-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VuIq9qMeegstfQaCgO7LgSkSQ/qptW0MbxJ4VLF3XCb6UAreFZjdd4Qd3a3tXgpm 2csQ65xqZ9DIWCBAiYD/7g== 0000891554-01-503447.txt : 20010713 0000891554-01-503447.hdr.sgml : 20010713 ACCESSION NUMBER: 0000891554-01-503447 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010712 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTROGEN THERAPEUTICS INC CENTRAL INDEX KEY: 0001018710 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 742704230 FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-61001 FILM NUMBER: 1680171 BUSINESS ADDRESS: STREET 1: 301 CONGRESS AVE STREET 2: SUITE 1850 CITY: AUSTIN STATE: TX ZIP: 78701 BUSINESS PHONE: 5127089310 MAIL ADDRESS: STREET 1: 301 CONGRESS AVE STREET 2: SUITE 1850 CITY: AUSTIN STATE: TX ZIP: 78701 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RHONE POULENC RORER INC CENTRAL INDEX KEY: 0000217028 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 231699163 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 500 ARCOLA RD STREET 2: P O BOX 1200 M/S 5B14 CITY: COLLEGEVILLE STATE: PA ZIP: 19426-0107 BUSINESS PHONE: 6104548000 FORMER COMPANY: FORMER CONFORMED NAME: RORER GROUP INC DATE OF NAME CHANGE: 19900731 FORMER COMPANY: FORMER CONFORMED NAME: RORER AMCHEM INC DATE OF NAME CHANGE: 19770604 SC 13D 1 d26243_sc13d.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.....)* INTROGEN THERAPEUTICS, INC. (Name of Issuer) COMMON STOCK, PAR VALUE $0.001 PER SHARE (Title of Class of Securities) 46119F 10 7 (CUSIP Number) Edward H. Stratemeier Vice President Rhone-Poulenc Rorer, Inc. 300 Somerset Corporate Boulevard Bridgewater, New Jersey 08807 908-243-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 2, 2001 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box |_|. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information that would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 1 CUSIP No. 46119F 10 7 1) Name of Reporting Person: Rhone-Poulenc Rorer, Inc. I.R.S. Identification Nos. of Above Persons (entities only): 23-1699163 2) Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [ ] 3) SEC Use Only 4) Source of Funds (See Instructions) Working Capital 5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] 6) Citizenship or Place of Organization Pennsylvania 7) Sole Voting Power 6,312,614 (1) Number of -------------------------------------------------------------- Shares 8) Shared Voting Power Beneficially 0 Owned by -------------------------------------------------------------- Each 9) Sole Dispositive Power Reporting 6,312,614 (1) Person With -------------------------------------------------------------- 10) Shared Dispositive Power 0 11) Aggregate Amount Beneficially Owned by Each Reporting Person 6,312,614 12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] 13) Percent of Class Represented by Amount in Row (11) 26.8% (2) 14) Type of Reporting Person (See Instructions) CO - ---------------- (1) Of the total number of shares of common stock, par value $0.001 per share (the "Common Stock"), of Introgen Therapeutics, Inc. (the "Company") covered by this item (the "Subject Shares"), 3,968,893 shares were previously reported under a Schedule 13G 2 dated February 13, 2001. The balance of the Subject Shares are issuable upon conversion of shares of Series A Non-Voting Convertible Preferred Stock of the Company that were acquired on July 2, 2001. (2) Beneficial ownership percentages set forth herein assume that at as of the date of this report, there were 23,568,337 shares of Common Stock outstanding. Pursuant to Rule 13d-3 under the Securities Exchange Act, as amended, 2,343,721 shares of Common Stock issuable upon conversion of the Introgen Series A Non-Voting Convertible Preferred Stock and deemed to be beneficially owned by the reporting person are also assumed to be outstanding for purposes of computing these percentages. 3 This Schedule 13D is being filed on behalf of Rhone-Poulenc Rorer, Inc., a Pennsylvania corporation (the "Reporting Entity"), and relates to the common stock, par value $0.001 per share, of Introgen Therapeutics, Inc., a Delaware corporation (the "Company"). Unless the context otherwise requires, references herein to the "Common Stock" are to the shares of common stock of the Company, par value $0.001 per share. ITEM 1. SECURITY AND ISSUER. The securities to which this Statement on Schedule 13D relates are shares of Common Stock of the Company. The address of the principal executive offices of the Company is 301 Congress Avenue, Suite 1850, Austin, Texas 78701. ITEM 2. IDENTITY AND BACKGROUND. (a) - (c) , (f) This statement is being filed by the Reporting Entity, which is incorporated inPennsylvania. The address of the principal business and principal office of the Reporting Entity is 300 Somerset Corporate Boulevard, Bridgewater, New Jersey 08807. The principal business of the Reporting Entity is to act as the holding company for a portion of the U.S. operations of Aventis S.A., a world leader in pharmaceuticals and agriculture headquartered in Strasbourg, France.] Information as to the executive officers and directors of the Reporting Entity shall be set forth in Exhibit 99.1 hereto. Information as to the executive officers and directors of Aventis S.A. shall be set forth in Exhibit 99.2 hereto. (d) - (e) During the last five years, neither the Reporting Entity nor, to its knowledge, any of the persons listed on Exhibit 99.1 or Exhibit 99.2 hereto, (1) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (2) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The Subject Shares covered by this statement consist of two parts: (1) 3,968,893 shares (the "Original Introgen Shares") that were issued upon conversion of preferred stock of the Company; and (2) 2,343,721 shares that are issuable upon conversion of Series A Non-Voting Convertible Preferred Stock of Introgen acquired on July 2, 2001. The Original Introgen Shares were issued upon conversion of convertible preferred stock of Introgen that was acquired in accordance with a stock purchase agreement with the Company dated October 1994 for an aggregate purchase price of approximately $17.1 million. Pursuant to the terms of this preferred stock, these shares of preferred stock were converted into shares of Common Stock automatically upon the closing of the Company's initial public offering in October 2000. The funds required to purchase the shares of convertible preferred stock of the Company were furnished from the working capital of the Reporting Entity. The New Introgen Shares are issuable upon conversion of Series A Non-Voting Convertible Preferred Stock of Introgen acquired on July 2, 2001. This Series A Non-Voting Preferred Stock was acquired under a Series A Non-Voting Convertible Preferred Stock Purchase Agreement with the Company dated as of June 30, 2001 for an aggregate purchase price of $25 million. The funds required to purchase such shares of preferred stock were furnished from the working capital of the Reporting Entity. 4 ITEM 4. PURPOSE OF TRANSACTION. The Reporting Entity acquired the Subject Shares in connection with a strategic alliance between affiliates of the Reporting Entity and the Company, described more fully below. Original Introgen Shares The Original Introgen Shares were issued upon conversion of convertible preferred stock of the Company. This preferred stock was purchased in a private placement under a 1994 stock purchase agreement. This agreement was entered into in connection with the establishment in 1994 of a collaborative relationship between affiliates of the Reporting Entity and the Company under two collaboration agreements for developing and commercializing certain gene therapy products. New Introgen Shares On July 2, 2001, the Company and certain affiliates of the Reporting Entity entered into various agreements (the "Transaction Agreements") by which the collaborative relationships established in 1994 between affiliates of the Reporting Entity and the Company were restructured. Under the Transaction Agreements, (1) the Company acquired all of the worldwide commercial rights to certain gene therapy products developed during the collaboration period and took over from affiliates of the Reporting Entity the further development and commercialization of such products, (2) the Company and certain affiliates of the Reporting Entity exchanged certain intellectual property rights and released various potential claims, (3) the Company agreed to make certain payments to affiliates of the Reporting Entity, (4) an affiliate of the Reporting Entity purchased for $25 million the Series A Non-Voting Convertible Preferred Stock, which is generally convertible into the New Introgen Shares at the option of the holder at any time and at the option of the Company at any time on or after August 1, 2001, (5) affiliates of the Reporting Entity relinquished the right to appoint a director to the board of directors of the Company, (6) affiliates of the Reporting Entity entered into a ten year voting agreement with the Company under which such affiliates agreed to vote the Subject Shares in accordance with the actions of the holders of not less than a majority of the Company's outstanding voting securities (other than those held by affiliates of the Reporting Entity), (7) the Company granted certain registration rights relating to the New Introgen Shares, including certain demand and piggyback registration rights, and (8) affiliates of the Reporting Entity agreed not to sell or transfer the Original Introgen Shares prior to October 3, 2001 and not to sell or transfer the New Introgen Shares prior to July 2, 2002. Exhibits and Incorporation by Reference The principal Transaction Agreements relating to the Subject Shares, namely the (1) Series A Non-Voting Convertible Preferred Stock Purchase Agreement, (2) Registration Rights Agreement, and (3) Voting Agreement, are filed herewith as Exhibits 1, 2 and 3 to this Schedule 13D and are incorporated into this Schedule 13D by this reference. In addition, the Series B Preferred Stock Purchase Agreement dated as of October 7, 1994, as amended by the Series C Preferred Stock Purchase Agreement, which contains certain demand and piggyback registration rights relating to the Original Introgen Shares, is filed herewith as Exhibit 4 to this Schedule 13D and is incorporated into this Schedule 13D by this reference. The summary above of the agreements and transactions described in this Schedule 13D is qualified in its entirety by the specific language of the agreements so incorporated by reference. The Reporting Entity continually reviews its investments in companies, including the Company, with which it has, or has had, a business or strategic relationship. Such reviews may include a variety of factors including but not limited to the Reporting Person's evaluation of the Company's business, prospects and financial condition and of the market for the Common Stock, contractual provisions relating to such investment, as well as general considerations such as prospects for the businesses of the Reporting Entity and its affiliates, liquidity needs, other opportunities, general economic conditions, money and stock market conditions and future developments. As a result of any such review, subject to 5 its contractual and other possible limitations, the Reporting Entity may at any time, or from time to time, acquire or dispose of securities of the Company in the future. Except as described above, the Reporting Entity does not have any plans or proposals that relate to or would result in any of the events described in paragraphs (a) through (j) of this Item. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) The Subject Shares represent approximately 26.8% of the Company's Common Stock outstanding at December 31, 2000, as adjusted to give effect to the issuance of the New Introgen Shares. Except as may be set forth in any subsequent amendment to this Schedule, neither the Reporting Entity nor any executive officer or director of the Reporting Entity, nor any of the persons listed on Exhibit 99.1 or Exhibit 99.2 hereto beneficially owns any shares of Common Stock other than through their beneficial ownership, if any, of stock of Aventis S.A. (b) The Reporting Entity, through its subsidiaries Rhone-Poulenc Rorer International (Holdings), Inc. (with respect to the Original Introgen Shares) and Aventis Pharmaceuticals Products Inc. (with respect to the New Introgen Shares), has sole power to vote and to dispose of the Subject Shares subject, however, to the terms of the agreements referred to in and incorporated by reference into Item 4 above. Neither any executive officer or director of the Reporting Entity nor, to the knowledge of the Reporting Entity, any of the persons listed on Exhibits 99.1 or 99.2 hereto has any power to vote or to direct the vote, or to dispose of or to direct the disposition of, the Subject Shares except to the extent to the extent that any such person may be deemed to have any such power by reason of such person's relationship to or position with the Reporting Entity. (c) Except as described in Item 4 of this statement, no transactions in the Common Stock have been effected by the Reporting Entity, or, to the knowledge of the Reporting Entity, any of the persons listed on Exhibit 99.1 or Exhibit 99.2 hereto, during the past 60 days. (d) None. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Except as set forth in this Schedule 13D, or in any amendment hereto, to the knowledge of the Reporting Entity, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 or listed on Exhibits 99.1 or 99.2 hereto, and between such persons and any person, with respect to any securities of the Company, including, but not limited to, transfer or voting of any of the securities of the Company, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees or profits, division of profits or loss, or the giving or withholding of proxies. 6 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 1 Series A Non-Voting Convertible Preferred Stock Purchase Agreement dated as of June 30, 2001. 2 Registration Rights Agreement dated as of June 30, 2001 3 Voting Agreement dated as of June 30, 2001 4 Series B Preferred Stock Purchase Agreement dated as of October 7, 1994, as amended by Series C Preferred Stock Purchase Agreement (incorporated by reference from Exhibits 10.33 and 10.5 to the Registration Statement on Form S-1 of the Company filed with the Securities and Exchange Commission (Registration No. 333 - 30582)). 99.1 Information concerning directors and executive officers of Rhone-Poulenc Rorer, Inc. (to be filed by amendment) 99.2 Information concerning members of the Supervisory Board and Management Board of Aventis S.A. (to be filed by amendment) 7 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated as of: July 12, 2001. Rhone-Poulenc Rorer, Inc. By: /s/ Edward H. Stratemeier --------------------------------- Name: Edward H. Stratemeier Title: Vice President 8 INDEX OF EXHIBITS The following exhibits are filed herewith: Exhibit Number Description 1 Series A Non-Voting Convertible Preferred Stock Purchase Agreement dated as of June 30, 2001. 2 Registration Rights Agreement dated as of June 30, 2001. 3 Voting Agreement dated as of June 30, 2001. 4 Series B Preferred Stock Purchase Agreement dated as of October 7, 1994, as amended by Series C Preferred Stock Purchase Agreement (incorporated by reference from Exhibits 10.33 and 10.5 to the Registration Statement on Form S-1 of the Company filed with the Securities and Exchange Commission (Registration No. 333 - 30582)) 99.1 Information concerning directors and executive officers of Rhone-Poulenc Rorer, Inc. (to be filed by amendment) 99.2 Information concerning members of the Supervisory Board and Management Board of Aventis S.A. (to be filed by amendment) 9 EX-1 2 d26243_ex1.txt PURCHASE AGREEMENT ------------------------ INTROGEN THERAPEUTICS, INC. SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT June 30, 2001 ------------------------ TABLE OF CONTENTS
Page ---- Section 1 Authorization and Sale of Convertible Preferred Stock.........................1 1.1 Authorization of Convertible Preferred................................1 1.2 Sale of Convertible Preferred.........................................1 Section 2 Closing Date; Delivery........................................................2 2.1 Closing Date..........................................................2 2.2 Delivery..............................................................2 Section 3 Representations and Warranties of the Company.................................2 3.1 Organization and Standing.............................................2 3.2 Capitalization; Ownership of Existing Subsidiaries....................3 3.3 Corporate Power; Authorization........................................3 3.4 No Conflict...........................................................4 3.5 Issuance and Delivery of the Shares and Conversion Shares.............4 3.6 SEC Documents; Financial Statements...................................4 3.7 Absence of Changes; Undisclosed Liabilities...........................5 3.8 Litigation............................................................5 3.9 Governmental Authorization; Third Party Consents......................5 3.10 Compliance with Laws..................................................6 3.11 Investment Company....................................................6 Section 4 Representations and Warranties of the Purchaser...............................6 4.1 Authorization.........................................................6 4.2 Investment Representations and Covenants of the Purchaser.............7 4.3 Receipt of Information................................................7 4.4 Further Limitations on Disposition....................................7 4.5 Legends...............................................................8 Section 5 Covenants of the Company......................................................8 5.1 Use of Proceeds.......................................................8 5.2 Listing on The Nasdaq National Market.................................8 Section 6 Documents to be Delivered and Actions to be Taken Prior to the Closing Date...9 6.1 Execution and Delivery of Registration Rights Agreement...............9 6.2 Execution and Delivery of Voting Agreement............................9 6.3 Filing and Delivery of Certificate of Designations....................9 6.4 Execution and Delivery of Compliance Certificate......................9 6.5 Execution and Delivery of Secretary's Certificate.....................9 6.6 Delivery of Additional Documents.....................................10
TABLE OF CONTENTS (continued)
Page ---- Section 7 Termination of Aventis Board Representation..................................10 Section 8 Miscellaneous................................................................10 8.1 Governing Law........................................................10 8.2 Survival.............................................................10 8.3 Successors and Assigns...............................................10 8.4 Entire Agreement; Amendment..........................................10 8.5 Notices..............................................................10 8.6 Delays or Omissions..................................................12 8.7 Expenses.............................................................12 8.8 Counterparts.........................................................12 8.9 Telecopy Execution and Delivery......................................12 8.10 Severability.........................................................12 8.11 Further Assurances...................................................13
EXHIBITS: A. Registration Rights Agreement B. Voting Agreement C. Certificate of Designations INTROGEN THERAPEUTICS, INC. SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT This Series A Non-Voting Convertible Preferred Stock Purchase Agreement (this "Agreement") is made as of June 30, 2001 by and between Introgen Therapeutics, Inc., a Delaware corporation (the "Company"), and Aventis Pharmaceuticals Products Inc., a Pennsylvania corporation (the "Purchaser"). In addition, Rhone-Poulenc Rorer International (Holdings), Inc., a Delaware corporation ("RPRIH"), is entering into this Agreement for the purpose of Section 7 only. RECITALS WHEREAS, the Company and the Purchaser are each parties to that certain Restated p53 and K-ras Agreement of even date herewith (the "P53 Agreement"), whereby each has agreed, among other things, to enter into (i) this Agreement, (ii) a Registration Rights Agreement of even date herewith and substantially in the form as that attached hereto as Exhibit A (the "Registration Rights Agreement"), and (iii) a Voting Agreement of even date herewith and substantially in the form as that attached hereto as Exhibit B (the "Voting Agreement" and collectively with the P53 Agreement, this Agreement and the Registration Rights Agreement, the "Transaction Agreements"); AGREEMENT In consideration of the mutual promises and covenants hereinafter set forth, the parties hereto mutually agree as follows: SECTION 1 AUTHORIZATION AND SALE OF CONVERTIBLE PREFERRED STOCK 1.1 Authorization of Convertible Preferred. The Company has authorized the sale and issuance of up to 100,000 shares of its Series A Non-Voting Convertible Preferred Stock, par value $0.001 (the "Convertible Preferred"), having the rights, privileges, preferences, restrictions and limitations as set forth in the Certificate of Designations (the "Certificate of Designations") in the form attached to this Agreement as Exhibit C. The Company's Restated Certificate of Incorporation filed with the Delaware Secretary of State on October 17, 2000 (the "Restated Certificate") authorizes the issuance of up to 5,000,000 shares of preferred stock, par value $0.001 (the "Preferred Stock"). 1.2 Sale of Convertible Preferred.Upon the terms of this Agreement, the Company will issue and sell to the Purchaser, and the Purchaser will purchase from the Company, at the Closing (as defined in Section 2.1), 100,000 shares of Convertible Preferred (the "Shares") at a purchase price of $250.00 per share, for the aggregate purchase price of $25,000,000 (the "Purchase Price"). SECTION 2 Closing Date; Delivery 2.1 Closing Date. The closing of the sale and purchase of the Shares hereunder shall be held at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 8911 Capital of Texas Highway, Suite 3350, Austin, Texas 78759, at 12:00 p.m., local time, on July 2, 2001 (the "Closing") or at such other time and place upon which the Company and the Purchaser shall mutually agree (the date of the Closing is hereinafter referred to as the "Closing Date"). 2.2 Delivery. Subject to the conditions set forth in Section 6, at the Closing, the Company will deliver to the Purchaser a certificate, registered in the Purchaser's name, representing the number of Shares to be issued on the Closing Date, against delivery of payment of the Purchase Price for the Shares by wire transfer in accordance with the Company's instructions provided at least one business day prior to the Closing. In addition, the parties will deliver the certificates, agreements and other documents as provided in Section 6. SECTION 3 Representations and Warranties of the Company The Company hereby represents and warrants to the Purchaser as of the Closing Date as follows: 3.1 Organization and Standing. Each of the Company and its subsidiaries has been duly organized and is validly existing and in good standing as a corporation under the laws of its respective jurisdiction of organization, with the corporate power and authority to own, lease and operate its respective properties and to conduct its business as is now being conducted. In addition, each of the Company and its subsidiaries is duly qualified to do business and in good standing as a foreign corporation in all other jurisdictions where its ownership or leasing of properties or the conduct of its business requires such qualification, except where the failure so to qualify or to be in good standing would not cause a material adverse change in or affect on the condition (financial or otherwise), properties, earnings, business, management, prospects, net worth or results of operations of the Company and its subsidiaries considered as a whole (a "Material Adverse Change"). No jurisdiction, other than the State of Delaware and the Kingdom of Sweden, has claimed, in writing or otherwise, that the Company or any of its subsidiaries is required to qualify as a foreign corporation or other entity therein, and neither the Company nor any of its subsidiaries files any franchise, income or other tax returns in any other jurisdiction based upon the ownership or use of property therein or the derivation of income therefrom or the conduct of business therein, unless so qualified. Each of the Company and its subsidiaries possesses all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits of and from all public regulatory or governmental agencies and bodies, all of which are valid and in full force and effect, to conduct its business as now being conducted, except where the failure to so possess would not cause a Material Adverse Change, and no such consent, approval, authorization, order, registration, qualification, license or permit contains a materially burdensome restriction. The Company owns or controls, directly or indirectly, only the following corporations, associations or other entities: -2- Gendux, Inc., a Delaware corporation, Gendux AB, a corporation incorporated under the laws of the Kingdom of Sweden and TMX Realty Corporation, a Delaware corporation. 