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INTROGEN THERAPEUTICS, INC.
SERIES A NON-VOTING CONVERTIBLE
PREFERRED STOCK PURCHASE AGREEMENT
June 30, 2001
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TABLE OF CONTENTS
Page
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Section 1 Authorization and Sale of Convertible Preferred Stock.........................1
1.1 Authorization of Convertible Preferred................................1
1.2 Sale of Convertible Preferred.........................................1
Section 2 Closing Date; Delivery........................................................2
2.1 Closing Date..........................................................2
2.2 Delivery..............................................................2
Section 3 Representations and Warranties of the Company.................................2
3.1 Organization and Standing.............................................2
3.2 Capitalization; Ownership of Existing Subsidiaries....................3
3.3 Corporate Power; Authorization........................................3
3.4 No Conflict...........................................................4
3.5 Issuance and Delivery of the Shares and Conversion Shares.............4
3.6 SEC Documents; Financial Statements...................................4
3.7 Absence of Changes; Undisclosed Liabilities...........................5
3.8 Litigation............................................................5
3.9 Governmental Authorization; Third Party Consents......................5
3.10 Compliance with Laws..................................................6
3.11 Investment Company....................................................6
Section 4 Representations and Warranties of the Purchaser...............................6
4.1 Authorization.........................................................6
4.2 Investment Representations and Covenants of the Purchaser.............7
4.3 Receipt of Information................................................7
4.4 Further Limitations on Disposition....................................7
4.5 Legends...............................................................8
Section 5 Covenants of the Company......................................................8
5.1 Use of Proceeds.......................................................8
5.2 Listing on The Nasdaq National Market.................................8
Section 6 Documents to be Delivered and Actions to be Taken Prior to the Closing Date...9
6.1 Execution and Delivery of Registration Rights Agreement...............9
6.2 Execution and Delivery of Voting Agreement............................9
6.3 Filing and Delivery of Certificate of Designations....................9
6.4 Execution and Delivery of Compliance Certificate......................9
6.5 Execution and Delivery of Secretary's Certificate.....................9
6.6 Delivery of Additional Documents.....................................10
TABLE OF CONTENTS
(continued)
Page
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Section 7 Termination of Aventis Board Representation..................................10
Section 8 Miscellaneous................................................................10
8.1 Governing Law........................................................10
8.2 Survival.............................................................10
8.3 Successors and Assigns...............................................10
8.4 Entire Agreement; Amendment..........................................10
8.5 Notices..............................................................10
8.6 Delays or Omissions..................................................12
8.7 Expenses.............................................................12
8.8 Counterparts.........................................................12
8.9 Telecopy Execution and Delivery......................................12
8.10 Severability.........................................................12
8.11 Further Assurances...................................................13
EXHIBITS:
A. Registration Rights Agreement
B. Voting Agreement
C. Certificate of Designations
INTROGEN THERAPEUTICS, INC.
SERIES A NON-VOTING CONVERTIBLE
PREFERRED STOCK PURCHASE AGREEMENT
This Series A Non-Voting Convertible Preferred Stock Purchase Agreement
(this "Agreement") is made as of June 30, 2001 by and between Introgen
Therapeutics, Inc., a Delaware corporation (the "Company"), and Aventis
Pharmaceuticals Products Inc., a Pennsylvania corporation (the "Purchaser"). In
addition, Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc., a Delaware
corporation ("RPRIH"), is entering into this Agreement for the purpose of
Section 7 only.
