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EXHIBIT 10.54
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
Agreement dated as of July 22, 1996 by and among ILEX ONCOLOGY, INC., a
Delaware corporation (the "Company"), and the persons identified on Exhibit A
hereto (individually a "Purchaser" and, collectively, the "Purchasers"), whose
mailing addresses and states of principal residence are as set forth on Exhibit
A.
W I T N E S S E T H:
WHEREAS, the Company desires to sell 2,293,578 shares of Series C
Convertible Preferred Stock, $.01 par value per share, having the rights,
preferences, privileges and restrictions described herein and in the Exhibits
and Schedules hereto (the "Series C Preferred"); the purchase price for such
shares of Series C Preferred shall be $4.36 per share.
WHEREAS, the Purchasers desire to enter into this Agreement pursuant to
which each of the Purchasers will purchase shares of Series C Preferred on the
terms set forth herein and in the amounts and for the aggregate consideration
set forth in Exhibit A.
NOW, THEREFORE, the Company and the Purchasers agree severally, and not
jointly, as follows:
1. Purchase and Sale. Subject to the provisions of this Agreement
(including the last sentence of this SECTION 1) and on the basis of the
representations and warranties contained herein, on the Closing Date (as
hereinafter defined), the Company will sell to each Purchaser and each
Purchaser will purchase from the Company that number of shares of the Series C
Preferred set forth adjacent to such Purchaser's name on Exhibit A. The
purchase price to be paid by each Purchaser for such shares of Series C
Preferred shall be equal to the product of $4.36 per share times the number of
shares of Series C Preferred purchased at the Closing by the Purchaser (the
"Purchase Price").
2. Closing of Purchase and Sale.
2.1 Closing; Closing Date. The purchase and sale of the Series C
Preferred (the "Closing") shall occur at the offices of Fulbright & Xxxxxxxx
L.L.P., 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxx 00000, and shall
occur at 10:00 a.m. local time on July 22, 1996 or such other time and date as
may be agreed upon by the Company and the Purchasers (the "Closing Date").
2.2 Transactions at Closing. The Closing of the purchase and sale of
shares of Series C Preferred to be made to Purchasers shall be effected on the
Closing Date. On the
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Closing Date, (i) the Company and each Purchaser shall execute and deliver each
agreement included as an exhibit hereto to which they are a party, (ii) the
Company shall deliver to each Purchaser a stock certificate for the Series C
Preferred to be issued and sold to each Purchaser, duly registered in such
Purchaser's name, and (iii) the Purchasers shall deposit by wire transfer of
immediately available funds or bank certified or cashier's check the aggregate
Purchase Price called for in SECTION 1 of this Agreement into one or more bank
accounts of the Company as shall be designated by the Company prior to the
Closing.
3. Representations and Warranties of Company. The Company
represents and warrants to the Purchasers as follows:
3.1 Organization, Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full power and authority to own, lease
and operate its properties and assets and to conduct its business as presently
conducted and as proposed to be conducted, and to enter into this Agreement and
the Registration Rights Agreement (as defined in SECTION 5.7) and to carry out
the transactions contemplated by such agreements. The Company is duly
qualified to do business as a foreign corporation and is in good standing in
the State of Texas and in every other jurisdiction in which the failure to so
qualify would have a material adverse effect on the business, assets,
operations or financial condition of the Company.
3.2 Capitalization. The authorized capital stock of the Company
consists of (a) 20,000,000 shares of preferred stock, $.01 par value per share
("Preferred Stock"), of which (i) 5,239,900 shares have been designated as
Series A Convertible Preferred Stock, $.01 par value per share (the "Series A
Preferred"), all of which are issued and outstanding, (ii) 5,432,500 shares
have been designated as Series B Convertible Preferred Stock, $.01 par value
per share (the "Series B Preferred"), all of which are issued and outstanding,
(iii) 2,293,578 shares have been designated as the Series C Preferred, to be
issued pursuant to the terms of this Agreement and (b) 40,000,000 shares of
Common Stock, $.01 par value per share ("Common Stock") of which (i) 2,080,100
shares are issued and outstanding, (ii) 5,239,900 shares are reserved for
issuance on conversion of the Series A Preferred, (iii) 5,432,500 shares are
reserved for issuance on conversion of the Series B Preferred, (iv) 2,293,578
shares are reserved for issuance on conversion of the Series C Preferred to be
issued to the Purchasers, (v) 1,000,000 shares are reserved for issuance on
exercise of options issued or to be issued to employees, advisors, officers,
directors and consultants of, and other persons performing services for, the
Company pursuant to stock option plans approved by the Board of Directors of
the Company, (vi) 170,000 shares are reserved for issuance on exercise of
outstanding warrants issued to Vector Securities International, Inc., (vii)
50,000 shares are reserved for issuance on exercise of warrants to be issued to
Chestnut Partners, Inc. and (viii) 573,395 shares are reserved for issuance on
exercise of warrants to be issued to the holders of the Series C Preferred (the
"Investor Warrants") (the reserved shares referred to in (ii) through (viii)
are collectively referred to as the "Reserved Shares"). The record owners of
the Company's issued and outstanding Common Stock and the holders
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of all options and warrants to purchase Common Stock are set forth on Schedule
3.2 hereto. The issued and outstanding shares of the Company's capital stock
have been duly authorized and validly issued and are fully paid and non-
assessable. Holders of shares of the Company's capital stock have no
preemptive rights and, except as set forth in SECTION 7.6 of this Agreement and
SECTION 7.6 of the Series B Convertible Preferred Stock Purchase Agreement
dated September 29, 1995 among the Company and the persons identified on
Exhibit A thereto, no holder of shares of the Company's capital stock has any
right of first refusal to purchase securities sold by the Company. Except for
the shares of Common Stock to be issued upon the conversion of the Series A
Preferred and the Series B Preferred and transactions contemplated by this
Agreement (including the exhibits hereto) and except for the shares reserved
for issuance as set forth in this section, there are no outstanding warrants,
options, convertible securities or rights (contingent or otherwise) to
subscribe for or purchase any capital stock or other securities from the
Company. The Company is not required to register any of its equity securities
under Section 12(a) or 12(g) of the Securities Exchange Act of 1934. The
designations, powers, preferences, rights, qualifications, limitations and
restrictions in respect of each class and series of authorized capital stock of
the Company are as set forth in the Certificate of Incorporation (as defined
below), and of the Series C Preferred will be set forth in the Certificate of
Incorporation prior to the Closing, and, all such designations, powers,
preferences, rights, qualifications, limitations and restrictions are valid,
binding and enforceable and in accordance with all applicable laws. Except as
contemplated by this Agreement or set forth in Schedule 3.2, (x) there are no
restrictions on the transfer of shares of capital stock of the Company other
than those imposed by relevant state and federal securities laws, (y) there are
no agreements, understandings, proxies, trusts or other collaborative
arrangements concerning the voting, pledge or purchase and sale of the capital
stock of the Company to which the Company is a party or, to the Company's
knowledge, to which any other Person is a party, (z) no holder of any security
of the Company is entitled to preemptive, first refusal or similar statutory or
contractual rights, either arising pursuant to any agreement or instrument to
which the Company is a party, or which are otherwise binding upon the Company,
or, to the Company's knowledge, to which any other Person is a party. Except
as provided for in the Certificate of Incorporation, the Company has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any of its equity securities or any interest therein or to pay any dividend or
make any other distribution in respect thereof. Other than pursuant to the
terms of the Registration Rights Agreement, no Person has demand or other
rights to cause the Company to file any registration statement under the
Securities Act of 1933, as amended, relating to any securities of the Company
or any right to participate in any such registration.
3.3 Validity of Stock. Prior to the Closing, the Certificate of
Designation, Preferences and Rights of Series C Convertible Preferred Stock in
the form attached hereto as Exhibit 3.3(A) will have been duly filed with the
Delaware Secretary of State. On the Closing Date, the Series C Preferred will
be duly authorized and, when issued and sold in accordance with the terms of
this Agreement, will be duly and validly issued, and fully paid
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and non-assessable and will be free and clear of all liens, charges,
encumbrances or restrictions imposed by or through the Company except as set
forth in this Agreement, the Registration Rights Agreements or applicable
securities laws. On the Closing Date, the Common Stock issuable upon
conversion of the Series C Preferred will be duly authorized and reserved for
issuance by all necessary action and when issued and sold upon such conversion
in accordance with the terms of this Agreement and the Company's Certificate of
Incorporation, as amended (including the Certificate of Designation,
Preferences and Rights of Series C Convertible Preferred Stock), in the form of
Exhibit 3.3(B) (the "Certificate of Incorporation") will be duly and validly
issued, fully paid and non-assessable.
3.4 Subsidiaries. The Company has no subsidiaries and does not own
or control, directly or indirectly, any other corporation, partnership,
association, joint venture or entity.
3.5 Financial Statements. The Company has furnished each Purchaser
with the Company's (i) consolidated audited balance sheet (the "Audited Balance
Sheet") as of December 31, 1995 (the "Audited Balance Sheet Date") and
consolidated audited statements of operations for the year ended December 31,
1995 ("Audited Income Statement") and (ii) consolidated unaudited balance sheet
(the "Unaudited Balance Sheet") as of May 31, 1996 (the "Unaudited Balance
Sheet Date") and consolidated unaudited statements of operations for the six
(6) months ended May 31, 1996 ("Unaudited Income Statement") (each of which in
(i) and (ii) above are collectively referred to as the "Financial Statements"
and are attached hereto as Schedule 3.5). The Financial Statements are true
and correct in all material respects, are in accordance with the books and
records of the Company, have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied, and fairly and
accurately present in all material respects the financial position of the
Company as of such dates and the results of its operations for the periods then
ended, provided that the Unaudited Financial Statements may not contain all
footnotes required by GAAP and the Unaudited Balance Sheet and the Unaudited
Income Statement are subject to normal year-end audit adjustments, none of
which will be material. Since the Unaudited Balance Sheet Date, the Company
has not incurred or otherwise become subject to any liabilities, debts or
obligations otherwise than in the ordinary course of business consistent with
past practice, except for those listed on Schedule 3.5 attached hereto and
those that, would not individually or in the aggregate have a material adverse
effect on the financial condition of the Company.