3.2 Capitalization; Ownership of Existing Subsidiaries. (a) The authorized capital stock of the Company consists of 50,000,000 shares of common stock, par value $0.001 per share ("Common Stock") and 5,000,000 shares of Preferred Stock. As of June 22, 2001, 21,391,125 shares of Common Stock were issued and outstanding and no shares of Preferred Stock were outstanding. The outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable and have been issued in compliance with all federal and state securities laws and were not issued in violation of or subject to any preemptive rights or similar rights to subscribe for or purchase securities. Except as disclosed in the SEC Documents (as defined in Section 3.6) and the Financial Statements (as defined in Section 3.6) and related notes thereto, the Company does not have outstanding any options or warrants to purchase, or any preemptive rights or other rights to subscribe for or to purchase any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, rights, convertible securities or obligations, except for options granted subsequent to the date of information provided in the SEC Documents pursuant to the Company's employee and stock option plans as disclosed in the SEC Documents. (b) All outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, and are fully paid and nonassessable and are owned by the Company, directly or indirectly through one or more wholly owned subsidiaries, free and clear of any liens, encumbrances, equities or claims. 3.3 Corporate Power; Authorization. The Company has the full corporate power and authority and has taken all requisite corporate action to (a) execute and file the Certificate of Designations with the State of Delaware; (b) execute and deliver each of the Transaction Agreements to which it is a party and all other instruments and documents to be executed and delivered by the Company under the Transaction Agreements; (c) sell and issue the Shares; and (d) perform all of its obligations under each of the Transaction Agreements. Each of the Transaction Agreements has been duly and validly authorized, executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, except as the enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, conservatorship, readjustment of debt, moratorium or other similar laws affecting the rights of creditors or by general principles of equity, or to the extent that rights to indemnity and contribution under the Registration Rights Agreement may be limited by federal or state securities laws or the public policy underlying such laws. 3.4 No Conflict. The execution, delivery and performance by the Company of each of the Transaction Agreements and the consummation of the transactions contemplated in each of the Transaction Agreements (i) will not result in any violation of the provisions of the Restated Certificate, bylaws or other organizational documents of the Company or its subsidiaries, or any law, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of their properties or assets; and (ii) will not conflict with or -3- result in a breach or violation of any of the terms or provisions of or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties is or may be bound or result in the creation of a lien (except for such violation of any such law, order, rule or regulation or such conflict, breach, violation, default or lien that would not cause a Material Adverse Change). 3.5 Issuance and Delivery of the Shares and Conversion Shares. The Shares, when issued in compliance with the provisions of this Agreement, will be duly and validly issued, fully paid and nonassessable. The shares of Common Stock issuable upon conversion of the Shares (the "Conversion Shares") have been duly reserved for issuance upon conversion of the Shares and, when issued in compliance with the Certificate of Designations, will be duly and validly issued, fully paid and nonassessable. Neither the issuance and delivery of the Shares nor the issuance of the Conversion Shares are or will be at the time of issuance subject to preemptive or any other similar rights of the stockholders of the Company or any liens, encumbrances, equities or claims. 3.6 SEC Documents; Financial Statements. The Company has filed in a timely manner all documents that the Company was required to file with the Securities and Exchange Commission (the "Commission") under Sections 13, 14(a) and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since October 12, 2000. As of their respective filing dates, all documents filed by the Company with the Commission (the "SEC Documents") complied in all material respects with the requirements of the Exchange Act or the Securities Act of 1933, as amended (the "Securities Act"), as applicable. The SEC Documents did not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected in a subsequently filed SEC Document. The financial statements of the Company and the notes thereto included in the SEC Documents (the "Financial Statements") comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto. The Financial Statements have been prepared in accordance with generally accepted accounting principles consistently applied and fairly present the consolidated financial position of the Company and any subsidiaries at the dates thereof and the consolidated results of their operations and consolidated cash flows for the periods then ended (subject, in the case of unaudited statements, to normal, recurring adjustments). 3.7 Absence of Changes; Undisclosed Liabilities. Subsequent to the respective dates as of which information is given in the SEC Documents, and except as set forth or contemplated therein, neither the Company nor any of its subsidiaries has sustained material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, nor incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business, and there has not been any Material Adverse Change, or any change in the capital stock, short-term or long-term debt of the Company and its subsidiaries considered as a whole other than options granted pursuant to the Company's 1995 Stock Plan or 2000 Stock Option -4- Plan, shares issued upon exercise of options granted pursuant to the 1995 Stock Plan or 2000 Stock Option Plan, shares issued pursuant to the 2000 Employee Stock Purchase Plan and shares issued upon exercise of outstanding warrants. 3.8 Litigation. Except as set forth in the SEC Documents, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is subject, which, if determined adversely to the Company or any such subsidiary, might individually or in the aggregate, reasonably be expected to (i) prevent or adversely affect the transactions contemplated by the Transaction Agreements or the ability of the Company to perform its obligations under any of the Transaction Agreements; or (ii) result in a Material Adverse Change, and there is no valid basis for any such legal or governmental proceeding; and to the Company's knowledge, no such proceedings are threatened or contemplated against the Company or any subsidiary by governmental authorities or others. The Company is not a party nor subject to the provisions of any injunction, judgment, decree or order purporting to enjoin or restrain the execution, delivery or performance of any of its obligations under any of the Transaction Agreements. 3.9 Governmental Authorization; Third Party Consents. No approval, consent, compliance, exemption, authorization, registration, declaration or other filings or other action by, or notice to, or filing with (collectively, "Approvals") (a) any governmental authority, (b) the National Association of Securities Dealers, (c) the Nasdaq National Market or any other securities exchange, or (d) any other individual, firm, corporation, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company, governmental authority or other entity of any kind, including any successor (by merger or otherwise) of such entity (collectively, a "Person") (whether acting in an individual, fiduciary or other capacity), is required in connection with the consummation of the transactions contemplated by the Transaction Agreements, except for (i) the filing of the Certificate of Designations with the Secretary of State for the State of Delaware, (ii) such Approvals as may be required under applicable state securities laws in connection with the sale of the Shares under this Agreement or under applicable federal or state securities laws in connection with the exercise of rights provided for in the Registration Rights Agreement, (iii) the filing of a notification of listing of additional shares with the Nasdaq National Market with respect to the Conversion Shares, (iv) any filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR Act") as may be required with respect to the issuance of the Conversion Shares and (v) any Approvals which, if not obtained or made, would not cause a Material Adverse Change. 3.10 Compliance with Laws. (a) Neither the Company nor any of its subsidiaries is in violation in any material respect of any applicable federal, state, local and foreign laws, rules and regulations or any court or governmental agency or body, including, without limitation, the United States Food and Drug Administration; to the knowledge of the Company, otherwise than as set forth in the SEC Documents, no prospective change in any of such federal or state laws, rules or regulations has been adopted which, when made effective, would cause a Material Adverse Change. -5- (b) The Company has all licenses, permits and approvals of any governmental authority (collectively, "Permits") that are necessary for the conduct of the business of the Company; such Permits are in full force and effect; and no violations are or have been recorded in respect of any Permit. 