EXHIBIT 10.45
2,859,427 SHARES
INTROGEN THERAPEUTICS, INC.
SHARES OF COMMON STOCK
($.001 PAR VALUE)
PLACEMENT AGENT AGREEMENT
November 26, 2003
XX XXXXX SECURITIES CORPORATION
FIRST ALBANY CAPITAL INC.
c/o XX Xxxxx Securities Corporation
1221 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
INTROGEN THERAPEUTICS, INC., a Delaware corporation (the "COMPANY"),
proposes to sell to the Purchasers (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 Purchasers identified therein (each a
"PURCHASER" and, collectively, the "PURCHASERS"), an aggregate of 2,859,427
shares of Common Stock, $.001 par value (the "COMMON STOCK"), of the Company.
The aggregate 2,859,427 shares so proposed to be sold is hereinafter referred to
as the "STOCK." The Company hereby confirms its agreement with the placement
agents named in Schedule I attached hereto (the "PLACEMENT AGENTS" or, each, a
"PLACEMENT AGENT"). XX Xxxxx Securities Corporation is acting as the
representative of the Placement Agents and in such capacity is hereinafter
referred to as the "REPRESENTATIVE." Certain terms used herein are defined in
Section 13 hereof).
1. AGREEMENT TO ACT AS PLACEMENT AGENTS; PLACEMENT OF SECURITIES. On the basis
of the representations, warranties and agreements of the Company herein
contained, and subject to all the terms and conditions of this Agreement:
(a) The Company hereby authorizes the Placement Agents to act as its
exclusive agents to solicit offers for the purchase of all or part of
the Stock from the Company in connection with the proposed offering of
the Stock (the "OFFERING"). Until the sale of the Stock contemplated by
this Agreement has been consummated or until this Agreement is
otherwise terminated, the Company shall
not, without the prior consent of the Representative, solicit or accept
offers to purchase the Stock otherwise than through the Placement
Agents.
(b) The Placement Agents agree, as agents of the Company, to use their
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 (as defined below) and the Prospectus Supplement (as defined
below). The Placement Agents shall make commercially reasonable efforts
to assist the Company in obtaining performance by each Purchaser whose
offer to purchase Stock has been solicited by the Placement Agents and
accepted by the Company, but the Placement Agents shall not, except as
otherwise provided in this Agreement, be obligated to disclose the
identity of any potential purchaser or have any liability to the
Company in the event any such purchase is not consummated for any
reason. Under no circumstances will the Placement Agents be obligated
to purchase any Stock for their own accounts and, in soliciting offers
to purchase of Stock, the Placement Agents shall act solely as the
Company's agents and not as principals. Notwithstanding the foregoing
and except as otherwise provided in Section 1(c), it is understood and
agreed that the Placement Agents (or their affiliates) may, solely at
their discretion and without any obligation to do so, purchase Stock as
principals.
(c) Subject to the provisions of this Section 1, offers for the
purchase of Stock may be solicited by the Placement Agents as agents
for the Company at such times and in such amounts as the Placement
Agents deem advisable in consultation with the Company. Each 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. Each 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.
(d) The purchases of the Stock by the Purchasers shall be evidenced by
the execution of the Subscription Agreements.
(e) As compensation for services rendered, on the Closing Date (as
defined below) the Company shall pay to the Placement Agents by wire
transfer of immediately available funds to an account or accounts
designated by the Representative, an aggregate amount equal to six
percent (6.0%) of the gross proceeds received by the Company from the
sale of the Stock on such Closing Date, 5.25% of such gross proceeds
shall be paid to XX Xxxxx Securities Corporation and 0.75% of such
gross proceeds shall be paid to First Albany Capital Inc.
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(f) 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
Purchaser thereof against valid payment by such Purchaser. If the
Company shall default in its obligations to deliver Stock to a
Purchaser whose offer it has accepted, the Company shall indemnify and
hold the Placement Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the Placement Agents and the Purchasers that:
(a) At the time of filing of the registration statement referenced
below, the Company met the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and has
filed with the Securities and Exchange Commission (the "COMMISSION") a
registration statement on such Form (Registration File No. 333-107799),
which became effective as of August 25, 2003, for the registration
under the Securities Act of the Stock. Such registration statement
meets the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies in all other material respects with said
Rule. The Company will file with the Commission pursuant to Rule 424(b)
under the Securities Act, and the rules and regulations (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 Representative of all further information (financial
and other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, 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"; 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." Any reference herein to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the "INCORPORATED DOCUMENTS")
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), on or before the
date of this Agreement, or the date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or
the date of the Base Prospectus or the Prospectus Supplement, as the
case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "described," "set
forth" or "stated" in the Registration Statement, the Base Prospectus
or the Prospectus Supplement
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(and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in
the Registration Statement, the Base Prospectus or the Prospectus
Supplement, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or the use of the Base
Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to
the Company's knowledge, is threatened by the Commission.
(b) The Registration Statement (and any post-effective amendment
thereto to be filed with the Commission) contains all exhibits and
schedules as required by the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto, at the time it
became effective, complied in all material respects with the Securities
Act and the Exchange Act and the applicable Rules and Regulations and
did not and, as amended or supplemented, if applicable, will not, as of
the effective date thereof, the date hereof or the Closing Date (as
defined below), contain 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. Each of the Base Prospectus
and the Prospectus Supplement, as of its respective date, complies in
all material respects with the Securities Act and the Exchange Act and
the applicable Rules and Regulations. Each of the Base Prospectus and
the Prospectus Supplement, as amended or supplemented, if applicable,
did not and will not contain as of the effective date thereof any
untrue statement of a material fact or omit, as of the effective date
thereof, to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the applicable Rules and
Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Base Prospectus or Prospectus
Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act and the applicable Rules and Regulations, as applicable, and will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no representations or
warranties as to information, if any, contained in or omitted from the
Prospectus Supplement or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Placement Agent specifically for
use in the Registration Statement or the Prospectus Supplement. No
post-effective amendment to the Registration Statement reflecting any
facts or events arising after the date hereof which represent,
individually or in the aggregate, a fundamental change in the
information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with
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the Commission in connection with the transaction contemplated hereby
that have not been filed as required pursuant to the Securities Act or
will not be filed within the requisite time period. There are no
contracts or other documents required to be described in the Base
Prospectus or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been described
or filed as required.
