EX-10.53






STOCK AND WARRANT PURCHASE AGREEMENT




Inhibitex, Inc.


9005 Westside Parkway


Alpharetta, GA 30009



Ladies & Gentlemen:



The undersigned,                             (the “Investor”), hereby confirms
its agreement with you as follows:



1. This Stock and Warrant Purchase Agreement is made as of October 22, 2009 between Inhibitex,
Inc., a Delaware corporation (the “Company”), and the Investor.



2. The Company has authorized the sale and issuance of up to 17,968,750 shares (the
“Shares”) of common stock of the Company, $0.001 par value per share (the “Common
Stock”), and warrants to purchase up to 8,085,937 shares (the “Warrant Shares”) of
Common Stock at an exercise price per share of $1.46 (the “Warrants”) to certain investors
in a private placement (the “Offering”).



3. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor               Shares and a Warrant to purchase
             Warrant Shares, for a purchase price of $1.28 per Share, or an aggregate
purchase price of $              , pursuant to the Terms and Conditions for Purchase of
Shares attached hereto as Annex I and incorporated herein by reference as if fully set forth herein
(the “Terms and Conditions”). This Stock and Warrant Purchase Agreement, together with the
Terms and Conditions, which are incorporated herein by reference as if fully set forth herein, may
hereinafter be referred to as the “Agreement”. Unless otherwise requested by the Investor,
the Warrant and certificates representing the Shares purchased by the Investor will be registered
in the Investor’s name and address as set forth below. The Warrant shall have the rights,
preferences, privileges and restrictions as set forth in the form of a Warrant attached hereto as
Exhibit D.



[Signature Page Follows.]





1






Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.



	 	 	 
	AGREED AND ACCEPTED:	 	 
	Inhibitex, Inc.
	 	Investor:

	 	 	 

	 	 	By:

	 	 	 

	By:
	 	Print Name:

	Title:
	 	Title:

	 	 	Address:

	 	 	 

	 	 	Tax ID No.:

	 	 	 

	 	 	Contact Name:

	 	 	 

	 	 	Telephone:

	 	 	 

	 	 	Name in which shares should be registered (if different):







ANNEX I

TERMS AND CONDITIONS FOR PURCHASE OF SHARES AND WARRANTS




1. Authorization and Sale of the Shares and Warrants. Subject to these Terms and
Conditions, the Company has authorized the sale of up to 17,968,750 Shares and Warrants to purchase
up to 8,085,937 Warrant Shares. The Company reserves the right to increase or decrease this number.



2. Agreement to Sell and Purchase the Shares and Warrants; Subscription Date.



2.1. At the Closing (as defined in Section 3), the Company will sell to the Investor, and the
Investor will purchase from the Company, upon the terms and conditions hereinafter set forth, the
number of Shares and a Warrant to purchase the number of Warrant Shares each as set forth in
Section 3 of the Stock and Warrant Purchase Agreement to which these Terms and Conditions are
attached at the purchase price set forth thereon.



2.2. The Company may enter into the same form of Stock and Warrant Purchase Agreement,
including these Terms and Conditions, with certain other investors (the “Other Investors”)
and, on the Closing Date, complete sales of Shares and Warrants to them. The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the “Investors,” and the
Stock and Warrant Purchase Agreement to which these Terms and Conditions are attached and the Stock
and Warrant Purchase Agreements (including attached Terms and Conditions) executed by the Other
Investors are hereinafter sometimes collectively referred to as the “Agreements.”



2.3. The obligations of each Investor under any Agreement are several and not joint with the
obligations of any other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Agreement. Nothing contained herein,
and no action taken by any Investor hereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated hereby, provided that such obligations or the transactions
contemplated hereby may be modified, amended or waived in accordance with Section 9 below. Each
Investor shall be entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement (provided, that such rights may be modified,
amended or waived in accordance with Section 9 below) and the Warrant, and it shall not be
necessary for any Other Investor to be joined as an additional party in any proceeding for such
purpose.



3. Delivery of the Shares and Warrants at Closing. It is expected that the completion
of the purchase and sale of the Shares and Warrants (the “Closing”) shall occur on or about
October 28, 2009 (the “Closing Date”) at the offices of the Company’s counsel; provided,
however, that this Agreement shall automatically terminate if the Closing shall not have been
consummated within 10 days following the date hereof. At the Closing, the Company shall deliver to
the Investor a Warrant representing the number of Warrant Shares and one or more stock certificates
representing the number of Shares, in each case as is set forth in Section 3 of the Stock and
Warrant Purchase Agreement, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page of the Stock and Warrant Purchase Agreement, in the name of a
nominee designated by the Investor.



The Company’s obligation to issue the Shares and the Warrant to the Investor shall be subject
to the following conditions, any one or more of which may be waived by the Company: (a) the Company
shall have received a certified or official bank check or wire transfer of funds in the full amount
of the purchase price for the Shares and the Warrant being purchased hereunder as set forth in
Section 3 of the Stock and Warrant Purchase Agreement and (b) the representations and warranties of
the Investors set forth herein shall be true and correct as of the date when made and as of the
Closing Date in all material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and correct in all
respects) and the undertakings of the Investors contained in this Agreement shall have be fulfilled
in all material respects on or prior to the Closing Date.



The Investor’s obligation to purchase the Shares and the Warrant shall be subject to the
following conditions, any one or more of which may be waived by the Investor: (a) the
representations and warranties of the Company set forth herein shall be true and correct as of the
date when made and as of the Closing Date (except for representations and warranties that speak as
of a specific date, which representations and warranties shall be true and correct as of such date)
in all material respects (except for those representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all respects) and the
undertakings of the Company contained in this Agreement shall have been fulfilled in all material
respects on or prior to the Closing Date and (b) the Investor shall have received such documents as
such Investor shall reasonably have requested, including, a standard opinion of the Company’s
counsel including as to the matters set forth in Section 4.3 and as to exemption from the
registration requirements of the Securities Act of 1933, as amended (the “Securities Act”),
of the sale of the Shares and Warrants.



4. Representations, Warranties and Covenants of the Company. The Company hereby
represents and warrants to, and covenants with, the Investor, as follows:



4.1. Subsidiaries. The Company owns or controls, directly or indirectly, only the
following entities: FermaVir Pharmaceuticals, Inc. and FermaVir Research, Inc. (each a
“Subsidiary” and, collectively, the Subsidiaries”), and the Company owns or
controls, directly or indirectly, all of the capital stock of each Subsidiary free and clear of any
lien, charge, claim, security interest, encumbrance, right of first refusal or other restriction.



4.2. Organization. The Company and each Subsidiary is duly organized and validly
existing in good standing under the laws of the State of Delaware. The Company and each Subsidiary
has full power and authority to own or lease its properties and to conduct its business as
presently conducted and is registered or qualified to do business and in good standing in each
jurisdiction in which the nature of the business conducted by it or the location of the properties
owned or leased by it requires such qualification and where the failure to be so qualified would
(i) have a material adverse effect upon the condition (financial or otherwise), earnings, business
or business prospects, properties, operations or results of operations of the Company and its
Subsidiaries taken as a whole or (ii) cause a material adverse impairment on the authority or
ability of the Company to perform its obligations hereunder or under the Warrants (a “Material
Adverse Effect”), and no proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.



4.3. Due Authorization and Valid Issuance. The Company has all requisite power and
authority to execute, deliver and perform its obligations under the Agreements and the Warrants,
and the Agreements and the Warrants have been (or upon delivery will be) duly authorized and
validly executed and delivered by the Company and constitute (or upon delivery will constitute)
legal, valid and binding agreements of the Company enforceable against the Company in accordance
with their terms, except (i) as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws, (ii) as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and (iii) as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Shares being purchased by the Investor hereunder and the
Warrant Shares issuable pursuant to the Warrant will, upon issuance and payment therefor pursuant
to the terms hereof and thereof, be duly authorized, validly issued and free from all liens and
charges with respect to the issuance thereof, fully-paid and nonassessable. The Warrant being
purchased by the Investor hereunder will, upon issuance and payment therefor and pursuant to the
terms hereof and thereof, be duly authorized and validly issued and free from all liens and charges
with respect to the issuance thereof.



4.4. Non-Contravention. The execution and delivery of the Agreements and the Warrants,
the issuance and sale of the Shares and the Warrants under the Agreements and the Warrant Shares
under the Warrant, the fulfillment of the terms of the Agreements and the Warrants and the
consummation of the transactions contemplated thereby will not (A) conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, (i) any bond, debenture,
note or other evidence of indebtedness, lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which the Company is a party or by
which it or its properties are bound, (ii) the charter, by-laws or other organizational documents
of the Company, or (iii) assuming the accuracy of the representations and warranties of the
Investors set forth in Section 5.4(iv)(c) hereof, any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or authority (including federal and
state securities laws and regulations and the rules and regulations of Nasdaq (as defined below))
applicable to the Company or any of its properties, except in the case of clauses (i) and (iii) for
any such conflicts, violations or defaults that are not reasonably likely to have a Material
Adverse Effect or (B) result in the creation or imposition of any lien, encumbrance, claim,
security interest or restriction whatsoever upon any of the properties or assets of the Company or
an acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or any indenture, mortgage, deed of
trust or any other agreement or instrument to which the Company is a party or by which it is bound
or to which any of the material property or assets of the Company is subject, except for such
liens, encumbrances, claims, security interests or restrictions upon any of the properties or
assets of the Company or accelerations of indebtedness that are not reasonably likely to have a
Material Adverse Effect. No consent, approval, authorization or other order of, or registration,
qualification or filing with, any regulatory body, administrative agency, or other governmental
body or any other person is required for the execution and delivery of the Agreements and the
Warrants, and the valid issuance and sale of the Shares and Warrants to be sold pursuant to the
Agreements, and the valid issuance of the Warrant Shares under the Warrant, other than such as have
been made or obtained, and except for any post-closing securities filings or notifications required
to be made under federal or state securities laws.



