1
CONFIDENTIAL TREATMENT
EXHIBIT 10.17(a)
AGREEMENT OF LIMITED PARTNERSHIP
OF
L & I PARTNERS, L.P.
This Agreement of Limited Partnership of L & I Partners, L.P. dated May 2,
1997, is entered into by and among L & I, L.L.C., a Delaware limited liability
company, as the General Partner, and the persons who have executed and delivered
this Agreement and whose names appear on Schedule A hereto (as said Schedule A
hereto may be amended from time to time as hereinafter provided), as the Limited
Partners.
In consideration of the mutual covenants, conditions and agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
terms shall have the following meanings:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as it
may be amended from time to time, and any successor to said Act.
"Affiliate" means, when used with respect to a specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the specified Person, provided that the Partnership
shall not be deemed to be an Affiliate of any Partner. For purposes of this
definition "control", when used with respect to any specified Person, means the
power to direct the management and policies of the Person, directly or
indirectly, whether through -the ownership of voting securities, by contract, by
family relationship or otherwise; and the terms "controlling" and "controlled"
have the meanings correlative to the foregoing.
"Agreement" means this Agreement of Limited Partnership of L & I Partners,
L.P., as the same may be amended, modified or restated from time to time.
"Capital Contributions" means the amount of cash or the fair market value,
as determined in the sole judgment of the General Partner, of other property
contributed to the Partnership.
2
-2-
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean the commitment by a Partner to make Capital
Contributions as determined under Article 4 hereof and set forth in Schedule A
hereto.
"Contribution Per Unit" shall mean, with respect to a Partner as of the
date of determination, the aggregate amount of all Capital Contributions made by
such Partner as of such date divided by the number of Units owned by such
Partner as of such date.
"Covered Person" means any Partner, an Affiliate of a Partner or any
officer, manager, director, shareholder, partner or member of the Partnership or
of a Partner or their respective Affiliates.
"Distributable Cash" shall mean, at the time of determination, all
Partnership cash derived from the conduct of the Partnership's business, other
than (i) Capital Contributions, together with interest earned thereon pending
utilization thereof, (ii) financing proceeds and (iii) reserves for working
capital and other amounts that the General Partner reasonably determines to be
necessary for the proper operation of the Partnership's business and its winding
up and liquidation.
"General Partner" means L & I, L.L.C., a Delaware limited liability
company, or any other Person who, at the time of reference, serves as the
general partner of the Partnership, and who owns the number of Units set forth
on Schedule A hereto.
"Gross Asset Value" means, as of any date of determination, the fair
market value of all property of the Partnership as of the date on which the
determination thereof is to be made. The fair market value of the property of
the Partnership shall be determined by the General Partner. At the General
Partner's election, or if no determination is made by the General Partner within
15 days after a request therefor is made, the fair market value of the property
of the Partnership shall be determined by an independent appraiser selected by
the General Partner. An appointed appraiser may employ persons and incur
expenses as are necessary to make the determination. In all determinations of
fair market value, no value shall be placed on the goodwill or name of the
Partnership. Determinations of fair market value made in accordance with the
foregoing shall be final and not subject to challenge by any Partner.
"ILEX" means ILEX Oncology, Inc., a Delaware corporation.
3
-3-
"License Agreement" shall mean the License Agreement dated May 2, 1997
between the Partnership and LKS.
"Limited Partners" means each Person who is a limited partner (which shall
include each Limited Partner executing this Agreement on the date hereof, each
additional Limited Partner and each substituted Limited Partner) at the time of
reference thereto, and who owns the number of Units set forth on Schedule A
hereto.
"LKS" means LeukoSite, Inc., a Delaware corporation.
"Ownership Restriction Agreement" means the Ownership Restriction
Agreement dated May 2, 1997, among the Partnership, the General Partner, the
members of the General Partner and the Limited Partners.
"Partners" means, collectively, the General Partner and the Limited
Partners, and "Partner" means any one of them.
"Partnership" means L & I Partners, L.P., the limited partnership entered
into and formed hereunder pursuant to the Act.
"Person" shall mean an individual, corporation, association, limited
liability company, limited liability partnership, partnership, estate, trust,
unincorporated organization or a government or any agency or political
subdivision thereof.
"Pre-Development Budget" shall mean the budget set forth as Exhibit A
hereto, as amended in accordance with Section 18.6.
"Prime Rate" shall mean the variable rate per annum equal to the rate of
interest published in the Wall Street Journal (Southwest Edition) in the "Money
Rates" section as the "Prime Rate", adjusted as of the first business day of
each month.
"Securities Act" shall mean the Securities Act of 1933, as it may be
amended from time to time, and any successor to said Act.
"Unit Percentage" means, as to any Partner, the fraction, expressed as a
percentage, having as its numerator the number of Units owned by such Partner
and having as its dominator the total number of Units of all Partners.
"Units" means the issued and outstanding ownership interests of the
Partnership held by the Partners as set forth on Schedule A hereto (as amended
in accordance with this Agreement by the General Partner) and
4
-4-
the rights and obligations associated with ownership interests of the Partners
in the Partnership at the relevant time, including the consent, approval and
management rights of the Partners and any and all other benefits to which the
Partners may be entitled as provided in this Agreement, together with the
obligations of the Partners to comply with all the terms and provisions of this
Agreement. "Unit" means any one of the Units.
ARTICLE 2
FORMATION OF PARTNERSHIP
2.1 Formation. The Partners hereby enter into and form the Partnership as
a limited partnership pursuant to the provisions of the Act.
2.2 Name. The name of the Partnership shall be "L & I Partners, L.P."
2.3 Certificate. The General Partner shall cause a certificate of limited
partnership meeting the requirements of the Act, and any amendments thereto
which are required under the Act, to be filed, when and as required.
2.4 Principal Place of Business. The principal place of business of the
Partnership shall be 00000 XX 00 Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, or
such other place as the General Partner may determine.
