EXHIBIT 10.31
WAIVER AGREEMENT
This Waiver Agreement (the "Agreement") is entered into as of March 11,
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2002 by and among CIBC WMV Inc. (formerly know as CIBC Wood Gundy Ventures,
Inc., hereinafter referred to as "CIBC"), Vector Later-Stage Equity Fund, L.P.
("Vector"), VSI Advisors, LLC ("VSI"), D. Xxxxxxxx Xxxxxxxxx, Xxxxxxx X.
Xxxxxxxx, Xxxxxxx Xxxx and Xxxxx X. Xxxxx (the "Individuals," together with VSI
and Vector referred to as "Purchasers") and LifeCell Corporation ("LifeCell").
RECITALS
WHEREAS, Vector and CIBC were parties to a certain Securities Purchase
Agreement, dated as of November 18, 1996, by and among LifeCell and certain
Investors (as defined therein), pursuant to which such Investors acquired shares
of LifeCell Series B Preferred Stock, par value $.001 per share ("Series B
Preferred Stock");
WHEREAS, Vector and CIBC were parties to a certain Voting Agreement, dated
November 18, 1996, by and among LifeCell, AllState Insurance Company and the
Investors (as defined therein) and, as amended by the Amended and Restated
Voting Agreement, dated as of April 15, 1999, by and among LifeCell and the
Stockholders (as defined therein) and, as amended by the Second Amended and
Restated Voting Agreement, dated as of April 27, 2000, by and among LifeCell and
the Stockholders (as defined therein), pursuant to which such Investors and
Stockholders were granted the right to appoint members to the Board of Directors
of LifeCell (the "Voting Agreement");
WHEREAS, each of CIBC and Vector have continuously waived their right to
appoint a member to the Board of Directors of LifeCell pursuant to the Voting
Agreement or otherwise for over one (1) year;
WHEREAS, Vector and CIBC together are holders of a majority of the LifeCell
common stock, par value $.001 per share (the "Common Stock"), underlying the
Series B Preferred Stock;
WHEREAS, Vector, LifeCell and CIBC desire to waive certain of their rights
under the Voting Agreement; and
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WHEREAS, the Individuals intend to acquire shares of Series B Preferred
Stock from CIBC and are executing this Agreement to waive certain rights with
respect to the Series B Preferred Stock.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants contained herein and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto (the
"Parties"), intending to be legally bound, hereby agree as follows:
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Section 1. Waiver. CIBC and the Purchasers hereby irrevocably waive and
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relinquish any right to appoint any members to the Board of Directors of
LifeCell whether pursuant to the Voting Agreement, the Certificate of
Designation of such Series B Preferred Stock or otherwise as holders of the
Series B Preferred Stock; provided however, that the Purchasers do not
relinquish any right to vote, on an as converted basis, on matters submitted to
a vote of the stockholders of LifeCell, including election of board members
generally.
Section 2. Miscellaneous.
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2.01. Successors and Assigns. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
2.02. Governing Law. This Agreement and all matters arising directly or
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indirectly herefrom shall be governed by, and construed in accordance with, the
laws of the State of Delaware without regard to the conflicts of laws principles
thereof.
2.03. Counterparts; Facsimile Signatures. This Agreement may be executed
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in counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument. Execution and
delivery of this Agreement by facsimile transmission shall constitute execution
and delivery of this Agreement for all purposes, with the same force and effect
as execution and delivery of an original manually signed copy hereof.
2.04. Entire Agreement. This Agreement constitutes the entire agreement
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and understanding between the Parties hereto and supersedes any and all prior
agreements and understandings, written or oral, relating to the subject matter
of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
LIFECELL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Sobieksi, Chief Financial Officer
VECTOR LATER-STAGE EQUITY FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Managing Director
VSI ADVISORS, LLC
By: /s/ D. Xxxxxxxx Xxxxxxxxx
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D. Xxxxxxxx Xxxxxxxxx, Managing Member
CIBC WMV INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Managing Director
/s/ D. Xxxxxxxx Xxxxxxxxx
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D. Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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