Exhibit 2
REGISTRATION RIGHTS AGREEMENT
January 21, 1998
To Avatex Corporation:
Gentlemen:
This Registration Rights Agreement (the "Agreement") confirms that, in
connection with your agreement to purchase of 300,000 shares of common stock of
XX Xxxxxxx Financial Services, Inc. (the "Company") from Xxxxxxxx X. Xxxxx, the
Chairman of the Board and Chief Executive Officer of the Company, without
registration under the Securities Act (as defined below), the Company, Mr.
Leeds, and you covenant and agree as follows:
1. Certain Definitions. As used herein, the following terms shall have the
following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
succeeding federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.001 par value per share, of
the Company.
"Closing Date" has the meaning set forth in that certain Stock Sale
Agreement between you and Mr. Leeds.
"Holders" refers to you and any subsequent holder or holders of
record of any of the shares of Restricted Stock while such shares retain
that status as defined below.
"Restricted Stock" means the aggregate of 300,000 shares of Common
Stock being sold to you by Mr. Leeds on the Closing Date to the extent
that the certificates therefor are required to bear the legend pursuant to
and set forth in Section 2 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or
any succeeding federal statute, and, as applicable, the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
2. Restrictive Legend. Each certificate representing shares of Restricted
Stock as initially sold to you, and, except as otherwise provided in Section 3,
each certificate issued upon exchange or transfer of any Restricted Stock, has
been or shall be stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "FEDERAL ACT"), OR ANY STATE
SECURITIES LAW, AND HAVE BEEN ACQUIRED BY THE REGISTERED OWNER HEREOF FOR
PURPOSES OF INVESTMENT AND HAVE BEEN ISSUED OR SOLD IN RELIANCE ON
STATUTORY EXEMPTIONS CONTAINED IN THE FEDERAL ACT OR AVAILABLE UNDER
APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER THE
FEDERAL ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS; IN THE CASE OF RELIANCE
UPON AN EXEMPTION, THE COMPANY MUST HAVE RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT SUCH TRANSACTION IS EXEMPT AND DOES NOT REQUIRE
SUCH REGISTRATION OF THE SHARES."
3. Notice of Proposed Transfer.
(a) Prior to any proposed transfer or other disposition of any Restricted
Stock (other than under circumstances described in Section 4 or 5), the Holder
shall give written notice to the Company of its intention to do so. Each such
notice shall describe the manner of the proposed transfer or disposition and, if
requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company to the effect that the proposed
transaction may be effected without registration under the Securities Act and
applicable state securities laws, whereupon the Holder shall be entitled to
transfer or otherwise dispose of such Restricted Stock in accordance with the
terms of its notice. Each certificate for Restricted Stock transferred as
provided above shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (a) such transfer is in accordance
with the provisions of Rule 144 under the Securities Act (or any other rule
under the Securities Act permitting public sale without registration thereunder)
or (b) the opinion of counsel referred to above is to the further effect that
the transferee and any subsequent transferee (other than
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an affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act or any applicable
state securities law.
(b) The foregoing restrictions on transfer and disposition of Restricted
Stock shall terminate as to any particular shares of Restricted Stock when such
shares shall have been effectively registered under the Securities Act and sold
or otherwise disposed by the seller thereof in accordance with a method of
disposition set forth in the registration statement covering such shares.
Whenever a Holder demonstrates to the Company (and its counsel) that the
provisions of Rule 144(k) of the Securities Act are available to such Holder
without limitation, such Holder shall be entitled to receive from the Company,
without expense, a new certificate representing its shares of Restricted Stock
not bearing the restrictive legend set forth in Section 2.
4. Automatic Registration.
(a) Timing of Registration. The Company agrees to register under the
Securities Act, for public sale in the manner(s) specified by you or any other
Holder, all the shares of Restricted Stock (or such lesser portion thereof as
you or any other Holders thereof may specify) by no later than 90 days after the
Closing Date.
(b) Notice of Filing; Underwriters. The Company shall notify the Holders
not less than 15 days before making its filing under the Securities Act. In
addition to, or in lieu of, the methods of disposition set forth on Exhibit A,
the Company shall use its best efforts to register the Restricted Stock for
public sale in accordance with the methods of disposition specified by Holders
to the Company within ten (10) days of receipt of the Company's notice to them.