3.6 Insurance. Schedule 3.6 contains a list of all insurance
policies (specifying (a) the Insurer, (b) the amount of coverage and (c) the
type of insurance) maintained by or on behalf of the Company on the properties,
assets, business or personnel of the Company, all of which are (and pending
Closing will continue to be) in full force and effect.
3.7 Authorization; Approvals. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and the
Registration Rights Agreement, to perform its obligations hereunder and
thereunder and to engage in the transactions
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contemplated hereby and thereby. The execution, delivery and performance by
the Company of this Agreement and the Registration Rights Agreement, have been
duly authorized by all necessary corporate action, and this Agreement has been,
and at the Closing the Registration Rights Agreement will have been, duly
executed and delivered by the Company. This Agreement constitutes, and at the
Closing the Registration Rights Agreement will constitute, the legal, valid and
binding obligation of the Company legally enforceable against the Company in
accordance with their respective terms. The Company has obtained all material
consents, authorizations and approvals of, and has made or will make all
material declarations and filings with, all federal and state governmental
authorities required on the part of the Company in connection with the
consummation of the transactions contemplated by this Agreement, except to the
extent any failure by the Company to comply with the foregoing is due to
misrepresentations or nondisclosure of one or more Purchasers.
3.8 No Conflict with Other Instruments and Laws. Except as set forth
on Schedule 3.8 or any other Schedules hereto, the execution of and performance
by the Company of its obligations under this Agreement and the Registration
Rights Agreement will not violate any provision of law or governmental rule or
regulation and will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default (with notice, lapse
of time or both) under (i) the Certificate of Incorporation, (ii) the Company's
by-laws as currently in effect which are attached hereto as Exhibit 3.8 (the
"By-laws"), (iii) any statute, law, rule, regulation, judgment, decree or order
to which the Company is bound or applicable to the Company or its assets or
(iv) any agreement, contract, lease, indenture or other instrument to which the
Company is a party.
3.9 Absence of Undisclosed Liabilities; Changes. Except as otherwise
described in Schedule 3.9 or any other Schedule hereto, the Company does not
have any liability or obligation (whether accrued, contingent or otherwise),
which individually or in the aggregate exceeds $100,000 (including, without
limiting the generality of the foregoing, any tax liabilities due or to become
due to the extent they relate to the conduct of the business of the Company
through the date hereof) not reflected in the Financial Statements, except (i)
obligations and liabilities incurred after the Unaudited Balance Sheet Date in
the ordinary course of business consistent with past practice; (ii) obligations
under contracts made in the ordinary course of business consistent with past
practice that would not be required to be reflected or disclosed in financial
statements prepared in accordance with GAAP; and (iii) obligations under or
contemplated by this Agreement. The Company has not become directly or
contingently liable on any indebtedness, liability or obligations of any other
Person.
Since the Unaudited Balance Sheet Date there has been no occurrence or
development that has had or is reasonably likely to have a material adverse
effect on the Company's business, assets, operations or financial condition or
prospects, and there has been no material adverse change in the business,
assets, operations or financial condition or prospects of the Company.
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3.10 Labor Agreement and Actions. The Company is not bound by or
subject to any contract with any labor union and, to the knowledge of the
Company, no labor union has requested or has sought to organize or represent
any of the employees of the Company. There is no strike or other labor dispute
involving the Company pending, or to the knowledge of the Company threatened,
which could reasonably be expected to have a material adverse effect on the
business, assets, operations or financial condition of the Company, nor is the
Company aware of any labor organization activity involving its employees.
3.11 Compliance with Law and Other Instruments. The Company has
complied with and is not in violation of (with due notice or lapse of time or
both) any agreement, instrument, statute or governmental rule or regulation
(including, without limitation, its charter and bylaws) or any governmental
order, judgment, decree, writ, injunction or award of any arbitration, court or
governmental authority applicable to it or its business, operations, assets or
services, applicable to it or its assets that has or could reasonably be
expected to have a material adverse effect on the business, assets, operations
or financial condition of the Company. To the knowledge of the Company, no
employee of the Company is in violation of any term of any employment contract
or any other contract or agreement relating to the employment of such employee
with the Company, as applicable, the violation of which could reasonably be
expected to have a material adverse effect on the business, assets, operations
or financial condition of the Company. Except for governmental licenses,
permits, approvals and consents the failure to obtain any of which alone or in
the aggregate could not reasonably be expected to have a material adverse
effect on the business, assets, operations or financial condition of the
Company, Schedule 3.11 hereto lists all governmental licenses, permits,
franchises, approvals and consents required to be received or obtained by the
Company to conduct its business as presently conducted, all of which the
Company currently possesses.
3.12 Proprietary Rights. Schedule 3.12 contains a list of all
patents, trademarks, trade names and service marks (and all applications
therefor), whether or not registered ("Proprietary Rights"), used by the
Company in the conduct of its business. The Company owns or has the right to
use without the payment of royalties or fees or other consideration (except as
disclosed on Schedule 3.12 or any other Schedules hereto), all Proprietary
Rights (as defined below) and Intellectual Property Rights necessary for or
used by it in the conduct of its business as now conducted, and with respect to
Mitoguazone, Crisnatol Mesylate, Dihydro-5-Azacytide, piritrexim, oxypurinol
and difluoromethylornithine as proposed to be conducted. Except as set forth
on Schedule 3.12 or any other Schedules hereto, none of the Proprietary Rights
or Intellectual Property Rights has been declared invalid, been limited by
order of any court or by agreement, or is the subject of any infringement,
interference or similar proceeding or challenge. The Company has not
infringed, and is not infringing, on the Proprietary Rights or Intellectual
Property Rights of others which could have a material adverse effect on the
business, assets, operations or financial condition of the Company. The
conduct of the Company's business as proposed to be operated is not expected to
conflict with or infringe upon the Proprietary Rights and Intellectual Property
Rights of others.
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Except as set forth on Schedule 3.12 or any other Schedules hereto, the Company
has no obligation to compensate any Person for the use of any such Proprietary
Rights or other Intellectual Property Rights and the Company has not granted to
or assigned to any Person any license or other right to use any of the
Proprietary Rights or other Intellectual Property Rights of the Company. The
consummation of the transactions contemplated by this Agreement will not
terminate or alter the ability of the Company to utilize the Proprietary Rights
or the terms of such use. Listed on Schedule 3.12 are all corporate, trade and
fictitious names under which the Company or its business is operated. The
Company has taken all reasonable measures to protect and preserve the security,
confidentiality and value of its Proprietary Rights or other Intellectual
Property Rights. All key employees and consultants of the Company have
executed Employment Provision Agreements in the form attached hereto as Exhibit
3.12(a) and all members of the Company's Scientific Advisory Board who have not
entered into Consulting Agreements with the Company have executed Non-
Disclosure Confidentiality Agreements in the form attached hereto as Exhibit
3.12(b). To the Company's knowledge, all trade secrets and other confidential
information of the Company are presently protectable and are not part of the
public domain or knowledge, nor, to the Company's knowledge, have they been
used, divulged or appropriated for the benefit of any Person other than the
Company or otherwise to the detriment of the Company. The Company is the
exclusive owner of all rights, titles and interests in its Proprietary Rights
and other Intellectual Property Rights as purported to be exclusively owned by
the Company and insofar as such Proprietary Rights and other Intellectual
Property Rights involve patents, copyrights, licenses, permits, license rights,
contract rights, tradenames or trademarks, such Proprietary Rights and other
Intellectual Property Rights are valid and in full force and effect. Neither
the Company nor, to the Company's knowledge, any of its officers, employees or
consultants, has received notice of, and to the Company's knowledge there are
no claims pending or threatened that the Proprietary Rights or other
Intellectual Property Rights owned or licensed by the Company or the use or
ownership thereof by the Company infringes, violates or conflicts with any such
right of any third party or, with respect to Proprietary Rights or other
Intellectual Property Rights which involved patents, copyrights, licenses,
permits, license rights, contract rights, tradenames or trademarks, that such
Proprietary Rights or other Intellectual Property Rights are invalid or
unenforceable.
"Intellectual Property Rights" shall mean, in addition to Proprietary Rights,
any and all intellectual property rights relating to trade secrets,
confidential business information, formula, biological or chemical processes,
compounds, cell lines, fungi, yeast, laboratory notebooks, algorithms,
copyrights, claims of infringement against third parties, licenses, permits,
license rights to or of technologies, contract rights with employees,
consultants or third parties, inventions and discoveries, and other such rights
generally classified as intangible, intellectual property assets in accordance
with generally accepted accounting principles.
