INTROGEN THERAPEUTICS, INC. PLACEMENT AGENT AGREEMENT
Exhibit 10.1
INTROGEN THERAPEUTICS, INC.
December 13, 2006
MULIER CAPITAL LIMITED
26th Floor, Centre Point,
103 New Xxxxxx Xxxxxx,
Xxxxxx, XX0X 0XX
26th Floor, Centre Point,
103 New Xxxxxx Xxxxxx,
Xxxxxx, XX0X 0XX
Dear Sirs:
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 Xxx 0000, the regulations issued
thereunder (including without limitation the Financial Services and Markets Xxx 0000
(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 Xxx 0000, the regulations issued thereunder (including without limitation the
Financial Services and Markets Xxx 0000 (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
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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 agent of the Company. The Company shall have the
sole right to accept offers to purchase the Stock and may reject any such offer, in whole
or in part, in its sole discretion. The Placement Agent shall have the right, in its
discretion reasonably exercised, without notice to the Company, to reject any offer to
purchase Stock received by it, in whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein.
(e) The purchases of the Stock by the Investors shall be evidenced by the execution of the
Subscription Agreements.
(f) As compensation for services rendered, on the Closing Date (as defined below) the
Company shall pay to the Placement Agent by wire transfer of immediately available funds to
an account or accounts designated by the Placement Agent, an aggregate amount equal to five
percent (5.0%) of the gross proceeds received by the Company from the sale of the Stock on
the Closing Date. Furthermore, as additional performance incentive compensation to the
Placement Agent for the sale of the Stock pursuant to this Agreement and for the sale of
Common Stock pursuant to the Placement Agent Agreement dated November 7, 2006 (the
“November Placement Agent Agreement”), the Company will pay an additional cash fee equal to
the sum of (i) two percent (2%) of the total gross proceeds received by the Company from
the sale of the Stock on the Closing Date plus (ii) $121,999.92 (collectively, the
“Additional Fee”); provided that this Additional Fee shall be paid by the Company in
twenty-four equal consecutive monthly installments commencing on the date that is one
calendar month after the Closing Date, and continuing regularly on the corresponding day of
each month thereafter until paid in full. In addition, if there has not been, as
determined by the Company in its reasonable discretion, any significant or suspicious
trading activity in the Company’s securities prior to the Closing Date indicating any
market knowledge of the placement or any other proposed transaction, upon the Closing of
the sale of the Stock, the Company shall issue to the Placement Agent a warrant to purchase
three hundred twenty-six thousand eight hundred and one (326,801) shares of the Company’s
Common Stock, which warrant also provides additional performance incentive compensation to
the Placement Agent for the sale of the Stock pursuant to this Agreement and for the sale
of Common Stock pursuant to the November Placement Agent Agreement. The warrant shall be
in the form approved by the Company in its discretion. The warrant shall have an exercise
price per share equal to the market value of the Company’s Common Stock as of the Closing
Date (as defined below) as determined in accordance with the rules and
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regulations of Nasdaq, and a term of ten (10) years. Notwithstanding the foregoing, in
no event shall the Company be obligated to sell more than the number of shares of Common
Stock that is one share less than twenty percent (20%) of the issued and outstanding shares
of the Company’s Common Stock on the Closing Date.
(g) The Company will reimburse the Placement Agent for its reasonable expenses, provided
that such expenses have been approved by the Company in advance. Such expenses may include
airfare, other travel expenses, hotel expenses, car hire/taxi fares, telephone/fax and
other communication charges, cost of information materials, postage and delivery costs.
Any expense over U.S. $1,000 will be subject to the written approval of the Company
obtained before such expense is incurred. The Company, in its sole discretion, may elect
to pay various expenses, such as travel expenses, directly.
(h) No Stock which the Company has agreed to sell pursuant to this Agreement shall be
deemed to have been purchased and paid for, or sold by the Company, until such Stock shall
have been delivered to the Investor thereof against valid payment by such Investor.
2. THE CLOSING. The time and date of the closing (each, a “Closing”) shall be at 9:00
A.M., local time, on or about December 14, 2006 (the “Closing Date”) at the office of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Company, at 8911 Capital of Texas Highway North, Westech
360, Suite 3350, Austin, Texas, or another time and place mutually agreed by the parties. Subject
to the terms and conditions hereof, payment of the purchase price for the Stock shall be made in
United States dollars to the Company by United States Federal funds wire transfer, against delivery
of the certificates for the Stock, through the facilities of The Depository Trust Company (“DTC”),
to Investor or its designee, and shall be registered in such name or names and shall be in such
denominations, as the Investor may request no later than one business day following its execution
of a Subscription Agreement for shares of the Stock.
3. ADDITIONAL REPRESENTATIONS AND COVENANTS. The Placement Agent represents,
warrants and agrees that since December 8, 2004 it has not (i) engaged in any short selling or
short sales “against the box” in the Company’s securities, (ii) established or increased any “put
equivalent position” as defined in Rule 16(a)-1(h) under the Securities Exchange Act of 1934, as
amended, with respect to the Company’s securities, or (iii) engaged in any purchase or sale, or
made any offer to purchase or offer to sell, derivative securities relating to the Company’s
securities, whether or not issued by the Company, such as exchange traded options to purchase or
sell the Company’s securities (“puts” and “calls”). The Placement Agent further covenants with the
Company that, for a period of twelve (12) months following the date of this Agreement, it shall not
engage in any such activities set forth in clauses (i) through (iii) above with respect to the
Company’s securities.
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4. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Placement Agent, the Company, and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions herein contained,
this Agreement and all conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person.
5. SURVIVAL. Notwithstanding any investigation made by any party to this
agreement, the provisions of this Agreement shall survive the execution of this Agreement, the
delivery to the Investors of the Stock being purchased and the payment therefor.
6. NOTICES. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Placement Agent, shall be delivered or sent by mail, telex or facsimile
transmission to:
Mulier Capital Limited
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X0XX
Xxxxxx, Xxxxxx Xxxxxxx
Fax: 000 0000 0000
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X0XX
Xxxxxx, Xxxxxx Xxxxxxx
Fax: 000 0000 0000
(b) if to the Company, shall be delivered or sent by mail, telex or facsimile transmission
to:
Introgen Therapeutics, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
8911 Capital of Xxxxx Xxxxxxx
Xxxxxxx 000, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
8911 Capital of Xxxxx Xxxxxxx
Xxxxxxx 000, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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and:
Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
7. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and enforceable.
8. GENERAL. This Agreement and the Confidential Disclosure Agreement between the parties
effective October 26, 2004 constitute the entire agreement of the parties to this Agreement and
supersede all prior written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and will not be deemed to be
part of this Agreement. This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Placement Agent.
9. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute but one instrument,
and will become effective when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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If the foregoing is in accordance with your understanding of the agreement between the Company
and the Placement Agent, kindly indicate your acceptance in the space provided for that purpose
below.
| Very truly yours, | ||||
| INTROGEN THERAPEUTICS, INC. | ||||
| By: | /s/ XXXXX X. XXXXX | |||
| Name: Xxxxx X. Xxxxx | ||||
| Title: President and CEO | ||||
Accepted as of
the date first above written:
the date first above written:
MULIER CAPITAL LIMITED
By: |
/s/ XXXXXX XXXXXX | |
| Name: Xxxxxx Xxxxxx | ||
| Title: CEO |
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Exhibit A
Form of Subscription Agreement