4.5. Capitalization. The capitalization of the Company as of June 30, 2009 is as set
forth in the Company’s Quarterly Report of Form 10-Q for the quarter ended June 30, 2009 (which,
together with the other documents filed by the Company under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”),
since the end of the Company’s most recently completed fiscal year through the date hereof are
hereinafter referred to as the “Disclosure Documents”), increased as set forth in the next
sentence. The Company has not issued any capital stock since that date other than pursuant to (i)
employee benefit plans disclosed in the Disclosure Documents and (ii) outstanding warrants, options
or other securities disclosed in the Disclosure Documents. The Shares and the Warrants to be sold
pursuant to the Agreements, and the Warrant Shares to be issued pursuant to the Warrants, have been
duly authorized and, when they are issued and paid for in accordance with the terms of the
Agreements and the Warrants, as the case may be, the Shares and Warrant Shares will be duly and
validly issued, fully paid and nonassessable. The outstanding shares of capital stock of the
Company have been duly and validly issued and are fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, and were not issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in
the Agreements and the Warrants or as set forth in or contemplated by the Disclosure Documents, and
other than options issued to officers, directors and employees of the Company under its employee
benefit plans, there are no outstanding rights (including, without limitation, preemptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued
shares of capital stock or other equity interest in the Company, or any contract, commitment,
agreement, understanding or arrangement of any kind to which the Company is a party, or of which
the Company has knowledge, relating to the issuance or sale of any capital stock of the Company,
any such convertible or exchangeable securities or any such rights, warrants or options. Without
limiting the foregoing, no preemptive right, co-sale right, right of first refusal or other similar
right exists with respect to the Shares, the Warrants or the Warrant Shares or the issuance and
sale thereof. No further approval or authorization of any stockholder, the Board of Directors of
the Company or others is required for the issuance and sale of the Shares, the Warrants and the
Warrants Shares. There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Common Stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders. The issuance and sale of the
Shares, the Warrants and the Warrant Shares will not result in a right of any current holder of
Company securities to adjust the exercise, conversion, exchange or reset price under such
securities. Subject to the filing of the notification with the Nasdaq Stock Market, Inc., the
issuance and sale of the Shares and Warrant Shares under this Agreement does not contravene the
rules and regulations of the Nasdaq Stock Market, Inc. Capital Market (the “Nasdaq Capital
Market” and, collectively with the Nasdaq Stock Market, Inc., “Nasdaq”), and, in
furtherance of the foregoing sentence, no approval of the stockholders of the Company thereunder is
required for the Company to issue and deliver to the Investor the maximum number of Shares and
Warrant Shares contemplated by this Agreement.



4.6. Legal Proceedings; Disagreements with Advisors. There is no material legal or
governmental investigation, action, suit or proceeding pending or, to the knowledge of the Company,
threatened to which the Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is subject.



4.7. No Violations. Neither the Company nor any Subsidiary is (i) in violation of its
charter, bylaws, or other organizational document; (ii) in violation of any federal, state or local
law, administrative regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company or such Subsidiary, which violation, individually or
in the aggregate, would be reasonably likely to have a Material Adverse Effect; or (iii) in default
(and there exists no condition which, with the passage of time or otherwise, would constitute a
default) in the performance of any bond, debenture, note or any other evidence of indebtedness in
any indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or
such Subsidiary is a party or by which the Company or such Subsidiary is bound, or by which the
properties of the Company or such Subsidiary are bound, which would be reasonably likely to have a
Material Adverse Effect.



4.8. Governmental Permits, Etc. With the exception of the matters which are dealt with
separately in Sections 4.2, 4.13, 4.14, and 4.15, the Company has all necessary franchises,
licenses, certificates and other authorizations from any foreign, federal, state or local
government or governmental agency, department, or body that are currently necessary for the
operation of the business of the Company as currently conducted and as described in the Disclosure
Documents except where the failure to currently possess would not have a Material Adverse Effect.



4.9. Intellectual Property. The Company and each Subsidiary owns or possesses
sufficient rights to use all patents, patent rights, trademarks, copyrights, licenses, inventions,
trade secrets, trade names and know-how (including trade secrets and other unpatented and/or
unpatentable property or confidential information, systems, processes or procedures)
(collectively, “Intellectual Property”) described or referred to in the Disclosure
Documents as owned or possessed by it or that are necessary for the conduct of its business as now
conducted as described in the Disclosure Documents, except where the failure to currently own or
possess such Intellectual Property would not have a Material Adverse Effect. The Company has not
received any written notice in the past two years of any infringement or asserted infringement by
the Company or any Subsidiary of any rights of a third party with respect to any Intellectual
Property that, individually or in the aggregate, would have a Material Adverse Effect and the
Company has not sent any written notice in the past two years infringement by a third party with
respect to any Intellectual Property rights of the Company or any Subsidiary that, individually or
in the aggregate, would have a Material Adverse Effect.



4.10. Financial Statements; Obligations to Related Parties.




(a) The financial statements of the Company and the related notes contained in the
Disclosure Documents present fairly, in accordance with generally accepted accounting
principles, the financial position of the Company as of the dates indicated, and the results
of its operations and cash flows for the periods therein specified consistent with the books
and records of the Company, except that the unaudited interim financial statements were or
are subject to normal and recurring year-end adjustments which are not expected to be
material in amount. Such financial statements (including the related notes) have been
prepared in accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified, except as may be disclosed in the notes to
such financial statements, or in the case of unaudited statements, as may be permitted by
the Securities and Exchange Commission (the “SEC”) on Form 10-Q under the Exchange
Act. The other financial information contained in the Disclosure Documents has been prepared
on a basis materially consistent with the financial statements of the Company and the
related notes. As of their respective dates, the financial statements of the Company and the
related notes included in the Disclosure Documents complied as to form in all material
respects with applicable accounting requirements and published rules and regulations of the
SEC with respect thereto.




(b) There are no obligations of the Company to officers, directors, stockholders or
employees of the Company other than (i) for payment of salary for services rendered and for
bonus payments; (ii) reimbursements for reasonable expenses incurred on behalf of the
Company; (iii) for other standard employee benefits made generally available to all
employees (including stock option agreements outstanding under any stock option plan
approved by the Board of Directors of the Company); and (iv) obligations listed in the
Company’s financial statements and the related notes.



4.11. No Material Adverse Change. Since December 31, 2008, there has not been (i) any
material adverse change in the financial condition or earnings of the Company, (ii) any material
adverse change in the business, assets, properties, operations, condition (financial or otherwise)
or results of operations of the Company and its Subsidiaries taken as a whole, (iii) any
obligation, direct or contingent, that is material to the Company, incurred by the Company, except
obligations incurred in the ordinary course of business, (iv) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company, or (v) any loss or damage (whether
or not insured) to the physical property of the Company which has been sustained which has a
Material Adverse Effect.



4.12. Disclosure. The representations and warranties of the Company contained in this
Section 4 as of the date hereof and as of the Closing Date, do not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
Except with respect to the material terms and conditions of the transaction contemplated by the
Agreements and the Warrants and the anticipated use of the proceeds therefrom, which shall be
publicly disclosed by the Company pursuant to Section 16 hereof, the Company confirms that neither
it nor any person acting on its behalf has provided the Investors (other than any Investor who has
entered into a non-disclosure agreement with the Company that is effective as of the date hereof)
with any information that constitutes material, non-public information. The Company understands and
confirms that the Investors will rely on the foregoing representations in effecting transactions in
the securities of the Company.



4.13. NASDAQ Compliance. The Company’s Common Stock is registered pursuant to Section
12(b) of the Exchange Act and is listed on the Nasdaq Capital Market, 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 de-listing the Common Stock from the Nasdaq Capital Market, nor has
the Company received any notification that the SEC, the Financial Industry Regulatory Authority,
Inc. (“FINRA”), or Nasdaq is contemplating terminating such registration or listing, except
to the extent that the Company has resolved the issues raised in any such notification.



4.14. Reporting Status. The Company has filed in a timely manner all documents that
the Company was required to file under the Exchange Act during the 12 months preceding the date of
this Agreement. The documents that the Company was required to file under the Exchange Act during
the 12 months preceding the date of this Agreement complied in all material respects with the SEC’s
requirements as of their respective filing dates, and the information contained therein as of the
date thereof did not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading.



4.15. No Manipulation of Stock. The Company has not taken and will not, in violation
of applicable law, take, any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares, the Warrants or the Warrant Shares.



4.16. Company not an “Investment Company”. The Company has been advised of the rules
and requirements under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). The Company is not, and immediately after receipt of payment for the Shares and Warrants
and the Warrant Shares will not be, an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment
Company Act and shall conduct its business in a manner so that it will not become subject to the
Investment Company Act.



4.17. Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor, to the
knowledge of the Company, any agent or other person acting on behalf of the Company, has (i)
directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment
or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf of which the Company
is aware) which is in violation of law or (iv) violated in any material respect any provision of
the Foreign Corrupt Practices Act of 1977, as amended.



4.18. Contracts. The Company has filed with the SEC all contracts and agreements
required to be filed under the Exchange Act.



4.19. Taxes. The Company has filed (or has obtained an extension of time within which
to file) all necessary federal, state and foreign income and franchise tax returns and has paid all
taxes shown as due on such tax returns, except where the failure to so file or the failure to so
pay would not have a Material Adverse Effect. The Company has withheld or collected from each
payment made to its employees the amount of all taxes required to be withheld or collected
therefrom and has paid all such amounts to the appropriate taxing authorities when due, except
where the failure to so withhold or the failure to so pay would not have a Material Adverse Effect.
The Company is not aware of any tax deficiency that has been or might be asserted or threatened
against it that would have a Material Adverse Effect.



