1
Exhibit 10.67
AGREEMENT OF LIMITED PARTNERSHIP
OF
MPILEX PARTNERS, L.P.
This Agreement of Limited Partnership of MPILEX Partners, L.P. dated
December 11, 1996, is entered into by and among MPILEX Management, L.L.C., a
Delaware limited liability company, as the General Partner, and the persons who
have executed and delivered this Agreement and whose names appear on Schedule A
hereto (as said Schedule A hereto may be amended from time to time as
hereinafter provided), as the Limited Partners.
In consideration of the mutual covenants, conditions and agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
terms shall have the following meanings:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as it
may be amended from time to time, and any successor to said Act.
"Affiliate" means, when used with respect to a specified Person, any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the specified Person, provided that the
Partnership shall not be deemed to be an Affiliate of any Partner. For
purposes of this definition "control", when used with respect to any specified
Person, means the power to direct the management and policies of the Person,
directly or indirectly, whether through the ownership of voting securities, by
contract, by family relationship or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement" means this Agreement of Limited Partnership of the
Partnership, L.P., as the same may be amended, modified or restated from time
to time.
"Capital Contributions" means the amount of cash or the fair market
value, as determined in the sole judgment of the General Partner, of other
property contributed to the Partnership.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean the commitment by a Partner to make Capital
Contributions as determined under Article 4 hereof and set forth in Schedule A
hereto.
"Covered Person" means any Partner, an Affiliate of a Partner or any
officer, manager, director, shareholder, partner or member of the Partnership
or of a Partner or their respective Affiliates.
2
"Distributable Cash" shall mean, at the time of determination, all
Partnership cash derived from the conduct of the Partnership's business, other
than (i) Capital Contributions, together with interest earned thereon pending
utilization thereof, (ii) financing proceeds and (iii) reserves for working
capital and other amounts that the General Partner reasonably determines to be
necessary for the proper operation of the Partnership's business and its
winding up and liquidation.
"General Partner" means MPILEX Management, L.L.C., a Delaware limited
liability company, or any other Person who, at the time of reference, serves as
the general partner of the Partnership, and who owns the number of Units set
forth on Schedule A hereto.
"Gross Asset Value" means, as of any date of determination, the fair
market value of all property of the Partnership as of the date on which the
determination thereof is to be made. The fair market value of the property of
the Partnership shall be determined by the General Partner. At the General
Partner's election, or if no determination is made by the General Partner
within 15 days after a request therefor is made, the fair market value of the
property of the Partnership shall be determined by an independent appraiser
selected by the General Partner. An appointed appraiser may employ persons and
incur expenses as are necessary to make the determination. In all
determinations of fair market value, no value shall be placed on the goodwill
or name of the Partnership. Determinations of fair market value made in
accordance with the foregoing shall be final and not subject to challenge by
any Partner.
"ILEX" means ILEX Oncology, Inc., a Delaware corporation.
"License Agreement" shall mean the License Agreement dated December 11,
1996 between the Partnership and ILEX, granting the Partnership certain
exclusive rights with respect to piritrexim.
"Limited Partners" means each Person who is a limited partner (which
shall include each Limited Partner executing this Agreement on the date hereof,
each additional Limited Partner and each substituted Limited Partner) at the
time of reference thereto, and who owns the number of Units set forth on
Schedule A hereto.
"MPI" means MPI Enterprises, L.L.C., a Michigan limited liability
company.
"Ownership Restriction Agreement" means the Ownership Restriction
Agreement dated December 11, 1996, among the Partnership, the General Partner,
the members of the General Partner and the Limited Partners.
"Partners" means, collectively, the General Partner and the Limited
Partners, and "Partner" means any one of them.
"Partnership" means MPILEX Partners, L.P., the limited partnership
entered into and formed hereunder pursuant to the Act.
-2-
3
"Person" shall mean an individual, corporation, association, limited
liability company, limited liability partnership, partnership, estate, trust,
unincorporated organization or a government or any agency or political
subdivision thereof.
"Securities Act" shall mean the Securities Act of 1933, as it may be
amended from time to time, and any successor to said Act.
"Unit Percentage" means, as to any Partner, the fraction, expressed as a
percentage, having as its numerator the number of Units owned by such Partner
and having as its dominator the total number of Units of all Partners.
"Units" means the issued and outstanding ownership interests of the
Partnership held by the Partners as set forth on Schedule A hereto (as amended
in accordance with this Agreement by the General Partner) and the rights and
obligations associated with ownership interests of the Partners in the
Partnership at the relevant time, including the consent, approval and
management rights of the Partners and any and all other benefits to which the
Partners may be entitled as provided in this Agreement, together with the
obligations of the Partners to comply with all the terms and provisions of this
Agreement. "Unit" means any one of the Units.
ARTICLE 2
FORMATION OF PARTNERSHIP
2.1 Formation. The Partners hereby enter into and form the
Partnership as a limited partnership pursuant to the provisions of the Act.
