exv4w3



 



EXHIBIT 4.3


NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY SUCH SECURITIES.


INTROGEN THERAPEUTICS, INC.



WARRANT




	 	 	 
	Warrant No. 1	 	
Dated: June 18, 2003



     Introgen Therapeutics, Inc., a Delaware corporation (the
“Company”),
hereby certifies that, for value received, [        ] or its registered
assigns (the
“Holder”), is entitled to purchase from the Company up to a total of
[        ] shares
of common stock, $0.001 par value per share (the “Common Stock”), of the
Company (each such share, a “Warrant Share” and all such shares, the “Warrant
Shares”) at an exercise price equal to $7.89 per share (as adjusted from time
to time as provided in Section 8, the “Exercise Price”), at any time and from
time to time from and after the date hereof and through and including June 18,
2008 (the “Expiration Date”), and subject to the following terms and
conditions. This Warrant (this “Warrant”) is one of a series of similar
warrants issued pursuant to that certain Securities Purchase Agreement dated as
of the date hereof, by and among the Company and the Purchasers identified
therein (the “Purchase Agreement”). All such warrants are referred to herein,
collectively, as the “Warrants.”


     1.     Definitions. In addition to the
terms defined elsewhere in this
Warrant, capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Purchase Agreement.


     2.     Registration of Warrant. The
Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent actual notice to
the contrary.


     3.     Registration of Transfers. The
Company shall register the transfer of
any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment


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 attached hereto duly completed and signed, to the Transfer Agent or to the
Company at its address specified herein. Upon any such registration or
transfer, a new warrant to purchase Common Stock, in substantially the form of
this Warrant (any such new warrant, a “New Warrant”), evidencing the portion of
this Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant
by the transferee thereof shall be deemed the acceptance by such transferee of
all of the rights and obligations of a holder of a Warrant.


     4.          Exercise and Duration of
Warrants.


          (a)     This Warrant shall be
exercisable by the registered Holder at any time
and from time to time on or after the date hereof to and including the
Expiration Date. At 6:30 P.M., New York City time, on the Expiration Date, the
portion of this Warrant not exercised prior thereto shall be and become void
and of no value.



          (b)     A
Holder may exercise this Warrant by delivering to the Company (i) an
Exercise Notice, in the form attached hereto, appropriately completed and duly
signed, and (ii) payment of the Exercise Price for the number of Warrant Shares
as to which this Warrant is being exercised (which may take the form of a
“cashless exercise” if so indicated in the Exercise Notice), and the date such
items are delivered to the Company (as determined in accordance with the notice
provisions hereof) is an “Exercise Date.” Execution and delivery of the
Exercise Notice shall have the same effect as cancellation of the original
Warrant and issuance of a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.



     5.          Delivery of Warrant
Shares.


          (a)     Upon exercise of this
Warrant and surrender of the original Warrant at
the offices of the Company, the Company shall promptly (but in no event later
than three Trading Days after the Exercise Date) issue or cause to be issued
and cause to be delivered to or upon the written order of the Holder and in
such name or names as the Holder may designate, a certificate for the Warrant
Shares issuable upon such exercise, free of restrictive legends unless a
registration statement covering the resale of the Warrant Shares and naming the
Holder as a selling stockholder thereunder is not then effective and the
Warrant Shares are not freely transferable without volume restrictions pursuant
to Rule 144 under the Securities Act. The Holder, or any Person so designated
by the Holder to receive Warrant Shares, shall be deemed to have become holder
of record of such Warrant Shares as of the Exercise Date. The Company shall,
upon request of the Holder, use its best efforts to deliver Warrant Shares
hereunder electronically through the Depository Trust Corporation or another
established clearing corporation performing similar functions.



          (b)     This Warrant is
exercisable, either in its entirety or, from time to
time, for a portion of the number of Warrant Shares. Upon surrender of this

Warrant following one or more partial exercises, the Company shall issue or
cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares.



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          (c)     In addition to any
other rights available to a Holder, if the Company
fails to deliver to the Holder a certificate representing Warrant Shares, or to
deliver the Warrant shares electronically as contemplated by Section 5(a)
above, if requested by the Holder, by the third Trading Day after the date on
which delivery of such certificate is required by this Warrant, and if after
such third Trading Day the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of the Warrant Shares that the Holder anticipated receiving from the
Company (a “Buy-In”), then the Company shall, within three Trading Days after
the Holder’s request and in the Holder’s discretion, either (i) pay cash to the
Holder in an amount equal to the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased (the
“Buy-In Price”), at which point the Company’s obligation to deliver such
certificate (and to issue such Common Stock) shall terminate, or (ii) promptly
honor its obligation to deliver to the Holder a certificate or certificates
representing such Common Stock and pay cash to the Holder in an amount equal to
the excess (if any) of the Buy-In Price over the product of (A) such number of
shares of Common Stock, times (B) the Closing Price on the date of the event
giving rise to the Company’s obligation to deliver such certificate.



