INTROGEN THERAPEUTICS,
INC.
PLACEMENT AGENT
AGREEMENT
MULIER CAPITAL
LIMITED
26th Floor, Centre Point,
103 New Oxford Street,
London, WC1A 1DD
INTROGEN
THERAPEUTICS, INC., a Delaware corporation (the “
Company ”), proposes to sell to the Investors (defined
below), pursuant to the terms of this Placement Agent Agreement
(this “ Agreement ”) and the Subscription
Agreements in the form of Exhibit A attached hereto
(the “ Subscription Agreements ”) entered into
with the Investors identified in the Subscription Agreements (each
a “ Investor ” and, collectively, the “
Investors ”), an aggregate of up to 4,986,500 shares
of Common Stock, $0.001 par value (the “ Common Stock
”), of the Company. The aggregate of up to 4,986,500 shares
so proposed to be sold is hereinafter referred to as the “
Stock .” The Company hereby confirms its agreement
with Mulier Capital Limited as the placement agent for the sale of
the Stock to the Investors (the “ Placement Agent
”).
1. AGREEMENT
TO ACT AS PLACEMENT AGENT; PLACEMENT OF SECURITIES
. Subject to all the terms and
conditions of this Agreement:
(a) The
Company hereby authorizes the Placement Agent to act as its agent
to solicit from potential purchasers mutually agreed upon by the
Placement Agent and the Company offers for the purchase of all or
part of the Stock from the Company in connection with the proposed
offering of the Stock.
(b) The
Company has filed a registration statement on Form S-3
(Registration File No. 333-107799), which became effective as of
August 25, 2003, for the registration of the Stock under the
Securities Act of 1933, as amended, (the “ Securities
Act ”). The Company will file with the United States
Securities and Exchange Commission (the “ Commission
”) pursuant to Rule 424(b) under the Securities Act, and the
rules and regulations of the Commission promulgated thereunder, a
supplement to the form of prospectus included in such registration
statement relating to a placement of the Stock and the plan of
distribution thereof and has advised the Placement Agent of all
further information (financial and other) with respect to the
Company to be set forth therein and may file a preliminary
prospectus and/or “free writing prospectuses” (as that
term is defined in Rule 405 under the Securities Act). Such
registration statement, including the
exhibits
thereto and the Base Prospectus, as amended at the date of this
Agreement, as applicable, is hereinafter called the “
Registration Statement ;” such prospectus in the form
in which it appears in the Registration Statement is hereinafter
called the “ Base Prospectus ;” any free writing
prospectus, in the form used in connection with the offer and sale
of the Stock, is hereinafter called a “ Free Writing
Prospectus ;” and the supplemented form of prospectus, in
the form in which it will be filed with the Commission pursuant to
Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called a “ Prospectus Supplement .”
The Placement Agent agrees, as agent of the Company, to use its
best efforts to solicit offers to purchase the Stock from the
Company on the terms and subject to the conditions set forth in the
Base Prospectus, each Free Writing Prospectus, the Prospectus
Supplement and the Registration Statement. The Placement Agent
shall make commercially reasonable efforts to assist the Company in
obtaining performance by each Investor whose offer to purchase
Stock has been solicited by the Placement Agent and accepted by the
Company, but the Placement Agent shall not have any liability to
the Company in the event any such purchase is not consummated for
any reason.
(c) The
Placement Agent represents and warrants to the Company that
(i) it is a duly registered, licensed and qualified corporate
finance advisor pursuant to the regulations and requirements of the
Financial Services Authority (the “ FSA ”) and
any other applicable regulatory body governing the offer or sale of
securities in the United Kingdom, and is licensed and qualified as
such in any jurisdiction in which the Placement Agent offers, or
has offered, any of the Stock, (ii) its participation in the
offering and sale of the Stock will be in accordance with the
provisions of the Securities Act, the regulations promulgated
pursuant thereto, all other regulations of the Commission, the
rules and regulations of the National Association of Securities
Dealers in the United States, the provisions of the Financial
Services and Markets Act 2000, the regulations issued thereunder
(including without limitation the Financial Services and Markets
Act 2000 (Financial Promotion) Order 2001), the Public Offers of
Securities Regulations 1995, and the applicable requirements
(including the relevant conduct of business rules) of the FSA and
any other applicable regulatory body governing the offer or sale of
securities in the United Kingdom, (iii) it has not distributed
and will not distribute prior to the closing date any offering
material in connection with the offer and sale of the Stock, or any
other Company securities, (iv) it has not made and will not
make any offer relating to the Stock that would constitute a
“free writing prospectus” as defined in Rule 405
under the Securities Act unless the prior written consent of the
Company has been given to the Placement Agent and (v) entry by
the Company into the Subscription Agreements will not result in the
Company being in breach of the provisions of the Financial Services
and Markets Act 2000, the regulations issued thereunder (including
without limitation the Financial Services and Markets Act 2000
(Financial Promotion) Order 2001), the Public Offers of Securities
Regulations 1995, and the applicable requirements (including the
relevant conduct of business rules) of the FSA and any
other
2
applicable
regulatory body governing the offer or sale of securities in the
United Kingdom.
(d) Subject to the provisions of this
Section 1 , offers for the purchase of Stock may be
solicited by the Placement Agent as agent for the Company, from
such parties, at such times and in such amounts as agreed by the
Placement Agent and the Company. The Placement Agent shall
communicate to the Company, orally or in writing, each reasonable
offer to purchase Stock received by it as a
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