2.2 Name. The name of the Partnership shall be "MPILEX Partners,
L.P."
2.3 Certificate. The General Partner shall cause a certificate of
limited partnership meeting the requirements of the Act, and any amendments
thereto which are required under the Act, to be filed, when and as required.
2.4 Principal Place of Business. The principal place of business of
the Partnership shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or such other place as the General Partner may determine.
2.5 Registered Office; Registered Agent. In Delaware, the
Partnership shall maintain a registered office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the name of the Partnership's registered agent
at that address shall be CT Corporation System. In Texas, the Partnership
shall maintain a registered office at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and the name of the Partnership's registered agent at
that address shall be ▇▇▇▇▇ ▇. ▇▇▇▇.
2.6 Term. The term of the Partnership shall commence on the date
hereof and shall continue for a period of 20 years, unless the Partnership is
continued or sooner dissolved pursuant to the provisions of this Agreement.
-3-
4
ARTICLE 3
PURPOSE; OPPORTUNITIES
3.1 Purpose. The purpose and nature of the business to be conducted
by the Partnership shall be limited to (a) the commercialization of piritrexim
and its derivatives under the License Agreement and (b) enter into, make and
perform all such agreements and undertakings, and to engage in all such
activities and transactions, as the General Partner may deem necessary or
advisable for or incidental to the carrying out of the foregoing.
3.2 Outside Activities. This Agreement shall not preclude or limit,
in any respect, the right of the General Partner, any other Partner or any of
their Affiliates to engage or invest in any business activity of any nature or
description, including those which may be the same as or similar to the
Partnership's business. Any such activity may be engaged in independently or
with others without any obligation whatsoever to offer same to any other
Partner. Neither the Partnership, any Partner nor any of their Affiliates
shall have any right, by virtue of this Agreement or the partnership
relationship created hereby, in or to such other investments or activities, or
to the income or proceeds derived therefrom.
ARTICLE 4
CAPITAL CONTRIBUTIONS; PARTNERS
4.1 Initial Capital Commitments. By execution of this Agreement,
each Partner commits to make the Capital Contribution set forth on Schedule A
hereto dated as of December 11, 1996 ("Initial Commitments"), which Initial
Commitments are in the aggregate amount of $4,000,000.
4.2 Additional Capital Commitments. When the Initial Commitments
have been funded by the Partners and the Partnership needs additional funds,
there shall be successive additional rounds of commitments for Capital
Contributions offered by the Partnership to the Partners ("Offered Commitments"
and together with Initial Commitments, collectively the "Commitments"). Each
such round shall be in increments of $2,000,000 in aggregate Offered
Commitments and shall be offered as soon as practical upon a Capital Need. As
used herein, a "Capital Need" shall be deemed to exist when (a) all then
outstanding Commitments of the Partners have been fully funded and (b) the
Partnership then needs additional funds for its operations or to maintain
reasonable reserves for such operations. Upon the occurrence of a Capital
Need, an offering of a round of Offered Commitments may be commenced by any
Partner upon such Partner giving written thereof to the other Partners and,
once commenced, such offering shall continue for a period of 30 days thereafter
(the "Offer Period"). With regard to each round of Offered Commitments, the
General Partner must accept Offered Commitments in an amount equal to 1% of all
Offered Commitments accepted by the Limited Partners and each Limited Partner
shall have the right (but no obligation) to accept Offered Commitments in an
amount equal to but not less than 49.5% of the Offered Commitments (which
percentage may not correspond to then existing Unit Percentages, as adjusted).
Each Limited Partner that desires to accept Offered Commitments must give
written notice of its acceptance to each other
-4-
5
Partner during the Offer Period. Unless a Limited Partner accepts Offered
Commitments during the Offer Period in accordance with foregoing, such Limited
Partner shall be deemed to have rejected the Offered Commitments. If a Limited
Partner rejects (or is deemed to have rejected) the Offered Commitments, the
other Limited Partner may elect to accept all (but not less than all) of such
rejected Offered Commitments by giving written notice thereof to the Other
Partners on or before the expiration of 15 days after the end of the Offer
Period.
4.3 Funding of Commitments. All Commitments made by the Partners
pursuant to the provisions of this Article 4 shall be funded upon request by
the General Partner (or its managers or officers) as necessary to fund the
Partnership's operations and to maintain reasonable reserves for such
operations. Each request for funding shall be given by the General Partner (or
its managers or officers) to all other Partners at least five business days
prior to the funding date. Each request for funding shall include the
statement as to the intended use of the proceeds of such funding.
