**EXHIBIT 10.54**EXECUTION**COMMON STOCK PURCHASE AGREEMENT**     **This Common Stock Purchase Agreement** (the “Agreement”) is made as of the4th day of November, 2005 by and between Introgen Therapeutics, Inc., a Delawarecorporation (the “Company”), and Colgate-Palmolive Company, a Delaware corporation (the“Purchaser”).     **Whereas,** the Company desires to issue, and the Purchaser desires to acquire, commonstock of the Company, par value $0.001 per share (the “Common Stock”), on the terms andconditions hereinafter set forth;     **Whereas****,**contemporaneously with the execution of this Agreement, the Company and thePurchaser have executed and delivered an Oral Healthcare Alliance Agreement (the “AllianceAgreement”) pursuant to which the Company will conduct research in the Field (as defined in theAlliance Agreement) and the Purchaser will have certain negotiation rights with respect to theField and products in the Field developed by the Company, subject to the terms and conditions setforth in the Alliance Agreement; and     **Whereas,** the Company and the Purchaser have entered into a Confidentiality DisclosureAgreement, dated January 18, 2005 (the “Confidentiality Agreement” and, together with thisAgreement and the Alliance Agreement, the “Transaction Documents”).     **Now, Therefore, It Is Agreed** between the parties as follows:     **1. Purchase and Sale of Shares.**On the terms and subject to the conditions contained herein,the Purchaser hereby agrees to purchase from the Company, and the Company hereby agrees to sell tothe Purchaser, for an aggregate purchase price of Twenty Million Dollars ($20,000,000) (the“Purchase Amount”), that number of shares of Common Stock (the “Shares”), roundeddown to the nearest whole share, determined by dividing (i) the Purchase Amount by (ii) the closingbid price of the Common Stock as quoted on The Nasdaq National Market System (“NASDAQ”) onthe day prior to the date hereof. The closing of the transactions contemplated by this Agreement(the “Closing”), including payment of the Purchase Amount for and delivery of the Shares,shall occur at the offices of the Company concurrent with the execution of this Agreement and uponthe satisfaction or waiver of the conditions contained in Section 5.     **2. Company Representations and Warranties.**The Company hereby represents and warrants to thePurchaser the following:     **(a)**Each of the Company and its subsidiaries (i) is a corporation duly organized,validly existing and in good standing under the laws of the state of its respectivejurisdiction of incorporation, (ii) has full corporate power and authority to conduct itsbusiness as presently conducted and to own, lease and to operate its properties and (iii) isduly qualified and in good standing as a foreign corporation authorized to do business ineach jurisdiction in which the nature of its business or its ownership or leasing ofproperty requires such qualification, except with respect to clause (iii) and with respectto clauses (i) and (ii) insofar as they relate to subsidiaries, where the failure to be soqualified or in good standing, along with all other circumstances, changes, in or effectson the Company and its subsidiaries does not and would not reasonably be expected to
 

 
result in a material adverse effect on (x) the business, condition (financial or otherwise),results of operations, assets, liabilities or properties of the Company and itssubsidiaries, taken as a whole or (y) on the timely consummation of the transactionscontemplated hereby (a “Material Adverse Effect”). The Company has full corporatepower and authority to enter into, deliver and perform its obligations set forth in theTransaction Documents and to carry out the transactions contemplated hereby and thereby.     **(b)**As of November 3, 2005 the authorized Capital Stock of the Company consisted of (i)100,000,000 shares of Common Stock, of which 33,519,416 shares were issued and outstandingas of November 3, 2005, and (ii) 5,000,000 shares of preferred stock, $0.001 par value pershare (the “Preferred Stock”), which may be issued from time to time in one or moreseries, none of which shares were issued and outstanding as of November 3, 2005. All of theoutstanding shares of Common Stock have been duly authorized and validly issued and arefully paid and nonassessable and were not issued in violation of any preemptive or similarrights. As of November 3, 2005, 6,020,766 shares of Common Stock were reserved for issuanceto employees pursuant to outstanding stock options under the Company’s stock option plansand 619,762 shares of Common Stock were issuable upon or otherwise deliverable in connectionwith the conversion of outstanding securities that are convertible into Common Stock and theexercise of outstanding warrants. Between August 8, 2005 and the date hereof, no shares ofthe Company’s Capital Stock were issued other than (A) pursuant to stock options andwarrants already in existence on such date and (B) 56,090 shares of Common Stock issued toDavid G. Nance on October 26, 2005 under the Company’s stock option plans. Between August8, 2005 and the date hereof, no stock options, warrants or other securities convertible intoor exercisable for shares of Common Stock were issued or granted, except for (i) grants ofstock options to employees, officers and directors in the ordinary course of business and(ii) an obligation of the Company to issue a warrant to purchase an aggregate of up to94,183 shares of Common Stock     **(c)**The issuance, sale and delivery of the Shares in accordance with this Agreementhave been duly authorized by all necessary corporate action on the part of the Company. TheShares, when issued, sold and delivered against payment therefor in accordance with thisAgreement, will be free and clear of all liens and other encumbrances imposed by or throughthe Company (except as imposed pursuant to this Agreement), duly and validly issued, fullypaid and non-assessable and free from any preemptive rights.     **(d)**Neither the Company nor any of its subsidiaries is, nor after giving effect to theconsummation of the transactions contemplated hereby will be, (i) in violation of itsCertificate or Articles of Incorporation or Bylaws or other organizational or charterdocuments (each as amended to the date hereof), (ii) in default under the terms of any bond,debenture, note, indenture, mortgage, deed of trust or other agreement or instrument towhich it is a party or by which it is bound or to which any of its properties is subject or(iii) in violation of any local, state or federal law, statute, ordinance, rule, regulation,requirement, judgment or court decree or order applicable to the Company or any of itssubsidiaries or any of their assets or properties other than, in the case of clause (ii) and(iii) and with respect to clause (i) insofar as it relates to subsidiaries, any defaultor violation that would not reasonably be expected to result in a Material AdverseEffect.