(c) The Company has delivered, or will as promptly as practicable
deliver, to the Representative complete conformed copies of the
Registration Statement and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits) and the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such
places as the Representative reasonably requests. The Company has not
distributed and will not distribute, prior to the completion of the
distribution of the Stock, any offering material in connection with the
offering and sale of the Stock other than the Base Prospectus and the
Prospectus Supplement or the Registration Statement and copies of the
documents incorporated by reference therein.
(d) The Company and each of its subsidiaries have been duly organized
and are validly existing as corporations or other legal entities in
good standing (or the equivalent thereof, if any) under the laws of
their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing (or the equivalent thereof, if
any) as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all
corporate power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified and in good standing or
have such power or authority would not have, singularly or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business, properties or prospects of
the Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT").
(e) Except as set forth in the Base Prospectus and Prospectus
Supplement, the Stock to be issued and sold by the Company hereunder
and under the Subscription Agreements has been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and
nonassessable and free of any preemptive rights and will conform to the
description thereof contained in the Base Prospectus and the Prospectus
Supplement.
(f) The Company has an authorized capitalization as set forth in the
Base Prospectus and the Prospectus Supplement, all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and conform to the
description thereof contained in the Base Prospectus and the Prospectus
Supplement and, except as set forth in the Base Prospectus and the
Prospectus Supplement, no options, warrants or other
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rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of, or ownership interests in, the Company are
outstanding.
(g) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable and, except to the extent set forth in the Base
Prospectus and the Prospectus Supplement, are owned by the Company
directly or indirectly through one or more wholly-owned subsidiaries,
free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third
party. The Company owns or controls, directly or indirectly, only the
following corporations, associations or other entities: Gendux, Inc.,
Gendux AB and TMX Realty Corporation. In addition, the Company owns
1,517,145 shares of the Series A Preferred Stock of VirRx, Inc.
(h) The Company has the full right, power and authority to enter into
this Agreement and each of the Subscription Agreements and to perform
and to discharge its obligations hereunder and thereunder; and each of
this Agreement and each of the Subscription Agreements has been duly
authorized, executed and delivered by the Company, and constitutes a
valid and binding obligation of the Company enforceable in accordance
with its terms.
(i) The execution, delivery and performance of this Agreement and the
Subscription Agreements by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
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 the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries or any statute, law,
rule or regulation or any judgment, order or decree of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets.
(j) There is no franchise, contract, lease, instrument or other
document of a character required by the Securities Act or the Rules and
Regulations to be described in the Base Prospectus and the Prospectus
Supplement, or to be filed as an exhibit to the Registration Statement,
which is not described or filed as required; and all statements
summarizing any such franchises, contracts, leases, instruments or
other documents or legal matters contained in the Registration
Statement are accurate and complete in all material respects.
(k) All existing minute books of the Company, including all existing
records of all meetings and actions of the board of directors
(including the Audit and Compensation Committees) and stockholders of
the Company through the date of
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the latest meeting and action (collectively, the "CORPORATE RECORDS")
have been made available to the Placement Agents and counsel for the
Placement Agents. All such Corporate Records are complete and
accurately reflect, in all material respects, all transactions referred
to in such Corporate Records. There are no material transactions or
agreements of the Company required to be approved by the board of
directors or stockholders of the Company that are not properly approved
and/or recorded in the Corporate Records.
(l) No consent, approval, authorization, filing with or order of or
registration with, any court or governmental agency or body is required
in connection with the transactions contemplated herein, except a
filing of a listing of additional shares notice with the Nasdaq
National Market, and except such as have been obtained or made under
the Securities Act or the Exchange Act and such as may be required
under the securities, or blue sky, laws of any jurisdiction in
connection with the offer and sale of the Stock by the Company in the
manner contemplated herein and in the Base Prospectus and the
Prospectus Supplement.
(m) Except as described in the Base Prospectus and the Prospectus
Supplement, no person or entity has the right to require registration
of shares of Common Stock or other securities of the Company because of
the filing or effectiveness of the Registration Statement or otherwise,
except for persons and entities who have expressly waived such right or
who have been given proper notice and have failed to exercise such
right within the time or times required under the terms and conditions
of such right, and the Company is not required to file any registration
statement for the registration of any securities of any person or
register any such securities pursuant to any other registration
statement filed by the Company under the Securities Act for a period of
at least 180 days after the date hereof.
(n) The financial statements, together with the related notes and
schedules, of the Company included in the Base Prospectus, the
Prospectus Supplement or the Registration Statement, or incorporated by
reference therein, present fairly the financial condition, results of
operations and cash flows of the Company and its consolidated
subsidiaries as of the dates and for the periods indicated, comply as
to form with the applicable accounting requirements of the Securities
Act and have been prepared in conformity with generally accepted
accounting principles of the United States applied on a consistent
basis throughout the periods involved.
(o) Except as set forth in the Base Prospectus and the Prospectus
Supplement, there is no legal or governmental proceeding pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, singularly or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, would reasonably be expected
to have a Material Adverse Effect or would prevent or adversely affect
the ability of the Company to perform its obligations under this
Agreement; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated.
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(p) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real or personal property which are material to the
business of the Company and its subsidiaries taken as a whole, in each
case free and clear of all liens, encumbrances, claims and defects that
would reasonably be expected to result in a Material Adverse Effect.
