EXHIBIT 2
STOCK PURCHASE AGREEMENT
dated as of
May __, 1999
by and between
ELLIOT ASSOCIATES, L.P., WESTGATE INTERNATIONAL, L.P., MARTLEY
INTERNATIONAL, INC., XXXXX XXXX, MOMAR CORPORATION, and UNITED
EQUITIES COMMODITIES COMPANY, as the Stockholders,
and
PHAR-MOR, INC., as the Purchaser
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS...................................................... 1
Section 1.1 Definitions............................................... 1
ARTICLE II: TRANSACTIONS.................................................... 4
Section 2.1 Transfer of Stock......................................... 4
Section 2.2 Purchase Price............................................ 4
Section 2.3 Delivery and Payment...................................... 5
Section 2.4 Taxes..................................................... 5
Section 2.5 Expenses.................................................. 5
Section 2.6 Public Announcements...................................... 5
Section 2.7 Proxy..................................................... 5
ARTICLE III: CONDITIONS TO CLOSING.......................................... 5
Section 3.1 Conditions to Purchaser's Obligation to Close............. 5
Section 3.2 Conditions to Each Stockholder's Obligation to Close...... 6
ARTICLE IV: CLOSING......................................................... 6
Section 4.1 Time of Closing........................................... 6
Section 4.2 Location of Closing....................................... 6
ARTICLE V: REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS............... 7
Section 5.1 Corporate Existence and Power, Partnership
Existence and Power, Company Existence and Power..................... 7
Section 5.2 Authorization; Contravention.............................. 7
Section 5.3 Approvals................................................. 7
Section 5.4 Binding Effect............................................ 7
Section 5.5 Ownership................................................. 7
Section 5.6 Continuing Representations and Warranties................. 8
ARTICLE VI: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER................. 8
Section 6.1 Corporate Existence and Power............................. 8
Section 6.2 Authorization; Contravention.............................. 8
Section 6.3 Approvals................................................. 8
Section 6.4 Binding Effect...............................................
ARTICLE VII: INDEMNIFICATION................................................ 8
Section 7.1 Indemnification by the Stockholders....................... 8
Section 7.2 Indemnification by Purchaser.............................. 8
Section 7.3 Procedure................................................. 9
Section 7.4 No Limitation on Other Rights of Recovery................. 10
Section 7.5 Treatment of Indemnity Payments........................... 10
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Page
ARTICLE VIII: MISCELLANEOUS................................................. 10
Section 8.1 Notices................................................... 10
Section 8.2 Further Assurances........................................ 10
Section 8.3 No Waivers; Remedies; Specific Performance................ 10
Section 8.4 Amendments, Etc........................................... 11
Section 8.5 Successors and Assigns.................................... 11
Section 8.6 Governing Law............................................. 11
Section 8.7 Counterparts; Effectiveness............................... 11
Section 8.8 Severability of Provisions................................ 11
Section 8.9 Headings and References................................... 11
Section 8.10 Entire Agreement......................................... 11
Section 8.11 Survival................................................. 11
Section 8.12 Exclusive Jurisdiction................................... 12
Section 8.13 Waiver of Jury Trial..................................... 12
Section 8.14 Construction............................................. 12
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EXHIBITS
Exhibit 2.1 List of Beneficial and Record Owners of the Common Shares of Avatex
Exhibit 2.7 Irrevocable Proxy
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of May __, 1999 by and
among XXXXXXX ASSOCIATES, L.P., a Delaware limited partnership("Xxxxxxx"),
WESTGATE INTERNATIONAL, L.P., a ________________ limited partnership
("Westgate"), MARTLEY INTERNATIONAL, INC., a Cayman Islands corporation
("Martley"), XXXXX XXXX, an individual residing at _______________ ("Xxxx"),
MOMAR CORPORATION, a _________________corporation ("Momar"), and UNITED EQUITIES
COMMODITIES COMPANY, a ________________ corporation ("United Equities," and
collectively with Elliott, Westgate, Martley, Marx, and Momar, together with
their respective successors and assigns, the "Stockholders"), and PHAR-MOR,
INC., a Pennsylvania corporation (together with its successors and assigns, the
"Purchaser").
