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Exhibit 10.59
STOCK PURCHASE AGREEMENT
(Xxxxxxxxx X. Xxxx)
This Stock Purchase Agreement (the "Agreement") is entered into as of
April 11, 1995 by and between ILEX Oncology, Inc., a Delaware corporation
formerly known as Biovensa Inc. (the "Company" or the "Seller") and Xxxxxxxxx
X. Xxxx ("Employee" or the "Buyer").
WHEREAS, the Company and the Employee have entered into an Employment
Agreement dated as of November 2, 1994 (the "Employment").
WHEREAS, pursuant to the terms of the Employment Agreement, the Company
agreed to sell, and the Employee agreed to purchase 480,000 shares (the
"Shares") of the Company's common stock, $.01 par value per share (the "Common
Stock").
WHEREAS, Buyer desires to purchase, and Seller desires to sell the
Shares.
NOW THEREFORE, in consideration of the recitals, representations,
warranties, covenants and agreements contained herein, and other food and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Seller agree as follows:
1. PURCHASE AND SALE. Subject to the provisions of this Agreement,
Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, The
Shares upon the Following terms:
(a) Upon the execution of this agreement, Buyer shall pay to
Seller an aggregate of $48,000, (the "Purchase Price") for the Shares,
at which xxxx Xxxxxx shall deliver to Buyer a stock certificate
representing the Shares and registered in the name of Buyer or its
designee.
(b) Buyer shall pay the Purchase Price to Seller as follows:
(i) $28,000 via check or wire transfer of immediately available funds
and (ii) $20,00 via a promissory note substantially in the form attached
hereto as Exhibit A (the "Promissory Note"). The full and timely
payment of principal and interest accruing on the Promissory Note shall
be secured by the Shares in the manner set forth in the Promissory Note
and, in accordance wherewith, upon delivery of the Promissory Note Buyer
shall deliver to and deposit with Seller the stock certificates
representing the Pledged Shares (as that term is defined in the
Promissory Note) together with stock powers duly executed in blank by
Buyer; such certificates and stock powers shall be held by Seller until
the payment in full of all amounts outstanding under the Promissory
Note.
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2. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer that:
(a) The Shares have been duly authorized and validly issued,
and are free and clear of any claims, pledges, security interests, liens
and encumbrances and other restrictions and limitations of any type,
other than those arising pursuant to the Employment Agreement or this
Agreement.
(b) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware.
(c) Seller has the requisite corporate power and authority to
execute and deliver this Agreement and to sell and deliver the Shares to
the Buyer pursuant to this Agreement.
(d) The execution, delivery and performance of this Agreement
has been duly authorized and approved by all necessary corporate action.
(e) This Agreement constitutes the valid and binding
obligation of the Seller, enforceable in accordance with its terms,
subject as to enforcement to usual equitable principles and except as
limited by bankruptcy, moratorium, insolvency or similar laws of general
application affecting the enforcement of creditor's rights.
3. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller that:
(a) Buyer has the requisite authority and capacity to enter
into, deliver and perform its obligations pursuant to this Agreement,
the Promissory Note and all of the transactions contemplated hereby and
thereby.
(b) This Agreement, the Promissory Note and the other
documents and instruments to be delivered by Buyer pursuant hereto
constitute the valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms, subject as to
enforcement to usual equitable principles and except as limited by
bankruptcy, moratorium, insolvency or similar laws of general
application affecting the enforcement of creditor's rights.
(c) The execution, delivery and performance by Buyer of this
Agreement and the other documents and instruments to be delivered by
Buyer pursuant hereto will not result in any violation of, or be in
conflict with, or constitute a default under any agreement, law,
regulation, rule or ordinance by which Buyer is bound.
(d) Buyer is acquiring the Shares for his own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof,
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and Buyer has no present or contemplated agreement, arrangement,
intention or commitment to dispose of the Shares.
(e) Buyer (i) is experienced in the evaluation of business
similar to the Company, (ii) is able to fend for himself in the
transactions contemplated by this Agreement, (iii) has such knowledge
and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Company, (iv)
has the ability to bear the economic risks of an investment in the
Company, and (v) has been afforded prior to the date hereof the
opportunity to ask questions of, and to receive answers from, Xx.
Xxxxxxx X. Love and other representatives of the Company and to obtain
any additional information, to the extent Xx. Xxxxxxx X. Love or the
Company has such information or could acquire it without unreasonable
effort or expense, necessary for Buyer to make an informed investment
decision with respect to the purchase of the Shares.
(f) Buyer understands that the Shares have not been registered
under the Securities Act of 1933 or any applicable state securities or
"Blue Sky" laws, and such shares may be required to be held
indefinitely, unless such shares are subsequently registered under the
Securities Act and such applicable Blue Sky laws, or an exemption from
such registration is available.