(q) Except as set forth in the Base Prospectus and Prospectus
Supplement, neither the Company nor any of its subsidiaries is (i) in
violation of any provision of its charter or bylaws, (ii) is in default
in any respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant, or condition of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject, or (iii) is in violation in
any respect of any statute, law, rule, regulation, ordinance, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company, its subsidiaries or any of its properties, as
applicable (including, without limitation, those administered by the
Food and Drug Administration of the U.S. Department of Health and Human
Services (the "FDA") or by any foreign, federal, state or local
governmental or regulatory authority performing functions similar to
those performed by the FDA), except, with respect to clauses (ii) and
(iii), any violations or defaults which, singularly or in the
aggregate, would not have a Material Adverse Effect.
(r) The contracts described in the Company's reports on Forms 10-Q,
10-K, and 8-K as filed by the Company with the Commission or
incorporated by reference therein that are material to the Company and
necessary to the continuing business of the Company taken as a whole
are in full force and effect on the date hereof (except those that have
been terminated or expired by their terms), and neither the Company
nor, to the Company's knowledge, any other party to such contracts is
in breach of or default under any of such contracts, which breach would
have a Material Adverse Effect.
(s) No labor problem or dispute with the employees of the Company
exists or, to the Company's knowledge, is threatened or imminent, which
might be expected to have a Material Adverse Effect. The Company is not
aware that any key employee or significant group of employees of the
Company or any subsidiary whose departure would have a Material Adverse
Effect plans to terminate employment with the Company or any such
subsidiary.
(t) No "PROHIBITED TRANSACTION" (as defined in Section 406 of the
United States Employee Retirement Income Security Act of 1974
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "CODE")) has occurred with respect to
any employee benefit plan which could have a Material Adverse Effect.
Each "PENSION PLAN" (as defined in ERISA) for
8
which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which, to the Company's knowledge, could cause the loss
of such qualification.
(u) Except as set forth in the Base Prospectus and the Prospectus
Supplement, the Company and each of its subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety
bonds insuring the Company and each of its subsidiaries and their
businesses, assets, employees, officers and directors are in full force
and effect; the Company and each of its subsidiaries is in compliance
with the terms of such policies and instruments in all material
respects; and there are no claims by the Company and each of its
subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause; the Company and each of its subsidiaries has not been
refused any insurance coverage sought or applied for; and the Company
and each of its subsidiaries has no reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have
a Material Adverse Effect, except as set forth in the Base Prospectus
or the Prospectus Supplement.
(v) Except as set forth in the Base Prospectus and the Prospectus
Supplement, the Company has made all filings, applications and
submissions required by, and possesses all approvals, licenses,
certificates, certifications, clearances, consents, exemptions, marks,
notifications, orders, permits and other authorizations issued by, the
appropriate federal, state or foreign regulatory authorities
(including, without limitation, the FDA, and any other foreign,
federal, state or local government or regulatory authorities performing
functions similar to those performed by the FDA) necessary to conduct
its businesses (collectively, "PERMITS"), except for such Permits which
the failure to obtain would not have a Material Adverse Effect, and is
in compliance with the terms and conditions of all such Permits; all of
such Permits held by the Company and each of its subsidiaries are valid
and in full force and effect; there is no pending or threatened action,
suit, claim or proceeding which may cause any such Permit to be
limited, revoked, cancelled, suspended, modified or not renewed and the
Company and each of its subsidiaries has not received any notice of
proceedings relating to the limitation, revocation, cancellation,
suspension, modification or non-renewal of any such Permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated by the Base Prospectus or the Prospectus
Supplement.
(w) Ernst & Young LLP, who have certified certain financial statements
of the Company and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Base
Prospectus, the
9
Prospectus Supplement or the Registration Statement, or incorporated by
reference therein, are, to the Company's knowledge, independent public
accountants with respect to the Company within the meaning of the
Securities Act and the Rules and Regulations.
(x) The Company and each of its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect, except as
set forth in the Base Prospectus and the Prospectus Supplement) and has
paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not have a
Material Adverse Effect, except as set forth in the Base Prospectus and
the Prospectus Supplement.
(y) The principal executive officer and principal financial officer of
the Company have made all certifications required by the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "XXXXXXXX-XXXXX ACT"), and the statements contained in
any such certification are, to the Company's knowledge, complete and
correct. The Company maintains "disclosure controls and procedures" (as
defined in Rule 13a-14(c) under the Exchange Act), and such controls
and procedures are designed (i) to ensure that information required to
be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission's rules and forms
and (ii) to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act
is accumulated and communicated to the Company's management, including
its principal executive officer and principal financial officer, as
appropriate to allow timely decisions regarding required disclosure.
The Company does not have any material weaknesses in internal controls,
and there has been no fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company's internal controls. The Company is otherwise in compliance in
all material respects with all applicable effective provisions of the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated by the
Commission (and intends to comply with all applicable provisions that
are not yet effective upon effectiveness).
(z) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability of assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at
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reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any of their officers, directors or affiliates has
taken or will take, directly or indirectly, any action designed or
intended to stabilize or manipulate (as such terms are used or defined
in Regulation M promulgated under the Exchange Act) the price of any
security of the Company, or which caused or resulted in, or which might
in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the
Company.
(bb) The Company and each of its subsidiaries (i) is in compliance in
all material respects with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
Laws"), (ii) has received and is in compliance with all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) has not received
notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated by the Base Prospectus and the Prospectus Supplement
(exclusive of any supplement thereto). The Company has not been named
as a "POTENTIALLY RESPONSIBLE PARTY" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(cc) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of medical wastes,
toxic wastes, hazardous wastes or hazardous substances by the Company
or its subsidiaries (or, to the Company's knowledge, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in
violation of any applicable Environmental Law which would require
remedial action under any applicable Environmental Law, except for any
violation or remedial action which would not cause, singularly or in
the aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or of any medical wastes, toxic wastes, hazardous wastes or
hazardous substances due to or caused by the Company or its
subsidiaries or with respect to which the Company or its subsidiaries
had knowledge, except for any such spill, discharge, leak, emission,
injection, escapes, dumpings or releases which would not cause or would
not be reasonably likely to cause, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings or releases, a Material Adverse Effect; and the terms
"hazardous substances," "toxic wastes," "hazardous wastes"
11
and "medical wastes" shall have the meanings specified in any
applicable Environmental Laws.
