AMENDMENT NO. 1 TO
STOCKHOLDERS' AGREEMENT
This AMENDMENT No. 1 is made as of October 19, 1999 (this
"Amendment"), among Xxxxxxx Associates, L.P. ("Xxxxxxx"), Westgate
International, L.P. ("Westgate"), Martley International, Inc. ("Martley"), Xxxxx
Xxxx ("Xxxx"), Momar Corporation ("Momar") and United Equities Commodities
Company ("United Equities"), and Avatex Corporation, a Delaware corporation
("Avatex"). Elliott, Westgate, Martley, Marx, Momar and United Equities, are
referred to herein collectively as the "Stockholders."
W I T N E S S E T H:
WHEREAS, the Stockholders and Avatex wish to amend that
certain Stockholders' Agreement, dated as of June 18, 1999, among Avatex and the
Stockholders (herein referred to as the "Stockholders' Agreement") to correct
the number of shares that were beneficially owned by Xxxx as of the date of the
Stockholders' Agreement; and
WHEREAS, all capitalized terms contained herein shall have the
meaning ascribed to them in the Stockholders' Agreement, unless otherwise
expressly set forth herein. This Amendment, upon execution as provided for
below, shall constitute Amendment No. 1 to the Stockholders' Agreement. The
amendments below shall apply to the action to be taken by Avatex and the
Stockholders with respect to the subject matter thereof.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree, in accordance
with Section 6.2 of the Stockholders' Agreement, as follows:
1. Schedule A to the Stockholders' Agreement is hereby amended and
restated to read in its entirety as set forth on Exhibit A attached hereto.
2. This Amendment may be executed in several counterparts, each of
which shall be deemed an original and all of which shall together constitute one
and the same instrument.
4. This Amendment 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.
5. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and permitted assigns.
6. This Amendment shall not constitute a waiver, amendment or
modification of any other provision of the Stockholders' Agreement not expressly
referred to herein and shall not be construed as a waiver or consent to any
further or future action on the part of the Stockholders that would require a
waiver or consent of
Avatex. Except as expressly amended or modified herein, the provisions of the
Stockholders' Agreement are and shall remain in full force and effect.
7. Except as specifically provided herein, the Stockholders' Agreement
shall remain in full force and effect and is hereby ratified and confirmed. On
and after the date hereof, each reference in the Stockholders' Agreement to
"this Agreement", "herein", "hereof" or words of like import shall mean and be a
reference to the Stockholders' Agreement as amended hereby. No reference to this
Amendment need be made on any instrument, agreement, certificate or document at
any time referring to the Stockholders' Agreement; it being understood and
agreed that a reference to the Stockholders' Agreement in any of such
instruments, agreements, certificates or documents to be deemed to be a
reference to the Stockholders' Agreement as amended hereby.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Avatex and the Stockholders have caused
this Amendment to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
AVATEX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Chief Executive Officer
XXXXXXX ASSOCIATES, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
General Partner
WESTGATE INTERNATIONAL, L.P.
By: Martley International, Inc.,
as Attorney-in-Fact
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
President
MARTLEY INTERNATIONAL, INC.
By: /s./ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
President
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/s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx
MOMAR CORPORATION
By: /s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx
President
UNITED EQUITIES COMMODITIES COMPANY
By: /s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx
General Partner
EXHIBIT A
---------
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
--------------------------- -------------------- ----------------------
Xxxxxxx Associates, L.P. 417,600 111,637 547,613
Westgate International L.P. 416,300 -0- 661,797
Martley International, Inc. -0- -0- -0-
Xxxxx Xxxx 75,000 10,100 493,200
Momar Corporation 802,500 26,000 257,026
United Equities Commodities Company 1,151,000 178,300 425,974
---------------------------
(1) Xxxxxxx Associates, L.P., Westgate International, L.P., Martley
International, Inc., Springfield Associates, L.L.C., Kensington
International Ltd., Xxxxx Xxxx, Momar Corporation and United Equities
Commodities Company have entered into a stock purchase agreement with
Phar-Mor, Inc. pursuant to which (i) Phar-Mor, Inc. has agreed to
purchase the shares of Old Avatex Common Stock owned by each such
Stockholder at or prior to the Effective Time, and (ii) each such
Stockholder has granted to Phar-Mor, Inc. an irrevocable proxy to vote
the shares of Old Avatex Common Stock owned by each such Stockholder
until the earlier of Phar-Mor's purchase of such shares or the
termination of such stock purchase agreement.
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