SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Ilex Oncology, Inc.
-------------------
(Name of Issuer)
Common Stock
------------------------------
(Title of Class of Securities)
0004519231
--------------
(CUSIP Number)
Eileen McCarthy
One Post Office Square, Suite 3800
Boston, MA 02109
(617) 482-8020
----------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 16, 1999
-----------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box :.
Check the following box if a fee is being paid with this statement :. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.
(See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or otherwise subject to the
liabilities of that section of the Exchange Act but shall be subject to all
other provisions of the Exchange Act.
(Continued on following page(s))
Page 1 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 2 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Alta Partners
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
WC
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
California
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 1,194,600
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 1,194,600
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IA
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 2 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 3 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Alta BioPharma Partners, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
WC
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 742,547
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 742,547
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
742,547
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
4.5%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
PN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 3 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 4 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Alta Embarcadero BioPharma, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
WC
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
California
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 27,988
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 27,988
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
27,988
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
.2%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 4 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 5 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Ilex Chase Partners (Alta Bio), LLC
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
WC
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 424,065
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 424,065
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
424,065
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
2.6%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 5 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 6 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Alta BioPharma Management, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
WC
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 742,547
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 452,053
(9) Sole Dispositive Power 742,547
(10) Shared Dispositive Power 452,053
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 6 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 7 of 41 Pages
<S> <C> <C>
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Alta/Chase BioPharma Management, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
WC
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 424,065
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 770,535
(9) Sole Dispositive Power 424,065
(10) Shared Dispositive Power 770,535
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 7 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 8 of 41 Pages
<S> <C> <C>
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Jean Deleage
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
AF
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,194,600
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,194,600
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 8 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 9 of 41 Pages
<S> <C> <C>
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Garrett Gruener
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
AF
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,194,600
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,194,600
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 9 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 10 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Daniel Janney
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
AF
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,194,600
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,194,600
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 10 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 11 of 41 Pages
<S> <C> <C>
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Alix Marduel
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
AF
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,194,600
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,194,600
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 11 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 12 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Guy Nohra
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
AF
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,194,600
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,194,600
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 12 of 41 pages
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 0002078541 13D Page 13 of 41 Pages
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above Persons
Marino Polestra
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) :
(b) X
- ------------------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------------------------------------------------------------
(4) Source Of Funds*
AF
- ------------------------------------------------------------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items 2(d) Or 2(e):
- ------------------------------------------------------------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,194,600
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,194,600
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,194,600
- ------------------------------------------------------------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
- ------------------------------------------------------------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
7.3%
- ------------------------------------------------------------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
*SEE INSTRUCTION BEFORE FILLING OUT!
</FN>
</TABLE>
Page 13 of 41 pages
<PAGE>
Item 1. Security and Issuer.
This Statement on Schedule D relates to the Common Stock, $0.001 par
value per share (the "Shares"), of Ilex Oncology, Inc., a Delaware corporation
(the "Company"). The principal executive offices of the Company are located at
11550 IH-10 West Suite 300, San Antonio, Texas 78245.
Item 2. Identity and Background.
(a) This Statement is filed by Alta BioPharma Partners, L.P., a
Delaware limited partnership ("Alta BioPharma"), and Alta Embarcadero BioPharma,
LLC, a California limited liability company ("Embarcadero LLC"), and Ilex Chase
Partners (Alta Bio), LLC, a Delaware LLC ("Ilex Alta Bio") by virtue of their
direct beneficial ownership of Shares, by Alta BioPharma Management Partners,
LLC, a Delaware limited liability company ("Alta Management"), by virtue of
being the sole general partner of Alta BioPharma, by Alta/Chase BioPharma
Management LLC, a Delaware limited liability company (Alta/Chase Management) by
virtue of being the sole managing director of Ilex Chase Partners (Alta Bio),
LLC and by Alta Partners, a California corporation ("Alta Partners"), by virtue
of being the management advisory company of these entities. Alta BioPharma,
Embarcadero LLC, Ilex Alta Bio, Alta Management, Alta/Chase Management and Alta
Partners are collectively referred to as the "Reporting Persons." Jean Deleage,
Garrett Gruener, Dan Janney, Alix Marduel, Guy Nohra and Marino Polestra are the
managing directors of Alta Management, Alta/Chase Management and officers of
Alta Partners (the "Partners"). By virtue of the relationships described above
and their roles with Alta Partners, each of the Partners may be deemed to
control Alta Partners, Alta/Chase Management, Alta Management, and, therefore,
may be deemed to possess indirect beneficial ownership of the Shares held by
each entity. However, none of the Partners, acting alone, has voting or
investment power with respect to the Shares directly beneficially held by the
entities and, as a result, the Partners disclaim beneficial ownership of the
Shares directly beneficially owned by each entity, except to the extent of their
pecuniary interest in each entity. Embarcadero LLC is a side company that makes
all investments pro rata to the capital of Alta BioPharma with all allocations
made to its members based on paid-in capital. Certain of the Partners are
members of Embarcadero LLC and certain members of Embarcadero LLC are affiliates
of Alta Partners.
(b) The principal executive offices of Alta BioPharma, Embarcadero LLC,
Ilex Alta Bio, Alta Management, Alta/Chase Management and Alta Partners, and the
business address of each Partner, are located at One Embarcadero Center, Suite
4050, San Francisco, California 94111.
(c) Alta Partners provides investment advisory services to venture
capital firms. Alta BioPharma, Ilex Alta Bio and Embarcadero LLC's principal
business is acting as venture capital investment vehicles. Alta/Chase Management
and Alta Management's principal business is acting as managing director of Ilex
Alta Bio and Alta BioPharma, respectively. Each of the Partners' principal
business is acting as a managing director of Alta Management and Alta/Chase
Management and as an officer of Alta Partners.
(d) None of the Reporting Persons or, to the knowledge of the Reporting
Persons, any of the Partners, has been convicted in a criminal proceeding in the
past five years (excluding traffic violations or similar misdemeanors).
(e) During the past five years, none of the Reporting Persons or, to
the knowledge of the Reporting Persons, and of the Partners, was a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which such person was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws of finding any violation
with respect to such laws.
