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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2) *
NEXELL THERAPEUTICS INC.
(Formerly Known as VIMRx Pharmaceuticals Inc.)
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(Name of Issuer)
COMMON SHARES, $0.001 PAR VALUE PER SHARE
-----------------------------------------
(Title of Class of Securities)
65332H104
(Previous CUSIP Number: 927186106)
----------------------------------
(CUSIP Number)
Jan Stern Reed
BAXTER INTERNATIONAL INC.
One Baxter Parkway
Deerfield, Illinois 60015
847.948.2212
_______________________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 30, 1999
-------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [X].
NOTE: Schedules filed in paper format should include a signed original and five
(5) copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
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CUSIP No. 65332H104 (Previous CUSIP NO.: 927186106)
________________________________________________________________________________
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above
Persons (entities only)
BAXTER INTERNATIONAL INC.
I.R.S. Identification Number: 36-0781620
BAXTER HEALTHCARE CORPORATION
I.R.S. Identification Number: 36-2604143
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
________________________________________________________________________________
3) SEC Use Only
________________________________________________________________________________
4) Source of Funds (See Instructions)
WC
________________________________________________________________________________
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [ ]
________________________________________________________________________________
6) Citizenship or Place of Organization
DELAWARE
________________________________________________________________________________
(7) Sole Voting Power
-0-
____________________________________________________________
Number of Shares
Beneficially Owned (8) Shared Voting Power
by Each Reporting 14,000,000
Person With
____________________________________________________________
(9) Sole Dispositive Power
-0-
____________________________________________________________
(10) Shared Dispositive Power
14,000,000
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 44,757,091
(Includes the right to acquire 5,200,000 shares of Common Stock pursuant
to the Warrant (as defined herein) and the right to acquire 25,557,091
shares of Common Stock pursuant to the shares of Series A Preferred Stock
described herein)
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11)
47.05% (Assumes the exercise of the Warrant and the conversion of the
shares of Series A Preferred Stock, neither of which have occurred)
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions)
CO
________________________________________________________________________________
Page 2 of 7 Pages
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CUSIP No. 65332H104 (Previous CUSIP NO.: 927186106)
________________________________________________________________________________
This Schedule 13D relates to the holdings of Baxter Healthcare Corporation, a
Delaware corporation ("Purchaser"), of 14,000,000 shares (the "Shares") of
common stock, $0.001 par value per share ("Common Stock"), of Nexell
Therapeutics Inc. (formerly known as VIMRx Pharmaceuticals Inc.) (the
"Company"); a Warrant to purchase 5,200,000 shares of Common Stock; and 70,282
shares of Series A Preferred Stock presently convertible into 25,557,091 shares
of Common Stock.
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock of the Company. The address of the
principal executive offices of the Company is:
2571 Centerville Road
Suite 210
Little Falls II
Wilmington, Delaware 19808
Telephone: 302.998.1734
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by Purchaser and Baxter International Inc., a
Delaware corporation and the owner of 100% of the capital stock of Purchaser
(the "Parent"). The principal executive offices of Purchaser and Parent are:
One Baxter Parkway
Deerfield, Illinois 60015
Telephone: 847.948.2000
Purchaser and Parent, through its subsidiaries, are engaged in the worldwide
development, distribution and manufacture of a diversified line of products,
systems and services used primarily in the health care field.
Neither Parent nor Purchaser, nor, to the best of the knowledge of Parent and
Purchaser, any director or executive officer of Parent or Purchaser, has been,
during the last five years, (a) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (b) a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
As described in Item 4 below, in consideration of the Purchaser's tender of
common stock, warrants and debentures of Issuer's subsidiary to the Issuer,
Purchaser received from Issuer 3,000,000 shares of Common Stock, a warrant to
purchase 5,200,000 shares of Common Stock, and certain debentures of the Issuer.
Page 3 of 7 Pages
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CUSIP No. 65332H104 (Previous CUSIP NO.: 927186106)
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ITEM 4. PURPOSE OF TRANSACTION.
Prior to this transaction, the Company owned 80.5% of Nexell of California, Inc.
(formerly known as Nexell Therapeutics Inc.) ("Sub"), the Company's principal
business unit, which it acquired through the acquisition of certain assets from
Purchaser in December 1997 in exchange for (1) 11,000,000 shares of Common
Stock, (2) 66,304 shares of Series A Convertible Preferred Stock of the Company
with a liquidation value of $1,000 per share ("Series A Preferred Stock"), (3)
19.5 % of Sub's outstanding common stock, (4) a warrant to purchase an
additional 6% of Sub's common stock for $6,000,000, and (5) the right of
Purchaser to receive payments from Sub upon the occurrence of certain milestone
events, which could aggregate $21,000,000 if all the milestones were achieved.
In addition, for $30,000,000 paid to Sub, Purchaser received $30,000,000
principal amount of Sub's 6 1/2% convertible subordinated debentures convertible
into Sub's common stock upon a public offering of common stock by Sub.