2.5 Registered Office, Registered Agent. In Delaware, the Partnership
shall maintain a registered office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, and the name of the Partnership's registered agent at that address shall
be CT Corporation System. In Texas, the Partnership shall maintain a registered
office at 00000 XX 00 Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, and the name of
the Partnership's registered agent at that address shall be Xxxxx X. Xxxx. ILEX
shall cause Xx. Xxxx to forward to each of the Partners a copy of any
correspondence received by him in his capacity as the Partnership's registered
agent in Texas.
2.6 Term. The term of the Partnership shall commence on the date hereof
and shall continue for a period of 20 years, unless the Partnership is continued
or sooner dissolved pursuant to the provisions of this Agreement.
ARTICLE 3
PURPOSE: OPPORTUNITIES
5
-5-
3.1 Purpose. The purpose and nature of the business to be conducted by the
Partnership shall be limited to (a) the commercialization of the Products (as
defined in the License Agreement) under the License Agreement and (b) enter
into, make and perform all such agreements and undertakings, and to engage in
all such activities and transactions, as the General Partner may deem necessary
or advisable for or incidental to the carrying out of the foregoing.
3.2 Outside Activities. This Agreement shall not preclude or limit, in any
respect, the right of the General Partner, any other Partner or any of their
Affiliates to engage or invest in any business activity of any nature or
description, including those which may be the same as or similar to the
Partnership's business. Any such activity may be engaged in independently or
with others without any obligation whatsoever to offer same to any other
Partner. Neither the Partnership, any Partner nor any of their Affiliates shall
have any right, by virtue of this Agreement or the partnership relationship
created hereby, in or to such other investments or activities, or to the income
or proceeds derived therefrom.
ARTICLE 4
CAPITAL CONTRIBUTIONS; PARTNERS
4.1 Pre-Development Contributions. During the period commencing on the
date hereof and ending three months thereafter (the "Pre-Development Period"),
the Partners hereby commit to make Capital Contributions to fund the
Partnership's payment of third party costs and expenses set forth in the
Pre-Development Budget; provided, however, that overhead and other costs
expressly designated in the Pre-Development Budget as the separate costs of a
Partner shall be borne solely by such Partner and shall not be treated as a
Capital Contribution hereunder.
4.2 Initial Capital Commitments. Upon the expiration of the
Pre-Development Period, the Partners commit to make an aggregate of $2,000,000
in Capital Contributions (the "Initial Commitments") in accordance with their
respective Unit Percentages. Such contributions shall be used to fund the
operations of the Partnership.
4.3 Additional Capital Commitments. When the Initial Commitments have been
funded by the Partners and the Partnership has a Capital Need (as defined
below), there shall be successive additional rounds of commitments for Capital
Contributions offered by the Partnership to the Partners ("Offered Commitments"
and together with Initial Commitments, collectively the "Commitments");
provided, however,
6
-6-
the aggregate Capital Contributions made by all Partners under all Commitments
shall not exceed $10,000,000 without the prior express written consent of all
Partners. Each such round shall be in increments of $2,000,000 in aggregate
Offered Commitments and shall be offered as soon as practical upon a Capital
Need. As used herein, a "Capital Need" shall be deemed to exist when (a) all
then outstanding Commitments of the Partners have been fully funded and (b) the
Partnership then needs additional funds (or reasonably anticipates the need for
additional funds within 60 days) for its operations or to maintain reasonable
reserves for such operations. Upon the occurrence of a Capital Need, an offering
of a round of Offered Commitments may be commenced by any Partner upon such
Partner giving written notice thereof to the other Partners and, once commenced,
such offering shall continue for a period of 30 days thereafter (the "Offer
Period"). With regard to each round of Offered Commitments, the General Partner
must accept Offered Commitments in an amount equal to 1% of all Offered
Commitments accepted by the Limited Partners and each Limited Partner shall have
the right (but no obligation) to accept Offered Commitments in an amount equal
to but not less than 49.5% of the Offered Commitments (which percentage may not
correspond to then existing Unit Percentages, as adjusted). Each Limited Partner
that desires (or is obligated) to accept Offered Commitments must give written
notice of its acceptance to each other Partner and to the Partnership during the
Offer Period. Unless a Limited Partner accepts Offered Commitments during the
Offer Period in accordance with the foregoing, such Limited Partner shall be
deemed to have rejected such Offered Commitments. If a Limited Partner rejects
(or is deemed to have rejected) the Offered Commitments, the other Limited
Partner may elect to accept all (but not less than all) of such rejected Offered
Commitments by giving written notice thereof to the Other Partners on or before
the expiration of 15 days after the end of the Offer Period.
4.4 Funding of Commitments. All Commitments made by the Partners pursuant
to the provisions of this Article 4 shall be funded upon request by the General
Partner (or its managers or officers) as necessary to fund the Partnership's
operations and to maintain reasonable reserves for such operations. Each request
for funding shall be given by the General Partner (or its managers or officers)
to all other Partners at least five business days prior to the funding date.
Each request for funding shall include the statement as to the intended use of
the proceeds of such funding.
4.5 Binding Commitments, Default. All Commitments made by the Partners
pursuant to the provisions of this Article 4 shall be irrevocable, binding
commitments which shall be enforceable by the Partnership
7
-7-
against the Partners making such Commitments. If a Partner does not fund a
Commitment made by it in accordance with the foregoing provisions, the other
Partners may (without any obligation) fund the unfunded portion of such
Commitment. Any such funding shall be in addition to, and not in lieu of, all
rights and remedies that the Partnership and the other Partners may be entitled
to against the defaulting Partner pursuant to this Agreement, at law or in
equity.