To the Company's knowledge, no third party has claimed or has reason to claim
that any Person employed by or affiliated with the Company has in the course of
such Person's
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employment by or affiliation with the Company (a) violated or may be violating
any of the terms or conditions of his or her employment, non-competition, non-
disclosure or inventions agreement with such third party, (b) disclosed or may
be disclosing or utilized or may be utilizing any trade secret or proprietary
information or documentation of such third party or (c) interfered or may be
interfering in the employment relationship between such third party and any of
its present or former employees. To the Company's knowledge, no third party
has requested information from the Company which suggests that such a claim
might be contemplated. To the Company's knowledge, no Person employed by or
affiliated with the Company has employed or proposes to employ any trade secret
or any information or documentation proprietary to any former employer, and to
the Company's knowledge, no Person employed by or affiliated with the Company
has violated any confidential relationship which such Person may have had with
any third party, in connection with the development, manufacture or sale of any
product or proposed product or the development or sale of any service or
proposed service of the Company, and the Company has no reason to believe there
will be any such employment or violation. To the Company's knowledge, none of
the execution or delivery of this Agreement or the Registration Rights
Agreement, or the carrying on of the business of the Company as officers,
employees or agents by any officer, director or key employee of the Company, or
the conduct or proposed conduct of the business of the Company, will conflict
with or result in a breach of the terms, conditions or provisions of or
constitute a default under any contract, covenant or instrument under which any
such Person is obligated.
3.13 Taxes. Except where the failure to do so would not have a
material adverse effect on the Company's business, the Company has accurately
prepared and timely filed all federal income tax returns and all state and
municipal tax returns that are required to be filed by it and has paid or made
provision for the payment of all amounts due pursuant to such returns, which
are not reflected nor reserved for on the Financial Statements and of all other
taxes, assessments and other governmental charges imposed upon it or upon any
of its assets, income, other than any such charges that are currently payable
without penalty or interest, including, without limitation, all taxes which the
Company is obligated to withhold from amounts owing to employees, creditors and
third parties. There is no tax lien outstanding against the assets of the
Company, except for liens for taxes not yet due and payable. The federal
income tax returns of the Company have not been audited by the Internal Revenue
Service, and there are no waivers in effect of the applicable statute of
limitations for any period. No deficiency, assessment or proposed adjustment
of federal income taxes or state or local taxes of the Company is pending, and
the Company has no knowledge of any proposed liability for any tax to be
imposed.
3.14 Contracts. Except as set forth in Schedule 3.14 or any other
Schedule hereto, the Company is not a party to any contract and has no
obligation or commitment (i) involving aggregate future payments by the Company
of more than $25,000, which is not cancelable on sixty (60) days' notice by the
Company or (ii) that is otherwise material to the business of the Company
(collectively, the "Material Agreements"). Except as set forth on
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Schedule 3.14 or any other Schedule hereto, the Company has no employment
contracts, deferred compensation agreements or bonus, incentive, profit-
sharing, or pension plans currently in force and effect, or any understanding
with respect to any of the foregoing. Except as set forth on Schedule 3.14 or
any other Schedules hereto, no default or defaults (without regard to notice or
lapse of time or both) exist by the Company (including without limitation the
Company's predecessor in interest) in the due performance by it, or to the
knowledge of the Company by the other party or parties thereto, of any term,
covenant or condition of any contract to which the Company is a party that
individually or in the aggregate would have a materially adverse effect on the
business, assets, operations or financial condition of the Company. All of the
Material Agreements are in full force and effect.
3.15 Litigation. Except as provided in Schedule 3.15 or any other
Schedule hereto, no action, proceeding or governmental inquiry or investigation
(a "Proceeding") before any court, arbitrator or tribunal or administrative or
other governmental agency, is (i) pending, or to the knowledge of the Company,
threatened against the Company or any of its officers, directors or employees
(in their capacity as such) or affecting any of its owned or leased assets, or
(ii) to the knowledge of the Company, pending or threatened against any
consultant or shareholder of the Company (in their capacity as such) or
affecting any of its other assets, nor is the Company aware of any such
threatened or contemplated action, proceeding, inquiry or investigation nor, to
the knowledge of the Company, has there occurred any event or does there exist
any condition on the basis of which it is reasonably likely that any such
Proceeding might properly be instituted. There is no Proceeding by the Company
pending or threatened against others.
3.16 Fees and Commissions. Except as described in Schedule 3.16, the
Company has not retained any finder, broker, agent, financial advisor or other
intermediary (collectively, "Intermediary") in connection with the transactions
contemplated by this Agreement. Notwithstanding any disclosure on Schedule
3.16, the Company agrees to indemnify and hold harmless the Purchasers from
liability for any compensation to any Intermediary retained by the Company and
the fees and expenses of defending against such liability or any such alleged
liability.
3.17 ERISA. Except as disclosed on Schedule 3.17, the Company does
not maintain, sponsor, or contribute (and has not during the last five (5)
years been obligated to maintain, sponsor or contribute or maintained,
sponsored or contributed) to any program or arrangement that is an "employee
pension benefit plan," an "employee welfare benefit plan," "multiple employer
welfare arrangement," or a "multi-employer plan", as those terms are defined in
Sections 3(1), 3(2), 3(4) or 3(37) of the Employee Retirement Income Security
Act of 1974, as amended, bonus or incentive award or compensation plan or
arrangement, severance pay policy or agreement, deferred compensation agreement
or arrangement, supplemental executive retirement program, vacation plan,
cafeteria plan, educational assistance plan, and any other employee benefit
plans, agreements, or arrangements
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(collectively, "Employee Programs"). The Company has complied with all
applicable legal requirements, including without limitation ERISA and the Code,
with respect to all Employee Programs.
3.18 Title to Properties; Encumbrances. Except as set forth in
Schedule 3.18 or any other schedule attached hereto, the Company has good and
marketable title to all of the assets owned by it and used in its business,
including, without limitation, all the material properties and assets reflected
in the Financial Statements, subject to no encumbrance, lien, charge or other
restriction of any kind or character, except for (a) liens reflected in the
Financial Statements or on Schedule 3.18 or any other Schedules hereto, (b)
liens consisting of zoning or planning restrictions, easements, permits and
other restrictions or limitations on the use of real property or irregularities
in title thereto which do not materially detract from the value of, or impair
the use of, such property by the Company, as applicable, (c) liens for current
taxes, assessments or governmental charges or levies on property not yet due
and delinquent and (d) liens which do not materially affect the operation of
the business of the Company, as applicable (liens of the type described in
clauses (a) through (d) above, inclusive, are hereinafter sometimes referred to
as "Permitted Liens"). Except as set forth in Schedule 3.18, the assets of the
Company are in good working order and condition, ordinary wear and tear
excepted.
3.19 Environmental Compliance. Except as disclosed in Schedule 3.19
and to the best of their knowledge:
(a) The Company has not released, emitted, discharged, dumped
or disposed of any hazardous substances onto or into the assets of the
Company, or any part thereof, or onto or into the air, surface or
groundwater, land or soil in violation of Environmental Laws. For
purposes of this Agreement "Hazardous Substances" has the meaning set
forth in Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, and shall also
expressly include (1) petroleum, crude oil and any fraction thereof or
radioactive material; (2) any other chemical, material or substance
defined as or included in the definition of "medical waste", "infectious
waste", "hazardous substance", "hazardous waste", "hazardous material",
"toxic substance", "special waste", "contaminant" or "pollutant", or
word or term of similar import, under any applicable Environmental Law;
and (3) any other chemical, material or substance exposure to which is
regulated by any governmental authority having jurisdiction over the
Company or is reasonably likely to give rise to any liability of the
Company, in either case under any Environmental Law. The term
"Environmental Laws" means all applicable foreign, federal, state,
county and local statutes, regulations or ordinances (including common
law duties established by courts or any published judicial or
administrative interpretation thereof) relating to human health and the
environment or the generation, treatment, storage, recycling,
transportation, release or disposal of Hazardous Substances.
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(b) No Hazardous Substances resulting from the Company's
operations have been or are currently located at, in, or under or about
either the assets of the Company or any other property currently or
previously owned or operated by the Company in a manner which: (i)
violates in any material respect applicable Environmental Laws or (ii)
requires any material response, remedial, corrective action or cleanup
of any kind under any applicable Environmental Laws.
(c) With respect to the assets or other property owned or
leased by the Company, whether previously or currently owned or operated
or used by the Company for the treatment, storage or disposal of
Hazardous Substances, no litigation, investigation, administrative or
other proceeding of any kind is pending or threatened by any federal,
foreign, state or local governmental entity or private party arising
from: (i) any applicable Environmental Laws; (ii) any response, remedial
or cleanup activities or (iii) any release or threatened release of
Hazardous Substances. In addition, the Company is not now aware of any
facts on which such litigation, investigation, administrative or other
proceeding of any kind might reasonably be based.
(d) With respect to the assets or other property owned or
leased by the Company, whether previously or currently owned or operated
or used by the Company for the treatment, storage or disposal of
Hazardous Substances, the Company is not subject to any judgment,
injunction, writ, order or agreement arising from: (i) any applicable
Environmental Laws; (ii) any remedial, response or cleanup activities or
(iii) any liabilities, damages, costs, fees or expenses related to the
release or threatened release of Hazardous Substances. In addition, the
Company is not aware of any facts on which such a judgment, injunction,
writ, order or agreement might reasonably be based.
(e) The assets of the Company do not contain any asbestos or
PCB containing materials in material violation of any applicable
Environmental Laws.
(f) The Company has not caused or allowed, and the Company has
not contracted with any party for, the manufacture, processing,
handling, distribution, use, transportation, treatment or storage of any
Hazardous Substances, except in compliance in all material respects with
applicable Environmental Laws. The Company does not own any real
property.
