SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO 13d-2(A)
(Amendment No. 3a)
JW CHARLES FINANCIAL SERVICES, INC.
(Name of Issuer)
COMMON STOCK $.001 PAR VALUE
(Title of Class of Securities)
220022-10-7
--------------
(CUSIP Number)
MARSHALL T. LEEDS
C/O JW CHARLES FINANCIAL SERVICES, INC.
980 NORTH FEDERAL HIGHWAY
SUITE 310
BOCA RATON, FL 33432
800-226-2660
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 26, 1998
-------------------------------------------------------
(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(b)(3) or (4), check the following box. / /
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Registration Rights Agreement, dated January
21, 1998 between Avatex Corporation, Marshall
T. Leeds and JW Charles Financial Services, Inc.
Exhibit 2. Stock Sale Agreement by and Between Marshall T.
Leeds and Avatex Corporation, dated January 21,
1998.
<PAGE>
Exhibit 1
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 JW Charles Financial Services,
Inc. (the "Company") from Marshall T. Leeds, 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 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.
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.
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 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.
(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.
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 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 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.
(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:
JW Charles Financial Services, Inc.
980 North Federal Highway
Suite 210
Boca Raton, Florida 33432
Attention: President
Facsimile No.: 561-338-2827
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.
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,
JW CHARLES FINANCIAL SERVICES, INC.
By: __________________________________
Joel E. Marks
Vice Chairman and Chief Financial Officer
AGREED TO AND ACCEPTED
as of the date first above-written:
_____________________________________
MARSHALL T. LEEDS
AVATEX CORPORATION
By:__________________________________
<PAGE>
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.
<PAGE>
Exhibit 2
STOCK SALE AGREEMENT
January 21, 1998
Avatex Corporation
5910 North Central Expressway
Suite 1780
Dallas, Texas 75206
Gentlemen:
Marshall T. Leeds (sometimes referred to as "SELLER") hereby
confirms his agreement with you (sometimes referred to as "PURCHASER") as
follows:
1. PURCHASE AND SALE OF STOCK
1.1 FINANCIAL TERMS. On the Closing Date (as defined below),
Seller agrees to sell to you, and you agree to acquire from Seller,
300,000 shares of common stock of JW Charles Financial Services, Inc.
(the "COMPANY"), $.001 par value (the "PURCHASED SHARES"), at a purchase
price of $11.50 per share, for a total purchase price of $3,450,000.
1.2 CLOSING. The Purchased Shares will be delivered to you
via, and at the offices of, your legal counsel, Weil, Gotshal & Manges
LLP, 767 Fifth Avenue, New York, New York 10153, against delivery of the
purchase price therefor (which shall be made by wire transfer to the
escrow account of legal counsel to Seller, Kilpatrick Stockton LLP,
Atlanta, Georgia, account number 12-659-310, at Wachovia Bank of Georgia,
Atlanta, Georgia, ABA Routing Number: 061000010), by 2:00 P.M., Eastern
Time, on January 22, 1998, or such other date or time as shall be
mutually agreed upon by Seller and you (the "CLOSING DATE").
2. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS OF SELLER. Seller represents and warrants
that (a) Seller has good, valid, and marketable title to the Purchased
Shares, free and clear of liens, claims, restrictions, or encumbrances of
any kind, (b) upon conveyance and delivery of the Purchased Shares and
payment therefor by Purchaser, Purchaser shall be the owner of such
Purchased Shares free and clear of liens, claims, restrictions, or
encumbrances attributable to any action by Seller or the Company, and (c)
the documents filed by the Company with the Securities and Exchange
Commission from January 1, 1996 to date pursuant to the requirements of
the Securities Exchange Act of 1934, as amended, did not contain when
filed an untrue statement of material fact or, other than disclosure of
the proposed acquisition by the Company of Genesis Merchant Group
<PAGE>
Securities LLC ("GMG") described below, omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
2.2 DISCLOSURE OF GMG TRANSACTION. Set forth as Exhibit A
hereto is the substantially final form of an Agreement and Plan of
Combination (the "COMBINATION AGREEMENT") that contains the material
terms of a proposed business combination transaction with GMG (the
"COMBINATION TRANSACTION"), pursuant to which the Company and GMG will be
combined into a new entity ("NEWCO") and the outstanding common stock of
the Company, including the Purchased Shares, and at least 90% of the
outstanding equity interests of GMG, will be exchanged for common stock
of Newco. Seller gives no assurance that the proposed Combination
described in the Combination Agreement, or that any of the expected
benefits of the Combination Transaction will be achieved. Purchaser
hereby acknowledges that it has reviewed the Combination Agreement, that
the information described in the Combination Agreement is not public
information, that it will maintain the confidentiality of such
information in accordance with Section 3.1 hereof, and that it has
sufficient information about the proposed Combination Transaction (and
has reviewed sufficient publicly available information about the Company)
to make an informed and knowledgeable decision to acquire the Purchased
Shares. Purchaser also acknowledges that it has been afforded an
opportunity to ask questions of and to obtain additional information from
Seller prior to making its investment decision.
2.3 REPRESENTATIONS OF PURCHASER. You represent, and in
entering into this Agreement Seller understands, that (i) you are an
"accredited investor" as defined in Rule 501(a) of the General Rules and
Regulations under the Securities Act of 1933, as amended (the "SECURITIES
ACT") and (ii) you will not offer or sell any of the Purchased Shares
except pursuant to an effective registration statement under the
Securities Act or in transactions that do not require registration under
the Securities Act. You further represent that you are acquiring the
Purchased Shares for your own account and with your general assets for
the purpose of investment and not with a view to the resale or
distribution thereof, and that you have no present intention of selling,
negotiating, or otherwise disposing of any Purchased Shares, except in
accordance with applicable provisions of the Securities Act and other
securities laws or regulations.