3.11 Investment Company. Neither the Company nor any of its subsidiaries is or, after application of the net proceeds from the sale of the Shares under this Agreement will become an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended, assuming that neither the Purchaser nor RPRIH is such an investment company. SECTION 4 Representations and Warranties of the Purchaser The Purchaser hereby represents and warrants to the Company with respect to its purchase of the Shares, as of the Closing Date, as follows: 4.1 Authorization. The Purchaser has the full corporate power and authority and has taken all requisite corporate action to execute and deliver each of the Transaction Agreements to which it is a party and to perform its obligations hereunder and thereunder. Each of the Transaction Agreements has been duly and validly authorized, executed and delivered by the Purchaser and is a valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its respective terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, conservatorship, readjustment of debt, moratorium or other similar laws affecting the rights of creditors or by general principles of equity, or to the extent that rights to indemnity and contribution under the Registration Rights Agreement may be limited by federal or state securities laws or the public policy underlying such laws. 4.2 Investment Representations and Covenants of the Purchaser (a) The Purchaser understands that the Shares are not, and the Conversion Shares may not be, registered under the Securities Act on the ground that the sale provided for in this Agreement and the issuance of the Shares hereunder is exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and that the Company's reliance on such exemption is predicated on the Purchaser's representations set forth herein. (b) The Purchaser represents that the Shares and Conversion Shares will be acquired for investment for its own account, not as a nominee or agent, and not with a view to the distribution of any part thereof, and that it has no present intention of selling, granting any participation in or otherwise distributing the same in violation of the Securities Act or the securities laws of any state in the United States. (c) The Purchaser represents that it is experienced in evaluating investments in companies similar to the Company, is able to fend for itself in transactions such as the one contemplated by this Agreement, has such knowledge and experience in financial and business -6- matters that it is capable of evaluating the merits and risks of its prospective investment in the Company, has the ability to bear the economic risks of the investment and is an "accredited investor" as defined by Regulation D, promulgated under the Securities Act. (d) The Purchaser acknowledges and understands that the Shares and the Conversion Shares, must be held indefinitely unless it is subsequently registered under the Securities Act or an exemption from such registration is available, and that, except as otherwise provided in the Registration Rights Agreement, the Company is under no obligation to register either the Shares or the Conversion Shares. 4.3 Receipt of Information. The Purchaser has reviewed the Transaction Agreements and all exhibits thereto and the SEC Documents. The Purchaser and its counsel have had access to and an opportunity to review all documents and other materials requested of the Company; the Purchaser and its counsel have been given an opportunity to ask any and all questions of the Company concerning the terms of the offering and to obtain all information it or they believe necessary or appropriate to evaluate the suitability of an investment in the Shares. 4.4 Further Limitations on Disposition. Without in any way limiting the representations set forth above, the Purchaser further agrees not to make any disposition of all or any portion of the Shares or the Conversion Shares unless and until (x) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement or (y) the Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Purchaser shall have furnished the Company with an opinion of counsel (who may be Purchaser's in-house counsel), reasonably satisfactory to the Company, that such disposition will be exempt from registration under the Securities Act. 4.5 Legends. The Purchaser understands and agrees that the certificates evidencing the Shares and the Conversion Shares shall bear a legend substantially as follows: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL (WHO MAY BE IN-HOUSE COUNSEL TO THE HOLDER) OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED." -7- SECTION 5 Covenants of the Company The Company covenants and agrees with the Purchaser as follows: 5.1 Use of Proceeds. Introgen intends to use the proceeds from the sale of the Shares to fund the commercialization of INGN 201, to begin building its internal sales and marketing division to support INGN 201's anticipated market introduction and for general working capital. 5.2 Listing on The Nasdaq National Market. The Company will list the Conversion Shares, subject to official notice of issuance, on the Nasdaq National Market at or before any sale of such shares by the Purchaser. SECTION 6 Documents to be Delivered and Actions to be Taken Prior to the Closing The respective obligations of the parties hereto to effect the sale and purchase of the Shares shall be subject to the satisfaction or waiver prior to the Closing, of all of the following conditions and only the following conditions: 6.1 Execution and Delivery of Registration Rights Agreement. The Purchaser and the Company shall have executed and delivered the Registration Rights Agreement. 6.2 Execution and Delivery of Voting Agreement. The Purchaser and the Company shall have executed and delivered the Voting Agreement. 6.3 Filing and Delivery of Certificate of Designations. The Company shall have executed and filed the Certificate of Designations with the Secretary of State of the State of Delaware in accordance with the General Corporation Law of the State of Delaware. The Company shall have delivered to the Purchaser a copy of the executed Certificate of Designations as certified by the office of the Secretary of State of the State of Delaware. 6.4 Execution and Delivery of Compliance Certificate. The Company shall have delivered to the Purchaser a certificate, executed by the President of the Company, dated the Closing Date, and certifying, among other things, that (i) the representations and warranties of the Company set forth in Section 3 hereof are true and correct in all respects on the Closing Date; and (ii) that all covenants and agreements contained in this Agreement to be performed by the Company on or prior to the Closing Date have been performed or complied with. 6.5 Execution and Delivery of Secretary's Certificate. The Company shall have delivered to the Purchaser a certificate, in form and substance satisfactory to the Purchaser, dated the Closing Date and signed by the Secretary or an Assistant Secretary of the Company, certifying (i) that the attached copies of the Restated Certificate, Certificate of Designations, the Bylaws and resolutions of the Board of Directors of the Company approving each of the Transaction Agreements are true, complete and correct and remain unattended and in full force and effect; and (ii) as to the -8- incumbency and specimen signature of each officer of the Company executing each Transaction Agreement and any other document or instrument delivered at the Closing on behalf of the Company. 6.6 Delivery of Additional Documents. The Company shall have delivered to Purchaser true, complete and correct copies of such documents as Purchaser may have reasonably requested in connection with or relating to the sale of the Shares and the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Purchaser. SECTION 7 Termination of Aventis Board Representation Effective as of the Closing Date, Section 23 of that certain Series B Preferred Stock Purchase Agreement, dated as of October 7, 1994, shall be terminated in its entirety and be of no further force or effect. SECTION 8 Miscellaneous 8.1 Governing Law. This Agreement shall be governed in all respects by and in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. 8.2 Survival. The representations, warranties, covenants and agreements made herein shall survive any investigation made by the Purchaser and the Closing. 8.3 Successors and Assigns. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 8.4 Entire Agreement; Amendment. This Agreement and the other documents delivered pursuant hereto at the Closing constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof, and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein. Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. 8.5 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if (i) personally delivered (by courier service or otherwise) or sent by registered or certified mail (return receipt requested and postage prepaid), in each case to the respective address specified below, or such other addresses as may be specified in writing by such party to the other party hereto, or sent by confirmed telecopier, as follows: -9- Purchaser: Route 202-206 Bridgewater, New Jersey 08807-0800 Facsimile: (908) 231-3619 Attn: Senior Vice President - Corporate Development with copies to (which shall not constitute notice): Charles D. Dalton Vice President, Legal - Corporate Development Route 202-206 Bridgewater, New Jersey 08807-0800 Facsimile: (908) 231-4480 and Joe S. Poff Baker Botts L.L.P. One Shell Plaza Houston, Texas 77002 Facsimile: (713) 229-7710 Company: Introgen Therapeutics, Inc. 301 Congress Ave., Suite 2025 Austin, Texas 78701 Facsimile: (512) 708-9311 Attn: David G. Nance with copies to (which shall not constitute notice): Rodney Varner, Esq. Wilson & Varner, L.L.P. 301 Congress Avenue Austin, Texas 78701 Facsimile: (512) 498-9141 Wilson Sonsini Goodrich & Rosati Professional Corporation 8911 Capital of Texas Highway, Suite 3350 Austin, Texas 78759 Facsimile: (512) 338-5499 Attn: Christopher J. Ozburn, Esq. 8.6 Delays or Omissions. Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to any holder of any Shares, upon any breach or default of the Company under this Agreement, shall impair any such right, power or remedy of such -10- holder nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any holder of any breach or default under this Agreement or any waiver on the part of any holder of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any holder, shall be cumulative and not alternative. 8.7 Expenses. Each of the Company and the Purchaser shall bear its own expenses and legal fees incurred with respect to this Agreement and the transactions contemplated hereby. 8.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 8.9 Telecopy Execution and Delivery. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof. 8.10 Severability. If any provision of this Agreement should be held invalid, illegal or unenforceable in any jurisdiction, all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. 8.11 Further Assurances. Each of the parties shall execute such documents and perform such further acts (including, without limitation, obtaining any consents, exemptions, authorizations or other actions by, or giving any notices to, or making any filings with, any governmental authority or any other Person) as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement. -11- IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of the date first above written. Introgen Therapeutics, Inc. By: --------------------------------------------------- David G. Nance President and Chief Executive Officer Aventis Pharmaceuticals Products Inc. By: --------------------------------------------------- Name: ------------------------------------------------- Title: ------------------------------------------------ Rhone-Poulenc Rorer International (Holdings), Inc. By: --------------------------------------------------- Name: ------------------------------------------------- Title: ------------------------------------------------ [Signature page for Series A Non-Voting Convertible Preferred Stock Purchase Agreement] -12- Exhibit A Form of Registration Rights Agreement Exhibit B Form of Voting Agreement Exhibit C Form of Certificate of Designations EX-2 3 d26243_ex2.txt REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of June 30, 2001, by and between Introgen Therapeutics, Inc., a Delaware corporation (the "Company"), and Aventis Pharmaceuticals Products Inc., a Pennsylvania corporation ( "APPI"). In addition, Rhone-Poulenc Rorer International (Holdings), Inc., a Delaware corporation ("RPRIH"), is entering into this Agreement for the purpose of Section 8.1 only. RECITALS WHEREAS, RPRIH is presently the owner of 3,968,893 shares of the Company's Common Stock (the "Existing Shares"); and WHEREAS, the Company and APPI are parties to that certain Restated p53 and K-ras Agreement of even date herewith, whereby the Company and APPI, among other things, have agreed to enter into this Agreement; and WHEREAS, pursuant to that certain Series A Non-Voting Convertible Stock Purchase Agreement, of even date herewith, by and among the Company, APPI and RPRIH (the "Stock Purchase Agreement"), the Company has agreed to sell, and APPI has agreed to purchase, at the Closing, 100,000 shares of the Company's Series A Non-Voting Convertible Preferred Stock (the "Series A Shares"); and WHEREAS, as an inducement to enter into the Stock Purchase Agreement and as additional consideration to APPI, the Stock Purchase Agreement contemplates, among other things, that the Company, APPI and RPRIH enter into this Agreement and that this Agreement become effective upon the Closing of the purchase and sale of the Series A Shares under the Stock Purchase Agreement; AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Certain Definitions. As used in this Agreement, the following terms shall have the following respective meanings: 1.1 "Closing" shall have the meaning assigned to such term in the Stock Purchase Agreement. 