4.20. Private Offering. Assuming the correctness of the representations and warranties
of the Investors set forth in Section 5 hereof, the offer and sale of Shares and the Warrants
hereunder are and, upon exercise of the Warrants, assuming the accuracy of the representations
included in Exhibit A to the Warrant, the issuance of the Warrant Shares will be exempt
from registration under the Securities Act. The Company has not distributed and will not distribute
prior to the Closing Date any offering material in connection with this Offering and sale of the
Shares and the Warrants other than the documents of which this Agreement is a part or the
Disclosure Documents. None of the Company, its Subsidiaries, any of their affiliates and any person
acting on their behalf has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security which would bring the offer, issuance or sale of the
Shares and the Warrants as contemplated by this Agreement, or the issuance of the Warrant Shares
pursuant to the Warrant, within the provisions of Section 5 of the Securities Act. No approval of
the stockholders of the Company is required under the rules and regulations of Nasdaq for the
Company to issue and deliver the Shares and the Warrants to the Investors. The Company shall not,
and shall use its commercially reasonable efforts to ensure that no Subsidiary, affiliate of the
Company and its Subsidiaries, or person acting on the Company’s behalf, shall, directly or
indirectly, make any offers or sales of any security or solicit any offers to buy any security,
that would be integrated with the offer or sale of the Shares, the Warrants and the Warrant Shares
in a manner that would require the registration under the Securities Act of the sale of the Shares,
the Warrants or the Warrant Shares to the Investors or that would be integrated with the offer or
sale of the Shares, the Warrants and the Warrant Shares for purposes of the shareholder approval
rules and regulations of Nasdaq. Neither the Company nor, to the knowledge of the Company, any
person acting on behalf of the Company has offered or sold any of the Shares by any form of general
solicitation or general advertising. The Company has offered the Shares for sale only to the
Investors and certain other “accredited investors” within the meaning of Rule 501 under the
Securities Act



4.21. Disclosure Controls and Procedures. The Company is in compliance with all
provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the Closing Date,
except where such non-compliance would not, individually or in the aggregate, be expected to have a
Material Adverse Effect. The Company maintains a system of internal control over financial
reporting (as such term is defined in the Exchange Act) sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles in the United States and to
maintain asset accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company’s certifying officers are responsible for establishing and
maintaining disclosure controls and procedures (as defined in the Exchange Act) for the Company and
they have (a) designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under their supervision, to ensure that material information relating
to the Company is made known to the certifying officers by others within those entities,
particularly during the periods in which the Company’s filings under the Exchange Act have been
prepared; (b) evaluated the effectiveness of the Company’s disclosure controls and procedures and
presented in the Company’s filings under the Exchange Act their conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the periods covered by such filings
under the Exchange Act based on such evaluation; and (c) since the last evaluation date referred to
in (b) above, there have been no material changes in the Company’s internal control over financial
reporting (as such term is defined in the Exchange Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal control over financial reporting.
During the twelve months prior to the date hereof, neither the Company nor any of its Subsidiaries
has received any notice or correspondence from any independent accounting firm that audited the
Company’s financial statements notifying the Company of any material weakness in any part of the
system of internal accounting controls of the Company or any of its Subsidiaries.



4.22. Transactions With Affiliates. There are no business relationships or
related-party transactions involving the Company or any other person required to be described in
the Disclosure Documents that have not been described as required.



4.23. No Registration Rights. Except as disclosed in the Disclosure Documents, the
Company has not granted or agreed to grant to any Person any rights (including “piggy-back”
registration rights) to have any securities of the Company registered for sale under the Securities
Act.



4.24. Form S-3 Eligibility. Except to the extent that the SEC deems the resale of the
Shares or Warrant Shares to be a primary offering by the Company, the Company is eligible to
register the Shares and Warrant Shares for resale by the Investors using Form S-3 under the
Securities Act.



4.25. Shell Company Status. The Company is not, and has never been, an issuer
identified in Rule 144(i)(1) under the Securities Act.



4.26. Placement Agent. The Company acknowledges that is has engaged MTS Securities,
LLC, or an affiliate thereof (the “Agent”), as its placement agent in connection with the
sale of the Shares and the Warrants. Other than the Agent, the Company has not engaged any other
placement agent or other agent in connection with the sale of the Shares and the Warrants. The
Company shall be responsible for the payment of the Agent’s fees relating to or arising out of the
issuance and sale of the Shares and the Warrants pursuant to this Agreement.



4.27. Company Acknowledgement of Investor Representation. The Company acknowledges and
agrees that Investor does not make or has not made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Sections 5 and
16(a) of this Agreement, or in the Investor Questionnaire.



5. Representations, Warranties and Covenants of the Investor.



5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) the
Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the
Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to investments in shares presenting an investment decision like that
involved in the purchase of the Shares and the Warrant, including investments in securities issued
by the Company and investments in comparable companies, and has requested, received, reviewed and
considered all information it deemed relevant in making an informed decision to purchase the Shares
and the Warrant; (ii) the Investor is acquiring the number of Shares and a Warrant to purchase the
number of Warrant Shares, each as set forth in Section 3 of the Stock and Warrant Purchase
Agreement in the ordinary course of its business and for its own account for investment only and
with no present intention of distributing any of such Shares, Warrants or Warrant Shares or any
arrangement or understanding with any other persons regarding the distribution of such Shares,
Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Shares, Warrant or Warrant Shares except in compliance with
the Securities Act, applicable state securities laws and the respective rules and regulations
promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire
and the Registration Statement Questionnaire for use in preparation of each Registration Statement
and the answers thereto are true, correct and complete as of the date hereof and will be true,
correct and complete as of the Closing Date; (v) the Investor will notify the Company promptly of
any change in any of such information until such time as the Investor has sold all of its Shares
and Warrant Shares or until the Company is no longer required to keep any Registration Statement
effective; and (vi) the Investor has, in connection with its decision to purchase the number of
Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of
the Stock and Warrant Purchase Agreement, relied only upon the Disclosure Documents and the
representations and warranties of the Company contained herein. The Investor understands that its
acquisition of the Shares and the Warrant has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific exemptions
therefrom, which exemptions may depend upon, among other things, the bona fide nature of the
Investor’s investment intent as expressed herein. Subject to compliance with the Securities Act,
applicable securities laws and the respective rules and regulations promulgated thereunder, nothing
contained herein shall be deemed a representation or warranty by such Investor to hold the Shares,
Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be
completed and delivered to the Company the Investor Questionnaire, which questionnaire is true,
correct and complete in all material respects.



5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken
in any jurisdiction outside the United States by the Company that would permit an offering of the
Shares, Warrant or Warrant Shares or possession or distribution of offering materials in connection
with the issue of the Shares, Warrant or Warrant Shares in any jurisdiction outside the United
States where legal action by the Company for that purpose is required. Each Investor outside the
United States will comply with all applicable laws and regulations in each foreign jurisdiction in
which it purchases, offers, sells or delivers Shares, the Warrant or Warrant Shares or has in its
possession or distributes any offering material, in all cases at its own expense.



5.3. The investor hereby covenants with the Company not to make any sale of the Shares,
Warrant or Warrant Shares without complying with the provisions of this Agreement and without
causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by
delivery of the Prospectus or pursuant to and in compliance with an exemption from such
requirement), if applicable, and the Investor acknowledges that the certificates evidencing the
Shares and Warrant Shares will be imprinted with a legend that prohibits their transfer except in
accordance therewith. The Investor acknowledges that there may occasionally be times when the
Company determines that it must suspend the use of the Prospectus forming a part of a Registration
Statement, as set forth in Section 7.2(b).



5.4. The Investor further represents and warrants to, and covenants with, the Company that (i)
the Investor is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (ii) the Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of this Agreement; (iii)
this Agreement constitutes a valid and binding obligation of the Investor enforceable against the
Investor in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be subject to general
principles of equity regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Investors herein may be
legally unenforceable; and (iv) the execution, delivery and performance by the Investor of this
Agreement and the consummation by the Investor of the transactions contemplated hereby will not, to
the extent applicable: (a) result in a violation of the organizational documents of such Investor,
(b) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which such Investor is a party, or
(c) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to such Investor, except in the case of clauses (b)
and (c) above, for such that are not material and do not otherwise materially adversely affect the
ability of such Investor to consummate the transactions contemplated hereby.



5.5. Between the time the Investor learned about the Offering and the public announcement of
the Offering, the Investor has not engaged in any short sales or similar transactions with respect
to the Common Stock, nor has the Investor, directly or indirectly, caused any person to engage in
any short sales or similar transactions with respect to the Common Stock. Without limiting the
foregoing, Investor will not use any of the Shares acquired pursuant to this Agreement to cover any
short position in the Common Stock of the Company if doing so would be in violation of applicable
securities laws.



5.6. The Investor understands that nothing in the Disclosure Documents, this Agreement or any
other materials presented to the Investor in connection with the purchase and sale of the Shares
and the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal,
tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares and the Warrant.



5.7. The Investor is not purchasing the Shares and Warrants as a result of any advertisement,
article, notice or other communication regarding the Shares and Warrants published in any
newspaper, magazine or similar media, broadcast over television or radio, disseminated over the
Internet or presented at any seminar or, to its knowledge, any other general solicitation or
general advertisement.



5.8. The Investor understands that no U.S. federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of the Shares or
Warrants or the fairness or suitability of the investment in the Shares and Warrants nor have such
authorities passed upon or endorsed the merits of the offering of the Shares and Warrants.