Page 14 of 41 pages
<PAGE>
(f) Alta Partners is a California corporation. Alta BioPharma is a
Delaware limited partnership. Embarcadero LLC is a California limited liability
corporation. Ilex Alta Bio is a Delaware liability company. Alta Management and
Alta/Chase Management are Delaware limited liability companies. Each of the
Managing Directors is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
The total amount of funds required by Alta BioPharma to acquire the
742,547 shares of Common Stock reported in Item 5(a) was $6,215,859, the total
amount of funds required by Embarcadero LLC to acquire the 27,988 shares of
Common Stock reported in Item 5(a) was $234,289 and the total amount of funds
required by Ilex Alta Bio to acquire the 424,065 shares of Common Stock reported
in Item 5(a) was $3,549,852. Such funds were provided by each entities' capital
available for investment.
Item 4. Purpose of Transaction.
Alta BioPharma, Embarcadero LLC, and Ilex Alta Bio acquired the Common
Stock reported in Item 5(c) for investment only. Depending upon their evaluation
of the Company's investments and prospects, and upon future developments
(including, but not limited to, market for the Shares, the effective yield on
the Shares, availability of funds, alternative uses of funds, and money, stock
market and general economic conditions), each of the Reporting Persons may from
time to time purchase the Common Stock, dispose of all or a portion of the
Common Stock that it holds, or cease buying or selling Common Stock. Any such
additional purchases or sales of the Common Stock may be in open market or
privately-negotiated transactions or otherwise.
On July 16, 1999, Alta BioPharma, Embarcadero LLC and Ilex Alta Bio
entered into a Common Stock Purchase Agreement (the "Common Stock" Purchase
Agreement") with the Company pursuant to which Alta BioPharma, Embarcadero LLC
and Ilex Alta Bio acquired, for an aggregate purchase price of $10,000,000, a
total of 1,194,600 Shares of Common Stock.
Item 5. Interest in Securities of the Issuer.
(a) Alta BioPharma is the direct beneficial owner of 742,547 shares of
Common Stock or approximately 4.5% of the shares deemed outstanding by the
Company (16,368,879) as of July 16, 1999. Ilex Alta Bio is the direct beneficial
owner of 424,065 shares of Common Stock or approximately 2.6% of the shares
deemed outstanding by the Company (16,368,879) as of July 16, 1999. Embarcadero
LLC is the direct beneficial owner of 27,988 shares of Common Stock or
approximately .2% of the shares deemed outstanding by the Company (16,368,879)
as of July 16, 1999.
(b) Each entity has the power to direct the disposition of and vote the
stock held by it. By virtue of the relationships previously reported under Item
2 of this Statement, Alta Management, Alta/Chase Management and Alta Partners
may be deemed to have indirect beneficial ownership of the shares owned by such
entities.
(c) On July 16, 1999 Alta BioPharma, Ilex Alta Bio, and Embarcadero LLC
acquired the Shares described in Item 3 of this Statement in a privately
negotiated transaction with the Company for aggregate consideration of
$6,215,859, $3,549,852 and $234,289, respectively.
Except as set forth above, neither the Reporting Persons nor the Partners have
effected any transaction in the Shares during the past 60 days.
Page 15 of 41 pages
<PAGE>
(d) Alta BioPharma, Ilex Alta Bio and Embarcadero LLC each have the
right to receive dividends and proceeds from the sale of Common Stock held by
it. By virtue of the relationships reported in Item 2 of this Statement. Alta
Management, Alta/Chase Management and Alta Partners may be deemed to have the
power to direct the receipt of dividends and the proceeds from the sale of the
Common Stock held by each entity.
(e) Not Applicable
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
The Ilex Oncology Inc. Stock Purchase Agreement dated July 16, 1999 is
hereby incorporated in its entirety by this reference.
Item 7. Material to be Filed as Exhibits.
Exhibit A: Joint Filing Statement
Exhibit B: Ilex Oncology Inc. Stock Purchase Agreement dated
July 16, 1999.
Exhibit C: Alta BioPharma Partners Limited Partnership Management
Rights Agreement dated July 16, 1999.
Page 16 of 41 pages
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: July 26, 1999
<TABLE>
<CAPTION>
<S> <C>
Alta Partners Alta BioPharma Partners, L.P.
By: /s/ Eileen McCarthy By: Alta BioPharma Management, LLC
-------------------------------------------- Its General Partner
Eileen McCarthy, Vice President
Alta BioPharma Management, LLC By: /s/ Eileen McCarthy
--------------------------------------------
Eileen McCarthy, Member
By: /s/ Eileen McCarthy Ilex Chase Partners (Alta Bio), LLC
--------------------------------------------
Eileen McCarthy, Member
By: Alta/Chase BioPharma Management, LLC
Alta/Chase BioPharma Management, LLC Its Managing Member
By: /s/ Eileen McCarthy By: /s/ Eileen McCarthy
-------------------------------------------- --------------------------------------------
Eileen McCarthy, Member Eileen McCarthy, Member
Alta Embarcadero BioPharma, LLC
By: /s/ Eileen McCarthy
--------------------------------------------
Eileen McCarthy, Member
/s/ Jean Deleage /s/ Guy Nohra
- ------------------------------------ ------------------------------------
Jean Deleage Guy Nohra
/s/ Garrett Gruener /s/ Marino Polestra
- ------------------------------------ ------------------------------------
Garrett Gruener Marino Polestra
/s/ Daniel Janney /s/ Alix Marduel
- ------------------------------------ ------------------------------------
Daniel Janney Alix Marduel
</TABLE>
Page 17 of 41 pages
<PAGE>
EXHIBIT A
Joint Filing Statement
We, the undersigned, hereby express our agreement that the attached
Schedule 13D is filed on behalf of each of us.
Date: July 26, 1999
<TABLE>
<CAPTION>
<S> <C>
Alta Partners Alta BioPharma Partners, L.P.