RECITALS
WHEREAS, the Company and the Purchaser are each parties to that certain
Restated p53 and K-ras Agreement of even date herewith (the "P53 Agreement"),
whereby each has agreed, among other things, to enter into (i) this Agreement,
(ii) a Registration Rights Agreement of even date herewith and substantially in
the form as that attached hereto as Exhibit A (the "Registration Rights
Agreement"), and (iii) a Voting Agreement of even date herewith and
substantially in the form as that attached hereto as Exhibit B (the "Voting
Agreement" and collectively with the P53 Agreement, this Agreement and the
Registration Rights Agreement, the "Transaction Agreements");
AGREEMENT
In consideration of the mutual promises and covenants hereinafter set
forth, the parties hereto mutually agree as follows:
SECTION 1
AUTHORIZATION AND SALE OF CONVERTIBLE PREFERRED STOCK
1.1 Authorization of Convertible Preferred. The Company has authorized the
sale and issuance of up to 100,000 shares of its Series A Non-Voting Convertible
Preferred Stock, par value $0.001 (the "Convertible Preferred"), having the
rights, privileges, preferences, restrictions and limitations as set forth in
the Certificate of Designations (the "Certificate of Designations") in the form
attached to this Agreement as Exhibit C. The Company's Restated Certificate of
Incorporation filed with the Delaware Secretary of State on October 17, 2000
(the "Restated Certificate") authorizes the issuance of up to 5,000,000 shares
of preferred stock, par value $0.001 (the "Preferred Stock").
1.2 Sale of Convertible Preferred.Upon the terms of this Agreement, the
Company will issue and sell to the Purchaser, and the Purchaser will purchase
from the Company, at the Closing (as defined in Section 2.1), 100,000 shares of
Convertible Preferred (the "Shares") at a purchase price of $250.00 per share,
for the aggregate purchase price of $25,000,000 (the "Purchase Price").
SECTION 2
Closing Date; Delivery
2.1 Closing Date. The closing of the sale and purchase of the Shares
hereunder shall be held at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, at 12:00 p.m., local time, on July 2, 2001 (the "Closing") or at
such other time and place upon which the Company and the Purchaser shall
mutually agree (the date of the Closing is hereinafter referred to as the
"Closing Date").
2.2 Delivery. Subject to the conditions set forth in Section 6, at the
Closing, the Company will deliver to the Purchaser a certificate, registered in
the Purchaser's name, representing the number of Shares to be issued on the
Closing Date, against delivery of payment of the Purchase Price for the Shares
by wire transfer in accordance with the Company's instructions provided at least
one business day prior to the Closing. In addition, the parties will deliver the
certificates, agreements and other documents as provided in Section 6.
SECTION 3
Representations and Warranties of the Company
The Company hereby represents and warrants to the Purchaser as of the
Closing Date as follows:
3.1 Organization and Standing. Each of the Company and its subsidiaries has
been duly organized and is validly existing and in good standing as a
corporation under the laws of its respective jurisdiction of organization, with
the corporate power and authority to own, lease and operate its respective
properties and to conduct its business as is now being conducted. In addition,
each of the Company and its subsidiaries is duly qualified to do business and in
good standing as a foreign corporation in all other jurisdictions where its
ownership or leasing of properties or the conduct of its business requires such
qualification, except where the failure so to qualify or to be in good standing
would not cause a material adverse change in or affect on the condition
(financial or otherwise), properties, earnings, business, management, prospects,
net worth or results of operations of the Company and its subsidiaries
considered as a whole (a "Material Adverse Change"). No jurisdiction, other than
the State of Delaware and the Kingdom of Sweden, has claimed, in writing or
otherwise, that the Company or any of its subsidiaries is required to qualify as
a foreign corporation or other entity therein, and neither the Company nor any
of its subsidiaries files any franchise, income or other tax returns in any
other jurisdiction based upon the ownership or use of property therein or the
derivation of income therefrom or the conduct of business therein, unless so
qualified. Each of the Company and its subsidiaries possesses all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public regulatory or governmental agencies
and bodies, all of which are valid and in full force and effect, to conduct its
business as now being conducted, except where the failure to so possess would
not cause a Material Adverse Change, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction. The Company owns or controls, directly or
indirectly, only the following corporations, associations or other entities:
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Gendux, Inc., a Delaware corporation, Gendux AB, a corporation incorporated
under the laws of the Kingdom of Sweden and TMX Realty Corporation, a Delaware
corporation.