6. Survival of Representations, Warranties and Agreements. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements, representations and
warranties made by the Company and the Investor herein shall survive the execution of this
Agreement, the delivery to the Investor of the Shares and the Warrant being purchased and the
payment therefor.



7. Registration of the Shares; Compliance with the Securities Act.



7.1. Registration Procedures and Other Matters.




(a) The Company shall:




	 	(i)	 	prepare and file with the SEC,
within 30 days after the Closing Date, a registration statement
on Form S-3, or, if the Company is not then eligible to register
the Shares for resale on Form S-3, on another appropriate form
in accordance with the Securities Act and the Exchange Act, to
enable the resale of the Shares and the Warrant Shares by the
Investors in an offering to be made on a continuous basis
pursuant to Rule 415 under the Securities Act (such registration
statement being referred to herein as the “Initial
Registration Statement” and each registration statement
required to be filed under this Section 7.1 being referred to
herein as a “Registration Statement”), provided,
however, that the Company shall not be required to include on
such Initial Registration Statement any Shares held by any
Investor who has not submitted to the Company a completed
Investor Questionnaire and Registration Statement Questionnaire
and has not provided, after prompt request from the Company,
such other information as may be required under the Securities
Act in connection with the filing of the Initial Registration
Statement;






	 	(ii)	 	subject to clause (i) of this
Section 7.1(a), use its commercially reasonable efforts to cause
the Initial Registration Statement to become effective within 90
days, or, if the Initial Registration Statement becomes subject
to review, 120 days, after the Closing Date;






	 	(iii)	 	use its commercially reasonable
efforts to prepare and file with the SEC such amendments and
supplements to a Registration Statement in compliance with
applicable laws, the prospectus used in connection therewith
(the “Prospectus”) and any document incorporated by
reference therein as may be necessary to keep such Registration
Statement current, effective and free from any material
misstatement or omission to state a material fact for a period
not exceeding, with respect to each Investor’s Shares purchased
hereunder and the Warrant Shares purchased under the Warrant,
the earlier of (1) fifty months after the Closing Date, (2) the
date as of which the Investor may sell all of the Shares and
Warrant Shares then held by the Investor without restriction or
limitation pursuant to Rule 144 and without the requirement to
be in compliance with Rule 144(c)(1) (or any successor thereto)
under the Securities Act and (3) such time as all Shares
purchased by such Investor in this offering and Warrant Shares
issuable pursuant to the Warrant and, in each case, covered by
the Registration Statement, have been sold;






	 	(iv)	 	furnish to the Investor with
respect to the Shares and Warrant Shares registered under a
Registration Statement such number of copies of the Registration
Statement, Prospectuses and Preliminary Prospectuses in
conformity with the requirements of the Securities Act and such
other documents as the Investor may reasonably request, in order
to facilitate the public sale or other disposition of all or any
of the Shares or Warrant Shares by the Investor;






	 	(v)	 	file documents required of the
Company for blue sky clearance in states specified in writing by
the Investor and use its commercially reasonable efforts to
maintain such blue sky qualifications during the period the
Company is required to maintain the effectiveness of any
Registration Statement pursuant to Section 7.1(a)(iii);
provided, however, that the Company shall not be
required to qualify to do business or consent to service of
process in any jurisdiction in which it is not now so qualified
or has not so consented;






	 	(vi)	 	bear all expenses in connection
with the procedures in clauses (i) through (v) and clause (viii)
of this Section 7.1(a), the procedures in Sections 7.1(d) and
the registration of the Shares and Warrant Shares pursuant to a
Registration Statement (other than underwriting discounts or
commissions, brokers’ fees and similar selling expenses and any
other fees or expenses incurred by the Investor, including
attorneys’ fees); and






	 	(vii)	 	advise the Investor, promptly
after it shall receive notice or obtain knowledge of the
issuance of any stop order by the SEC delaying or suspending the
effectiveness of a Registration Statement or of the initiation
or threat of any proceeding for that purpose; and, subject to
Section 7.1(c), promptly use its commercially reasonable efforts
to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order
should be issued;






	 	(viii)	 	promptly following the date on which any Registration
Statement is declared effective by the SEC, the Company shall
file with the SEC in accordance with Rule 424 under the
Securities Act, if required thereunder, the final prospectus to
be used in connection with sales pursuant to such Registration
Statement; and






	 	(ix)	 	at least two (2) days prior to
the filing of each Registration Statement, provide a “Plan of
Distribution” and “Selling Stockholders” section of such
Registration Statement to the Investor for such Investor’s
review and comment which, at a minimum, states that the selling
stockholders may transfer the shares of common stock in various
circumstances, including circumstances in which the transferees,
pledgees or other successors in interest may be the selling
beneficial owners for purposes of the Prospectus.






(b) Notwithstanding anything to the contrary herein, from the date hereof until the
effective date of the Initial Registration Statement, the Company shall not, without the
prior written consent of the holders of a majority of the Shares issued and sold in the
Offering, prepare and file with the SEC a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of its equity
securities, other than any registration statement or post-effective amendment to a
registration statement (or supplement thereto) relating to the Company’s employee benefit
plans registered on Form S-8. In no event shall the Company include any securities other
than the Shares and the Warrant Shares on any Registration Statement without the prior
written consent of the holders of a majority of the Shares issued and sold in the Offering.




(c) Notwithstanding anything to the contrary herein, if at any time the SEC takes the
position that the offering of some or all of the Shares or Warrant Shares in the Initial
Registration Statement is not eligible to be made on a delayed or continuous basis under the
provisions of Rule 415 as a result of a characterization by the SEC of the transaction
described by the Registration Statement as a primary offering by the Company, the Company
shall use commercially reasonable efforts to persuade the SEC that the offering contemplated
by the Registration Statement is a valid secondary offering and not an offering “by or on
behalf of the issuer” as defined in Rule 415. In the event that, despite the Company’s
commercially reasonable efforts and compliance with the terms of this Section 7.1(c), the
SEC refuses to alter its position, the Company shall remove from the Initial Registration
Statement such portion of the Shares and/or Warrant Shares (the “Cut Back Shares”)
as the SEC may require to assure the Company’s compliance with the requirements of Rule 415;
provided, however, that the Company shall have no liability to any Investor pursuant to
Section 7.6 or otherwise as a result of the failure to register any Shares or Warrant Shares
as a result of the SEC’s application of Rule 415 (including as a result of the SEC requiring
an investor to be identified as an underwriter in a Registration Statement or other public
disclosure or filing with the SEC) despite the Company’s commercially reasonable efforts to
persuade the SEC that the offering contemplated by the Registration Statement is a valid
secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule
415. Any Shares or Warrant Shares not able to be included in the Initial Registration
Statement shall reduce the total number of Shares and Warrant Shares of each Investor
covered by the Initial Registration Statement on a pro-rata basis based on the total number
of Shares and Warrant Shares issued or issuable to each Investor. For the purpose of
determining the Cut Back Shares, first the Warrant Shares shall be excluded until all of the
Warrant Shares have been excluded. The Company shall have no liability to any Investor
pursuant to Section 7.6 or otherwise as a result of the filing of an Initial Registration
Statement covering less than all of the Shares under the circumstances described in this
Section 7.1(c). As soon as practicable following such intervening period of time as shall be
required by the SEC (if specifically advised in writing by the SEC) or SEC guidance prior to
the filing thereof, the Company shall file one or more additional registration statements
covering the resale of as many Cut Back Shares allowed by the SEC (if specifically advised
in writing by the SEC) or SEC guidance to be so registered while maintaining the Company’s
compliance with Rule 415 (each, an “Additional Registration Statement”); provided,
that the Company shall not be required to file more than three Additional Registration
Statements under this Agreement. The Company shall use its commercially reasonable efforts
to file each Additional Registration Statement on or prior to 10 business days after such
day that represents the first opportunity that the SEC allows the Additional Registration
Statement to be filed without the offering of the shares registered thereunder being deemed
a primary offering (the “Additional Registration Statement Filing Eligibility Day”)
and cause each Additional Registration Statement to be declared effective no later than, as
applicable (a) five business days after the Company receives notice from the SEC that the
Additional Registration Statement will not become subject to review or (b) if the Additional
Registration Statement becomes subject to review by the SEC, 90 days after the filing
thereof. With regard to any such Additional Registration Statement, all of the provisions of
this Section 7.1(c) shall again be applicable to the Cut Back Shares. The Company shall give
the Investors prompt notice of the amount of Shares excluded from each Additional
Registration Statement. Each Registration Statement shall be on Form S-3 (except if the
Company is not then eligible to register for resale the Shares on Form S-3, in which case
such registration shall be on another appropriate form in accordance with the Securities Act
and the Exchange Act). Neither the Company nor any Subsidiary or affiliate thereof shall
identify the Investor as an underwriter in any public disclosure or filing with the SEC,
Nasdaq or any other trading market; provided, however, that the Company shall have no
liability to such Investor pursuant to Section 7.6 or otherwise as a result of the failure
to register any Shares or Warrant Shares as a result of such Investor refusing to be so
named.




(d) Within two business days of the effectiveness date of any Registration Statement,
the Company shall give notice to the Investor of such effectiveness and cause its counsel to
issue an appropriate opinion or opinions to the transfer agent substantially to the effect
that the shares are subject to an effective registration statement and can be reissued free
of restrictive legend upon notice of a sale by an Investor and confirmation by such Investor
that it has complied with the prospectus delivery requirements in the form attached hereto
as Exhibit A, provided that the Company has not advised the transfer agent orally or
in writing that the opinion has been withdrawn.



