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EXHIBIT 10.7
COVENANT NOT TO SUE
In consideration of one dollar ($1.00), and other good and valuable
consideration, the sufficiency and receipt of which is acknowledged, CTRC
Research Foundation ("CTRC"), on the one hand, and Ilex Oncology, Inc.
("Ilex"), on the other hand, hereby agree on behalf of themselves, their
representatives, agents, assignees, parents, subsidiaries, affiliates
(including, in the case of CTRC, Xx. Xxxxxx X. Xxx Xxxx and Xx. Xxxxxxx X.
Xxxxxxx, Xx.), successors, executors, officers, directors, trustees and
employees (collectively, such person's "Affiliates") not to commence or
otherwise prosecute any legal action or proceeding of any nature whatsoever
against, in the case of CTRC, the current or future members (or their estates,
heirs or legal representatives) of the Board of Directors of Ilex, other than
members of the Ilex Board of Directors who also are employees or officers of or
consultants to Ilex (the "Ilex Directors"), or, in the case of Ilex, the
current or future members (or their estates, heirs or legal representatives) of
the Board of Trustees of CTRC (the "CTRC Directors"), for any claim that would
have been covered by any directors and officers liability insurance policies
maintained by CTRC or Ilex, as the case may be, but for any exclusion
thereunder of coverage for any claim brought by or made on behalf of or in the
name of CTRC or any CTRC Affiliate in the case of a claim relating to Ilex or
Ilex or any Ilex Affiliate in the case of a claim relating to CTRC. The
agreements set forth in the preceding sentence shall continue in full force and
effect until the earlier of (i) the first date on which CTRC or Ilex, as the
case may be, obtains directors and officers liability insurance not including
the aforementioned exclusion, (ii) the date on which Ilex consummates an
initial public offering of its equity securities or (iii) the third (3rd)
anniversary of the date hereof; provided that any such termination of this
agreement shall not apply to actions or proceedings arising from or based upon
facts, developments or activities arising or occurring prior to the termination
and with respect to any such actions or proceedings this agreement shall
continue in full force and effect after the termination.
CTRC and Xxxx further agree to defend, indemnify and hold harmless the
Ilex Directors or the CTRC Directors, as the case may be, for all damages,
costs and expenses, including legal fees and costs of suit, for any breach of
this agreement by CTRC or Ilex, as the case may be, or by any employee, agent,
representative, executor, director or officer of such party or its assignees.
Each of the undersigned represents and warrants that it is not aware
of any accrued or unaccrued claim which exists against the Ilex Directors or
the CTRC Directors, as the case may be, by the undersigned. Each of the
undersigned further represents and warrants that it has not assigned any claim
against the Ilex Directors or the CTRC Directors, as the case may be, and
covenants and agrees that it will not assign any such claim before the
termination of this agreement.
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This agreement is executed and delivered by the parties hereto as of
the 26th day of September, 1995.
CTRC RESEARCH FOUNDATION
/s/ XXXXX XXXXXX
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Name:
Chief Operating Officer
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Title:
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ILEX ONCOLOGY, INC.
/s/ XXXXXXX XXXX
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Name:
President and CEO
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Title:
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Acknowledged and agreed to as of
the date set forth above:
/s/ XX. XXXXXX X. XXX XXXX
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Xx. Xxxxxx X. Xxx Xxxx
/s/ XX. XXXXXXX X. XXXXXXX
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Xx. Xxxxxxx X. Xxxxxxx
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