The acquisition by the Company of Purchaser's interests in Sub, other than its
right to milestone payments, was effected through an exchange of Purchaser's
interests in Sub for an equivalent value of interests directly in the Company
(the "Acquisition"). The Company and Purchaser agreed to exchange Purchaser's
interests in Sub (common stock, warrant and convertible subordinated debentures,
but excluding its right to milestone payments ) for:
. 3,000,000 shares of Common Stock;
. an adjustment of the conversion price of the 70,282 outstanding shares of
Series A Preferred Stock owned by Purchaser from $5.50 per share to $2.75
per share (the 3,978 share increase from the 66,304 shares originally
issued are a result of dividends payable in kind);
. a warrant to purchase 5,200,000 shares of Common Stock at a price of $1.15
per share (the "Warrant"); and
. $32,884,537.50 principal amount of 6 1/2% Convertible Subordinated
Debentures (replacing the $30,000,000 principal amount of Sub's 6 1/2%
convertible subordinated debentures plus accrued interest through the
closing date of the Acquisition) convertible, commencing November 30, 2002,
into Common Stock at a conversion price equal to 95% of the average of the
closing prices of the Common Stock on the Nasdaq National Market for the 30
consecutive trading days preceding the date of conversion.
Other than as described herein in Items 4 and 6, neither Purchaser nor Parent
presently has any plans or proposals which relate to, or may result in, any of
the matters listed in Items 4(a) - 4(j) of Schedule 13D, although each reserves
the right to develop such plans.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Except as set forth herein, neither Purchaser, Parent, nor, to the best of the
knowledge of Purchaser and Parent, any director or executive officer of
Purchaser or Parent beneficially owns any other shares of Common Stock of the
Company.
(a) Purchaser and Parent beneficially own an aggregate of 14,000,000
shares of Common Stock, which constitute approximately 19.29% of the
total number of presently outstanding shares of Common Stock.
Purchaser and Parent also each beneficially own the right to acquire
up to 5,200,000 more shares of Common Stock pursuant to
Page 4 of 7 Pages
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CUSIP No. 65332H104 (Previous CUSIP NO.: 927186106)
________________________________________________________________________________
the Warrant. In addition, Purchaser and Parent each beneficially own
70,282 shares of Series A Preferred Stock, convertible after June 17,
1999 into 25,557,091 shares of Common Stock. Assuming the exercise of
the Warrant and the conversion of the shares of Series A Preferred
Stock, Purchaser and Parent would each beneficially own 44,757,091
shares of Common Stock, which would constitute approximately 47.05%
of the outstanding shares of Common Stock.
(b) Purchaser and Parent share the power to vote and dispose of the
Shares, subject to the Voting Agreement described under Item 6 below.
(c) As described in Item 4 above, pursuant to the Acquisition, Purchaser
and Parent acquired 3,000,000 shares of Common Stock and the Warrant
on May 28, 1998.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS OR ARRANGEMENTS WITH RESPECT TO ISSUER SECURITIES.
In addition to the agreement documenting the Acquisition described in Item 4
above, Purchaser has entered into the following contracts or arrangements with
the Company and others with respect to the Company's securities:
The Series A Preferred Stock
- ----------------------------
Purchaser holds 70,282 shares of Series A Preferred Stock, which are convertible
after June 17, 1999 at the option of the Purchaser. The shares will
automatically convert into Common Stock on December 17, 2004 or upon other
specified events, if not otherwise already converted. The conversion price at
which shares of Common Stock will be deliverable upon conversion without the
payment of additional consideration by Purchaser is $2.75 per share, subject to
adjustment for stock splits and combinations, certain dividends and
distributions, and reclassification, exchange or substitution. There is a 6%
dividend payable annually in kind on the shares of Series A Preferred Stock.
Accordingly, if Purchaser does not convert any shares prior to December 17,
2004, on such date it would own 99,697 shares of Series A Preferred Stock as a
result of the additional shares of Series A Preferred Stock issued in payment of
the 6% annual dividend; such 99,697 shares would automatically convert into
36,253,345 shares of Common Stock on such date.
The Warrant
- -----------
The Warrant entitles Purchaser to purchase up to 5,200,000 shares of Common
Stock at any time prior to May 27, 2006 at 5:00 p.m. at a purchase price of
$1.15 per share, subject to adjustment from time to time in the event of cash
dividends, stock dividends, stock subdivisions, stock splits, stock combinations
or reverse stock splits.
The 6 1/2% Convertible Subordinated Debentures
- ----------------------------------------------
The 6 1/2% Convertible Subordinated Debentures bear interest at 6 1/2% per annum
and are due November 30, 2004. Interest accrues until November 30, 2002 and,
together with one-third of the outstanding principal, is payable annually
commencing November 30, 2002. There are two Debentures, one in the principal
amount of approximately $22,000,000 and the other in the principal amount of
approximately $11,000,000, which are identical, except that the $22,000,000
Page 5 of 7 Pages
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CUSIP No. 65332H104 (Previous CUSIP NO.: 927186106)
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Debenture is convertible into Common Stock commencing November 30, 2002 at the
discretion of Purchaser, while the $11,000,000 Debenture is convertible only
with the permission of the Company. Subject to this distinction, the Debentures
are convertible into shares of Common Stock at any time on or after November 30,
2002 at a conversion price equal to 95% of the average of the closing prices for
the Common Stock on the Nasdaq National Market for the 30 consecutive trading
days prior to the conversion date. The balance of the $22,000,000 Debenture then
outstanding (estimated at approximately $7,500,000 if all scheduled principal
payments have been made) will automatically convert into Common Stock on
November 30, 2004.
Registration Rights Agreement
- -----------------------------
Purchaser and the Company are parties to a Registration Rights Agreement whereby
the Company has granted certain demand and piggyback rights to Purchaser.