(dd) The Company has evaluated the effect of Environmental Laws on its
business, operations and properties, in the course of which it
identifies and evaluates associated costs and liabilities. On the basis
of such review, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated by the Base Prospectus and the Prospectus Supplement.
(ee) The Company and its subsidiaries own, possess, license or have
other rights to use all foreign and domestic patents, patent
applications, trade and service marks, trade and service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, Internet domain names, know-how and other
intellectual property (collectively, the "INTELLECTUAL PROPERTY")
necessary for the conduct of the Company's business as now conducted or
as proposed in the Base Prospectus and the Prospectus Supplement to be
conducted. Except as set forth in the Base Prospectus and the
Prospectus Supplement (a) there are no rights of third parties to any
such Intellectual Property; (b) to the best of the Company's knowledge,
there is no infringement by third parties of any such Intellectual
Property; (c) there is no pending or, to the best of the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's and its subsidiaries' rights in or to any
such Intellectual Property, except as set forth in the Base Prospectus
and the Prospectus Supplement, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (d) there is no
pending or, to the best of the Company's knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope
of any such Intellectual Property, except as set forth in the Base
Prospectus and the Prospectus Supplement; (e) there is no pending or,
to the best of the Company's knowledge, threatened action, suit,
proceeding or claim by others that the Company and its subsidiaries
infringe or otherwise violate any patent, trademark, copyright, trade
secret or other proprietary rights of others, and the Company is
unaware of any other fact which would form a reasonable basis for any
such claim, except as set forth in the Base Prospectus and the
Prospectus Supplement; (f) to the Company's knowledge, there is no
third-party U.S. patent or published U.S. patent application which
contains claims for which an Interference Proceeding could be commenced
against any patent or patent application described in the Base
Prospectus and the Prospectus Supplement as being owned by or licensed
to the Company; and (g) the Company and its subsidiaries have taken all
steps necessary to perfect its ownership of the Intellectual Property.
(ff) Except as set forth in the Base Prospectus and the Prospectus
Supplement, the clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Company and its
subsidiaries were and, if still pending, are being conducted in
accordance with all statutes, laws, rules and regulations, as
12
applicable (including, without limitation, those administered by the
FDA or by any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by
the FDA), except where the failure to observe such statutes, laws,
rules and regulations would not cause, singularly or in the aggregate
with all such violations, a Material Adverse Effect. The descriptions
of the results of such studies and tests are accurate and complete in
all material respects and fairly present the published data derived
from such studies and tests, and the Company has no knowledge of other
studies or tests the results of which call into question the results
described or referred to in the Base Prospectus and the Prospectus
Supplement, except as described in the Base Prospectus and the
Prospectus Supplement. Neither the Company nor any of its subsidiaries
has received any notices or other correspondence from the FDA or any
other foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the FDA
with respect to any ongoing clinical or pre-clinical studies or tests
that would presently require the termination, suspension or
modification of such studies or tests.
(gg) Except as set forth in the Base Prospectus and Prospectus
Supplement, neither the Company nor any of its subsidiaries has failed
to file with the applicable regulatory authorities (including, without
limitation, the FDA or any foreign, federal, state or local
governmental or regulatory authority performing functions similar to
those performed by the FDA) any required filing, declaration, listing,
registration, report or submission; all such filings, declarations,
listings, registrations, reports or submissions were in compliance with
applicable laws when filed and no deficiencies have been asserted by
any applicable regulatory authority (including, without limitation, the
FDA or any foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the FDA)
with respect to any such filings, declarations, listings,
registrations, reports or submissions, except where such failure would
not cause, singularly or in the aggregate with all such failures, a
Material Adverse Effect.
(hh) No relationship, direct or indirect, exists between or among the
Company on the one hand and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand which is
required to be described in the Base Prospectus and the Prospectus
Supplement and which is not so described.
(ii) Neither the Company nor, to the Company's knowledge, any other
person associated with or acting on behalf of the Company including,
without limitation, any director, officer, agent or employee of the
Company or any of its subsidiaries, has, directly or indirectly, while
acting on behalf of the Company or any of its subsidiaries (i) used any
corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses, or received or retained any funds, relating to
political activity; (ii) made any unlawful payment from corporate funds
to, or received or retained any unlawful funds from, foreign or
domestic government officials or employees or to or from foreign or
domestic political parties or campaigns; (iii) violated any provision
of the Foreign Corrupt Practices
13
Act of 1977, as amended; or (iv) made any other unlawful payment or
received or retained any other unlawful funds.
(jj) Neither the Company nor any of its subsidiaries is or, after
giving effect to the offering and sale of the Stock and the application
of the proceeds thereof as described in the Base Prospectus and the
Prospectus Supplement, will become an "INVESTMENT COMPANY" as defined
in the Investment Company Act of 1940, as amended.
(kk) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in
the Base Prospectus and the Prospectus Supplement has been made or
reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(ll) Other than as contemplated by this Agreement, neither the Company
nor any of its subsidiaries is a party to any contract, agreement or
understanding with any person that would give rise to a valid claim
against the Company or the Placement Agents for a brokerage commission,
finder's fee or like payment in connection with the offering and sale
of the Stock.
(mm) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in
the Base Prospectus, the Prospectus Supplement or the Registration
Statement, or incorporated by reference therein, any material loss or
interference with its business from fire, explosion, flood, terrorist
act or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth in or contemplated by the Base Prospectus
and the Prospectus Supplement; and, since such date, there has not been
any change in the capital stock or long-term debt of the Company, or
any Material Adverse Effect, otherwise than as set forth or
contemplated by the Base Prospectus and the Prospectus Supplement.