(g) The Company has obtained and is maintaining in full force
and effect all Environmental Permits and is in compliance in all
material respects therewith "Environmental Permit" shall mean any
necessary permit, license, approval or other authorization or filing
required by the Environmental Laws applicable to the premises leased by
the Company and the business operations currently conducted thereon and
as currently proposed to be conducted.
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(h) The Company and the operations of its business are being
conducted in compliance in all material respects with all applicable
Environmental Laws and orders or directives of any governmental
authority having jurisdiction under such Environmental Laws. To the
Company's knowledge, the premises leased by the Company are in
compliance in all material respects with all applicable Environmental
Laws and orders or directives of any governmental authorities having
jurisdiction under such Environmental Laws.
3.20 Affiliate Transactions. Schedule 3.20 describes all material
contracts, arrangements or transactions between the Company and to the
Company's knowledge, between any customer, licensor, licensee or supplier of
the Company, and any of the Company's Affiliates.
3.21 Exemption from Registration. In sole reliance, as to factual
matters concerning each Purchaser, upon representations and warranties by each
Purchaser in SECTION 4 hereof and without independent investigation, the offer
and sale of the Series C Preferred, and the Common Stock issuable upon
conversion of the Series C Preferred, in the manner contemplated by the
Agreement are, and upon conversion will be, (i) exempt from the registration
requirements of Section 5 of the Securities Act of 1933, as amended, and (ii)
either exempt from, or registered or qualified in compliance with, the
registration requirements of all applicable state "blue sky" securities laws.
3.22 Prior Exemptions from Registration. All offers and sales of the
Company's capital stock prior to the date hereof (i) were exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as
amended, and (ii) were made in compliance with all applicable federal and state
securities laws.
3.23 Disclosure. Neither this Agreement, nor any other agreement,
document or certificate furnished to any Purchaser or its counsel by the
Company or on behalf of the Company by any of its officers or counsel in
connection with the transactions contemplated hereby, including, without
limitation, the Financial Statements, when taken as a whole, contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein, in light of the
circumstances under which they were made, not misleading. The Confidential
Private Placement Memorandum dated April 20, 1995, attached as Exhibit 3.23,
was prepared in good faith and with a good faith belief in the reasonableness
of the assumptions used therein. There is no currently existing fact which
materially and adversely affects, or which in the future may (so far as the
Company can reasonably foresee) materially and adversely affect, the business,
properties, operations or condition, financial or otherwise, of the Company
(except for industry and general economic conditions and climate which are
beyond the control of the Company), which has not been set forth in this
Agreement, including the Schedules and Exhibits hereto. Without limiting the
foregoing, the Company does not have knowledge that there exists, or that there
is pending or planned, any patent, invention, device or application
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of a technology or any statute, rule, law, regulation, standard or code which
will, based solely on information currently known by the Company, materially
adversely affect the business, prospects, operations, Proprietary Rights,
Intellectual Property Rights, affairs or financial condition of the Company.
3.24 Additional Representations.
(a) Since the Unaudited Balance Sheet Date, (i) the Company has
not entered into any material transaction, made any distribution on its
capital stock, or redeemed or repurchased any of its capital stock; (ii)
paid or cancelled any obligations or liability, other than current
liabilities paid in the ordinary course of the business consistent with
past practice; (iii) suffered any substantial losses or waived any
rights of material value, whether or not in the ordinary course of
business or covered by insurance; or (iv) purchased any properties or
assets, except in the ordinary course of business in immaterial amounts.
(b) No officer or key employee of the Company has advised the
Company (orally or in writing) that he intends to terminate employment
with the Company.
(c) Each of the Material Agreements is in full force and
effect. There is no anticipated or threatened default of the Material
Agreements and none of the parties nor the Company has provided any
notice of default or of its intention to terminate any Material
Agreement. The Company is not bound by any agreement or instrument or
subject to any charge or other corporate restriction which materially
and adversely affects the business, properties, operations, condition or
prospects, financial or otherwise, of the Company.
(d) The Company is not now and has never been a "United States
real property holding corporation", as defined in Section 897(c)(2) of
the Code and Section 1.897-2(b) of the Regulations promulgated by the
Internal Revenue Service.
(e) To the extent reasonably within its control, the Company
shall endeavor to meet the active business requirements of Section
1202(e) of the Code, provided that (i) the Company does not represent
that it is or will be a "qualified small business" within the meaning of
Section 1202(d) of the Code or that the Series C Preferred Stock is or
will be qualified small business stock as defined in Section 1202(c) of
the Code, (ii) the Company shall not be required to cause any of its
stockholders to reduce its holdings of Company capital stock, and (iii)
the Company shall not be required to change its core business as
currently conducted. The value of the assets owned directly by the
Company does not exceed Fifty Million Dollars ($50,000,000) as of the
date hereof.
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4. Representations, Warranties and Covenants of Purchasers. Each
Purchaser severally represents and warrants solely as to itself to the Company
as follows:
4.1 Authorization. It has full power and authority to enter into and
to perform this Agreement and the Registration Rights Agreement (as defined in
Section 5.7) in accordance with their respective terms. This Agreement has
been, and at the Closing the Registration Rights Agreement will have been, duly
executed and delivered by it, and constitute valid and legally binding
obligations of the Purchaser, legally enforceable against the Purchaser in
accordance with their respective terms, subject to laws of general application
from time to time in effect affecting creditors' rights and the exercise of
judicial discretion in accordance with general equitable principles.
4.2 Investment Representations. It is acquiring the Series C
Preferred purchased by it (and any Common Stock into which Series C Preferred
may be converted) for its own account, for investment, and not with a view to,
or for sale in connection with, any distribution of such Series C Preferred (or
related Common Stock) or any part thereof in violation of Federal or state
securities laws. The Purchaser has no present or contemplated agreement,
arrangement or commitment to dispose of Series C Preferred (or any Common Stock
into which the Series C Preferred may be converted) in violation of Federal or
state securities laws.
4.3 Investment Experience; Access to Information. It (a) is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D as
promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), has completed and delivered to the Company, either previously as an
investor in the Series B Preferred or herewith if not an investor in the Series
B Preferred, the investor questionnaire attached as Exhibit 4.3 (the "Investor
Questionnaire") and certifies that the information concerning it as set forth
on Exhibit A and in the Investor Questionnaire is true and correct in all
respects, (b) alone or together with its advisors is an investor experienced in
the evaluation of businesses similar to the Company's business, and has such
knowledge and experience in financial, business and other relevant matters as
to be competent and fully capable of examining all the merits, risks and other
aspects of the investment contemplated by this Agreement on its own and to make
an informed decision with respect thereto, (c) has the ability to bear the
economic risks of this investment which could include the loss of some or all
of its investment and has sufficient other assets such that the loss of all its
investment in the Company would not have a material adverse effect on its
financial condition or adversely affect its ability to maintain its present
lifestyle or operations, as the case may be, (d) has been provided and
carefully reviewed the Company's Private Placement Memorandum dated April 26,
1995 and has been afforded prior to the date hereof the opportunity to ask
questions of, and to receive answers from, the Company and its representatives
and has received from the Company all other information concerning the
investment contemplated by this Agreement that it has requested, and (e)
acknowledges that no assurances, representations or guaranties of any nature
whatsoever (including those relating to capital appreciation, dividends or tax
aspects) have
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been made by the Company or anyone else to it with regard to the performance of
the investment contemplated by this Agreement. Each Purchaser severally agrees
that it will indemnify and hold harmless the Company and its directors,
officers, controlling persons and affiliates (the "indemnities") from any
liability or damage (including reasonable attorney's fees and expenses) to any
third party suffered or incurred by any of the indemnities solely as a result
of the inaccuracy of any of the foregoing representations and warranties made
by the Purchaser, including any liability or damage arising from or under
Federal or state securities laws. No investigation pursuant to this SECTION
4.3 shall affect any representation or warranty given by the Company in this
Agreement.
4.4 Absence of Registration. Each Purchaser understands that:
The Series C Preferred to be sold and issued hereunder (and the Common
Stock into which the Series C Preferred may be converted) have not been
registered under the Securities Act or any applicable state securities or "Blue
Sky" laws, and may be required to be held indefinitely, unless subsequently
registered under the Securities Act and such applicable Blue Sky laws, or an
exemption from such registration is available.
Except as may be required by the Registration Rights Agreement, the
Company is under no obligation to the Purchaser to file a registration
statement with the Securities and Exchange Commission (the "Commission") or any
state securities commission with respect to the Series C Preferred (or the
Common Stock into which the Series C Preferred may be converted).
4.5 Economic Risk. Each Purchaser understands that it must bear the
economic risk of the investment represented by the purchase of Series C
Preferred (and any Common Stock into which the Series C Preferred may be
converted) for an indefinite period.
4.6 Fees and Commissions. Except as described in Schedule 4.6, each
Purchaser represents and warrants that it has retained no Intermediary in
connection with the transactions contemplated by this Agreement.
Notwithstanding any disclosure on Schedule 4.6, each Purchaser agrees to
indemnify and hold harmless the Company from liability for any compensation to
any Intermediary retained by such Purchaser and the fees and expenses of
defending against such liability or any such alleged liability.
5. Conditions to Closing of the Purchasers. The obligation of each
Purchaser on the Closing Date to pay the Purchase Price required by SECTION 2
hereof shall be subject to each of the following conditions precedent, any one
or more of which may be waived by such Purchaser:
5.1 Representations and Warranties. The representations and
warranties made by the Company herein shall be true and accurate on and as of
the Closing Date.