1.2 "Common Stock" shall mean the common stock of the Company, par value $0.001 per share. 1.3 "Effective Date" shall mean the date of the Closing of the purchase and sale of the Series A Shares under the Stock Purchase Agreement. 1.4 "Exchange Act" shall mean the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. 1.5 "Holder" shall mean APPI and any other person or entity to whom Registrable Securities and the rights to cause the Company to register the Registrable Securities hereunder are transferred or assigned in accordance with Section 9. 1.6 "Initiating Holders" means the person or persons who hold at least a majority of the then outstanding Registrable Securities. 1.7 The terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. 1.8 "Registrable Securities" shall mean (i) the shares of Common Stock issuable or issued upon conversion of the Series A Shares and (ii) any other shares of Common Stock issued as (or issuable upon conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to or exchange for or replacement of the Series A Shares, excluding in all cases, however, any Registrable Securities sold by a person in a transaction in which a Holder's registration rights under this Agreement are not assigned; provided, however, that Registrable Securities shall not include any shares of Common Stock which have been sold to the public either pursuant to a registration statement or Rule 144 under the Securities Act. 1.9 "Securities Act" shall mean the United States Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, all as the same shall be in effect at the time. 1.10 "SEC" shall mean the United States Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. 2. Piggyback Registration Rights. 2.1 Registration. If the Company shall determine to register any of its securities under the Securities Act (including for this purpose a registration effected by the Company for stockholders other than the Holders, but excluding any registration requested under Section 7.2 of the Company's Series C Preferred Stock Purchase Agreement dated as of November 30, 1995 (the "Series C Agreement") in which any Existing Shares are requested to be registered), other than (a) a registration relating solely to employee benefit plans, (b) a registration, including a registration on Form S-4, relating solely to a transaction subject to Rule 145 promulgated under the Securities Act, or (c) a registration on any registration form which does not permit secondary sales or does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities, the Company will: -2- (i) promptly give to each Holder written notice thereof; and (ii) include in such registration, and in any underwriting involved therein, all of the Registrable Securities specified in a written request or requests made by any Holder within twenty (20) days after receipt of the written notice from the Company described in clause (i) above, except as set forth in Section 2.2 below. Such written request may specify all or a part of a Holder's Registrable Securities. 2.2 Underwriting. If the registration of which the Company gives notice is for an underwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.1. In such event, the right of any Holder to registration pursuant to this Section 2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and any other stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with a nationally-recognized underwriter selected by the Company, subject to the approval of such Holders, which approval shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2, if the managing underwriter in any underwritten offering subject to this Section 2 determines that marketing factors require a limitation on the number of shares to be offered in the underwritten offering, the managing underwriter may (subject to the allocation priority set forth below) exclude from such registration and underwriting up to all of the Registrable Securities that would otherwise be underwritten pursuant to this Section 2. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting under this Section 2 by persons other than the Company shall be allocated in the following priority: first, among any stockholders requesting registration pursuant to the Series C Agreement or the Company's Registration Rights Agreement, dated as of October 31, 1997 (the "1997 Rights Agreement"); second, among all Holders; and third, among all other stockholders in proportion, as nearly as practicable, to the respective amounts of securities that they had requested to be included in such registration at the time of filing the registration statement. If any Holder or other stockholder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. 2.3 Right to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by the Company under this Section 2 without liability prior to the effectiveness of such registration, whether or not any Holder has elected to include securities in such registration. 2.4 Termination of Piggyback Rights. The rights granted pursuant to this Section 2 shall terminate upon the earliest to occur of (X) after a Holder has sold any Shares pursuant to a registration under this Section 2 on three (3) occasions; provided, however, that if the -3- number of Shares requested to be included in an underwritten offering are reduced as a result of the allocation priority in Section 2.2, then such offering pursuant to this Section 2 shall not be counted for purposes of counting the number of registrations under this clause (X), (Y) as to any Holder, such time at which all Registrable Securities held by such Holder, together will all Existing Shares held by RPRIH or any other affiliate of APPI, can be sold in any three-month period without registration in compliance with Rule 144 of the Securities Act (or any successor rule thereof), or (Z) four (4) years from the Effective Date of this Agreement; provided, however, that such four (4) year period shall be extended for the total number of days of any and all Suspension Periods (as defined in Section 4.1(a)). 3. Demand Registration. 3.1 Request for Registration. If the Company shall receive from the Initiating Holders, at any time after the one-year anniversary of the Effective Date, a written request that the Company effect any registration with respect to any of the then outstanding Registrable Securities which would result in an aggregate offering of at least $5,000,000 (or any lesser aggregate offering if such request for registration is with respect to all the Registrable Securities of such Initiating Holder under this Agreement), the Company will: (a) within 10 days of such request, give written notice of the proposed registration to all other Holders; and (b) as soon as practicable, and in any event with 60 days of such request, file with the SEC and thereafter use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holders joining in such request as are specified in a written request delivered to the Company within twenty (20) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 3: (i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; (ii) after the Company has effected three (3) such registrations pursuant to this Section 3.1 and such registrations have been declared or ordered effective and the sales of such Registrable Securities have closed; provided, however, that if the effectiveness of any such registration is not maintained for a period of at least ninety (90) days (or any lesser period of -4- time in the event the distribution contemplated by the registration is fully completed), then such registration shall not be counted as a registration for the purposes of this clause (ii); (iii) during the period starting with the date fifty-five (55) calendar days prior to the Company's good faith estimate of the date of filing of, and ending on a date one-hundred-fifty (150) calendar days after the effective date of, any registration statement pertaining to a public offering of securities for the Company's account; provided that the Company is actively employing in good faith its reasonable best efforts to cause such registration statement to be effective; or (iv) during the period starting with the date six (6) months prior to the Company's good faith estimate of the effective date of, and ending on a date six (6) months after the effective date of, any registration statement pertaining to a public offering of securities for the account of any stockholder requesting registration pursuant Section 7.2(a) of the Series C Agreement or pursuant to Section 2 of the 1997 Rights Agreement; provided that the Company is actively employing in good faith its reasonable best efforts to cause such registration statement to be effective and provided further that if the Company has begun to effect a registration pursuant to this Section 3 and receives a request for registration from a stockholder pursuant Section 7.2(a) of the Series C Agreement or pursuant to Section 2 of the 1997 Rights Agreement, then the Company shall immediately inform the Holders and cease and have no further obligation to take any action to effect the registration begun pursuant to Section 3.1. Subject to the foregoing clauses (i) through (iv), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable, after receipt of the request or requests of the Initiating Holders; provided, however, that if the Company shall furnish to such Holders a certificate signed by the President of the Company (a "President's Certificate") stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed on or before the time filing would be required and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing (but not more than once during any twelve-month period) for a period that the Board of Directors of the Company in its good faith judgment deems reasonably necessary but in no event shall such period be more than one-hundred-eighty (180) days after receipt of the request of the Initiating Holders. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 3.2 below, include other securities of the Company that are held by officers or directors of the Company or that are held by persons who, by virtue of agreements with the Company, are entitled to include their securities in any such registration. -5- 3.2 Underwriting. (a) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3, and the Company shall include such information in the written notice referred to in Section 3.1(a). The right of any Holder to registration pursuant to Section 3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. A Holder may elect to include in such underwriting all or a part of such Holder's Registrable Securities. (b) All Holders proposing to distribute their securities through an underwritten offering pursuant to this Section 3 shall enter into an underwriting agreement in customary form with the underwriter or underwriters. The managing underwriters or underwriters for any such underwritten offering shall be selected by the Initiating Holder, subject to approval by the Company, which approval will not be unreasonably withheld. (c) Notwithstanding any other provision of this Section 3, if the underwriter advises the Initiating Holders that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, in proportion (as nearly as practicable) to the amount of Registrable Securities owned by each Holder; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other shares of Common Stock are first entirely excluded from such underwriting. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If the underwriter has not limited the number of Registrable Securities or other securities to be underwritten, the Company may include its securities for its own account in such registration if the underwriter so agrees and if the number of Registrable Securities and other securities that would otherwise have been included in such registration and underwriting will not thereby be limited. 