Voting Agreement
- ----------------
Purchaser is a party to a Voting Agreement with certain other stockholders of
the Company pursuant to which all parties agree to vote all of their Common
Stock of the Company in favor of one Purchaser-nominated director. In addition,
Purchaser agrees to vote all of its Common Stock of the Company in favor of the
nominees for director recommended by the Company's nominating committee.
Relationship Restructuring
- --------------------------
The Company and Purchaser have entered into agreements whereby Purchaser is
providing a $20 million line of credit to the Company and is providing support
to the Company for the completion of a private placement financing. In
connection therewith, the parties also terminated an existing Marketing, Sales
and Distribution Agreement and transferred related assets to Sub to enable Sub
to assume those responsibilities directly. Under the new structure, Purchaser
continues to provide contract manufacturing, physical distribution, instrument
placement and service, and related functions pursuant to new agreements.
Except as set forth above, to the best knowledge of Purchaser and Parent, no
contracts, arrangements, understandings or relationships (legal or otherwise)
exist among the persons named in Item 2 above, or between such persons and any
other person with respect to any securities of the Company, including, but not
limited to, transfer or voting of such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding or proxies.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
EXHIBIT 7.1* Acquisition Agreement dated February 18, 1998, by and among the
Company, Purchaser and Sub (incorporated by reference to Annex A
of the Proxy Statement contained in the Schedule 14-A filed by the
Company) (Commission File No. 000-19153) on April 13, 1999.
Page 6 of 7 Pages
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EXHIBIT 7.2* Common Stock Purchase Warrant for 5,200,000 shares of Common
Stock of Nexell Therapeutics Inc.
EXHIBIT 7.3* Series 1, 6.5% Convertible Subordinated Debenture due
November 30, 2004, in the amount of $21,923,025
EXHIBIT 7.4* Series 2, 6.5% Convertible Subordinated Debenture due
November 30, 2004, in the amount of $10,961,512.50
EXHIBIT 7.5 Registration Rights Agreement, dated December 17, 1997, by
and between Purchaser and the Company
EXHIBIT 7.6 Voting Agreement, dated December 17, 1997, by and between
Purchaser, Lindsay A. Rosenwald, M.D., Paramount Capital Asset
Management Inc., Donald Drapkin, Richard L. Dunning, Laurence D.
Fink and Eric A. Rose
______________________________
* Previously Filed
S I G N A T U R E
After reasonable inquiry and to the best of my knowledge and belief, each of the
undersigned corporations certifies that the information set forth in this
statement is true, complete and correct.
Dated: June 30, 1999
BAXTER HEALTHCARE CORPORATION
By: /s/ Jan Stern Reed
------------------
Jan Stern Reed
Secretary
BAXTER INTERNATIONAL INC.
By: /s/ Jan Stern Reed
------------------
Jan Stern Reed
Secretary
Page 7 of 7 Pages
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EXHIBIT 7.5
VIMRx PHARMACEUTICALS INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
December 17, 1997, and is entered into by and between VIMRx Pharmaceuticals
Inc., a Delaware corporation (the "Company") and Baxter Healthcare Corporation,
a Delaware corporation (the "Purchaser").
R E C I T A L S
---------------
A. The Company and the Purchaser have, on the date hereof, entered into
an Asset Purchase Agreement pursuant to which the Company has issued or will
issue to Purchaser 11,000,000 shares of the Company's common stock, $.001 par
value ("Common Stock") and all shares of the Company's Series A Convertible
Preferred Stock ("Preferred Stock").
B. The parties desire to establish a procedure for the registration and
resale of the Common Stock and the Common Stock issuable upon conversion of the
Preferred Stock held by the Purchaser.
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
releases contained herein, the parties hereto hereby agree as follows:
A G R E E M E N T
-----------------
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" means the Securities and Exchange Commission or any
other United States federal agency at the time administering the Securities Act.
(b) "Holder" means the Purchaser holding Registrable Securities and
any holder of outstanding Registrable Securities which have not been sold to
the public, but only if such holder is an assignee or transferee of Registration
rights as permitted by Section 7.
(c) "Initiating Holders" means any Holder or Holders who in the
aggregate hold at least fifty percent (50%) of the Registrable Securities.
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(d) "Register," "Registered," and "Registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (a "Registration Statement") and the
declaration or ordering of the effectiveness of such Registration Statement, and
qualification and compliance with applicable state securities laws.
(e) "Registrable Securities" means (i) the Common Stock purchased by
Purchasers pursuant to the Asset Purchase Agreement, and (ii) all Common Stock
issuable upon conversion of the Preferred Stock in accordance with its terms. In
the event of any recapitalization by the Company, whether by stock split,
reverse stock split, stock dividend or the like, such additional securities
shall be Registrable Securities covered by this Agreement.
(f) "Registration Expenses" means all expenses incurred by the
Company in complying with Section 2, including, without limitation, all federal
and state registration, qualification and filing fees, printing expenses, fees
and disbursements of counsel for the Company and one special counsel for
Holders (if different from the Company), whose fees shall be capped at $15,000,
escrow fees, blue sky fees and expenses, and the expense of any audits or
financial statement reviews incident to or required by any such registration.
The Company shall not be required to undertake any audit of its financial
statements except in connection with its fiscal year end in connection with any
Registration undertaken pursuant to this Agreement.
(g) "Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(h) "Selling Expenses" means all underwriting discounts, selling
commissions, fees and expenses of underwriters' counsel, expenses of
underwriters and stock transfer taxes applicable to the sale of Registrable
Securities pursuant to this Agreement, which such Selling Expenses shall be
prorated among selling stockholders if such Registration includes securities
other than Registrable Securities.