WHEREAS, the Stockholders are the beneficial and record owners of the
common shares of Avatex Corporation, a Delaware corporation ("Avatex"), as set
forth on Exhibit 2.1;
WHEREAS, Avatex and Xetava Corporation, a Delaware corporation ("Xetava"),
have entered into an Agreement and Plan of Merger (the "Original Merger
Agreement"), which provided that Avatex would be merged with and into Xetava
(the "Proposed Original Merger");
WHEREAS, class representative brought two putative class action lawsuits in
Delaware against Avatex on behalf of Avatex preferred stockholders as a result
of the Proposed Original Merger asserting several claims (the "Class Actions");
WHEREAS, the Proposed Original Merger was postponed pending resolution of
the Class Actions;
WHEREAS, in determination of one claim under the Class Actions, the
Delaware Supreme Court held that the Proposed Original Merger could not be
consummated without the approval of two-thirds of certain preferred
stockholders;
WHEREAS, pursuant to settlement negotiations of the other claims of the
Class Actions, Avatex and Xetava entered into that certain Amended and Restated
Agreement and Plan of Merger, dated as of May __, 1999 (the "Restated Merger
Agreement");
WHEREAS, pursuant to the Restated Merger Agreement, Xetava will merge into
Avatex, with Avatex as the surviving corporation (the "Revised Merger");
WHEREAS, the Stockholders desire to sell and the Purchaser desires to buy
the Avatex Shares (as defined below), conditioned on the closing of the Revised
Merger-,
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following
terms shall have the meanings set forth below.
Action against a person means an action, suit, cause of action,
investigation, complaint or other proceeding threatened or pending against or
affecting the person or its property, whether civil or criminal, in law or in
equity or before any arbitrator or Governmental Body.
Affiliate of a person means (1) any other person that directly or
indirectly controls, is controlled by or is under common control with, such
person or any of its subsidiaries and (2) if such person is an individual, any
other individual that is a relative (by blood or marriage) of such person. The
term control me s the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract or otherwise.
Agreement has the meaning stated in the preamble to this Agreement.
Approval means an authorization., consent, approval or waiver of, clearance
by, notice to or registration or filing with, or any other similar action by or
with respect to a Governmental Body or any other person and the expiration or
termination of all prescribed waiting, review or appeal periods wit respect to
any of the foregoing.
Avatex has the meaning stated in the recitals to this Agreement.
Avatex Shares has the meaning stated in Section 2.1 of this Agreement.
Avatex Stock has the meaning stated in Section 2.1 of this Agreement.
beneficially own or beneficial ownership with respect to any securities
shall mean having beneficial ownership of such securities (as determined
pursuant to Rule 13-d under the Exchange Act, except as provided below,
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 Affiliates of such person and all other persons with
whom such person would constitute a Group.
Class Action has the meaning stated in the recitals to this Agreement.
Closing has the meaning stated in Section 4.1 of this Agreement.
Closing Date shall mean the date that is the effective date of the Revised
Merger.
Code means the internal Revenue Code of 1986, and the related Regulations,
in each case as amended as of the date hereof, and as the same may be amended or
modified from time to time.
Xxxxxxx has the meaning stated in the preamble of this Agreement.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the
related rules and regulations thereunder,
Governmental Body means any agency, bureau, commission, court, department,
official, political subdivision, tribunal or other instrumentality of any
government, whether federal, state, county or local, domestic or foreign,
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Group has the meaning given such term in Section 13(d)(3) of the Exchange
Act.
Indemnified Persons has the meaning stated in Section 7.3 of this
Agreement.
Indemnifiable Claim means any Loss for or against which any party is
entitled to indemnification under this Agreement.
IRS means the United States Internal Revenue Service or any Governmental
Body succeeding to any or all of its functions.
Lien means any mortgage, deed of trust, lien (statutory or otherwise),
pledge, hypothecation, charge, deposit arrangement, preference, priority,
security interest, adverse claim, restriction or encumbrance of any kind
(including, without limitation, any conditional sale contract any capitalized
lease or any financing lease having substantially the same economic effect as
the foregoing and the filing of or agreement to give any financing statement
under the Uniform Commercial Code or comparable law of any jurisdiction to
evidence any of the foregoing).
