exv10w65






Exhibit 10.65




INTROGEN THERAPEUTICS, INC




6,000,000 SHARES




CONTROLLED EQUITY OFFERINGSM




SALES AGREEMENT




August 8, 2008




CANTOR FITZGERALD & CO.

499 Park Avenue

New York, NY 10022




Ladies and Gentlemen:



          INTROGEN THERAPEUTICS, INC., a Delaware corporation (the “Company”), confirms its
agreement (this “Agreement”) with Cantor Fitzgerald & Co. (“CF&Co”), as follows:




     1.   Issuance and Sale of Shares. The Company agrees that, from time to time during
the term of this Agreement, on the terms and subject to the conditions set forth herein, it may
issue and sell through CF&Co, acting as agent and/or principal, up to SIX MILLION (6,000,000)
shares of the Company’s common stock, par value $0.001 per share (the “Common Stock” or
“Shares”). The issuance and sale of Shares through CF&Co will be effected pursuant to the
Registration Statement (as defined below) filed by the Company and declared effective by the
Securities and Exchange Commission (the “Commission”), although nothing in this Agreement
shall be construed as requiring the Company to use the Registration Statement to issue Common
Stock.



          The Company has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Securities Act”),
with the Commission a registration statement on Form S-3 (File No. 333-140424), including a base
prospectus, with respect to equity and other offerings, including the Shares, and which
incorporates by reference documents that the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus
supplement (the “Prospectus Supplement”) to the base prospectus included as part of such
registration statement relating to the offering of Shares. The Company has furnished to CF&Co, for
use by CF&Co, copies of one or more prospectuses included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Shares. Except where the context
otherwise requires, such registration statement, as amended when it became effective, including all
documents filed as part thereof or incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b)(2), b(5) or b(7) under the Securities Act and also including any other registration
statement filed pursuant to Rule 462(b) under the Securities Act, collectively, are herein called
the “Registration Statement,” and the base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement (the




 









 







“Base Prospectus”), as it may be supplemented by the Prospectus Supplement, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act is
herein called the “Prospectus.” Unless otherwise provided herein, any reference herein to
the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed
to refer to and include the documents incorporated by reference therein, and unless otherwise
provided herein, any reference herein to the terms “amend”, “amendment” or “supplement” with
respect to the Registration Statement or the Prospectus shall be deemed to refer to and include any
document that is filed with the Commission and that is deemed to be incorporated by reference
therein subsequent to the date of the Base Prospectus. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System (“EDGAR”).




     2.   Placements. Each time that the Company wishes to issue and sell Shares hereunder
(each, a “Placement”), it will notify CF&Co by email notice (or other method mutually
agreed to in writing by the parties) containing the parameters in accordance with which it desires
the Shares to be sold, which shall at a minimum include the number of Shares to be issued (the
“Placement Shares”), the time period during which sales are requested to be made, any
limitation on the number of Shares that may be sold in any one day and any minimum price below
which sales may not be made (a “Placement Notice”), a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall
originate from any of the individuals from the Company set forth on Schedule 2 (with a copy
to each of the other individuals from the Company listed on such schedule), and shall be addressed
to each of the individuals from CF&Co set forth on Schedule 2, as such Schedule 2
may be amended from time to time. The Placement Notice shall be effective upon receipt by CF&Co
unless and until (i) in accordance with the notice requirements set forth in Section 4,
CF&Co declines to accept the terms contained therein for any reason, in its sole discretion, (ii)
the entire amount of the Placement Shares have been sold, (iii) in accordance with the notice
requirements set forth in Section 4, the Company suspends or terminates the Placement
Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on
the earlier dated Placement Notice, or (iv) the Agreement has been terminated under the provisions
of Section 11. The amount of any discount, commission or other compensation to be paid by
the Company to CF&Co in connection with the sale of the Placement Shares shall be calculated in
accordance with the terms set forth in Schedule 3. It is expressly acknowledged and agreed
that neither the Company nor CF&Co will have any obligation whatsoever with respect to a Placement
or any Placement Shares unless and until the Company delivers a Placement Notice to CF&Co and CF&Co
does not decline such Placement Notice pursuant to the terms set forth above, and then only upon
the terms specified therein and herein. In the event of a conflict between the terms of this
Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.



     3.   Sale of Placement Shares by CF&Co. Subject to the terms and conditions herein
set forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with
the terms of this Agreement, CF&Co, for the period of time, if any, specified in the Placement
Notice, will use its commercially reasonable efforts consistent with its customary trading and
sales practices to sell such Placement Shares up to the amount specified, and otherwise in



 









 







accordance with the terms of such Placement Notice. CF&Co will provide written confirmation
to the Company no later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares hereunder setting forth
the number of Placement Shares sold on such day, the compensation payable by the Company to CF&Co
pursuant to Section 2 and calculated in accordance with Schedule 3 with respect to
such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of
the deductions made by CF&Co (as set forth in Section 5(a)) from the gross proceeds that it
receives from such sales. CF&Co may sell Placement Shares by any method permitted by law deemed to
be an “at the market” offering as defined in Rule 415 of the Securities Act, including without
limitation sales made directly on the Nasdaq Global Market (the “NASDAQ”) or on any other
existing trading market for the Common Stock (and together with the NASDAQ, an “Exchange”)
or to or through a market maker. The Company acknowledges and agrees that (i) there can be no
assurance that CF&Co will be successful in selling Placement Shares, and (ii) CF&Co will incur no
liability or obligation to the Company or any other person or entity if it does not sell Placement
Shares for any reason, in each case other than a failure by CF&Co to use its commercially
reasonable efforts consistent with its customary trading and sales practices to sell such Placement
Shares as required under this Section 3. For the purposes hereof, “Trading Day”
means any day on which Common Stock is purchased and sold on the principal market on which the
Common Stock is listed or quoted.



     4.   Suspension of Sales. The Company or CF&Co may at any time during the terms of
this Agreement, upon notice to the other party in writing (including by email correspondence to
each of the individuals of the other Party set forth on Schedule 2, if receipt of such
correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other
than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or
email correspondence to each of the individuals of the other Party set forth on Schedule
2), suspend any sale of Placement Shares; provided, however, that such suspension shall not
affect or impair either party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. Each of the Parties agrees that no such notice under this
Section 4 shall be effective against the other unless it is made to one of the individuals
named on Schedule 2 hereto, as such Schedule may be amended from time to time.



     5.   Settlement.



          (a)  Settlement of Placement Shares. Unless otherwise specified in the applicable
Placement Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Business Day (or such earlier day as is industry practice for regular-way trading) following the
date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to
be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price received by CF&Co at which such
Placement Shares were sold, after deduction for (i) CF&Co’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, as
specified on Schedule 3, (ii) any other amounts due and payable by the Company to CF&Co
hereunder pursuant to Section 7(g) (Expenses) hereof, and (iii) any transaction fees
imposed by any governmental or self-regulatory organization on the Company with respect of such
sales.