3.2 Capitalization; Ownership of Existing Subsidiaries.
(a) The authorized capital stock of the Company consists of 50,000,000
shares of common stock, par value $0.001 per share ("Common Stock") and
5,000,000 shares of Preferred Stock. As of June 22, 2001, 21,391,125 shares
of Common Stock were issued and outstanding and no shares of Preferred
Stock were outstanding. The outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable and
have been issued in compliance with all federal and state securities laws
and were not issued in violation of or subject to any preemptive rights or
similar rights to subscribe for or purchase securities. Except as disclosed
in the SEC Documents (as defined in Section 3.6) and the Financial
Statements (as defined in Section 3.6) and related notes thereto, the
Company does not have outstanding any options or warrants to purchase, or
any preemptive rights or other rights to subscribe for or to purchase any
securities or obligations convertible into, or any contracts or commitments
to issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations, except for options granted
subsequent to the date of information provided in the SEC Documents
pursuant to the Company's employee and stock option plans as disclosed in
the SEC Documents.
(b) All outstanding shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, and are fully
paid and nonassessable and are owned by the Company, directly or indirectly
through one or more wholly owned subsidiaries, free and clear of any liens,
encumbrances, equities or claims.
3.3 Corporate Power; Authorization. The Company has the full corporate
power and authority and has taken all requisite corporate action to (a) execute
and file the Certificate of Designations with the State of Delaware; (b) execute
and deliver each of the Transaction Agreements to which it is a party and all
other instruments and documents to be executed and delivered by the Company
under the Transaction Agreements; (c) sell and issue the Shares; and (d) perform
all of its obligations under each of the Transaction Agreements. Each of the
Transaction Agreements has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its respective terms, except
as the enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, conservatorship, readjustment of debt, moratorium
or other similar laws affecting the rights of creditors or by general principles
of equity, or to the extent that rights to indemnity and contribution under the
Registration Rights Agreement may be limited by federal or state securities laws
or the public policy underlying such laws.
3.4 No Conflict. The execution, delivery and performance by the Company of
each of the Transaction Agreements and the consummation of the transactions
contemplated in each of the Transaction Agreements (i) will not result in any
violation of the provisions of the Restated Certificate, bylaws or other
organizational documents of the Company or its subsidiaries, or any law, order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or its subsidiaries or any of their properties or
assets; and (ii) will not conflict with or
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result in a breach or violation of any of the terms or provisions of or
constitute a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of its properties is or may be
bound or result in the creation of a lien (except for such violation of any such
law, order, rule or regulation or such conflict, breach, violation, default or
lien that would not cause a Material Adverse Change).
3.5 Issuance and Delivery of the Shares and Conversion Shares. The Shares,
when issued in compliance with the provisions of this Agreement, will be duly
and validly issued, fully paid and nonassessable. The shares of Common Stock
issuable upon conversion of the Shares (the "Conversion Shares") have been duly
reserved for issuance upon conversion of the Shares and, when issued in
compliance with the Certificate of Designations, will be duly and validly
issued, fully paid and nonassessable. Neither the issuance and delivery of the
Shares nor the issuance of the Conversion Shares are or will be at the time of
issuance subject to preemptive or any other similar rights of the stockholders
of the Company or any liens, encumbrances, equities or claims.
3.6 SEC Documents; Financial Statements. The Company has filed in a timely
manner all documents that the Company was required to file with the Securities
and Exchange Commission (the "Commission") under Sections 13, 14(a) and 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") since
October 12, 2000. As of their respective filing dates, all documents filed by
the Company with the Commission (the "SEC Documents") complied in all material
respects with the requirements of the Exchange Act or the Securities Act of
1933, as amended (the "Securities Act"), as applicable. The SEC Documents did
not contain any untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, except to the extent corrected in a subsequently filed SEC Document.
The financial statements of the Company and the notes thereto included in the
SEC Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the Commission with respect thereto. The Financial Statements
have been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated financial position of
the Company and any subsidiaries at the dates thereof and the consolidated
results of their operations and consolidated cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal, recurring
adjustments).