(i) "Underwriter" means any underwriter which acts as an underwriter
in connection with a Registration Statement.
2. Demand Registration.
-------------------
2.1 Request for Registration. Subject to the remainder of this
Agreement, if the Company shall receive, from Holders who in the aggregate hold
more than thirty percent (30%) of the then outstanding Registrable Securities or
any lesser percent if the reasonably anticipated aggregate offering price to the
public would exceed $5,000,000, at any time after the date of this Agreement, a
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written request that the Company effect any Registration with respect to all or
a part of the Registrable Securities for a firm-commitment underwritten offering
thereof, the Company shall (i) promptly, but in any event within 10 days, give
written notice of the proposed Registration to all other Holders and shall (ii)
use its commercially reasonable efforts to effect Registration of the
Registrable Securities specified in such request as soon as practicable,
together with any Registrable Securities of any Holder, joining in such request
as are specified in a written request delivered to the Company within 30 days
after delivery of such written notice from the Company of the proposed
Registration. The Company shall not be obligated to take any action to effect
any such Registration pursuant to this Section 2.1 after the Company has
effected three such Registrations pursuant to this Section 2.1 and each such
Registration has been declared effective.
2.2. Right of Deferral of Registration. If the Company shall furnish
to all such Holders who joined in the request a certificate signed by the
President of the Company stating that, in the good faith business judgment of
the Board of Directors of the Company, it would be commercially unreasonable for
the Company for any Registration to be effected as requested under this Section
2, the Company shall have the right, exercisable once with respect to each
demand for Registration, to defer the filing of the Registration Statement with
respect to such offering for a period of not more than 150 days from delivery of
the request of the Initiating Holders.
2.3. Underwriting in Demand Registration.
-----------------------------------
(a) Notice of Underwriting. The right of any Holder to Registration
pursuant to Section 2 shall be conditioned upon the agreement of such Holder to
participate in such underwriting and the inclusion of Registrable Securities in
the underwriting.
(b) Inclusion of Other Holders in Demand Registration. The Company
shall be entitled to include any other of its securities held by any other
person in any Registration Statement filed pursuant to this Section 2.
(c) Selection of Underwriter in Demand Registration. The Company
shall (together with all holders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement with the
representative ("Underwriter's Representative") of the underwriter or
underwriters selected for such underwriting by the holders of a majority of the
Registrable Securities being registered by the Initiating Holders and reasonably
satisfactory to the Company.
(d) Marketing Limitation in Demand Registration. If the
Underwriter's Representative advises the Initiating Holders in
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writing that market factors require a limitation of the number of shares to be
underwritten, the securities held by persons who are not Holders shall be
excluded from such Registration to the extent required by such limitation. If a
limitation in the number of shares is still required, the Initiating Holders
shall so advise all Holders and the number of shares of Registrable Securities
that may be included in the Registration and underwriting shall be excluded pro
rata based (as between the holders of Registrable Securities) on percentage
ownership of the Company. No Registrable Securities or other securities excluded
from the underwriting by reason of this Section 2.3(d) shall be included in such
Registration Statement. If the number of shares of Registrable Securities so
excluded exceeds 20% of the number of shares of Registrable Securities which are
requested to be included in such Registration, then the Initiating Holders shall
be entitled, on behalf of the Holders, to require, by delivery of a written
notice to the Underwriter's Representative and the Company, that the
Registration be deferred for such period of time as the Initiating Holders, the
Company, and the Underwriter's Representative may mutually agree, but in no
event to exceed 90 days from delivery of the notice requiring such deferral from
the Initiating Holders, or alternatively, to request that the Registration be
terminated in its entirety. In such event, the demand for Registration shall be
considered to have not been made for purposes of counting the number of demands
for Registration permitted under Section 2.1.
(e) Right of Withdrawal in Demand Registration. If any Holder of
Registrable Securities or a holder of other securities entitled (upon request)
to be included in such Registration, disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the Underwriter's Representative, and the Initiating Holders
delivered at least seven days prior to the effective date of the Registration
Statement. The securities so withdrawn shall also be withdrawn from the
Registration Statement. If by the withdrawal of such securities a greater number
of Registrable Securities held by other Holders may be included in such
Registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the Registration the right to include additional Registrable
Securities in the same proportion as that used in determining the proportional
inclusion under the underwriter limitation in Section 2.3(d).
(f) Inclusion of Company's Securities in Demand Registration. If the
Underwriter's Representative has not limited the number of Registrable
Securities or other securities to be underwritten, the Company may include its
securities for its own account in such Registration and underwriting if the
Underwriter's Representative so agrees and if the number of Registrable
Securities and other securities which would otherwise have been included in such
Registration and underwriting will not thereby be
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limited, and if the Underwriter's Representative advises the Holders in writing
that, in such Representative's opinion, the price of the Registrable Securities
will not be adversely affected thereby.
(g) Blue Sky in Demand Registration. In the event of any Registration
pursuant to Section 2, the Company will exercise its best efforts to Register
and qualify the securities covered by the Registration Statement under such
other securities or blue sky laws of such jurisdictions (not exceeding 20 unless
otherwise agreed to by the Company) as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii) notwithstanding
anything in this Agreement to the contrary, if any jurisdiction in which the
securities shall be qualified imposes a non-waivable requirement that expenses
incurred in connection with the qualification of the securities be borne by
selling shareholders, such expenses shall be payable pro rata by selling
shareholders.