          (b)  Delivery of Placement Shares. On or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Placement Shares being sold
by




 









 







crediting CF&Co’s or its designee’s (provided CF&Co shall have given the Company written
notice of such designee at least one Business Day prior to the Settlement Date) account at The
Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other
means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt of such
Placement Shares, which in all cases shall be freely tradable, transferable, registered shares in
good deliverable form, CF&Co will deliver the related Net Proceeds in same day funds to an account
designated by the Company prior to the Settlement Date. If the Company defaults in its obligation
to deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no
way limiting the rights and obligations set forth in Section 9(a) (Indemnification) hereto,
it will (i) hold CF&Co harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the
Company and (ii) pay to CF&Co any commission, discount, or other compensation to which it would
otherwise have been entitled to under this Agreement absent such default; provided, however, that
the Company shall not be obligated to so indemnify and reimburse CF&Co if the Placement Shares are
not delivered due to (i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the NASDAQ Global Market; (ii) a
general moratorium on commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iii) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national emergency or war:
or (iv) any other calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere.




     6.   Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, CF&Co that as of the date of this Agreement and as of each
Representation Date (as defined in Section 7(m) below) on which a certificate is required
to be delivered pursuant to Section 7(m) of this Agreement, as the case may be:



          (a)  Registration Statement and Prospectus. As of the date of the filing of its last
annual report on Form 10-K, the Company was and as of each Representation Date shall be eligible to
use Form S-3 for the offering of the Shares pursuant to the Registration Statement. The
Registration Statement has been filed with the Commission and has been declared effective under the
Securities Act. The Registration Statement has named CF&Co as an underwriter, acting as principal
and/or agent that the Company might engage in the section entitled “Plan of Distribution.” The
Company has not received, and has no notice of, any order of the Commission preventing or
suspending the use of the Registration Statement, or threatening or instituting proceedings for
that purpose. Any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed. Copies of the Registration Statement, the
Prospectus, and any such amendments or supplements and all documents incorporated by reference
therein that were filed with the Commission on or prior to the date of this Agreement have been
delivered, or made available through EDGAR, to CF&Co and their counsel. The Company has not
distributed and will not distribute any offering material in connection with the offering or sale
of the Placement Shares other than the Registration Statement and the Prospectus. The Common Stock
is currently listed on the NASDAQ under the trading symbol “INGN.”




 









 








          (b)  No Misstatement or Omission. The Registration Statement, as of the date it
became effective, and the Prospectus, and any amendment or supplement thereto, on the date of such
Prospectus or amendment or supplement, conformed or will conform in all material respects with the
requirements of the Securities Act. At each Settlement Date, the Registration Statement and the
Prospectus, as of such date, will conform in all material respects with the requirements of the
Securities Act. The Registration Statement, as of the date it became effective, did not, or will
not, contain an 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. The Prospectus and any
amendment or supplement thereto, on the date thereof and at each Settlement Date, did not or will
not include an 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. The foregoing shall not apply to statements in, or omissions from, any such document
made in reliance upon, and in conformity with, information furnished to the Company by CF&Co
specifically for use in the preparation thereof.




          (c)  Conformity with Securities Act and Exchange Act. Each document filed or to be
filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement or
the Prospectus complied or will comply when so filed in all material respects with the requirements
of the Exchange Act.




          (d)  Financial Information. The financial statements of the Company and the
Subsidiaries (as defined below), together with the related schedules and notes thereto, set forth
or included or incorporated by reference in the Registration Statement and the Prospectus fairly
present, in all material respects, the financial condition of the Company and the Subsidiaries as
of and at the dates indicated and the results of operations, changes in financial position,
stockholders’ equity and cash flows for the periods therein specified. Such financial statements,
schedules, and notes are in conformity in all material respects with generally accepted accounting
principles as consistently applied in the United States throughout the periods involved (except as
otherwise stated therein). The selected financial data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information shown therein and, to the
extent based upon or derived from the financial statements, have been complied on a basis
consistent with the financial statements presented therein. The Company and, to the Company’s
knowledge, the Subsidiaries (as defined below) do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not disclosed in the
Registration Statement and the Prospectus. No other financial statements are required to be set
forth or to be incorporated by reference in the Registration Statement or the Prospectus under the
Securities Act.




          (e)  Conformity with EDGAR Filing. The Prospectus delivered to CF&Co for use in
connection with the sale of the Placement Shares pursuant to this Agreement will be identical to
the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR,
except to the extent permitted by Regulation S-T.




          (f)  Organization. (i) Each of the Company and its Subsidiaries (as defined herein)
have been duly incorporated and are validly existing as a corporation in good standing under the
laws of its respective jurisdiction or organization (as applicable) with full corporate power and
authority necessary to own, hold, lease and/or operate its assets and properties and to conduct the
business in which it is engaged and as described in the Registration Statement and Prospectus;




 









 







and (ii) each of the Company and its Subsidiaries, respectively, is duly qualified as a
foreign entity to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure, individually or in the aggregate, to be so qualified and be
in good standing, or have such power and authority would not have a material adverse effect on
(1) the consolidated business, operations, assets, properties, financial condition, prospects, or
results of operations of the Company and the Subsidiaries (as defined herein) taken as a whole or
(2) the ability of the Company to perform its obligations under this Agreement (collectively, a
“Material Adverse Effect”). The Company has full corporate power and authority necessary
to enter into and perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. The Company is in compliance with the laws, orders, rules, regulations and
directives applicable to it, except for any noncompliance that, individually, or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect. Complete and correct copies of
the articles of incorporation and of the bylaws of the Company and all amendments thereto have been
delivered to CF&Co.




          (g)  Subsidiaries. (i) The Company has no “significant subsidiaries” (as such term
is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) other than as
listed in Schedule I hereto (each a “Subsidiary” and, collectively, the
“Subsidiaries”). (ii) Other than the capital stock of the Subsidiaries, the Company does
not own, directly or indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm, partnership, joint venture,
association or other entity. No options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding.




          (h)  No Violation or Default. Neither the Company nor any of its Subsidiaries is
(i) in violation of any provision of its charter or bylaws or similar organizational documents,
(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,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect. The execution, delivery and performance of this Agreement, the issuance and sale of the
Placement Shares and the consummation of the transactions contemplated hereby will not conflict
with, or result in any breach of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach of, or constitute a default under), (i)
any provision of the charter, bylaws or organizational documents, as the case may be, of the
Company or any of the Subsidiaries, (ii) any provision of any contract, license, repurchase




 









 







agreement, management agreement, indenture, mortgage, deed of trust, bank loan or credit
agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement
or instrument to which the Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries, or any of their respective assets or properties may be bound or affected,
except for any breach or default that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect or (iii) any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or any of the
Subsidiaries, except for any breach or default that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.




          (i)  Capitalization. All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws and were not issued in
violation of any preemptive right, resale right, right of first refusal or similar right. As of the
date hereof and as of each Closing Date, the Company has or will have, as the case may be, an
authorized, issued and outstanding capitalization as is set forth in all material respects in the
Registration Statement and the Prospectus (subject, in each case, to the issuance of shares of
Common Stock upon exercise of stock options and warrants disclosed as outstanding in the
Registration Statement and the Prospectus and grant of options under existing stock option plans
described in the Registration Statement and the Prospectus), and such authorized capital stock
conforms in all material respects to the description thereof set forth in the Registration
Statement and the Prospectus. Except as described in or contemplated by the Registration Statement
and the Prospectus, as of the date referred to therein, the Company did not have outstanding any
options, warrants, agreements, contracts or other rights in existence to purchase or acquire from
the Company or any Subsidiary of the Company any shares of the capital stock of the Company or any
Subsidiary.