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To the knowledge of the Company, except as disclosed in the SEC Documents (ashereinafter defined), there exists no condition that, with notice, the passage of time orotherwise, would constitute any such default or violation.     **(e)**The execution, delivery and performance by the Company of the Transaction Documentshave been duly authorized by all necessary corporate action. The Transaction Documents havebeen duly executed and delivered by the Company and constitute a valid and bindingobligation of the Company enforceable in accordance with its terms, subject to (i) theeffect of any bankruptcy or similar laws affecting creditors’ rights generally and (ii)general principles of equity, regardless of whether a matter is considered in a proceedingin equity or at law. The execution, delivery and performance by the Company of theTransaction Documents does not require a vote of the holders of any of the Company’s CapitalStock. The execution of, and consummation of the transactions contemplated by, thisAgreement and compliance with its provisions by the Company will not violate, conflict withor result in any breach of any of the terms, conditions or provisions of, or constitute adefault under (or with notice or the lapse of time or both, would constitute a default), orrequire a consent or waiver under, or result in the imposition of a lien on any propertiesof the Company or any of its subsidiaries, or an acceleration of any indebtedness of theCompany or any of its subsidiaries pursuant to, (i) the Certificate or Articles ofIncorporation or Bylaws or other organizational or charter documents of the Company or anysuch subsidiary (each as amended to the date hereof), (ii) any indenture, lease, agreementor other instrument to which the Company or any of its subsidiaries is a party or by whichany of them or any of their properties is bound, or (iii) any violation of any local, stateor federal law, statute, ordinance, rule, regulation, requirement, judgment or court decreeor order applicable to the Company or any such subsidiary or any of their assets orproperties, except in the case of clauses (ii) and (iii) and with respect to clause (i)insofar as it relates to subsidiaries, for such violations, conflicts, breaches, defaults,consents, impositions of liens or acceleration that would not individually, or in theaggregate, reasonably be expected to result in a Material Adverse Effect. Except for thefiling of the Prospectus (as defined below), no consent, approval, authorization or orderof, or filing, registration, qualification, license or permit of or with, any court orgovernmental agency, department, commission, board, bureau, official or otherinstrumentality of any national, federal, provincial, state, local, foreign or internationalgovernment or body or any political subdivision thereof and any entity exercising executive,legislative, judicial, regulatory or administrative functions of or pertaining to government(each, a “Governmental Authority”) or (ii) any other person is required for theexecution, delivery and performance by the Company of this Agreement, except where thefailure to obtain or make any such consent, approval, authorization or order of, or filing,registration, qualification, license or permit would not reasonably be expected to result ina Material Adverse Effect.     **(f)**The Common Stock is registered pursuant to Section 12(g) of the Securities ExchangeAct of 1934, as amended (the “Exchange Act”), and is admitted for quotation onNASDAQ, and the Company has taken no action designed to, or likely to have the effect of,terminating the registration of the Common Stock under the Exchange Act or delisting ordisqualifying the Common Stock from NASDAQ, nor has theCompany received any notification that the Securities and Exchange Commission (the
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“SEC”) or NASDAQ is contemplating terminating such registration or admission forquotation.     **(g)**The Company has filed with the SEC under the Exchange Act, all reports, definitiveproxy materials and registration statements for all periods ending on or subsequent toDecember 31, 2003 and on or prior to the date hereof (all of the foregoing beingcollectively referred to as the “SEC Documents”), which are all such documents(other than preliminary proxy materials) that the Company was required to file with the SECsince December 31, 2003 through the date of this Agreement. As of their respective filingdates, the SEC Documents complied in all material respects with the requirements of theExchange Act. None of the SEC Documents, when filed, contained any untrue statement of amaterial fact or omitted to state a material fact required to be stated therein or necessaryto make the statements made therein, in light of the circumstances in which they were made,not misleading, except to the extent corrected by a SEC Document subsequently filed with theSEC prior to the date hereof.     **(h)**Each of the financial statements, together with the related notes, included in theCompany SEC Documents complied in all material respects as to form, as of its date of filingwith the SEC, with all applicable accounting requirements and the published rules andregulations of the SEC with respect thereto and presents fairly in all material respects theconsolidated financial position of the Company and its subsidiaries as of and for the datesindicated and the results of their operations and cash flows for the periods specified,subject, in the case of unaudited statements, to normal, immaterial, year-end auditadjustments and the absence of footnotes. Such financial statements have been prepared inconformity with U.S. generally accepted accounting principles (“GAAP”) on aconsistent basis throughout the periods involved, except as may be expressly stated in therelated notes thereto. The report of the Company’s independent auditors regarding theCompany’s consolidated financial statements as of and for the periods ended December 31,2004 and filed as part of the Company’s Annual Report on Form 10-K for the year endedDecember 31, 2004 has not been withdrawn, supplemented or modified, and the Company hasreceived no communication from its independent auditors concerning any such withdrawal,supplement or modification.     **(i)**To the Company’s knowledge, except as and to the extent adequately accrued orreserved against in the audited consolidated balance sheet of the Company and itssubsidiaries as at December 31, 2004 and the unaudited consolidated balance sheets of theCompany and its subsidiaries as at March 31, 2005 and June 30, 2005, neither the Company norany of its subsidiaries has any liability or obligation of any nature, whether accrued,absolute, contingent or otherwise, whether known or unknown and whether or not required byGAAP to be reflected in a consolidated balance sheet of the Company and its subsidiaries ordisclosed in the notes thereto, except for liabilities and obligations, incurred in theordinary course of business consistent with past practice since June 30, 2005, that are not,individually or in the aggregate, material to the Company or any of its subsidiaries.     **(j)**The Company and each of its subsidiaries maintain a system of accounting controlssufficient to provide reasonable assurances that (i) transactions are executed inaccordance with management’s general or specific authorization; (ii) transactions are