By: /s/ Eileen McCarthy By: Alta BioPharma Management, LLC
-------------------------------------------- Its General Partner
Eileen McCarthy, Vice President
Alta BioPharma Management, LLC By: /s/ Eileen McCarthy
--------------------------------------------
Eileen McCarthy, Member
By: /s/ Eileen McCarthy Ilex Chase Partners (Alta Bio), LLC
--------------------------------------------
Eileen McCarthy, Member
By: Alta/Chase BioPharma Management, LLC
Alta/Chase BioPharma Management, LLC Its Managing Member
By: /s/ Eileen McCarthy By: /s/ Eileen McCarthy
-------------------------------------------- --------------------------------------------
Eileen McCarthy, Member Eileen McCarthy, Member
Alta Embarcadero BioPharma, LLC
By: /s/ Eileen McCarthy
--------------------------------------------
Eileen McCarthy, Member
/s/ Jean Deleage /s/ Guy Nohra
- ------------------------------------ ------------------------------------
Jean Deleage Guy Nohra
/s/ Garrett Gruener /s/ Marino Polestra
- ------------------------------------ ------------------------------------
Garrett Gruener Marino Polestra
/s/ Daniel Janney /s/ Alix Marduel
- ------------------------------------ ------------------------------------
Daniel Janney Alix Marduel
</TABLE>
Page 18 of 41 pages
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of the
16th day of July, 1999, by and between ILEX Oncology, Inc., a Delaware
corporation, (the "Company"), and each of the Investors listed on the Schedule
of Investors attached hereto as Schedule A (collectively, the "Investors" and
individually, each an "Investor").
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale. Subject to the terms and conditions hereof, the
Investors agree to purchase from the Company, and the Company agrees to issue
and sell to the Investors, an aggregate number of shares of the Company's common
stock, $.01 par value, equal to the quotient obtained by dividing (x)
$20,000,000 by (y) 85% of the Market Price (the "Shares") for an aggregate
purchase price of twenty million dollars ($20,000,000) (the "Purchase Price").
The number of Shares to be sold by the Company to each Investor and the
aggregate consideration to be received by the Company from each Investor is set
forth opposite Investor's name on the Schedule of Investors attached hereto.
"Market Price" shall mean the average of the closing bid and asked prices of a
share of Common Stock for the 30 consecutive trading days immediately prior to
the Closing Date.
1.2 The Closing. The closing ("Closing") of the purchase and sale of
the Shares shall take place in such manner as the parties may mutually agree.
The date of the Closing is hereinafter referred to as the "Closing Date." At the
Closing, the Company shall deliver stock certificates representing the Shares in
such denomination and registered in the name of each Investor as set forth on
the Schedule of Investors upon delivery to the Company by each Investor of the
aggregate amount of the purchase price of the Shares to be purchased by such
Investor as set forth on the Schedule of Investors in United States dollars in
immediately available funds by wire transfer to an account designated prior to
the Closing Date in writing by the Company for such purpose.
ARTICLE II
REPRESENTATIONS OF THE COMPANY
The Company represents and warrants to the Investors as follows:
2.1 Organization, Good Standing and Qualification. The Company: (a) is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) has all requisite corporate power and
authority to own and operate its properties and assets and to carry on its
business as it is presently being conducted and as proposed to be conducted; and
(c) is qualified and is in good standing as a foreign corporation in all other
Page 19 of 41 pages
<PAGE>
jurisdictions in which the failure so to qualify would have a material adverse
effect on its business or properties.
2.2 Capitalization. Immediately prior to the Closing, the authorized
capital of the Company consists of 60,000,000 shares of Common Stock, of which
12,979,678 shares were issued and outstanding on July 15, 1999, all of which
have been validly issued, and are fully paid and non-assessable, and 20,000,000
shares of Preferred Stock, none of which were issued and outstanding on the date
hereof.
2.3 Authorization. All corporate action on the part of the Company and
its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder and the authorization, issuance and delivery of the Shares
has been taken or will be taken on or prior to the Closing, and this Agreement
constitutes a valid and legally binding obligation of the Company.
2.4 Valid Issuance of Shares. When issued in accordance with the terms
of this Agreement, the Shares shall be duly and validly authorized and issued
(including, without limitation, issued in compliance with applicable federal and
state securities laws), fully paid and non-assessable and not subject to any
preemptive rights, liens, claims or encumbrances, or other restriction on
transfer. Furthermore, the certificates representing the Shares will be in due
and proper form and have been duly and validly executed by the officers of the
Company named thereon.
2.5 Governmental Consents. All consents, approvals, orders,
authorizations, registrations, qualifications, designations, declarations or
filings of or with any federal, state or local governmental authority on the
part of the Company required in connection with the consummation of the
transactions contemplated herein have been or shall be obtained prior to the
Closing and shall be effective as of the Closing.
2.6 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best of the Company's knowledge and belief,
any basis therefor or threat thereof, against or affecting the Company which
question the validity of this Agreement or the right of the Company to enter
into it, or to consummate the transactions contemplated hereby, or which might
result, either individually or in the aggregate, in any material adverse change
in the business, prospects, conditions, affairs or operations of the Company or
in any of the properties or assets, or in any material impairment of the right
or ability of the Company to carry on its business as now conducted or as
proposed to be conducted. The foregoing includes, without limitation, actions
pending or threatened (or any basis therefor known to the Company) involving the
prior employment of any of the Company's employees, use in connection with the
Company's business of any information or techniques allegedly proprietary to any
former employers of the Company's employees, or obligations of the Company's
employees under any agreements with their prior employers. The Company is not a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or governmental agency or instrumentality. There is no
action, suit, proceeding or investigation by the Company currently pending or
which the Company intends to initiate.
Page 20 of 41 pages
<PAGE>
2.7 No Conflict With Other Instruments. The Company is not in violation
or default of any provisions of its Amended and Restated Certificate of
Incorporation or Bylaws, as amended, or of any instrument, judgment, order,
writ, decree or contract to which it is a party or by which it is bound or, to
its knowledge, of any provision of federal or state statute, rule or regulation
applicable to the Company, which violation or default would be materially
adverse to the Company. The execution, delivery and performance of this
Agreement will not result in any violation of, be in conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (a) any provision of the Company's Certificate of Incorporation or
Bylaws; (b) any provision of any judgment, decree or order to which the Company
is a party or by which it is bound; (c) any material contract, obligation or
commitment to which the Company is a party or by which it is bound; or (d) to
the Company's knowledge, any statute, rule or governmental regulation applicable
to the Company.