3.7 Absence of Changes; Undisclosed Liabilities. Subsequent to the
respective dates as of which information is given in the SEC Documents, and
except as set forth or contemplated therein, neither the Company nor any of its
subsidiaries has sustained material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, nor
incurred any material liabilities or obligations, direct or contingent, nor
entered into any material transactions not in the ordinary course of business,
and there has not been any Material Adverse Change, or any change in the capital
stock, short-term or long-term debt of the Company and its subsidiaries
considered as a whole other than options granted pursuant to the Company's 1995
Stock Plan or 2000 Stock Option
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Plan, shares issued upon exercise of options granted pursuant to the 1995 Stock
Plan or 2000 Stock Option Plan, shares issued pursuant to the 2000 Employee
Stock Purchase Plan and shares issued upon exercise of outstanding warrants.
3.8 Litigation. Except as set forth in the SEC Documents, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is subject, which, if determined adversely to the Company or any
such subsidiary, might individually or in the aggregate, reasonably be expected
to (i) prevent or adversely affect the transactions contemplated by the
Transaction Agreements or the ability of the Company to perform its obligations
under any of the Transaction Agreements; or (ii) result in a Material Adverse
Change, and there is no valid basis for any such legal or governmental
proceeding; and to the Company's knowledge, no such proceedings are threatened
or contemplated against the Company or any subsidiary by governmental
authorities or others. The Company is not a party nor subject to the provisions
of any injunction, judgment, decree or order purporting to enjoin or restrain
the execution, delivery or performance of any of its obligations under any of
the Transaction Agreements.
3.9 Governmental Authorization; Third Party Consents. No approval, consent,
compliance, exemption, authorization, registration, declaration or other filings
or other action by, or notice to, or filing with (collectively, "Approvals") (a)
any governmental authority, (b) the National Association of Securities Dealers,
(c) the Nasdaq National Market or any other securities exchange, or (d) any
other individual, firm, corporation, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, limited
liability company, governmental authority or other entity of any kind, including
any successor (by merger or otherwise) of such entity (collectively, a "Person")
(whether acting in an individual, fiduciary or other capacity), is required in
connection with the consummation of the transactions contemplated by the
Transaction Agreements, except for (i) the filing of the Certificate of
Designations with the Secretary of State for the State of Delaware, (ii) such
Approvals as may be required under applicable state securities laws in
connection with the sale of the Shares under this Agreement or under applicable
federal or state securities laws in connection with the exercise of rights
provided for in the Registration Rights Agreement, (iii) the filing of a
notification of listing of additional shares with the Nasdaq National Market
with respect to the Conversion Shares, (iv) any filings under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended ("HSR Act") as
may be required with respect to the issuance of the Conversion Shares and (v)
any Approvals which, if not obtained or made, would not cause a Material Adverse
Change.
3.10 Compliance with Laws.
(a) Neither the Company nor any of its subsidiaries is in violation in
any material respect of any applicable federal, state, local and foreign
laws, rules and regulations or any court or governmental agency or body,
including, without limitation, the United States Food and Drug
Administration; to the knowledge of the Company, otherwise than as set
forth in the SEC Documents, no prospective change in any of such federal or
state laws, rules or regulations has been adopted which, when made
effective, would cause a Material Adverse Change.
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(b) The Company has all licenses, permits and approvals of any
governmental authority (collectively, "Permits") that are necessary for the
conduct of the business of the Company; such Permits are in full force and
effect; and no violations are or have been recorded in respect of any
Permit.
3.11 Investment Company. Neither the Company nor any of its subsidiaries is
or, after application of the net proceeds from the sale of the Shares under this
Agreement will become an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended, assuming that neither the Purchaser nor RPRIH is such an
investment company.
SECTION 4
Representations and Warranties of the Purchaser
The Purchaser hereby represents and warrants to the Company with respect to
its purchase of the Shares, as of the Closing Date, as follows:
4.1 Authorization. The Purchaser has the full corporate power and authority
and has taken all requisite corporate action to execute and deliver each of the
Transaction Agreements to which it is a party and to perform its obligations
hereunder and thereunder. Each of the Transaction Agreements has been duly and
validly authorized, executed and delivered by the Purchaser and is a valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its respective terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, liquidation,
conservatorship, readjustment of debt, moratorium or other similar laws
affecting the rights of creditors or by general principles of equity, or to the
extent that rights to indemnity and contribution under the Registration Rights
Agreement may be limited by federal or state securities laws or the public
policy underlying such laws.