Loss means any cost, damage, disbursement, expense, liability, judgment,
loss, deficiency, obligation, penalty or settlement of any kind or nature,
whether foreseeable or unforeseeable, including, without limitation, interest or
other carrying costs, penalties, legal, accounting, expert witness, consultant
and other professional fees and expenses incurred in the investigation,
collection, prosecution and defense of claims (including, without limitation,
claims for indemnification Under Article VII and other claims in connection with
the enforcement of any rights under this Agreement) and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by the
specified person.
Martley has the meaning stated in the preamble of this Agreement.
Xxxx has the meaning stated in the preamble of this Agreement.
Momar has he meaning stated in the preamble of this Agreement.
Order means any decision, decree, injunction, judgment, order, ruling,
assessment or writ.
Original Merger Agreement has the meaning stated in the recitals to this
Agreement,
person means an individual, a corporation, a partnership, a joint venture,
an association, a trust, an unincorporated association or any other entity or
organization, including a Governmental Body.
Pro Rata Shares has the meaning stated in Section 2.2 of this Agreement
Proposed Original Merger has the meaning stated in the recitals to this
Agreement.
Proxy has the meaning stated in Section 2.7 of this Agreement
Purchase Price has the meaning stated in Section 2.2 of this Agreement.
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Purchaser has the meaning stated in the preamble to this Agreement.
Regulation means (1) any applicable law, rule, regulation, ordinance,
Order, award, injunction, recommendation or other official action of any
Governmental Body and (2) any official change in the interpretation or
administration of any of the foregoing by the Governmental Body or by any other
Governmental Body or other person responsible for the interpretation or
administration of any of the foregoing.
Restated Merger Agreement has the meaning stated in the recitals to this
Agreement.
Revised Merger has the meaning stated in the recitals to this Agreement.
Securities Act means the Securities Act of 1933, as amended, and the
related rules and regulations thereunder.
Stockholders has the meaning stated in the preamble of this Agreement.
Taxes means all taxes, charges, fees, levies, duties, imposts,
withholdings, restrictions, fines, interest, penalties, additions to tax or
other assessments or charges, including, but not limited to, income, excise,
property, withholding, sales, use, gross receipts, value added and franchise
taxes, license recording, documentation and registration fees and custom duties
imposed by any Governmental Body.
Transactions means, collectively, the transactions undertaken pursuant to,
or otherwise contemplated by, this Agreement and the Proxy.
Transfer means a sale, an assignment, a lease, a license, a grant, a
transfer or other disposition of an asset or any interest of any nature in an
asset. The term transfer used as a verb has a correlative meaning.
United Equities has the meaning stated in the preamble of this Agreement.
Westgate has the meaning stated in the preamble of this Agreement.
Xetava has the meaning stated in the recitals to this Agreement.
ARTICLE II
TRANSACTIONS
Section 2.1 Transfer of Stock. Subject to the terms and conditions set
forth in this Agreement, on the Closing Date (or such later date as specifically
set forth below) each Stockholder shall transfer to the Purchaser, free and
clear of any and all Liens, the number of shares of Common Stock, par value
$5.00 per share ("Avatex Stock"), of Avatex set forth on Exhibit 2.1 hereto (in
each case, the "Avatex Shares").
Section 2.2 Purchase Price. Subject to the terms and conditions set forth
in this Agreement, at Closing, the Purchaser shall pay to the Stockholders by
wire transfer of immediately available funds an aggregate purchase price for the
2,862,400 Avatex Shares being purchased hereunder
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equal to $5,724,800 (the "Purchase Price"). The Purchase Price per Avatex Share
is $2.00. The Purchase Price shall be allocated among the Stockholders in
accordance with the percentages (the "Pro Rata Shares") set forth opposite each
Stockholder's name on the signature page hereto.
Section 2.3 Delivery and Payment. Delivery of the Avatex Shares to the
Purchaser shall be made by Stockholders at Closing. The Avatex Shares shall be
accompanied by updated stock powers duly endorsed in blank and shall have
affixed thereto evidence of the payment of the relevant transfer/stamp taxes,
Section 2.4 Taxes. Each Stockholder shall pay any Taxes payable with
respect to the transfer of the Avatex Shares sold by such Stockholder to the
Purchaser pursuant to this Agreement.