4. MUTUAL CONDITIONS PRECEDENT. Neither Seller nor Buyer shall have
any obligations pursuant to this Agreement, unless and until Buyer shall have
executed and become a party to the Company's Registration Agreement,
substantially in the form attached hereto as Exhibit B.
5. REPURCHASE RIGHT. Notwithstanding anything to the contrary
contained herein, Buyer and Seller agree that the Shares are subject to
Seller's repurchase right, as more fully set forth in Section 4.6 of the
Employment Agreement, and the provisions of the Employment Agreement
referencing that repurchase right are incorporated in this Agreement, as if
fully set herein.
6. IRS CONTINGENCY. Notwithstanding anything contained herein to
the contrary, the Seller and Buyer agree that they shall negotiate in good
faith to reach an equitable adjustment to the provisions of this Agreement if
(a) a private ruling is requested, and the National Office of the United States
Internal Revenue Service notifies the Cancer Therapy and Research Foundation of
South Texas ("CTRF") and/or CTRC Research Foundation ("CTRC"), or any affiliate
thereof that they will not rule the establishment and operation of Seller will
not adversely affect CTRF's, CTRC's or any such affiliate's status as an exempt
organization under Section 501(c)(3) of the Internal Revenue Code, (b) a
private ruling is not requested, and CTRF, CTRC and/or any affiliate thereof
are unable to obtain from qualified tax counsel an opinion satisfactory to each
of them to the effect that the establishment and operation of Seller will not
adversely affect CTRF's, CTRC's or any such affiliate's status as an exempt
organization under Section 501(c)(3) of the Internal Revenue Code, (c) the
Internal Revenue Service otherwise asserts that the establishment and operation
of the Seller
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may adversely affect CTRF's, CTRC's or any such affiliate's status, or (d)
Seller fails to receive at least $3,000,000 by June 30, 1996, from the sale to
persons other than CTRF, CTRC and their affiliates of its common or preferred
stock. In the event that Buyer and Seller are unable to agree on the terms of
such an adjustment within thirty (30) days subsequent to the occurrence of such
an event, the Company shall repurchase from Buyer and Buyer shall sell to the
Company, the Shares in exchange for the return of the Purchase Price, and this
Agreement shall be rescinded.
7. MISCELLANEOUS.
(a) Cooperation. Seller and Buyer agree to take all actions
and execute all documents or instruments as either party may reasonably
request to consummate the transactions contemplated by this Agreement.
(b) Expenses. Regardless of whether the transactions provided
for in this Agreement are consummated, each party hereto shall pay its
own expenses incident to the preparation of this Agreement and the
consummation of the transactions contemplated hereby.
(c) Notices. All notices hereunder shall be in writing and
shall be deemed given when delivered in person or when telecopied with
hard copy to follow, or three (3) business days after being deposited in
the United States mail, postage prepaid, via registered or certified
mail, or two (2) business days after delivery to a nationally recognized
express courier, expenses prepaid, addressed as follows:
If to Buyer: Xxxxxxxxx X. Xxxx
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If to Seller: ILEX Oncology, Inc.
14960 Omicron
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Love,
President
and/or such other addresses and/or to such other addressees as may be
designated by notice given in accordance with the provisions hereof.
(d) Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. No party shall assign this Agreement
or its rights hereunder without the prior written consent of the other
party hereto.
(e) Amendment; Waiver. No change or modification of this
Agreement shall be valid unless the same shall be in writing and signed
by the parties
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hereto. No waiver of any provisions of this Agreement shall be valid
unless in writing and signed by the waiving party. No waiver of any of
the provisions of this Agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver, unless so provided in the waiver.
(f) Severability. If any provision of this Agreement (or
portions thereof) shall, for any reason, be considered invalid or
unenforceable by any court of competent jurisdiction, such provision (or
portions thereof) shall be ineffective only to the extent of such
invalidity or unenforceability, and the remaining provisions of this
Agreement (or portions thereof) shall nevertheless be valid, enforceable
and of full force and effect.
(g) Section Headings. The article, section or paragraph
headings or titles herein are inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
(h) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of
which when taken together shall constitute a single instrument.
(i) Governing Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction,
effect and in all other respects by the laws of the State of Texas
applicable to contracts made in that State (other than any conflict of
laws rule which might result in the application of the laws of any other
jurisdiction).
(j) Entire Agreement. Subject to Section 5 hereof, this
Agreement constitutes the entire agreement among the parties with
respect to the matters covered hereby and supersedes all previous
written, oral or implied understanding among them with respect to such
matters.
(k) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any other individual or entity other
than Seller and Buyer and their respective successors and permitted
assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
BUYER: SELLER:
XXXXXXXXX X. XXXX ILEX ONCOLOGY, INC.
/s/ Xxxxxxxxx X. Xxxx /s/ Xxxxxxx X. Love
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By: Xxxxxxx X. Love
Title: President
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