2.8 Securities and Financial Statement Matters. Company has duly filed
in a timely manner (without any permitted extension) all reports (the "SEC
Reports") required to be filed by Company with the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934, as amended
(the "1934 Act"). The SEC Reports (including, in each case, without limiting the
generality thereof, the audited and unaudited financial statements of Company
included therein) when filed contained all statements required to be stated
therein in accordance with the 1934 Act and did not contain any untrue statement
of material fact or omit to state a material fact necessary to make any of the
statements contained therein not misleading in light of the circumstances under
which they were made and otherwise complied in all material respects with the
applicable requirements of the 1934 Act. The consolidated financial statements
included in the SEC Reports comply as to form with the requirements of
Regulation S-X, as promulgated by the SEC under the Securities Act of 1933, as
amended (the "1933 Act"), and are derived from the applicable books and records
of Company, have been prepared in conformity with generally accepted accounting
principles (as required by Regulation S-X) and present fairly the financial
condition, results of operations, changes in security holders' equity and cash
flows of Company on a consolidated basis, as at the close of business, or for
the period ended, on the date of each of such financial statements.
2.9 Absence of Certain Changes or Events. Except as disclosed in the
financial statements referred to in Section 2.8, the Company's Annual Report on
Form 10-K for the year ended December 31, 1998 and the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999, or as otherwise
disclosed in Section 2.9 of the Disclosure Schedule attached hereto, since March
31, 1999, neither Company nor any of its subsidiaries or affiliates has incurred
any liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to
Company and its subsidiaries and affiliates, taken as a whole, and there has not
been (i) any material change in the capital stock of the Company or its
subsidiaries that would have a Material Adverse Effect (as defined below) or
(ii) any event, change or occurrence which individually or in the aggregate
might (x) have a material adverse effect on the condition (financial or other),
assets, business, or results of operations of Company, taken as a whole, (y)
materially adversely affect Company's ability to consummate any of the
transactions contemplated hereby or to perform its obligations under this
Agreement or (each of (x) and (y) being referred to herein, individually or in
the aggregate as a
Page 21 of 41 pages
<PAGE>
"Material Adverse Effect"). No event has occurred since March
31, 1999, with respect to which Company would be required to file a Current
Report on Form 8-K under the 1934 Act.
2.10 Corporate Documents. The Amended and Restated Certificate of
Incorporation and Bylaws, as amended, of the Company are in the form previously
provided to each Investor.
2.11 Registration Rights. Except as provided in Section 2.11 of the
Disclosure Schedule, the Company is under no contractual obligation to register
(now or in the future, whether contingent or not) under the 1933 Act any of its
presently outstanding securities or any of its securities that may subsequently
be issued.
2.12 Brokers and Finders. The Company has not retained any investment
banker, broker, finder, consultant or intermediary and is not obligated to any
such person for any fee, in connection with the transactions contemplated by
this Agreement.
2.13 SEC Documents. The Company has provided to each Investor its
Annual Report on Form 10-K for the year ended December 31, 1998, its Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999, and its proxy
statement with respect to the Annual Meeting of Stockholders held on May 26,
1999.
2.14 Investment Company Act. The Company is not an "investment company"
or a company controlled by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
2.15 Compliance with Law. The business of the Company is not being
conducted in violation of any material law, ordinance or regulation of any
governmental entity (including, without limitation, those relating to
environmental protection and occupational safety and health practices). All
material governmental approvals, permits and licenses required to conduct the
current business of the Company have been obtained and are in full force and
effect and are being complied with in all material respects.
2.16 Form S-3. The Company is a registrant qualified and entitled to
use a registration statement on Form S-3.
ARTICLE III
REPRESENTATIONS OF EACH INVESTOR
Each Investor represents and warrants to the Company as follows:
3.1 Authorization. The Investor has full power and authority to enter
into this Agreement. This Agreement constitutes a valid and legally binding
obligation of each Investor.
3.2 Brokers and Finders. No Investor has retained any investment
banker, broker, finder, consultant or intermediary and is not obligated to any
such person for any fee, in connection with the transactions contemplated by
this Agreement.
Page 22 of 41 pages
<PAGE>
ARTICLE IV
SECURITIES LAWS
4.1 Securities Laws Representations and Covenants of the Investors.
Each Investor represents, warrants and covenants to the Company as follows:
(a) Purchase Entirely for Own Account. The Shares are being acquired
for investment for each Investor's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and no
Investor has any present intention of selling, granting any participation in, or
otherwise distributing the same. No Investor has any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Shares. No Investor was organized solely for the purpose of acquiring the
Shares.
(b) Disclosure of Information. Each Investor believes it has received
all information it considers necessary or appropriate for deciding whether to
purchase the Shares. Each Investor has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Shares.
(c) Investment Experience. Each Investor has previously invested in
companies in the development stage, can bear the economic risks of the
investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of its investment
in the Shares.
(d) Accredited Investor. Each Investor is an accredited investor as
defined in Rule 501(a) of Regulation D, as amended, of the SEC under the 1933
Act.
(e) Restricted Securities. Each Investor understands that the Shares it
is purchasing pursuant to this Agreement are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations the Shares may be resold without
registration under the 1933 Act only in certain limited circumstances. In this
connection, each Investor is familiar with SEC Rule 144, as presently in effect,
and understands the resale limitations imposed thereby and by the 1933 Act.
(f) Disposition of Shares. No Investor will dispose of any of the
Shares (other than pursuant to SEC Rules 144 or 144A or any similar or analogous
rule or rules) unless and until (i) such Investor shall have notified the
Company of the proposed disposition and the circumstances surrounding the
proposed disposition and, if reasonably requested by the Company, such Investor
shall have furnished the Company with an opinion of counsel reasonably
satisfactory in form and substance to the Company to the effect that such
disposition will not require registration under the 1933 Act; or (ii) there is
in effect a registration statement under the 1933 Act covering the proposed
disposition and the proposed disposition is made in accordance with such
registration statement.