2.4. Piggyback Registration.
-----------------------
(a) Notice of Piggyback Registration and Inclusion of Registrable
Securities. In the event the Company decides to Register any of its Common Stock
(other than pursuant to a registration on Form S-4 or S-8 or any successor
forms), for its own account for cash in a firm commitment underwritten offering
on a form that would be suitable for a registration involving Registrable
Securities, the Company shall: (i) promptly, but in any event within 10 days of
such decision, give each Holder written notice thereof (which shall include a
list of the jurisdictions in which the Company intends to attempt to qualify
such securities under the applicable blue sky or other state securities laws)
and (ii) include in such Registration (and any related qualification under blue
sky laws or other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request delivered to the Company
by any Holder within 20 days after delivery of such written notice from the
Company of the proposed Registration.
(b) Underwriting in Piggyback Registration. The right of any Holder
to Registration shall be conditioned upon the agreement of such Holder to
participate in such underwriting and the inclusion of such Holder's Registrable
Securities in such underwriting. All Holders proposing to distribute their
securities through such underwriting shall (together with the Company and the
other holders distributing their securities through such underwriting) enter
into an underwriting agreement with the Underwriter's Representative for such
offering. The Holders shall have no right to participate in the selection of
the underwriters for an offering pursuant to this Section 2.4.
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(c) Marketing Limitation in Piggyback Registration. If the
Underwriter's Representative advises the Holders seeking registration of
Registrable Securities pursuant to Section 2.4 in writing that market factors
require a limitation of the number of shares to be underwritten, the
Underwriter's Representative may (subject to the allocation priority set forth
in Section 2.4(d)) limit the number of Registrable Securities to be included
therein, down to complete exclusion.
(d) Allocation of Shares in Piggyback Registration. If the
Underwriter's Representative limits the number of shares to be included in a
Registration pursuant to Section 2.4(c), the number of shares to be included in
such Registration shall be allocated in the following manner: The shares (other
than Registrable Securities) held by holders of securities other than
Registrable Securities requesting and legally entitled to include shares in such
Registration shall be excluded from such registration and underwriting to the
extent required by such limitation, but only if permitted by the terms of such
other registration rights agreement. If a limitation in the number of shares is
still required, the number of shares of Registrable Securities to be included in
the Registration and underwriting shall be excluded pro rata (as between the
holders of Registrable Securities and such other holders of other registration
rights) based on percentage ownership. No Registrable Securities or other
securities excluded from the underwriting by reason of this Section 2.4(d) shall
be included in the Registration Statement.
(e) Withdrawal in Piggyback Registration. If any holder disapproves
of the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter delivered at least seven days
prior to the effective date of the Registration Statement. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such Registration. If by the withdrawal of such
securities a greater number of Registrable Securities may be included in such
Registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities the right to include additional Registrable Securities in the same
proportion used in determining the proportional inclusion under the underwriter
limitation in Section 2.4(d).
(f) Blue Sky in Piggyback Registration. In the event of any
Registration of Registrable Securities pursuant to Section 2.4, the Company will
exercise its best efforts to Register and qualify the securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions (not exceeding 20 unless otherwise agreed to by the Company) as
shall be reasonably appropriate for the distribution of such securities;
provided, however, that (i) the Company shall not be required to qualify to do
business or to file a general consent to service of
6
<PAGE>
process in any such states or jurisdictions, and (ii) notwithstanding anything
in this Agreement to the contrary, in the event any jurisdiction in which the
securities shall be qualified imposes a non-waivable requirement that expenses
incurred in connection with the qualification of the securities be borne by
selling stockholders, such expenses shall be payable pro rata by selling
stockholders.
3. Expenses of Registration. All Registration Expenses incurred in
connection with all Registrations shall be borne by the Company. Notwithstanding
the above, the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2 if the registration request
is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (which Holders shall bear such
expenses); provided further, however, that if at the time of such withdrawal,
the Holders have learned of a material adverse change in the condition,
business, properties, prospects or financial condition of the Company from that
known to the Holders at the time of their request, then the Holders shall not be
required to pay any of such expenses and shall retain their rights pursuant to
Section 2. All Selling Expenses shall be borne by the holders of the securities
registered pro rata on the basis of the number of shares registered.
4. Registration Procedures. The Company will keep each Holder whose
Registrable Securities are included in any Registration pursuant to this
Agreement advised as to the initiation and completion of such Registration. At
its expense the Company will: (a) use its best efforts to keep such Registration
effective for a period of 90 days or until the Holders have completed the
distribution described in the Registration Statement relating thereto, whichever
first occurs; and (b) furnish such number of prospectuses (including
preliminary, amended or supplemented prospectuses) and other documents as a
Holder from time to time may reasonably request. The Company shall file
post-effective amendments or supplements to such Registration Statement as may
be necessary to comply with applicable federal and state securities laws and
regulations, and shall deliver copies of the prospectus contained therein as
provided above.
5. Information Furnished by Holder. It shall be a condition precedent of
the Company's obligations under this Agreement to a particular Holder that such
Holder of Registrable Securities to be included in any Registration, furnish to
the Company such information regarding such Holder and the distribution proposed
by such Holder as the Company may reasonably request.