          (j)  Contracts. Each description of a contract, document or other agreement in the
Registration Statement and the Prospectus accurately describes in all material respects the
principal terms of the underlying contract, document or other agreement. Each contract, document or
other agreement described in the Registration Statement and the Prospectus or listed in the
exhibits to the Registration Statement or incorporated therein by reference is in full force and
effect, unless validly terminated in accordance with the provisions thereof or the term of such
contract, document or other agreement has expired, and is valid and enforceable against the Company
or its Subsidiary, as the case may be, in accordance with its terms. There are no contracts or
other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement that are not so filed pursuant to the Securities Act.




          (k)  Authorization; Enforceability. This Agreement has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding agreement of the Company enforceable
in accordance with its terms, except to the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally and by general equitable principles and (ii) the indemnification and contribution
provisions of Section 9 hereof may be limited by federal or state securities laws and public policy
considerations in respect thereof.




 









 








          (l)  Capital Stock and Placement Shares in Proper Form. The form of certificates for
the Placement Shares are in due and proper form and the holders of the Shares will not be subject
to personal liability under the Delaware General Corporation Law by reason of being such holders.




          (m)  Authorization of Placement Shares. The Placement Shares, when issued and
delivered pursuant to the terms approved by the Board of Directors or a duly designated committee
thereof, against payment therefor as provided herein, will be duly and validly authorized and
issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights,
rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of
the Exchange Act.




          (n)  Consents and Permits. (1) The Company and each of its Subsidiaries 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 for the ownership or lease of their respective properties or to conduct its businesses as
described in the Registration Statement and the Prospectus (collectively, “Permits”),
except for such Permits the failure of which to possess, obtain or make the same would not
reasonably be expected to have a Material Adverse Effect; and except as set forth in the
Prospectus, neither the Company nor any of its Subsidiaries has received any written notice of
proceedings relating to the limitation, revocation, cancellation, suspension, modification or
non-renewal of any such Permit which, singly or in the aggregate would have a Material Adverse
Effect, and has any reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course. (2) The Company met all requirements for initial
listing and continues to meet standards to maintain its listing on the NASDAQ Global Market. (3)
No approval, authorization, consent or order of or filing with any national, state or local
governmental or regulatory commission, board, body, authority or agency is required in connection
with the issuance and sale of the Placement Shares or the consummation by the Company of the
transactions contemplated hereby other than (i) registration of the Placement Shares under the
Securities Act, (ii) any necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Placement Shares are being offered by CF&Co, (iii) filing of any
reports under the Exchange Act, (iv) such approvals obtained or to be obtained in connection with
the approval of the listing of the Placement Shares on the NASDAQ or other Exchange, or (v) such
approvals as may be required by the rules of the Financial Industry Regulatory Authority
(“FINRA”).




          (o)  No Preferential Rights. Except as set forth in the Registration Statement and
the Prospectus, (i) no person, as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the Securities Act (each, a “Person”), has the right, contractual or otherwise, to
cause the Company to issue or sell to such Person any shares of Common Stock or shares of any other
capital stock or other securities of the Company, (ii) no Person has any preemptive rights, resale
rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision
or otherwise) to purchase any shares of Common Stock or shares of any other capital stock or other
securities of the Company, (iii) no Person has the right to act as an underwriter or as a financial




 









 







advisor to the Company in connection with the offer and sale of the Shares, and (iv)  no
Person has the right, contractual or otherwise, to require the Company to register under the
Securities Act any shares of Common Stock or shares of any other capital stock or other securities
of the Company, or to include any such shares or other securities in the Registration Statement or
the offering contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise.




          (p)  Independent Public Accountant. Ernst & Young LLP (“Ernst &
Young”),
whose report on the audited consolidated financial statements of the Company is filed with the
Commission as part of the Registration Statement and the Prospectus, are and, during the periods
covered by their report, were independent public accountants within the meaning of the Securities
Act and the Public Accounting Oversight Board (United States).




          (q)  Enforceability of Agreements. To the knowledge of the Company, all material
agreements between the Company and third parties expressly referenced in the Prospectus are legal,
valid and binding obligations of the Company enforceable in accordance with their respective terms,
except to the extent that (i) enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions of certain agreements may be limited
be federal or state securities laws or public policy considerations in respect thereof and except
for any unenforceability that, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.




          (r)  No Litigation. Except as disclosed in the Registration Statement, there are no
actions, suits, claims, investigations, inquiries or proceedings pending or, to Company’s
knowledge, threatened to which either the Company or, to the Company’s knowledge, any of the
Subsidiaries, or any of their respective officers or directors is a party or of which any of their
respective properties or other assets is subject at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body, authority or agency
that could reasonably be expected to result in a judgment, decree or order having individually or
in the aggregate a Material Adverse Effect.




          (s)  Insurance. The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged or propose to engage after giving
effect to the transactions described in the Registration Statement and the Prospectus; 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 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 is not materially greater than the current cost.




          (t)  Regulatory Filings.  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




 









 







except where the failure to make such filing would not result in a Material Adverse Effect;
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 with respect to any such filings, declarations, listings, registrations, reports or
submissions except where the failure to make such filing would not result in a Material Adverse
Effect. 




          (u)  [RESERVED]




          (v)  Certain Market Activities. Neither the Company nor, to the Company’s knowledge,
any of the Subsidiaries, nor, to the Company’s knowledge, any of their respective directors,
officers or controlling persons has taken, directly or indirectly, any action designed, or that has
constituted or might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares.




          (w)  No Reliance. The Company has not relied upon CF&Co or legal counsel for CF&Co
for any legal, tax or accounting advice in connection with the offering and sale of the Placement
Shares.




          (x)  Taxes. The Company and its Subsidiaries have timely filed all material federal,
state, local and foreign income and franchise tax returns (or timely filed applicable extensions
therefore) required to be filed and are not in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect thereto, other than any which the
Company or any of its Subsidiaries is contesting in good faith and for which adequate reserves have
been provided.




          (y)  Title to Real and Personal Property. The Company and each of its Subsidiaries
have good and valid title to all property (whether real or personal) described in the Registration
Statement and the Prospectus as being owned by each of them, in each case free and clear of all
liens, claims, security interests, other encumbrances or defects except such as are described in
the Registration Statement and the Prospectus and those that do not materially and adversely affect
the value of such property and do not materially interfere with the use made of such property by
the Company. All of the property described in the Registration Statement and the Prospectus as
being held under lease by the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases, without any liens, restrictions, encumbrances or claims, except such as are
described in the Registration Statement and the Prospectus and those that do not materially and
adversely affect the value of such property and those that (i) do not materially interfere with the
use made or proposed to be made of such property by the Company or any of its Subsidiaries or
(ii) would not, individually or in the aggregate, have a Material Adverse Effect.