Page 23 of 41 pages
<PAGE>
4.2 Legends. The certificates evidencing the Shares may bear the
restrictive legend set forth below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS.
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
ARTICLE V
CONDITIONS OF THE INVESTORS' OBLIGATIONS AT THE CLOSING
The obligations of the Investors under this Agreement to purchase the
Shares from the Company are subject to the fulfillment on or before the Closing
of each of the following conditions, any of which may be waived in writing by
the Investors:
5.1 Representations and Warranties. The representations and warranties
of the Company contained in Article II of this Agreement shall be true on and as
of the Closing with the same effect as though such representation and warranties
had been made on and as of the Closing.
5.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 Compliance Certificate. The Company shall have delivered to the
Investors a certificate dated as of the Closing, executed by an executive
officer of the Company and in a form reasonably acceptable to the Investor,
certifying that the conditions set forth in Sections 5.1 and 5.2 have been
satisfied and that there has been no material adverse change in the assets,
properties, prospects, condition, affairs, operations or business of the
Company, as now conducted or as proposed to be conducted, since the date of this
Agreement.
5.4 Proceedings and Documents. All corporate and other proceedings
taken by the Company in connection with the transactions contemplated by this
Agreement and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Investors, and the Investors shall have received all
such documents as it may have reasonably requested.
5.5 Acquisition of Convergence. The Company shall have completed the
acquisition of Convergence Pharmaceuticals, Inc.
Page 24 of 41 pages
<PAGE>
5.6 Opinion of Counsel. The Investors shall have received an opinion
from the Company's counsel, dated as of the Closing and in a form and substance
reasonably acceptable to the Investors, to the effect that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and the Company has
the requisite corporate power and authority to own its properties and to conduct
its business;
(b) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the terms of the Agreement. This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against it in accordance with its terms, except (i) as the enforceability
thereof may be limited by bankruptcy, insolvency or other laws relating to or
affecting creditors' rights generally, (ii) as rights to indemnity and
contribution may be limited under applicable law or by principles of public
policy and (iii) as such enforceability may be limited or affected by general
principles of equity, whether applied by a court of law or equity;
(c) The execution, delivery and performance by the Company with the
terms of this Agreement do not violate any provision of the Company's
Certificate of Incorporation or By-laws and, to such counsel's knowledge, do not
conflict with or constitute a default under the provisions of any judgment,
writ, decree or order known to such counsel or any material agreement to which
the Company is a party or by which it is bound and which is filed as an exhibit
to, or incorporated by reference in, the Company's Form 10-K for the fiscal year
ended December 31, 1998, and the Company's Form 10-Q for the quarter ended March
31, 1999;
(d) All consents, approvals, orders or authorizations of, and all
qualifications, registrations, designations, declarations, or filings with, any
federal, Delaware or Texas governmental authority required to be made prior to
the Closing in connection with the consummation of the transactions contemplated
by this Agreement have been made or obtained, and are effective, and such
counsel is not aware of any proceedings, or threat thereof, which question the
validity thereof;
(e) Based in part upon the representations of the Investors set forth
in this Agreement, the offer and sale of the Shares pursuant to the terms of
this Agreement are exempt from the registration requirements of Section 5 of the
Securities Act;
(f) To such counsel's knowledge, there is no action, proceeding or
investigation pending or threatened against the Company, which questions the
validity of this Agreement, or any action be taken by the Company pursuant to or
in connection with the Agreement;
(g) The Shares have been duly authorized and, when issued in compliance
with this Agreement, will be fully paid and non-assessable and will be free of
any liens or encumbrances created by the Company; and
Page 25 of 41 pages
<PAGE>
(h) There are no preemptive rights with respect to the issuance and
sale of the Shares and there are no restrictions on transfer of the Shares other
than those arising under federal and state securities laws.
5.7 SBA Sideletter. The Company shall have executed the letter
agreement between the Company, Chase Venture Capital Associates, L.P. and ILEX
Chase Partners (Alto Bio), LLC attached hereto as Exhibit 5.7 regarding small
business matters (the "Small Business Sideletter").
ARTICLE VI
CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING
The obligations of the Company under this Agreement to issue and sell
the Shares to the Investor are subject to the fulfillment on or before the
Closing of each of the following conditions, any of which may be waived in
writing by the Company:
6.1 Representations and Warranties. The representation and warranties
of each Investor contained in Article III and Article IV of this Agreement shall
be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. The Investors shall at the Closing pay
the Purchase Price upon delivery by the Company of a certificate representing
the Shares.
ARTICLE VII
POST-CLOSING COVENANTS OF THE COMPANY
With a view to making available to the Investors the benefits of SEC
Rule 144 and any other rule or regulation of the SEC that may at any time permit
the Investors to sell securities of the Company to the public without
registration, the Company agrees to use best efforts to file with the SEC in a
timely manner all reports and other documents required of the Company under the
1933 Act and the 1934 Act.
Page 26 of 41 pages
<PAGE>
ARTICLE VIII
REGISTRATION RIGHTS
8.1 Registration Rights. As soon after Closing as is reasonably
practicable, the Company will use its best efforts to file a registration
statement on Form S-3 (or any successor to Form S-3) (or other appropriate
registration statement) with the SEC and such applications or other filings as
required under applicable state securities or blue sky laws sufficient to permit
the public offering of the Shares to be made on a continuous basis pursuant to
Rule 415 under the 1933 Act, and shall use its best efforts to cause such
registration statement to be declared effective so that the Shares will be
registered for the offering on such Form. Notwithstanding the foregoing, the
Company shall not be obligated to effect a registration (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the 1933 Act; or (ii) if the Company shall
furnish to the Investors a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the Company
the filing of a registration statement would require the disclosure of material
information that the Company has a bona fide business purpose for preserving as
confidential and that is not then otherwise required to be disclosed, then the
Company's obligation to use its best efforts to file a registration statement
shall be deferred for a period not to exceed 180 days from the date of such
notice.