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5.2 Performance. The Company shall have performed and complied with
all agreements and conditions contained herein required to be performed or
complied with by it prior to or at the Closing.
5.3 Consents, etc. The Company shall have secured all permits,
consents and authorizations that shall be necessary or lawfully required to
consummate the transactions contemplated by this Agreement (including consents
or approvals required under Federal or state securities laws and from the
holders of the Company's outstanding shares of Common Stock, Series A Preferred
and Series B Preferred), to issue the Series C Preferred to be purchased by
each Purchaser, and to issue the Common Stock into which the Series C Preferred
may be converted.
5.4 Compliance Certificates. The Company shall have delivered to
each Purchaser or their respective representative at the Closing a certificate
signed by the President and by the Treasurer of the Company to the effect that
the representations and warranties of the Company contained in this Agreement
continue to be true and accurate on the Closing Date, and that all conditions
specified in SECTIONS 5.2 and 5.3 have been fulfilled, including a list of any
permits, consents or authorizations required thereby.
5.5 Proceedings and Documents. All corporate and other proceedings,
and all documentation relating thereto, necessary to consummate the
transactions contemplated by this Agreement (including but not limited to the
filing by the Company with the Delaware Secretary of State of the Certificate
of Designation, Preferences and Rights of Series C Convertible Preferred Stock)
shall be reasonably satisfactory in substance and form to the Purchaser and
Purchasers' counsel and the Purchaser and Purchasers' counsel shall have
received all such counterpart originals or certified or other copies of the
documents as the Purchaser or Purchasers' counsel may reasonably request,
including without limitation, a certificate of the Secretary of the Company
attesting to the accuracy of each of the following documents which shall be
attached to such certificate: (a) the Certificate of Incorporation of the
Company, including all amendments thereto, the Certificate of Designation,
Preferences and Rights of Series A Convertible Preferred Stock, the Certificate
of Designation, Preferences and Rights of Series B Convertible Stock, and the
Certificate of Designation, Preferences and Rights of Series C Convertible
Preferred Stock, certified as of recent date by the Delaware Secretary of
State, (b) the By-laws of the Company, and (c) the authorizations of the Board
of Directors and stockholders of the Company relating to the Company's
execution, delivery and performance of its respective obligations, if any,
under this Agreement and the Registration Rights Agreement and all other
agreements and transactions contemplated hereby.
5.6 Opinion of Company's Counsel. The Representative shall have
received an opinion from counsel for the Company, dated the Closing Date and
addressed to the Purchasers in substantially the form attached hereto as
Exhibit 5.6.
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5.7 Registration Rights Agreement. The Company shall have executed
and delivered a Registration Rights Agreement in substantially the form
attached hereto as Exhibit 5.7 (the "Registration Rights Agreement").
5.8 Founders' Sales Agreement Xxxxxxx X. Love, Xxxxxxxxx X. Xxxx,
Xxxxxx X. Xxx Xxxx and Xxxxxxx X. Xxxxxxx, Xx. (the "Founders") and the
Purchasers shall have entered into an Amended and Restated Founders' Sales
Agreement in substantially the form attached hereto as Exhibit 5.8 (the
"Founders' Sales Agreement").
5.9 Preferred Stockholders' Sales Agreement. The Purchasers, the
Series B Preferred Stockholders and CTRC Research Foundation shall have entered
into an Amended & Restated Preferred Stockholders' Sales Agreement in
substantially the form attached hereto as Exhibit 5.12 (the "Preferred
Stockholders' Sales Agreement").
6. Conditions to Closing of Company. The obligation of the Company
on the Closing Date to issue and sell the Series C Preferred to be purchased
under this Agreement shall be subject to each of the following conditions
precedent, any one or more of which may be waived by the Company:
6.1 Representations and Warranties. The representations and
warranties made herein by each Purchaser shall be true and accurate in all
material respects on and as of the Closing Date and each Purchaser shall be
deemed to have restated and confirmed such representations and warranties as of
the Closing Date by authorizing or permitting the Closing to be effected
without delivering in writing to the Company a notice of change prior to the
Closing.
6.2 Consents, etc. The Company shall have secured all material
permits, consents and authorizations that shall be necessary or lawfully
required to consummate the transactions contemplated by this Agreement
(including but not limited to consents or approvals required under Federal or
state securities laws.)
6.3 Registration Rights Agreement. The Company and the Purchasers
shall have executed and delivered an Amended and Restated Registration Rights
Agreement in substantially the form attached hereto as Exhibit 5.7.
7. Affirmative Covenants.
The Company covenants and agrees that it will perform and observe the
following covenants and provisions, and will cause each Subsidiary, if and when
such Subsidiary exists, to perform and observe the following covenants and
provisions, as if they applied to it in the same manner as they apply to the
Company.
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7.1 Inspection. For so long as a Purchaser (or a Permitted Holder,
as defined in SECTION 14) holds at least One Hundred Thousand (100,000) shares
of Series C Preferred (or Common Stock into which it has been converted), as
adjusted for Recapitalization Events, the Company will permit an authorized
representative of any such Purchaser (or such Permitted Holder) reasonable
access during the normal business hours of the Company and upon reasonable
notice (which notice in no event shall be provided less than three (3) business
days in advance) to the books, records, personnel and properties of the
Company, for any reasonable purpose whatsoever related to such Purchaser's (or
such Permitted Holder's) investment in the Company. The Company will furnish
to each such Permitted Holder such other information as it from time to time
may reasonably request. For purposes of this SECTION 7.1, "Recapitalization
Events" means stock splits, stock dividends, recapitalizations,
reclassifications and similar events.
7.2 Accounting. The Company will maintain a system of accounting
established and administered in accordance with GAAP consistently applied, and
will set aside on its books such proper reserves as shall be required by GAAP.
In the event the services of the independent public accountants, so selected,
or any firm of independent public accountants hereafter employed by the Company
are terminated, the Company will promptly thereafter notify the Permitted
Holders and will request the firm of independent public accountants whose
services are terminated to deliver to the Permitted Holders a letter of such
firm setting forth the reasons for the termination of their services.
7.3 Monthly and Annual Financial Statements. For so long as any
Series C Preferred remains outstanding, the Company will deliver to each
Purchaser for so long as the Purchaser continues as a stockholder of the
Company:
(a) upon the written request of a Purchaser to the Company
(but in any event to any Purchaser owning greater than 100,000 shares of
Series C Preferred), within 30 days after the end of each month and each
fiscal quarter an unaudited balance sheet of the Company as at the end
of each such month or fiscal quarter and unaudited consolidated
statements of income and of cash flow of the Company for each such month
or fiscal quarter compared to budget;
(b) within 90 days after the end of each fiscal year of the
Company, a balance sheet of the Company as at the end of such year and
statements of income and of cash flow of the Company for such year,
audited by such firm of independent public accountants of national
recognition that is appointed by the Company's Board of Directors or an
authorized committee thereof, and a report summarizing the Company's
development activities during the period, and a certificate executed by
the President confirming that during such period the Company has been in
compliance with the terms of this Agreement;
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(c) promptly upon receipt thereof, any written report
submitted to the Company by independent public accountants in connection
with an annual or interim audit of the books of the Company and its
Subsidiaries made by such accountants; and
(d) prior to the commencement of each fiscal year, a
reasonably detailed business plan for such fiscal year including monthly
operating expenses and profit and loss projections and a capital
expenditure budget for the fiscal year as approved by the Board of
Directors, and promptly after any revisions to such budget approved by
the Board of Directors, a copy of such revisions.
None of the foregoing provisions of this SECTION 7 nor any other
provision of this Agreement shall be in limitation of any rights which a holder
of Series C Preferred may have with respect to the books and records of the
Company, or to inspect its properties or discuss its affairs, finances and
accounts, under the laws of the jurisdiction of its incorporation.
7.4 Use of Proceeds. The Company shall use the proceeds from the
sale of Series C Preferred for purposes of expanding the development of the
Company's cancer pharmaceutical and research business and to fulfill general
corporate working capital purposes consistent therewith. It is currently
anticipated by the Company that the proceeds will be allocated for acquisition
of additional products, development expenditures and for general corporate
working capital purposes.
7.5 Confidentiality and Restrictions on Trading. Any confidential or
proprietary information concerning the Company provided to any Purchaser or a
representative thereof pursuant to this Agreement or otherwise, including
SECTIONS 7.1 and 7.3 hereof, shall be used by such Purchaser or any
representative or affiliate thereof solely in furtherance of its interests as
an investor in the Company, and the Purchaser or representative or affiliate
thereof shall (except as otherwise required by law to which the Purchaser or
representative or affiliate thereof may be subject) maintain the
confidentiality of all non-public information of the Company, provided that,
notwithstanding any other term of this Agreement to the contrary, (i) the
Company shall not be obligated to disclose any information, the disclosure of
which its Board of Directors or President believes in good faith could have a
material adverse effect on the Company or its stockholders, or both and (ii)
the Purchasers shall be entitled to disclose such non-public information (a) as
is reasonably necessary to enforce their rights under this Agreement, (b) on a
confidential basis to their attorneys and other professionals to the extent
reasonably necessary in connection with the Purchasers' investment in the
Company, and (c) to any prospective purchaser of the Series C Preferred, or any
affiliate or partner of a Purchaser, provided that such third party agrees to
be bound by the confidentiality provisions hereof, and such third party is not
a competitor of the Company. No Purchaser or representative, affiliate or
transferee thereof shall purchase, sell or take any other action relating to
any capital stock or other securities issued by the Company if any such
purchase, sale or other action would be in violation of any federal or state
"xxxxxxx xxxxxxx" or other securities laws.