7.2. Transfer of Shares and Warrant Shares After Registration; Suspension.




(a) The Investor agrees that it will not effect any disposition of the Shares or the
Warrant Shares or its right to purchase the Shares or the Warrant Shares that would
constitute a sale within the meaning of the Securities Act except as contemplated in a
Registration Statement referred to in Section 7.1 and as described below or as otherwise
permitted by law, and that it will promptly notify the Company of any changes in the
information set forth in any effective Registration Statement regarding the Investor or its
plan of distribution. In connection with any transfer of Shares or Warrant Shares other than
pursuant to an effective registration statement, to the Company or to an affiliate of the
Investor (who is an accredited investor and executes a customary representation letter), the
Company may require the transferor thereof to provide to the Company an opinion of counsel,
which counsel shall be reasonably satisfactory to the Company, to the effect that such
Shares or Warrant Shares can be sold, assigned or transferred pursuant to Rule 144 under the
Securities Act (or a successor rule thereto) or another exemption from the registration
requirements of the Securities Act.




(b) Subject to paragraph (c) below, in the event (i) of any request by the SEC or any
other federal or state governmental authority during the period of effectiveness of a
Registration Statement for amendments or supplements to such Registration Statement or a
related Prospectus or for additional information; (ii) of the issuance by the SEC or any
other federal or state governmental authority of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of
the receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Shares or the Warrant Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (iv) that the Company’s Board of Directors determines in good faith that it
would be materially detrimental to the Company to maintain a Registration Statement at such
time because it would require the disclosure of material nonpublic information the
disclosure of which at the time is not in the best interests of the Company; then the
Company shall deliver a certificate in writing to the Investor (the “Suspension
Notice”) to the effect of the foregoing (provided that the Company will not disclose the
content of any material non-public information to the Investors in any Suspension Notice)
and, upon receipt of such Suspension Notice, the Investor will refrain from selling any
Shares and Warrant Shares pursuant to the Registration Statement (a “Suspension”)
until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and
filed by the Company, or until it is advised in writing by the Company that the current
Prospectus may be used, and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in any such Prospectus. In the
event of any Suspension, the Company will use its commercially reasonable efforts to cause
the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after
the delivery of a Suspension Notice to the Investor.




(c) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall
not be prohibited from selling Shares or Warrant Shares under a Registration Statement as a
result of Suspensions on more than three occasions of not more than 30 days each in any
twelve month period, unless, in the good faith judgment of the Company’s Board of Directors
based on the advice of its counsel, the sale of Shares and Warrant Shares under a
Registration Statement in reliance on this paragraph 7.2(c) would be reasonably likely to
cause a violation of the Securities Act or the Exchange Act and result in liability to the
Company.




(d) Provided that a Suspension is not then in effect, the Investor may sell Shares and
Warrant Shares under a Registration Statement, provided that it arranges for delivery of a
current Prospectus to the transferee of such Shares or Warrant Shares or it complies with an
exemption from the prospectus delivery requirements under the Securities Act. Upon receipt
of a request therefor, the Company has agreed to provide an adequate number of current
Prospectuses to the Investor and to supply copies to any other parties requiring such
Prospectuses pursuant to the Securities Act.




(e) In the event of a sale of Shares or Warrant Shares by the Investor pursuant to a
Registration Statement, the Investor must also deliver to the Company’s transfer agent, with
a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached
hereto as Exhibit A, so that the Shares and Warrant Shares may be properly
transferred.



7.3. Indemnification. For the purpose of this Section 7.3:




	 	(i)	 	the term “Selling
Stockholder” means the Investor and any affiliate of such
Investor;






	 	(ii)	 	the term “Registration
Statement” shall include each Registration Statement (as
referred to in Section 7.1), and any Prospectus, in the form
first filed with the SEC pursuant to Rule 424(b) under the
Securities Act or filed as part of such Registration Statement
at the time of effectiveness if no Rule 424(b) filing is
required, supplement or amendment included in or relating to
each such Registration Statement (as referred to in Section
7.1); and






	 	(iii)	 	the term “untrue
statement” for purposes of Section 7.3(d) hereof shall
include any untrue statement or alleged untrue statement, or any
omission or alleged omission to state in the Registration
Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.






(a) The Company agrees to indemnify and hold harmless each Selling Stockholder and its
officers, directors, partners, members, agents and employees from and against any losses,
claims, damages or liabilities to which such Selling Stockholder, officer, director,
partner, member, agent or employee may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of, or are based upon (i) any breach of the representations or
warranties of the Company contained herein or failure to comply with the covenants and
agreements of the Company contained herein, (ii) any untrue or alleged untrue statement of a
material fact contained in the Registration Statement as amended at the time of
effectiveness or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (iii) any failure by
the Company to fulfill any undertaking included in the Registration Statement as amended at
the time of effectiveness, and the Company will reimburse such Selling Stockholder for any
reasonable legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim, or preparing to defend any such
action, proceeding or claim, provided, however, that the Company shall not be liable in any
such case to the extent that such loss, claim, damage or liability arises out of, or is
based upon, an untrue or alleged untrue statement made in such Registration Statement or any
omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Selling Stockholder
specifically for use in preparation of the Registration Statement, or the failure of such
Selling Stockholder to comply with its covenants and agreements contained in Section 7.2
hereof respecting sale of the Shares or Warrant Shares or any statement or omission in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to the Selling
Stockholder prior to the pertinent sale or sales by the Selling Stockholder. The Company
shall reimburse each Selling Stockholder for the amounts provided for herein on demand as
such expenses are incurred as reasonably documented by the Selling Stockholder.




(b) The Investor agrees to indemnify and hold harmless the Company and its affiliates
and their respective officers, directors, partners, members, agents and employees from and
against any losses, claims, damages or liabilities to which the Company, affiliate, officer,
director, partner, member, agent or employee may become subject (under the Securities Act or
otherwise), insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, (i) any failure to comply
with the covenants and agreements contained in Section 7.2 hereof respecting sale of the
Shares and Warrant Shares or (ii) any untrue or alleged untrue statement of a material fact
contained in the Registration Statement or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not
misleading if such untrue statement or omission was made in reliance upon and in conformity
with written information furnished by or on behalf of the Investor specifically for use in
preparation of the Registration Statement, and the Investor will reimburse the Company (or
such officer, director or controlling person), as the case may be, for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim; provided that Investor’s obligation to indemnify the Company
shall be limited to the net amount received by the Investor from the sale of the Shares and
Warrant Shares.




(c) Promptly after receipt by any indemnified person of a notice of a claim or the
beginning of any action in respect of which indemnity is to be sought against an
indemnifying person pursuant to this Section 7.3, such indemnified person shall notify the
indemnifying person in writing of such claim or of the commencement of such action, but the
omission to so notify the indemnifying person will not relieve it from any liability which
it may have to any indemnified person under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying person’s ability to defend such
action) or from any liability otherwise than under this Section 7.3. Subject to the
provisions hereinafter stated, in case any such action shall be brought against an
indemnified person, the indemnifying person shall be entitled to participate therein, and,
to the extent that it shall elect by written notice delivered to the indemnified person
promptly after receiving the aforesaid notice from such indemnified person, shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such indemnified person of
its election to assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by such indemnified
person in connection with the defense thereof, provided, however, that if
there exists or shall exist a conflict of interest that would make it inappropriate, in the
opinion of counsel to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, however, that no indemnifying person shall be
responsible for the fees and expenses of more than one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no event shall any indemnifying
person be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; provided that
such consent shall not be unreasonably withheld. No indemnifying person shall, without the
prior written consent of the indemnified person, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified person is or could have been a
party and indemnification could have been sought hereunder by such indemnified person,
unless such settlement includes an unconditional release of such indemnified person from all
liability on claims that are the subject matter of such proceeding.




(d) If the indemnification provided for in this Section 7.3 is unavailable to or
insufficient to hold harmless an indemnified person under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying person shall contribute to the amount
paid or payable by such indemnified person as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Investor, as well as any other
Selling Stockholders under such registration statement on the other in connection with the
statements or omissions or other matters which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among other things,
in the case of an untrue or alleged untrue statement, whether the untrue statement relates
to information supplied by the Company on the one hand or an Investor or other Selling
Stockholder on the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement. The Company and the Investor
agree that it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Investor and other Selling
Stockholders were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified person as a result of
the losses, claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), the Investor shall
not be required to contribute any amount in excess of the amount by which the net amount
received by the Investor from the sale of the Shares and Warrant Shares to which such loss
relates exceeds the amount of any damages which such Investor has otherwise been required to
pay by reason of such untrue or alleged untrue statement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Investor’s obligations in this subsection to contribute shall be in
proportion to its sale of Shares and Warrant Shares to which such loss relates and shall not
be joint with any other Selling Shareholders.




(e) The parties to this Agreement hereby acknowledge that they are sophisticated
business persons who were represented by counsel during the negotiations regarding the
provisions hereof including, without limitation, the provisions of this Section 7.3, and are
fully informed regarding said provisions. They further acknowledge that the provisions of
this Section 7.3 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate disclosure is made
in the Registration Statement as required by the Securities Act and the Exchange Act. The
parties are advised that federal or state public policy as interpreted by the courts in
certain jurisdictions may be contrary to certain of the provisions of this Section 7.3, and
the parties hereto hereby expressly waive and relinquish any right or ability to assert such
public policy as a defense to a claim under this Section 7.3 and further agree not to
attempt to assert any such defense.



7.4. Termination of Conditions and Obligations. The conditions precedent imposed by
Section 5 or this Section 7 upon the transferability of the Shares and Warrant Shares shall cease
and terminate as to any particular number of the Shares or Warrant Shares when such Shares or
Warrant Shares shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition set forth in the
Registration Statement covering such shares, or at such time as an opinion of counsel reasonably
satisfactory to the Company shall have been rendered to the effect that such Shares or Warrant
Shares can be sold, assigned or transferred pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) or another exemption from the registration requirements of the Securities
Act.