4.4 Binding Commitments; Default. All Commitments made by the
Partners pursuant to the provisions of this Article 4 shall be irrevocable,
binding commitments which shall be enforceable by the Partnership against the
Partners making such Commitments, respectively. If a Partner does not fund a
Commitment made by it in accordance with the foregoing provisions, the other
Partners may (without any obligation) fund the unfunded portion of such
Commitment. Any such funding shall be in addition to, and not in lieu of, all
rights and remedies that the Partnership and the other Partners may be entitled
to against the defaulting Partner pursuant to this Agreement, at law or in
equity.
4.5 Adjustments to Units. As of any date (an "Adjustment Date") on
which, in accordance with the foregoing, Capital Contributions are made by the
Partners other than in accordance with their Unit Percentages, the Units of all
Partners shall automatically (and without any further action by the Partners)
be adjusted so that the number of Units held by each Partner shall be equal to
100 multiplied by a fraction, the numerator of which shall be the aggregate
amount of Capital Contributions made by such Partner as of the Adjustment Date,
and the denominator of which shall be the aggregate amount of Capital
Contributions made by all Partners as of the Adjustment Date; it being
understood that the total number of Units held by all Partners shall always
equal 100. As of the date of each Adjustment Date, the Unit Percentage of each
Partner shall also be adjusted based upon the adjusted number of Units held by
each Partner. Promptly after each Adjustment Date, the General Partner shall
amend Schedule A hereto to reflect the automatic adjustment of the number of
Units and Unit Percentages as of each Adjustment Date (such adjustment shall
nevertheless be effective as of the Adjustment Date regardless when Schedule A
hereto is amended).
4.6 Schedule of Partners; Commitments; Contributions; Unit Ownership.
The name, address, Commitments, Capital Contributions and Unit ownership of
each Partner are set forth on Schedule A attached hereto. Schedule A hereto
shall be amended by the General Partner to reflect the admission of additional
or substituted Limited Partners and to reflect adjustments to Units, Unit
Percentages, Commitments and Capital Contributions in accordance with the
provisions of this Agreement. The
-5-
6
General Partner shall amend Schedule A hereto pursuant to the power of attorney
granted under Article 13 hereof to reflect any such adjustments. The Units
owned by Partners hereunder shall not be represented by certificates.
4.7 No Third Party Beneficiaries In no event shall a third party,
including without limitation a creditor of the Partnership, be entitled to in
any way rely upon or enforce the obligation of Partners to make future Capital
Contributions.
4.8 Loans and Withdrawal of Capital Contributions. No Partner shall
be permitted to borrow, or to make an early withdrawal of, any portion of the
capital contributed by such Partner.
4.9 Limited Liability of Limited Partners. No Limited Partner shall
be bound by or personally liable for the expenses, liabilities or obligations
of the Partnership.
ARTICLE 5
CAPITAL ACCOUNTS
5.1 Capital Accounts. A capital account ("Capital Account") shall be
established for each Partner. A Partner's Capital Account shall be credited
with the fair market value (as determined in the sole judgment of the General
Partner) of property contributed and the amounts of cash contributed to the
Partnership by such Partner and shall be credited or charged, as the case may
be, with such Partner's share of Partnership items of book income, gain, loss
and deduction for each fiscal year of the Partnership determined pursuant to
Article 7 below. Each Partner's Capital Account shall be charged with the fair
market value (as determined in the sole judgment of the General Partner) of any
property distributed and the amount of cash distributed to such Partner. The
respective Capital Accounts of the Partners shall not bear interest.
5.2 Adjustments to Capital Accounts Upon Revaluation of Property.
Upon the occurrence of (a) the admission of an additional or substituted
Limited Partner, (b) an extraordinary (as determined by the General Partner)
distribution of property by the Partnership, or (c) the liquidation of the
Partnership (each an "Adjustment Event"), then, upon any such event, the Gross
Asset Value immediately before the Adjustment Event shall be determined. The
property of the Partnership shall thereafter be treated as if it were sold by
the Partnership and any gain or loss resulting therefrom shall be allocated
among the Partners in accordance with Article 7 hereof as of the date
immediately before the Adjustment Event resulting in the valuation of
Partnership assets. Such allocation of gain or loss shall thereafter be
reflected in the Capital Accounts of the Partners for all purposes of this
Agreement. Solely for purposes of determining adjustments to Capital Accounts,
any net profit or net loss shall be determined using the Gross Asset Value
rather than the adjusted tax basis of the property of the Partnership.
5.3 Compliance with Treasury Regulations. Notwithstanding any
provision in this Agreement to the contrary, the Capital Accounts of the
Partners shall be maintained in accordance with Treasury Regulations, as
amended from time to time, and shall be adjusted as provided therein.
-6-
7
ARTICLE 6
DISTRIBUTIONS
Except as otherwise provided herein, Distributable Cash of the
Partnership shall be distributed on a quarterly basis among the Partners pro
rata in accordance with their Unit Percentages. The amount and timing of such
distributions shall be determined by the General Partner. The General Partner
shall have the absolute discretion to have any distribution treated as a return
of capital. That portion of any distribution which is treated as a return of
capital shall be made to the Partners ratably in proportion to their respective
Capital Accounts immediately prior to the distribution. The General Partner and
the Partnership shall incur no liability for making distributions in accordance
with the provisions of this Agreement, whether or not the General Partner or
the Partnership have knowledge or notice of any transfer of ownership of any
Units.