          (z)  Intellectual Property. Except as set forth in the Prospectus, the Company and
its Subsidiaries own, possess, license or have other rights to use or could obtain on commercially
reasonable terms all foreign and domestic patents, patent applications, trade and service marks,
trade and service mark 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 their respective businesses as now




 









 







conducted or as proposed in the Prospectus to be conducted except to the extent that the
failure to own or possess adequate rights to use such Intellectual Property would not, individually
or in the aggregate, have a Material Adverse Effect.  Except as set forth in the Prospectus,
(a) there are no rights of third parties to any such Intellectual Property owned by the Company and
its Subsidiaries; (b) to the Company’s knowledge, there is no infringement by third parties of any
such Intellectual Property; (c) to the Company’s knowledge, there is no pending or threatened
action, suit, proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights
in or to any such Intellectual Property; (d) to the Company’s knowledge, there is no pending or
threatened action, suit, proceeding or claim by others challenging the validity or scope of any
such Intellectual Property; (e) there is no pending or, to 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; (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 (as defined in 35
U.S.C. § 135) have been commenced against any patent or patent application described in the
Prospectus as being owned by or licensed to the Company; and (g) the Company and its Subsidiaries
have taken all reasonable steps necessary to perfect its ownership of the Intellectual Property, in
each of clauses (a)-(g) except for such infringement, conflict or action which would not,
singularly or in the aggregate, reasonably be expected to result in a Material Adverse Effect.




          (aa)  Clinical Studies.  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 in all material respects with all statutes, laws,
rules and regulations, as 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).  The descriptions in the Registration Statement
and Prospectus 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.  Except as set
forth in the Registration Statement and the Prospectus neither the Company nor any of its
Subsidiaries have 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
requiring the termination or suspension of such studies or tests.




          (bb)  Compliance Program.  The Company has established and administers a compliance
program applicable to the Company, to assist the Company and the directors, officers and employees
of the Company in complying with applicable regulatory guidelines (including, without limitation,
those administered by the FDA and any other foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by the FDA).




          (cc)  Environmental Laws. The Company and its Subsidiaries: (i) are in compliance
with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions
and orders relating to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses and other approvals
required of them under applicable Environmental Laws to conduct their respective businesses as




 









 







described in the Registration Statement and the Prospectus; and (iii) have 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, in the case
of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive
required permits, licenses, or other approvals or any such liability as would not, individually or
in the aggregate, have a Material Adverse Effect.




          (dd)  Accounting Controls.  The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain accountability for 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 existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.




          (ee)  Disclosure Controls.  The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15e and 15d-15e under the Exchange
Act), which are designed to ensure that material information relating to the Company is made known
to the Company’s principal executive officer and its principal financial officer by others within
those entities, particularly during the periods in which the periodic reports required under the
Exchange Act are being prepared,  and that such disclosure controls and procedures are appropriate
to allow timely decisions regarding required disclosure to be included in the Company’s periodic
filings under the Exchange Act. The Company’s certifying officers have evaluated the effectiveness
of the Company’s disclosure controls and procedures as of the most recently ended quarter (such
date, the “Evaluation Date”). The Company presented in its most recently filed periodic
report the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no significant changes in the Company’s internal control over financial
reporting, except as described in the Registration Statement and Prospectus (as such term is
defined in Exchange Act Rules 13a-15 and 15d-15) or, to the Company’s knowledge, in other factors
that could significantly affect the Company’s internal controls.




          (ff)  Sarbanes-Oxley. The principal executive officer and principal financial officer
of the Company have made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”) with respect to all reports, schedules, forms, statements and other
documents required to be filed by it with the Commission, and the statements contained in any such
certification are complete and correct. The Company, and to its knowledge after due inquiry, all of
the Company’s directors or officers, in their capacities as such, is in compliance in all material
respects with all applicable effective provisions of the Sarbanes-Oxley Act.




          (gg)  Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any
liability for any finder’s fees, broker’s fee, or similar payments in connection with the
transactions herein contemplated, except as may otherwise exist with respect to CF&Co pursuant to
this Agreement.




 









 








          (hh)  Labor Disputes. There are no existing or threatened labor disputes with the
employees of the Company or, to the Company’s knowledge, any Subsidiary that, individually or in
the aggregate, could reasonably be expected to have individually or in the aggregate a Material
Adverse Effect.




          (ii)  Investment Company Act. Neither the Company nor any of the Subsidiaries, after
giving effect to the offering and sale of the Placement Shares, will be an “investment company” or
an entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).




          (jj)  Casualty. Neither the Company nor, to the Company’s knowledge, any of the
Subsidiaries has sustained since the date of the last audited financial statements included in the
Registration Statement, and the Prospectus any loss or interference with its respective business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, in each case that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.




          (kk)  ERISA. The Company and the Subsidiaries are in compliance with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder (“ERISA”), except for any
noncompliance that, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.. No “reportable event” (as defined in section 4043 of ERISA) for which
the Pension Benefit Guaranty Corporation has not waived the notice requirement has occurred in the
past three years with respect to any “pension plan” (as defined in ERISA) for which the Company and
the Subsidiaries would reasonably expect to have any liability. The Company and the Subsidiaries
have not incurred and do not reasonably expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of
the Code. Each “pension plan” for which the Company or the Subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination or opinion letter to that effect and, to the Company’s knowledge , no event has
occurred since the date of such letter that could reasonably be expected to result in the loss of
such qualification.




          (ll)  Forward Looking Statements. No forward looking statement within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act contained in the Prospectus,
the Registration Statement, or any other document filed with the Commission has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.




          (mm)  CF&Co Purchases. The Company acknowledges and agrees that CF&Co has informed
the Company that CF&Co may, to the extent permitted under the Securities Act and the Exchange Act,
purchase and sell shares of Common Stock for its own account while this Agreement is in effect,
provided, that (i) no such purchase or sales shall take place while a Placement Notice is in effect
(except to the extent CF&Co may engage in sales of Placement Shares purchased or deemed purchased
from the Company as a “riskless principal” or in a similar capacity) and (ii) the Company shall not
be deemed to have authorized or consented to any such purchases or sales by CF&Co.




 









 








          (nn)  No Improper Practices. (i) Neither the Company nor, to the Company’s knowledge,
the Subsidiaries, nor to the Company’s knowledge, any of their respective executive officers has,
in the past five years, made any unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of law) or made any contribution or
other payment to any official of, or candidate for, any federal, state, municipal, or foreign
office or other person charged with similar public or quasi-public duty in violation of any law or
of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or
indirect, exists between or among the Company or, to the Company’s knowledge, any Subsidiary or any
affiliate of any of them, on the one hand, and the directors, officers and stockholders of the
Company or, to the Company’s knowledge, any Subsidiary, on the other hand, that is required by the
Securities Act to be described in the Registration Statement and the Prospectus that is not so
described; (iii) no relationship, direct or indirect, exists between or among the Company or any
Subsidiary or any affiliate of them, on the one hand, and the directors, officers, stockholders or
directors of the Company or, to the Company’s knowledge, any Subsidiary, on the other hand, that is
required by the rules of the FINRA to be described in the Registration Statement and the Prospectus
that is not so described; and (iv) except as described in the Prospectus, there are no material
outstanding loans or advances or material guarantees of indebtedness by the Company or, to the
Company’s knowledge, any Subsidiary to or for the benefit of any of their respective officers or
directors or any of the members of the families of any of them.




