exv10w46



 




Exhibit 10.46

INTROGEN THERAPEUTICS, INC.




PLACEMENT AGENT AGREEMENT




December 6, 2004




MULIER CAPITAL LIMITED

34 Eccleston Square

London SW1V1NS

London, United Kingdom



Dear Sirs:




     INTROGEN THERAPEUTICS, INC., a Delaware corporation (the “Company”),
proposes to sell to the Investors (defined below), pursuant to the terms of
this Placement Agent Agreement (this “Agreement”) and the Subscription
Agreements in the form of Exhibit A attached hereto (the “Subscription
Agreements”) entered into with the Investors identified therein (each a
"Investor” and, collectively, the “Investors”), an aggregate of up to 4,000,000
shares of Common Stock, $0.001 par value (the “Common Stock”), of the Company.
The aggregate of up to 4,000,000 shares so proposed to be sold is hereinafter
referred to as the “Stock.” The Company hereby confirms its agreement with
Mulier Capital Limited as the placement agent for the sale of the Stock to the
Investors (the “Placement Agent”).



1. AGREEMENT TO ACT AS PLACEMENT AGENT; PLACEMENT OF SECURITIES. Subject to
all the terms and conditions of this Agreement:





(a) The Company hereby authorizes the Placement Agent to act as its agent
to solicit from potential purchasers mutually agreed upon by the
Placement Agent and the Company offers for the purchase of all or part of
the Stock from the Company in connection with the proposed offering of
the Stock.




(b) The Company has filed a registration statement on Form S-3
(Registration File No. 333-107799), which became effective as of August
25, 2003, for the registration of the Stock under the Securities Act of
1933, as amended, (the “Securities Act”). The Company will file with the
United States Securities and Exchange Commission (the “Commission”)
pursuant to Rule 424(b) under the Securities Act, and the rules and
regulations of the Commission promulgated thereunder, a supplement to the
form of prospectus included in such registration statement relating to a
placement of the Stock and the plan of distribution thereof and has
advised the Placement Agent of all further information (financial and
other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the
date of this Agreement, as applicable, is hereinafter called the
“Registration Statement;”



 









 






such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the “Base Prospectus;” and the
supplemented form of prospectus, in the form in which it will be filed
with the Commission pursuant to Rule 424(b) (including the Base
Prospectus as so supplemented) is hereinafter called a “Prospectus
Supplement.” The Placement Agent agrees, as agent of the Company, to use
its best efforts to solicit offers to purchase the Stock from the Company
on the terms and subject to the conditions set forth in the Base
Prospectus and the Registration Statement. The Placement Agent shall make
commercially reasonable efforts to assist the Company in obtaining
performance by each Investor whose offer to purchase Stock has been
solicited by the Placement Agent and accepted by the Company, but the
Placement Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason.




(c) The Placement Agent represents and warrants to the Company that (i)
it is a duly registered, licensed and qualified corporate finance advisor
pursuant to the regulations and requirements of the Financial Services
Authority (the “FSA”) and any other applicable regulatory body governing
the offer or sale of securities in the United Kingdom, and is licensed
and qualified as such in any jurisdiction in which the Placement Agent
offers, or has offered, any of the Stock, (ii) its participation in the
offering and sale of the Stock will be in accordance with the provisions
of the Securities Act, the regulations promulgated pursuant thereto, all
other regulations of the Commission, the rules and regulations of the
National Association of Securities Dealers in the United States, the
provisions of the Financial Services and Markets Act 2000, the
regulations issued thereunder (including without limitation the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2001), the
Public Offers of Securities Regulations 1995, and the applicable
requirements (including the relevant conduct of business rules) of the
FSA and any other applicable regulatory body governing the offer or sale
of securities in the United Kingdom, (iii) it has not distributed and
will not distribute prior to the closing date any offering material in
connection with the offer and sale of the Stock, or any other Company
securities, other than the Registration Statement and the Base
Prospectus, and (iv) entry by the Company into the Subscription
Agreements will not result in the Company being in breach of the
provisions of the Financial Services and Markets Act 2000, the
regulations issued thereunder (including without limitation the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2001), the
Public Offers of Securities Regulations 1995, and the applicable
requirements (including the relevant conduct of business rules) of the
FSA and any other applicable regulatory body governing the offer or sale
of securities in the United Kingdom.




(d) Subject to the provisions of this Section 1, offers for the purchase
of Stock may be solicited by the Placement Agent as agent for the Company
at such times and in such amounts as agreed by the Placement Agent and
the Company. The Placement Agent shall communicate to the Company, orally
or in writing, each reasonable offer to purchase Stock received by it as
agent of the Company. The



2









 






Company shall have the sole right to accept offers to purchase the Stock
and may reject any such offer, in whole or in part, in its sole
discretion. The Placement Agent shall have the right, in its discretion
reasonably exercised, without notice to the Company, to reject any offer
to purchase Stock received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein.




(e) The purchases of the Stock by the Investors shall be evidenced by the
execution of the Subscription Agreements.