7.5. Legend; Restrictions on Transfer.




(a) The certificate or certificates for the Shares, Warrants and Warrant Shares (and
any securities issued in respect of or exchange for the Shares or Warrant Shares) shall be
subject to a legend or legends restricting transfer under the Securities Act and referring
to restrictions on transfer herein, such legend to be substantially as follows:



THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”)
HAVE BEEN ISSUED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE “1933 ACT”) AND
APPROPRIATE EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES LAWS
OF OTHER APPLICABLE JURISDICTIONS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD OR TRANSFERRED OTHER THAN PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM UNDER THE 1933 ACT
AND THE APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE
ISSUER SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT TO THE EFFECT THAT SUCH SECURITIES CAN BE SOLD OR
TRANSFERRED PURSUANT TO RULE 144 UNDER THE 1933 ACT (OR A SUCCESSOR
RULE THERETO) OR ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT.




(b) Such certificates shall not contain any legend (i) following any sale of such
Shares or Warrant Shares pursuant to an effective Registration Statement or Rule 144, or
(ii) if such Shares or Warrant Shares are eligible for sale without restriction under Rule
144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor
thereto) under the Securities Act or (iii) following a sale, assignment or other transfer,
if such holder provides the Company with an opinion of counsel, on a form and from counsel
reasonably acceptable to the Company, to the effect that such sale, assignment or transfer
may be made without registration under the applicable requirements of the Securities Act and
that such legend is no longer required. Following such time as a legend is no longer
required for certain Shares or Warrant Shares, the Company will, no later than five (5)
trading days following the delivery by a Investor to the Company or the Company’s transfer
agent of a legended certificate representing such securities, deliver or cause to be
delivered to such Investor a certificate representing such securities that is free from all
restrictive and other legends or issue to such holder by electronic delivery at the
applicable balance account at The Depository Trust Company (“DTC”). The Company
shall be responsible for the fees of its transfer agent and all DTC fees associated with
such issuance.



7.6. Liquidated Damages. The Company and Investor agree that Investor will suffer
damages if the Company fails to fulfill its obligations pursuant to Section 7.1 and 7.2 hereof and
that it would not be possible to ascertain the extent of such damages with precision. Accordingly,
subject to Section 7.1(c) hereof, the Company hereby agrees to pay liquidated damages
(“Liquidated Damages”) to Investor under the following circumstances: (a) if the Initial
Registration Statement covering all of the Shares and Warrant Shares required or permitted to be
covered by it is not filed by the Company on or prior to 30 days after the Closing Date or any
Additional Registration Statement covering all of the Shares and Warrant Shares required or
permitted to be covered by it is not filed on or prior to 10 business days after the Additional
Registration Statement Filing Eligibility Day (either such event, a “Filing Default”); (b)
if the Initial Registration Statement covering all of the Shares and Warrant Shares required or
permitted to be covered by it is not declared effective by the SEC on or prior to 90 days after the
Closing Date (or, if the Initial Registration Statement becomes subject to review by the SEC, the
121st day after the Closing Date) or any Additional Registration Statement covering all of the
Shares and Warrant Shares required or permitted to be covered by it is not declared effective on or
prior to the fifth business day after the Company receives notice from the SEC that such Additional
Registration Statement will not become subject to review (or, if such Additional Registration
Statement becomes subject to review by the SEC, the 91st day after the filing thereof) (either such
event, an “Effectiveness Default”); or (c) if, after the effective date of any Registration
Statement, such Registration Statement ceases to be effective and available to the Investor for the
resale of the Shares and/or Warrant Shares required or permitted to be covered by it, for any
reason other than a Suspension contemplated by Section 7.2(b) hereof, for more than 30 consecutive
trading days or more than an aggregate of 60 trading days (which need not be consecutive) in any
12-month period (a “Maintenance Default” and, together with a Filing Default and an
Effectiveness Default, a “Registration Default”). In the event of a Registration Default,
the Company shall pay to Investor as Liquidated Damages, for each 30-day period of a Registration
Default, an amount in cash equal to 1% of the aggregate purchase price paid by Investor pursuant to
this Agreement; provided that in no event shall the aggregate amount of cash to be paid as
Liquidated Damages pursuant to this Section 7.7 exceed 10% of the aggregate purchase price paid by
Investor. The Company shall pay the Liquidated Damages as follows: (i) in connection with a Filing
Default, on the 31st day after the Closing Date or the 11th day after the applicable Additional
Registration Statement Filing Eligibility Day, as applicable, and, in each case, each 30th day
thereafter until the Registration Statement is filed with the SEC; (ii) in connection with an
Effectiveness Default relating to the Initial Registration Statement, on the 91st day after the
Closing Date (or, if the Initial Registration Statement becomes subject to review by the SEC, the
121st day after the Closing Date) and each 30th day thereafter until the Initial Registration
Statement is declared effective by the SEC; (iii) if such Effectiveness Default relates to an
Additional Registration Statement, on the sixth business days after the Company receives notice
from the SEC that such Additional Registration Statement will not become subject to review (or, if
such Additional Registration Statement becomes subject to review by the SEC, the 91st day after the
filing date thereof) and each 30th day thereafter until the Additional Registration Statement is
declared effective by the SEC; and (iv) in connection with a Maintenance Default, on the first date
of such Maintenance Default and each 30th day thereafter until such Maintenance Default is cured.
Notwithstanding the foregoing, all periods shall be tolled during delays directly caused by the
action or inaction of any Investor, and the Company shall have no liability to any Investor in
respect of any such delay. The Liquidated Damages payable herein shall apply on a pro rata basis
for any portion of a 30-day period of a Registration Default. In the event that the Company fails
to make a Liquidated Damages payment in a timely manner, the past due amount of such Liquidated
Damages shall bear interest at the rate of 1% per month (prorated for partial months) until paid in
full.



8. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, shall be mailed (A) if within the United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by International Federal Express (or
other recognized international express courier) or facsimile, and shall be deemed given (i) if
delivered by first-class registered or certified mail, three business days after so mailed, (ii) if
delivered by nationally recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express (or other recognized international express courier), two
business days after so mailed, (iv) if delivered by facsimile, upon electronic confirmation of
receipt and shall be delivered as addressed as follows:




(a) if to the Company, to:




Inhibitex, Inc.


9005 Westside Parkway


Alpharetta, GA 30009


Attn: Russell H. Plumb


Phone: (678) 746-1136


Fax: (678) 746-1299




(b) with a copy to:




Dechert LLP


1095 Avenue of the Americas


New York, NY 10036-6797


Attn: David S. Rosenthal


Phone: (212) 698-3500


Fax: (212) 698-3599




(c) if to the Investor, at its address on the signature page hereto, or at such other
address or addresses as may have been furnished to the Company in writing.



9. Changes. This Agreement may be modified, amended or waived only pursuant to a
written instrument signed by the Company and (a) Investors holding a majority of the Shares issued
and sold in the Offering, provided that such modification, amendment or waiver is made with respect
to all Agreements and does not adversely affect the Investor without adversely affecting all
Investors in a similar manner; or (b) the Investor.



10. Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of this Agreement.



11. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired thereby.



12. Governing Law; Jurisdiction; Jury Trial. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving effect to the
principles of conflicts of law (whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other than the State of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



13. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. In the event that any signature is delivered by
facsimile transmission or email attachment, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or email-attached signature page were an original thereof.



14. Entire Agreement. Notwithstanding anything else contained herein, this Agreement
and the Warrants and any non-disclosure agreement in effect on the date hereof that Investor has
entered into constitute the entire agreement between the parties hereto and supersedes any prior
understandings or agreements concerning the purchase and sale of the Shares and the Warrants and
the resale registration of the Shares and Warrant Shares.



15. Rule 144. Until the earlier of (a) fifty months from the Closing Date, (b) the
date as of which the Investor may sell all of the Shares and Warrant Shares then held by the
Investor without restriction or limitation pursuant to Rule 144 and without the requirement to be
in compliance with Rule 144(c)(1) (or any successor thereto) under the Securities Act and (c) such
time as all Shares purchased by such Investor in this offering and Warrant Shares issuable pursuant
to the Warrant and, in each case, covered by the Registration Statement, have been sold, the
Company covenants that it will timely file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the request of any Investor
holding Shares purchased hereunder or Warrant Shares purchased under the Warrants made after the
first anniversary of the Closing Date, make publicly available such information as necessary to
permit sales pursuant to Rule 144 under the Securities Act), and it will take such further action
as any such Investor may reasonably request, all to the extent required from time to time to enable
such Investor to sell such Shares and Warrant Shares without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of the Investor, the Company will deliver to such holder a written
statement as to whether it has complied with such information and requirements.



16. Confidential Information.




(a) The Investor represents to the Company that, at all times during the Company’s
offering of the Shares and the Warrants, the Investor has maintained in confidence all
non-public information regarding the Company received by the Investor from the Company or
its agents, including without limitation, the existence of the transactions contemplated
therein, and covenants that (unless the Investor has entered into a separate non-disclosure
agreement, which agreement shall supercede the remainder of this subparagraph (a)) it will
continue to maintain in confidence such information until such information (i) becomes
generally publicly available other than through a violation of this provision by the
Investor or its agents or (ii) is required to be disclosed in legal proceedings (such as by
deposition, interrogatory, request for documents, subpoena, civil investigation demand,
filing with any governmental authority or similar process), provided, however, that before
making any use or disclosure in reliance on this subparagraph (ii) the Investor shall give
the Company at least fifteen (15) days prior written notice (or such shorter period as
required by law or legal order) specifying the circumstances giving rise thereto and will
furnish only that portion of the non-public information which is legally required and will
exercise its reasonable best efforts (at the Company’s expense) to obtain reliable assurance
that confidential treatment will be accorded any non-public information so furnished.