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recorded as necessary to permit preparation of audited financial statements in conformitywith GAAP and to maintain accountability for assets; (iii) access to assets is permittedonly in accordance with management’s general or specific authorization; and (iv) therecorded accountability for assets is compared with existing assets at reasonable intervalsand appropriate action is taken with respect to any differences.     **(k)**The Company has established and maintains disclosure controls and procedures (assuch term is defined in Rules 13a-15 and 15d-15 under the Exchange Act), which are designed(i) to ensure that information required to be disclosed by the Company in the reports thatit files or submits under the Exchange Act is recorded, processed, summarized and reported,within the time periods specified by the SEC’s rules and forms and (ii) to ensure thatinformation required to be disclosed by the Company in the reports that it files or submitsunder the Exchange Act is accumulated and communicated to the Company’s management,including its principal executive officer and principal financial officer, as appropriate toallow timely decisions regarding required disclosure.     **(l)**The Company is not aware of (i) any significant deficiency or material weaknessesin the design or operation of internal control over financial reporting which are reasonablylikely to adversely affect the Company’s ability to record, process, summarize and reportfinancial data ; or (ii) any fraud, whether or not material, that involves management orother present employees who have a significant role in the Company’s internal control overfinancial reporting. Since the most recent evaluation of the Company’s disclosure controlsand procedures described in Section 2(k) above, there have been no significant changes ininternal control over financial reporting or in other factors that have materially affected,or are reasonably likely to materially affect, the Company’s internal control over financialreporting. The Chief Executive Officer and the Chief Financial Officer of the Company havesigned, and the Company has furnished to the SEC, all certifications required by Sections302 and 906 of the Sarbanes-Oxley Act of 2002; such certifications contain no qualificationsor exceptions to the matters certified therein, except as to knowledge, and have not beenmodified or withdrawn; and neither the Company nor any of its officers has received noticefrom the SEC or any other Governmental Authority questioning or challenging the accuracy,completeness, content, form or manner of filing or submission of such certifications.     **(m)**Except as may be disclosed in the SEC Documents filed prior to the date hereof,since December 31, 2004, there has not been, individually or in the aggregate, any MaterialAdverse Effect or any fact, event, change, development, circumstance or effect that wouldreasonably be expected to result in a Material Adverse Effect.     **(n)**Since June 30, 2005, there has been (i) no action, suit or proceeding before or byany Governmental Authority or arbitration tribunal filed or, to the Company’s knowledge,threatened or contemplated to which the Company or any subsidiary is or would be a party orto which the business or property of the Company or any subsidiary is or would be subjectand (ii) no injunction, restraining order, decree, or other order of any nature by aGovernmental Authority to which the Company or any of its subsidiaries is or may be subjector to which the business, assets or property of the Company or anysubsidiary are or may be subject, that in either case, will be required to be disclosedin the
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Company’s filings with the SEC for periods subsequent to those covered by the SECDocuments.     **(o)**A registration statement on Form S-3 with respect to Common Stock (including alldocuments incorporated by reference therein and all information contained in any prospectusor prospectus supplement filed as a part or deemed to be a part of such registrationstatement, each as amended, the “Registration Statement”) has (i) been prepared bythe Company in conformity with the requirements of the Securities Act of 1933, as amended(the “Securities Act”), and the rules and regulations, including Rule 415, of theSEC thereunder (the “Rules and Regulations”), (ii) been filed with the SEC under theSecurities Act and (iii) become and is effective under the Securities Act. The Company hasprepared a prospectus, including one or more prospectus supplement(s), relating to the saleof the Shares hereunder (collectively, the “Prospectus”). The Company will file theProspectus with the SEC not later than the time permitted by Rule 424(b) promulgated underthe Securities Act. True and complete copies of the Registration Statement and Prospectushave been delivered by the Company to the Purchaser. The Registration Statement conforms,and the Prospectus and any further amendments or supplements to the Registration Statementor the Prospectus will, when they become effective or are filed with the SEC, as the casemay be, conform in all material respects to the requirements of the Securities Act and theRules and Regulations and do not and will not, as of the applicable effective date (as tothe Registration Statement and any amendment thereto) and as of the applicable filing date(as to the Prospectus and any amendment or supplement thereto) and as of the Closing containan untrue statement of a material fact or omit to state a material fact required to bestated therein or necessary to make the statements therein not misleading. The issuance ofthe Shares to the Purchaser has been registered under the Registration Statement.     **(p)**The Shares are duly listed and admitted and authorized for trading, subject toofficial notice of issuance, on the Nasdaq National Market.     **(q)**The Company is not a party to an agreement for, nor involved in any discussionsconcerning, any transaction that would reasonably be expected to result in a Change ofControl (as defined in Section 6(d)).     **(r)**As of the date hereof, except as set forth in the Company’s SEC Documents filedprior to the date hereof, neither the Company nor any of its material subsidiaries is aparty to or bound by any “material contract” (as such term is defined in Item 601(b)(10) ofRegulation S-K of the SEC).     **(s)**Section 2(s) of the Disclosure Schedule sets forth a true and complete list of (i)all the Owned Intellectual Property, (ii) all Licensed Intellectual Property and (iii) allCompany IP Agreements. For purposes of this Agreement, (A) “Intellectual Property” meanspatents, registered trademarks, registered copyrights and applications with respect to theforegoing; (B) “Owned Intellectual Property” means Intellectual Property owned by theCompany or any of its subsidiaries; (C) “Licensed Intellectual Property” means IntellectualProperty licensed to the Company or any of its subsidiaries pursuant to the Company IPAgreements; and (D) “Company IP Agreements” means (I) licenses ofIntellectual Property by the Company or any of its subsidiaries to any third party, (II)
