Form of Securities Purchase Agreement



 Exhibit 10.1 
 SECURITIES PURCHASE AGREEMENT 
 This Securities Purchase Agreement (this
“Agreement”) is dated as of January 31, 2012 by and among NeurogesX, Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and
assigns, a “Purchaser” and collectively, the “Purchasers”). 
 RECITALS 

A. The Company and each Purchaser is executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission
(the “Commission”) under the Securities Act. 
 B. Each Purchaser, severally and not jointly, wishes to
purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, that aggregate number of shares of common stock, par value $0.001 per share (the “Common Stock”), of the Company, set forth below such
Purchaser’s name on the signature page of this Agreement (which aggregate amount for all Purchasers together shall be 2,969,685 shares of Common Stock and shall be collectively referred to herein as the “Shares”). 

C. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement, substantially in the form attached hereto as Exhibit A (the “Registration Rights Agreement”), pursuant to which, among other things, the Company will agree to provide certain registration rights with respect
to the Shares under the Securities Act and the rules and regulations promulgated thereunder and applicable state securities laws. 
 NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company
and each Purchaser hereby agree as follows: 
 ARTICLE I 

DEFINITIONS 
 1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms shall have the meanings indicated in this
Section 1.1: 
 “Action” means any action, suit, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation pending or, to the Company’s Knowledge, threatened against the Company or any of their respective properties or any officer, director or employee of the Company acting in his or her
capacity as an officer, director or employee before or by any federal, state, county, local or foreign court, arbitrator, governmental or administrative agency, regulatory authority, stock market, stock exchange or trading facility. 

  








 “Affiliate” means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, Controls, is controlled by or is under common control with such Person, as such terms are used in and construed under Rule 405 under the Securities Act. With respect to a Purchaser, any
investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such Purchaser. 

“Agreement” has the meaning set forth in the Preamble. 

“Board of Directors” means the board of directors of the Company. 

“Business Day” means any day except Saturday, Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. 
 “Closing” means the closing of the purchase and sale of the Shares on the Closing Date pursuant to Section 2.1. 

“Closing Bid Price” means, for any security as of any date, (a) the last reported closing bid price per share for
such security on the Principal Trading Market, as reported by Bloomberg Financial Markets, or, (b) if the Principal Trading Market begins to operate on an extended hours basis and does not designate the closing bid price then the last bid price
of such security prior to 4:00 p.m., New York City time, as reported by Bloomberg Financial Markets, or (c) if the foregoing do not apply, the last closing price of such security in the over-the-counter market on the electronic bulletin board
for such security as reported by Bloomberg Financial Markets, or, (d) if no closing bid price is reported for such security by Bloomberg Financial Markets, the average of the bid prices of any market makers for such security as reported in the
“pink sheets” by Pink Sheets LLC. If the Closing Bid Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price of such security on such date shall be the fair market value as
mutually determined by the Company and the holder of such security. If the Company and such holder are unable to agree upon the fair market value of such security, then the Board of Directors of the Company shall use its good faith judgment to
determine the fair market value. The Board of Directors’ determination shall be binding upon all parties absent demonstrable error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination
or other similar transaction during the applicable calculation period. 
 “Closing Date” means the Trading Day
when all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all of the conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 hereof are satisfied or waived, as the case may be, or such other date as
the parties may agree. 
 “Commission” has the meaning set forth in the Recitals. 

“Common Stock” has the meaning set forth in the Recitals, and also includes any other class of securities into which the
Common Stock may hereafter be reclassified or changed. 
 “Common Stock Equivalents” means any securities of
the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for,
or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock. 

  
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 “Company” has the meaning set forth in the Preamble. 

“Company Counsel” means Morrison & Foerester LLP. 