          (d)     The Company’s
obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional, irrespective
of any action or inaction by the Holder to enforce the same, any waiver or
consent with respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or
any violation or alleged violation of law by the Holder or any other Person,
and irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of
Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any
other remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief
with respect to the Company’s failure to timely deliver certificates
representing shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.



     6.     Charges, Taxes and Expenses.
Issuance of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax, withholding tax, transfer agent fee or
other incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company;
provided, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the registration of any
certificates for Warrant Shares or Warrants in a name other than that of the
Holder or an Affiliate thereof. The Holder shall be responsible for all other
tax liability that may arise as a result of holding or transferring this
Warrant or receiving Warrant Shares upon exercise hereof.


     7.     Reservation of Warrant Shares.
The Company covenants that it will at
all times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from preemptive rights or any
other contingent purchase rights of persons other than the Holder (taking into
account the adjustments and


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 restrictions of Section 8). The Company covenants that all Warrant Shares
so issuable and deliverable shall, upon issuance and the payment of the
applicable Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable. The Company will
take all such action as may be necessary to assure that such shares of Common
Stock may be issued as provided herein without violation of any applicable law
or regulation or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed.


     8.     Certain Adjustments. The
Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 8.


          (a)     Stock Dividends and
Splits. If the Company, at any time while this
Warrant is outstanding, (i) pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock that is payable in
shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into
a larger number of shares, or (iii) combines outstanding shares of Common Stock
into a smaller number of shares, then in each such case the Exercise Price
shall be multiplied by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding immediately before such event and of which
the denominator shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to clause (i) of
this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clause (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such
subdivision or combination.



          (b)     Pro Rata Distributions.
If the Company, at any time while this
Warrant is outstanding, distributes to holders of Common Stock (i) evidences of
its indebtedness, (ii) any security (other than a distribution of Common Stock
covered by the preceding paragraph), (iii) rights or warrants to subscribe for
or purchase any security, or (iv) any other asset, including cash (in each
case, “Distributed Property”), then in each such case the Exercise Price in
effect immediately prior to the record date fixed for determination of
stockholders entitled to receive such distribution shall be adjusted (effective
on such record date) to equal the product of such Exercise Price times a
fraction of which the denominator shall be the average of the Closing Prices
for the five Trading Days immediately prior to (but not including) such record
date and of which the numerator shall be such average less the then fair market
value of the Distributed Property distributed in respect of one outstanding
share of Common Stock, as determined (except in the case of cash) by the
Company’s independent certified public accountants that regularly examine the
financial statements of the Company (an “Appraiser”). In such event, the
Holder, after receipt of the determination by the Appraiser, shall have the
right to select an additional appraiser (which shall be a nationally recognized
accounting firm), in which case such fair market value shall be deemed to equal
the average of the values determined by each of the Appraiser and such
appraiser.



          (c)     Fundamental
Transactions. If, at any time while this Warrant is
outstanding, (i) the Company effects any merger or consolidation of the Company
with or into another Person, (ii) the Company effects any sale of all or
substantially all of its assets in one or a series of related