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licenses of Intellectual Property by any third party to the Company or any of itssubsidiaries, (III) agreements between the Company or any of its subsidiaries and any thirdparty relating to the development or use of Intellectual Property, and (IV) consents,settlements, decrees, orders, injunctions, judgments or rulings governing the use, validityor enforceability of Owned Intellectual Property or Licensed Intellectual Property.     **(t)**The Company or one of its subsidiaries is the exclusive owner of the entire right,title and interest in and to the Owned Intellectual Property, and has a valid license to usethe Licensed Intellectual Property licensed to it. The Company or one of its subsidiariesis entitled to use all Owned Intellectual Property and Licensed Intellectual Property in thecontinued operation of its business without limitation, subject only to the terms of theCompany IP Agreements. The Owned Intellectual Property and the Licensed IntellectualProperty have not been adjudged invalid or unenforceable in whole or in part, and, to theCompany’s knowledge, are valid and enforceable. Except as disclosed in the SEC Documents,none of the Owned Intellectual Property has been or is now involved in any interference,reissue, reexamination, opposition or cancellation proceeding. To the Company’s knowledge,neither the Company nor any of its subsidiaries has taken any action or failed to take anyaction that could reasonably be expected to result in the abandonment, cancellation,forfeiture, relinquishment, invalidation or unenforceability of any of the OwnedIntellectual Property and to its knowledge all filing, examination, issuance, postregistration and maintenance fees, annuities and the like associated with or required withrespect to any of the Owned Intellectual Property have been timely paid. The Company andits subsidiaries have taken reasonable steps to protect their respective rights in the OwnedIntellectual Property and maintain the confidentiality of all of their trade secrets. Allcurrent or former employees, consultants and contractors who have participated in thecreation of any Intellectual Property that is used by the Company or any of its subsidiarieshave entered into proprietary information, confidentiality and assignment agreementssubstantially in the form of the Company’s standard forms.     **(u)**To the Company’s knowledge, the conduct of the business of the Company and itssubsidiaries as currently conducted does not infringe or misappropriate any validIntellectual Property of any third party. No action alleging any of the foregoing ispending, and no unresolved, written claim has been threatened or asserted against theCompany or any of its subsidiaries alleging any of the foregoing. To the Company’sknowledge, no person is engaging in any activity that infringes the Owned IntellectualProperty.     **(v)**Neither the Company nor any subsidiary has granted an exclusive license orsublicense with respect to any of its Owned Intellectual Property or Licensed IntellectualProperty to any third party. Except as disclosed in the SEC Documents, no dispute arisingunder any Company IP Agreement is pending or, to the Company’s knowledge, threatened, ineach case that could reasonably be expected to result in an impairment of the Company’srights under or a termination of such Company IP Agreement.
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     **(w)**Neither the Company nor any of its subsidiaries has received any warning letterfrom the U.S. Food and Drug Administration (the “FDA”) (or similar GovernmentalAuthority in jurisdictions outside the United States) during the last three years. Withoutlimiting the foregoing, the Company and its subsidiaries are in compliance, in all respects,with all current applicable statutes, rules, regulations, guidelines or orders administeredor issued by the FDA or comparable foreign Governmental Authority; the Company does not haveknowledge of any facts which furnish any reasonable basis for any Form FDA-483 observationsor regulatory or warning letters from the FDA, Section 305 notices, or other similarcommunications from the FDA or comparable foreign entity. To the Company’s knowledge,neither the Company nor any officer, employee or agent has made a statement, or failed tomake a statement that, at the time such disclosure was made, could reasonably be expectedto provide a basis for the FDA or comparable foreign Governmental Authority to invoke itspolicy respecting Fraud, Untrue Statements of Material facts, Bribery, and IllegalGratuities, set forth in 56 Fed. Reg. 46191 (September 10, 1991).     **(x)**(i) Except as would not reasonably be expected to result in a Material AdverseEffect, (A) each of the Company and its subsidiaries is and has been in compliance with allapplicable Environmental Laws; (B) none of the Company, any of its subsidiaries or any ofits or their executive officers has received during the past five years, nor, to theCompany’s knowledge, is there any basis for, any communication or complaint from aGovernmental Authority or other person alleging that the Company or any of its subsidiarieshas any liability under any Environmental Law or is not in compliance in any materialrespect with any Environmental Law; (C) no Hazardous Substances are or have been present,and there is and has been no Release or threatened Release of Hazardous Substances nor anyclean-up or corrective action of any kind relating thereto, on any properties (including anybuildings, structures, improvements, soils and surface, subsurface and ground watersthereof) currently or formerly owned, leased or operated by or for the Company or any of itssubsidiaries or any predecessor company, at any location to which the Company or any of itssubsidiaries has sent any Hazardous Substances; and (D) neither the Company nor any of itssubsidiaries is actually, contingently, potentially or allegedly liable for any Release of,threatened Release of or contamination by Hazardous Substances or otherwise under anyEnvironmental Law. There is no pending or, to the Company’s knowledge, threatenedinvestigation by any Governmental Authority, nor any pending or, to the Company’s knowledge,threatened action with respect to the Company or any of its subsidiaries relating toHazardous Substances or otherwise under any Environmental Law. Each of the Company and itssubsidiaries holds all material Environmental Permits, and is and has been in compliance inall material respects therewith. To the knowledge of the Company, the execution anddelivery of this Agreement nor the consummation of the transactions contemplated hereby will(i) require any notice to or consent of any Governmental Authority or other person pursuantto any applicable Environmental Law or Environmental Permit or (ii) subject anyEnvironmental Permit to suspension, cancellation, modification, revocation or nonrenewal.The Company and its subsidiaries have provided to the Purchaser all “Phase I”, “Phase II” orother environmental assessment reports in their possession or to which they have reasonableaccess addressing locations ever owned, operated or leased by the Company or any of itssubsidiaries or at
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which the Company or any of its subsidiaries actually, potentially or allegedly mayhave liability under any Environmental Law.     (ii) For purposes of this Agreement:     (A) “Environmental Laws” means: any Laws of any Governmental Authorityrelating to (I) releases or threatened releases of Hazardous Substances or materialscontaining Hazardous Substances; (II) the manufacture, handling, transport, use,treatment, storage or disposal of Hazardous Substances or materials containingHazardous Substances; or (III) pollution or protection of the environment, workerhealth and safety, exposure to Hazardous Substances or natural resources;               (B) “Environmental Permits” means all permits under any Environmental Law necessaryfor the conduct of the business by the Company and its subsidiaries.     (C) “Hazardous Substances” means: (i) those substances defined in orregulated under the Hazardous Materials Transportation Act, the ResourceConservation and Recovery Act, the Comprehensive Environmental Response,Compensation and Liability Act (“CERCLA”), the Clean Water Act, the SafeDrinking Water Act, the Atomic Energy Act, the Federal Insecticide, Fungicide, andRodenticide Act and the Clean Air Act, and their state counterparts, as each may beamended from time to time, and all regulations thereunder; (ii) petroleum andpetroleum products, including crude oil and any fractions thereof; (iii) naturalgas, synthetic gas, and any mixtures thereof; (iv) polychlorinated biphenyls,asbestos and radon; (v) any other pollutant or contaminant; and (vi) any substance,material or waste regulated by any Governmental Authority pursuant to anyEnvironmental Law; and     (D) “Release” has the meaning set forth in Section 101(22) of CERCLA.     **3. Purchaser Representations and Warranties.**The Purchaser hereby represents and warrants tothe Company the following:     **(a)**The Purchaser is a corporation duly organized, validly existing and in goodstanding under the laws of the State of Delaware and has full corporate power and authorityto conduct its business as presently conducted and as proposed to be conducted by it and toenter into, deliver and perform its obligations set forth in the Transaction Documents andto carry out the transactions contemplated hereby and thereby. The Purchaser has not beenorganized, reorganized or recapitalized specifically for the purpose of investing in theCompany.     **(b)**The execution, delivery and performance of the Transaction Documents have been dulyauthorized by all necessary corporate action by the Purchaser. Each Transaction Documenthas been duly executed and delivered by the Purchaser and constitutes a valid and bindingobligation of the Purchaser enforceable against it inaccordance with its terms, subject to (i) the effect of any bankruptcy or similar laws
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affecting creditors’ rights generally and (ii) general principles of equity, regardless ofwhether a matter is considered in a proceeding in equity or at law. The execution of, andconsummation of the transactions contemplated by, the Transaction Documents and compliancewith its provisions by the Purchaser will not violate, conflict with or result in any breachof any of the terms, conditions or provisions of, or constitute a default under, or requirea consent or waiver under, (i) its Articles of Incorporation or Bylaws (each as amended tothe date hereof), (ii) any material indenture, lease, agreement or other instrument to whichthe Purchaser is a party or by which it or any of its material properties is bound, or (iii)any decree, judgment, order, statute, rule or regulation applicable to the Purchaser, whichin the case of clause (ii) or (iii) would have a material adverse effect on the timelyconsummation of the transactions contemplated hereby. No consent, approval, authorizationor order of, or filing, registration, qualification, license or permit of or with, (i) anyGovernmental Authority or (ii) any other person is required for the execution, delivery andperformance by the Purchaser of this Agreement, except where the failure to obtain or makeany such consent, approval, authorization or order of, or filing, registration,qualification, license or permit would not reasonably be expected to result in a materialadverse effect on the timely consummation of the transactions contemplated hereby.     **(c)**There is no proceeding pending against the Purchaser or any of its Affiliates or,to the Purchaser’s knowledge, threatened that in any manner challenges or seeks, orreasonably could be expected, to prevent, enjoin, alter or materially delay any of thetransactions contemplated by this Agreement.     **(d)**The Purchaser acknowledges that it has reviewed the SEC Documents and thisAgreement (the “Disclosure Materials”) and has been afforded (i) the opportunity toask such questions as it has deemed necessary of, and to receive answers from,representatives of the Company concerning the terms and conditions of the offering of theShares and the merits and risks of investing in the Shares; (ii) access to information aboutthe Company and its subsidiaries and their respective financial condition, results ofoperations, business, properties, management and prospects sufficient to enable it toevaluate its investment; and (iii) the opportunity to obtain such additional informationthat the Company possesses or can acquire without unreasonable effort or expense that isnecessary to make an informed investment decision with respect to the investment. Neithersuch inquiries nor any other investigation conducted by or on behalf of the Purchaser or itsrepresentatives or counsel shall modify, amend or affect the Purchaser’s right to rely onthe truth, accuracy and completeness of the Disclosure Materials and the Company’srepresentations and warranties contained herein. The Purchaser acknowledges and agrees thatthe fact that the Company is seeking to effect the offer and sale of the Shares hereundermay constitute material non-public information and disclosure of such information or use ofsuch information by the Purchaser or anyone receiving such information from the Purchaser inconnection with the purchase, sale or trade of the Company’s securities, or any hedging,derivative or similar transactions or activities involving the Company’s securities, may bea violation of securities laws.     **(e)**The Purchaser has not within the past ninety (90) days (i) engaged in anyshort selling or short sales “against the box” in the Company’s securities, (ii) establishedor increased any “put equivalent position” as defined in Rule 16(a)-1(h) under the
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Exchange Act with respect to the Company’s securities, or (iii) engaged in any purchase orsale, or made any offer to purchase or offer to sell, derivative securities relating to theCompany’s securities, whether or not issued by the Company, such as exchange traded optionsto purchase or sell the Company’s securities.     **4. Investment Representations of the Purchaser.**In connection with the purchase of theShares, the Purchaser hereby represents and warrants to the Company that the Purchaser is acquiringthe Shares solely for the purpose of investment (as defined in 16 CFR 801.1(i)(1)) and has nopresent intention of participating in the formulation, determination or direction of the basicbusiness decisions of the Company.     **5. Conditions to Closing**.          **(a) **The obligation of each party to this Agreement to consummate the purchase and sale ofShares at the Closing shall be subject to the satisfaction at or prior to the Closing of thefollowing conditions:          **(i)**No temporary restraining order, preliminary or permanent injunction or other orderissued by any Governmental Authority or other legal or regulatory restraint or prohibitionpreventing the issuance and sale of the Shares shall be in effect. There shall be noaction, suit or other proceeding pending in or before any Governmental Authority orarbitration tribunal against or involving either the Company or the Purchaser that in anymanner challenges or seeks to prevent, enjoin, alter or materially delay the consummation ofthe transactions contemplated to occur at the Closing and the enforceability of the rightsand obligations as contemplated by the Transaction Documents, and neither the Company northe Purchaser (nor any of their respective Affiliates) shall have received notice of anysuch threatened proceeding;          **(ii)**The issuance of the Shares shall be exempt from the notification requirements ofthe Hart-Scott-Rodino Antitrust Improvements Act of 1976;          **(iii)**Except for the Prospectus, all other notices, reports and other filings requiredto be made prior to the Closing with, and all consents, registrations, approvals, permitsand authorizations required to be obtained prior to the Closing from, any GovernmentalAuthority for the issuance and sale of the Shares in accordance with the terms hereof shallhave been made or received and remain in effect as of the date of Closing; and          **(iv)**The Registration Statement pursuant to which the Shares will be issued to thePurchaser shall be effective and not subject to a stop order.          **(b) **The obligation of the Company to consummate the purchase and sale of Shares at the Closingshall be subject to the satisfaction at or prior to the Closing of the following conditions:          **(i)**The Purchaser shall have delivered a certificate of an executive officer of thePurchaser confirming that the representations and warranties of the
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Purchaser set forth in Sections 3 and 4 hereof are true and correct as of the date ofClosing;          **(ii)**The Purchaser shall have delivered the Purchase Amount to the Company by wiretransfer of immediately available U.S. federal funds; and          **(iii)**The Purchaser shall have executed and delivered the Alliance Agreement to theCompany.          **(c) **The obligation of the Purchaser to consummate the purchase and sale of Shares at theClosing shall be subject to the satisfaction at or prior to the Closing of the followingconditions:          **(i)**The Shares shall have been accepted for and approved for inclusion and quotation onNASDAQ;          **(ii)**The Company shall have delivered to the Purchaser a certificate of an executiveofficer of the Company confirming that the representations and warranties of the Company setforth in Section 2 hereof are true and correct as of the date of Closing;          **(iii)**The Company shall have delivered to the Purchaser a stock certificaterepresenting the Shares or in lieu thereof shall have caused a book entry evidencing thePurchaser’s ownership of the Shares to be entered in the books and records of suchbroker-dealer as shall have been identified by the Purchaser for such purpose; and          **(iv)**The Company shall have executed and delivered the Alliance Agreement to thePurchaser.     **6. Limitations on Transfer.**               **(a) **During the period from the date hereof until the first (1st) anniversary of the datehereof (the “Lock-Up Period”), the Purchaser agrees (on behalf of itself and itsAffiliates), with respect to the Shares and any Capital Stock issued as (or issuable upon theconversion or exercise of any warrant, right or other security which is issued as) a dividend orother distribution with respect to, or in exchange for or replacement of the Shares (collectively,the “Restricted Shares”), not to Transfer any of such Restricted Shares.“Transfer” means and includes any sale, assignment, encumbrance, hypothecation, pledge,conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or dispositionof any kind, including but not limited to short sales or other hedging mechanisms, transfers toreceivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assigneesfor the benefit of creditors, whether voluntary or by operation of law, directly or indirectly.               **(b) **The provisions of Section 6(a) shall not apply to a Transfer by the Purchaser and any ofits Affiliates of Restricted Shares (each of the following, a “Permitted Transfer”):          **(i)**to any Affiliate of the Purchaser, provided such Affiliate agrees in writing to bebound by the terms of this Agreement (and if, at any time after such
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Transfer, such Affiliate is no longer an Affiliate of the Purchaser, to ensure thatsuch Shares are Transferred back to the Purchaser or one of its other Affiliates);          **(ii)**pursuant to a Third Party Tender Offer;          **(iii)**to the Company or, with the Company’s written consent, an agent acting on theCompany’s behalf;          **(iv)**pursuant to or following a Change of Control (as defined below); or          **(v)**if David Nance ceases to be the Company’s Chief Executive Officer and is not theChairman of the Company’s board of directors.     The term “Third Party Tender Offer” means a bona fide public offer subject to theprovisions of Regulation 14D or 14E under the Exchange Act, by a “person” or “group” (as such termsare used in Sections 13(d) and 14(d) of the Exchange Act) (which is not made by and does notinclude the Purchaser or any of its Affiliates or any group that includes as a member the Purchaseror any of its Affiliates) to purchase or exchange for cash or other consideration more than 50% ofthe outstanding securities of the Company.          **(c) **Following expiration of the Lock-Up Period, the Purchaser and its Affiliates may Transferall or any part of the Restricted Shares in any manner free from the restrictions set forth in thisSection 6.          **(d) **The restrictions on Transfer set forth in Section 6(a) shall terminate prior to theexpiration of the Lock-Up Period upon the earliest to occur of: (i) a Change of Control of theCompany or (ii) the liquidation or dissolution of the Company. The Company agrees to give promptwritten notice to the Purchaser of the occurrence of any event specified in clauses (i) or (ii).As used herein, “Change of Control” shall mean the occurrence of any of the followingevents:          **(i)**any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of theExchange Act) other than the Purchaser or any of its Affiliates and excluding any group thatincludes as a member the Purchaser or any of its Affiliates, is or becomes the “beneficialowner” (as defined in Rule l3d-3 under the Exchange Act), directly or indirectly, of morethan 50% of the total voting power of the outstanding Capital Stock of the Company, butexcluding the shares held by the Company, any subsidiary of the Company or any employeebenefit plan of the Company or of any subsidiary of the Company, or any entity holdingCapital Stock for or pursuant to the terms of such plan;          **(ii)**the Company merges with or into, or consolidates with, or consummates anyreorganization or similar transaction with, another person (other than the Purchaser or anyof its Affiliates) and, immediately after giving effect to such transaction, less than 50%of the total voting power of the outstanding Capital Stock of the surviving or resultingperson is “beneficially owned” (within the meaning of
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Rule 13d-3 under the Exchange Act) in the aggregate by the stockholders of the Companyimmediately prior to such transaction;          **(iii)**in one transaction or a series of related transactions with another person (otherthan the Purchaser or any of its Affiliates), the Company, directly or indirectly (includingthrough one or more of its subsidiaries) sells, assigns, conveys, transfers, leases orotherwise disposes of, all or substantially all of the assets or properties (includingCapital Stock of subsidiaries) of the Company, but excluding liens on such assets orproperties and sales, assignments, conveyances, transfers, leases or other dispositions ofassets or properties (including Capital Stock of subsidiaries) by the Company or any of itssubsidiaries to any direct or indirect wholly-owned subsidiary of the Company; or          **(iv)**individuals who as of the date hereof constituted the Board of Directors of theCompany (or any new directors whose election by such Board of Directors or whose nominationfor election by the stockholders of the Company was approved by a vote of a majority of thedirectors then still in office) cease for any reason to constitute a majority of the Boardof Directors of the Company then in office.          **(e) **The Company shall not be required to (i) transfer on its books any Restricted Shares thatshall have been transferred in violation of any of the provisions set forth in this Agreement or(ii) treat as owner of such Restricted Shares, or to accord the right to vote or to pay dividendsto, any transferee to whom such Restricted Shares shall have been so transferred.     **7. Voting Agreement.**          **(a)**Subject to Section 7(b), in the event that a Corporate Action is approved by the Company’sBoard of Directors or other governing body, the Purchaser hereby agrees to consent to and vote allCapital Stock of the Company held by the Purchaser, and to cause all Capital Stock of the Companyheld by any Affiliate of the Purchaser to be voted in favor of such Corporate Action. For theavoidance of doubt, the covenants set forth in this Section 7(a) shall not be applicable to anytransferee (other than an Affiliate of the Purchaser) to whom the Purchaser or one of itsAffiliates transfers Restricted Shares pursuant to a Transfer permitted under Sections 6(b)(ii),(iii) and (iv), pursuant to a sale of shares into an established trading market for such shares inaccordance with applicable securities laws, including sales made under Rule 144 under theSecurities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the“Securities Act”), or pursuant to a private placement under the Securities Act providedthat securities transferred in each such private placement constitute less than three percent (3%)of the outstanding Capital Stock of the Company; and provided that securities Transferred in eachsuch private placement are not, to the knowledge of the Purchaser after reasonable inquiry,Transferred to the same “person” or “group” (as such terms are used in Sections 13(d) and 14(d) ofthe Exchange Act). A “Corporate Action” shall mean any matter put to a vote of thestockholders of the Company. “Capital Stock” means, with respect to any person, any andall shares, interests, participation, rights or other equivalents in the equity interests (howeverdesignated) in that person.          **(b)**The Purchaser’s obligations set forth in Section 7(a) shall:
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          **(i)**terminate (A) if the Company issues more than five percent (5%) of its thenoutstanding capital stock (on a fully diluted basis) to another Corporate Partner (asdefined below) and such Corporate Partner does not enter into a voting agreement with termssubstantially similar to the covenants set forth in Section 7 of this Agreement, (B) ifsuch Corporate Partner does enter into such a voting agreement with the Company, if suchvoting agreement is subsequently terminated or (C) upon a Change of Control of the Company;          **(ii)**be suspended (A) for any time during which a voting agreement described in Section7(b)(i) with another Corporate Partner is suspended, (B) for any time in which the Purchaserand its Affiliates in the aggregate hold less than three percent (3%) of the outstandingCapital Stock of the Company or (C) to the extent (1) the Purchaser’s standstill obligationsset forth in Section 8(a) of this Agreement are, or were they still in effect, would be,suspended and (2) the Purchaser and its Affiliates vote in favor of an acquisition of theCompany by the Purchaser.          **(c)**For purposes of this Agreement, “Corporate Partner” means any person or entity other thanthe Purchaser or any of its Affiliates that after the Effective Date (i) acquires more than fivepercent (5%) of the Company’s then outstanding Capital Stock and (ii) (A) enters into an agreementwith the Company or any of its subsidiaries providing it with negotiation or commercializationrights with respect to any of the Company’s or any of its subsidiary’s products or (B) enters intoa research and development or clinical collaboration agreement or Intellectual Property licenseagreement with the Company or any of its subsidiaries.     **8. Standstill Agreement.**          **(a)**From the date of this Agreement until the earlier of (1) the first (1st) anniversary ofthe date hereof and (2) a Change of Control of the Company, subject to Section 8(c), the Purchaserwill not, and will cause all of its Affiliates not to:          **(i)**Purchase, offer to purchase, agree to acquire or otherwise acquire, directly orindirectly, beneficial or record ownership of any shares of the Capital Stock of the Companyor any other securities convertible into or exercisable or exchangeable for any CapitalStock of the Company (excluding shares and securities received by way of stock dividend,stock reclassification or other distributions or offerings made available on a pro ratabasis to each of the Company’s stockholders) if, after giving effect to such purchase, offerto purchase, agreement to acquire or other acquisition , the Purchaser, its Affiliates andall groups of which the Purchaser or any of its Affiliates is a member would beneficiallyown in the aggregate in excess of 20% of the Company’s outstanding Capital Stock;          **(ii)**make, or in any way participate in, directly or indirectly in concert with others(including by or through any group of which the Purchaser or any of its Affiliates is amember), any “solicitation” of “proxies” (as such terms are used in the rules of the SEC) tovote securities of the Company or to provide or withhold consents with respect to securitiesof the Company, or seek to advise or influence any person or entity with respect to thevoting of or the providing or withholding consent with respect to, any securities of theCompany;