          (oo)  Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries, nor,
to the knowledge of the Company, any director, officer, agent or employee of the Company or its
Subsidiaries, has, directly or indirectly, during the last five years, while acting on behalf of
the Company or its Subsidiaries (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful
payment to foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; (iv) made any other unlawful bribe, rebate, payoff,
influence, kickback or payment to any foreign or domestic government official or employee.




     7.   Covenants of the Company. The Company covenants and agrees with CF&Co that:



          (a)  Registration Statement Amendments. After the date of this Agreement and in each
case during any period in which a Prospectus relating to any Placement Shares is required to be
delivered by CF&Co under the Securities Act, (i) the Company will notify CF&Co promptly when any
subsequent amendment to the Registration Statement, other than documents incorporated by reference,
has been filed with the Commission and/or has become effective, any subsequent supplement to the
Prospectus has been filed and any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information has been received, (ii) the
Company will prepare and file with the Commission, promptly upon CF&Co’s request, any amendments or
supplements to the Registration Statement or Prospectus that, in CF&Co’s reasonable judgment, may
be necessary or advisable in connection with the distribution of the Placement Shares by CF&Co for
which the Company has delivered a Placement Notice to CF&Co and for which the distribution of such
placement shares has not yet been completed by CF&Co (the period between delivery of a Placement
Notice until the termination in accordance with this Agreement or the completion of the
distribution




 









 







contemplated thereby, the “Pendency Period”) (provided, however, that the failure of CF&Co to
make such request shall not relieve the Company of any obligation or liability hereunder, or affect
CF&Co’s right to rely on the representations and warranties made by the Company in this Agreement);
(iii) the Company will not file any amendment or supplement to the Registration Statement or
Prospectus relating to the Placement Shares (except for documents incorporated by reference) unless
a copy thereof has been submitted to CF&Co a reasonable period of time before the filing and CF&Co
has not reasonably objected thereto (provided, however, (A) that the failure of CF&Co to make such
objection shall not relieve the Company of any obligation or liability hereunder, or affect CF&Co’s
right to rely on the representations and warranties made by the Company in this Agreement, (B) that
the Company has no obligation to provide CF&Co any advance copy of such filing or to provide CF&Co
an opportunity to object to such filing if such filing does not name CF&Co or does not relate to
the transactions contemplated hereunder) and (C) that CF&Co shall not object to any such filing if
the Company obtains a written opinion of counsel reasonably satisfactory to CF&Co to CF&Co that
such filing is required under applicable law) and the Company will furnish to CF&Co at the time of
filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via EDGAR; and
(iv) the Company will cause each amendment or supplement to the Prospectus to be filed with the
Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act
or, in the case of any document to be incorporated therein by reference, to be filed with the
Commission as required pursuant to the Exchange Act, within the time period prescribed (the
determination to file or not file any amendment or supplement with the Commission under this
Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be
made exclusively by the Company).




          (b)  Notice of Commission Stop Orders. During any period in which a Prospectus
relating to any Placement Shares is required to be delivered by CF&Co under the Securities Act, the
Company will advise CF&Co, promptly after it receives notice or obtains knowledge thereof, of the
issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the qualification of the Placement Shares for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any
such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued.




          (c)  Delivery of Prospectus; Subsequent Changes. During any period in which a
Prospectus relating to the Placement Shares is required to be delivered by CF&Co under the
Securities Act with respect to the offer and sale of the Placement Shares, the Company will use its
best efforts to comply with all requirements imposed upon it by the Securities Act, as from time to
time in force, and to file on or before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during
such period any event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the Registration Statement or Prospectus
to comply with the Securities Act, the Company will




 









 







promptly notify CF&Co to suspend the offering of Placement Shares during such period and the
Company will promptly amend or supplement the Registration Statement or Prospectus (subject to
Section 7(a) of this Agreement) so as to correct such statement or omission or effect such
compliance.




          (d)  Listing of Placement Shares. During any period in which the Prospectus relating
to the Placement Shares is required to be delivered by CF&Co under the Securities Act with respect
to the offer and sale of the Placement Shares, the Company will use its commercially reasonable
efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement
Shares for sale under the securities laws of such jurisdictions as CF&Co reasonably designates and
to continue such qualifications in effect so long as required for the distribution of the Placement
Shares; provided, however, that the Company shall not be required in connection therewith to
qualify as a foreign corporation or dealer in securities or file a general consent to service of
process in any jurisdiction.




          (e)  Delivery of Registration Statement and Prospectus. The Company will furnish to
CF&Co and its counsel (at the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during
any period in which a Prospectus relating to the Placement Shares is required to be delivered under
the Securities Act (including all documents filed with the Commission during such period that are
deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as CF&Co may from time to time reasonably request and, at CF&Co’s request, will
also furnish copies of the Prospectus to each exchange or market on which sales of the Placement
Shares may be made; provided, however, that the Company shall not be required to furnish any
document (other than the Prospectus) to CF&Co to the extent such document is available on EDGAR.




          (f)  Earnings Statement. The Company will make generally available to its security
holders an “earnings statement,” as soon as practicable, that satisfies the provisions of Section
11(a) and Rule 158 of the Securities Act. Any document or information filed with the Commission
and available on EDGAR shall be deemed to be delivered for purposes of this section.




          (g)  Expenses. The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, in accordance with the provisions of Section 11
hereunder, will pay all of its reasonable expenses incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and
filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus
and of each amendment and supplement thereto, (ii) the preparation, issuance and delivery of the
Placement Shares, (iii) the qualification of the Placement Shares under “blue sky” or state
securities laws in accordance with the provisions of Section 7(d) of this Agreement,
including filing fees in connection therewith, (iv) the printing and delivery to CF&Co of copies of
the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the Company’s
fees and expenses incurred in connection with the listing or qualification of the Placement Shares
for trading on the Exchange, (vi) filing fees and expenses, if any, of the Commission and the FINRA
Corporate Finance Department. The Company will not be obligated to pay any legal fees or expenses
or other fees or expenses incurred by CF&Co.




 









 








          (h)  Use of Proceeds. The Company will use in all material respects the Net Proceeds
as described in the Prospectus in the section entitled “Use of Proceeds.”




          (i)  Notice of Other Sales. During either Pendency Period or any period in which the
Prospectus relating to the Placement Shares is required to be delivered by CF&Co, the Company shall
provide CF&Co notice as promptly as reasonably possible before it offers to sell, contracts to
sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other
than Placement Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire
Common Stock; provided, that such notice shall not be required in connection with the (i) issuance,
grant or sale of Common Stock, options to purchase shares of Common Stock or Common Stock issuable
upon the exercise of options or other equity awards pursuant to the 1995 Stock Option Plan, the
2000 Stock Incentive Plan, the 2000 Employee Stock Repurchase Plan (each as amended to date and
hereafter amended) and any stock option plans, deferred compensation plans, restricted stock plans
and employee stock purchase plans hereafter adopted in compliance with the FINRA Marketplace Rule
4350(i)(1)(D), (ii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan
that the Company may adopt from time to time provided the implementation of such is disclosed to CF
& Co. in advance or (iii) the issuance of Common Stock upon the exercise of any currently
outstanding warrant, or warrant which the Company may presently be obligated to issue.