ARTICLE 7
ALLOCATIONS
7.1 Book Allocations. Except as otherwise provided herein or unless
another allocation is required by the Code, Treasury Regulations, published
revenue rulings or judicial decisions, all items of Partnership book income,
gain, loss, deduction and credit shall be allocated among the Partners pro rata
in accordance with their Unit Percentages in effect for the period during which
such items accrue. For purposes of computing each item of book income, gain,
deduction or loss, the determination, recognition and classification of such
item shall be the same as its determination, recognition and classification for
federal income tax purposes.
7.2 Tax Allocations.
(a) Code Section 704(c). Notwithstanding anything
herein to the contrary, if any Partner has contributed or is
treated as contributing any property to the Partnership that has
a Gross Asset Value that is in excess of or less than its
adjusted basis for federal income tax purposes at the time of
such contribution, then all gain, loss, and deduction with
respect to the contributed property shall, solely for federal
income tax purposes, be allocated among the Partners so as to
take account of the variation between the adjusted basis of such
property and its initial net asset value as required under Code
Section 704(c).
(b) Partnership Asset Adjustments. In the event the
Gross Asset Value of any Partnership Asset is adjusted under
Section 5.2 hereof, subsequent allocations of Partnership income,
gain, loss, and deduction with respect to such asset, as
calculated for tax purposes, shall take account of any variation
between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in accordance with the
principals of Code Section 704(c) as is required pursuant to
Treasury Regulations Section 1.704-1(b)(4)(i).
-7-
8
(c) Consistent Allocation. Except as provided in
Section 7.2(a) and (b), Partnership income, gain, loss,
deduction, and credit, as calculated for tax purposes, shall be
allocated among the Partners, to the extent possible, in
accordance with the allocations of the items of Partnership book
income, gain, loss, deduction, and credit allocated pursuant to
Section 7.1.
(c) Adjustments by the Partners. Any elections or
other decisions related to Partnership tax allocations pursuant
to this Section 7.2 shall be made by the General Partner of the
Partnership in a manner that reasonably reflects the purpose and
intention of this Agreement. Partnership tax allocations
pursuant to this Section 7.2 are solely for purposes of federal,
state, and local taxes and shall not affect, or in any way be
taken into account in computing, any Partner's Capital Account or
distributive share of the Partners items of Partnership book
income, gain, loss, deduction, and credit or Partnership
distributions to any of the Partners under this Agreement.
7.3 Transfer of Units. Unless otherwise unanimously agreed by the
Partners, income, gain, loss, deduction or credit attributable to any Unit (or
portion thereof) which has been transferred shall be allocated between the
transferor and the transferee equally among the days of the Partnership's
fiscal year without regard to Partnership operations during such days.
ARTICLE 8
MANAGEMENT AND OPERATION OF BUSINESS
8.1 Management by General Partner. Subject to Section 8.4 below and
subject to the provisions of the Act, the General Partner shall have exclusive
authority to manage and control the day-to-day operations and affairs of the
Partnership and to make all decisions regarding the business and property of
the Partnership. The General Partner is hereby granted by the other Partners
the right, power and authority to do on behalf of the Partnership all things
which, in the General Partner's sole judgment, are necessary, proper or
desirable to carry out and exercise such authority.
8.2 Authority to Act. In order to expedite the handling of
Partnership business, it is understood and agreed that any document executed by
the General Partner or any officer of the General Partner while acting on
behalf and in the name of the Partnership shall be deemed to be the action of
the Partnership as to any third parties. Further, any Person dealing with the
Partnership or the General Partner or any officer of the General Partner may
rely upon a certificate signed by the General Partner or any officer of the
General Partner as to:
(a) identity of the Partners;
(b) existence or nonexistence of any fact or facts that
constitute conditions precedent to acts by the Partnership or are in any
other manner related to the affairs of the Partnership;
-8-
9
(c) Persons who are authorized to execute and deliver any
instrument or document of the Partnership;
(d) any act or failure to act by the Partnership; or
(e) any other matter whatsoever involving the Partnership or
any Partner.
In no event shall any Person dealing with the General Partner or any officer of
the General Partner with respect to any business or property of the Partnership
be obligated to ascertain that the terms of this Agreement have been complied
with, or be obligated to inquire into the necessity or expedience of any act or
action of the General Partner or any officer of the General Partner, and every
contract, agreement, conveyance instrument, mortgage, security agreement,
promissory note or other instrument or document executed by the General Partner
or an officer of the General Partner with respect to any business or property
of the Partnership shall be conclusive evidence in favor of any and every
Person relying thereon and claiming thereunder that (i) at the time of the
execution and/or delivery thereof, this Agreement was in full force and effect;
(ii) such instrument or document was duly executed in accordance with the terms
and provisions of this Agreement and is binding upon the Partnership; and (iii)
the General Partner or officer of the General Partner, as applicable, was duly
authorized and empowered to execute and deliver any and every such instrument
or document for and on behalf of the Partnership.