3.3 Termination of Demand Rights. The rights granted pursuant to this Section 3 shall terminate upon the earlier to occur of (X) as to any Holder, such time at which all Registrable Securities held by such Holder, together with all Existing Shares held by RPRIH or any other affiliate of APPI, can be sold in any three-month period without registration in compliance with Rule 144 of the Securities Act (or any successor rule thereof), or (Y) four (4) years from the Effective Date of this Agreement; provided, however, that such four (4) year period shall be extended for the total of (i) any and all Suspension Periods; (ii) any and all periods that any Holder is prevented from exercising the rights granted pursuant to this Section 3 by operation of Section 3.1(b)(iii) or Section 3.1(b)(iv); and (iii) any and all periods that any Holder is prevented from exercising the rights -6- granted pursuant to this Section 3 by the Company's delivery of a President's Certificate under Section 3.1, unless any Suspension Period or any limitation on the exercisability of the rights granted pursuant to this Section 3 by operation of Section 3.1(b)(iv) is caused by any Holder requesting registration of Existing Shares pursuant to the Series C Agreement. 4. Registration Procedures. 4.1 Company Procedures. Whenever required under this Agreement to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to ninety (90) days or any lesser period of time in the event the distribution described in such registration statement has been fully completed; provided, however, that the Company shall not be obligated to keep such registration statement effective if the Company receives a request for registration pursuant Section 7.2(a) of the Series C Agreement (other than from a Holder) or pursuant to Section 2 of the 1997 Rights Agreement on or prior to the date that six (6) months after the effective date of, such registration statement. Any such period during which the Company is excused by operation of this Section 4.1(a) from maintaining the effectiveness of the registration statement is referred to as a "Suspension Period." (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement. (c) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by such Holders. (d) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. (e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. -7- (f) Notify in writing each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. (g) Notify in writing each Holder of Registrable Securities covered by such registration statement, (a) when such registration statement or the prospectus included therein or any amendment or supplement or post-effective amendment has been filed, and, with respect to such registration statement or any post-effective amendment, when the same has become effective, (b) of any comments made to the Company or its counsel by the SEC with respect thereto or any request made to the Company or its counsel by the SEC for amendments or supplements to such registration statement or prospectus or for additional information (and furnish counsel for the selling Holder(s) copies of such comment letters and requests), (c) of the issuance by the SEC of any stop order suspending the effectiveness of such registration statement or the initiation or threatening of any proceedings for that purpose, (d) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (h) Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto at the earliest practicable date and notify each Holder of Registrable Securities covered by such registration statement of the withdrawal of any such order. (i) Furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to this Agreement, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities. (j) Make generally available to its securityholders as soon as practicable but in any event not later than eighteen months after the effective date of such registration statement, an earning statement (which need not be audited) complying with Section 11(a) of the Securities Act (including, at the Company's option, Rule 158 thereunder). -8- 4.2 Selling Stockholder Procedures. In connection with a request for registration of any Registrable Securities pursuant to this Agreement, any selling Holder shall, as expeditiously as reasonably possible: (a) Furnish to the Company all such information concerning such Holder necessary for the Company to complete the registration statement and such Holder will notify the Company promptly if any such information so furnished is no longer true and correct in all material respects or if such information so furnished omits any material fact necessary to make such information not misleading. (b) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. (c) In the event of any underwritten public offering, furnish, at the request of the Company, on the date that such Registrable Securities are delivered to the underwriters, an opinion, dated as of such date, of the counsel representing the selling Holders in connection with such registration, in form and substance as is customarily given on behalf of selling stockholders in an underwritten public offering, addressed to the underwriters and the Company. 5. Expenses of Registration. All expenses (other than underwriting discounts and commissions and fees and disbursements of a special counsel of a selling stockholder) incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including (without limitation) all registration, federal and state filing and qualification fees and expenses, printer's fees, accounting fees and fees and disbursements of counsel for the Company shall be borne by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration begun pursuant to Section 3 if such registration request is subsequently withdrawn at the request of the Holders of at least a majority of the Registrable Securities to be registered (in which case all participating Holders shall bear such expenses), unless the Holders of at least a majority of the Registrable Securities agree to forfeit their right to one demand registration pursuant to Section 3; provided further, however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request following disclosure by the Company of such material adverse change, then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one demand registration pursuant to Section 3. 6. Indemnification. 6.1 To the extent permitted by law, the Company will indemnify and hold harmless each Holder, each Holder's officers, directors, employees and agents, any underwriter (as defined in the Securities Act) for such Holder, and each person, if any, who controls any such Holder or underwriter within the meaning of the Securities Act, against any and all claims, losses, damages -9- and liabilities (joint or several) to which they may become subject under the Securities Act or other federal or state law, insofar as such claims, losses, damages or liabilities (or actions in respect thereof) arise out of or are based on: (i) any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document incident to any such registration, qualification or compliance, (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading or (iii) any violation (or alleged violation) by the Company of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, Exchange Act or any state securities law; and the Company will pay each such Holder, officer, director, employee, agent, underwriter or controlling person, as incurred, any legal or other expenses reasonably incurred by them in connection with investigating and defending any such claim, loss, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 6.1 shall not apply to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement (or alleged untrue statement), omission (or alleged omission) or violation (or alleged violation) based upon written information furnished to the Company by such Holder or underwriter and stated to be specifically for use in any such registration statement, prospectus, offering circular or other document; provided further, however, that the indemnity agreement contained in this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld). 6.2 To the extent permitted by applicable law, each Holder will, indemnify and hold harmless the Company, each of the Company's officers, directors employees and agents, each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter, any other Holder selling securities pursuant to the registration and any controlling person of any such underwriter or other Holder, against any and all claims, losses, damages and liabilities (joint or several) to which they may become subject under the Securities Act or other federal or state law, insofar as such claims, losses, damages or liabilities (or actions in respect thereof) arise out of or are based on: (i) any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document incident to any such registration, qualification or compliance, (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading or (iii) any violation (or alleged violation) by the Holder of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, Exchange Act or any state securities law; and such Holder will pay the Company, each of the Company's officers, directors employees and agents, each person controlling the Company, each underwriter, each other Holder selling securities pursuant to the registration and each person controlling any such underwriter or other Holder, as incurred, any legal or other expenses reasonably incurred by them in connection with investigating of defending any such claim, loss, damage, liability or action, in each case to the extent (and only to the extent) that such untrue statement (or alleged untrue statement), omission (or alleged omission) or violation -10- (or alleged violation) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by such Holder and stated to be specifically for use therein; provided, however that the indemnity agreement contained in this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder (which consent shall not be unreasonably withheld); provided further, however, that in no event shall the aggregate liability of a Holder for indemnification under this Section 6.2 exceed the proceeds received by such Holder from the sale of Registrable Securities in such offering. 6.3 Each person entitled to indemnification under this Section 6 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such Indemnified Party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnified Party is prejudiced thereby. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom. An Indemnified Party shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding, provided that in no event shall the Indemnifying Party be required to pay the fees and expenses of more than one such separate counsel for each Indemnified Party. 6.4 If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any losses, claims, damages or liabilities referred to herein, the Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such Indemnified Party as the result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the allegation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties' relevant intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; -11- provided that in no event shall any contribution by a Holder hereunder exceed the proceeds from the sale of Registrable Securities received by such Holder. 6.5 The obligations of the Company and Holders under this Section 6 shall survive the completion of any offering of Registrable Securities in a registration statement and the termination of this Agreement. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnified Party (which consent shall not be unreasonably withheld), consent to the entry of any judgment or enter into any settlement. Unless waived by the Indemnified Party, all judgments and settlements must include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. 7. Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the SEC that may permit the sale of the Registrable Securities to the public without registration, the Company agrees to: 7.1 Make and keep public information available as those terms are understood and defined in Rule 144 under the Securities Act, at all times; 7.2 File with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; 7.3 furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act, or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3; and (ii) such information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC (exclusive of Rule 144) that permits the selling of any such securities without registration or pursuant to such form. 8. Standoff Agreement. 