(f) As compensation for services rendered, on the Closing Date (as defined
below) the Company shall pay to the Placement Agent by wire transfer of
immediately available funds to an account or accounts designated by the
Placement Agent, an aggregate amount equal to five percent (5.0%) of the gross
proceeds received by the Company from the sale of the Stock on such Closing
Date. In addition, if (i) the Closing Date is on or prior to December 15, 2004
and (ii) there has not been, as determined by the Company in its reasonable
discretion, any significant or suspicious trading activity in the Company’s
securities prior to the Closing Date indicating any market knowledge of the
placement or any other proposed transaction, the Company shall issue to
Placement Agent or its designee warrants to purchase a number of shares of the
Company’s common stock equal to one and one-fourth percent (1 1/4%) of the
aggregate gross proceeds received by the Company in one or more Closings, at a
per share purchase price equal to one hundred percent (100%) of the per share
purchase price of the Company’s shares issued at such Closing or Closings;
provided, however, that any such warrants shall be to purchase no fewer than
187,500 shares of the Company’s common stock if aggregate gross proceeds of at
least U.S. $15,000,000 are received by the Company at the Closing or Closings.
Further, if a Financing of US $20 million or more is attained, the minimum
number of share warrants will equal 275,000 and amounts in excess of US $20
million will earn share warrants at the increased rate of one and one-half
percent (1.5%) of the Financing amount.




(g) No Stock which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by
the Company, until such Stock shall have been delivered to the Investor
thereof against valid payment by such Investor.



2. THE CLOSING. The time and date of any closing (each a “Closing”) shall be
at 9:00 A.M., local time, on or about December 8, 2004 (the “Closing Date”) at
the office of Wilson Sonsini Goodrich & Rosati, counsel for the Company, at
8911 Capital of Texas Highway North, Westech 360, Suite 3350, Austin, Texas, or
another time and place mutually agreed by the parties Subject to the terms
and conditions hereof, payment of the purchase price for the Stock shall be
made in United States dollars to the Company by United States Federal funds
wire transfer, against delivery of the certificates for the Stock, through the
facilities of The Depository Trust Company (“DTC”), to Investor or its
designee, and shall be registered in such name or names and shall be in such




3









 








denominations, as the Investor may request no later than one business day
following its execution of a Subscription Agreement for shares of the Stock.




3. ADDITIONAL REPRESENTATIONS AND COVENANTS. The Placement Agent represents,
warrants and agrees that it has not (i) engaged in any short selling or short
sales “against the box” in the Company’s securities, (ii) established or
increased any “put equivalent position” as defined in Rule 16(a)-1(h) under the
Securities Exchange Act of 1934, as amended, with respect to the Company’s
securities, or (iii) engaged in any purchase or sale, or made any offer to
purchase or offer to sell, derivative securities relating to the Company’s
securities, whether or not issued by the Company, such as exchange traded
options to purchase or sell the Company’s securities (“puts” and “calls”),
within the past ninety (90) trading days. The Placement Agent further
covenants with the Company that, for a period of twelve (12) months following
the date of this Agreement, it shall not engage in any such activities set
forth in clauses (i) through (iii) above with respect to the Company’s
securities.




4. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Placement Agent, the Investors,
the Company, and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person other
than the persons mentioned in the preceding sentence any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person




5. SURVIVAL. Notwithstanding any investigation made by any party to this
agreement, the provisions of this Agreement shall survive the execution of this
Agreement, the delivery to the Investor of the Stock being purchased and the
payment therefor.




6. NOTICES. All statements, requests, notices and agreements hereunder shall
be in writing, and:





(a) if to the Placement Agent, shall be delivered or sent by mail, telex
or facsimile transmission to:



	 	 	 
	

	 	Mulier Capital Limited
	

	 	34 Eccleston Square
	

	 	London SW1V1NS
	

	 	London, United Kingdom
	

	 	Fax: 020 7821 5999








(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to:



4









 





	 	 	 
	

	 	Introgen Therapeutics, Inc.
	

	 	301 Congress Avenue, Suite 1850
	

	 	Austin, Texas 78701
	

	 	Attention: Chief Executive Officer
	

	 	Phone: (512) 708-9310
	

	 	Fax: (512) 708-9311
	 
	 	 
	

	 	with copies to:
	 
	 	 
	

	 	Wilson Sonsini Goodrich & Rosati, P.C.
	

	 	8911 Capital of Texas Highway
	

	 	Westech 360, Suite 3350
	

	 	Austin, Texas 78759-8497
	

	 	Attention: Christopher J. Ozburn
	

	 	Phone: (512) 338-5400
	

	 	Fax: (512) 338-5499
	 
	 	 
	

	 	and:
	 
	 	 
	

	 	Wilson & Varner, LLP
	

	 	301 Congress Avenue, Suite 2025
	

	 	Austin, Texas 78701
	

	 	Attention: Rodney Varner
	

	 	Phone: (512) 320-4160
	

	 	Fax: (512) 495-9441







7. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.




8. GENERAL. This Agreement and the Confidential Disclosure Agreement between
the parties effective October 26, 2004 constitute the entire agreement of the
parties to this Agreement and supersede all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect
to the subject matter hereof. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and will not be
deemed to be part of this Agreement. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by the Company and
the Placement Agent.




9. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which will constitute an original, but all of which, when taken
together, will constitute but one instrument, and will become effective when
one or more counterparts have been signed by each party hereto and delivered to
the other parties.




5









 








     If the foregoing is in accordance with your understanding of the agreement
between the Company and the Placement Agent, kindly indicate your acceptance in
the space provided for that purpose below.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	INTROGEN THERAPEUTICS, INC.
	 
	 	 	 	 
	

	 	By:	 	/s/ James W. Albrecht, Jr.
	

	 	 	 	

	

	 	 	 	Name: James W. Albrecht, Jr.
	

	 	 	 	Title:   Chief Financial Officer







Accepted as of

the date first above written:



MULIER CAPITAL LIMITED




	 	 	 
	By:
	 	/s/ Pieter Mulier
	

	 	

	

	 	Name:  Pieter Mulier
	

	 	Title:    CEO







6









 






Exhibit A




Form of Subscription Agreement