4.2 Investment Representations and Covenants of the Purchaser
(a) The Purchaser understands that the Shares are not, and the
Conversion Shares may not be, registered under the Securities Act on the
ground that the sale provided for in this Agreement and the issuance of the
Shares hereunder is exempt from registration under the Securities Act
pursuant to Section 4(2) thereof, and that the Company's reliance on such
exemption is predicated on the Purchaser's representations set forth
herein.
(b) The Purchaser represents that the Shares and Conversion Shares
will be acquired for investment for its own account, not as a nominee or
agent, and not with a view to the distribution of any part thereof, and
that it has no present intention of selling, granting any participation in
or otherwise distributing the same in violation of the Securities Act or
the securities laws of any state in the United States.
(c) The Purchaser represents that it is experienced in evaluating
investments in companies similar to the Company, is able to fend for itself
in transactions such as the one contemplated by this Agreement, has such
knowledge and experience in financial and business
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matters that it is capable of evaluating the merits and risks of its
prospective investment in the Company, has the ability to bear the economic
risks of the investment and is an "accredited investor" as defined by
Regulation D, promulgated under the Securities Act.
(d) The Purchaser acknowledges and understands that the Shares and the
Conversion Shares, must be held indefinitely unless it is subsequently
registered under the Securities Act or an exemption from such registration
is available, and that, except as otherwise provided in the Registration
Rights Agreement, the Company is under no obligation to register either the
Shares or the Conversion Shares.
4.3 Receipt of Information. The Purchaser has reviewed the Transaction
Agreements and all exhibits thereto and the SEC Documents. The Purchaser and its
counsel have had access to and an opportunity to review all documents and other
materials requested of the Company; the Purchaser and its counsel have been
given an opportunity to ask any and all questions of the Company concerning the
terms of the offering and to obtain all information it or they believe necessary
or appropriate to evaluate the suitability of an investment in the Shares.
4.4 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the Purchaser further agrees not to make any
disposition of all or any portion of the Shares or the Conversion Shares unless
and until (x) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement or (y) the Purchaser shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed
disposition, and if reasonably requested by the Company, the Purchaser shall
have furnished the Company with an opinion of counsel (who may be Purchaser's
in-house counsel), reasonably satisfactory to the Company, that such disposition
will be exempt from registration under the Securities Act.
4.5 Legends. The Purchaser understands and agrees that the certificates
evidencing the Shares and the Conversion Shares shall bear a legend
substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR
APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE CORPORATION HAS
RECEIVED AN OPINION OF COUNSEL (WHO MAY BE IN-HOUSE COUNSEL TO THE
HOLDER) OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE CORPORATION
AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
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SECTION 5
Covenants of the Company
The Company covenants and agrees with the Purchaser as follows:
5.1 Use of Proceeds. Introgen intends to use the proceeds from the sale of
the Shares to fund the commercialization of INGN 201, to begin building its
internal sales and marketing division to support INGN 201's anticipated market
introduction and for general working capital.
5.2 Listing on The Nasdaq National Market. The Company will list the
Conversion Shares, subject to official notice of issuance, on the Nasdaq
National Market at or before any sale of such shares by the Purchaser.
SECTION 6
Documents to be Delivered and Actions to be Taken Prior to the Closing
The respective obligations of the parties hereto to effect the sale and
purchase of the Shares shall be subject to the satisfaction or waiver prior to
the Closing, of all of the following conditions and only the following
conditions:
6.1 Execution and Delivery of Registration Rights Agreement. The Purchaser
and the Company shall have executed and delivered the Registration Rights
Agreement.
6.2 Execution and Delivery of Voting Agreement. The Purchaser and the
Company shall have executed and delivered the Voting Agreement.
