EXHIBIT 10.17
AGREEMENT
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THIS AGREEMENT made and entered into as of the 14th day of May, 1996, by
and between MGI PHARMA, INC., a Minnesota corporation (the "Company"), and
Xxxxxxx X. Xxxxxxx, an individual resident of Potomac, Maryland ("Blitzer").
WHEREAS, in connection with Blitzer's acceptance of employment with the
Company, the Company wishes to sell Blitzer shares of the Company's common stock
so that Blitzer will have a vested interest in the successful and profitable
operation of the Company; and
WHEREAS, Blitzer desires to purchase shares of the Company's common stock
on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and of the respective
undertakings of the parties set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and Blitzer agree as follows:
1. Stock Subscription. Blitzer agrees to purchase from the Company, and the
Company hereby agrees to sell to Blitzer, in accordance with the terms of this
Agreement, that number of whole shares of Common Stock (the "Shares") having an
aggregate fair market value of Fifty-seven Thousand Dollars ($57,000.00). The
fair market value of each of the Shares to be purchased by Blitzer shall be the
closing price of one share of the Company's common stock on the Nasdaq New
Market System on the date of purchase.
2. Manner of Payment. The purchase price will be payable to the Company
contemporaneously with the execution of this agreement by delivery to the
Company of Blitzer's promissory note (the "Promissory Note"), which Promissory
Note shall be in the form of the attached Exhibit A.
3. Delivery of the Shares. Upon receipt from Blitzer of the Promissory
Note, the Company shall issue and deliver to Blitzer duly authorized and
executed stock certificates representing the Shares.
4. Investment Representation. Blitzer hereby represents and agrees that the
Shares are being acquired for investment purposes and not with the view toward
the distribution or sale thereof in a public offering within the meaning of the
federal Securities Act of 1933, as amended (the "Securities Act"). Blitzer
acknowledges that such shares will be restricted stock within the meaning of the
Securities Act, that they will not be registered under either the federal or
applicable state securities law, and that the Company will be relying upon the
foregoing investment representation in issuing such shares to Blitzer. Blitzer
acknowledges that the transferability of such shares will be subject to
restrictions imposed by all
applicable federal and state security laws and agrees that the certificates
evidencing such shares may be imprinted with an appropriate legend setting forth
these restrictions on transferability.
5. Registration Right. Upon written request by Blitzer, the Company
shall prepare and file a registration statement on Form S-3 (the "Registration
Statement") under the Securities Act covering the sale of the Shares by Blitzer
and shall use reasonable best efforts to cause such Registration Statement to
become and remain effective for a period of [6] months after the effective date
of the Registration Statement (the "Effective Period"), or such shorter period
that shall terminate (i) when all the Shares covered by the Registration
Statement have been sold or (ii) at any time when Blitzer is entitled to sell
all the Shares without registration under the Securities Act pursuant to Rule
144 (or any similar rule or regulation). Blitzer agrees, however, that if
requested by the Company, he will not effect any sale of Shares pursuant to the
Registration Statement for a period of not more than [90] days during the
Effective Period if deemed necessary (i) by the Company or any underwriter in
connection with the offering of shares of Company common stock, or (ii) by the
Company if the Company is in possession of material information that has not
been disclosed to the public and the Company reasonably deems disclosure of such
information in a registration statement to be inadvisable. The Company shall
bear all costs and fees associated with the registration including, without
limitation, the following fees, costs and expenses: all registration, filing and
Nasdaq fees, printing expenses, fees and disbursements of the Company's counsel
and accountants, all internal Company expenses, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of counsel and accountants for
Blitzer, underwriting discounts and commissions and transfer taxes for Blitzer
shall be borne by Blitzer.
6. Miscellaneous. This Agreement shall be binding upon, shall inure to the
benefit of and be enforceable against the Company and Blitzer and their
respective heirs, successors and assigns. This Agreement shall in all respects
be governed, enforced and interpreted in accordance with the laws of the state
of Minnesota.
IN WITNESS WHEREOF, the Company and Blitzer have executed this agreement as of
the date set forth in the first paragraph.
MGI PHARMA, INC. /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
By /s/ Xxxx-xxxx Xxxxx
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Its V.P., General Counsel
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