(nn) The Stock is duly listed and admitted and authorized for trading,
subject to official notice of issuance, on the Nasdaq National Market.
(oo) There are no affiliations with the NASD among the Company's
officers, directors or, to the best of the Company's knowledge, any
five percent or greater stockholder of the Company, except as set forth
in the Base Prospectus, the Prospectus Supplement or the Registration
Statement or otherwise disclosed in writing to the Representative.
(pp) Other than the execution of the Subscription Agreements by the
Company, the Company has not entered into any side letters, ancillary
agreements, supplemental arrangements or other similar documents with
any of the Purchasers relating to the sale of the Stock.
Any certificate signed by any officer of the Company and delivered to
the Placement Agents or counsel for the Placement Agents in connection with the
offering of
14
the Stock shall be deemed a representation and warranty by the Company and its
subsidiaries, as to the matters covered thereby, to the Placement Agents and the
Purchasers.
3. THE CLOSING. The time and date of closing and delivery of the documents
required to be delivered to the Placement Agents pursuant to Section 6 hereof
shall be at 9:00 A.M., local time, on December 2, 2003 (the "CLOSING DATE") at
the office of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Company, at 8911
Capital of Xxxxx Xxxxxxx Xxxxx, Xxxxxxx 000, Xxxxx 0000, Xxxxxx, Xxxxx. Subject
to the terms and conditions hereof, payment of the purchase price for the Stock
shall be made to the Company by Federal funds wire transfer, against delivery of
the certificates for the Stock, through the facilities of The Depository Trust
Company ("DTC"), to such persons, and shall be registered in such name or names
and shall be in such denominations, as the Representative may request at least
one business day before the time of purchase. Payment of the purchase price for
the Stock shall be made at the time of purchase by the Purchasers thereof,
through an escrow agent, to the Company. Electronic transfer of the Stock shall
be made at the time of purchase in such names and in such denominations as the
Representative shall specify.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the Placement
Agents and the Purchasers:
(a) (i) to make no further amendment or supplement prior to the Closing
Date to the Registration Statement or any amendment or supplement to
the Prospectus Supplement, without prior notice to the Representative;
(ii) for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Stock, to advise the
Representative promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus Supplement or any
amended Prospectus Supplement has been filed and to furnish the
Representative with copies thereof; (iii) to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 15 or
15(d) of the Exchange Act subsequent to the date of the Prospectus
Supplement and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Stock; (iv) to advise
the Representative, promptly after it receives notices thereof, (x) of
any request by the Commission to amend the Registration Statement or to
amend or supplement the Prospectus Supplement or for additional
information and (y) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or any order directed at any
Incorporated Document or any amendment or supplement thereto or any
order preventing or suspending the use of the Base Prospectus or the
Prospectus Supplement or any amendment or supplement thereto, of the
suspension of the qualification of the Stock for offering or sale in
any jurisdiction, of the institution or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
Supplement or for additional information; and, (v) in the event of the
15
issuance of any stop order or of any order preventing or suspending the
use of the Base Prospectus or Prospectus Supplement or suspending any
such qualification, promptly to use its reasonable best efforts to
obtain the withdrawal of such order.
(b) To comply with the Securities Act and the Exchange Act, and the
Rules and Regulations thereunder, so as to permit the completion of the
distribution of the Stock as contemplated in this Agreement and the
Prospectus Supplement. If during the period in which a prospectus is
required by law to be delivered by a Placement Agent in connection with
the distribution of Stock contemplated by the Prospectus Supplement,
any event shall occur as a result of which, in the judgment of the
Company or in the reasonable opinion of the Placement Agents or counsel
for the Placement Agents, it becomes necessary to amend or supplement
the Prospectus Supplement in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus
Supplement is delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus Supplement
to comply with any law, the Company promptly will prepare and file with
the Commission, and furnish at its own expense to the Representative,
an appropriate amendment to the Registration Statement or supplement to
the Prospectus Supplement so that the Prospectus Supplement as so
amended or supplemented will not, in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus
Supplement will comply with such law. Before amending the Registration
Statement or supplementing the Base Prospectus in connection with the
Offering, the Company will furnish the Representative with a copy of
such proposed amendment or supplement and will not file such amendment
or supplement to which the Representative reasonably objects.
(c) To deliver promptly to the Representative such number of the
following documents as the Representative shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits), (ii) the Base Prospectus, (iii) the Prospectus Supplement
(not later than 10:00 A.M., New York time, on the Business Day
following the execution and delivery of this Agreement) and any
amendment or supplement thereto (not later than 10:00 A.M., New York
City time, on the Business Day following the date of such amendment or
supplement); and (iv) any document incorporated by reference in the
Base Prospectus or Prospectus Supplement. The Company will pay the
expenses of printing or other production of all documents relating to
the Offering.
(d) To make generally available to its stockholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company (which
need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Company,
Rule 158).
16
(e) To promptly take from time to time such actions as the
Representative may reasonably request to qualify the Stock for offering
and sale under the securities, or blue sky, laws of such jurisdictions
as the Representative may designate and to continue such qualifications
in effect for so long as required for the distribution of the Stock,
and the Company will pay the fee of the National Association of
Securities Dealers, Inc. ("NASD") in connection with its review of the
Offering. The Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a general consent to service of process in any jurisdiction.
(f) Not to directly or indirectly offer, sell, assign, transfer,
pledge, contract to sell, or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for
Common Stock for a period of 45 days from the date of the Prospectus
Supplement without the prior written consent of the Representative,
other than the Company's sale of the Stock and the issuance of shares
or options to purchase shares pursuant to qualified stock option plans,
currently outstanding options, warrants or rights. The Company will
cause each of its executive officers and directors to furnish to the
Representative, prior to the Closing Date, a letter, substantially in
the form of Exhibit B attached hereto, pursuant to which each such
person shall agree not to directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares
of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock for a period of 90 days from the date of
the Prospectus Supplement, without the prior written consent of the
Representative.