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7.6 Right of First Refusal. So long as there are any shares of
Series C Preferred outstanding, the Company hereby grants to the Purchasers as
a group the right of first refusal to purchase such amount of New Securities
(as defined in paragraph (a) below) that the Company may, from time to time,
propose to sell and issue that will enable the Purchasers, as a group, to
maintain their collective percentage equity interest in the Company. This
right of first refusal shall be subject to the following provisions:
(a) "New Securities" shall mean any Common Stock, preferred
stock or other security which is convertible into or exchangeable for
shares of Common Stock of the Company or any option, warrant or other
right to acquire such security or Common Stock of the Company; provided,
however, that "New Securities" shall not include (i) Common Stock
issuable upon conversion of or with respect to Series C Preferred or
upon conversion of any other convertible security of the Company
(including the Series A Preferred and the Series B Preferred) that is
outstanding from time to time, (ii) securities issued upon the exercise
of any warrants or options issued or granted by the Company that are
referred to in or contemplated by SECTION 3.2 or SECTION 8.3 of this
Agreement, (iii) 637,625 shares of Common Stock to be issued by the
Company at fair market value, (iv) securities offered to the public in
an underwritten offering pursuant to a registration statement filed
under the Securities Act, (v) securities issued by the Company as
consideration for an acquisition of a portion or all of the equity or
other interests in another corporation, partnership, business entity or
line of business of another business entity by the Company by merger,
reorganization, stock-for-equity or stock-for-assets exchange or any
other similar transaction and (vi) any option issued pursuant to a plan
as permitted by and subject to SECTION 8.3 below.
(b) If the Company proposes to issue New Securities, it shall
give each Purchaser written notice (the "Rights Notice") of its
intention, describing the New Securities, the price, and the general
terms upon which the Company proposes to issue them. Each Purchaser
shall have fifteen (15) days from the date of mailing of the Rights
Notice to agree to purchase (i) all or any part of its Pro-Rata Share
(as defined in subsection (e) below) of such New Securities and (ii) all
or any part of the Pro-Rata Share of such New Securities of all other
Purchasers to the extent that such other Purchasers do not elect to
purchase their respective full Pro-Rata Share, in each case for the
price and upon the general terms specified in the Rights Notice by
giving written notice to the Company setting forth the quantity of New
Securities it elects to purchase. If the Purchasers who elect to
purchase their full Pro-Rata Share also elect to purchase all or a
portion of the Pro-Rata Share of such New Securities of other Purchasers
who do not elect to purchase 100% of their respective Pro-Rata Share
(such other Purchasers referred to as "Non-Participating Purchasers"),
then such Purchasers shall be entitled to purchase, in addition to their
Pro-Rata Share, a percentage of the Pro-Rata Shares of the Non-
Participating Purchasers determined by the fraction the numerator of
which is the number of shares of Common Stock then
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held, together with the number of shares of Common Stock issuable upon
conversion of the Series C Preferred then held by such Purchaser as of
the date of the Rights Notice, and the denominator of which is the sum
of the number of shares of Common Stock then held, plus the number of
shares of Common Stock issuable upon the conversion of Series C
Preferred then held, by all Purchasers electing to purchase more than
their Pro-Rata Share. Each Purchaser who agrees to purchase New
Securities shall deliver the purchase price for the New Securities and
otherwise comply with the general terms of sale set forth in the Rights
Notice on the thirtieth (30th) day after the date of mailing of the
Rights Notice (or such other date as agreed to by the Company and such
Purchaser) and the Company shall deliver duly registered share
certificates for the New Securities in exchange therefor.
(c) If the Purchasers fail to exercise in full the right of
first refusal within the period or periods specified in paragraph (b)
hereof, the Company shall have ninety (90) days after the date of
mailing of the Rights Notice to sell the unsold New Securities and the
balance of the New Securities not subject to the Right of First Refusal
provided for herein at a price and upon general terms no more favorable
to the purchasers thereof than specified in the Rights Notice. If the
Company has not sold the New Securities within said ninety (90) day
period the Company shall not thereafter issue or sell any New Securities
without first offering such securities to the Purchasers in the manner
provided above.
(d) A Purchaser's "Pro-Rata Share" shall be the percentage
determined by a fraction the numerator of which is the number of shares
of Common Stock then held, together with the number of shares of Common
Stock issuable upon conversion of the Series C Preferred then held, by
such Purchaser as of the date of the Rights Notice (as defined in
paragraph (b) above) and the denominator of which is the sum of the
total number of shares of Common Stock then outstanding, together with
the number of shares of Common Stock issuable upon conversion of
convertible securities of the Company then outstanding, all as of such
date.
7.7 Restrictions on Transfer. Each Purchaser (and each transferee,
successor or assign of a Purchaser) further agrees that (a) it will not offer,
sell or otherwise dispose of the Series C Preferred (or the Common Stock in to
which the Series C Preferred may be converted), unless such offer, sale or
other disposition is effected in accordance with the terms of this Agreement
and the Registration Rights Agreement and such offer, sale or other disposition
is (i) registered under the Securities Act and applicable state securities
laws, (ii) pursuant to Rule 144 of the Securities Act of 1933, or (iii) in
compliance with an opinion of counsel to such Purchaser delivered to the
Company and reasonably acceptable to the Company and its counsel to the effect
that such offer, sale or other disposition thereof does not violate the
Securities Act or applicable state securities laws, and (b) the certificate(s)
representing the Series C Preferred (and any Common Stock into which the Series
C Preferred maybe converted) shall bear legends in substantially the following
form:
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THE TRANSFER AND VOTING OF THESE SHARES IS SUBJECT TO THE TERMS OF A
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT DATED AS OF JULY 22, 1996 AND A
PREFERRED STOCKHOLDERS' SALES AGREEMENT DATED AS OF JULY 22, 1996, COPIES OF
WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND SUCH APPLICABLE STATE LAW OR, IN THE OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, DOES NOT VIOLATE THE PROVISIONS THEREOF OR UNLESS SOLD PURSUANT TO
RULE 144 OF THE SECURITIES ACT OF 1933.
Upon request of a Purchaser or other person who in accordance with the
provisions of this SECTION 7.7 becomes a holder of Series C Preferred (or the
Common Stock into which the Series C Preferred has been converted), the Company
shall remove the legend set forth in the second paragraph above from the
certificates evidencing such Series C Preferred or Common Stock or issue to
such holder new certificates evidencing such Series C Preferred or Common Stock
free of such legend, if such request is accompanied by an opinion of counsel,
reasonably satisfactory to the Company and its counsel, to the effect that such
Series C Preferred or Common Stock, as applicable, is not required by the
Securities Act or other applicable law to continue to bear the legend or a
legend similar thereto.
7.8 Transfer Instructions. Each Purchaser agrees that the Company
may provide for appropriate transfer instructions to implement the provisions
of SECTION 7.7 hereof.
7.9 Operation of Business. For so long as any shares of Series C
Preferred remain outstanding, the Company shall comply with each of the
following covenants, and will cause each Subsidiary, if and when such
Subsidiary exists, to comply with each of the following covenants, as if they
applied to it in the same manner as they apply to the Company.
(a) Compliance with Laws, Etc. The Company shall comply with
all laws, rules, regulations, judgments, orders and decrees of any
governmental or regulatory authority, the violation of which could have
a material adverse effect on the business, assets or properties of the
Company and with all material contracts and agreements to which it is a
party or shall become a party and shall perform all material obligations
which it has or shall incur.
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(b) Preservation of Corporate Existence and Property. The
Company shall preserve, protect and maintain: (i) its corporate
existence and good standing in its jurisdiction of incorporation, (ii)
its rights, franchises and privileges, and (iii) all of its properties
necessary or useful in the proper conduct of its business in good
working order and condition, with the exception of (x) ordinary wear and
tear, and (y) casualty losses covered by insurance, allowing for
reasonable deductibles.
(c) Insurance. The Company shall maintain or cause to be
maintained, with financially sound and reputable insurers, insurance
with respect to the properties and business of the Company, against loss
or damage of the kinds customarily insured against by corporations of
established reputation and similar size engaged in the same or similar
business, in adequate amounts.
(d) Payment of Indebtedness. The Company shall pay or cause
to be paid the principal of, and the interest and premium, if any, on
all indebtedness heretofore or hereafter incurred or assumed by the
Company when and as the same shall become due and payable, unless such
indebtedness shall be renewed or extended, in which case such payments
shall be made in accordance with the terms of such renewal or extension.
(e) Transactions with Affiliates. Without the consent of the
directors elected by the holders of Series B Preferred, the Company will
not enter into any agreements or transactions with any Affiliate of the
Company any member of their families, or any corporation or other entity
in which any one or more of such persons holds, directly or indirectly,
five percent (5%) or more of any class of capital stock, on terms less
favorable to the Company than could be obtained by the Company in an
arm's-length transaction with a person who was not an affiliate of the
Company.
(f) Further Assurance. The Company shall cooperate with the
Purchasers and shall execute and deliver all such further instruments
and documents and do all such further acts and things as the Company may
be reasonably requested to do from time to time by any of the Purchasers
in order to satisfy the conditions and carry out the provisions and
purposes of this Agreement and the Registration Rights Agreement.
(g) Section 305. The Company shall not enter into any
transaction which would result in a dividend on a Purchaser's shares
under Section 305 of the Code (or any successor provision) other than
dividends accruing pursuant to the Certificate of Incorporation, as
amended from time to time.