8.1 Prior to October 3, 2001, RPRIH shall not, without the consent of the Company, sell or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Existing Shares. 8.2 Notwithstanding anything to the contrary in this Agreement, prior to July 2, 2002, APPI shall not, without the consent of the Company, sell or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Registrable Securities. 9. Transfer or Assignment of Registration Rights. The rights to cause the Company to register the Holder's securities granted by the Company under Sections 2 and 3 hereof may be transferred or assigned by the Holder to a transferee or assignee of any of the Registrable Securities; -12- provided that (a) such transfer is only to an "affiliate" of such Holder (as such term is defined in Rule 12b-2 of the Exchange Act), (b) the Company is given written notice by such Holder at the time of said transfer or assignment, stating the name and address of said transferee or assignee and identifying the securities with respect to which such registration rights are being transferred or assigned, and (c) the transferee or assignee of such rights assumes the obligations of a Holder under this Agreement with respect to the Registrable Securities that are transferred or assigned. To the extent APPI creates a new subsidiary and transfers any of the Series A Shares to it, or transfers any of the Series A Shares to any of its subsidiaries or affiliates (as such term is defined in Rule 12b-2 of the Exchange Act), APPI shall cause such transferee to become a signatory to this Agreement by a duly executed addendum agreement (an "Addendum Agreement") substantially in the form as that attached hereto as Exhibit A. The execution of an Addendum Agreement by such transferee shall constitute a permitted amendment of this Agreement. 10. Miscellaneous. 10.1 Governing Law. This Agreement shall be governed in all respects by and in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. 10.2 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 10.3 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 10.4 Notices. All notices, requests and other communications required or permitted to be given to a party under this Agreement shall be in writing and shall be deemed to have been duly given if (i) personally delivered (by courier service or otherwise) or sent by registered or certified mail (return receipt requested and postage prepaid), in each case to the respective address specified below, or such other address as may be specified in writing by such party to the other parties; or (ii) sent by confirmed telecopier, as follows: RPRIH and APPI: Aventis Pharmaceuticals Products Inc. Route 202-206 Bridgewater, New Jersey 08807-0800 Facsimile: (908) 231-3619 Attn: Senior Vice President -- Corporate Development and -13- Rhone-Poulenc Rorer International (Holdings), Inc. 3711 Kennett Pike, Suite 200 Greenville, Delaware 19807 Facsimile: (302) 777-7665 Attn: Phillip Ridolfi, President with copies to (which shall not constitute notice): Charles D. Dalton Vice President, Legal - Corporate Development Route 202-206 Bridgewater, New Jersey 08807-0800 Facsimile: (908) 231-4480 and Joe S. Poff Baker Botts L.L.P. One Shell Plaza Houston, Texas 77002 Facsimile: (713) 229-7710 Company: Introgen Therapeutics, Inc. 301 Congress Ave., Suite 2025 Austin, Texas 78701 Facsimile: (512) 708-9311 Attn: David G. Nance with a copies to (which shall not constitute notice): Rodney Varner, Esq. Wilson & Varner, L.L.P. 301 Congress Avenue Austin, Texas 78701 Facsimile: (512) 498- 9141 -14- and Wilson Sonsini Goodrich & Rosati Professional Corporation 8911 Capital of Texas Highway, Suite 3350 Austin, Texas 78759 Facsimile: (512) 338-5499 Attn: Christopher J. Ozburn, Esq. 10.5 Amendments. Except as permitted by Section 9, this Agreement may only be amended with the written consent of the Company and the holders of at least a majority of the outstanding shares of Registrable Securities at the time of such amendment. Any amendment effected in accordance with Section 9 or this Section 10.5 shall be binding upon the Company, the Holders, each transferee of the Registrable Securities, each future holder of all such Registrable Securities. 10.6 Severability. If any provision of this Agreement should be held invalid, illegal or unenforceable in any jurisdiction, all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. 10.7 Successors and Assigns. The provisions of this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. 10.8 Delays or Omissions; Waiver. No delay or omission to exercise any right, power or remedy accruing to any party, upon any breach or default of this Agreement by another party, shall impair any such right, power or remedy of the non-breaching party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any holder, shall be cumulative and not alternative. 10.9 Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, both written or oral, among the parties with respect to such subject matter. -15- 10.10 Telecopy Execution and Delivery. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties, and an executed copy of this Agreement may be delivered by one or more parties by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties shall execute an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof. IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement of the day and year first above written. Introgen Therapeutics, Inc. By: ----------------------------------------------- David G. Nance President & Chief Executive Officer Aventis Pharmaceuticals Products Inc. By: ----------------------------------------------- Name: --------------------------------------------- Title: -------------------------------------------- Rhone-Poulenc Rorer International Holdings Inc. By: ----------------------------------------------- Name: --------------------------------------------- Title: -------------------------------------------- -16- EXHIBIT A FORM OF ADDENDUM AGREEMENT This ADDENDUM AGREEMENT (this "Addendum Agreement") made this ___ day of __________, 200__ by and between _______________ (the "New Holder") and Introgen Therapeutics, Inc., a Delaware corporation (the "Company"), and constitutes an amendment of that certain Registration Rights Agreement dated June 30, 2001 (the "Agreement"), among the Company, Aventis Pharmaceuticals Products Inc., a Pennsylvania corporation ("APPI") and, solely for the purposes of Section 8.1 of the Agreement, Rhone-Poulenc Rorer International (Holdings), Inc., a Delaware corporation ("RPRIH"). RECITALS WHEREAS, the Company and APPI entered into the Agreement in order to impose certain obligations upon the parties thereto with respect to registration and transfer of certain Registrable Securities; and WHEREAS, New Holder is now or will be the holder of certain Registrable Securities and is or wishes to be entitled to the rights and subject to the obligations of a Holder under the Agreement; and WHEREAS, the Agreement requires that all persons or entitled being offered Registrable Securities by actions taken subsequent to the date of the Agreement, must enter into an Addendum Agreement binding the New Holder to the Agreement to the same extent as if the New Holder were an original party thereto; AGREEMENT NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Agreement. 2. New Holder shall be bound by, and shall have the benefit of, all the terms and conditions set out in the Agreement to the same extent as if the New Holder were a Holder under the Agreement. 3. This Addendum Agreement constitutes an amendment to the Agreement shall be attached to and become a part of the Agreement. 4. Except as modified hereby, New Holder and the Company ratify and confirm the terms of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Addendum Agreement as of the date first above written. NEW HOLDER Print Name of New Holder By: ------------------------------------------- Signature ------------------------------------------- Print Name of Signatory ------------------------------------------- Title (if applicable) Address for notices under Section 10.4 of the Agreement: ---------------------------------------------- ---------------------------------------------- ---------------------------------------------- INTROGEN THERAPEUTICS, INC. By: ------------------------------------------- Name: ----------------------------------------- Title: ---------------------------------------- A-2 EX-3 4 d26243_ex3.txt VOTING AGREEMENT VOTING AGREEMENT This VOTING AGREEMENT (this "Voting Agreement") is made and entered into as of June 30, 2001, by and among Introgen Therapeutics, Inc., a Delaware corporation ("Introgen"), Rhone-Poulenc Rorer International (Holdings), Inc., a Delaware corporation ("RPRIH"), and Aventis Pharmaceuticals Products Inc., a Pennsylvania corporation ("APPI", and together with RPRIH, the "Aventis Holders"), each of whom is sometimes referred to herein as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Introgen and APPI are each a party to that certain Restated p53 and K-ras Agreement of even date herewith, whereby each has agreed, among other things, to enter into this Voting Agreement; and WHEREAS, as of the date hereof, the RPRIH is the holder of record of 3,968,893 shares of Introgen's Common Stock, par value $0.001 per share (the "Existing Introgen Shares"); and WHEREAS, pursuant to that certain Series A Non-Voting Convertible Preferred Stock Purchase Agreement of even date herewith by and among Introgen, APPI and RPRIH (the "Stock Purchase Agreement"), Introgen has agreed to sell, and APPI has agreed to purchase, at the Closing (as defined in the Stock Purchase Agreement) 100,000 shares of Introgen's Series A Non-Voting Convertible Preferred Stock, par value $0.001 per share (the "Series A Shares"), which Series A Shares are convertible into shares of Introgen common stock. The Existing Introgen Shares and the shares of common stock of Introgen actually issued upon the conversion of the Series A Shares (the "Conversion Shares") are collectively referred to herein as the "Introgen Shares;" and WHEREAS, APPI contemplates the formation of an affiliated or otherwise related company ("Gencell") and may wish to transfer some or all of the Series A Shares or Conversion Shares to Gencell; and WHEREAS, the Stock Purchase Agreement contemplates, among other things, that the Company, APPI and RPRIH enter into this Voting Agreement and that this Voting Agreement become effective upon the Closing of the purchase and sale of the Series A Shares under the Stock Purchase Agreement (the "Effective Date"); AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1. Voting on Corporate Action. (a) Voting Agreement. (i) In the event that, following the Effective Date, a Corporate Action (i) is approved by Introgen's Board of Directors or other governing body and (ii) receives approval of the holders of not less than a majority of Introgen's outstanding Voting Securities without taking into account any such securities held by any of the Aventis Holders, each of the Aventis Holders shall consent to and vote all of the Introgen Shares held by it in favor of such Corporate Action at any meeting of stockholders (or by any action by written consent) called to consider the approval of such Corporate Action. (ii) In the event that, following the Effective Date, a Corporate Action (i) is approved by Introgen's Board of Directors or other governing body and (ii) is rejected by the holders of not less than a majority of Introgen's outstanding Voting Securities without taking into account any such securities held by any of the Aventis Holders, each of the Aventis Holders shall consent to and vote all of the Introgen Shares held by it against such Corporate Action at any meeting of stockholders (or by any action by written consent) called to consider the approval of such Corporate Action. (iii) A "Corporate Action" shall mean any matter put to a vote of the stockholders of Introgen. "Voting Securities" shall