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transactions,
(iii) any tender offer or exchange offer (whether by the Company or another
Person) is
completed pursuant to which holders of Common Stock are permitted to
tender or exchange their shares for other securities, cash or property, or (iv)
the Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property (in any such case, a
“Fundamental Transaction”), then (x) if the consideration to be received in
such Fundamental Transaction does not include any equity securities, then the
Warrant shall terminate immediately prior to the effectiveness of such
Fundamental Transaction or (y) if the consideration to be received in such
Fundamental Transaction does include equity securities (an “Equity Security
Fundamental Transaction”), then the Holder shall have the right thereafter to
receive, upon exercise of this Warrant, the same amount and kind of securities,
cash or property as it would have been entitled to receive upon the occurrence
of such Equity Security Fundamental Transaction if it had been, immediately
prior to such Equity Security Fundamental Transaction, the holder of the number
of Warrant Shares then issuable upon exercise in full of this Warrant (the
“Alternate Consideration”). The aggregate Exercise Price for this Warrant will
not be affected by any such Equity Security Fundamental Transaction, but the
Company shall apportion such aggregate Exercise Price among the Alternate
Consideration in a reasonable manner reflecting the relative value of any
different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be
received in an Equity Security Fundamental Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Equity Security Fundamental
Transaction. At the Holder’s request, any successor to the Company or
surviving entity in such Equity Security Fundamental Transaction shall issue to
the Holder a new warrant consistent with the foregoing provisions and
evidencing the Holder’s right to purchase the Alternate Consideration for the
aggregate Exercise Price upon exercise thereof. The terms of any agreement
pursuant to which an Equity Security Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply with
the provisions of this paragraph (c) and insuring that the Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent
transaction analogous to an Equity Security Fundamental Transaction. If any
Equity Security Fundamental Transaction constitutes or results in a Change of
Control, then at the request of the Holder delivered before the 90th day after
such Equity Security Fundamental Transaction, the Company (or any such
successor or surviving entity) will purchase the Warrant from the Holder for a
purchase price, payable in cash within five Trading Days after such request
(or, if later, on the effective date of the Equity Security Fundamental
Transaction), equal to the Black Scholes value of the remaining unexercised
portion of this Warrant on the date of such request. “Change of Control” means
the occurrence of any of the following in one or a series of related
transactions: (i) an acquisition after the date hereof by an individual or
legal entity or “group” (as described in Rule 13d-5(b)(1) under the Exchange
Act) of more than one-third of the voting rights or equity interests in the
Company; (ii) a replacement of more than one-half of the members of the
Company’s board of directors that is not approved by those individuals who are
members of the board of directors on the date hereof (or other directors
previously approved by such individuals); (iii) a merger or consolidation of
the Company or any Subsidiary or a sale of more than one-third of the assets of
the Company in one or a series of related transactions, unless following such
transaction or series of transactions, the holders of the Company’s securities
prior to the first such transaction continue to hold at least two-thirds of the
voting rights and equity interests in of the surviving entity or acquirer of
such assets; (iv) a recapitalization,

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reorganization or other transaction
involving the Company or any Subsidiary that constitutes or
results in a transfer of more than one-third of the voting rights or
equity interests in the Company; (v) consummation of a “Rule 13e-3 transaction”
as defined in Rule 13e-3 under the Exchange Act with respect to the Company; or
(vi) the execution by the Company or its controlling stockholders of an
agreement providing for or reasonably likely to result in any of the foregoing
events.


          (d)     Subsequent Equity
Sales.




		
	 	          (i)     If, at
any time while this Warrant is outstanding, the Company
or any Subsidiary issues additional shares of Common Stock or rights,
warrants, options or other securities or debt convertible, exercisable or
exchangeable for shares of Common Stock or otherwise entitling any Person
to acquire shares of Common Stock (collectively, “Common Stock
Equivalents”) at a price per share of Common Stock or, in the case of
Common Stock Equivalents, entitling any person to purchase Common Stock
at a price per share of Common Stock (in either case, the “Effective
Price”) less than $5.75, then the Exercise Price shall be reduced to
equal the Effective Price.




		
	 	          (ii)     If, at
any time while this Warrant is outstanding, the Company
or any Subsidiary issues Common Stock Equivalents with an Effective Price
or a number of underlying shares that floats or resets or otherwise
varies or is subject to adjustment based (directly or indirectly) on
market prices of the Common Stock (a “Floating Price Security”), then,
for purposes of applying the preceding paragraphs in connection with any
subsequent exercise, the Effective Price will be determined separately on
each Exercise Date and will be deemed to equal the lowest Effective Price
at which any holder of such Floating Price Security is entitled to
acquire Common Stock on such Exercise Date (regardless of whether any
such holder actually acquires any shares on such date).
	 
	 	          (iii)     Notwithstanding the
foregoing, no adjustment will be made
under this paragraph (d) in respect of (A) any issuance of Common Stock
or grant of options to employees, officers, directors of or consultants
or advisors to the Company, in each case, pursuant to a stock-based plan
duly approved by the Company’s board of directors, (B) any issuance upon
exercise, conversion or exchange of any Common Stock Equivalents
described in Schedule 3.1(f) of the Purchase Agreement (provided that
such exercise or conversion occurs in accordance with the terms thereof,
without amendment or modification), (C) the issuance of securities
pursuant to the Company’s bona fide acquisition of another corporation,
or all or a portion of its assets, by merger, purchase of assets or other
corporate reorganization in each case, as approved by the Company’s board
of directors and not for the principal purpose of raising cash, (D) the
issuance of securities issued to banks or equipment lessors, provided
such issuance is approved by the Company’s board of directors and is not
for the principal purpose of raising equity capital, (E) the issuance of
securities in connection with a sponsored research, collaboration,
technology license, development, OEM, marketing joint venture or
development agreement or strategic partnership or similar agreement
approved by the Company’s board of directors, a primary purpose of which
is not to raise equity capital, or (F) the issuance of Common Stock
pursuant to Section 4.9 of the Purchase Agreement.