8.3 Certain Limitations upon the Power of the General Partner.
Notwithstanding anything to the contrary contained herein, without the prior
written approval of all of the Limited Partners, the General Partner shall not:
(a) Do any act in contravention of this Agreement or the
certificate of limited partnership of the Partnership;
(b) Do any act which would make it impossible to carry on the
ordinary business of the Partnership;
(c) Possess Partnership property or assign its rights in
specific Partnership property for other than a Partnership purpose;
(d) Admit a person as the General Partner;
(e) Except for the admission of a transferee or assignee of a
Limited Partner's Units transferred or assigned in compliance with the
Ownership Restriction Agreement, admit an additional Partner to the
Partnership; or
(f) Knowingly commit any act that would subject any Limited
Partner to liability as a general partner in any jurisdiction.
8.4 Investment/Bank Accounts. The Partnership will maintain such
investment, bank and other accounts as the General Partner may deem necessary
for
-9-
10
the investment and deposit of the Partnership funds and for the proper
segregation thereof into such separate accounts as may be deemed appropriate.
All withdrawals from any such accounts shall be made by the General Partner or
the duly authorized officers of the Partnership. Partnership funds shall not
be commingled with those of any other Person. The Partnership accounts shall
be in the name of the Partnership and all payments required of the Partnership
will be made from accounts of the Partnership.
8.5 Reimbursement. The General Partner shall be reimbursed by the
Partnership for all costs and expenses, including legal, accounting and other
fees related to the formation of the Partnership and the preparation of this
Agreement. During the term of the Partnership, the General Partner shall be
reimbursed for all direct costs and expenses incurred by it in the management
and administration of the Partnership and attributable to the business of the
Partnership.
8.6 Compensation. The General Partner shall not be entitled to any
compensation for the management and administration of the Partnership.
ARTICLE 9
BOOKS OF ACCOUNT; RECORDS; TAX INFORMATION
9.1 Fiscal Year. The fiscal year of the Partnership shall end on
December 31 in each year.
9.2 Books and Records. Proper and complete records and books of
account shall be kept by the General Partner in which shall be entered fully
and accurately all transactions and other matters relative to the Partnership's
business as are usually entered into records and books of account maintained by
Persons engaged in businesses of like character. The Partnership books and
records shall be prepared in accordance with generally accepted accounting
principles applied on a consistent basis. The books and records shall at all
times be made available at the principal office of the Partnership and shall be
open to the reasonable inspection and copying by the Partners or their duly
authorized representatives with advance notice during reasonable business
hours.
9.3 Taxation as a Partnership. The Partnership shall be treated as a
partnership for federal and all state tax purposes. The General Partner shall
cause the Partnership to prepare and file annually on or before the due date or
extended due date thereof all required federal, state and local tax returns and
filings.
9.4 Tax Elections. All elections required or permitted to be made by
the Partnership under the Code, including but not limited to, the election
pursuant to Section 754 thereof, shall be made by the General Partner, if at
all, in its sole discretion. Each Partner will upon request supply the
information necessary to properly give effect to such elections.
9.5 Tax Returns. The General Partner shall, on a timely basis, send
each Person who is a holder of an interest in the Partnership at any time
during a calendar
-10-
11
year all partnership tax information kept on a federal income tax basis as
shall be necessary for the preparation by such holder of its federal income tax
return. Further, on request by any holder of an interest in the Partnership,
the General Partner will furnish such holder copies of all federal, state and
local income tax returns or information returns, if any, which the Partnership
is required to file.
ARTICLE 10
RESTRICTIONS ON TRANSFER
10.1 Private Offering. Each Limited Partner is fully aware that the
Partnership is selling Units to such Limited Partner in reliance upon the
exemption from registration provided by Section 4(2) of the Securities Act, and
upon the truth and accuracy of the representations of such Limited Partner
contained in this Agreement.
10.2 Securities Act Requirements. Each Limited Partner represents
that (a) its Units are being acquired for investment, with no present intention
of distributing or selling any portion thereof or with a view to any
distribution thereof within the meaning of the Securities Act, and (b) its
financial condition is such that it is able to bear all risks of holding its
Units for an indefinite period of time and that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of acquisition of the Units and of making an informed
investment decision with respect thereto; and (c) it will not offer or make a
transfer of its Units unless it shall have delivered to the Partnership (i) an
opinion of counsel satisfactory to the General Partner to the effect that no
registration (or perfection of an exemption) under the Securities Act is
required with respect to such transfer or (ii) such other evidence satisfactory
to the General Partner that the transfer will not violate the Securities Act
and other applicable state securities laws.