4.6 Adjustments to Units. As of any date (an "Adjustment Date") on which,
in accordance with the foregoing, Capital Contributions are made by the Partners
other than in accordance with their Unit Percentages, the Units of all Partners
shall automatically (and without any further action by the Partners) be adjusted
so that the number of Units held by each Partner shall be equal to 100
multiplied by a fraction, the numerator of which shall be the aggregate amount
of Capital Contributions made by such Partner as of the Adjustment Date, and the
denominator of which shall be the aggregate amount of Capital Contributions made
by all Partners as of the Adjustment Date; it being understood that the total
number of Units held by all Partners shall always equal 100. As of the date of
each Adjustment Date, the Unit Percentage of each Partner shall also be adjusted
based upon the adjusted number of Units held by each Partner. Promptly after
each Adjustment Date, the General Partner shall amend Schedule A hereto to
reflect the automatic adjustment of the number of Units and Unit Percentages as
of each Adjustment Date (such adjustment shall nevertheless be effective as of
the Adjustment Date regardless when Schedule A hereto is amended).
4.7 Schedule of Partners, Commitments-, Contributions, Unit Ownership. The
name, address, Commitments, Capital Contributions and Unit ownership of each
Partner are set forth on Schedule A attached hereto. Schedule A hereto shall be
amended by the General Partner to reflect the admission of additional or
substituted Limited Partners and to reflect adjustments to Units, Unit
Percentages, Commitments and Capital Contributions in accordance with the
provisions of this Agreement. The General Partner shall amend Schedule A hereto
pursuant to the power of attorney granted under Article 13 hereof to reflect any
such adjustments. The Units owned by Partners hereunder shall not be represented
by certificates.
4.8 No Third Party Beneficiaries. In no event shall a third party,
including without limitation a creditor of the Partnership, be entitled to in
any way rely upon or enforce the obligation of Partners to make future Capital
Contributions.
8
-8-
4.9 Loans and Withdrawal of Capital Contributions. No Partner shall
be permitted to borrow, or to make an early withdrawal of, any portion of the
capital contributed by such Partner.
4.10 Limited Liability of Limited Partners. No Limited Partner shall
be bound by or personally liable for the expenses, liabilities or obligations
of the Partnership.
4.11 Limited Catch-Up Option. In the event that the Unit Percentages of
the Limited Partners are adjusted pursuant to Section 4.6 as a result of one
Limited Partner (the "Contributing Partner") making more Capital Contributions,
in aggregate, than the other Limited Partner (the "Non-Contributing Partner"),
the Non-Contributing Partner shall have a limited, one-time option (the
"Option") to purchase a portion of the Contributing Partner's Units as provided
in this Section. The Option shall be exercisable by the Non-Contributing Partner
one time (but not more than one time) at any time prior to (but not after) the
fifth (5th) anniversary of the initial effective date of this Agreement (the
"Outside Date"). The Option may be exercised by the Non-Contributing Partner
giving written notice of exercise to the Contributing Partner prior to the
Outside Date. The purchase price of the Units purchasable pursuant to the Option
shall be equal to the sum of (i) the Contributing Partner's Contribution Per
Unit as of the date of exercise of the Option multiplied by the number of Units
being purchased plus (ii) Applicable Interest. The maximum number of Units
purchasable under the Option shall be equal to one-half of the amount by which
the number of Units owned by the Contributing Partner exceeds the number of
Units owned by the Non-Contributing Partner; provided, however, in no event
shall the number of Units purchasable under the Option exceed the number of
Units which, if multiplied by the Contributing Partner's Contribution Per Unit,
would equal $1,250,000.
As used herein, "Applicable Interest" shall mean interest, at the
following per annum. rates compounded annually, applied to the amount of the
short-fall in Capital Contributions being made up by the Non-Contributing
Partner pursuant to the exercise of the Option on a first-in-first-out basis:
the lesser of (i) the maximum lawful (nonusurious) rate and (ii) Prime Rate plus
1% for 0-6 months, Prime Rate plus 2% for 6-12 months, Prime Rate plus 3% for
12-18 months, Prime Rate plus 6% if more than 18 months.
Due the complexity of the foregoing, the following example is included:
Partner A has contributed $1.0 million in month one, $1.25 million in month 12
and $1.75 million in month 24; and Partner B has
9
-9-
contributed $1.0 million in month one and $1.0 million in month 12 and $-0- in
month 24. If the Option is exercised for 1/3 of the amount by which the number
of Units owned by the Contributing Partner exceeds the number of Units owned by
the Non-Contributing Partner in month 34, the exercise price would be calculated
as follows:
Total Capital Contributions: $4.0 million for Partner A; $2.0 million for
Partner B
Total Units/Unit Percentages: 66.667 Units/66.667% for Partner A; 33.333
Units/33.333% for Partner B
Contribution Per Unit: $59,999.70 for Partner A; $60,000.60 for
Partner B
Option Price: (1/3 X 33.333 Units) x $59,999.70 = $666,656.67
Plus
Applicable Interest (compounded annually) on
$666,656.67: [(Prime Rate + 6%) on $250,000 for
22 months] + [(Prime Rate + 2%) on $416,656.67
for 10 months]
If the Option is exercised, the closing of the transaction shall occur 15
days thereafter at the principal offices of the General Partner. At closing, the
purchasing Partner shall pay, in cash, to the selling Partner the applicable
purchase price for the Units being purchased, and the selling Partner shall
assign the Units being purchased to the purchasing Partner free and clear of all
liens and encumbrances other than those under this Agreement and the Ownership
Restriction Agreement.
If the Contributing Partner will incur a taxable gain (excluding any
income associated with the interest portion of the purchase price under clause
(ii) above) as a result of the sale of Units pursuant to the Option, the amount
of the purchase price payable at closing by the Non-Contributing Partner shall
be increased by an amount, if any, equal to (i) the then highest federal
marginal corporate income tax rate applied to the amount of such gain less (ii)
any savings or reduction of federal income tax resulting from any deduction or
credit which (x) is allowed for federal income tax purposes and (y) decreased
the federal income tax basis of the Units sold. The parties will reasonably
cooperate with each other in determining the amount, if any, of any such gain,
including any such
10
-10-
determination that may be requested by the Non-Contributing Partner in
anticipation of the possible exercise of the Option.