          (j)  Change of Circumstances. The Company will, at any time during the Pendency
Period, advise CF&Co promptly after it shall have received notice or obtained knowledge thereof, of
any information or fact that would alter or affect in any material respect any opinion,
certificate, letter or other document required to be provided to CF&Co pursuant to this Agreement.




          (k)  Due Diligence Cooperation. In connection with any proposed distribution of
Placement Shares, the Company will cooperate with any reasonable due diligence review conducted by
CF&Co or its agents in connection with the transactions contemplated hereby, including, without
limitation, providing information and making available documents and senior corporate officers,
during regular business hours and at the Company’s principal offices, as CF&Co may reasonably
request.




          (l)  Required Filings Relating to Placement of Placement Shares. The Company agrees
that on such dates as the Securities Act shall require, the Company will (i) file a prospectus
supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through CF&Co, the
Net Proceeds to the Company and the compensation payable by the Company to CF&Co with respect to
such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to
each exchange or market on which such sales were effected as may be required by the rules or
regulations of such exchange or market.




          (m)  Representation Dates; Certificate. During the term of this Agreement, on the
date of the first Placement Notice given hereunder and each time the Company (i) files the
Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or
the Prospectus relating to the Placement Shares (other than a prospectus supplement filed in




 









 







accordance with Section 7(l) of this Agreement) by means of a post-effective amendment,
sticker, or supplement but not by means of incorporation of document(s) by reference to the
Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an annual
report on Form 10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under
the Exchange Act; (iv) files a report on Form 8-K containing amended financial information (other
than an earnings release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to
provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications of certain
properties as discontinued operations in accordance with Statement of Financial Accounting
Standards No. 144) under the Exchange Act (each date of filing of one or more of the documents
referred to in clauses (i) through (iv) shall be a “Representation Date”); the Company
shall furnish CF&Co with a certificate, in the form attached hereto as Exhibit 7(m). The
requirement to provide a certificate under this Section 7(m) shall be waived for any Representation
Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until
the earlier to occur of the date the Company issues a Placement Notice hereunder (which for such
calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date. Notwithstanding the foregoing, if the Company subsequently issues a Replacement Notice
following a Representation Date when the Company relied on such waiver and did not provide CF&Co
with a certificate under this Section 7(m), then the Company shall provide CF&Co with a
certificate, in the form attached hereto as Exhibit 7(m), dated the date of the Placement
Notice.




          (n)  Legal Opinion. On the date of the first Placement Notice given hereunder, the
Company shall cause to be furnished to CF&Co a written opinion of (i) Wilson Sonsini Goodrich &
Rosati, Professional Corporation (“WSGR”), substantially similar to the form attached hereto as
Exhibit 7(n)(1) (only in connection with the first Placement Notice given hereunder) and
(ii) Wilson & Varner, L.L.P. (“Wilson Varner” together with WSGR, “Company Counsel”) substantially
similar to the form attached hereto as Exhibit 7(n)(2), and thereafter within five (5)
Trading Days of each Representation Date with respect to which the Company is obligated to deliver
a certificate in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the
Company shall cause to be furnished to CF&Co a written opinion of Wilson Varner, substantially
similar to the form attached hereto as Exhibit 7(n)(2) (for each subsequent Representation
Date after the date the first Placement Notice given hereunder), in each case, modified, as
necessary, to relate to the Registration Statement and the Prospectus as then amended or
supplemented; provided, however, that in lieu of such subsequent opinions, Wilson
Varner may furnish CF&Co with a letter to the effect that CF&Co may rely on a prior opinion (in the
form substantially similar to the form attached hereto as Exhibit 7(n)(2)) delivered under
this Section 7(n) to the same extent as if it were dated the date of such letter (except that
statements in such prior opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date).




          (o) 
Comfort Letter. No later than the date of the first Placement Notice given hereunder and
thereafter within five (5) Trading Days of the Representation Date or any period in which the
Prospectus relating to the Placement Shares is required to be delivered by CF&Co, each time that
the Registration Statement is amended or the Prospectus supplemented to include additional amended
financial information or there is filed with the Commission any document incorporated by reference
into the Prospectus that contains additional amended financial information (other than an earnings
release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or




 









 







to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications of
certain properties as discontinued operations in accordance with Statement of Financial Accounting
Standards No. 144), the Company shall cause its independent accountants to furnish CF&Co letters
(the “Comfort Letters”), dated the date of such Representation Date, in form and substance
satisfactory to CF&Co, (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of such date, the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters
in connection with registered public offerings (the first such letter, the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter with any information that would have
been included in the Initial Comfort Letter had it been given on such date and modified as
necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letter. The requirement to provide a Comfort Letter under this Section 7(o)
shall be waived for any Representation Date occurring at a time at which no Placement Notice is
pending, which waiver shall continue until the earlier to occur of the date the Company issues a
Placement Notice hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date when the Company
relied on such waiver and did not provide CF&Co with a Comfort Letter under this Section
7(p), then before CF&Co either delivers the Placement Notice or sells any Placement Shares, the
Company shall provide CF&Co with a Comfort Letter dated the date of the Placement Notice.




          (p)  Market Activities. During any period in which the Prospectus related to the
Placement Shares is required to be delivered by CF&Co under Securities Act, the Company will not,
directly or indirectly take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Placement Shares.




          (q)  Investment Company Act. During any period in which the Prospectus relating to
the Placement Shares is required to be delivered by CF&Co under Securities Act, the Company will
conduct its affairs in such a manner so as to reasonably ensure that neither it nor the
Subsidiaries will be or become, at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the Investment Company Act, assuming no change in
the Commission’s current interpretation as to entities that are not considered an investment
company.




     8.   Conditions to CF&Co’s Obligations. The obligations of CF&Co hereunder with
respect to a Placement will be subject to the continuing accuracy and completeness of the
representations and warranties made by the Company herein, to the due performance by the Company of
its obligations hereunder, to the completion by CF&Co of a due diligence review satisfactory to
CF&Co in its reasonable judgment, and to the continuing satisfaction (or waiver by CF&Co in its
sole discretion) of the following additional conditions:



          (a)  Registration Statement Effective. The Registration Statement shall have become
effective and shall be available for the (i) resale of all Placement Shares issued to CF&Co and




 









 







not yet sold by CF&Co and (ii) the sale of all Placement Shares contemplated to be issued by
any Placement Notice.




          (b)  No Material Notices. None of the following events shall have occurred and be
continuing: (i) receipt by the Company of any request for additional information from the
Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendment to
the Registration Statement or the Prospectus that would not become effective without prior review
and approval of the Commission; (ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification of
any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; (iv) the occurrence of any event that makes any material statement
made in the Registration Statement or the Prospectus or any material document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or that requires the
making of any changes in the Registration Statement, related Prospectus or documents so that, in
the case of the Registration Statement, it will not contain any materially untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and, that in the case of the Prospectus, it will not contain
any materially untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.