(b) The Company shall on the Closing Date, or on the following business day of the
Closing Date, issue a press release disclosing the material terms of the transactions
contemplated hereby (including at least the number of Shares and Warrants sold and proceeds
therefrom).



17. Listing. The Company shall promptly secure the listing of all of the Shares and
Warrant Shares upon each national securities exchange and automated quotation system, if any, upon
which the Common Stock is then listed (subject to official notice of issuance). Neither the Company
nor any of its Subsidiaries shall take any action which would be reasonably expected to result in
the delisting or suspension of the Common Stock on the Nasdaq Capital Market unless, substantially
simultaneously with such delisting, the Company lists its Common Stock on another exchange or
automated quotation system. The Company shall pay all fees and expenses in connection with
satisfying its obligations under this Section 17.



18. No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other person.



19. Expenses. The Company shall reimburse QVT Financial LP (the “Lead
Investor”) or its designee(s) for all reasonable costs and expenses, incurred in connection
with the transactions contemplated by hereby (including all reasonable and documented legal fees
and disbursements in connection therewith, documentation and implementation of the transactions
contemplated hereby) up to a maximum amount of $30,000, which amount may be withheld by the Lead
Investor from its purchase price at the Closing. Except as set forth herein, the parties shall pay
their own legal and other expenses in connection with the preparation, negotiation and execution of
the Agreements and the consummation of the transactions contemplated herein.



INHIBITEX, INC.




INSTRUCTION SHEET FOR INVESTOR

(to be read in conjunction with the entire Stock and Warrant Purchase Agreement)





	1.	 	Complete and execute the Stock and Warrant Purchase Agreement. The Agreement must be executed
by an individual authorized to bind the Investor.






	2.	 	Complete and execute Exhibit A – Investor Questionnaire.






	3.	 	Complete and execute Exhibit B — Registration Statement Questionnaire.






	4.	 	Complete and execute Exhibit C – Stock Certificate Questionnaire.






	5.	 	Return, via facsimile or e-mail attachment, the signed Stock and Warrant Purchase Agreement,
including the properly completed Exhibits A through C, to:





	 	 	 
	Facsimile:(212) 698-3599

	E-mail:david.rosenthal@dechert.com

	Telephone:(212) 698-3500

	Attn:

	 	David S. Rosenthal







	6.	 	After completing instruction number five (5) above, deliver the original signed Stock and
Warrant Purchase Agreement, including the properly completed Exhibits A through C, to:





	 	 	 	 	 
	 	7.	 	 	Dechert LLP

1095 Avenue of the Americas

New York, NY 10036-6797

Attn: David S. Rosenthal

Wiring Instructions:Bank:

	 	 	 	 	ABA No.:

	 	 	 	 	Account Name:

	 	 	 	 	Account No.:

	 	 	 	 	FFC:

	 	 	 	 	FFC:







EXHIBIT A




INHIBITEX, INC.

INVESTOR QUESTIONNAIRE

(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)





	 	 	To: Inhibitex, Inc.






9005 Westside Parkway


Alpharetta, GA 30009



This Investor Questionnaire (“Questionnaire”) must be completed by each potential
investor in connection with the offer and sale of the shares of the common stock, par value $0.001
per share, of Inhibitex, Inc. (“Common Stock”) and warrants to purchase shares of Common
Stock (collectively, the “Securities”). The Securities are being offered and sold by
Inhibitex, Inc. (the “Corporation”) without registration under the Securities Act of 1933, as
amended (the “Act”), and the securities laws of certain states, in reliance on the
exemptions contained in Section 4(2) of the Act and on Regulation D promulgated thereunder and in
reliance on similar exemptions under applicable state laws. The Corporation must determine that a
potential investor meets certain suitability requirements before offering or selling Securities to
such investor. The purpose of this Questionnaire is to assure the Corporation that each investor
will meet the applicable suitability requirements. The information supplied by you will be used in
determining whether you meet such criteria, and reliance upon the private offering exemption from
registration is based in part on the information herein supplied.



This Questionnaire does not constitute an offer to sell or a solicitation of an offer to buy
any security. Your answers will be kept strictly confidential. However, by signing this
Questionnaire you will be authorizing the Corporation to provide a completed copy of this
Questionnaire to such parties as the Corporation deems appropriate in order to ensure that the
offer and sale of the Securities will not result in a violation of the Act or the securities laws
of any state and that you otherwise satisfy the suitability standards applicable to purchasers of
the Securities. All potential investors must answer all applicable questions and complete, date and
sign this Questionnaire. Please print or type your responses and attach additional sheets of paper
if necessary to complete your answers to any item.



A. BACKGROUND INFORMATION



Name:



Business Address:



(Number and Street)




	 	 	 	 	 
	(City)

	 	(State)
	 	(Zip Code)
	Telephone Number: (      )
	 	

	 	

	
 	 	 
	 	 
	Residence Address:
	 	

	 	

	 
	 	 
	 	 






(Number and Street)




	 	 	 	 	 
	(City)
	 	(State)
	 	(Zip Code)
	Telephone Number: (      )
	 	

	 	

	
 	 	 
	 	 






If an individual:



Age:                       Citizenship:                Where registered to
vote:                  



	 	 	 
	If a corporation, partnership, limited liability company, trust or other entity:

	 	

	Type of entity:

	 	

	 

	 	 
	State of formation: Date of formation:

	 	

	 

	 	 
	Social Security or Taxpayer Identification No.

	 	

	 

	 	 
	Send all correspondence to (check one):        Residence Address

	 	        Business Address
	 

	 	 






Current ownership of securities of the Corporation:



                                 shares of common stock, par value $0.001 per share (the
“Common Stock”)



options to purchase                                  shares of Common Stock



B. STATUS AS ACCREDITED INVESTOR



The undersigned is an “accredited investor” as such term is defined in Regulation D under the
Act, as at the time of the sale of the Securities the undersigned falls within one or more of the
following categories (Please initial one or more, as applicable).1



         (1) a bank as defined in Section 3(a)(2) of the Act, or a savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; an insurance company as defined in Section 2(13) of the Act; an
investment company registered under the Investment Corporation Act of 1940 or a business
development company as defined in Section 2(a)(48) of that Act; a Small Business Investment
Corporation licensed by the U S Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; a plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political subdivisions for the
benefit of its employees, if such plan has total assets in excess of $5,000,000; an employee
benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the
investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered investment adviser,
or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed
plan, with the investment decisions made solely by persons that are accredited investors;



         (2) a private business development company as defined in Section 202(a)(22)
of the Investment Adviser Act of 1940;



         (3) an organization, corporation or partnership described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or similar business trust, not formed
for the specific purpose of acquiring the Securities offered, with total assets in excess of
$5,000,000;



         (4) a natural person whose individual net worth, or joint net worth with that
person’s spouse, at the time of such person’s purchase of the Securities exceeds $1,000,000;



         (5) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person’s spouse in excess of $300,000
in each of those years and has a reasonable expectation of reaching the same income level in the
current year;



         (6) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Securities offered, whose purchase is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) of Regulation D; and



         (7) an entity in which all of the equity owners are accredited investors (as
defined above).



C. REPRESENTATIONS



The undersigned hereby represents and warrants to the Corporation as follows:




	1.	 	The undersigned acknowledges that there may occasionally be times when the Corporation
determines that it must suspend the use of the Prospectus forming a part of a Registration
Statement (as such terms are defined in the Stock and Warrant Purchase Agreement to which this
Questionnaire is attached), as set forth in Section 7.2(b) of the Stock and Warrant Purchase
Agreement. The undersigned is aware that, in such event, the Securities will not be subject to
ready liquidation, and that any Securities purchased by the undersigned would have to be held
during such suspension. The overall commitment of the undersigned to investments which are not
readily marketable is not excessive in view of the undersigned’s net worth and financial
circumstances, and any purchase of the Securities will not cause such commitment to become
excessive. The undersigned is able to bear the economic risk of an investment in the
Securities.






	2.	 	The undersigned is aware of its obligations under applicable federal and state securities
laws with respect to use and disclosure of non-public information regarding the Company.






	3.	 	The undersigned has carefully considered the potential risks relating to the Corporation and
a purchase of the Securities, and fully understands that the Securities are speculative
investments which involve a high degree of risk of loss of the undersigned’s entire
investment. Among others, the undersigned has carefully considered each of the risks
identified in the Disclosure Documents.






	4.	 	The undersigned understands that the Securities that it is acquiring are characterized as
“restricted securities” under the federal securities laws inasmuch as they are being acquired
in a transaction not involving a public offering, and that under such laws and applicable
regulations such securities may be resold without registration under the Act, only in certain
limited circumstances. In this connection, the undersigned represents that it is familiar with
SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby
and by the Act.





[Signature Page Follows.]





	1	 	As used in this Questionnaire, the term “net
worth” means the excess of total assets over total liabilities. In computing
net worth for the purpose of subsection (4), the principal residence of the
investor must be valued at cost, including cost of improvements, or at recently
appraised value by an institutional lender making a secured loan, net of
encumbrances. In determining income, the investor should add to the investor’s
adjusted gross income any amounts attributable to tax exempt income received,
losses claimed as a limited partner in any limited partnership, deductions
claimed for depiction, contributions to an IRA or KEOGH retirement plan,
alimony payments, and any amount by which income from long-term capital gains
has been reduced in arriving at adjusted gross income.




2









IN WITNESS WHEREOF, the undersigned has executed this Questionnaire this           day
of October, 2009, and declares under oath that it is truthful and correct.




Print Name




By:



Signature





Title:




(required for any purchaser that is a
corporation, partnership, trust or other
entity)



EXHIBIT B




INHIBITEX, INC.