If the parties determine that the Contributing Partner would incur such a
taxable gain if the Option is exercised, then, upon the request of the
Non-Contributing Partner, the parties will reasonably cooperate with each other
to explore other means to achieve the same limited right to "catch up" on
previously unfunded Capital Contributions that would not involve the
Non-Contributing Partner having to pay an increased purchase price to cover the
Contributing Partner's taxable gain; provided that any such alternative must be
no less favorable, in economic terms and tax effects, to the Contributing
Partner. One such alternative may be to allow Capital Contributions that are
anticipated to be needed to fund the operations of the Partnership prior to the
Outside Date to be made on a disproportionately increased basis by the
Non-Contributing Partner with an corresponding special allocation or
re-allocation to adjust the relative Capital Account balances of the
Contributing Partner and Non-Contributing Partner so that they are in the same
proportion as Units after giving effect to such disproportionate contributions.
Notwithstanding any other provision of this Agreement, the parties agree
that the Non-Contributing Partner shall never be required or obligated to pay
interest in excess of the maximum non-usurious interest rate as may be
authorized by applicable law. It is the intention of the parties to conform
strictly to the applicable laws which limit interest rates, and any of the
provisions of this Agreement for interest (or which may be deemed to be
interest), if and to the extent payable by the Non-Contributing Partner, shall
be held to be subject to reduction to the maximum non-usurious interest rate
allowed under said law.
ARTICLE 5
CAPITAL ACCOUNTS
5.1 Capital Accounts. A capital account ("Capital Account") shall be
established for each Partner. A Partner's Capital Account shall be credited with
the fair market value (as determined in the sole judgment of the General
Partner) of property contributed and the amounts of cash contributed to the
Partnership by such Partner and shall be credited or charged, as the case may
be, with such Partner's share of Partnership items of book income, gain, loss
and deduction for each fiscal year of the Partnership determined pursuant to
Article 7 below. Each Partner's Capital Account shall be charged with the fair
market value (as determined in the sole judgment of the General Partner) of any
property
11
-11-
distributed and the amount of cash distributed to such Partner. The respective
Capital Accounts of the Partners shall not bear interest.
5.2 Adjustments to Capital Accounts Upon Revaluation of Property. Upon the
occurrence of (a) the admission of an additional or substituted Limited Partner,
(b) an extraordinary (as determined by the General Partner) distribution of
property by the Partnership, or (c) the liquidation of the Partnership (each an
"Adjustment Event"), then, upon any such event, the Gross Asset Value
immediately before the Adjustment Event shall be determined. The property of the
Partnership shall thereafter be treated as if it were sold by the Partnership
and any gain or loss resulting therefrom shall be allocated among the Partners
in accordance with Article 7 hereof as of the date immediately before the
Adjustment Event resulting in the valuation of Partnership assets. Such
allocation of gain or loss shall thereafter be reflected in the Capital Accounts
of the Partners for all purposes of this Agreement. Solely for purposes of
determining adjustments to Capital Accounts, any net profit or net loss shall be
determined using the Gross Asset Value rather than the adjusted tax basis of the
property of the Partnership.
5.3 Compliance with Treasury Regulations. Notwithstanding any provision in
this Agreement to the contrary, the Capital Accounts of the Partners shall be
maintained in accordance with Treasury Regulations, as amended from time to
time, and shall be adjusted as provided therein.
ARTICLE 6
DISTRIBUTIONS
Except as otherwise provided herein, Distributable Cash of the Partnership
shall be distributed on a quarterly basis among the Partners pro rata in
accordance with their Unit Percentages. The amount and timing of such
distributions shall be determined by the General Partner. The General Partner
shall have the absolute discretion to have any distribution treated as a return
of capital. That portion of any distribution which is treated as a return of
capital shall be made to the Partners ratably in proportion to their respective
Capital Accounts immediately prior to the distribution. The General Partner and
the Partnership shall incur no liability for making distributions in accordance
with the provisions of this Agreement, whether or not the General Partner or the
Partnership have knowledge or notice of any transfer of ownership of any Units.
ARTICLE 7
ALLOCATIONS
12
-12-
7.1 Book Allocations. Except as otherwise provided herein or unless
another allocation is required by the Code, Treasury Regulations, published
revenue rulings or judicial decisions, all items of Partnership book income,
gain, loss, deduction and credit shall be allocated among the Partners pro rata
in accordance with their Unit Percentages in effect for the period during which
such items accrue. For purposes of computing each item of book income, gain,
deduction or loss, the determination, recognition and classification of such
item shall be the same as its determination, recognition and classification for
federal income tax purposes.
7.2 Tax Allocations.
(a) Code Section 704(c). Notwithstanding anything herein to the
contrary, if any Partner has contributed or is treated as contributing any
property to the Partnership that has a Gross Asset Value that is in excess
of or less than its adjusted basis for federal income tax purposes at the
time of such contribution, then all gain, loss, and deduction with respect
to the contributed property shall, solely for federal income tax purposes,
be allocated among the Partners so as to take account of the variation
between the adjusted basis of such property and its initial net asset
value as required under Code Section 704(c).
(b) Partnership Asset Adjustments. In the event the Gross Asset
Value of any Partnership Asset is adjusted under Section 5.2 hereof,
subsequent allocations of Partnership income, gain, loss, and deduction
with respect to such asset, as calculated for tax purposes, shall take
account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Gross Asset Value in accordance with
the principals of Code Section 704(c) as is required pursuant to Treasury
Regulations Section 1.704-1(b)(4)(i).