10.3 Transfers by the Limited Partners. A Limited Partner may not
sell, transfer, assign or devise, or subject to security interest, lien or
charge, all or any part of its Units, except as permitted in the Ownership
Restriction Agreement, and any act in violation of this Section 10.3 shall be
null and void ab initio. Any transfer of or assignment of the Units of a
Limited Partner shall not dissolve the Partnership. A transferee or assignee
of a Limited Partner's Units transferred or assigned in compliance with the
Ownership Restriction Agreement shall be admitted as a substituted Limited
Partner of the Partnership (with regard to the interest so transferred and
assigned) without any further approval by the Partners.
10.4 Transfers by the General Partner. The General Partner may not
sell, assign or transfer, or subject to security interest, lien or charge, all
or any portion of its Units. The General Partner agrees not to voluntarily
withdraw or resign as the general partner of the Partnership.
ARTICLE 11
DISSOLUTION
The Partnership shall dissolve and its affairs shall be wound up in
accordance with Article 12 on the first to occur of the following:
-11-
12
(a) the expiration of the term of the Partnership;
(b) the bankruptcy, dissolution or termination and winding up
of the affairs of the General Partner; or
(c) the written consent to terminate by all of the Partners.
ARTICLE 12
WINDING UP AND TERMINATION OF THE PARTNERSHIP
12.1 Winding Up. If the Partnership is dissolved for any reason, it
shall be wound up and its assets sold or distributed in an orderly manner,
unless, in the case of the bankruptcy or termination and winding up of the
affairs of the General Partner, all of the Partners agree, in accordance with
the Act, to reconstitute and continue the Partnership and appoint one or more
new general partners within 90 days after such event. In the absence of any
such applicable agreement, no Partner shall have the right to reconstitute or
continue the Partnership.
12.2 Liquidator. The General Partner, or if there is no General
Partner, then a liquidation trustee appointed by Partners owning at least 75%
of the Units of all Partners (the "Liquidation Trustee"), shall have the
exclusive authority to manage and control the Partnership during the period
during which it is being wound up. The Person(s) vested with the authority to
manage and control the Partnership during the winding up period are hereinafter
referred to as the "Liquidator".
12.3 Liquidation; Distributions. Upon the winding up and termination
of the business and affairs of the Partnership, its assets (other than cash)
shall be sold and its liabilities and obligations to creditors and all expenses
incurred in its liquidation shall be paid (either by payment or the making of
reasonable provision for payment). Thereafter, the net proceeds from such
sales (after deducting all selling costs and expenses in connection therewith)
shall be distributed among the Partners in accordance with their respective
positive balances in their Capital Accounts. Any distributions under this
Section 12.3 may be made, at the election of the Liquidator, in money arising
from the sale of the property of the Partnership or by a distribution of the
Partnership's assets in kind (the distributed asset being treated as sold for
its fair market value and any deemed gain or loss being treated as allocated
among the Partners in accordance with Article 7 hereof) or such distribution
may be, at the election of the Liquidator, partially in money and partially in
kind. All determinations of fair market value under this Section 12.3 shall be
made in the sole judgment of the Liquidator. Any sales or distributions in
kind of the Partnership's assets shall be effected in compliance with the
Securities Act and applicable state securities laws, as well as applicable
contractual restrictions or requirements relating to the transfer of the assets
of the Partnership.
12.4 Source of Distributions. Each holder of an interest in the
Partnership shall look solely to the assets of the Partnership for all
distributions with respect to the Partnership and its Capital Contribution
thereto (including the return thereof) and
-12-
13
share of profits or losses thereof, and shall have no recourse therefor (upon
dissolution or otherwise) against the Partnership, any Partner or the
Liquidator.
12.5 Deficit Capital Accounts. No Partner shall be required to
restore any deficit balance existing in its Capital Account upon the
liquidation and termination of the Partnership.
12.6 Termination of Partnership. Upon the completion of the
liquidation of the Partnership and the distribution of all Partnership assets,
the Partnership shall terminate and the Liquidator shall (and is hereby given
the power and authority to) execute, acknowledge, swear to and record all
documents required to effectuate the dissolution and termination of the
Partnership.