(g) Prior to the Closing Date, to furnish to the Representative, as
soon as they have been prepared, copies of any unaudited interim
consolidated financial statements of the Company for any periods
subsequent to the periods covered by the financial statements appearing
or incorporated by reference in the Base Prospectus, the Prospectus
Supplement or the Registration Statement.
(h) Prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or
earnings, business affairs or business prospects (except for routine
oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the
Representative is notified), without the prior written consent of the
Representative, unless in the judgment of the Company and its counsel,
and after notification to the Representative, such press release or
communication is required by law.
(i) To apply the net proceeds from the sale of the Stock as set forth
in the Prospectus Supplement under the heading "USE OF PROCEEDS."
(j) To comply in all material respects with all applicable securities
and other applicable laws, rules and regulations, including, without
limitation, the Xxxxxxxx-Xxxxx Act, and use its best efforts to cause
the Company's directors and officers,
17
in their capacities as such, to comply with such laws, rules and
regulations, including, without limitation, the provisions of the
Xxxxxxxx-Xxxxx Act.
(k) To engage and maintain, at its expense, a registrar and transfer
agent for the Stock.
(l) To not take any action prior to the Closing Date which would
require the Prospectus Supplement to be amended or supplemented
pursuant to Section 4(b).
(m) To supply the Representative with copies of all correspondence to
and from, and all documents issued to and by, the Commission in
connection with the registration of the Stock under the Securities Act.
5. PAYMENT OF EXPENSES. The Company agrees with the Placement Agents to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock to the Purchasers and any taxes payable in that
connection; (b) the costs incident to the Registration of the Stock under the
Securities Act; (c) the costs incident to the preparation, printing and
distribution of the Registration Statement, Base Prospectus and Prospectus
Supplement and any amendments and exhibits thereto or any document incorporated
by reference therein, and the costs of printing, reproducing and distributing,
this Agreement by mail, telex or other means of communication; (d) the fees and
expenses (including related fees and expenses of counsel for the Placement
Agents) incurred in connection with filings made with the NASD; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Stock under the securities laws of the several jurisdictions as provided in
Section 4(f) and of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel to the Placement Agents); (g)
all fees and expenses of the registrar and transfer agent of the Stock; and (h)
all other costs and expenses incident to the performance of the obligations of
the Company under this Agreement (including, without limitation, the fees and
expenses of the Company's counsel and the Company's independent accountants);
provided that, except as otherwise provided in this Section 5 and in Section 9,
the Placement Agents shall pay their own costs and expenses, including the fees
and expenses of their counsel.
6. CONDITIONS TO THE OBLIGATIONS OF THE PLACEMENT AGENTS AND THE PURCHASERS, AND
THE SALE OF THE STOCK. The respective obligations of the Placement Agents and
the Purchasers, and the closing of the sale of the Stock hereunder are subject
to the accuracy, when made and on the Closing Date, of the representations and
warranties on the part of the Company and its subsidiaries contained herein, to
the accuracy of the statements of the Company and its subsidiaries made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and its subsidiaries of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and remain in effect and no
proceedings for that purpose shall have been initiated or threatened by
the Commission, and any request for
18
additional information on the part of the Commission (to be included in
the Registration Statement, the Base Prospectus or the Prospectus
Supplement or otherwise) shall have been complied with to the
reasonable satisfaction of the Representative. Any filings required to
be made by the Company in accordance with Section 4(a) shall have been
timely filed with the Commission.
(b) None of the Placement Agents shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Registration
Statement, the Base Prospectus or the Prospectus Supplement or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Placement Agents, is material
or omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Stock,
the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Placement Agents, and the
Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(d) The Placement Agents shall have received from each of (i) Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, corporate counsel
for the Company and (ii) Fulbright & Xxxxxxxx LLP, patent counsel for
the Company such counsel's written opinion, addressed to the Placement
Agents and dated as of the Closing Date, in form and substance
satisfactory to the Representative.
Such counsel shall also have furnished to the Placement Agents
a written statement, addressed to the Placement Agents and dated the
Closing Date, in form and substance satisfactory to the Representative,
to the effect that (x) such counsel has acted as counsel to the Company
in connection with the preparation of the Registration Statement, (y)
based on such counsel's examination of the Registration Statement and
such counsel's conferences with certain officers and employees of and
with auditors for and counsel to the Company, although such counsel
need not pass upon or assume responsibility for the accuracy,
completeness or fairness of the statements included in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and such
counsel may rely as to materiality to a large extent upon discussions
with and opinions of the officers and other representatives of the
Company) nothing has come to the attention of such counsel to cause
such counsel to believe that the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Base Prospectus or the Prospectus Supplement contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to
19
make the statements therein, in light of the circumstances under which
they were made, not misleading; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement, the Base
Prospectus or the Prospectus Supplement.
(e) The Placement Agents shall have received from Xxxxx Raysman
Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, such opinion or opinions, dated the
Closing Date and addressed to the Placement Agents, with respect to the
issuance and sale of the Stock, the Registration Statement, the Base
Prospectus, the Prospectus Supplement (together with any supplement
thereto) and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to the Placement Agents and the
Purchasers a certificate, dated as of the Closing Date, executed by its
Chairman of the Board, its Chief Executive Officer or a Vice President
and its Chief Financial Officer stating that (i) such officers have
carefully examined the Registration Statement, the Base Prospectus and
the Prospectus Supplement and, in their opinion, the Registration
Statement (including the Base Prospectus) as of its effective date and
the Prospectus Supplement, as of each such effective date, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the case of the Registration Statement,
in light of the circumstances under which they were made, not
misleading, (ii) since the effective date of the Registration Statement
no event has occurred which should have been set forth in a supplement
or amendment to the Registration Statement, the Base Prospectus or the
Prospectus Supplement, (iii) to the best of their knowledge after
reasonable investigation, as of the Closing Date, the representations
and warranties of the Company and its subsidiaries in this Agreement
are true and correct and the Company and its subsidiaries have complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and
(iv) subsequent to the date of the most recent financial statements
included or incorporated by reference in the Base Prospectus and the
Prospectus Supplement, there has been no change in the financial
position or results of operation of the Company and its subsidiaries
that would have a Material Adverse Effect, or any change, or any
development including a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, except
as set forth in the Base Prospectus and the Prospectus Supplement.