“Company’s Knowledge” means with respect to any statement made to the Company’s Knowledge, that the statement
is based upon the actual knowledge of the executive officers of the Company having responsibility for the matter or matters that are the subject of the statement. 
 “Control” (including the terms “controlling”, “controlled by” or “under common control with”) means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. 
 “Effective Date” means the date on which the initial Registration Statement required by Section 2(a) of the Registration Rights Agreement is first declared effective by the
Commission. 
 “Effectiveness Deadline” means the date on which the initial Registration Statement is required
to be declared effective by the Commission under the terms of the Registration Rights Agreement. 
 “Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder. 
 “GAAP” means U.S. generally accepted accounting principles, as applied by the Company. 
 “IRA” means that certain Third Amended and Restated Investors’ Rights Agreement dated as of November 14, 2005, as amended, by and among the Company and certain of its
stockholders. 
 “Irrevocable Transfer Agent Instructions” means, with respect to the Company, the Irrevocable
Transfer Agent Instructions, in form acceptable to the Purchasers, executed by the Company and delivered to and acknowledged in writing by the Transfer Agent. 
 “Lien” means any lien, charge, claim, encumbrance, security interest, right of first refusal, preemptive right or other restrictions of any kind. 

“Material Adverse Effect” means a material adverse effect on the results of operations, prospects, assets, business or
financial condition of the Company, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S.
economy or which are generally applicable to the industry in which the Company operates, provided that such effects are not borne disproportionately by the Company, (ii) effects resulting directly from or relating to the announcement or
disclosure of the sale of the Shares or other transactions contemplated by this Agreement, (iii) effects caused by any event, occurrence or condition resulting directly from or directly relating to the taking of any action as required in
accordance with this Agreement, or (iv) effects caused directly or indirectly (including any events of default caused or deemed caused under any outstanding loan or loan-related documents of the Company) as a result of (a) the
Company’s current or continued inability to meet the requirements for listing on a Trading Market, including the Nasdaq Global Market, (b) any delisting of the Company’s securities from trading on any Trading Market or (c) any
notification by Nasdaq of a potential delisting in connection with the Company not meeting a listing requirement. 

  
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 “Material Contract” means any contract of the Company that has been filed
or was required to have been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K. 
 “New York Courts” means the state and federal courts sitting in the City of New York, Borough of Manhattan. 
 “Outside Date” means the fifth Business Day following the date of this Agreement. 
 “Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity not specifically listed herein. 

“Principal Trading Market” means the Trading Market on which the Common Stock is primarily listed on and quoted for
trading, which, as of the date of this Agreement and the Closing Date, shall be the NASDAQ Global Market. 

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation
or partial proceeding, such as a deposition), whether commenced or threatened. 
 “Purchase Price” means $1.01
per Share, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. 

“Purchaser” or “Purchasers” has the meaning set forth in the Recitals. 

“Registration Rights Agreement” has the meaning set forth in the Recitals. 

“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights
Agreement and covering the resale by the Purchasers of the Registrable Securities (as defined in the Registration Rights Agreement). 
 “Regulation D” has the meaning set forth in the Recitals. 

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. 
 “Securities Act” has the meaning set forth in the Recitals. 

“Shares” has the meaning set forth in the Recitals. 

  
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 “Short Sales” include, without limitation, (i) all “short
sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps,
“put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and (ii) sales and other transactions through non-U.S. broker dealers or foreign regulated
brokers (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock). 

“Subscription Amount” means, with respect to each Purchaser, the aggregate amount in United States dollars and in
immediately available funds to be paid for the Shares purchased hereunder as indicated on such Purchaser’s signature page to this Agreement as determined by multiplying the number of Shares indicated thereon next to the heading “Aggregate
Shares to be Purchased” by the Purchase Price. 
 “Trading Day” means (i) a day on which the Common
Stock is listed or quoted and traded on its Principal Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is
traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter market as reported in the
“pink sheets” by Pink Sheets LLC (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day. 
 “Trading Market” means whichever of the New
York Stock Exchange, the NYSE Alternext (formerly the American Stock Exchange), the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or the OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question. 
 “Transaction Documents” means this Agreement, the schedules and exhibits attached
hereto, the Registration Rights Agreement and any other documents or agreements explicitly contemplated hereunder. 

“Transfer Agent” means Wells Fargo Bank, N.A., the current transfer agent of the Company, with a mailing address of 161
North Concord Exchange South St. Paul, MN 55075-1139, or any successor transfer agent for the Company. 
 ARTICLE II

 PURCHASE AND SALE 
 2.1 Closing. 
 (a) Amount. Subject to the terms and conditions set
forth in this Agreement, at the Closing, the Company shall issue and sell to each Purchaser, and each Purchaser shall, severally and not jointly, purchase from the Company, such number of Shares set forth below such Purchaser’s name on their
signature page of this Agreement. 
 (b) Closing. The Closing of the purchase and sale of the Shares shall take place at
the offices of the Company on the Closing Date or at such other locations or remotely by facsimile transmission or other electronic means as the parties may mutually agree. 

