(1) 0 40,200 53,705
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(1) Anvil Investors, Inc. is the general partner of Anvil Investment
Partners, L.P. and, thus, may be deemed to beneficially own the 40,200
shares of Convertible Preferred Stock and 53,705 shares of Series A
Preferred Stock owned by Anvil Investment Partners, L.P. Other than as
explained in the preceding sentence, Anvil Investors, Inc. owns no
Avatex shares.
Exhibit A
Form of Merger Agreement
(see attached)