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          (e)     Number of Warrant
Shares. Simultaneously with any adjustment to the
Exercise Price pursuant to paragraphs (a), (b) or (d) of this Section, the
number of Warrant Shares that may be purchased upon exercise of this Warrant
shall be increased or decreased proportionately, so that after such adjustment
the aggregate Exercise Price payable hereunder for the increased or decreased
number of Warrant Shares shall be the same as the aggregate Exercise Price in
effect immediately prior to such adjustment.



          (f)     Calculations. All
calculations under this Section 8 shall be made to
the nearest cent or the nearest 1/100th of a share, as applicable. The number
of shares of Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company, and the disposition
of any such shares shall be considered an issue or sale of Common Stock.



          (g)     Notice of Adjustments.
Upon the occurrence of each adjustment
pursuant to this Section 8, the Company at its expense will promptly compute
such adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the
adjusted Exercise Price and adjusted number or type of Warrant Shares or other
securities, cash or property issuable upon exercise of this Warrant (as
applicable), describing the transactions giving rise to such adjustments and
showing in detail the facts upon which such adjustment is based. Upon written
request, the Company will promptly deliver a copy of each such certificate to
the Holder and to the Company’s Transfer Agent.



          (h)     Notice of Corporate
Events. If the Company (i) declares a dividend or
any other distribution of cash, securities or other property in respect of its
Common Stock, including without limitation any granting of rights or warrants
to subscribe for or purchase any capital stock of the Company or any
Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction
or (iii) authorizes the voluntary dissolution, liquidation or winding up of the
affairs of the Company, then the Company shall deliver to the Holder a notice
describing the material terms and conditions of such transaction, at least 20
calendar days prior to the applicable record or effective date on which a
Person would need to hold Common Stock in order to participate in or vote with
respect to such transaction, and the Company will take all steps reasonably
necessary in order to insure that the Holder is given the practical opportunity
to exercise this Warrant prior to such time so as to participate in or vote
with respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.



     9.          Payment of Exercise
Price. The Holder shall pay the Exercise Price in
one of the following manners:


          (a)     Cash Exercise. The
Holder may deliver immediately available funds; or



          (b)     Cashless Exercise. The
Holder may satisfy its obligation to pay the
Exercise Price through a “cashless exercise,” in which event the Company shall
issue to the Holder the number of Warrant Shares determined as follows:



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X = Y [(A-B)/A]
	where:	 	 
	 	 	
X = the number of Warrant Shares to be issued to the Holder.
	 	 	 
	 	 	
Y = the number of Warrant Shares with respect to which
this Warrant is being exercised.
	 	 	 
	 	 	
A = the average of the Closing Prices for the five
Trading Days immediately prior to (but not including)
the Exercise Date.
	 	 	 
	 	 	
B = the Exercise Price.



For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced, on
the date this Warrant was originally issued pursuant to the Purchase Agreement.


     10.          Limitation on Exercise.


          (a)     Notwithstanding
anything to the contrary contained herein, the number
of shares of Common Stock that may be acquired by the Holder upon any exercise
of this Warrant (or otherwise in respect hereof) shall be limited to the extent
necessary to insure that, following such exercise (or other issuance), the
total number of shares of Common Stock then beneficially owned by such Holder
and its Affiliates and any other Persons whose beneficial ownership of Common
Stock would be aggregated with the Holder’s for purposes of Section 13(d) of
the Exchange Act does not exceed 9.999% (the “Maximum Percentage”) of the total
number of issued and outstanding shares of Common Stock (including for such
purpose the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Each delivery of an Exercise Notice hereunder will constitute a representation
by the Holder that it has evaluated the limitation set forth in this paragraph
and determined that issuance of the full number of Warrant Shares requested in
such Exercise Notice is permitted under this paragraph. The Company’s
obligation to issue shares of Common Stock in excess of the limitation referred
to in this Section shall be suspended (and shall not terminate or expire
notwithstanding any contrary provisions hereof) until such time, if any, as
such shares of Common Stock may be issued in compliance with such limitation.
By written notice to the Company, the Holder may waive the provisions of this
Section or increase or decrease the Maximum Percentage to any other percentage
specified in such notice, but (i) any such waiver or increase or decrease will
not be effective until the 61st day after such notice is delivered to the
Company, and (ii) any such waiver or increase or decrease will apply only to
the Holder and not to any other holder of Warrants.