(h) U.S. Real Property Holding Corporation. The Company will
not be a "United States real property holding corporation", as defined
in Section 897(c)(2) of the Code and Section 1.897-2(b) of the
Regulations promulgated by the Internal Revenue Service and upon written
request, will provide to any holder of Preferred
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Stock a statement to the effect informing such holder whether its
interest in the Company constitutes a U.S. real property interest.
7.10 Reservation of Common Stock. For so long as any shares of Series
C Preferred remain outstanding, the Company shall increase the authorized
amount and maintain in reserve that number of shares of Common Stock necessary
to accommodate the conversion into Common Stock of all issued and outstanding
shares of Series C Preferred.
7.11 Public Announcements. The Company shall not make any public
announcement or disclosure relating to any Purchaser's participation in the
transactions contemplated by this Agreement or the relationship established
hereby with any Purchaser unless such announcement or disclosure is (i) in the
judgment of the Company after consultation with its legal counsel, required by
applicable law or regulation or (ii) approved by the Purchaser, which approval
shall not be unreasonably withheld.
7.12 Maintenance of Key Person Life Insurance. The Company will
maintain, with a financially sound and reputable insurance company or
association, term life insurance on the life of Xx. Xxxxxx Xxx Xxxx and the
life of Xxxxxxx Xxxx, in the amount of at least $1,000,000, which proceeds
shall be payable to the order of the Company. The Company will not cause or
permit any assignment of the proceeds of said policy, and will not borrow
against such policy. The Company will add the Purchasers as notice parties to
such policy, and will request that the issuer of such policy provide each
Purchaser with twenty (20) days' notice before such policy is terminated (for
failure to pay premiums or otherwise) or assigned, or before any change is made
in the designation of the beneficiary thereof.
7.13 New Developments. Subject to the other contractual obligations
of such consultants, the Company will cause all technological developments,
patentable or unpatentable inventions, discoveries or improvements by its
officers, employees or consultants to be documented in accordance with
appropriate professional standards, cause all officers, employees and
consultants to execute appropriate patent and copyright assignment agreements
to the Company, as the case may be, and, where possible and appropriate, cause
all officers, employees and consultants to file and execute United States and
foreign patent or copyright applications relating to and protecting such
developments on behalf of the Company. The Company will cause each officer,
key employee and key consultant now or hereafter employed to execute and
deliver an Employee Provisions Agreement in the form and substance of Exhibit
3.12 attached hereto, or as otherwise approved by the Board of Directors of the
Company.
7.14 Indemnification. The Company shall at all times maintain
provisions in its Certificate of Incorporation or By-laws indemnifying all
directors against liability and providing for the advancement of expenses to
the maximum extent permitted under the laws of the jurisdiction of its
incorporation.
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7.15 Rule 144A Information. The Company covenants and agrees that, at
all times during which the Company is neither subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, nor exempt from
reporting pursuant to Rule 12(g)3-2(b) under the Exchange Act, it will provide
in written form (as promptly as practicable and in any event within fifteen
(15) business days), upon the written request of any holder of Series C
Preferred or a prospective buyer of such shares or the Conversion Shares, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the Commission under the Securities Act ("Rule 144A
Information"). The Company further covenants, upon written request, to
cooperate with and assist any holder of Series C Preferred or any member of the
National Association of Securities Dealers, Inc. system for Private Offerings
Resales and Trading through Automated Linkage ("PORTAL") in applying to
designate and thereafter maintain the eligibility of such shares or the
Conversion Shares for trading through PORTAL. The Company's obligations under
this SECTION 7.15 shall at all times be contingent upon the relevant holder of
Series C Preferred obtaining from a prospective purchaser an agreement to take
all reasonable precautions to safeguard the Rule 144A Information from
disclosure to anyone other than a Person who will assist such purchaser in
evaluating the purchase of such securities.
7.16 Compliance with Material Agreements. The Company shall provide
notice to the Company's Board of Directors of any material breach by the
Company of any Material Agreement.
7.17 Meetings of Directors; Expenses of Directors. The Company shall
hold meetings of the Company's Board of Directors (any of which may be
conducted as telephonic meetings in accordance with the Delaware General
Corporation Law) not less frequently than six (6) times during each calendar
year.
7.18 Notice to Board of Directors. The Company shall provide notice
within a reasonable period of time to a designated representative of Perseus
Pharmaceuticals, L.L.C. of (i) any material adverse change in the Company's
business, assets, properties, management, operation or financial condition,
(ii) all actions, writs and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign affecting the Company or its assets of which the Company has knowledge,
which if resolved adversely, could result in a material adverse effect on the
Company's business. Such representative of Perseus Pharmaceuticals, L.L.C.
shall have the right to attend all meetings of the Company's Board of Directors
(the "Attendance Rights") whether such meetings are conducted in person or
telephonically, but shall not have the right to vote or participate in any
action taken at such meetings. The Attendance Rights shall not be assignable
by Perseus Pharmaceuticals, L.L.C. without the written consent of the Company.
7.19 Founders' Sales Agreement. Except as otherwise prohibited by
law, the Company agrees that it shall not permit any transfer of shares of
capital stock in violation of the Founders' Sales Agreement.
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7.20 Preferred Stockholders' Sales Agreement. Except as otherwise
prohibited by law, the Company agrees that it shall not permit any transfer of
shares of capital stock in violation of the Preferred Stockholders' Sales
Agreement.
8. Additional Covenants of the Company.
8.1 Conduct of Business in the Ordinary Course. From the date of
this Agreement until the Closing, except with the prior approval of each
Purchaser, the Company will operate the business of the Company in the ordinary
course.
8.2 Reasonable Efforts. From the date of this Agreement until the
Closing, the Company shall use all reasonable efforts to obtain all necessary
consents and take all actions necessary for the consummation of the
transactions contemplated hereby.
8.3 Stock Option Plans. From the date of this Agreement until the
first date on which shares of Series C Preferred cease to be outstanding, the
Company shall be permitted to increase from time to time the number of shares
issuable to employees, advisors, officers, directors and consultants of, and
other persons performing services for, the Company in connection with their
advisory or other relationship with the Company only pursuant to plans approved
by Company's Board of Directors, provided that without the written consent of
Purchasers representing at least 50% of the Series C Preferred, the Company
shall not permit the total number of shares issuable pursuant to such plans to
exceed 15% of the number of shares of Common Stock and Common Stock Equivalents
that are outstanding at the time of a grant, subject in any event to the
provisions of the Certificate of Incorporation. For purposes of this SECTION
8.3, "Common Stock Equivalent" shall mean (i) Common Stock issuable upon
conversion of the Series A Preferred, the Series B Preferred, the Series C
Preferred and any other convertible security that may be outstanding from time
to time, and (ii) Common Stock issuable upon exercise of warrants to acquire
Common Stock issued to Vector Securities International, Inc.
9. Termination of Agreement and Survival of Representations,
Warranties and Covenants.
(a) Termination. This Agreement may be terminated prior to
Closing by the Company with respect to some or all of the Purchasers and
by a Purchaser with respect to itself upon written notice to the other
parties:
(i) At any time by mutual written agreement of all the
parties hereto;
(ii) At any time after August 1, 1996, by any party if
the Closing shall not have occurred on or prior to such date;
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(iii) By the Company if any representation or warranty of
a Purchaser contained in this Agreement or in any certificate or
other document executed and delivered by a Purchaser to the
Company pursuant to this Agreement is or becomes untrue or
breached in any material respect or if a Purchaser fails to
comply in any material respect with any covenant or agreement
contained herein, and any such misrepresentation, breach or
noncompliance is not cured, waived, or eliminated before Closing;
(iv) By a Purchaser if any representation or warranty of
the Company contained in this Agreement or in any certificate or
other document executed and delivered by the Company pursuant to
this Agreement is or becomes untrue or breached in any material
respect or if the Company fails to comply in any material respect
with any covenant or agreement contained herein, and any such
misrepresentation, breach or noncompliance is not cured, waived,
or eliminated before Closing;
(v) On the Closing Date by a Purchaser if the
conditions set forth in SECTION 5 have not been satisfied; or
(vi) On the Closing Date by the Company if the
conditions stated in SECTION 6 have not been satisfied.
In the event this Agreement is terminated pursuant to
subparagraph (iii) or (iv) above, the Purchasers and the Company shall
be entitled to pursue, exercise and enforce any and all remedies,
rights, powers and privileges available at law or in equity and under
this Agreement.
(b) Survival of Representations, Warranties and Covenants.
Except as otherwise provided in this Agreement, all covenants made
hereunder or pursuant hereto or in connection with the transactions
contemplated hereby shall survive the Closing and shall continue in full
force and effect thereafter. Any representation or warranty the breach
or inaccuracy of which involves fraud on the part of the Company or a
Purchaser shall survive the Closing and shall continue in full force and
effect thereafter. All other representations and warranties, as
certified to by the Company pursuant to the certificate required to be
delivered under SECTION 5.4 and by the Purchasers pursuant to SECTION
6.1 of this Agreement, made hereunder or pursuant hereto or in
connection with the transactions contemplated hereby shall survive the
Closing until the expiration of the applicable statute of limitations
and notice of any claim based on a breach of any such representation or
warranty must be given prior to the expiration of such statute of
limitations.
