IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
VINCENT INTRIERI, DANIEL
GROPPER, RALPH DELLACAMERA,
and BRIAN MILLER, 1
Plaintiffs,
V. C.A. No. r' 7
1 13
Avatex Corporation,
Defendant. . / ;5
VERIFIED COMPLAINT FOR THE DETERMINATIOhf:
OF THE DIRECTORS OF AVATEX CORPORATION
AND FOR EXAMINATION OF BOOKS AND RECORDS
Plaintiffs, by their attorneys, allege, upon knowledge as
to the plaintiffs' own actions and otherwise upon information and
belief, as follows:
SUMMARY OF THE ACTION
1. Plaintiffs bring this action, pursuant to 8 Del. C.
§ 225(a), to determine the directors of Avatex Corporation
("Avatex") , a Delaware corporation. Relatedly, plaintiffs also
bring this action, pursuant to 8 Del. C. S 220(d), to enforce their
right as directors of Avatex to examine the company's books and
records.
2. In particular, plaintiffs bring this action to
determine that Vincent Intrieri, Daniel Gropper, Ralph DellaCamera,
and Brian Miller have been duly elected as directors of Avatex. As
set out more fully below, the directors who Avatex refuses to
acknowledge were elected by the holders of two different series of
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Avatex preferred stock pursuant to and in accordance with the terms
and provisions of the designations creating the two series of
preferred stock.
3. The right of plaintiffs and the other holders of the
preferred stock to elect directors was triggered by the failure of
Avatex to pay dividends to the holders of the preferred stock for
six consecutive quarters. Notwithstanding the fact that the Certi-
ficate of Incorporation of Avatex (as amended by the certificates
of designation for each of the two series of preferred stock)
expressly empowers the holders of each series to elect two
directors in the event that Avatex fails to pay dividends on their
SNIPPETS:
IN AND FOR NEW CASTLE COUNTY
OF THE DIRECTORS OF AVATEX CORPORATION
AND FOR EXAMINATION OF BOOKS AND RECORDS
Plaintiffs, by their attorneys, allege, upon knowledge as to the plaintiffs' own actions and
pursuant to 8 Del.
In particular, plaintiffs bring this action to determine that Vincent Intrieri, Daniel
Avatex preferred stock pursuant to and in accordance with the terms and provisions of the
The right of plaintiffs and the other holders of the preferred stock to elect directors was
Notwithstanding the fact that the Certificate of Incorporation of Avatex expressly empowers
In particular, plaintiffs seek to examine books and records pertaining to, among other
Avatex has denied the requested examination, based on the assertion that plaintiffs are not
Defendant Avatex is a Delaware corporation having its principal place of business in Dallas,
Avatex currently has outstanding both common stock and
of the First Series Preferred Stock issued and outstanding, there are no shares of the Second
Section 2 of the First Series Designations granted preferential dividend treatment to the
the declaration and the payment of any dividends on, and the payment on
the First Series Designations specifically provides, in pertinent part, as follows: Whenever,
preferred stock ranking in parity with the First Series Preferred Stock either as to dividends or
the voting rights of the Second Series Preferred Stock are identical to those of the First
On November 4, 1993, Avatex filed with the Secretary of State of Delaware a Certificate of
The Avatex Board Is Expanded BY Four Members
On April 21, 1998, the record holders of a majority of the issued and outstanding shares of
Plaintiffs are entitled to a determination that Vincent Intrieri and Daniel Gropper have been
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