  
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 (c) Form of Payment. On or prior to the Closing Date, (i) the Company shall
deliver to each Purchaser certificates representing such aggregate number of Shares to the address and in the manner as is set forth on such Purchaser’s signature page hereto, duly executed on behalf of the Company and registered in the name of
such Purchaser in the manner as is set forth on such Purchaser’s signature page hereto (provided that the issuance of shares reflected in such certificates shall be ineffective until the Subscription Amount for such shares has been received by
the Company) and (ii) upon confirmation that the certificates representing such aggregate number of Shares has been received by each Purchaser’s respective custodian, each Purchaser shall pay its respective Subscription Amount to the
Company for the Shares to be issued and sold to such Purchaser at the Closing, by wire transfer of immediately available funds in accordance with the Company’s written wire instructions. 

2.2 Closing Deliveries. (a) On or prior to the Closing, the Company shall issue, deliver or cause to be delivered to each
Purchaser the following (the “Company Deliverables”): 
 (i) this Agreement, duly executed by
the Company; 
 (ii) one or more original stock certificates, free and clear of all restrictive and other
legends (except as provided in Section 4.1(b) hereof), evidencing the Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser as set forth on the signature page hereto; 

(iii) the Registration Rights Agreement, duly executed by the Company; 

(iv) a certificate of the Secretary of the Company (the “Secretary’s Certificate”), in form
reasonably acceptable to the Purchasers, dated as of the Closing Date, (a) certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this
Agreement and the other Transaction Documents and the issuance of the Shares, (b) certifying the current versions of the certificate of incorporation, as amended, and by-laws of the Company and (c) certifying as to the signatures and
authority of persons signing the Transaction Documents and related documents on behalf of the Company; 
 (v)
the Compliance Certificate referred to in Section 5.1(i); 
 (vi) a certificate evidencing the formation
and good standing of the Company issued by the Secretary of State of the State of Delaware as of a date within five business days of the Closing Date; 
 (vii) a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State of the State of California as of a date within five business
days of the Closing Date; and 
 (viii) a certified copy of the certificate of incorporation of the Company, as
certified by the Secretary of State of the State of Delaware, as of a date within 10 days of the Closing Date. 

  
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 (b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the
Company the following, with respect to such Purchaser (the “Purchaser Deliverables”): 

(i) this Agreement, duly executed by such Purchaser; 

(ii) subject to Section 2.2(a)(ii), its Subscription Amount, in United States dollars and in immediately available
funds, in the amount set forth as the “Purchase Price” indicated below such Purchaser’s name on the applicable signature page hereto under the heading “Aggregate Purchase Price (Subscription Amount)” by wire transfer
to the Company Account, as set forth on Exhibit B attached hereto; and 
 (iii) the Registration Rights
Agreement, duly executed by such Purchaser. 
 ARTICLE III 

REPRESENTATIONS AND WARRANTIES 
 3.1 Representations and Warranties of the Company. Except as disclosed in the SEC Reports, the Company hereby represents and warrants as of the date hereof and the Closing Date (except for
the representations and warranties that speak as of a specific date, which shall be made as of such date), to each of the Purchasers: 
 (a) Subsidiaries. NeurogesX UK Limited, a corporation organized under the laws of the United Kingdom (the “Subsidiary”), is the Company’s only subsidiary. The Subsidiary has
been duly organized, is validly existing and in good standing under the laws of the United Kingdom, with corporate power and authority to own its properties and conduct its business as described in the SEC Reports; and is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in
good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock of the Subsidiary has been duly and validly authorized and issued, are fully paid and nonassessable and are owned directly by
the Company, free and clear of all liens, encumbrances, equities or claims. 
 (b) Organization and Qualification. The
Company is an entity duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with the requisite corporate power and authority to own or lease and use its properties and assets and to carry on its business as
currently conducted. The Company is not in violation or default of any of the provisions of its certificate of incorporation or bylaws or other organizational or charter documents. The Company is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, would not have or reasonably be expected to result in a Material Adverse Effect, and no Proceeding has been instituted, is pending, or, to the Company’s Knowledge, has been threatened in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and authority or qualification. 