          (b)     Notwithstanding
anything to the contrary contained herein, if the
Trading Market is the New York Stock Exchange, the Nasdaq National Market or any other market or

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exchange with similar applicable rules, then the maximum
number of shares of Common Stock that the Company may issue pursuant to the
Transaction Documents at an effective purchase price less
than the Closing Price on the Trading Day immediately preceding the
Closing Date equals 4,319,900 shares (the “Issuable Maximum”), unless the
Company obtains the Stockholder Approval. If, at the time any Purchaser
requests an exercise of any of the Warrants, the Actual Minimum (excluding any
shares issued or issuable at an effective purchase price in excess of the
Closing Price on the Trading Day immediately preceding the Closing Date)
exceeds the Issuable Maximum and if the Company has not previously obtained the
Stockholder Approval, then the Company shall issue to the Purchaser requesting
such exercise a number of shares of Common Stock not exceeding such Purchaser’s
pro-rata portion of the Issuable Maximum (based on such Purchaser’s share
(vis-à-vis other Purchasers) of the aggregate purchase price paid under the
Purchase Agreement and taking into account any Shares and Warrant Shares
previously issued to such Purchaser), and the remainder of the Warrant Shares
issuable in connection with such exercise or conversion (if any) shall
constitute “Excess Shares” pursuant to Section 10(c) below. For the purposes
hereof, “Actual Minimum” shall mean, as of any date, the maximum aggregate
number of shares of Common Stock then issued or potentially issuable in the
future pursuant to the Transaction Documents, including any Underlying Shares
issuable upon exercise in full of all Warrants, ignoring any limits on the
number of shares of Common Stock that may be owned by a Purchaser at any one
time. For the purposes hereof, “Stockholder Approval” shall mean the vote of
stockholders as may be required by the applicable rules and regulations of the
Trading Market applicable to approve the issuance of shares of Common Stock in
excess of the Issuable Maximum. No Shares or Warrant Shares shall be entitled
to vote for purposes of the Stockholder Approval.


          (c)     In the event that any
Purchaser’s receipt of shares of Common Stock
upon exercise of this Warrant is restricted based on the Issuable Maximum, the
Company shall either: (i) use its best efforts to obtain the Stockholder
Approval as soon as is reasonably possible, but in any event not later than the
60th day after the event giving rise to such Excess Shares, or (ii) within five
Trading Days after such event, pay cash to such Purchaser, as liquidated
damages and not as a penalty, in an amount equal to the difference between the
Black Scholes value of this Warrant assuming the limitations in Section 10(b)
were not applicable and the Black Scholes value of this Warrant after giving
effect to the limitations in Section 10(b), measured as of the date of such
event or, if greater, the date of payment (such difference, the “Cash Amount”).
If the Company elects the first option under the preceding sentence and the
Company fails to obtain the Stockholder Approval on or prior to the 60th day
after such event, then within three Trading Days after such 60th day, the
Company shall pay the Cash Amount to such Purchaser, as liquidated damages and
not as a penalty. In the event the Company fails to pay the Cash Amount in a
timely manner, such payment until paid in full shall bear interest at the rate
of 1.5% per month or such lesser maximum rate that is permitted to be paid by
applicable law (prorated for partial months).



     11.     Fractional Shares. The Company
shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
If any fraction of a Warrant Share would, except for the provisions of this
Section, be issuable upon exercise of this Warrant, the number of Warrant
Shares to be issued will be rounded up to the nearest whole share.


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     12.     Notices. Any and all notices or
other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in
writing and shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified in this Section prior to
6:30 p.m. (New York City time) on a Trading Day, (ii) the next Trading Day
after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified in this Section on a day that
is not a Trading Day or later than 6:30 p.m. (New York City time) on any
Trading Day, (iii) the Trading Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices or communications shall be as set forth in the Purchase Agreement.


     13.     Warrant Agent. The Company
shall serve as warrant agent under this
Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new
warrant agent. Any corporation into which the Company or any new warrant agent
may be merged or any corporation resulting from any consolidation to which the
Company or any new warrant agent shall be a party or any corporation to which
the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder’s
last address as shown on the Warrant Register.