(g) At the time of the Execution Time, the Representative shall have
received from Ernst & Young LLP a letter, addressed to the Placement
Agents and dated such date, in form and substance reasonably
satisfactory to the Representative (i) confirming that they are
independent certified public accountants with respect to the Company
within the meaning of the Securities Act and the Rules and Regulations
and (ii) stating the conclusions and findings of such firm with respect
20
to the financial statements and certain financial information contained
or incorporated by reference in the Base Prospectus and the Prospectus
Supplement.
(h) On the Closing Date, the Representative shall have received a
letter (the "BRING-DOWN LETTER") from Ernst & Young LLP addressed to
the Placement Agents, and dated the Closing Date confirming, as of the
date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Base Prospectus and the
Prospectus Supplement as of a date not more than three Business Days
prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representative
concurrently with the execution of this Agreement pursuant to Section
6(g).
(i) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Base Prospectus and the
Prospectus Supplement any material loss or interference with its
business from fire, explosion, flood, terrorist act or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth in
or contemplated by the Base Prospectus and the Prospectus Supplement,
and (ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the business, general affairs, management,
financial position, stockholders' equity, results of operations or
prospects of the Company and its subsidiaries, otherwise than as set
forth in or contemplated by the Base Prospectus and the Prospectus
Supplement, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Stock on the terms and in the manner
contemplated by the Base Prospectus and the Prospectus Supplement.
(j) The Stock shall have been listed and admitted and authorized for
trading on the Nasdaq National Market, and satisfactory evidence of
such actions shall have been provided to the Representative.
(k) At the Execution Time, the Company shall have furnished to the
Representative a letter substantially in the form of Exhibit B hereto
from each executive officer and director of the Company.
(l) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the Nasdaq National Market or
the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or
maximum prices or maximum ranges for prices shall have been established
on any such exchange or such market by the Commission,
21
by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities or a material disruption
has occurred in commercial banking or securities settlement or
clearance services in the United States, (iii) the United States shall
have become engaged in hostilities, or the subject of an act of
terrorism, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if
the effect of any such event in clause (iii) or (iv) makes it, in the
sole judgment of the Representative, impracticable or inadvisable to
proceed with the sale or delivery of the Stock on the terms and in the
manner contemplated by the Base Prospectus and the Prospectus
Supplement.
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Stock; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Stock.
(n) The Company shall have prepared and filed with the Commission
within 48 hours of the Closing Date a Current Report on Form 8-K with
respect to the Offering, including as an exhibit thereto this
Agreement.
(o) The Company shall have entered into a Subscription Agreement with
each of the Purchasers and such agreements shall be in full force and
effect.
(p) Prior to the Closing Date, the Company shall have furnished to the
Placement Agents such further information, certificates and documents
as the Representative may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Placement Agents.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Placement Agent,
its officers, employees, representatives and agents and each person, if
any, who controls any Placement Agent (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) (collectively
the "PLACEMENT AGENT INDEMNIFIED PARTIES" and each a "PLACEMENT AGENT
INDEMNIFIED PARTY") against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which that Placement
Agent Indemnified Party may become subject, under the Securities Act or
otherwise, insofar as such loss, claim,
22
damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Base Prospectus, the Registration Statement or the
Prospectus Supplement or in any amendment or supplement thereto, (ii)
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (iii) any breach of the representations and
warranties of the Company contained herein, and shall reimburse each
Placement Agent Indemnified Party promptly upon demand for any legal or
other expenses reasonably incurred by that Placement Agent Indemnified
Party in connection with investigating or preparing to defend or
defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from the
Base Prospectus, the Registration Statement or the Prospectus
Supplement or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through
the Representative specifically for use therein, which information the
parties hereto agree is limited to the Placement Agents' Information
(as defined in Section 15). This indemnity agreement is not exclusive
and will be in addition to any liability, which the Company might
otherwise have and shall not limit any rights or remedies which may
otherwise be available at law or in equity to each Placement Agent
Indemnified Party.
(b) Each Placement Agent, severally and not jointly, shall indemnify
and hold harmless the Company its officers, employees, representatives
and agents, each of its directors and each person, if any, who controls
the Company within the meaning of the Securities Act (collectively the
"COMPANY INDEMNIFIED PARTIES" and each a "COMPANY INDEMNIFIED PARTY")
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company Indemnified Parties may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Base Prospectus, the Registration Statement or the
Prospectus Supplement or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of that Placement
Agent specifically for use therein, and shall reimburse each Company
Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by such parties in connection with investigating or
preparing to defend or defending against or appearing as third party
witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; provided that the parties hereto
hereby agree that such written information provided by the Placement
Agents consists solely of the Placement Agents' Information. This
23
indemnity agreement is not exclusive and will be in addition to any
liability, which the Placement Agents and the Purchasers might
otherwise have and shall not limit any rights or remedies which may
otherwise be available at law or in equity to the Company Indemnified
Parties. Notwithstanding the provisions of this Section 7(b), in no
event shall any indemnity by any Placement Agent under this Section
7(b) exceed the total compensation received by such Placement Agent in
accordance with Section 1(e).