          (c)  Material Changes. Except as contemplated in the Prospectus, or disclosed in the
Company’s reports filed with the Commission, there shall not have been any material adverse change,
on a consolidated basis, in the authorized capital stock of the Company or any Material Adverse
Effect, or any development that could reasonably be expected to cause a Material Adverse Effect,
the effect of which in the reasonable judgment of CF&Co (without relieving the Company of any
obligation or liability it may otherwise have), is so material as to make it impracticable or
inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner
contemplated in the Prospectus.




          (d)  Legal Opinion. CF&Co shall have received the applicable opinions of Company
Counsel required to be delivered pursuant Section 7(n) on or before the date on which such
delivery of such opinion is required pursuant to Section 7(n).




          (e)  Comfort Letter. CF&Co shall have received the Comfort Letter required to be
delivered pursuant Section 7(o) on or before the date on which such delivery of such
opinion is required pursuant to Section 7(o).




          (f)  Representation Certificate. CF&Co shall have received the certificate required
to be delivered pursuant to Section 7(m) on or before the date on which delivery of such
certificate is required pursuant to Section 7(m).




          (g)  No Suspension. Trading in the Shares shall not have been suspended on the
Exchange.




 









 








          (h)  Other Materials. On each date on which the Company is required to deliver a
certificate pursuant to Section 7(m), the Company shall have furnished to CF&Co such
appropriate further information, certificates and documents as CF&Co may reasonably request. All
such opinions, certificates, letters and other documents will be in compliance with the provisions
hereof. The Company will furnish CF&Co with such conformed copies of such opinions, certificates,
letters and other documents as CF&Co shall reasonably request.




          (i)  Securities Act Filings Made. All filings with the Commission required by Rule
424 under the Securities Act to have been filed prior to the issuance of any Placement Notice
hereunder shall have been made within the applicable time period prescribed for such filing by Rule
424.




          (j)  Approval for Listing. The Placement Shares shall either have been (i) approved
for listing on the Exchange, subject only to notice of issuance, or (ii) the Company shall have
filed an application for listing of the Placement Shares on the Exchange at, or prior to, the
issuance of any Placement Notice.




          (k)  No Termination Event. There shall not have occurred any event that would permit
CF&Co to terminate this Agreement pursuant to Section 11(a).




     9.   Indemnification and Contribution.



          (a)  Company Indemnification. The Company agrees to indemnify and hold harmless
CF&Co, the directors, officers, partners, employees and agents of CF&Co and each person, if any,
who (i) controls CF&Co within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, or (ii) is controlled by or is under common control with CF&Co (a “CF&Co
Affiliate”) from and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all reasonable investigative, legal and other expenses
incurred in connection with, and any and all amounts paid in settlement (in accordance with Section
9(a)) of, any action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or otherwise, or any
claim asserted), as and when incurred, to which CF&Co, or any such person, may become subject under
the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out
of or are based, directly or indirectly, on (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus or (ii) the omission or alleged omission
to state in such document a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made in the case of the
Prospectus, not misleading; provided, however, that this indemnity agreement shall
not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of
the Placement Shares pursuant to this Agreement and is caused directly or indirectly by an untrue
statement or omission made in reliance on and in conformity with information relating to CF&Co and
furnished in writing to the Company by CF&Co expressly for inclusion in any document described in
clause (a)(i) above. This indemnity agreement will be in addition to any liability that the Company
might otherwise have.




 









 








          (b)  CF&Co Indemnification. CF&Co agrees to indemnify and hold harmless the Company
and its directors and each officer of the Company who signed the Registration Statement, and each
person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the
Company (a “Company Affiliate”) against any and all losses, liabilities, claims, damages,
and expenses described in the indemnity contained in Section 9(a) (including, but not
limited to, any and all reasonable investigative, legal, and other expenses incurred in connection
with and any and all amounts paid in settlement (in accordance with Section 9(b)) as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written information relating to
CF&Co and furnished to the Company by CF&Co expressly for inclusion in any document as described in
Section 9(a).




          (c)  Procedure. Any party that proposes to assert the right to be indemnified under
this Section 9 will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 9, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such indemnifying party will
not relieve the indemnifying party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense of the action, with counsel
reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as provided below. The
indemnified party will have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on a written advice
of counsel) that there may be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on the written advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified




 









 







party or parties. All such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be
liable for any settlement of any action or claim effected without its written consent. No
indemnifying party shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 9 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or that may arise out of
such claim, action or proceeding.




          (d)  Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing paragraphs of this
Section 9 is applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or CF&Co, the Company and CF&Co will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received by the Company from
persons other than CF&Co, such as persons who control the Company within the meaning of the
Securities Act, officers of the Company who signed the Registration Statement and directors of the
Company, who also may be liable for contribution) to which the Company and CF&Co may be subject in
such proportion as shall be appropriate to reflect the relative benefits received by the Company on
the one hand and CF&Co on the other. The relative benefits received by the Company on the one hand
and CF&Co on the other hand shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to
the total compensation received by CF&Co from the sale of Placement Shares on behalf of the
Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and CF&Co, on the other, with respect to the
statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or CF&Co, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and CF&Co agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were to be determined by pro rata allocation or
by any other method of allocation that 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, liability, expense, or damage, or action in respect thereof, referred to above in this
Section 9(d) shall be deemed to include, for the purpose of this Section 9(d), any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent consistent with Section
9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), CF&Co
shall not be required to contribute any amount in excess of the commissions received by it under
this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to




 









 







contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9(d), any person who controls a party to this Agreement within the
meaning of the Securities Act, and any officers, directors, partners, employees or agents of CF&Co,
will have the same rights to contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 9(d), will notify any such party or parties
from whom contribution may be sought, but the omission to so notify will not relieve that party or
parties from whom contribution may be sought from any other obligation it or they may have under
this Section 9(d) except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the party from whom contribution is
sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c)
hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 9(c) hereof.




     10.   Representations and Agreements to Survive Delivery. All representations and
warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of CF&Co, any
controlling persons, or the Company (or any of their respective officers, directors or controlling
persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any
termination of this Agreement.



     11.   Termination.



          (a)  CF&Co shall have the right by giving notice as hereinafter specified at any time to
terminate this Agreement if (i) any Material Adverse Effect, or any development that has actually
occurred and that is reasonably expected to cause a Material Adverse Effect has occurred that, in
the reasonable judgment of CF&Co, may materially impair the ability of CF&Co to sell the Placement
Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any
material agreement on its part to be performed hereunder; provided, however, in the case of any
failure of the Company to deliver (or cause another person to deliver) any certification, opinion,
or letter required under Sections 7(m), 7(n), 7(o), or 7(p),
CF&Co’s right to terminate shall not arise unless such failure to deliver (or cause to be
delivered) continues for more than thirty (30) days from the date such delivery was required to
which such delivery was required; or (iii) any other condition of CF&Co’s obligations hereunder is
not fulfilled, or (iv), any suspension or limitation of trading in the Placement Shares or in
securities generally on the Exchange shall have occurred. Any such termination shall be without
liability of any party to any other party except that the provisions of Section 7(g)
(Expenses), Section 9 (Indemnification), Section 10 (Survival of Representations),
Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury
Trial) hereof shall remain in full force and effect notwithstanding such termination. If CF&Co
elects to terminate this Agreement as provided in this Section 11(a), CF&Co shall provide
the required notice as specified in Section 12 (Notices).