REGISTRATION STATEMENT QUESTIONNAIRE




Reference is hereby made to the Stock and Warrant Purchase Agreement, dated as of October
    , 2009, between Inhibitex, Inc., a Delaware corporation (the “Company”), and
the Investor (as defined therein) and the Terms and Conditions for Purchase of Shares attached
thereto as Annex I (collectively, the “Purchase Agreement”). Capitalized terms used herein
but not otherwise defined herein have the meanings ascribed to them in the Purchase Agreement. In
connection with the Registration Statement, please provide us with the following information
regarding the Investor.



1. Please state your organization’s name exactly as it should appear in the Registration Statement:



Except as set forth below, your organization does not hold any
equity securities of the Company on behalf of another person or
entity.



State any exceptions here:



If the Investor is not a natural person, please identify the natural person or persons who
will have voting and investment control over the Shares and Warrants owned by the Investor:



2. Address of your organization:




Telephone:




Fax:




Contact Person:



3. Have you or your organization had any position, office or other material relationship within the
past three years with the Company or its affiliates? (Include any relationships involving you or
any of your affiliates, officers, directors, or principal equity holders (5% or more) that has held
any position or office or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.)



       Yes        No



If yes, please indicate the nature of any such relationship below:



4. Are you the beneficial owner of any other securities of the Company? (Include any equity
securities that you beneficially own or have a right to acquire within sixty (60) days after the
date hereof, and as to which you have sole voting power, shared voting power, sole investment power
or shared investment power.)



       Yes        No



If yes, please describe the nature and amount of such ownership as of a recent date.



5. Except as set forth below, you wish that all the shares of the Company’s common stock
beneficially owned by you or that you have the right to acquire from the Company be offered for
your account in the Registration Statement.



State any exceptions here:



6. Have you made or are you aware of any arrangements relating to the distribution of the shares of
the Company pursuant to the Registration Statement?



       Yes        No



If yes, please describe the nature and amount of such arrangements.



7. FINRA Matters



A. State below whether (i) you or any associate or affiliate of yours are a member of the
FINRA, a controlling shareholder of an FINRA member, a person associated with a member, a direct or
indirect affiliate of a member, or an underwriter or related person with respect to the proposed
offering; (ii) you or any associate or affiliate of yours owns any stock or other securities of any
FINRA member not purchased in the open market; or (iii) you or any associate or affiliate of yours
has made any outstanding subordinated loans to any FINRA member. If you are a general or limited
partnership, a no answer asserts that no such relationship exists for you as well as for each of
your general or limited partners.



       Yes        No



If “yes,” please identify the FINRA member and describe your
relationship, including, in the case of a general or limited
partner, the name of the partner:



If you answer “no” to Question 7(a), you need not respond to
Question 7(b).



B. State below whether you or any associate or affiliate of yours has been an underwriter, or
a controlling person or member of any investment banking or brokerage firm which has been or might
be an underwriter for securities of the Corporation or any affiliate thereof including, but not
limited to, the common stock now being registered.



       Yes        No



If “yes,” please identify the FINRA member and describe your
relationship, including, in the case of a general or limited
partner, the name of the partner.



(Please read and sign the acknowledgment on the following page.)





3






ACKNOWLEDGEMENT




The undersigned hereby agrees to notify the Company promptly of any changes in the foregoing
information which should be made as a result of any developments, including the passage of time.
The undersigned also agrees to provide the Company and the Company’s counsel any and all such
further information regarding the undersigned promptly upon request in connection with the
preparation, filing, amending, and supplementing of the Registration Statement (or any prospectus
contained therein). The undersigned hereby consents to the use of all such information in the
Registration Statement.



The undersigned understands and acknowledges that the Company will rely on the information set
forth herein for purposes of the preparation and filing of the Registration Statement.



The undersigned understands that the undersigned may be subject to serious civil and criminal
liabilities if the Registration Statement, when it becomes effective, either contains an untrue
statement of a material fact or omits to state a material fact required to be stated in the
Registration Statement or necessary to make the statements in the Registration Statement not
misleading. The undersigned represents and warrants that all information it provides to the Company
and its counsel is currently accurate and complete and will be accurate and complete at the time
the Registration Statement becomes effective and at all times subsequent thereto, and agrees during
the Effectiveness Period and any additional period in which the undersigned is making sales of
Shares under and pursuant to the Registration Statement to notify the Company immediately of any
misstatement of a material fact in the Registration Statement, and of the omission of any material
fact necessary to make the statements contained therein not misleading.



Dated:




Name of Investor:




By:

Name:

Title:




EXHIBIT C




INHIBITEX, INC.

STOCK CERTIFICATE QUESTIONNAIRE




Please provide us with the following information:




	1.	 	The exact name that the Shares and Warrants are to be registered in (this is the name that
will appear on the stock and warrant certificate(s)). You may use a nominee name if
appropriate:






      




	2.	 	The relationship between the Investor of the Shares and Warrants and the Registered Holder
listed in response to item 1 above:






      




	3.	 	The mailing address, telephone and telecopy number and email address of the Registered Holder
listed in response to item 1 above:






     


     
     




	4.	 	The Tax Identification Number of the Registered Holder listed in response to item 1 above:





___________________________________________________________________________[Company

Letterhead]




, 200




Re: Inhibitex, Inc.; Registration Statement on Form S-3



Dear Selling Shareholder:



Enclosed please find five (5) copies of a prospectus dated                    ,
      (the “Prospectus”) for your use in reselling your shares of common stock,
$0.001 par value (the “Shares”), of Inhibitex, Inc. (the “Company”), under the
Company’s Registration Statement on Form S-3 (Registration No. 333-               ) (the
“Registration Statement”), which has been declared effective by the Securities and Exchange
Commission. As a selling shareholder under the Registration Statement, you have an obligation to
deliver a copy of the Prospectus to each purchaser of your Shares, either directly or through the
broker-dealer who executes the sale of your Shares.



The Company is obligated to notify you in the event that it suspends trading under the
Registration Statement in accordance with the terms of the Stock and Warrant Purchase Agreement
between the Company and you. During the period that the Registration Statement remains effective
and trading thereunder has not been suspended, you will be permitted to sell your Shares that are
included in the Prospectus under the Registration Statement. Upon a sale of any Shares under the
Registration Statement, you or your broker will be required to deliver to the Transfer Agent,
American Stock Transfer & Trust Company (1) your restricted stock certificate(s) representing the
Shares, (2) instructions for transfer of the Shares sold, and (3) a representation letter from your
broker, or from you if you are selling in a privately negotiated transaction, or from such other
appropriate party, in the form of Exhibit A attached hereto (the “Representation
Letter”). The Representation Letter confirms that the Shares have been sold pursuant to the
Registration Statement and in a manner described under the caption “Plan of Distribution” in the
Prospectus and that such sale was made in accordance with all applicable securities laws, including
the prospectus delivery requirements.



Please note that you are under no obligation to sell your Shares during the registration
period. However, if you do decide to sell, you must comply with the requirements described in this
letter or otherwise applicable to such sale. Your failure to do so may result in liability under
the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. Please
remember that all sales of your Shares must be carried out in the manner set forth under the
caption “Plan of Distribution” in the Prospectus if you sell under the Registration Statement. The
Company may require an opinion of counsel reasonably satisfactory to the Company if you choose
another method of sale. You should consult with your own legal advisor(s) on an ongoing basis to
ensure your compliance with the relevant securities laws and regulations.



In order to maintain the accuracy of the Prospectus, you must notify the undersigned upon the
sale, gift, or other transfer of any Shares by you, including the number of Shares being
transferred, and in the event of any other change in the information regarding you which is
contained in the Prospectus. For example, you must notify the undersigned if you enter into any
arrangement with a broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker-dealer. Depending on the
circumstances, such transactions may require the filing of a supplement to the prospectus in order
to update the information set forth under the caption “Plan of Distribution” in the Prospectus.



Should you need any additional copies of the Prospectus, or if you have any questions
concerning the foregoing, please write to me at Inhibitex, Inc., 9005 Westside Parkway



Alpharetta, GA 30009. Thank you.




Sincerely,




Chief Executive Officer



Exhibit A




CERTIFICATE OF SUBSEQUENT SALE




American Stock Transfer & Trust Company




	 	 	 	RE: Sale of Shares of Common Stock of Inhibitex, Inc. (the
“Company”) pursuant to the Company’s Prospectus dated
                         ,            (the
“Prospectus”)





Dear Sir/Madam:



The undersigned hereby certifies, in connection with the sale of shares of Common Stock of the
Company included in the table of Selling Shareholders in the Prospectus, that the undersigned has
sold the shares pursuant to the Prospectus and in a manner described under the caption “Plan of
Distribution” in the Prospectus and that such sale complies with all securities laws applicable to
the undersigned, including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.



Selling Shareholder (the beneficial owner):



Record Holder (e.g., if held in name of nominee):



Restricted Stock Certificate No. (s):



Number of Shares Sold:



Date of Sale:



In the event that you receive a stock certificate(s) representing more shares of Common Stock
than have been sold by the undersigned, then you should return to the undersigned a newly issued
certificate for such excess shares in the name of the Record Holder and BEARING A RESTRICTIVE
LEGEND. Further, you should place a stop transfer on your records with regard to such certificate.



	 	 	 
	
 
	 	Very truly yours,
	Date:

	 	By:
	 

	 	 
	
 
	 	Print Name:
	
 
	 	 
	
 
	 	Title:
	
 
	 	 
	cc: Inhibitex, Inc.

9005 Westside Parkway

Alpharetta, GA 30009

Attn: Chief Executive

Officer

	 	















EXHIBIT D




FORM OF WARRANT




[See attached.]





4