If any such method of disposition shall be an underwritten public offering, the
Holders of a majority of the shares of Restricted Stock requesting such method
of distribution shall be entitled to designate the managing underwriter for such
offering, subject to the reasonable approval of the Company. Other possible
underwriters for the offering may be selected by other such requesting Holders,
subject to reasonable approval by the Company and to the customary discretion of
managing underwriters with respect to such matters.
(c) Limitation on Including Other Securities. The Company shall be entitled
to include in any registration statement referred to in this Section 4, for sale
in a manner consistent with any method of disposition specified by requesting
Holders (or for sale pursuant to a firm commitment underwriting), shares of
Common Stock to be sold by or for the account of other persons who may then be
holding "piggyback" registration rights, except as and to the extent that, in
the opinion of the managing underwriter (if the method of disposition for shares
of Restricted Stock and the shares to be sold for such other persons is an
underwritten public offering), such inclusion would not adversely affect the
marketing of the Restricted Stock to be sold.
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5. Piggyback Registration.
(a) General Availability. If the Company at any time (other than pursuant
to Section 4) proposes to register any of its Common Stock under the Securities
Act for sale to the public for cash, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms S-4 or S-8, or on another form not generally available for
registering securities such as the Restricted Stock for sale to the public for
cash), the Company will give written notice to all Holders of then outstanding
Restricted Stock of its intention so to do. Upon the written request of any such
Holder, given within ten (10) days after receipt of any such notice, to register
any of its shares of Restricted Stock (which request states the intended method
of disposition thereof), the Company will use its reasonable best efforts to
cause such shares of Restricted Stock to be included among the securities to be
covered by the registration statement otherwise proposed to be filed by the
Company, all to the extent requisite to permit the sale or other disposition of
such Restricted Stock by the Holder in accordance with its written request. The
Company's obligations hereunder shall terminate with respect to any shares of
Restricted Stock that may be sold by the Holder thereof, without limitation,
pursuant to the provisions of Rule 144(k) under the Securities Act.
(b) Certain Volume Limitations. The number of shares of Restricted Stock to
be included pursuant to Section 5(a) in any registration statement that relates
to an underwritten public offering may be reduced (pro rata among the requesting
Holders of Restricted Stock based upon the respective numbers of shares so
requested to be registered) if and to the extent that the managing underwriter
thereof shall be of the opinion that the inclusion of all such shares would
adversely affect the marketing of the securities included in such registration
statement to be sold for the account of the Company or such other security
holders. Such number of shares of Restricted Stock shall not be reduced,
however, if any shares of Common Stock are to be included in such underwriting
for the account of any person other than the Company, a Holder of Restricted
Stock, or a holder of Common Stock pursuant to such holder's exercise of
"demand" registration rights or of "piggyback" registration rights that were
granted prior to the Closing Date.
(c) Certain Other Restrictions. Notwithstanding anything to the contrary
contained in this Section 5, if there is a firm commitment underwritten offering
of securities for the Company pursuant to a registration covering shares of
Restricted Stock, and if a selling Holder of Restricted Stock does not elect to
sell its Restricted Stock to the underwriters of the Company's securities in
connection with such offering, then such Holder (if requested by the managing
underwriter) shall agree to refrain from selling any of its shares of Restricted
Stock that are otherwise registered pursuant to this Section 5 during the period
of distribution of the Company's securities by such underwriter(s) and during
the period in which the underwriting syndicate, as such, participates in the
after-market. Such Holder shall, however, be entitled to sell such shares, in
any event, commencing on the 26th day after the effective date of such
registration statement, if then lawful to do so under applicable securities laws
and rules of the Commission.
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6. Registration Procedures.