(c) Consistent Allocation. Except as provided in Section 7.2(a) and
(b), Partnership income, gain, loss, deduction, and credit, as calculated
for tax purposes, shall be allocated among the Partners, to the extent
possible, in accordance with the allocations of the items of Partnership
book income, gain, loss, deduction, and credit allocated pursuant to
Section 7.1.
(d) Adjustments by the Partners. Any elections or other decisions
related to Partnership tax allocations pursuant to this Section 7.2 shall
be made by the General Partner of the Partnership in a manner that
reasonably reflects the purpose and intention of
13
-13-
this Agreement. Partnership tax allocations pursuant to this Section 7.2
are solely for purposes of federal, state, and local taxes and shall not
affect, or in any way be taken into account in computing, any Partner's
Capital Account or distributive share of the Partners items of Partnership
book income, gain, loss, deduction, and credit or Partnership
distributions to any of the Partners under this Agreement.
7.3 Transfer of Units. Unless otherwise unanimously agreed by the
Partners, income, gain, loss, deduction or credit attributable to any Unit (or
portion thereof) which has been transferred shall be allocated between the
transferor and the transferee equally among the days of the Partnership's fiscal
year without regard to Partnership operations during such days.
ARTICLE 8
MANAGEMENT AND OPERATION OF BUSINESS
8.1 Management by General Partner. Subject to Section 8.3 below and
subject to the provisions of the Act, the General Partner shall have exclusive
authority to manage and control the day-to-day operations and affairs of the
Partnership and to make all decisions regarding the business and property of the
Partnership. The General Partner is hereby granted by the other Partners the
right, power and authority to do on behalf of the Partnership all things which,
in the General Partner's sole judgment, are necessary, proper or desirable to
carry out and exercise such authority.
8.2 Authority to Act. In order to expedite the handling of Partnership
business, it is understood and agreed that any document executed by the General
Partner or any officer of the General Partner while acting on behalf and in the
name of the Partnership shall be deemed to be the action of the Partnership as
to any third parties. Further, any Person dealing with the Partnership or the
General Partner or any officer of the General Partner may rely upon a
certificate signed by the General Partner or any officer of the General Partner
as to:
(a) identity of the Partners;
(b) existence or nonexistence of any fact or facts that constitute
conditions precedent to acts by the Partnership or are in any other manner
related to the affairs of the Partnership;
(c) Persons who are authorized to execute and deliver any instrument
or document of the Partnership;
14
-14-
(d) any act or failure to act by the Partnership; or
(e) any other matter whatsoever involving the Partnership or any
Partner.
In no event shall any Person dealing with the General Partner or any officer of
the General Partner with respect to any business or property of the Partnership
be obligated to ascertain that the terms of this Agreement have been complied
with, or be obligated to inquire into the necessity or expedience of any act or
action of the General Partner or any officer of the General Partner, and every
contract, agreement, conveyance instrument, mortgage, security agreement,
promissory note or other instrument or document executed by the General Partner
or an officer of the General Partner with respect to any business or property of
the Partnership shall be conclusive evidence in favor of any and every Person
relying thereon and claiming thereunder that (i) at the time of the execution
and/or delivery thereof, this Agreement was in full force and effect; (ii) such
instrument or document was duly executed in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership; and (iii) the
General Partner or officer of the General Partner, as applicable, was duly
authorized and empowered to execute and deliver any and every such instrument or
document for and on behalf of the Partnership.
8.3 Certain Limitations upon the Power of the General Partner.
Notwithstanding anything to the contrary contained herein, without the prior
written approval of all of the Limited Partners, the General Partner shall not:
(a) Do any act in contravention of this Agreement or the certificate
of limited partnership of the Partnership;
(b) Do any act which would make it impossible to carry on the
ordinary business of the Partnership;
(c) Possess Partnership property or assign its rights in specific
Partnership property for other than a Partnership purpose;
(d) Admit a person as the General Partner;
(e) Except for the admission of a transferee or assignee of a
Limited Partner's Units transferred or assigned in compliance with the
Ownership Restriction Agreement, admit an additional Partner to the
Partnership; or
15
-15-
(f) Knowingly commit any act that would subject any Limited Partner
to liability as a general partner in any jurisdiction.
8.4 Investment/Bank Accounts. The Partnership will maintain such
investment, bank and other accounts as the General Partner may deem necessary
for the investment and deposit of the Partnership funds and for the proper
segregation thereof into such separate accounts as may be deemed appropriate.
All withdrawals from any such accounts shall be made by the General Partner or
the duly authorized officers of the Partnership. Partnership funds shall not be
commingled with those of any other Person. The Partnership accounts shall be in
the name of the Partnership and all payments required of the Partnership will be
made from accounts of the Partnership.
8.5 Reimbursement. The General Partner shall be reimbursed by the
Partnership for all costs and expenses, including legal, accounting and other
fees related to the formation of the Partnership and the preparation of this
Agreement. During the term of the Partnership, the General Partner shall be
reimbursed for all direct costs and expenses incurred by it in the management
and administration of the Partnership and attributable to the business of the
Partnership.
8.6 Compensation. The General Partner shall not be entitled to any
compensation for the management and administration of the Partnership.
ARTICLE 9
BOOKS OF ACCOUNT: RECORDS, TAX INFORMATION
9.1 Fiscal Year. The fiscal year of the Partnership shall end on December
31 in each year.
9.2 Books and Records. Proper and complete records and books of account
shall be kept by the General Partner in which shall be entered fully and
accurately all transactions and other matters relative to the Partnership's
business as are usually entered into records and books of account maintained by
Persons engaged in businesses of like character. The Partnership books and
records shall be prepared in accordance with generally accepted accounting
principles applied on a consistent basis. The books and records shall at all
times be made available at the principal office of the Partnership and shall be
open to the reasonable inspection and copying by the Partners or their duly
authorized representatives with advance notice (not more than one business day
shall be required) during reasonable business hours.
