Waiver Agreement among LifeCell Corporation, CIBC WMV Inc., Vector Later-Stage Equity Fund, VSI Advisors, and Individuals (March 11, 2002)

Summary

This agreement, dated March 11, 2002, is between LifeCell Corporation, CIBC WMV Inc., Vector Later-Stage Equity Fund, VSI Advisors, and several individuals. The parties agree to permanently waive their rights to appoint members to LifeCell’s Board of Directors as holders of Series B Preferred Stock. However, they retain their rights to vote on shareholder matters, including board elections. The agreement is binding on all parties and their successors, governed by Delaware law, and replaces any prior related agreements.

EX-10.31 5 doc4.txt EXHIBIT 10.31 WAIVER AGREEMENT This Waiver Agreement (the "Agreement") is entered into as of March 11, --------- 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. Theodore Berghorst, Barclay A. Phillips, Douglas Reed and Peter F. Drake (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 1 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: ------- Section 1. Waiver. CIBC and the Purchasers hereby irrevocably waive and ------ 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. ------------- 2.01. Successors and Assigns. The provisions of this Agreement shall be ------------------------ 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 -------------- 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 ----------------------------------- 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 ----------------- 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] 2 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/ Steven T. Sobieski ------------------------------------------- Steven T. Sobieksi, Chief Financial Officer VECTOR LATER-STAGE EQUITY FUND, L.P. By: /s/ Barclay A. Phillips ------------------------------------------- Barclay A. Phillips, Managing Director VSI ADVISORS, LLC By: /s/ D. Theodore Berghorst ------------------------------------------- D. Theodore Berghorst, Managing Member CIBC WMV INC. By: /s/ David Shotland --------------------------------------------- Name: David Shotland Title: Managing Director /s/ D. Theodore Berghorst --------------------------------------------- D. Theodore Berghorst /s/ Barclay A. Phillips --------------------------------------------- Barclay A. Phillips /s/ Peter F. Drake --------------------------------------------- Peter F. Drake /s/ Douglas Reed --------------------------------------------- Douglas Reed 3