(a) Company Obligations and Procedures. Whenever the Company is required
under Section 4 hereof, or is required under Section 5 hereof to use its
reasonable best efforts, to effect the registration of any of the Restricted
Stock under the Securities Act, the Company will:
(i) prepare and file with the Commission a registration
statement on an appropriate form of the Commission, cause such
registration statement to become effective, and use its best efforts to
cause such registration statement to remain effective for the period of
the disposition contemplated thereby (determined as provided in Section
6(b));
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period referred to in clause (i) above and to
comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock covered by such registration
statement, in accordance with the sellers' intended method or methods of
disposition set forth in such registration statement, for such period;
(iii) furnish to each seller such number of copies of the
registration statement and the prospectus included therein (including each
preliminary prospectus and each amendment or supplement of a prospectus,
if any) as such persons may reasonably request in order to facilitate the
public sale or other disposition of the Restricted Stock covered by such
registration statement;
(iv) use its best efforts to register or qualify, or to secure
an exemption therefrom, the Restricted Stock covered by such registration
statement under the securities or blue sky laws of such jurisdictions (up
to an aggregate maximum of ten (10), excluding jurisdictions in which an
exemption is readily available) as the sellers of Restricted Stock shall
reasonably request. The foregoing shall not obligate the Company to
qualify to do business, or to subject itself to service of process
generally, in any jurisdiction in which it is not otherwise so qualified
or subject;
(v) immediately notify each seller under such registration
statement and each underwriter, if any, at any time that a prospectus
relating thereto is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus contained
in such registration statement, as then in effect, contains an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing (and each
seller shall similarly immediately notify the Company and each
underwriter);
(vi) if the offering is underwritten, use its best efforts to
furnish, at the request of any seller, on the date that Restricted Stock
is delivered to the underwriter(s) for sale pursuant
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to such registration: (A) an opinion of counsel representing the Company
for the purposes of such registration, addressed to such seller (and to
such underwriter(s), if any) stating that such registration statement has
become effective under the Securities Act, stating that, to the best
knowledge of such counsel, (I) no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act and
(II) the registration statement, the related prospectus, and each
amendment or supplement thereof, comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements, other
financial information, or any statistical or similar data contained
therein), and to such other customary effect as may reasonably be
requested by such seller or any such underwriter(s), and (B) a "cold
comfort" letter from the independent public accountants of the Company,
addressed to such seller (and to such underwriter(s), if any), in
customary form and covering matters of the type customarily covered by
such letters;
(vii) use its best efforts to cause all such Restricted Stock
to be listed or qualified on each securities exchange or inter-dealer
quotation system on which similar securities issued by the Company are
then listed or qualified on the basis such securities are listed or
qualified;
(viii)if the offering is underwritten, enter into such
customary agreements (including underwriting agreements in customary form)
and take all such other actions as the sellers of the Restricted Stock
being sold or the underwriter(s), if any, reasonably request in order to
expedite or facilitate the disposition of such Restricted Stock, including
without limitation, to the extent reasonably requested, opinions of
counsel customary in such registrations;
(ix) make available for inspection by any seller of Restricted
Stock, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant, or other agent
retained by any such seller or underwriter, all pertinent financial and
other records, pertinent corporate documents, and properties of the
Company, and cause the Company's officers, directors, employees, and
independent accountants to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant, or agent in connection
with such registration statement, provided that the Company receives
assurances satisfactory to it (which may include written agreements) from
each such person as to the confidential treatment and limited use of all
such information; and
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the
first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
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(b) Period of Disposition. For purposes of clauses (i) and (ii) of Section
6(a) and for Section 4(c), the period of disposition of Restricted Stock in a
firm commitment underwritten public offering shall extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of disposition of Restricted Stock in any other offering shall extend until the
earlier of the public sale of all shares of Restricted Stock covered thereby or
the second anniversary of the Closing Date.
(c) Certain Obligations of Sellers. In connection with the registration
hereunder, and as a condition to the Company's obligations hereunder to any such
seller, each seller of Restricted Stock will furnish to the Company in writing
such information with respect to such seller and its proposed disposition as
shall be reasonably necessary in order to assure compliance with the Securities
Act and with other federal and applicable state securities laws. Without
limiting the generality of the foregoing, in connection with an underwritten
public offering, each selling Holder of Restricted Stock electing such method of
disposition agrees to enter into, as required, a written agreement with the
managing underwriter (selected in the manner provided elsewhere herein) in such
form and containing such provisions as are customary in the securities business
for such an arrangement, and to complete and execute all questionnaires, powers
of attorney, indemnities, and other documents or instruments reasonably required
under such terms of the underwriting arrangements.
7. Expenses.
(a) All expenses incurred by the Company in complying with Sections 4 and
5, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, and costs of insurance,
if any, but excluding any Selling Expenses and excluding the fees and expenses
described in the last sentence of this subparagraph (a), are herein called
"Registration Expenses". All underwriting discounts and selling commissions
applicable to the sale of any Restricted Stock are herein called "Selling
Expenses". Fees and expenses of any counsel, accountant, or other advisor to a
seller of Restricted Stock are not included as either Registration Expenses or
Selling Expenses.
(b) The Company will pay all Registration Expenses; all Selling Expenses
shall be borne by the participating sellers in proportion to the number of
shares sold by each, or by such persons other than the Company (except to the
extent the Company shall be a seller) as they may agree. In connection with the
automatic registration pursuant to Section 4, the Company or Mr. Leeds (as they
may decide between them) will reimburse you for the reasonable fees and
disbursements of one counsel chosen by you to represent you in connection
therewith, up to a maximum of $10,000.
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8. Indemnification.
(a) In connection with a registration of Restricted Stock under the
Securities Act pursuant to Section 4 or 5, the Company will indemnify and hold
harmless, to the extent permitted by law, each seller and each underwriter, if
any, of Restricted Stock thereunder and each other person, if any, who controls
such seller or underwriter within the meaning of the Securities Act, from and
against all losses, claims, damages, or liabilities, joint or several, to which
such seller or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Restricted Stock was registered, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such seller, underwriter, and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage, or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made or
omitted in conformity with information furnished by or on behalf of such seller,
underwriter, or such controlling person in writing for use in such registration
statement, prospectus, or amendment or supplement.
(b) In connection with a registration of Restricted Stock under the
Securities Act pursuant to Section 4 or 5, each seller of such Restricted Stock
thereunder, severally and not jointly, will indemnify and hold harmless, to the
extent permitted by law, the Company and each person who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, and each director of the Company, from and against
all losses, claims, damages, or liabilities, joint or several, to which the
Company or such officer or director or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Restricted Stock was registered,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, and controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage, or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made or omitted in reliance upon and in conformity
with information pertaining to such seller, as such, furnished in writing to the
Company by or on behalf of such seller for use in such registration statement,
prospectus, amendment, or supplement; provided further, that
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the liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability, or expense that is equal to the proportion
that the public offering price of shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of Restricted Stock covered by such registration statement.
If the registration relates to an underwritten offering, and the seller sells
its Restricted Stock through the underwriter(s) thereof, the seller (upon
request by the underwriter(s)) will indemnify such underwriters, their officers
and directors, and each person who controls such underwriters within the meaning
of the Securities Act, to the same extent as provided above with respect to the
indemnification of the Company or to such other extent as provided in Section
8(e).
(c) Any person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment (based upon advice in a written opinion of qualified legal counsel) a
conflict of interests between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume and
continue the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed and continued, and the
indemnifying party so notifies the indemnified party, the indemnifying party
shall not be liable to such indemnified party under this Section 8 for any legal
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs incurred by the indemnified party
for investigation and liaison with the counsel so selected, and the indemnifying
party will not be subject to any liability for any settlement made by the
indemnified party without the indemnifying party's consent (which consent shall
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume and continue the defense of a claim will be obligated to
pay the fees and expenses of counsel for an indemnified party with respect to
such claim.
(d) If the indemnification provided for in Sections 8(a) and 8(b) is
unavailable or insufficient to hold harmless an indemnified party in respect of
any loss, claim, damage, liability, or action in respect thereof referred to
therein, then each indemnifying party shall (in lieu of or in addition to, as
the case may be, indemnifying such indemnified party) contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage, liability, or action in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and the sellers of such
Restricted Stock, on the other, in connection with the statements or omissions
that resulted in such loss, claim, damage, liability, or action as well as any
other relevant equitable considerations, including any failure to give in a
timely manner any notice required under such Sections. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement or omission or alleged omission of a material fact relates to
information supplied by the Company, on the one hand, or the sellers of such
Restricted Stock, on the other hand, and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The Company and you agree that it would not be just and
equitable if contributions pursuant to this
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Section 8(d) were determined by pro rata allocation (whether or not all of the
sellers of such Restricted Stock were treated as one entity for such purpose) or
by any other method of allocation that did not take account of the equitable
considerations referred to above in this Section 8(d). The amount paid or
payable by an indemnified party as a result of any loss, claim, damage,
liability, or action in respect thereof referred to in this Section 8(d), shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim in the manner provided in Section 8(c). No person guilty of a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not
guilty of fraudulent misrepresentation.
(e) The indemnification of underwriters provided for in this Section 8
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters.
9. Miscellaneous.
(a) Successors and Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties, whether or
not so expressed. Without limiting the generality of the foregoing, the
registration rights conferred herein on you shall inure to the benefit of any
and all subsequent Holders from time to time of the Restricted Stock for so long
as the certificates representing the Restricted Stock shall be required to bear
the legend specified in Section 2 hereof, subject to any time period limitations
otherwise stated herein.
(b) Remedies. Any person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement, and
to exercise all other rights granted by law.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, if, but only if, the Company has obtained the written consent of Holders of
a majority of the shares of Restricted Stock then outstanding.
(d) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal, or
unenforceable under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such invalidity, illegality,
or unenforceability in such jurisdiction, without invalidating the remainder of
this Agreement in such jurisdiction or any provision hereof in any other
jurisdiction.
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(e) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and any one of which need not
contain the signatures of more than one party, but all of which taken together
shall constitute one and the same Agreement.
(f) Descriptive Headings. The descriptive headings in certain portions of
this Agreement are used for convenience of reference only. They do not
constitute a part of this Agreement and shall not influence the construction or
interpretation of any provision hereof.
(g) Notices. All notices, demands, or other communications to be given or
delivered under or by reason of any provision of this Agreement shall be in
writing and shall be deemed to have been given (i) on the date delivered in
person, (ii) on the date indicated on the return receipt if mailed postage
prepaid, by certified or registered U.S. Mail, with return receipt requested,
(iii) on the date transmitted by telecopy facsimile, if sent by 5:00 P.M.,
Eastern Time, and confirmation of receipt thereof is reflected, or (iv) if sent
by Federal Express or other nationally recognized overnight courier service or
overnight express U.S. Mail, with service charges or postage prepaid, then on
the next business day after delivery to the courier service or U.S. Mail (in
time for next day delivery). In each case (except for personal delivery) such
notices, demands, and other communications shall be sent to a Holder of
Restricted Stock, at the address or facsimile number for such Holder on the
Company's stock records (which is, as of the date of this Agreement, the address
and facsimile number specified for you on the signature page hereof) and to the
Company as follows:
XX Xxxxxxx Financial Services, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
Facsimile No.: 000-000-0000
or to such other address or to the attention of such other person as the
receiving party has specified by prior written notice to the sending party
pursuant to this Section 9(g).
(h) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of New York, without
regard to conflict of laws rules thereof.
(i) Board Ratification. The Company and Mr. Leeds agree to cause the
execution and delivery of this Agreement by the Company to be ratified by the
Board of Directors of the Company as promptly as practicable and, in any event,
in time to permit the Company to perform on the schedule set forth in Section 4.
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Please confirm your agreement to and acceptance of this Agreement by
countersigning and delivering to the Company and Mr. Leeds a counterpart of this
Agreement, whereupon this Agreement shall be a binding agreement among you, the
Company, and Mr. Leeds.
Very truly yours,
XX XXXXXXX FINANCIAL SERVICES, INC.
By:--------------------------------------
Xxxx X. Xxxxx
Vice Chairman and Chief
Financial Officer
AGREED TO AND ACCEPTED as of the
date first above-written:
-------------------------------------
Xxxxxxxx X. Xxxxx
AVATEX CORPORATION
By:----------------------------------
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Exhibit A to
Registration Rights Agreement
dated January 21, 1998
Methods of Disposition of
Restricted Stock in a
Registration Pursuant to Section 4
The shares of Common Stock may be offered and sold by or for the account of
a Selling Shareholder, from time to time as market conditions permit, on The
American Stock Exchange or otherwise, at prices and on terms then prevailing, or
in negotiated transactions. The shares of Common Stock may be sold by one or
more of the following methods, without limitation: (a) a block trade in which a
broker or dealer so engaged will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer (including a specialist or
market maker) as principal and resale by such broker or dealer for its account
pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (d) face-to-face
transactions between sellers and purchasers without a broker-dealer. In
effecting sales, brokers or dealers engaged by a Selling Shareholder may arrange
for other brokers or dealers to participate. Such brokers or dealers may receive
commissions or discounts from a Selling Shareholder in amounts to be negotiated.
Such brokers and dealers and any other participating brokers or dealers may be
deemed to be "underwriters", within the meaning of the Securities Act, in
connection with such sales.
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