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          **(iii)**either directly or indirectly in concert with others (including by or through anygroup of which the Purchaser or any of its Affiliates is a member) make any offer withrespect to, or make or submit a proposal with respect to, or ask or request any other personto make an offer or proposal with respect to any acquisition of a significant amount ofsecurities or assets of the Company or any of its Affiliates, including in connection withany extraordinary transaction, such as a merger, reorganization, recapitalization, tender orexchange offer or asset disposition involving the Company or any of its Affiliates that, ifconsummated, such acquisition, transaction, merger, reorganization, recapitalization, tenderor exchange offer or asset disposition would constitute a Change of Control of the Company(an “Extraordinary Transaction”);          **(iv)**form, join or in any way participate in a “group” (as such term is used inSections 13(d) and 14(d) of the Exchange Act) in connection with any of the foregoing;          **(v)**either directly or indirectly in concert with others (including by or through anygroup of which the Purchaser or any of its Affiliates is a member) seek representation onthe Company’s Board of Directors or any of its controlled Affiliates or otherwise act aloneor in concert with others (including by or through any group of which the Purchaser or anyof its Affiliates is a member) to seek to control or influence the management or Board ofDirectors of the Company or any of its controlled Affiliates;          **(vi)**take any action that could reasonably be expected to require the Company to make apublic announcement regarding the possibility of any of the events described in clauses (i)through (v) above;          **(vii)**either directly or indirectly in concert with others (including by or through anygroup of which the Purchaser or any of its Affiliates is a member) request that the Companyterminate or waive compliance by the Purchaser or any of its Affiliates of its obligationsunder this Section 8(a), or otherwise propose any amendment hereto that would have theforegoing effect; or          **(viii)**either directly or indirectly in concert with others (including by or throughany group of which the Purchaser or any of its Affiliates is a member) publicly announce ordisclose any intention, plan or arrangement inconsistent with the foregoing.          **(b)**Notwithstanding the provisions of Section 8(a) nothing herein shall prohibit or restrictthe Purchaser or its Affiliates from making any disclosure pursuant to Sections 13(d)-(f) of theExchange Act which the Purchaser or such Affiliate reasonably believes, based on the advice ofindependent legal counsel, is required in connection with any action taken by the Purchaser or suchAffiliate that is not inconsistent with this Agreement.          **(c)**If (i) the Company enters into a definitive agreement with respect to a transaction that,if consummated, would result in a Change of Control of the Company, (ii) a Third Party Tender Offeris announced, and following due consideration by the Board of Directors of the Company of suchoffer, the Board of Directors of the Company does not publicly recommend against acceptance of suchoffer, or (iii) the Company makes a public announcement that it has engaged an investment bankerfor the purpose of seeking a Change of
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Control transaction, that it is seeking a Change of Control transaction or that it isexploring other similar strategic alternatives, then the restrictions set forth in Section 8(a)shall be suspended from the first to occur of the foregoing until the applicable SuspensionExpiration Date (as defined below). Neither the Purchaser nor any of its Affiliates shall beobligated by reason of this Section 8 to divest any Company securities acquired by it during suchsuspension period.          **(d)**“Suspension Expiration Date” shall mean (i) for purposes of Section 8(c)(i), upontermination of such definitive agreement, (ii) for purposes of Section 8(c)(ii), upon the earlierof the Company’s Board of Directors rejecting such offer and the termination of such offer, or(iii) for purposes of Section 8(c)(iii), upon the Company’s public announcement or delivery ofconfidential notice to the Purchaser that the Company is no longer seeking a Change of Controltransaction or exploring such strategic alternatives.          **(e)**The Company agrees to give prompt written notice to the Purchaser of the occurrence of anyevent specified in Section 8(c) above.          **(f)**For the avoidance of doubt, the covenants set forth in Section 8 shall not be applicableto any person to whom the Restricted Shares have been Transferred (other than an Affiliate of thePurchaser) pursuant to a Permitted Transfer or after the Lock-Up Period has expired.     **9. Legends.**The Purchaser understands and agrees that the certificates evidencing theRestricted Shares shall bear the following legends:THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS ANDCONDITIONS OF A CERTAIN COMMON STOCK PURCHASE AGREEMENT DATED AS OF NOVEMBER4, 2005 AMONG THE CORPORATION AND THE ORIGINAL HOLDER OF THESE SECURITIES,INCLUDING THE VOTING PROVISIONS, LOCK-UP PROVISIONS AND STANDSTILLPROVISIONS. IN ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT, SUCH LOCK-UPPROVISIONS AND STANDSTILL PROVISIONS SHALL EXPIRE NO LATER THAN NOVEMBER 4,2006. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THESECRETARY OF THE CORPORATION.     If such shares are not certificated, then a substantially similar notification shall be placedin an appropriate fashion with the person charged with maintaining registration of the ownership ofsuch Restricted Shares so as to put on notice of the terms and conditions of this Agreement anytransferee of such Restricted Shares. Following the termination of the restrictions set forth inthis Agreement with respect to any of the Restricted Shares, upon the request of the Purchaser thatholds or held such shares, the Company shall issue to the Purchaser or such other person asdirected by the Purchaser a new certificate or certificates representing such Restricted Sharesthat does not or do not contain the Legend.
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     **10. Miscellaneous.**          **(a) Notices.**All notices and other communications required or permitted under any of theTransaction Documents shall be in writing and shall be (i) mailed by registered or certified mail,postage prepaid, return receipt requested, (ii) sent by facsimile or telecopier, with writtenreceipt of confirmation or (iii) otherwise delivered by hand or by messenger or a nationallyrecognized overnight courier, addressed or telecopied as follows:     If to the Company:Introgen Therapeutics, Inc.