8.2 Registration Procedures and Expenses. As provided in Section 8.1
hereof, the Company shall, as expeditiously as is reasonably practicable, do
each of the following:
(a) prepare and file with the SEC a registration statement
with respect to the Shares and, subject to the limitations under Section 8.1
hereof, use its best efforts to cause such registration statement to become
effective and remain effective for two years as provided herein;
(b) cooperate with the Investors and any underwriter who shall
sell the Shares in connection with their review of the Company made in
connection with such registration;
(c) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until the earlier to occur of the sale of all of the Shares by the Investors or
the second anniversary of the effectiveness of the registration statement, and
to comply with the provisions of the 1933 Act and the 1934 Act, with respect to
the disposition of all the Shares covered by such registration statement for
such period;
(d) furnish to the Investors such number of copies of the
prospectus forming a part of such registration statement (including each
preliminary prospectus), in conformity with the requirements of the 1933 Act,
and such other documents as the Investors may reasonably request in order to
facilitate the disposition of the Shares; and
(e) notify the Investors, at any time when a prospectus
relating to the Shares is required to be delivered under the 1933 Act, of the
happening of any event as a result of which the prospectus forming a part of
such registration statement, as then in effect, includes an untrue
Page 27 of 41 pages
<PAGE>
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, prepare and furnish to the Investor a
reasonable number of copies of any supplement to or any amendment of such
prospectus that may be necessary so that, as thereafter delivered to the
purchasers of the Shares, such prospectus shall not include any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing.
8.3 Agreement by each Investor. In the event that each Investor
participates, pursuant to this Article 8, in the offering of the Shares, such
Investor shall:
(a) furnish the Company all material information reasonably
requested by the Company concerning the Investor and the proposed method of sale
or other disposition of the Shares and such other information and undertakings
as shall be reasonably required in connection with the preparation and filing of
the registration statement covering the Shares in order to ensure full
compliance with the 1933 Act and the rules and regulations of the SEC
thereunder;
(b) cooperate in good faith with the Company and its
underwriters, if any, in connection with such registration, including placing
the Shares in escrow or custody to facilitate the sale and distribution thereof,
provided that such escrow or custody arrangement shall be no more restrictive
upon the Investors than upon any other holder of stock of the Company for the
benefit of whom such registration is undertaken; and
(c) make no further sales or other dispositions, or offers
therefor, of the Shares under such registration statement if, during the
effectiveness of such registration statement, an intervening event should occur
which, in the opinion of counsel to the Company, makes the prospectus included
in such registration statement no longer comply with the 1933 Act, so long as
written notice containing the facts and legal conclusions relied upon by the
Company in this regard has been received by each Investor from the Company,
until such time as each Investor has received from the Company copies of a new,
amended or supplemented prospectus complying with the 1933 Act, which prospectus
shall be delivered to the Investors by the Company as soon as practicable after
such notice.
8.4 Allocation of Expenses. The Company shall pay the costs and
expenses in connection therewith, other than the attorneys' fees of the
Investors; provided, however, that the Investors shall pay all underwriting
discounts, selling commissions and stock transfer taxes attributable to the
Shares under such registration statement.
8.5 Indemnification.
(a) Upon the registration of any of the Shares under the 1933 Act
pursuant to Article 8 hereof, each of the Investors registering such shares,
severally and not jointly, shall indemnify and hold harmless the Company, each
director and officer of the Company, each underwriter and any person who
controls the Company or such underwriter within the meaning of Section 5 of the
1933 Act, and the Company's accountants and legal counsel, against all
Page 28 of 41 pages
<PAGE>
expenses, claims, losses, damages and liabilities (or actions or proceedings in
respect thereof) including any of the foregoing incurred in settlement of any
commenced or threatened litigation, arising out of or based upon any untrue
statement (or alleged untrue statement) of any material fact, or omission (or
alleged omission) of any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading contained in any such registration statement,
preliminary prospectus or final prospectus, offering circular or other document,
or any amendment or supplement thereto, incident to any such registration
qualification or compliance, if such statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company or
its underwriter by or on behalf of such Investor specifically for use therein.
(b) The Company will indemnify each Investor, with respect to
which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 5 of the 1933 Act, against all
expenses, claims, losses, damages and liabilities (or actions or proceedings in
respect thereof), including any of the foregoing incurred in settlement of any
commenced or threatened litigation, arising out of or based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof, incident to any such registration,
qualification or compliance, or arising out of or based upon any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, provided that the Company will not be
liable to indemnify such Investor(s) or a underwriter in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of a Investor or a underwriter
specifically for use therein.
(c) Each party entitled to indemnification under this Section
8.5 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). Without limiting the generality of the foregoing, the Indemnified
Party may withhold its consent to any such counsel who also acts as counsel to
the Indemnifying Party (with respect to such claim or otherwise) if the
Indemnified Party reasonably believes that there exists a conflict of interest
between the Indemnified Party and the Indemnifying Party, with respect to such
claim or litigation. In such event, the Indemnifying Party shall bear the
expense of another counsel who shall represent the Indemnified Party and any
other persons or entities who have indemnification rights from the Indemnifying
Party hereunder, with respect to such claim or litigation, and shall be selected
as provided in the first sentence of this Section 8.5(c). The Indemnified Party
may participate in such defense at such party's expense (except to the extent
that the Indemnifying Party is required to pay the expense of such counsel
pursuant to this Section 8.5(c), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
Page 29 of 41 pages
<PAGE>
relieve the Indemnifying Party of its obligations under this Agreement, unless
such failure causes material harm to the Indemnifying Party's defense such claim
or litigation. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
(d) If the indemnification provided for in this Section 8.5(d)
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by or on
behalf of the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
Page 30 of 41 pages
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 Entire Agreement. This Agreement (together with any attachments or
exhibits including, without limitation, the Registration Rights Agreement)
constitutes the entire agreement between the Company and the Investors relating
to the subject matter hereof, and no party shall be liable or bound to the other
in any manner by any warranties, representations or covenants except as
specifically set forth herein.
9.2 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Except as expressly provided in this Agreement and the
Registration Rights Agreement, nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without application of the choice
of laws provisions of such laws.
9.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.5 Headings. The headings used in this Agreement are for convenience
and shall not by themselves be considered in construing or interpreting this
Agreement.