Section 2.5 Expenses. Except as expressly set forth herein, all costs and
expenses incurred or paid by a party shall be paid by the party incurring or
paying such expenses. Without limiting the generality of the foregoing, (A) all
costs and expenses of the Stockholders, including, without limitation, expenses
of counsel, financial advisors and accountants incurred in connection with the
negotiation and review of documentation relating hereto and the performance of
obligations hereunder, shall be paid by the Stockholders without any cost or
other liability to the Purchaser and (B) all costs and expenses of the
Purchaser, including, without limitation, expenses of counsel, financial
advisors and accountants incurred in connection with the negotiation and review
of documentation relating hereto and the performance of obligations hereunder,
shall be paid by the Purchaser without any cost or other liability to any of the
Stockholders.
Section 2.6 Public Announcements. Except as required by applicable law,
including without limitation, any filings required by the Exchange Act the
Stockholders shall not, and shall not permit any of their Affiliates to, make
any published announcement in respect of this Agreement or the transactions
contemplated hereby without the prior written consent of the Purchaser.
Section 2.7 Proxy. Concurrently with the execution and delivery of this
Agreement, each of the Stockholders is hereby delivering to the Purchaser an
irrevocable proxy in the form Exhibit 2.7 hereto (the "Proxy"). Purchaser agrees
to vote all of the Avatex Shares pursuant to each Proxy in favor of the Revised
Merger.
ARTICLE III
CONDITIONS TO CLOSING
Section 3.1 Conditions to Purchaser's Obligation to Closing. Purchaser's
obligation to consummate the Transactions contemplated hereby is subject to
satisfaction (or written waiver) at or prior to the Closing Xxxx of the
following conditions:
(a) Representations and Warranties. The representations and warranties
of the Stockholders contained herein shall be true and correct as of the
Closing Date.
(b) Covenants. Each of the Stockholders shall have performed and
complied with the agreements and covenants contained herein to be performed
by them on or prior to the Closing Date.
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(c) Compliance with Applicable Laws. The Transactions contemplated
hereby shall not be prohibited by any applicable Regulation and all
requisite Approvals shall have been obtained and shall be in full force and
effect.
(d) Revised Merger. The Revised Merger shall have occurred or shall be
occurring simultaneously on or prior to December 15, 1999, on the terms set
forth in the Restated Merger Agreement as in effect on the date hereof (as
such agreement may be amended with the consent of the Purchaser). This
Agreement shill also terminate at the option of the Purchaser if the
Stockholders Agreement dated the date hereof among Avatex and the
Stockholders terminates for any reason.
(e) Settlement and Dismissal. The Class Actions shall have been
settled pursuant to a settlement agreement and such settlement agreement
shall have bean approved by a court of competent jurisdiction and in
connection therewith the Class Action shall be dismissed with prejudice,
and such settlement, approval and dismissal shall have been final and
non-appealable on or prior to the Closing Date.
Section 3.2 Conditions to Each Stockholder's Obligation to Close. Each
Stockholder's obligation to consummate the Transactions contemplated hereby is
subject to satisfaction (or written waiver) at or prior to the Closing Date of
the following conditions:
(a) Representations and Warranties. The representations and warranties
of Purchaser contained herein shall be true and correct as of the Closing
Date.
(b) Covenants. Purchaser shall have performed and complied with the
agreements and covenants contained herein to be performed by it on or prior
to the Closing Date.
(c) Compliance with Applicable Laws. The Transactions contemplated
hereby shall not be prohibited by any applicable Regulation and all
requisite Approvals shall have been obtained and shall be in full force and
effect
(d) Revised Merger. The Revised Merger shall have occurred or shall be
occurring simultaneously, on or prior to December 15, 1999, on the terms
set forth in the Restated Merger Agreement as in effect on the date hereof
(as such agreement may be amended with the consent of the Stockholders).
This Agreement shall also terminate at the option of a majority-in-interest
of the Stockholders if the Stockholders Agreement dated the date hereof
among Avatex and Stockholders terminates for any reason.
(e) Settlement and Dismissal. The Class Actions shall have been
settled pursuant to a settlement agreement and such settlement agreement
shall have been approved by a court of competent jurisdiction and in
connection therewith the Class Actions shall be dismissed with prejudice,
and such settlement, approval and dismissal shall have been final and
non-appealable on or prior to the Closing Date.
ARTICLE IV
CLOSING
Section 4.1 Time of Closing. The closing of this Agreement (the "Closing")
shall take place, if at all, on the effective date of the Revised Merger.