ARTICLE 13
POWER OF ATTORNEY
Each Limited Partner hereby makes, constitutes and appoints the General
Partner with full power of substitution and resubstitution, such Limited
Partner's true and lawful attorney for it and in its name, place and stead and
for its use and benefit, to sign, execute, certify, acknowledge, deliver, swear
to, file and record in all necessary or appropriate places such agreements,
instruments or documents as may be necessary or advisable (a) to reflect the
exercise by the General Partner of any of the powers granted to it under this
Agreement; (b) to reflect the admission to the Partnership of any additional
Limited Partner or substituted Limited Partner in the manner prescribed in this
Agreement; (c) to amend Schedule A in the manner prescribed in this Agreement;
and (d) which may be required of the Partnership or of the Partners by the laws
of the State of Delaware or any other jurisdiction in which the Partnership may
conduct business or own property. Each Limited Partner authorizes such
attorney-in-fact to take any further action which such attorney-in-fact shall
consider necessary or advisable in connection with any of the foregoing, hereby
giving such attorney-in-fact full power and authority to do and perform each
and every act or thing whatsoever requisite or advisable to be done in and
about the foregoing as fully as such Limited Partner might or could do if
personally present, and hereby ratifying and confirming all that such
attorney-in-fact shall lawfully do or cause to be done by virtue hereof. The
power of attorney granted pursuant to this Article 13: (a) is a special power
of attorney coupled with an interest and is irrevocable; (b) may be executed
by such attorney-in-fact by listing all of the Limited Partners executing any
agreement, certificate, instrument or document with the single signature of any
such attorney-in-fact acting as attorney-in-fact for all of them; (c) shall
survive the bankruptcy, death, adjudication of incompetence or insanity, or
dissolution of a Limited Partner; and (d) shall survive the delivery of an
assignment by a Limited Partner of its Units.
-13-
14
ARTICLE 14
LIABILITY AND EXCULPATION
14.1 Liability. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Partnership, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of
the Partnership, and no Partner shall be obligated for any such debt,
obligation or liability of the Partnership solely by reason of being a Partner
of the Partnership.
14.2 Exculpation. No Covered Person shall be liable to the
Partnership or any Partner under any theory of law, including tort, contract or
otherwise (INCLUDING A COVERED PERSON'S OWN NEGLIGENCE) for any loss, damage or
claim incurred by reason of any act or omission (including decisions to vote
for or against any matter) performed or omitted by such Covered Person in good
faith on behalf of the Partnership and in a manner reasonably believed to be
within the scope of authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's gross negligence or
willful misconduct. A Covered Person shall be fully protected in relying in
good faith upon the records of the Partnership and upon such information,
opinions, reports or statements presented to the Partnership by any Person as
to matters the Covered Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Partnership, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses or any other facts pertinent to the existence and
amount of assets from which distributions to Partners might properly be paid.
14.3 Duties and Liabilities of Covered Persons. To the extent that,
at law or in equity, a Covered Person has duties (including fiduciary duties)
and liabilities relating thereto to the Partnership or to any other Covered
Person arising under this Agreement, a Covered Person acting under this
Agreement shall not be liable to the Partnership or to any other Covered Person
for actions (including decisions to vote for or against any matter) taken by it
in good faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict the duties and liabilities of
a Covered Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Covered
Person. Unless otherwise expressly provided herein, whenever a conflict of
interest exists or arises between a Covered Person and the Partnership or a
Partner, the Covered Person shall disclose such conflict to the Partners and
shall resolve such conflict of interest, taking such action or providing such
terms, considering in each case the relative interest of each party (including
its own interest) to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Covered Person, the
resolution, action or term so made, taken or provided by the Covered Person
shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Covered Person at law
or in equity or otherwise.
-14-
15
ARTICLE 15
INDEMNIFICATION
15.1 Indemnification. To the fullest extent permitted by applicable
law, a Covered Person shall be entitled to indemnification from the Partnership
for any loss, damage or claim incurred by such Covered Person (a) by reason of
any act or omission performed or omitted by such Covered Person in good faith
on behalf of the Partnership and in a manner reasonably believed to be within
the scope of authority conferred on such Covered Person by this Agreement or
(b) by reason of being a Partner, an Affiliate of a Partner or an officer,
manager, director, shareholder, partner, representative, advisor or agent of
the Partnership or a Partner or its Affiliate, except that no Covered Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Covered Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions; provided, however, that any
indemnity under this Article 15 shall be provided out of and to the extent of
Partnership assets only, and no Covered Person shall have any personal
liability on account thereof. THE FOREGOING INDEMNITY IS INTENDED TO INDEMNIFY
EACH COVERED PERSON FOR HIS OWN ACTS OF NEGLIGENCE AND SHALL APPLY IRRESPECTIVE
OF ANY CLAIM OF CONCURRENT OR CONTRIBUTORY NEGLIGENCE ON THE PART OF SUCH
COVERED PERSON.
15.2 Expenses. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Covered Person in defending any
claim, demand, action, suit or proceeding for which indemnity is sought under
this Agreement shall, from time to time, be advanced by the Partnership prior
to the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Partnership of an undertaking by or on behalf of the Covered
Person to repay such amount if it shall be determined that the Covered Person
is not entitled to be indemnified as authorized under this Article 15.