3. COVENANTS
3.1 CONFIDENTIALITY. You understand and agree that the
information set forth on Exhibit A hereto and all other information
conveyed to you concerning the Combination Transaction is confidential
and has not been publicly disclosed by the parties thereto, and that such
confidential information has been disclosed to you solely in connection
with your proposed purchase of the Purchased Shares. You agree to
maintain the confidential nature of such information, and refrain from
engaging in any public market transaction involving the Common Stock of
the Company, unless and until the material terms of such proposed
Combination Transaction become publicly known or you have been notified
2<PAGE>
by Seller or the Company that the proposed Combination Transaction has
been abandoned. Seller agrees to notify you promptly at such time that
the Company has publicly disclosed any such information or has abandoned
the Combination Transaction.
3.2 REGISTRATION OF PURCHASED SHARES. Seller agrees to cause
the Company to execute and deliver to you a registration rights agreement
in the form attached as Exhibit B.
Purchaser understands and agrees that the securities purchased
hereunder are restricted securities within the meaning of Rule 144 under
the Securities Act; that such securities are not registered and must be
held unless they are subsequently registered for resale or an exemption
from such registration is available. Furthermore, Purchaser understands
that each certificate representing the Purchased Shares shall be endorsed
with the following restrictive legend, or close facsimile thereof:
"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."
On the front of each certificate, there may be placed the following
notation:
"RESTRICTIONS ON TRANSFER STATED ON REVERSE SIDE"
5. INDEMNIFICATION
Purchaser, on the one hand, and Seller, on the other hand, each
hereby agrees to indemnify the other and hold the other harmless from and
against any liability, obligation, claim, loss, cost, damage, and expense
(including reasonable attorneys' fees and expenses incurred in
prosecuting or defending any claim for any such liability, loss, or
damage) arising out of or resulting from the untruth or inaccuracy of any
covenant, representation, or warranty of the indemnifying party contained
in this Agreement. The indemnities contained herein shall expire two (2)
years from the Closing Date, unless prior to such date the indemnified
party shall inform the indemnifying party of a claim hereunder, and
except that indemnity shall be available indefinitely with respect to any
<PAGE>
liability, obligation, claim, loss, cost, damage, or expense arising out
of or as a result of any statement of Seller in clause (a) or (b) of
Section 2.
6. MISCELLANEOUS
6.1 FURTHER ASSURANCES TO PURCHASER. If, at any time after
the Closing Date, Purchaser acting reasonably shall consider or be
advised that any further assignments, assurances, or other acts are
necessary, desirable, or proper to (a) vest, perfect, or confirm in
Purchaser's name (or the name of any lawful transferee of Purchaser)
title in, interest to, or rights of any of the Purchased Shares, (b)
ensure proper and complete compliance with Federal, state, and local
administrative or regulatory laws, or (c) otherwise carry out the
purposes of this Agreement, Seller agrees to execute and deliver all such
assignments and assurances and do all acts reasonably necessary or proper
to accomplish the same.
6.2 LEGALITY OF SALE. The purchase and sale of the Purchased
Shares is subject to the legality of the offer and sale of the Purchased
Shares in the state of domicile of Purchaser. This Agreement does not
constitute an offer to sell, or a solicitation of an offer to buy, the
Purchased Shares in any jurisdiction where it is unlawful to make such
offer or solicitation.
6.3 PURCHASER NOT LIABLE FOR BROKERAGE COMMISSION. Purchaser
shall have no liability or obligation arising as a result of any
agreement or arrangement of Seller or the Company for any broker's
commission, finder's fee, or similar payment in connection with the
transaction contemplated by this Agreement, and Seller agrees to
indemnify and hold Purchaser harmless from and against any such payment.
6.4 ENTIRE AGREEMENT. This Agreement, together with the
Exhibits referred to herein, contains the entire agreement and
understanding of the parties with respect to the subject matter hereof,
and no representations, promises, agreements, or understandings regarding
the subject matter hereof shall be of any force or effect unless in
writing, executed by the party to be bound, and dated subsequent to the
date hereof.
6.5 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of New York.
6.6 EXPENSES. Seller and Purchaser will each pay all the
costs and expense of their respective performance, preparation, and
execution of, and compliance with, this Agreement, including, without
limitation, all fees and expense of their respective agents,
representatives, counsel, and accountants, except as may otherwise be
provided in the registration rights agreement attached as Exhibit B.
6.7 SEVERABILITY. If any provision of this Agreement shall be
held invalid or unenforceable, the remainder nevertheless shall remain in
full force and effect. If any provision is held invalid or unenforceable
with respect to particular circumstances, it nevertheless shall remain in
full force and effect in all other circumstances.
4<PAGE>
6.8. BENEFIT OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of Purchaser, Seller, and their respective
successors and assigns.
6.9 MODIFICATIONS AND WAIVERS. No change, modification, or
waiver of any provision of this Agreement shall be valid or binding
unless it is in a writing dated subsequent to the date hereof and signed
by the party intended to be bound. No waiver of any breach, term, or
condition of this Agreement by either party shall constitute a subsequent
waiver of the same or any other breach, term, or condition.
The execution hereof by you shall constitute a binding contract
between us, under seal, for the uses and purposes set forth above.
Very truly yours,
Marshall T. Leeds
AGREED AND ACCEPTED
as of the date first above-written:
AVATEX CORPORATION
By: /s/ A. Butler
5
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
Statement is true, complete and correct.
/s/ Marshall T. Leeds
Marshall T. Leeds
Chairman/CEO
Date: February 6, 1998
----------------------