10. Indemnification. The Company shall indemnify and hold harmless
each Purchaser against and from any losses,
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claims, damages or liabilities, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (A)
the falsity or incorrectness as of the Closing Date of any representation or
warranty of the Company contained in or made pursuant to SECTION 3 hereof, or
(B) the existence of any condition, event or fact constituting, or which with
notice or passage of time, or both, would constitute a default in the
observance of any of the Company's undertakings or covenants hereunder or under
any of the documents executed in connection herewith. The Company shall also
pay all reasonable attorney's fees and costs and court costs incurred by the
Purchasers in enforcing the indemnification provided for in this SECTION 10
(provided, however, that where more than one Purchaser is requesting the
indemnification provided for in this SECTION 10, the Company shall only be
obligated to attorney's fees of one counsel to represent all such Purchasers).
11. Notices. All notices, requests, consents and other
communications provided for herein (except as stated in the last sentence of
this SECTION 11) shall be in writing, and shall be mailed by certified mail,
postage prepaid, delivered by Federal Express or similar overnight courier, or
personally delivered, as follows:
(a) If to the Company:
Ilex Oncology, Inc.
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Love
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
(b) If to the Purchasers to the persons
and addresses set forth on Exhibit A
or such other addresses as each of the parties hereto may provide from time to
time in writing to the other parties. For purposes of computing the time
periods set forth in SECTION 7, the date of mailing shall be deemed to be the
date of delivery. The financial statements and other reports required by
SECTION 7 may be mailed by first-class regular mail.
12. Modifications; Waiver. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated (i) prior to the
Closing Date unless effected by a writing executed and delivered by the parties
hereto and (ii) after the Closing Date unless effected by a writing executed
and delivered by the Company and by holders representing not
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less than 66-2/3% of the aggregate number of issued and outstanding shares of
Series C Preferred and shares of Common Stock issued upon the conversion of
Series C Preferred, provided that this SECTION 12 may not be modified or
amended without the written consent of all the holders of Series C Preferred
and the Company, and provided further that in any event, no amendment or change
may be made to the terms hereof that imposes additional obligations or
restrictions upon a party without its written consent.
13. Entire Agreement. This Agreement, including the Schedules and
Exhibits hereto, including the Registration Rights Agreement, the Amended and
Restated Founders' Sales Agreement and the Amended and Restated Preferred
Stockholders' Sales Agreement, contains the entire agreements between the
parties with respect to the transactions contemplated hereby, and supersedes
all negotiations, agreements, representations, warranties, commitments, whether
in writing or oral, prior to the date hereof and shall, except as otherwise
expressly provided herein and therein, not affect the rights of the parties
under the Series B Convertible Preferred Stock Purchase Agreement dated
September 29, 1995.
14. Application to Successor Holders. The rights of each Purchaser
set forth in SECTIONS 7.1, 7.3 AND 7.6 shall inure to the benefit of any person
who becomes a holder of Series C Preferred sold pursuant to this Agreement (or
of Common Stock issued upon conversion of such Series C Preferred) in a
transfer made in accordance with the provisions of SECTION 7.7 (a "Permitted
Holder") hereof as though such holder were a Purchaser, and the obligations of
each Purchaser set forth in SECTION 7.5 shall be binding on any person who
after the date hereof becomes a holder of shares of Series C Preferred sold
pursuant to this Agreement as though such holder were a Purchaser.
15. Execution and Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and such counterparts together shall constitute one
instrument.
16. Governing Law and Severability. This Agreement shall be governed
by the laws of the State of Texas as applied to agreements entered into and to
be performed entirely within the State of Texas. In the event any provision of
this Agreement or the application of such provision to any party shall be held
by a court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect.
17. Headings. The descriptive headings of the Sections hereof and
the Schedules and Exhibits hereto are inserted for convenience only, and do not
constitute a part of this Agreement.
18. Waivers And Consents. Any waiver or consent hereunder shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
Notwithstanding this Agreement, any term or
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condition hereof, or the consummation of the transactions contemplated hereby,
no Purchaser waives or relinquishes any right it may have or may acquire
against the Company or any of its Affiliates or agents in connection with the
acquisition of Series C Preferred by such Purchaser, or the ownership thereof.
All such rights shall remain unimpaired by the execution of this Agreement and
the consummation of the transactions contemplated hereby.
19. Severability. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement shall be unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court deems it
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Agreement shall nevertheless
remain in full force and effect.
20. No Waiver Of Rights, Powers And Remedies. Except as expressly
provided in this Agreement, no failure or delay by a party hereto in exercising
any right, power or remedy under this Agreement, and no course of dealing
between the parties hereto, shall operate as a waiver of any such right, power
or remedy of the party. No single or partial exercise of any right, power or
remedy under this Agreement by a party hereto, nor any abandonment or
discontinuance of steps to enforce any such right, power or remedy, shall
preclude such party from any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The election of any remedy by a
party hereto shall not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not expressly
required under this Agreement shall entitle the party receiving such notice or
demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
21. Reliance. The parties hereto agree that, notwithstanding any
access to information by any party or any right of a party to this Agreement to
investigate the affairs of any other party to this Agreement, the party having
such access and right to investigate shall have the right to rely fully upon
the representations and warranties of the other party expressly contained in
this Agreement and on the accuracy of any Schedule, Exhibit or other document
attached hereto or referred to herein or delivered by such other party or
pursuant to this Agreement. Each of the Purchasers acknowledges that, based on
information provided by the Company, it has made its own analysis and decisions
regarding the transactions contemplated hereby and that it is not relying on
any of the other Purchasers in executing this Agreement or consummating the
transactions contemplated hereby.
22. Costs, Expenses and Taxes. Each of the parties hereto shall
bear such party's own costs and expenses in connection with this Agreement and
the transactions contemplated hereby.
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23. Definitions. The following terms shall have the respective
meanings set forth below whenever used in this Agreement:
"Affiliate" has the meaning ascribed to that term in Rule 12b-2 under
the Exchange Act, or any successor rule and in any event with respect to the
Company, shall mean any Director, officer or stockholder thereof.
"Knowledge" or "known" shall mean or refer to the actual knowledge of
the Company, its officers, directors and key employees after reasonable
diligence
"Subsidiary" or "Subsidiaries" shall mean any corporation, partnership,
trust or other entity of which the Company and/or any of its other Subsidiaries
directly or indirectly owns at the time a majority of the outstanding shares of
any class of equity security of such corporation, partnership, trust or other
entity.
[signatures on next page]
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32
This Agreement is hereby executed as of the date first above written.
ILEX ONCOLOGY, INC.
By: /s/ XXXXXXX XXXX
------------------------------------------
Name: Xxxxxxx Xxxx
----------------------------------------
Title: Pres./CEO
---------------------------------------
PURCHASERS:
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited
Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/
-----------------------------------------
Senior Investment Manager
ADVENT PERFORMANCE MATERIALS LIMITED
PARTNERSHIP
By: Advent International Limited
Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/
-----------------------------------------
Senior Investment Manager
ADVENTACT LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/
-----------------------------------------
Senior Investment Manager
-32-
33
ADVENT INTERNATIONAL INVESTORS II LIMITED
PARTNERSHIP
By: Advent International Corporation,
General Partner
By: NOT PARTICIPATING
-----------------------------------------
Senior Investment Manager
BOSTON CAPITAL VENTURES III,
LIMITED PARTNERSHIP
By: BD Partners Limited Partnership
its General Partner
By: /s/
-----------------------------------------
General Partner
CROSS ATLANTIC PARTNERS K/S
By its General Partner: CAP/HAMBRO L.P.
By its General Partner: CAP/HAMBRO, INC.
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CRYSTAL PARTNERS IV
By: /s/
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
/s/ XXXXX XXXX
---------------------------------------------
Xxxxx Xxxx
/s/ XXXXXX XXXXXXX
---------------------------------------------
Xxxxxx Xxxxxxx
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34
/s/ XXXX XXX XXXX
---------------------------------------------
Xxxx Xxx Xxxx
DRUG ROYALTY CORPORATION INC.
By: /s/
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
/s/ XXXXXX XXXXXXXX
---------------------------------------------
Xxxxxx Xxxxxxxx
/s/ XXXXXX XXXXXX
---------------------------------------------
Xxxxxx Xxxxxx
/s/ XXXXXXX XXXXXX
---------------------------------------------
Xxxxxxx Xxxxxx
/s/ XXXXX XXXXXX, JR.
---------------------------------------------
Xxxxx Xxxxxx, Jr.
/s/ XXXX XXXXXXX
---------------------------------------------
Xxxx Xxxxxxx
/s/ XXXX XXXXXX
---------------------------------------------
Xxxx Xxxxxx
/s/ XXXXX X. XXXXXXX
---------------------------------------------
Xxxxx X. XxXxxxx
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35
/s/ XXXXXX XXXXXX, M.D.
---------------------------------------------
Xxxxxx Xxxxxx, M.D.
PERSEUS PHARMACEUTICALS, L.L.C.
By: /s/
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
/s/ XXXX XXXXXXXX
---------------------------------------------
Xxxx Xxxxxxxx
/s/ XXXXX X. XXXXXXXX
---------------------------------------------
Xxxxx X. Xxxxxxxx
/s/ XXXXX X. XXXXXXXX, XX.
---------------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
TRINITY UNIVERSITY
By: /s/
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
/s/ XXXXXX X. XXXX, XX., PH.D.
---------------------------------------------
Xxxxxx X. Xxxx, Xx., Ph.D.
/s/ XXXX XXXXX
---------------------------------------------
Xxxx Xxxxx
/s/ XXXXX XXXXXX
---------------------------------------------
Xxxxx Xxxxxx
-35-
36
CROSS ATLANTIC PARTNERS II K/S
By its General Partner: CAP/HAMBRO L.P.
By its General Partner: CAP/HAMBRO, INC.
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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