     14.     Exercise at the Option of the
Company. Subject to the limitations set
forth in Section 10, at any time on or after June 18, 2005, the Company may
require the Holder to exercise at the Exercise Price all of the Warrants if the
average of the Closing Prices during any 20 consecutive Trading Days is greater
than $15.78 (subject to adjustments for stock splits, recapitalizations and
similar events). Within 10 Trading Days of any such 20 Trading Day period, the
Company may elect its right to require the Holder to exercise the Warrant by
delivering to the Holder a written notice of such election. The Holder shall
exercise the Warrant within 10 calendar days of its receipt of the Company’s
written notice.


     15.     Miscellaneous.


          (a)     This Warrant shall be
binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to any
Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Warrant. This Warrant may be amended only
in writing signed by the Company and the Holder or their respective successors
and assigns.



          (b)     The Company will not,
by amendment of its governing documents or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company (a) will not
increase the par value of any Warrant Shares above the amount payable therefor
on such

10






 





exercise, (b) will take all such action as may be reasonably necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable Warrant Shares on the exercise of this
Warrant, and (c) will not close its stockholder books or records in any
manner which interferes with the timely exercise of this Warrant.


          (c)     Governing Law; Venue;
Waiver of Jury Trial. The corporate laws of the
State of Delaware shall govern all issues concerning the relative rights of the
Company and its stockholders. All questions concerning the construction,
validity, enforcement and interpretation of this Warrant shall be governed by
and construed and enforced in accordance with the laws of the State of Texas.
Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of Dallas, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the
enforcement of any of the Transaction Documents), 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 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 via registered or
certified mail or overnight delivery (with evidence of delivery) 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. The Company hereby waives all
rights to a trial by jury.



          (d)     The headings herein are
for convenience only, do not constitute a part
of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.



          (e)     In case any one or more
of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected
or impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,

SIGNATURE PAGE FOLLOWS]



11






 





     IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly
executed by its authorized officer as of the date first indicated above.



	 	 	 	 	 
	 	 	INTROGEN THERAPEUTICS, INC.
	 	 	 	 	 
	 	 	By:	 
	 	 	 	

	 	 	
Name:
	 
	 	 	 	

	 	 	
Title:
	 
	 	 	 	




12






 



FORM OF EXERCISE NOTICE



(To be executed by the Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)


To Introgen Therapeutics, Inc.


The undersigned is the Holder of Warrant
No.          (the “Warrant”) issued by
Introgen Therapeutics, Inc., a Delaware corporation (the “Company”).
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.



	1.	 	The Warrant is currently exercisable to purchase a total
of          
Warrant Shares.
	 
	2.	 	The undersigned Holder hereby exercises its right to
purchase          
Warrant Shares pursuant to the Warrant.
	 
	3.	 	The Holder intends that payment of the Exercise Price shall be made as
(check one):




	 	 	 	 
	     	 	 	
           “Cash Exercise” under Section 9(a)
	 
	     	 	 	
           “Cashless Exercise” under Section 9(b)




	4.	 	If the holder has elected a Cash Exercise, the holder shall pay the sum
of $          to the Company in accordance with the terms of the
Warrant.
	 
	5.	 	Pursuant to this exercise, the Company shall deliver to the
holder           
Warrant Shares in accordance with the terms of the
Warrant.
	 
	6.	 	Following this exercise, the Warrant shall be exercisable to purchase a
total of          Warrant Shares.




	 	 	 	 	 
	Dated:          ,
     	 	Name of Holder:
	 	 	 	 	 
	 	 	
(Print)
	 	 
	 	 	 	

	 	 	
By:	 	 
	 	 	 	

	 	 	
Name:	 	 
	 	 	 	

	 	 	
Title:	 	 
	 	 	 	

	 	 	 	 	 
	 	 	(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)



 






 



FORM OF ASSIGNMENT



     [To be completed and signed only upon transfer of
Warrant]


     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers
unto                 
the right represented by the within
Warrant to purchase        shares of Common Stock of Introgen
Therapeutics, Inc. to which the within Warrant relates and
appoints                 
attorney to transfer said right on the books of Introgen
Therapeutics, Inc. with full power of substitution in the premises.


     Dated:          ,
     



	 	 	 
	 	 	


(Signature must conform in all respects to name
of holder as specified on the face of the
Warrant)
	 	 	 
	 	 	


Address of Transferee
	 	 	 
	 	 	


	 	 	 
	 	 	





In the presence of: