Second Amended and Restated Voting Agreement
--------------------------------------------
This Second Amended and Restated Voting Agreement (this "Agreement") is
---------
made as of April 27, 2000, among LifeCell Corporation, a Delaware corporation
(the "Company"), and the Stockholders (as defined below).
-------
Vector Later-Stage Equity Fund, L.P. ("Vector"), CIBC WMV, Inc. ("CIBC"),
and the other Persons identified as "Stockholders" on Annex A attached hereto
-------
(collectively, the "Stockholders") and the Company are parties to that certain
Securities Purchase Agreement dated November 18, 1996 (the "Purchase
--------
Agreement"), pursuant to which the Stockholders purchased shares of the
Company's Series B Preferred Stock, par value $.001 per share (the "Series B
--------
Preferred"), and warrants to purchase shares of the Company's common stock, par
---------
value $.001 per share (each, a "Warrant"). The Investors and the Company also
-------
are parties to that certain Voting Agreement dated November 18, 1996, entered
into in connection with the Purchase Agreement, as amended and restated in
December 1998 (the "Voting Agreement"). Subsequent to the execution and
delivery of the Voting Agreement, certain events have occurred that have caused
the Stockholders and the Company to desire to amend the Voting Agreement to
take into account such events, and the Stockholders and the Company desire to
enter into certain other amendments to the Voting Agreement. Accordingly, the
Stockholders and the Company desire to enter into this Agreement to effect such
amendments to the Voting Agreement by amending and restating the Voting
Agreement in its entirety.
The Company and the Stockholders hereby agree as follows:
1. Certain Definitions.
--------------------
Capitalized terms used but not defined herein shall have the meanings
assigned such terms in the Purchase Agreement.
"Stockholder Shares" means, as of any particular time, (i) any Common
-------------------
Stock purchased or otherwise acquired by any Stockholder, (ii) any Common Stock
issued or issuable directly or indirectly upon conversion of Preferred Stock or
upon exercise of Warrants, in each case, owned by a Stockholder, (iii) any
capital stock or other equity securities issued or issuable directly or
indirectly with respect to Common Stock referred to in clause (i) or clause (ii)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. For purposes of this Agreement, any Person who holds Preferred
Stock or Warrants shall be deemed to be a Stockholder and the holder of
Stockholder Shares issued or issuable upon conversion of such Preferred Stock or
exercise of such Warrants (as the case may be) in connection with the transfer
thereof or otherwise and regardless of any restriction or limitation on the
conversion or exercise thereof.
2. Board of Directors.
--------------------
(a) From and after the date of this Agreement, each holder of
Stockholder Shares shall vote all of its Stockholder Shares and shall take all
other necessary or desirable actions within its control (whether in its capacity
as a stockholder or as an officer or director of the Company or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for
the purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary and desirable actions within
its control (including, without limitation, calling special Board and
stockholder meetings), so that:
(i) the maximum authorized number of directors on the Board shall
be established at eight directors and shall be reduced in accordance with
clauses (vii) and (viii) of this Section 2(a);
(ii) the following individuals shall be elected to the Board:
(A) such number of representatives as is equal to the number
of directors the holders of the Series B Preferred then are
entitled to elect pursuant to paragraph 3(b) of the Certificate
of Designation of the Series B Preferred (the "Investor
--------
Directors") as designated by holders of a majority of the
---------
Underlying Common Stock (the "Majority Investors"), which
--------------------
Investor Directors, so long as such number of directors to be
elected by the Series B Preferred is two, shall include one
representative designated by Vector (the "Vector
------
Representative"), and one representative designated by CIBC (the
--------------
"CIBC Representative");
--------------------
(B) the Chief Executive Officer of the Company and Xxxxxxx
X. Xxxxxxx (each, a "Company Director"); and
-----------------
(C) one individual who is neither a member of the Company's
management nor an employee or an officer of the Company (the
"Initial Outside Director"), and three individuals jointly
designated by the Investor Directors and the Company Directors
each of whom is neither a member of the Company's management nor
an employee or an officer of the Company (the "Additional Outside
Directors"); ------------------
---------
(iii) the removal from the Board (with or without cause) of any
Vector Representative or any CIBC Representative shall be at the written request
of Vector or CIBC, respectively, but only upon such written request and under no
other circumstances;
(iv) the removal from the Board (with or without cause) of any
Company Director or the Initial Outside Director shall be at the written request
of the majority of the other directors then in office, but only upon such
written request and under no other circumstances;
(v) in the event that any Investor Director or any Additional
Outside Director designated hereunder for any reason ceases to serve as a member
of the Board during his or her term of office, the resulting vacancy on the
Board shall be filled in the manner set forth above in clause (ii) of this
Section 2(a) by a representative designated by the same group that designated
the member that will no longer serve on the Board; provided that if such group
fails to designate a representative to fill such vacancy, the election of an
individual to fill such vacancy shall be accomplished in accordance with the
Company's bylaws and applicable law; provided, further, that the Stockholders
shall thereafter vote to remove such individual if the group which failed to
designate a representative to fill such vacancy pursuant to this Section 2(a) so
directs;
(vi) in the event that the Initial Outside Director for any reason
ceases to serve as a member of the Board during his term of office, the
resulting vacancy shall be filled by the vote of a majority of the other
directors then in office;
(vii) in the event that any Company Director (other than the Chief
Executive Officer) for any reason ceases to serve as a member of the Board
during his term of office, the resulting vacancy shall not be filled and the
number of authorized directors on the Board shall be reduced by the number of
such directors who have ceased to serve on the Board; and
(viii) in the event that the number of Investor Directors is
reduced to one, the resulting vacancy shall not be filled and the number of
authorized directors shall be reduced by one.
(b) The Company shall pay all out-of-pocket travel and other
expenses incurred by each director in connection with attending the meetings of
the Board or any committee thereof. So long as any Investor Director serves on
the Board and for three years thereafter, the Company shall maintain directors
and officers indemnity insurance coverage satisfactory to the Majority
Investors, and the Company's certificate of incorporation and by laws shall
provide for indemnification and exculpation of directors to the fullest extent
permitted under applicable law.
3. Stockholder Covenant. No holder of Stockholder Shares shall grant
---------------------
any proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
4. Termination. This Agreement shall terminate at the later of (i)
-----------
such time, determined pursuant to paragraph 3(b) of the Certificate of
Designation of the Series B Preferred, when the holders of Series B Preferred no
longer have the right to elect a member of the Board and (ii) such time when the
Company no longer has any obligation to deliver financial and other information
to certain Investors pursuant to Section 6.8 of the Purchase Agreement.
5. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
6. Remedies. Each Stockholder shall be entitled to enforce its rights
--------
under this Agreement specifically, to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. Each Stockholder hereby acknowledges that money damages would not
be an adequate remedy for any breach of the provisions of this Agreement and
that each Stockholder may in its sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
relief (without posting a bond or other security) in order to enforce or prevent
any violation of the provisions of this Agreement.
7. Notices. Any notice provided for in this Agreement shall be in
-------
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Stockholder at the address indicated on Annex A hereto (which
-------
address is the same address set forth on Annex A to the Voting Agreement ) or at
-------
such address or to the attention of such other person (including any subsequent
holder of Stockholder Shares) as the recipient party has specified by prior
written notice to the sending party. Notices shall be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail
and one day after deposit with a reputable overnight courier service.
8. Amendment and Waiver. This Agreement may be amended, modified and
----------------------
supplemented, and compliance with any term, covenant, agreement or condition
contained herein may be waived either generally or in particular instances, and
either retroactively or prospectively, only by a written instrument executed by
(a) the Company and (b) the Majority Investors. No course of dealing between or
among any persons having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
9. Governing Law. The corporate law of the State of Delaware shall
--------------
govern all issues and questions concerning the rights of the Company and the
rights of the Stockholders relative to the Company. All other issues and
questions concerning the construction, validity, interpretation and
enforceability of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of New York.
10. Descriptive Headings. The descriptive headings of this Agreement
---------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
11. Entire Agreement. This Agreement sets forth the entire agreement
-----------------
among the parties hereto with respect to the subject matter hereof, and
supersedes any prior oral or written agreement among the parties, including
without limitation thereto the Voting Agreement.
12. Holdings of Series B Preferred. Based on the Company's records,
----------------------------------
each Stockholder holds the shares of Series B Preferred set forth on Annex A
-------
hereto.
IN WITNESS WHEREOF, the Company and the undersigned Stockholders
(constituting the Majority Investors) have executed this Agreement as of the day
and year first above written.
LIFECELL CORPORATION
By
--------------------------------------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
VECTOR LATER-STAGE EQUITY FUND, LP
By: Vector Fund Management, L.P., its General Partner
By
---------------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
CIBC WMV, INC.
By
---------------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
ANNEX A
-------
Stockholders
------------
TAX ID NAME TOTAL
OUTSTANDING
Xxxx X. Xxxxx & Xxxx X. Xxxxx 264
Xxxxxx Xxxxxxxxxxx 158
Xxxxxxx X. Xxxx 531
Chinook Equities Inc. 531
CIBC Wood Gundy Ventures Inc. 47,805
Xxxx Xxxxxxx 264
P. Xxxxxxx Xxxxxxx 425
Xxxxxxx Xxxxxxx 1,065
Gruntal & Co. Inc. Cust FBA Xxxx Xxxxxxxxx XXX 3
Gruntal & Co. Inc. Cust FBA Xxxxxxx X. Xxxxxxx XXX 56
Xxxxxxx Xxxxxx 42
Xxxxxx X. Xxxxx 328
Xxxxxxx X. Xxxxxxx Tr. Of the Xxxxxx X. Xxxxxxx Trust 9
Xxxxxxx X. Xxxxxxx Tr. Of the Xxxxxx XX. Xxxxxxx Trust 9
Xxxxxxx X. Xxxxxxx 20
Xxxxx Xxxxxx Inc. Cust Xxxxxxxxxxx X. Xxxxx Xx. 264
Xxxxxxx Xxxxxxx 264
Xxxxxxx X. XxXxxxxxx 196
Xxxxxxx X. Xxxxxxxx 425
Xxxxx Xxxxxxx 264
Xxxxxx Xxxxxxxxx 183
Xxxxx Xxxx 531
Xxx X. Xxxxxxx 660
SBSF Biotechnology Fund LP 2,325
SBSF Biotechnology Partners LP 1,065
xxxxxxx X. Xxxxxxx 51
Technology Funding Medical Partners ILP 2,666
Vector Later-Stage Equity Fund LP 41,440
Xxxxxxx X. Xxxxx 20
The Woodlands Venture Capital Company 2,666