mean, with respect to any specified person, any class or classes of Capital Stock of the specified person pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, supervisory board, managers or trustees of the specified person (irrespective of whether or not, at the time, stock of any other class or classes have, or might have, voting power by reason of the happening of any contingency). "Capital Stock" shall mean, with respect to any person, any and all shares, interests, participation, rights or other equivalents in the equity interests (however designated) in that person. (b) Power of Attorney. If any of the Aventis Holders fails or refuses to vote the Introgen Shares held by it as required by, or votes the Introgen Shares held by it in contravention of this Section 1, then Introgen's Chairman of the Board or Chief Executive Officer shall have an irrevocable proxy, coupled with an interest, to vote such Introgen Shares in accordance with this Section 1. Each of the Aventis Holders hereby grants to Introgen's Chairman of the Board and Chief Executive Officer such an irrevocable proxy and hereby appoints Introgen's Chairman of the Board and Chief Executive Officer, and each of them acting singly, its attorney-in-fact to vote the Introgen Shares held by it in accordance with the terms of this Section 1. In the event that any of the Aventis Holders fails or refuses to comply for any reason with the provisions of this Section 1, Introgen, at its option, may elect to proceed with the Corporate Action notwithstanding such failure or refusal. The voting of shares pursuant to this Voting Agreement may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law. (c) The proxies granted pursuant to this Section 1 shall be deemed coupled with an interest and are irrevocable for the term of this Voting Agreement. It is agreed and understood that (i) monetary damages would not adequately compensate an injured Party for the -2- breach of this Section 1 by any Party, (ii) this Section 1 shall be specifically enforceable, and (iii) any breach or threatened breach of this Section 1 shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each Party waives any claim or defense that there is an adequate remedy at law for such any breach or threatened breach. (d) After receiving proper notice, one or more representatives of each Aventis Holder, as a holder of Introgen Shares, shall be present, in person or by proxy, at all meetings of stockholders of Introgen, as appropriate, to vote upon a proposed Corporate Action so that all of the Introgen Shares beneficially owned by the Aventis Holders and/or their respective affiliated entities may be counted for the purposes of determining the presence of a quorum at such meetings. (e) The Aventis Holders shall not deposit any of the Introgen Shares beneficially owned by either of them in a voting trust or subject any such securities to any arrangement or agreement with respect to the voting of such securities provided that this provision will not restrict the right of APPI to transfer any Series A Shares or Conversion Shares to Gencell as contemplated by Section 2. (f) This Voting Agreement shall extend to any national or state statutory approval rights for any Corporate Action that either Aventis Holder may have by virtue of beneficially holding Introgen Shares. 2. Gencell as a Party. (a) APPI shall have the right to transfer some or all of its Series A Shares or Conversion Shares to Gencell in accordance with the terms of the Stock Purchase Agreement. In connection with any such transfer, APPI shall cause Gencell to agree to be bound by the obligations of this Voting Agreement as a Party with respect to such transferred shares and to execute and deliver to Introgen a counterpart signature page to this Voting Agreement. 3. Termination. (a) This Voting Agreement, except for the obligation of Introgen set forth in the last sentence of Section 4, shall terminate as to any Introgen Shares on the earliest to occur of: (i) the date upon which such shares are sold into an established trading market for such shares in accordance with applicable securities laws, including sales made under Rule 144 under the Securities Act of 1933, as amended; (ii) the date upon which such shares are sold under an effective registration statement covering such shares filed with the United States Securities and Exchange Commission under the Securities Act of 1933, as amended; (iii) the date upon which such shares are sold by either of the Aventis Holders in a private sale to a non-affiliate (as such term "affiliate" is defined in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended) of such Aventis Holder that is not either (x) a direct competitor of Introgen whose main line of activity (based on publicly-available information or, in the case of a privately-held company, otherwise commonly known information regarding such competitor) is the development of gene therapy products or (y) a pharmaceutical company; or (iv) the date indicated in paragraph (b) below. -3- (b) In any event, this Voting Agreement shall terminate on the date corresponding to the tenth anniversary of the Effective Date of this Voting Agreement. 4. Legend. Concurrently with (i) the execution of this Voting Agreement, with respect to the Existing Introgen Shares outstanding on the date of this Voting Agreement; and (ii) the issuance of the Conversion Shares, with respect to such shares, there shall be imprinted or otherwise placed, on certificates representing such shares a restrictive legend substantially to the following effect (the "Legend"): THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN VOTING AGREEMENT DATED AS OF JUNE 30, 2001 AMONG THE CORPORATION, THE ORIGINAL HOLDER OF THESE SECURITIES AND CERTAIN OTHER PARTIES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION. If such shares are not certificated, then a substantially similar notification shall be placed in an appropriate fashion with the person charged with maintaining registration of the ownership of such shares so as to put on notice of the terms and conditions of this Voting Agreement any transferee of such shares. Following the termination of this Voting Agreement with respect to any Introgen Shares, upon the request of the Aventis Holder that holds or held such shares, Introgen shall issue to or as directed by such Aventis Holder a new certificate or certificates representing such Introgen Shares that does not or do not contain the Legend. 5. Miscellaneous (a) Governing Law. This Voting Agreement shall be governed in all respects by and in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. (b) Equitable Relief. The Parties hereby agree that it would be impossible to measure in money the damages that may accrue to a Party by reason of a failure of another Party to perform any of the obligations under this Voting Agreement, and further agree that the terms of this Voting Agreement shall be specifically enforceable. If any Party institutes any action or proceeding to specifically enforce the provisions hereof, any other Party against whom such action or proceeding is brought hereby waives the claim or defense therein that the instituting Party has an adequate remedy at law, and such other Party shall not offer in any such action or proceeding the claim or defense that such remedy at law exists. (c) Successors and Assigns; Assignment. The provisions of this Voting Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns. APPI shall have the right to have Gencell assume those obligations of APPI under this Voting Agreement that relate to any Introgen Shares transferred by APPI to Gencell in accordance with Section 2. APPI shall cause Gencell to assume the those obligations of APPI under this Voting Agreement that relate to any Introgen Shares transferred by APPI to Gencell in accordance with Section 2. -4- (d) Entire Agreement. This Voting Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, whether written or oral, among the Parties with respect to such subject matter. (e) Amendment. Except for the addition of Gencell as a Party hereto in accordance with Section 2, no amendment or modification of any provision of this Voting Agreement shall be effective unless in writing signed by all of the Parties. No provision of this Voting Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance, or any other matter not set forth in an agreement in writing and signed by all of the Parties. (f) Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if personally delivered (by courier service or otherwise) or sent by registered or certified mail (return receipt requested and postage prepaid), in each case to the respective address specified below, or such other addresses as may be specified in writing by such party to the other party hereto, or sent by confirmed telecopier, as follows: Aventis Holders: Aventis Pharmaceuticals Products Inc. Route 202-206 Bridgewater, New Jersey 08807-0800 Facsimile: (908) 231-3619 Attn: Senior Vice President - Corporate Development and Rhone-Poulenc Rorer International (Holdings), Inc. 3711 Kennett Pike, Suite 200 Greenville, Delaware 19807 Facsimile: (302) 777-7665 Attn: Phillip Ridolfi, President with copies to (which shall not constitute notice): Charles D. Dalton Vice President, Legal - Corporate Development Route 202-206 Bridgewater, New Jersey 08807-0800 Facsimile: (908) 231-4480 and -5- Joe S. Poff Baker Botts L.L.P. One Shell Plaza Houston, Texas 77002 Facsimile: (713) 229-7710 Introgen: Introgen Therapeutics, Inc. 301 Congress Ave., Suite 2025 Austin, Texas 78701 Facsimile: (512) 708-9311 Attn: David G. Nance with a copies to (which shall not constitute notice): Rodney Varner, Esq. Wilson & Varner, L.L.P. 301 Congress Avenue Austin, Texas 78701 Facsimile: (512) 498-9141 and Wilson Sonsini Goodrich & Rosati Professional Corporation 8911 Capital of Texas Highway, Suite 3350 Austin, Texas 78759 Facsimile: (512) 338- 5499 Attn: Christopher J. Ozburn, Esq. (g) Delays or Omissions; Waiver. Except as expressly provided in this Voting Agreement, no delay or omission to exercise any right, power or remedy accruing to any Party, upon any breach or default of this Voting Agreement by another Party, shall impair any such right, power or remedy of the non-breaching Party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Voting Agreement or any waiver on the part of any Party of any provisions or conditions of this Voting Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. (h) Counterparts. This Voting Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. -6- (i) Titles and Subtitles. The titles and subtitles used in this Voting Agreement are used for convenience only and are not to be considered in construing or interpreting this Voting Agreement. (j) Telecopy Execution and Delivery. A facsimile, telecopy or other reproduction of this Voting Agreement may be executed by one or more Parties, and an executed copy of this Voting Agreement may be delivered by one or more Parties by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such Party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any Party hereto, all Parties shall execute an original of this Voting Agreement as well as any facsimile, telecopy or other reproduction hereof. (k) Severability. If any provision of this Voting Agreement should be held invalid, illegal or unenforceable in any jurisdiction, all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. (l) Further Assurances. Each of the Parties shall execute such documents and perform such further acts as may be reasonably required or desirable to carry out or to perform the provisions of this Voting Agreement. -7- IN WITNESS WHEREOF, the Parties have executed this Voting Agreement as of the date first written above. Introgen Therapeutics, Inc. By: ----------------------------------------------- David G. Nance President and Chief Executive Officer Aventis Pharmaceuticals Products Inc. By: ----------------------------------------- Name: ----------------------------------------- Title: ----------------------------------------- Rhone-Poulenc Rorer International (Holdings), Inc. By: ----------------------------------------- Name: ----------------------------------------- Title: ----------------------------------------- -8- -----END PRIVACY-ENHANCED MESSAGE-----