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Section 4.2 Location of Closing. The Closing shall take place at the
offices of Xxxxxxx Xxxxx Shereff Xxxxxxxx, LLP, 0000 X Xxxxxx X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or at such other location as approved by the parties.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally, and not jointly, represents and
warrants to the Purchaser as follows.
Section 5.1 Corporate Existence and Power,. Partnership Existence and
Power, Company Existence and Power. The representing Stockholder, except Xxxx
(1) is, as applicable, (a) a corporation duty incorporated, validly existing and
in good standing under the laws of the state of its incorporation, (b) a limited
partnership duly formed validly existing and in good standing under the laws of
the jurisdiction of its formation, or (c) a limited liability company duly
formed, validly existing and in good standing under the laws of the state of its
formation; and (2) has all necessary corporate, limited partnership, or limited
company, as applicable, power and authority to execute and deliver and perform
its obligations under this Agreement..
Section 5.2 Authorization; Contravention. As applicable to the representing
Stockholder, the execution and delivery by the Stockholder of this Agreement and
the Proxy and the performance by it of its obligations under this Agreement and
the Proxy have been duly authorized by all necessary corporate, partnership or
company action and do not and will not contravene, violate, result in a breach
of or constitute a default under (A) its articles of incorporation, articles of
organization, bylaws, operating agreement, or other organizational or governing
document, (B) any Regulation or any Order by which the Stockholder or any of its
properties may be bound or affected, or (C) any agreement, instrument or other
instrument to which such Stockholder is a party or by which such Stockholder or
such Stockholder's properties may be bound or affected.
Section 5.3 Approvals. No Approval of any Governmental Body or other person
is required or advisable on the part of the representing Stockholder for (1) the
due execution and delivery by such Stockholder of this Agreement and the Proxy,
(2) the consummation of the Transactions, (3) the performance of such
Stockholder of its obligations under this Agreement and the Proxy and (4) the
exercise by the Purchaser of its rights and remedies under this Agreement and
the Proxy.
Section 5.4 Binding Effect. Each of this Agreement and the Proxy is a
legally valid and binding obligation of the representing Stockholder enforceable
against it in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding in equity
or at law.
Section 5.5 Ownership. (1) The Avatex Shares to be sold by the representing
Stockholder are all the shares of Avatex Stock beneficially owned and/or held of
record by such Stockholder, (2) such Stockholder is the sole beneficial owner of
the Avatex Shares to be sold by it pursuant to this Agreement (except that
Martley and Westgate share beneficial ownership of 416,300 Avatex Shares as to
which Westgate is the owner of record) free and clear of all Liens, and no other
person has any interest or right in or to any of the Avatex Shares and (3) such
Stockholder has good
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right, full power and lawful authority to sell to the Purchaser all its right,
title and interest in and to such Avatex Shares free and clear of all Liens.
Section 5.6 Continuing Representations and Warranties. Each of the
representations and warranties made by a representing Stockholder in this
Agreement or as of any date other than the Closing Date shall be true and
correct on and as of the Closing Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to each of the Stockholders as
follows:
Section 6.1 Corporate Existence and Power. The Purchaser is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Pennsylvania and has all necessary corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
Section 6.2 Authorization; Contravention. The execution and delivery by the
Purchaser of this Agreement and the performance by it of its obligations under
this Agreement have been duly authorized by all necessary corporate action and
do not and will not contravene, violate, result in a breach of or constitute a
default under (A) its articles of incorporation or bylaws, (B) any Regulation or
any Order by which the Purchaser or any of its properties may be bound or
affected or (C) any agreement, indenture or other instrument to which it is a
party or by which it or its properties may be bound or affected.
Section 6.3 Approvals. No Approval of any Governmental Body or other person
is required or advisable on the part of the Purchaser for (1) the due execution
and delivery by the Purchaser of this Agreement, (2) the consummation of the
Transactions, (3) the performance by the Purchaser of its obligations under this
Agreement, and (4) the exercise by the Stockholders of their rights and remedies
under this Agreement.
Section 6.4 Binding Effect. This Agreement is a legally valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally xxx general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification by the Stockholders. The Stockholders,
severally and not jointly, shall indemnify the Purchaser and its controlling
persons (within the meaning of Section 20 of the Exchange Act) and their
respective stockholders, partners, directors, officers, employees, agents and
Affiliates, against and hold each of such persons harmless from, any and all
Losses in any way relating to or arising out of any actual or alleged breach of
the representations, warranties, covenants or agreements of such Stockholder
contained in this Agreement.
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Section 7.2 Indemnification by Purchaser. The Purchaser shall indemnify the
Stockholders and, as applicable, their controlling persons (within the meaning
of Section 20 of the Exchange Act) and, as applicable, their respective
stockholders, partners, directors, officers, employees, agents and Affiliates
against and hold each of such persons harmless from, any and all Losses in any
way relating o arising out of any actual or alleged breach of the
representations, warranties, covenants or agreements of the Purchaser contained
in this Agreement.
Section 7.3 Procedure.
(a) If any Indemnifiable Claim shall be brought, asserted or threatened
against any person indemnified under this Article VII (an "Indemnified Person")
the Indemnified Person shall promptly notify the indemnifying person. A failure
to notify the indemnifying person timely or at all shall reduce the liabilities
and obligations of the indemnifying person under this Article VII only to the
extent the indemnifying person actually shall be materially prejudiced by such
failure. The indemnifying person shall assume the defense of the Indemmifiable
Claim, including the employment of counsel reasonably satisfactory to the
Indemnified Person and the payment of all related fees and expenses, but the
Indemnified Person may employ separate counsel in connection with such
Indemnifiable Claim, and participate in the defense of such Indemnifiable Claim
at its own expense. However, the Indemnified Person may by written notice to the
indemnifying person assume the defense of the Indemnifiable Claim, including the
employment of counsel, at the expense of the indemnifying person if:
(1) the indemnifying person fails to promptly assume the defense with
counsel reasonably satisfactory to the Indemnified Person; or
(2) the persons against whom the Indemnifiable Claim shall have been
brought, asserted or threatened (including any impleaded parties) include
both the Indemnified Person and the indemnifying person and the Indemnified
Person is advised by counsel that there may be one or more legal defenses
available to the Indemnified Person that are different from or additional
to those available to the indemnifying person and that conflict with the
defenses available to the indemnifying party; or
(3) the Indemnified Person reasonably believes that the Indemnifiable
Claim or an unfavorable result on of the Indemnifiable Claim may materially
and adversely affect the business, properties, operations, prospects or
condition (financial or otherwise) of the Indemnified Person and its
affiliates other than as a result of the payment of money damages.
If the Indemnified Person has assumed the defense of the Indemnifiable Claim
pursuant to any of the three conditions stated above, then the Indemnifying
person shall not have the right to assume the defense of the Indemnifiable Claim
on behalf of the Indemnified Person and the Indemnified Person shall have the
right to control the defense, compromise or settlement of any Indemnifiable
Claim on behalf of and for the account and risk of the indemnifying person. The
indemnifying person shall be bound by the result of the defense of any
Indemnifiable Claim, except that any settlement shall require the prior approval
of the indemnifying person, such consent not to be unreasonably withheld,
whether the defense shall have been assumed by the indemnifying person or by the
Indemnified Person, and shall indemnify the Indemnified Person against, and hold
the Indemnified Person harmless from, all Losses in any way relating to or
arising in connection with the matter or matters that shall be the basis of the
Indemnifiable Claim or otherwise connected to the Indemnifiable Claim.
Notwithstanding anything to the contrary herein, no indemnifying party shall,
without the written consent of each affected Indemnified Person, settle or
compromise any Indemnifiable Claim or permit a default or consent to entry of
any judgment,
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unless such settlement or compromise includes a complete release of each such
Indemnified Person with respect to liability related to such Indemnifiable
Claim.
(b) Each Stockholder agrees that, with respect to Indemnifiable Claims
hereunder, the Indemnified Persons may seek indemnification from any Stockholder
that is obligated to indemnify pursuant to this Article VII and that there is no
requirement that an Indemnified Person proceed against all of the Stockholders
in order to recover from any individual Stockholder,
Section 7.4 No Limitation on Other Rights of Recovery. The indemnification
set forth in this Article VII shall be in addition to any other obligations or
liabilities of an indemnifying person to an Indemnified Person at common law or
otherwise. The provisions of this Article VII shall not eliminate or otherwise
limit the right of any Indemnified Person to seek to recover contribution,
damages or otherwise enforce its rights against the indemnifying person or any
other person without regard to the provisions of this Article VII. If at any
time all or any part of any indemnification payment hereunder is or must be
rescinded or returned to the person making such indemnity payment for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of any person) the indemnification obligations of the person
making such payment shall be reinstated with respect to such payment so
rescinded or returned as though such payment had never been made or received.
Section 7.5 Treatment of Indemnity Payments. All payments made pursuant to
this Article VII shall be treated as; adjustments to the purchase price for the
Avatex Stock.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. All notices, requests and other communications to any
party or under this Agreement shall be in writing. Communications may be made by
telecopy or similar writing. Each communication shall be given to the party at
its address stated on the signature pages of this Agreement or at any other
address as the party may specify for this purpose by notice to the other party.
Each communication shall be effective (1) if given by telecopy, when the
telecopy is transmitted to the proper address and the receipt of the
transmission is confirmed, (2) if given by mail, 72 hours after the
communication is deposited in the mails property addressed with first class
postage prepaid or (3) if given by any other means, when delivered to the proper
address and a written acknowledgment of delivery is received.
Section 8.2 Further Assurances. Each party shall indefinitely after the
date of this Agreement promptly upon request by any other party, correct any
defect or error that may be discovered in this Agreement or in the execution or
acknowledgment of this Agreement and execute, acknowledge, deliver, file,
re-file, register and re-register, any and all such further acts, certificates,
assurances and other instruments as the requesting party may require from time
to time in order (1) to carry out more effectively, the purposes of this
Agreement, (2) to enable the requesting party to exercise and enforce its rights
and remedies and collect any payments and proceeds under this Agreement and (3)
to better transfer, preserve, protect and confirm to the requesting party the
rights granted or now or hereafter intended to be granted to the requesting
party under this Agreement or under each other instrument executed in connection
with this Agreement.
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Section 8.3 No Waivers; Remedies; Specific Performance.
(a) No failure or delay by any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver of the right, power or
privilege. A single or partial exercise of any right, power or privilege shall
not preclude any other or further exercise of the right, power or privilege or
the exercise of any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law.
(b) In view of the uniqueness of this Agreement and the Proxy, neither
party would have an adequate remedy at law for money damages in the event that
any of this Agreement or the Proxy is not performed in accordance with its
terms, and therefore each of the parties agrees that the other party shall be
entitled to specific enforcement of the terms of this Agreement and the Proxy in
addition to any other remedy to which it may be entitled, at law or in equity.
Section 8.4 Amendments, Etc. No amendment, modification, termination, or
waiver of consent, and no consent to any departure by a party from any provision
of any provision of this Agreement, shall be effective unless it shall be in
writing and signed and delivered by the other parties to this Agreement, and
then it shall be effective only in the specific instance and for the specific
purpose for which it is given.
Section 8.5 Successors and Assigns.
(a) No party to this Agreement may assign its rights under this Agreement
without the express prior written consent of the other parties hereto. Any
delegation in contravention of this Section shall be void ab initio and shall
not relieve the delegating party of any obligation under this Agreement.
(b) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and
permitted assigns.
Section 8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware. All
rights and obligations of the parties hereto shall be in addition to and not in
limitation of those provided by applicable law.
Section 8.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if all signatures were on the same instrument.
Section 8.8 Severability of Provisions. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of the provision in any other
jurisdiction.
Section 8.9 Headings and References. Article and section headings in this
Agreement are included in this Agreement for the convenience of reference only
and do not constitute a part of this Agreement for any other purpose. References
to parties and articles and sections in this Agreement are references to the
parties to or the articles and sections of this Agreement, as the case may be,
unless the context shall require otherwise.
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Section 8.10 Entire Agreement. This Agreement embodies the entire agreement
and understanding of the respective parties, and supersedes all prior agreements
or understandings, with respect to the subject matter hereof.
Section 8.11 Survival. Except as otherwise specifically provided in this
Agreement, and notwithstanding any investigation or notice to the contrary or
any waiver by arty other party of a related condition precedent to the
performance by the other party of an obligation under this Agreement, each
representation and warranty of each party to this Agreement contained in or made
pursuant to this Agreement shall survive Closing. Each covenant or agreement of
a party to this Agreement required to be performed on or after the Closing Date
shall remain in fall force and effect thereafter in accordance with its terms.
Section 8.12 Exclusive Jurisdiction. Each party (1) agrees that any Action
with respect to this Agreement shall be brought exclusively in the federal or
state courts located in the State of Delaware, (2) accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of
those courts, and (3) irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the bringing of any
Action in those jurisdictions.
Section 8.13 Waiver of Jury Trial. Each party waives any right to a trial
by jury in any Action to enforce or defend any right under this Agreement or any
amendment, instrument, document or agreement delivered, or which in the future
may be delivered, in connection with this Agreement and agrees that any Action
shall be tried before a court and not before a jury.
Section 8.14 Construction. Each of the parties hereto acknowledges that it
has been represented by counsel in connection with this Agreement. Accordingly,
any rule of law or legal decision that would require interpretation of any
claimed ambiguities in this Agreement against the party that drafted this
Agreement has no application and is expressly waived.
[Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed and delivered this Stock
Purchase Agreement as of the date first written above.
Avatex Shares 417,600 Xxxxxxx Associates, L.P.
Pro Rata Shares: 14.59% By: /s/ Xxxx Xxxxxx
---------------------------------
Its: Xxxx Xxxxxx, General Partner
Address:
Telecopy
Avatex Shares 416,300 Westgate International, L.P.
/s/ Xxxx Xxxxxx
---------------------------------
Martley International ,Inc.
Pro Rata Shares: 14.54% By: as Attorney-in-Fact
Its: Xxxx Xxxxxx, President
Address:
Telecopy
Avatex Shares 0 Martley International, Inc.
Pro Rata Shares: 0% By: /s/ Xxxx Xxxxxx
---------------------------------
Its: Xxxx Xxxxxx, President
Address:
Telecopy
Avatex Shares 75,000 /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx
Pro Rata Shares: 2.62%
Address:
Telecopy
-13-
Avatex Shares 802,500 Momar Corporation
Pro Rata Shares: 28.04% By: /s/ Xxxxx Xxxx
---------------------------------
Its: President
Address:
Telecopy
Avatex Shares 1,151,000 United Equities Commodities Company
Pro Rata Shares: 40.21% By: /s/ Xxxxx Xxxx
---------------------------------
Its: Partner
Address:
Telecopy
Phar-Mor, Inc.
By: /s/
---------------------------------
Its: Chief Administrative Officer
Address: 00 Xxxxxxx Xxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
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EXHIBIT 2.1
BENEFICIAL AND RECORD OWNERS OF AVATEX SHARES
Stockholder Number of Shares
----------- ----------------
Xxxxxxx Associates, L.P. 417,600
Westgate International 416,300
Martley International, Inc. 0
Xxxxx Xxxx 75,000
Momar Corporation 802,500
United Equities Commodities Company 1,151,000
EXHIBIT 2.7
IRREVOCABLE PROXY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned stockholder (the
"Stockholder") of Avatex Corporation, a corporation organized under the laws of
the State of Delaware ("Avatex"), hereby constitutes and irrevocably appoints
Phar-Mor, Inc., a Pennsylvania corporation ("Phar-Mor") with full power of
substitution, such Stockholder's true and lawful attorney-in-fact, proxy and
agent for him and on his behalf and in his name, place and xxxxx, in any and all
capacities, to receive all notices, and to represent, vote and consent or
otherwise act, at any special or annual meeting of the stockholders of Avatex or
any action by written consent in lieu thereof, with respect to all shares of
Avatex Common Stock, par value $5.00 per share, held of record by such
Stockholder now or hereafter, in such manner as Phar-Mor, may, in its exercise
of its sole absolute discretion, determine, and without any notice to the
Stockholder, whether or not such representation, vote or consent benefits the
interests of the Stockholder, granting unto Phar-Mor, full power and authority
to do and to perform each and every act and things requisite and necessary to be
done in and about the premises, hereby ratifying and confirming all that
Phar-Mor may lawfully do or cause to be done by virtue hereof.
This proxy is irrevocable and constitutes a power coupled with an interest
for all purposes.
This proxy shall terminate upon the termination for any reason of the
Stockholders Agreement, dated the date hereof, among, inter alia, Avatex and the
undersigned Stockholder.
IN WITNESS WHEREOF, the undersigned Stockholder has hereunder set his hand
and seal as of the date specified.
DATED: June __, 1999 -------------------------------
Signature
-------------------------------
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