16
-16-
9.3 Taxation as a Partnership. The Partnership shall be treated as a
partnership for federal and all state tax purposes. The General Partner shall
cause the Partnership to prepare and file annually on or before the due date or
extended due date thereof all required federal, state and local tax returns and
filings.
9.4 Tax Elections. All elections required or permitted to be made by the
Partnership under the Code, including but not limited to, the election pursuant
to Section 754 thereof, shall be made by the General Partner, if at all, in its
sole discretion. Each Partner will upon request supply the information necessary
to properly give effect to such elections.
9.5 Tax Returns. The General Partner shall, on a timely basis, send each
Person who is a holder of an interest in the Partnership at any time during a
calendar year all partnership tax information kept on a federal income tax basis
as shall be necessary for the preparation by such holder of its federal income
tax return. Further, on request by any holder of an interest in the Partnership,
the General Partner will furnish such holder copies of all federal, state and
local income tax returns or information returns, if any, which the Partnership
is required to file.
ARTICLE 10
RESTRICTIONS ON TRANSFER
10.1 Private Offering. Each Limited Partner is fully aware that the
Partnership is selling Units to such Limited Partner in reliance upon the
exemption from registration provided by Section 4(2) of the Securities Act, and
upon the truth and accuracy of the representations of such Limited Partner
contained in this Agreement.
10.2 Securities Act Requirements. Each Limited Partner represents that (a)
its Units are being acquired for investment, with no present intention of
distributing or selling any portion thereof or with a view to any distribution
thereof within the meaning of the Securities Act, and (b) its financial
condition is such that it is able to bear all risks of holding its Units for an
indefinite period of time and that it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of acquisition of the Units and of making an informed investment decision
with respect thereto; and (c) it will not offer or make a transfer of its Units
unless it shall have delivered to the Partnership (i) an opinion of counsel
satisfactory to the General Partner to the effect that no registration (or
perfection of an exemption) under the Securities Act is required with respect to
such transfer or (ii) such other evidence satisfactory to the General Partner
that the transfer
17
-17-
will not violate the Securities Act and other applicable state securities laws.
10.3 Transfers by the Limited Partners. A Limited Partner may not sell,
transfer, assign or devise, or subject to security interest, lien or charge, all
or any part of its Units, except as permitted in the Ownership Restriction
Agreement, and any act in violation of this Section 10.3 shall be null and void
ab initio. Any transfer of or assignment of the Units of a Limited Partner shall
not dissolve the Partnership. A transferee or assignee of a Limited Partner's
Units transferred or assigned in compliance with the Ownership Restriction
Agreement shall be admitted as a substituted Limited Partner of the Partnership
(with regard to the interest so transferred and assigned) without any further
approval by the Partners.
10.4 Transfers by the General Partner. The General Partner may not sell,
assign or transfer, or subject to security interest, lien or charge, all or any
portion of its Units. The General Partner agrees not to voluntarily withdraw or
resign as the general partner of the Partnership.
ARTICLE 11
DISSOLUTION
The Partnership shall dissolve and its affairs shall be wound up in
accordance with Article 12 on the first to occur of the following:
(a) the expiration of the term of the Partnership;
(b) the bankruptcy, dissolution or termination and winding up of the
affairs of the General Partner; or
(c) the written consent to terminate by all of the Partners.
ARTICLE 12
WINDING UP AND TERMINATION OF THE PARTNERSHIP
12.1 Winding Up. If the Partnership is dissolved for any reason, it shall
be wound up and its assets sold or distributed in an orderly manner, unless, in
the case of the bankruptcy or termination and winding up of the affairs of the
General Partner, all of the Partners agree, in accordance with the Act, to
reconstitute and continue the Partnership and appoint one or more new general
partners within 90 days after such event. In the absence of any such applicable
agreement, no Partner shall have the right to reconstitute or continue the
Partnership.
18
-18-
12.2 Liquidator. The General Partner, or if there is no General Partner,
then a liquidation trustee appointed by Partners owning at least 75% of the
Units of all Partners (the "Liquidation Trustee"), shall have the exclusive
authority to manage and control the Partnership during the period during which
it is being wound up. The Person(s) vested with the authority to manage and
control the Partnership during the winding up period are hereinafter referred to
as the "Liquidator".
12.3 Liquidation, Distributions. Upon the winding up and termination of
the business and affairs of the Partnership, its assets (other than cash) shall
be sold and its liabilities and obligations to creditors and all expenses
incurred in its liquidation shall be paid (either by payment or the making of
reasonable provision for payment). Thereafter, the net proceeds from such sales
(after deducting all selling costs and expenses in connection therewith) shall
be distributed among the Partners in accordance with their respective positive
balances in their Capital Accounts. Any distributions under this Section 12.3
may be made, at the election of the Liquidator, in money arising from the sale
of the property of the Partnership or by a distribution of the Partnership's
assets in kind (the distributed asset being treated as sold for its fair market
value and any deemed gain or loss being treated as allocated among the Partners
in accordance with Article 7 hereof) or such distribution may be, at the
election of the Liquidator, partially in money and partially in kind. All
determinations of fair market value under this Section 12.3 shall be made in the
sole judgment of the Liquidator. Any sales or distributions in kind of the
Partnership's assets shall be effected in compliance with the Securities Act and
applicable state securities laws, as well as applicable contractual restrictions
or requirements relating to the transfer of the assets of the Partnership.
12.4 Source of Distributions. Each holder of an interest in the
Partnership shall look solely to the assets of the Partnership for all
distributions with respect to the Partnership and its Capital Contribution
thereto (including the return thereof) and share of profits or losses thereof,
and shall have no recourse therefor (upon dissolution or otherwise) against the
Partnership, any Partner or the Liquidator.
12.5 Deficit Capital Accounts. No Partner shall be required to
restore any deficit balance existing in its Capital Account upon the
liquidation and termination of the Partnership.
12.6 Termination of Partnership. Upon the completion of the liquidation of
the Partnership and the distribution of all Partnership assets, the Partnership
shall terminate and the Liquidator shall (and is
19
-19-
hereby given the power and authority to) execute, acknowledge, swear to and
record all documents required to effectuate the dissolution and termination of
the Partnership.
ARTICLE 13
POWER OF ATTORNEY
Each Limited Partner hereby makes, constitutes and appoints the General
Partner with full power of substitution and resubstitution, such Limited
Partner's true and lawful attorney for it and in its name, place and stead and
for its use and benefit, to sign, execute, certify, acknowledge, deliver, swear
to, file and record in all necessary or appropriate places such agreements,
instruments or documents as may be necessary or advisable (a) to reflect the
exercise by the General Partner of any of the powers granted to it under this
Agreement; (b) to reflect the admission to the Partnership of any additional
Limited Partner or substituted Limited Partner in the manner prescribed in this
Agreement; (c) to amend Schedule A in the manner prescribed in this Agreement;
and (d) which may be required of the Partnership or of the Partners by the laws
of the State of Delaware or any other jurisdiction in which the Partnership may
conduct business or own property. Each Limited Partner authorizes such
attorney-in-fact to take any further action which such attorney-in-fact shall
consider necessary or advisable in connection with any of the foregoing, hereby
giving such attorney-in-fact full power and authority to do and perform each and
every act or thing whatsoever requisite or advisable to be done in and about the
foregoing as fully as such Limited Partner might or could do if personally
present, and hereby ratifying and confirming all that such attorney-in-fact
shall lawfully do or cause to be done by virtue hereof. The power of attorney
granted pursuant to this Article 13: (a) is a special power of attorney coupled
with an interest and is irrevocable; (b) may be executed by such
attorney-in-fact by listing all of the Limited Partners executing any agreement,
certificate, instrument or document with the single signature of any such
attorney-in-fact acting as attorney-in-fact for all of them; (c) shall survive
the bankruptcy, death, adjudication of incompetence or insanity, or dissolution
of a Limited Partner; and (d) shall survive the delivery of an assignment by a
Limited Partner of its Units.
ARTICLE 14
LIABILITY AND EXCULPATION
14.1 Liability. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Partnership, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of
20
-20-
the Partnership, and no Partner shall be obligated for any such debt, obligation
or liability of the Partnership solely by reason of being a Partner of the
Partnership.
14.2 Exculpation. No Covered Person shall be liable to the Partnership or
any Partner under any theory of law, including tort, contract or otherwise
(INCLUDING A COVERED PERSON'S OWN NEGLIGENCE) for any loss, damage or claim
incurred by reason of any act or omission (including decisions to vote for or
against any matter) performed or omitted by such Covered Person in good faith on
behalf of the Partnership and in a manner reasonably believed to be within the
scope of authority conferred on such Covered Person by this Agreement, except
that a Covered Person shall be liable for any such loss, damage or claim
incurred by reason of such Covered Person's gross negligence or willful
misconduct. A Covered Person shall be fully protected in relying in good faith
upon the records of the Partnership and upon such information, opinions, reports
or statements presented to the Partnership by any Person as to matters the
Covered Person reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Partnership, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which distributions to Partners might properly be paid.
14.3 Duties and Liabilities of Covered Persons. To the extent that, at law
or in equity, a Covered Person has duties (including fiduciary duties) and
liabilities relating thereto to the Partnership or to any other Covered Person
arising under this Agreement, a Covered Person acting under this Agreement shall
not be liable to the Partnership or to any other Covered Person for actions
(including decisions to vote for or against any matter) taken by it in good
faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Covered Person.
Unless otherwise expressly provided herein, whenever a conflict of interest
exists or arises between a Covered Person and the Partnership or a Partner, the
Covered Person shall disclose such conflict to the Partners and shall resolve
such conflict of interest, taking such action or providing such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
21
-21-
principles. In the absence of bad faith by the Covered Person, the resolution,
action or term so made, taken or provided by the Covered Person shall not
constitute a breach of this Agreement or any other agreement contemplated herein
or of any duty or obligation of the Covered Person at law or in equity or
otherwise.
ARTICLE 15
INDEMNIFICATION
15.1 Indemnification. To the fullest extent permitted by applicable law, a
Covered Person shall be entitled to indemnification from the Partnership for any
loss, damage or claim incurred by such Covered Person (a) by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Partnership and in a manner reasonably believed to be within the scope of
authority conferred on such Covered Person by this Agreement or (b) by reason of
being a Partner, an Affiliate of a Partner or an officer, manager, director,
shareholder, partner, representative, advisor or agent of the Partnership or a
Partner or its Affiliate, except that no Covered Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Covered
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions; provided, however, that any indemnity under this Article 15
shall be provided out of and to the extent of Partnership assets only, and no
Covered Person shall have any personal liability on account thereof. THE
FOREGOING INDEMNITY IS INTENDED TO INDEMNIFY EACH COVERED PERSON FOR HIS OWN
ACTS OF NEGLIGENCE AND SHALL APPLY IRRESPECTIVE OF ANY CLAIM OF CONCURRENT OR
CONTRIBUTORY NEGLIGENCE ON THE PART OF SUCH COVERED PERSON.
15.2 Expenses. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person in defending any claim,
demand, action, suit or proceeding for which indemnity is sought under this
Agreement shall, from time to time, be advanced by the Partnership prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Partnership of an undertaking by or on behalf of the Covered Person to
repay such amount if it shall be determined that the Covered Person is not
entitled to be indemnified as authorized under this Article 15.
15.3 Insurance. The Partnership may purchase and maintain insurance, to
the extent and in such amounts as the General Partner shall deem reasonable, on
behalf of Covered Persons and such other Persons as the General Partner shall
determine, against any liability that may be
22
-22-
asserted against or expenses that may be incurred by any such Person in
connection with the activities of the Partnership or such indemnities,
regardless of whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this Agreement. The
Partnership may enter into indemnity contracts with Covered Persons and adopt
written procedures pursuant to which arrangements are made for the advancement
of expenses and the funding of obligations under this Article 15 and containing
such other procedures regarding indemnification as are appropriate.
ARTICLE 16
NOTICES
All notices, requests and communications under this Agreement shall be in
writing and shall be given to a party at the party's address set forth in
Schedule A hereto or, in the case of the Partnership, as follows: L & I
Partners, L.P., 00000 XX 00 Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000,
Attention: Board of Managers of L & I, L.L.C. and L & I Partners, L.P., c/o
LeukoSite, Inc., 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attn: Xxxxxxxxxxx X.
Xxxxxxxxx, Ph.D. Each such notice, request or other communication shall be
effective (a) if given by registered or certified mail, return receipt
requested, two days after such communication is deposited in the mails with
postage prepaid and addressed as specified pursuant to this Article 16, or (b)
if given by any other means, when delivered at the address specified pursuant to
this Article 16. Any party may change its or its address for notifications
hereunder by giving the other parties notice thereof in accordance with this
Article 16. Notwithstanding the foregoing, a copy of each notice given to the
General Partner or the Partnership shall also be given to each Limited Partner.
ARTICLE 17
DISPUTE RESOLUTION
Except as otherwise provided herein, any claim, dispute or controversy of
any nature whatsoever, including but not limited to tort claims and contract
disputes between the parties to this Agreement arising out of or related to the
terms and conditions of this Agreement, including the implementation,
applicability or interpretation thereof, shall be resolved in accordance with
the dispute resolution procedures set forth in the Ownership Restriction
Agreement.
23
-23-
ARTICLE 18
MISCELLANEOUS
18.1 Further Assurances. Each Partner agrees to execute, with
acknowledgment or affidavit if required, any and all documents and writings
which may be necessary or expedient in connection with the formation of the
Partnership and the achievement of its purposes, specifically including all such
agreements, certificates, tax statements, tax returns and other documents as may
be required of the Partnership or its Partners by the laws of the United States
of America, the State of Texas or Delaware or any political subdivision or
agency thereof.
18.2 Partnership Property. The Partners agree that the property and other
assets of the Partnership are and shall be owned by the Partnership as an
entity. Each Partner, accordingly, owns Unit(s) and not an undivided interest in
such assets and properties. No Partner shall have any right to partition the
assets and properties of the Partnership; and to the extent, if any, that any
Partner would have such a right, each such Partner hereby irrevocably waives any
and all rights to maintain any action for partition of the assets and properties
of the Partnership, either as a partition in kind or a partition by sale.
18.3 Invalid Provisions. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
18.4 Entire Agreement. This Agreement and the additional documents and
agreements referred to herein constitute the entire agreement among the parties,
and it supersedes all prior or contemporaneous agreements or understandings
among the parties.
18.5 Successors and Assigns. Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of the
parties and their legal representatives, heirs, administrators, executors,
successors and permitted assigns.
18.6 Amendments. Except as provided in Article 4 and Article 13 relating
to certain amendment powers of the General Partner, amendments or modifications
may be made to this Agreement only by setting forth such amendments or
modifications in a written instrument signed by all the Partners.
18.7 Interpretation. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in the masculine,
24
-24-
the feminine or the neuter gender shall include the masculine, feminine and
neuter.
18.8 Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware without giving effect to conflicts of law principles.
18.9 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument. It shall not be necessary for all Partners to execute
the same counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the day and in the year first above written.
GENERAL PARTNER:
L & I, L.L.C.
By:__________________________________________
Xxxxxxxxxxx X. Xxxxxxxxx, Ph.D., President
LIMITED PARTNERS:
LEUKOSITE, INC.
By:__________________________________________
Xxxxxxxxxxx X. Xxxxxxxxx, Ph.D.,
Chairman and Chief Executive Officer
ILEX ONCOLOGY, INC.
By:__________________________________________
Xxxxxxx X. Love,
President
25
-25-
SCHEDULE A
(As of May 2, 1997)
CAPITAL UNIT UNIT
NAME AND ADDRESS CONTRIBUTIONS OWNERSHIP PERCENTAGE
---------------- ------------- --------- ----------
General Partner:
L & I, L.L.C. $ 13,000 1.0 1.0%
00000 XX 00 Xxxx, Xxxxx
000
Xxx Xxxxxxx, XX
00000-0000
Fax No. (000) 000-0000
Attention: Board of
Managers
Limited Partners:
LeukoSite, Inc. $643,500 49.5 49.5%
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax No. (000) 000-0000
Attention:Xxxxxxxxxxx
X. Xxxxxxxxx, Ph.D.
ILEX Oncology, Inc. $643,500 49.5 49.5%
00000 XX 00 Xxxx, Xxxxx
000
Xxx Xxxxxxx, XX
00000-0000
Fax No. (000) 000-0000
Attention: Xxxxxxx X. Love
---------- ---------- ----------
TOTAL: $1,300,000 100.0 100.0%
====== ========== ========== ==========
26
-26-
EXHIBIT A
Pre-Development Budget
April 1. 1997 - June 30, 1997
Activity/Objective Complete Expenses
------------------ -------- --------
License Fees April 1, 1997 $ *
Xxxxxx Market Study April 1, 1997 *
Manufacturing up-front April 15, 1997 *
payment to Xxxx Xxxxxx,
Gmbh
Contingency *
----------
$ *
LeukoSite Expense
Travel *
Manufacturing Consultant June 30, 1997 *
----------
$ *
ILEX Expense $ *
Medical Consultant *
European Consultant *
Pre-FDA Mtg. *
Europe Coord. of Trial *
Dossier Prep *
----------
(printing, out of
pockets, etc.)
ILEX Travel $ *
* Confidential treatment requested: material has been omitted and filed
separately with the Commission.