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 7 except to the extent it has been materially prejudiced
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that any indemnified party shall have
the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have
been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to
employ separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated
in writing by the
24
Representative, if the indemnified parties under this Section 7 consist
of any Placement Agent Indemnified Party, or by the Company if the
indemnified parties under this Section 7 consist of any Company
Indemnified Parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a) and 7(b) shall use all
reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. Subject to the provisions of
Section 7(d) below, no indemnifying party shall be liable for any
settlement, compromise or consent to the entry of judgment in
connection with any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff
in any such action (other than a judgment entered with the consent of
such indemnified party), the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If at any time an indemnified party shall be entitled to employ
separate counsel at the expense of an indemnifying party in accordance
with Section 7(c) and shall have requested that an indemnifying party
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by this Section 7 effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Placement Agents on the
other from the offering of the Stock or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Placement Agents on the other with
respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Placement Agents on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by
the Company bears to the total compensation received by the Placement
Agents with respect to the Stock purchased under this Agreement. The
relative fault shall be determined by reference to, among other things,
whether the untrue
25
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Placement Agents on the
other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission; provided that the parties hereto agree that the
written information furnished to the Company by the Representative for
use in the Prospectus Supplement consists solely of the Placement
Agents' Information. The Company and the Placement Agents agree that it
would not be just and equitable if contributions pursuant to this
Section 7(e) were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
Section 7(e) shall be deemed to include, for purposes of this Section
7(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7(e), the Placement Agents shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Stock was offered and sold to the Purchasers less the amount of any
damages which such Placement Agents have otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
8. TERMINATION. The obligations of the Placement Agents and the Purchasers
hereunder and under the Subscription Agreements may be terminated by the
Representative, in its absolute discretion by prior written notice given to the
Company prior to delivery (including electronic delivery) of and payment for the
Stock if, prior to that time, any of the events described in Sections 6(i) or
6(l) have occurred or if the Purchasers, or the Representative on behalf of the
Purchasers, shall decline to purchase the Stock for any reason permitted under
this Agreement.
If the sale of the Stock, as contemplated by this Agreement, is not
carried out by the Placement Agents for any reason permitted under this
Agreement or if such sale is not carried out because the Company shall be unable
to comply with any of the terms of this Agreement, no party hereunder shall be
under any obligation or liability under this Agreement to any other party
(except to the extent provided in Sections 5, 7 and 9 herein).
9. REIMBURSEMENT OF THE REPRESENTATIVE'S EXPENSES. If the sale of the Stock
provided for herein is not consummated because any condition to the obligations
of the Placement Agents and the Purchasers set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 8 hereof or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Representative, the Company will reimburse the Representative
upon demand for all out-of-pocket
26
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by the Representative in connection with this Agreement and
the proposed purchase and sale of the Stock and, upon demand, the Company shall
pay the amount thereof to the Representative, up to the aggregate amount of
$100,000.
10. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Placement Agents, the
Purchasers, 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; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in
this Agreement shall also be for the benefit of the Placement Agent Indemnified
Parties, and the indemnities of the Placement Agents shall also be for the
benefit of the Company Indemnified Parties. It is understood that the Placement
Agents' responsibilities to the Company are solely contractual in nature and the
Placement Agents do not owe the Company, or any other party, any fiduciary duty
as a result of this Agreement.
11. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the Placement Agents, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Placement Agents, the Company, or any person controlling any of them and
shall survive delivery of and payment for the Stock.
12. NOTICES. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Placement Agents, shall be delivered or sent by mail,
telex or facsimile transmission to XX Xxxxx Securities Corporation,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxx (Fax: 000-000-0000), with a copy to: Xxxxx Raysman
Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxxxx, Esq. (Fax: 000-000-0000).
(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: Xxxxx X. Xxxxxxxx,
Xx. (Fax: 000-000-0000), with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, 8911 Capital of Texas Xxxxxxx Xxxxx, Xxxxxxx 000, Xxxxx 0000,
Xxxxxx, Texas 78759-8497, Attention: Xxxxxxxxxxx Xxxxxx, Esq. (Fax:
000-000-0000), and with a copy to: Xxxxxx & Xxxxxx, LLP, 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx Xxxxxx (Fax:
000-000-0000).
27
13. DEFINITIONS OF CERTAIN TERMS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday, a legal holiday, a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City
or any day on which the Nasdaq National Market is not open for trading.
"EFFECTIVE DATE" shall mean each date and time that the
Registration Statement (and any post-effective amendment or amendments
thereto) became or becomes effective.
"EXECUTION TIME" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"INTERFERENCE PROCEEDING" shall have the meaning set forth in
35 U.S.C. Section 135.
"TO THE COMPANY'S KNOWLEDGE" shall mean that which the Company
knows or should have known using the exercise of reasonable due
diligence.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. PLACEMENT AGENTS' INFORMATION. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Placement Agents' Information
consists solely of the statements concerning the Placement Agents contained in
the first and third paragraphs under the heading "Plan of Distribution" and the
second sentence under the heading "Legal Matters" in the Prospectus Supplement.
16. 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.
17. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representative.
28
18. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
19. CONSENT TO ACT AS REPRESENTATIVE. First Albany Capital Inc. ("FIRST ALBANY")
consents and agrees that XX Xxxxx Securities Corporation ("XX XXXXX") will act
as Representative of the Placement Agents under this Agreement and with respect
to the sale of the Stock. Accordingly, First Albany authorizes XX Xxxxx to
manage the Offering and sale of the Stock and to take such action in connection
therewith as XX Xxxxx in its sole discretion deems appropriate or desirable,
consistent with the provisions of the Agreement Among Underwriters previously
entered into between XX Xxxxx and First Albany, taking into account that the
Offering of the Stock will be in the form of a best efforts placement and not a
firm commitment underwriting.
29
If the foregoing is in accordance with your understanding of the
agreement between the Company and the Placement Agents, 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:
XX XXXXX SECURITIES CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
FIRST ALBANY CAPITAL INC.
By: /s/ Xxxxx Xxxx
------------------------
Name: Xxxxx Xxxx
Title: Co-Head, Private Capital Group
30
SCHEDULE I
PLACEMENT AGENTS
XX Xxxxx Securities Corporation
First Albany Capital Inc.
31
EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
32
EXHIBIT B
FORM OF LOCK-UP AGREEMENT
33