9.6 Notices. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon either (a)
personal delivery; (b) one day after facsimile transmission to the facsimile
number indicated below and evidenced by a written record of completed
transmission to such number; or (c) five days after deposit in the United States
mail, by registered or certified mail, postage prepaid, addressed to the
following address, or to such other address as the party may designate by ten
(10) days' advance written notice to the other party:
If to the Investors:
At the address on the Company's stock ledger, or such other address
as may be provided by such Investor;
Page 31 of 41 pages
<PAGE>
If to the Company:
ILEX Oncology, Inc.
11550 I.H. 10 West, Suite 100
San Antonio, Texas 78230
Attn: President
Facsimile No: (210) 949-8227
9.7 Survival of Warranties. The warranties, representations and
covenants of the parties contained in or made pursuant to this Agreement shall
survive the execution and deliver of this Agreement and the Closing and shall in
no way be affected by any investigation of the subject matter thereof by or on
behalf of the Investors; provided, however, that such representations and
warranties need only be accurate as of the date of such execution and delivery
and as of the Closing.
9.8 Finder's Fees. Each party agrees to indemnify and hold harmless the
other party from and against any liability for any commission or compensation in
the nature of investment banking or finder's fees in connection with the
transactions contemplated by this Agreement (and the costs and expenses of
defending against such liability or asserted liability) for which the
indemnifying party or any of its officers, employees or representatives is
responsible.
9.9 Expenses. On the Closing Date, the Company will pay the reasonable
legal fees and expenses of the Investors up to $20,000, in connection with the
negotiation, execution, delivery and performance of this Agreement.
9.10 Amendments and Waivers. Except as expressly provided in this
Agreement, any provision of this Agreement may be amended only by the mutual
written agreement of the parties and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only in a written document executed by the
waiving party.
9.11 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
9.12 Regulatory Matters. Each Investor agrees to cooperate with the
Company in all reasonable respects in complying with the terms and provisions of
the Small Business Sideletter, provided that no Investor shall be required under
this Section 9.12 to take any action that would adversely affect in any material
respect such Investor's rights under this Agreement or as a stockholder of the
Company.
Page 32 of 41 pages
<PAGE>
IN WITNESS WHEREOF the parties have executed this Agreement effective
as of the day and year first above written.
ILEX ONCOLOGY, INC.
By:__________________________________________
Richard L. Love
President
INVESTORS:
ALTA BIOPHARMA PARTNERS, L.P.
By: Alta BioPharma Management, LLC
By:__________________________________________
Managing Partner
ILEX CHASE PARTNERS (ALTA BIO), LLC
By: Alta/Chase BioPharma Management, LLC
By:__________________________________________
Member
ALTA EMBARCADERO
BIOPHARMA PARTNERS, LLC
By:__________________________________________
Member
Page 33 of 41 pages
<PAGE>
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: ______________________________
By:__________________________________________
Managing Partner
Page 34 of 41 pages
<PAGE>
______________________________________________
B. J. McCombs
ADVENT HEALTH CARE AND LIFE
SCIENCES II LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By:___________________________________________
Vice President/Senior
Vice President
ADVENT HEALTH CARE AND LIFE
SCIENCES II BETEILIGUNG GMBH & CO. KG
By: Advent Health Care and Life Sciences II
Verwaltungs GmbH, General Partner
By: Advent International Limited Partnership,
Managing General Partner
By: Advent International Corporation, General Partner
By: __________________________________________
Vice President/Senior
Vice President
ADVENT PARTNERS HLS II LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By:___________________________________________
Vice President/Senior
Vice President
Page 35 of 41 pages
<PAGE>
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By:__________________________________________
Vice President/Senior
Vice President
Page 36 of 41 pages
<PAGE>
<TABLE>
SCHEDULE A
SCHEDULE OF INVESTORS
<CAPTION>
- -----------------------------------------------------------------------------------------------
Aggregate
Number of Shares Purchase
Name and Address to be Purchased Price ($)
- -----------------------------------------------------------------------------------------------
<S> <C> <C>
Alta BioPharma Partners, L.P. 742,547 $6,215,859
- -----------------------------------------------------------------------------------------------
Alta Embarcadero BioPharma, LLC 27,988 $234,288
- -----------------------------------------------------------------------------------------------
ILEX Chase Partners (Alta Bio), LLC 424,065 $3,549,852
- -----------------------------------------------------------------------------------------------
Chase Venture Capital Associates, L.P. 238,920 $2,000,000
- -----------------------------------------------------------------------------------------------
B. J. McCombs 119,460 $1,000,000
- -----------------------------------------------------------------------------------------------
Advent Health Care and Life Sciences II Limited
Partnership 757,974 $6,345,000
- -----------------------------------------------------------------------------------------------
Advent Health Care and Life Sciences II
Beteiligung GmbH & Co. KG 58,894 $493,000
- -----------------------------------------------------------------------------------------------
Advent Partners HLS II Limited Partnership 16,844 $141,000
- -----------------------------------------------------------------------------------------------
Advent Partners Limited Partnership 2,509 $21,000
----- ------
- -----------------------------------------------------------------------------------------------
TOTAL 2,389,201 $20,000,000
========= ===========
- -----------------------------------------------------------------------------------------------
</TABLE>
Page 37 of 41 pages
<PAGE>
Disclosure Schedule
to
Stock Purchase Agreement
among
the Company and the Investors
- --------------------------------------------------------------------------------
Section 2.9
Certain Changes
On May 26, 1999 the Board of Directors of ILEX approved a write-off of up to $20
million in largely non-cash value of investments in affiliates and certain other
non-productive assets and commitments in the CRO business.
Section 2.11
Registration Rights
Registration Rights Agreement dated July 16, 1999, among ILEX Oncology, Inc. and
Shareholders of Convergence Pharmaceuticals, Inc.
Registration Rights Agreement dated January 22, 1999, among ILEX Oncology, Inc.
and Eli Lilly and Company.
Registration Rights Agreement dated as of July 9, 1997, among ILEX Oncology,
Inc. and PRN Research, Inc.
Fourth Amended and Restated Registration Rights Agreement dated December 11,
1996.