          (b)  The Company shall have the right, by giving ten (10) days notice as hereinafter specified
to terminate this Agreement in its sole discretion at any time after the date of this Agreement.
Any such termination shall be without liability of any party to any other party




 









 







except that the provisions of Section 7(g), Section 9, Section 10,
Section 16 and Section 17 hereof shall remain in full force and effect
notwithstanding such termination.




          (c)  CF&Co shall have the right, by giving ten (10) days notice as hereinafter specified to
terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any
such termination shall be without liability of any party to any other party except that the
provisions of Section 7(g), Section 9, Section 10, Section 16 and
Section 17 hereof shall remain in full force and effect notwithstanding such termination.




          (d)  Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically
terminate upon the issuance and sale of all of the Placement Shares through CF&Co on the terms and
subject to the conditions set forth herein; provided that the provisions of Section 7(g),
Section 9, Section 10, Section 16 and Section 17 hereof shall
remain in full force and effect notwithstanding such termination.




          (e)  This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 11(a), (b), (c), or (d) above or otherwise by mutual agreement of
the parties; provided, however, that any such termination by mutual agreement shall in all cases be
deemed to provide that Section 7(g), Section 9, Section 10, Section
16 and Section 17 shall remain in full force and effect.




          (f)  Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided, however, that such termination shall not be effective until the close of
business on the date of receipt of such notice by CF&Co or the Company, as the case may be. If such
termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.




     12.   Notices.


All notices or other communications required or permitted to be given by any party to any other
party pursuant to the terms of this Agreement shall be in writing and if sent to CF&Co, shall be
delivered to CF&Co at Cantor Fitzgerald & Co., 499 Park Avenue, New York, New York 10022, fax no.
(212) 829-4972, Attention: ITD-Investment Banking, with copies to Stephen Merkel, General Counsel,
at the same address, and DLA Piper US LLP, 1251 Avenue of the Americas, New York, NY 10020, fax no.
(212) 884-8494, Attention: Dean M. Colucci; or if sent to the Company, shall be delivered to
Introgen Therapeutics, Inc., 301 Congress Ave, Suite 1850, Austin, Texas 78701, Attention: David
Nance, Chief Executive Officer, with copies to Wilson & Varner, L.L.P., 301 Congress Ave., Suite
2078, Austin, Texas, 78701, Attention: Rodney Varner. Each party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice of a new address for
such purpose. Each such notice or other communication shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30
p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next
succeeding Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt requested, postage
prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the
Exchange and commercial banks in the City of New York are open for business.




 









 








     13.   Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company and CF&Co and their respective successors and the affiliates, controlling
persons, officers and directors referred to in Section 9 hereof. References to any of the
parties contained in this Agreement shall be deemed to include the successors and permitted assigns
of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. Neither party may assign its rights or obligations under this Agreement
without the prior written consent of the other party.



     14.    Adjustments for Stock Splits. The parties acknowledge and agree that all
share-related numbers contained in this Agreement shall be adjusted to take into account any stock
split, stock dividend or similar event effected with respect to the Placement Shares.



     15.   Entire Agreement; Amendment; Severability. This Agreement (including all
schedules and exhibits attached hereto and placement notices issued pursuant hereto) constitutes
the entire agreement and supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with regard to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and CF&Co. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable as written by a court of competent jurisdiction, then such provision shall be given
full force and effect to the fullest possible extent that it is valid, legal and enforceable, and
the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent that giving effect
to such provision and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.



     16.   Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of New York without regard to the
principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan,
for the adjudication of any dispute hereunder or in connection with any transaction contemplated
hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
(certified or registered mail, return receipt requested) to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.



     17.   Waiver of Jury Trial. The Company and CF&Co each hereby irrevocably waives any
right it may have to a trial by jury in respect of any claim based upon or arising out of this
agreement or any transaction contemplated hereby.



 









 





          18.   Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission.




[Remainder of Page Intentionally Blank]





 









 








          If the foregoing correctly sets forth the understanding between the Company and CF&Co, please
so indicate in the space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and CF&Co.




	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	INTROGEN THERAPEUTICS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ACCEPTED as of the date	 	 
	 	 	first-above written:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CANTOR FITZGERALD & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Jeffrey Lumby	 	 
	 	 	Managing Director	 	 






28









 






SCHEDULE 1




FORM OF PLACEMENT NOTICE




	 	 	 
	From:

	 	[                              ]
	Cc:

	 	[                              ]
	To:

	 	[                              ]
	Subject:

	 	Controlled Equity Offering—Placement Notice
	 
	 	 
	Gentlemen:
	 	 





Pursuant to the terms and subject to the conditions contained in the Controlled Equity
OfferingSM Sales Agreement between Introgen Therapeutics, Inc. (the “Company”)
and Cantor Fitzgerald & Co.
(“CF&Co”) dated August 8, 2008 (the “Agreement”), I
hereby request on behalf of the Company that CF&Co sell up to           shares of the Company’s common
stock, par value $0.001 per share, at a minimum market price of $           per share.





 









 








SCHEDULE 2




CANTOR FITZGERALD & CO.




Aaron Wood

Peter Dippolito

Josh Feldman

Jeffrey Lumby




INTROGEN THERAPEUTICS, INC.




David G. Nance

James W. Albrecht, Jr.





 









 








SCHEDULE 3




Compensation



CF&Co shall be paid compensation equal to seven percent (7%) of the gross proceeds from the sales
of Shares pursuant to the terms of this Agreement.





 









 








Exhibit 7(m) 




OFFICER CERTIFICATE



The undersigned, the duly qualified and elected                  , of INTROGEN THERAPEUTICS,
INC. (“Company”), a Delaware corporation, does hereby certify in such capacity and on
behalf of the Company, pursuant to Section 7(m) of the
Sales Agreement dated August 8,
2008 (the “Sales Agreement”) between the Company and Cantor Fitzgerald & Co., that to the
knowledge of the undersigned.




          (i) The representations and warranties of the Company in Section 6 of the Sales
Agreement (A) to the extent such representations and warranties are subject to qualifications and
exceptions contained therein relation to materiality or Material Adverse Effect, are true and
correct on and as of the date hereof, except for those representations and warranties that speak
solely as of a specific date and which were true and correct as of such date, with the same force
and effect as if expressly made on and as of the date hereof and (B) to the extent such
representations and warranties are not subject to any qualifications or exceptions, are true and
correct in all material respects as of the date hereof as if made on and as of the date hereof
except for those representations and warranties that speak solely as of a specific date and which
were true and correct as of such date, with the same force and effect as if expressly made on and
as of the date hereof; and




          (ii) The Company has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.




	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Date:                           
             




 









 








Exhibit 7(n)(1)




MATTERS TO BE COVERED BY LEGAL OPINION OF

WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION, AS

OF THE DATE OF THE FIRST PLACEMENT NOTICE DELIVERED HEREUNDER




- 2 -









 








Exhibit 7(n)(2)




MATTERS TO BE COVERED BY LEGAL OPINION OF

WILSON & VARNER, L.L.P. AS OF THE DATE OF THE FIRST PLACEMENT

NOTICE DELIVERED HEREUNDER AND EACH SUBSEQUENT REPRESENTATION

DATE





- 3 -