7
<PAGE>
6. Indemnification.
---------------
6.1. Company's Indemnification of Holders. To the extent permitted by
law, the Company will indemnify each Holder, each of their respective officers,
directors and constituent partners and each person controlling such Holder, with
respect to which Registration, qualification or compliance of Registrable
Securities has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter, against all claims,
losses, damages, liabilities (or actions in respect thereof) to the extent such
claims, losses, damages, liabilities or actions arise out of or are based upon
any untrue statement (or alleged untrue statement) of a material fact contained
in any prospectus, offering circular or other document issued by the Company
(including any related Registration Statement) incident to any such
Registration, qualification or compliance, or are based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such Registration, qualification or compliance.
The Company will also reimburse each such Holder, officer, director, constituent
partner, legal counsel and underwriter and each person who controls any such
Holder or underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained in this
Section 6 shall not apply to amounts paid in settlement of any such claim, loss,
damage, liability or action if settlement is effected without the consent of the
Company (which consent shall not unreasonably be withheld); and provided,
further, that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or action arises out of or is based upon
any untrue statement (or alleged untrue statement) or omission (or alleged
omission) of a material fact furnished in a writing to the Company by such
Holder, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such Registration Statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use in
connection with the offering of securities of the Company.
6.2. Holder's Indemnification of Company. To the extent permitted by
law, each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such Registration, qualification or
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the
8
<PAGE>
Company's securities covered by such a Registration Statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act, and each other such Holder, its officers, directors, constituent partners
and legal counsel and each person controlling such other Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any such Registration Statement, prospectus, offering
circular or other document issued by the Company, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by
such Holder of any rule or regulation promulgated under the Securities Act
applicable to such Holder and relating to action or inaction required of such
Holder in connection with any such Registration, qualification or compliance;
and each Holder will also reimburse the Company, such Holders, such directors,
officers, partners, persons, law and accounting firms, underwriters and control
persons for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such Registration Statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use in
connection with the offering of securities of the Company. The liability of the
Holder under this paragraph shall be limited to the aggregate proceeds received
by such Holder from the sale of Registrable Securities sold under the
Registration Statement.
6.3. Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim, and shall be entitled to select counsel for
the defense of such claim with the approval of the indemnified parties, which
approval shall not be unreasonably withheld; provided, however, that the
indemnified party may participate in such defense, and the indemnified parties
collectively shall be entitled to retain a separate counsel for purposes of such
action, at the indemnifying party's expense if a majority in interest of the
indemnified parties conclude in good faith that representation of such
indemnified parties by counsel selected by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnifying party and any or the indemnified parties. The failure to notify an
indemnifying party promptly of the commencement of any such action,
9
<PAGE>
if prejudicial to the ability of the indemnifying party to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 6, but the omission so to notify the indemnifying party will
not relieve such party of any liability that such party may have to any
indemnified party other than under this Section 6. No indemnifying party, in the
defense of any such claim or litigation shall consent to entry of any judgment
or enter into any settlement (i) which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the indemnified party of a
release from all liability in respect to such claim or litigation and (ii)
except with the consent of each indemnified party, which consent shall not be
unreasonably withheld.
6.4. Other Securities. It shall be a condition to the Company's
obligations under this Agreement to include Registrable Securities of a Holder
in any Registration pursuant to this Agreement that such Holder agree to
substantially the indemnification provisions set forth in this Section.
7. Transfer of Registration Rights. The rights to cause the Company to
register securities granted by the Company under this Agreement to the Holders
may be assigned by any Holder (a) to any Affiliate of such Holder (as defined in
Rule 405 under the Securities Act) or (b) to a transferee or assignee of any
Registrable Securities, not sold to the public, acquiring at least 20% of such
Holder's Registrable Securities; provided, however, that (i) the Company must be
given written notice of said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
Registration rights are being assigned, and (ii) the transferee or assignee of
such rights must not be a direct competitor of the Company.
8. Market Stand-off. Purchaser hereby agrees that, if so requested by the
Company and the Underwriter's Representative (if any), Purchaser shall not sell,
make any short sale of, grant any option for the purchase of, or otherwise
transfer, without the prior written consent of the Company or the Underwriter's
Representative, any securities of the Company (other than those included in the
Registration) during the 120-day period following the effective date of a
Registration Statement of the Company filed under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restriction.
9. [NOT USED]
10. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without Registration, the
Company agrees to:
10
<PAGE>
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934,
as amended;
(c) Furnish to the Holders of Registrable Securities forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144, and of the Securities Act and the
Securities Exchange Act of 1934, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as a
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any such securities without
Registration.
11. Severability. If any provision of this Agreement is held to be
unenforceable, it shall be adjusted rather than voided to achieve its intent to
the maximum extent possible, and the remaining provisions of this Agreement
shall be enforced to the maximum extent possible.
12. Notices. All notices, communications and deliveries under this
Agreement shall be made in writing signed by the party making the same, shall be
made either by personal delivery (including couriers such as Federal Express) or
by registered mail, postage prepaid, or facsimile transmission and shall be
deemed to give delivery on the date delivered if delivered in person or by
facsimile or on the seventh day after mailing if mailed, addressed as follows:
If to:
the Company: VIMRx Pharmaceuticals Inc.
2751 Centerville Road
Wilmington, DE 19808
Attn: President
Facsimile: (302) 998-3794
with a copy to:
Lowell S. Lifschultz, Esq.