15.3 Insurance. The Partnership may purchase and maintain insurance,
to the extent and in such amounts as the General Partner shall deem reasonable,
on behalf of Covered Persons and such other Persons as the General Partner
shall determine, against any liability that may be asserted against or expenses
that may be incurred by any such Person in connection with the activities of
the Partnership or such indemnities, regardless of whether the Partnership
would have the power to indemnify such Person against such liability under the
provisions of this Agreement. The Partnership may enter into indemnity
contracts with Covered Persons and adopt written procedures pursuant to which
arrangements are made for the advancement of expenses and the funding of
obligations under this Article 15 and containing such other procedures
regarding indemnification as are appropriate.
ARTICLE 16
NOTICES
All notices, requests and communications under this Agreement shall be
in writing and shall be given to a party at the party's address set forth in
Schedule A hereto or, in the case of the Partnership, as follows: MPILEX
Partners, L.P., 14785
-15-
▇▇
▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Board of Managers
of MPILEX Management, L.L.C. Each such notice, request or other communication
shall be effective (a) if given by registered or certified mail, return receipt
requested, two days after such communication is deposited in the mails with
postage prepaid and addressed as specified pursuant to this Article 16, or (b)
if given by any other means, when delivered at the address specified pursuant
to this Article 16. Any party may change its or its address for notifications
hereunder by giving the other parties notice thereof in accordance with this
Article 16. Notwithstanding the foregoing, a copy of each notice given to the
General Partner or the Partnership shall also be given to each Limited Partner.
ARTICLE 17
DISPUTE RESOLUTION
Except as otherwise provided herein, any claim, dispute or controversy
of any nature whatsoever, including but not limited to tort claims and contract
disputes between the parties to this Agreement arising out of or related to the
terms and conditions of this Agreement, including the implementation,
applicability or interpretation thereof, shall be resolved in accordance with
the dispute resolution procedures set forth in the Ownership Restriction
Agreement.
ARTICLE 18
MISCELLANEOUS
18.1 Further Assurances. Each Partner agrees to execute, with
acknowledgement or affidavit if required, any and all documents and writings
which may be necessary or expedient in connection with the formation of the
Partnership and the achievement of its purposes, specifically including all
such agreements, certificates, tax statements, tax returns and other documents
as may be required of the Partnership or its Partners by the laws of the United
States of America, the State of Texas or Delaware or any political subdivision
or agency thereof.
18.2 Partnership Property. The Partners agree that the property and
other assets of the Partnership are and shall be owned by the Partnership as an
entity. Each Partner, accordingly, owns Unit(s) and not an undivided interest
in such assets and properties. No Partner shall have any right to partition
the assets and properties of the Partnership; and to the extent, if any, that
any Partner would have such a right, each such Partner hereby irrevocably
waives any and all rights to maintain any action for partition of the assets
and properties of the Partnership, either as a partition in kind or a partition
by sale.
18.3 Invalid Provisions. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
18.4 Entire Agreement. This Agreement and the additional documents
and agreements referred to herein constitute the entire agreement among the
parties, and
-16-
17
it supersedes all prior or contemporaneous agreements or understandings among
the parties.
18.5 Successors and Assigns. Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of the
parties and their legal representatives, heirs, administrators, executors,
successors and permitted assigns.
18.6 Amendments. Except as provided in Article 4 and Article 13
relating to certain amendment powers of the General Partner, amendments or
modifications may be made to this Agreement only by setting forth such
amendments or modifications in a written instrument signed by all the Partners.
18.7 Interpretation. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
18.8 Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware.
18.9 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. It shall not be necessary for all
Partners to execute the same counterpart hereof.
[remainder of this page intentionally left blank]
-17-
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the day and in the year first above written.
GENERAL PARTNER:
---------------
MPILEX MANAGEMENT, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. Love
------------------------------------------
▇▇▇▇▇▇▇ ▇. Love, President
LIMITED PARTNERS:
----------------
MPI ENTERPRISES, L.L.C.
By: /s/ J. R. ▇▇▇▇▇▇▇▇
------------------------------------------
J.R. ▇▇▇▇▇▇▇▇, M.D., Ph.D.,
Co-Chairman and CEO
ILEX ONCOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Love
------------------------------------------
▇▇▇▇▇▇▇ ▇. Love,
President
-18-
19
SCHEDULE A
(As of December 11, 1996)
CAPITAL UNFUNDED UNIT UNIT
NAME AND ADDRESS CONTRIBUTIONS COMMITMENT OWNERSHIP PERCENTAGE
---------------- ------------- ---------- --------- ----------
General Partner:
MPILEX Management, L.L.C. $20,000 $20,000 1.0 1.0%
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Board of Managers
Limited Partners:
MPI Enterprises, L.L.C.
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ $990,000 990,000 49.5 49.5%
Attention: J.R. ▇▇▇▇▇▇▇▇
ILEX Oncology, Inc. $990,000 990,000 49.5 49.5%
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ --------- ----------
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Love
------------------- -------------------- ------------- --------------
TOTAL: $2,000,000 $2,000,000 100.0 100.0%
===== ========== ========== ===== ======
-19-