6.3 Filing and Delivery of Certificate of Designations. The Company shall
have executed and filed the Certificate of Designations with the Secretary of
State of the State of Delaware in accordance with the General Corporation Law of
the State of Delaware. The Company shall have delivered to the Purchaser a copy
of the executed Certificate of Designations as certified by the office of the
Secretary of State of the State of Delaware.
6.4 Execution and Delivery of Compliance Certificate. The Company shall
have delivered to the Purchaser a certificate, executed by the President of the
Company, dated the Closing Date, and certifying, among other things, that (i)
the representations and warranties of the Company set forth in Section 3 hereof
are true and correct in all respects on the Closing Date; and (ii) that all
covenants and agreements contained in this Agreement to be performed by the
Company on or prior to the Closing Date have been performed or complied with.
6.5 Execution and Delivery of Secretary's Certificate. The Company shall
have delivered to the Purchaser a certificate, in form and substance
satisfactory to the Purchaser, dated the Closing Date and signed by the
Secretary or an Assistant Secretary of the Company, certifying (i) that the
attached copies of the Restated Certificate, Certificate of Designations, the
Bylaws and resolutions of the Board of Directors of the Company approving each
of the Transaction Agreements are true, complete and correct and remain
unattended and in full force and effect; and (ii) as to the
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incumbency and specimen signature of each officer of the Company executing each
Transaction Agreement and any other document or instrument delivered at the
Closing on behalf of the Company.
6.6 Delivery of Additional Documents. The Company shall have delivered to
Purchaser true, complete and correct copies of such documents as Purchaser may
have reasonably requested in connection with or relating to the sale of the
Shares and the transactions contemplated hereby, all in form and substance
reasonably satisfactory to the Purchaser.
SECTION 7
Termination of Aventis Board Representation
Effective as of the Closing Date, Section 23 of that certain Series B
Preferred Stock Purchase Agreement, dated as of October 7, 1994, shall be
terminated in its entirety and be of no further force or effect.
SECTION 8
Miscellaneous
8.1 Governing Law. This Agreement shall be governed in all respects by and
in accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law thereof.
8.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by the Purchaser and the
Closing.
8.3 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
8.4 Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
8.5 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (i)
personally delivered (by courier service or otherwise) or sent by registered or
certified mail (return receipt requested and postage prepaid), in each case to
the respective address specified below, or such other addresses as may be
specified in writing by such party to the other party hereto, or sent by
confirmed telecopier, as follows:
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Purchaser: Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Senior Vice President - Corporate Development
with copies to (which shall not constitute notice):
Xxxxxxx X. Xxxxxx
Vice President, Legal - Corporate Development
Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
and
Xxx X. Xxxx
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Company: Introgen Therapeutics, Inc.
000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxx
with copies to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxxxx X. Xxxxxx, Esq.
8.6 Delays or Omissions. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to any holder of any
Shares, upon any breach or default of the Company under this Agreement, shall
impair any such right, power or remedy of such
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holder nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
holder of any breach or default under this Agreement or any waiver on the part
of any holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
8.7 Expenses. Each of the Company and the Purchaser shall bear its own
expenses and legal fees incurred with respect to this Agreement and the
transactions contemplated hereby.
8.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
8.9 Telecopy Execution and Delivery. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Agreement as well as any facsimile, telecopy or other reproduction
hereof.
8.10 Severability. If any provision of this Agreement should be held
invalid, illegal or unenforceable in any jurisdiction, all other provisions
hereof shall remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the parties as
nearly as may be possible. Such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of such provision in any
other jurisdiction.
8.11 Further Assurances. Each of the parties shall execute such documents
and perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any governmental authority or any other Person)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
-11-
IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of the
date first above written.
Introgen Therapeutics, Inc.
By:
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Xxxxx X. Xxxxx
President and Chief Executive Officer
Aventis Pharmaceuticals Products Inc.
By:
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Name:
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Title:
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Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc.
By:
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Name:
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Title:
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[Signature page for Series A Non-Voting Convertible
Preferred Stock Purchase Agreement]
-12-
Exhibit A
Form of
Registration Rights Agreement
Exhibit B
Form of
Voting Agreement
Exhibit C
Form of
Certificate of Designations