Epstein Becker & Green
250 Park Avenue
New York, NY 10177
Facsimile: (212) 661-0989
11
<PAGE>
If to:
the Holder: Baxter Healthcare Corporation
1627 Lake Cook Road
Deerfield, IL 60015
Attn: Victor W. Schmitt
Facsimile: (847) 940-6271
with a copy to:
Christopher A. Lause
Seyfarth, Shaw, Fairweather & Geraldson
55 East Monroe Street
Chicago, IL 60603
Facsimile: (312) 269-8869
13. Assignment. Except as otherwise permitted by this Agreement, no
assignment or transfer, in whole or in part, by a Holder of his rights under
this Agreement shall be made except with the prior written consent of the
Company, which consent shall not be unreasonably withheld. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, heirs, descendants and permitted successors
and assigns.
14. Controlling Law; Integrations; Amendments; Waiver. This Agreement shall
be construed and enforced in accordance with the laws of the State of Delaware
applicable to agreements among Delaware residents made and to be performed
entirely within the State of Delaware. This Agreement supersedes all prior
negotiations, agreements, and understandings among the parties with respect to
the subject matter hereof, and constitutes the entire agreement among the
parties with respect such subject matter. This Agreement may not be
altered or amended except in writing signed by the Company and by the holders of
not less than 66-2/3% of the then outstanding Registrable Securities. The
failure of any party hereto at any time to require performance of any provision
of this Agreement shall in no manner be deemed a waiver of the right to require
performance of the same in the future.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same document. Facsimile transmission of a
signature shall be deemed an original for all purposes.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The Company: VIMRx Pharmaceuticals Inc.,
a Delaware corporation
By /s/ Richard L. Dunning
---------------------------------
Its President & CEO
-------------------------------
The Holder: Baxter Healthcare Corporation
By /s/ Victor W. Schmitt
---------------------------------
Its President, Venture Management
-------------------------------
<PAGE>
EXHIBIT 7.6
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made this 17th day of December 17,
1997 among Baxter Healthcare Corporation, a Delaware corporation ("Baxter"),
Lindsay A. Rosenwald, M.D., an individual ("Rosenwald"), Paramount Capital Asset
Management Inc., a Delaware corporation ("Paramount"), Donald Drapkin, an
individual ("Drapkin"), Richard L. Dunning, an individual ("Dunning"), Laurence
D. Fink, an individual ("Fink"), and Eric A. Rose, an individual ("Rose"), and
any other signatory set forth on the signature page hereto (collectively, the
"Stockholders").
WHEREAS, the Stockholders each hold shares of the common stock (the
"Stock") of VIMRx Pharmaceuticals Inc., a Delaware corporation (the "Company")
or options to acquire Stock; and
WHEREAS, as a condition to Baxter's agreement to sell its immunotherapy
business relating to certain ex vivo cell therapy to the Company (the "Sale"),
and as an inducement for Baxter to enter into the Asset Purchase Agreement,
dated as of October 10, 1997 (the "Asset Purchase Agreement") among the Company,
Baxter, and BIT Acquistion Corp., a Delaware corporation ("Newco"), the
Stockholders and Baxter have agreed to enter into this Agreement, to be
specifically enforceable against each of them, pursuant to which they agree to
vote their shares of the Stock in the manner and for the purpose specified
herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,,
the Stockholders and Baxter hereby agree as follows:
1. Voting Agreement. (a) Each of the Stockholders hereby agrees to vote all
of the Stock beneficially owned, directly or indirectly, by him or it (and all
Stock issued pursuant to the exercise of stock options) in favor of the Baxter
nominated director in connection with Baxter's right to nominate a director to
the VIMRx Board of Directors pursuant to Section 6.2(E) of the Asset Purchase
Agreement; provided, however, that nothing contained herein shall prevent any
Stockholder from transferring, selling or otherwise disposing of Stock held by
such Stockholder provided any such transferee agrees in a written instrument
satisfactory to Baxter to be bound by the terms hereof; and further provided,
that the obligations of such transferee shall be void as to any transferee
purchasing Stock pursuant to Rule 144 or a registered offering under the
Securities Act of 1933. It is expressly understood and agreed by each of the
Stockholders and Baxter that this Agreement is intended to, and does hereby,
create and constitute a voting agreement within the meaning of Section 218(c)
of the General Corporation Law of the State of Delaware, as
<PAGE>
amended, and not a voting trust agreement under Section 218(a) thereof.
(b) Baxter hereby agrees to vote all of the Stock beneficially owned,
directly or indirectly, by it in favor of the nominees for director recommended
by VIMRx's Nominating Committee (or by a majority of the Board of Directors if
there is no Nominating Committee); provided, that nothing contained herein shall
require Baxter to refrain from voting its Stock in favor of the Baxter nominated
director; and provided further, that nothing contained herein shall prevent
Baxter from transferring, selling or otherwise disposing of Stock held by Baxter
provided any such transferee agrees in a written instrument satisfactory to
VIMRx to be bound by the terms hereof; and further provided, that the
obligations of such transferee shall be void as to any transferee purchasing
Stock pursuant to Rule 144 or a registered offering under the Securities Act of
1933.
2. Irrevocable Proxy. (a) In order to secure each Stockholder's obligation
to vote his or its Stock and other voting securities of the Company in
accordance with the provisions of Section 1(a), each Stockholder (other than
Baxter) hereby appoints Baxter (the "Proxy") as its true and lawful proxy and
attorney-in-fact, with full power of substitution, to vote all of his or its
Stock and other voting securities of the Company as expressly provided for in
Section 1(a). The Proxy may exercise the irrevocable proxy granted to it
hereunder at any time any party fails to comply with the provisions of this
Agreement. The proxies and powers granted by each Stockholder pursuant to this
Section 2 are coupled with an interest and are given to secure the performance
of the Stockholder's obligations under this Agreement. Such proxies and powers
will be irrevocable with respect to the matters set forth in Section 1 for the
term set forth in Section 5, and, with respect to any individual, will survive
the death, incompetency and disability of such Stockholder.