Page 38 of 41 pages
<PAGE>
LETTER AGREEMENT
Alta BioPharma
One Embarcadero, Suite 4050
San Francisco, California 94111
In connection with the closing of the transactions contemplated by the
Stock Purchase Agreement, dated as of the __ day of July, 1999, by and between
the undersigned, ILEX Oncology, Inc., a Delaware corporation (the "Undersigned")
Management Rights
1. Investor shall be entitled to consult with and advise management of the
Company on significant business issues, including management's proposed
annual operating plans, and management will meet with Investor regularly
during each year at the Company's facilities at mutually agreeable times for
such consultation and advice and to review progress in achieving said plans.
2. Investor may examine the books and records of the Company and inspect its
facilities and may request information at reasonable times and intervals
concerning the general status of the Company's financial condition and
operations, provided that access to highly confidential proprietary
information and facilities need not be provided.
3 If Investor is not represented on the Company's Board of Directors, the
Company shall invite a representative of the Investor to attend all meetings
of its Board of Directors in a nonvoting observer capacity, and in this
respect shall give such representative copies of all notices, minutes,
consents and other material that it provides to its directors; provided,
however, that the Company reserves the right to exclude such representative
from access to any material or meeting or portion thereof if the company
believes upon advice of counsel that such exclusion is reasonably necessary
to preserve the attorney-client privilege, to protect highly confidential
proprietary information or for other similar reasons. Such representative
may participate in discussions of matters brought to the Board.
Investor agrees, and any representative of the Investor will agree, to hold
in confidence and trust and not use or disclose any confidential information
provided to or learned by it in connection with its rights. The rights
described herein shall terminate upon the date that Alta BioPharma Partners,
L.P. no longer owns 50% (fifty percent) of the shares of ILEX Common Stock
it is purchasing pursuant to the Stock Purchase Agreement to which this
letter agreement is being entered into.
Investor will not purchase or sell the Company's stock while in possession
of material information that has not been publicly disseminated.
Page 39 of 41 pages
<PAGE>
The rights described herein are nonassignable.
The investor, Alta BioPharma Partners, L.P., requires that the Company be in
compliance with the terms of the Investments Relating To Certain Countries,
the Indemnification of Alta BioPharma Partners, L.P. and the Indemnified
Parties, and the SuperFund requirements of CERCLA (Comprehensive
Environmental Response Compensation and Liability Act):
INVESTMENTS RELATING TO CERTAIN FOREIGN COUNTRIES
The Company has not participated and is not participating in, an
anti-Israeli boycott within the scope of chapter 7 of Part 2 of Division 4
of Title 2 of the California Government Code as in effect from time to
time.
INDEMNIFICATION
The Company will use its reasonable efforts to limit the liability, to the
fullest extent permissible under the governing law of such company's state
of incorporation, of any director representing Alta BioPharma Partners,
L.P. and each of his or her affiliated parties.
CERCLA
SUPERFUND REQUIREMENTS
1 The Company has not caused or allowed, nor has the Company contracted with
any party for, the generation, use, transportation, treatment, storage or
disposal of any Hazardous Substances (as defined below), other than in
accordance with the Environmental Laws, in connection with the operations
of its business or otherwise.
2. The Company, the operations of its business, and any real property that the
Company owns, leases, or otherwise occupies or uses (the "Premises") are in
compliance with all applicable Environmental Laws (as defined below) and
orders or directives of any governmental authorities having jurisdiction
under such Environmental Laws including, without limitation, any
Environmental Laws or orders or directives with respect to any cleanup or
remediation of any release or threat of release of Hazardous Substances.
3. The Company has not received any citation, directive, letter or other
communication, written or oral, or any notice of any proceedings, claims or
lawsuits, from any person, entity or governmental authority arising out of
the ownership or occupation of the Premises, or the conduct of its
operations, nor is it aware of any basis thereof.
4. The Company has obtained and is maintaining in full force and effect all
necessary permits, licenses and approvals required by any Environmental
Laws applicable to the Premises and the business operations conducted
thereon (including operations conducted by tenants on the Premises) and is
in compliance with all such permits, licenses and approvals.
Page 40 of 41 pages
<PAGE>
ALTA BIOPHARMA PARTNERS
5. The Company has not caused, or allowed a release, or a threat of release,
of any Hazardous Substance unto, nor to the best of the Company's knowledge
has the Premises or any property at or near the Premises ever been subject
to a release, or a threat of a release, of any Hazardous Substance.
The term, "Environmental Laws" shall mean any federal, state or local law,
ordinance or regulation pertaining to the protection of human health or the
environment including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq.,
Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Sections 11001, et
seq., and the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901,
et seq.
The term, "Hazardous Substance" includes oil and petroleum products,
asbestos, polychlorinated biphenyls and urea formaldehyde, and any other
materials classified as hazardous or toxic under any Environmental Laws.
1. QUALIFIED SMALL BUSINESS
The Company represents and warrants to the Investor that, to the best of its
knowledge, the Company is a "qualified small business" within the meaning of
Section 1202(d) of the Internal Revenue Code of 1986, as amended (the "Code"),
as of the date hereof, the shares being acquired by Investor should qualify as
"qualified small business stock" as defined in Section 1202(c) of the Code as of
the date hereof. The Company further represents and warrants that, as of the
date hereof, it meets the "active business requirement" of Section 1202(d) of
the Code, and it as made no "significant redemptions" within the meaning of
Section 1202(c)(3)(B) of the Code. The Company will use reasonable efforts to
comply with the reporting and recordkeeping requirements of Section 1202 of the
Code, any regulations promulgated thereunder and any similar state laws and
regulations. The Company further agrees not to repurchase any stock of the
Company if such repurchase would cause the shares being acquired by Investor not
to so qualify as a "qualified small business stock" unless the Board of
Directors determines that such repurchase is in the best interests of the
Company.
I ACKNOWLEDGE AND AGREE TO THE TERMS OF THIS DOCUMENT IN REGARDS TO THE
ALTA BIOPHARMA PARTNERS L.P. MANAGEMENT RIGHTS, INVESTMENTS RELATING TO CERTAIN
FOREIGN COUNTRIES, INDEMNIFICATION AND THE CERCLA REQUIREMENTS.
DATE: ________________________ By: __________________________
Title: _______________________
Page 41 of 41 pages