(b) In order to secure Baxter's obligations to vote its Stock and
other voting securities of the Company in accordance with the provisions of
Section 1(b), Baxter hereby appoints the Chief Executive Officer of VIMRx (the
"Baxter Proxy") as its true and lawful proxy and attorney-in-fact, with full
power of substitution, to vote all of Baxter's Stock and other voting securities
of the Company as expressly provided for in Section 1(b). The Baxter Proxy may
exercise the irrevocable proxy granted to him hereunder at any time Baxter fails
to comply with the provisions of this Agreement. The proxy and powers granted by
Baxter pursuant to this Section 2 are coupled with an interest and is given to
secure the performance of Baxter's obligations under this Agreement. Such proxy
and powers will be irrevocable with respect to the matters set forth in Section
1 for the term set forth in Section 5.
2
<PAGE>
3. Representations of the Parties. Each party to this Agreement hereby
represents and warrants to each of the other parties that (a) he or it owns and
has the right to vote the number of shares of the Stock set forth opposite his
name on Exhibit A attached hereto, (b) he or it has full power to enter into
this Agreement, and (c) he or it is not a party to any proxy, voting trust or
other agreement which is inconsistent with or conflicts with the provisions of
this Agreement, and no party will grant any proxy or become party to any voting
trust or other agreement which is inconsistent with or conflicts with the
provisions of this Agreement. All representations and warranties contained
herein or made in writing by any party in connection herewith will survive the
execution and delivery of this Agreement, regardless of any investigation made
by any party.
4. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
5. Term. This Agreement shall remain in effect so long as Baxter shall
continue to own at least 3% of the shares of Stock of the Company, as adjusted
for any additional shares of Stock issued by the Company following the date of
this Agreement, and Baxter's obligations hereunder shall continue so long as
Baxter's representative (if Baxter shall have chosen to designate one) shall
retain a seat on the VIMRx Board of Directors.
6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
7. General Provisions.
(a) All of the covenants and agreements contained in this Agreement shall
be binding upon, and inure to the benefit of, the respective parties and their
successors, assigns, heirs, executors, administrators and other legal
representatives, as the case may be. Nothing contained herein shall prevent any
of the parties hereto from assigning their rights hereunder.
(b) This Agreement may be executed in two or more counterparts, each of
which will be deemed an original but all of which together shall constitute one
and the same instrument. The parties hereto agree that facsimile transmissions
of original signatures shall constitute and be accepted as original signatures.
(c) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent
3
<PAGE>
jurisdiction, such provision shall be deemed to have been severed from the
remainder of this Agreement and this Agreement shall continue in all respects to
be valid and enforceable.
(d) No waiver of any breach of this Agreement extended by any party hereto
to any other party shall be construed as a waiver of any rights or remedies of
any other party hereto or with respect to any subsequent breach.
(e) Whenever the context of this Agreement shall so require, the use of
the singular number shall include the plural and the use of any gender shall
include all genders.
4
<PAGE>
(f) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to principles of conflicts of
law; however, any action or proceeding relating to this Agreement shall be
brought only in and decided by the federal or state courts in Delaware, such
courts being a proper forum in which to adjudicate such action or proceeding,
and each party hereby waives any claim of inconvenient forum.
(g) The language used in this Agreement shall be deemed to be the language
chosen by the parties to express their mutual intent and no rule of strict
construction will be applied against any party.
IN WITNESS WHEREOF, Baxter and each of the Stockholders has executed this
Agreement as of the date first written above.
BAXTER HEALTHCARE CORPORATION
BY: /s/ Victor W. Schmitt
---------------------------------
Name: Victor W. Schmitt
-------------------------------
Its: President, Venture Management
--------------------------------
VIMRx PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning
---------------------------------
Name: Richard L. Dunning
-------------------------------
Its: President & CEO
--------------------------------
LINDSAY A. ROSENWALD, M.D.
/s/ Lindsay A. Rosenwald, M.D.
------------------------------------
PARAMOUNT CAPITAL ASSET MANAGEMENT INC.
By: /s/ Lindsay A. Rosenwald
---------------------------------
Name: Lindsay A. Rosenwald
-------------------------------
Its: President
--------------------------------
<PAGE>
DONALD DRAPKIN
/s/ Donald Drapkin
---------------------------------
RICHARD DUNNING
/s/ Richard Dunning
---------------------------------
LAURENCE D. FINK
/s/ Laurence D. Fink
---------------------------------
ERIC A. ROSE, M.D.
/s/ Eric A. Rose, M.D.
---------------------------------
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
NUMBER OF SHARES OF VIMRx
STOCK THAT STOCKHOLDER HAS
STOCKHOLDER RIGHT TO VOTE
- ----------- --------------------------
<S> <C>
BAXTER HEALTHCARE CORPORATION 11,000,000
LINDSAY A. ROSENWALD, M.D. 50,000
PARAMOUNT CAPITAL ASSET
MANAGEMENT INC. 3,666,666
DONALD DRAPKIN 150,000
RICHARD L. DUNNING 3,595
LAURENCE D. FINK 433,333
ERIC A. ROSE 328,400
</TABLE>
7