  
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 (c) Authorization; Enforcement; Validity. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The Company’s execution and
delivery of each of the Transaction Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby (including, but not limited to, the sale and delivery of the Shares) have been duly authorized by all
necessary corporate action on the part of the Company, and no further corporate action is required by the Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals. Each of the
Transaction Documents to which it is a party has been (or upon delivery will have been) duly executed by the Company and is, or when delivered in accordance with the terms hereof, will constitute the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. 
 (d) No
Conflicts. The execution, delivery and performance by the Company of the Transaction Documents to which it is a party and the consummation by the Company of the transactions contemplated hereby or thereby (including, without limitation, the
issuance of the Shares) do not and will not (i) conflict with or violate any provisions of either the Company’s certificate of incorporation or bylaws or the Subsidiary’s articles of association or memorandum of association or
otherwise result in a violation of the organizational documents of the Company or the Subsidiary, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would result in a default) under, result in the
creation of any Lien upon any of the properties or assets of either the Company or the Subsidiary or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material
Contract, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which either the
Company or the Subsidiary is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by the Purchasers herein, of any self-regulatory
organization to which the Company or its securities are subject, including all applicable Trading Markets), or by which any property or asset of either the Company or the Subsidiary is bound or affected, except in the case of clauses (ii) and
(iii) such as would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect or a material adverse effect on the legality, validity or enforceability of any Transaction Document or the
Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document. 

(e) Filings, Consents and Approvals. Neither the Company nor the Subsidiary is required to obtain any consent, waiver, approval,
authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, holder of outstanding securities of the Company or other Person in connection with the
execution, delivery and performance by the Company of the Transaction Documents (including the issuance of the Shares), other than (i) the filing with the Commission of one or more Registration Statements in accordance with the requirements of
the Registration Rights Agreement, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) the filing
of any requisite notices and/or application(s) to the Principal Trading Market for the issuance and sale of the Shares and the listing of the Shares for trading or quotation, as the case may be, thereon in the time and manner required thereby,
(v) the filings required in accordance with Section 4.5 of this Agreement, and (vi) those that have been made or obtained prior to the date of this Agreement (collectively, the “Required Approvals”). 

  
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 (f) Issuance of the Securities. The Shares have been duly authorized and, when issued
and paid for in accordance with the terms of the Transaction Documents, will be duly and validly issued, fully paid and nonassessable and free and clear of all Liens, other than restrictions on transfer provided for in the Transaction Documents or
imposed by applicable securities laws, and shall not be subject to preemptive or similar rights of stockholders. Assuming the accuracy of the representations and warranties of the Purchasers in this Agreement, the Shares will be issued in compliance
with all applicable federal and state securities laws. 
 (g) Capitalization. The number of shares and type of all
authorized, issued and outstanding capital stock, options and other securities of the Company (whether or not presently convertible into or exercisable or exchangeable for shares of capital stock of the Company) is set forth in Schedule 3.1(g)
hereto. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents that have not been effectively waived as of the Closing
Date. Except as set forth on Schedule 3.1(g) or as a result of the purchase and sale of the Shares, there are as of the date of this Agreement no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Shares will not obligate the Company to issue shares of Common Stock or other securities to
any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been issued in compliance in all material respects with all applicable federal and state securities laws and the rules and regulations of any self-regulatory organization to which the
Company or its securities are subject, including all applicable Trading Markets, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or
authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Shares. Other than the IRA, there are no stockholders agreements, voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or, to the Company’s Knowledge, between or among any of the Company’s stockholders. 
 (h) SEC Reports; Disclosure Materials. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the 12 months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of
any such extension, except where the failure to file on a timely basis would not have or reasonably be expected to result in a Material Adverse Effect and would not have or reasonably be expected to result in any limitation or prohibition on the
Company’s ability to register the Shares for resale on Form S-3 or any Purchaser’s ability to use Rule 144 to resell any Shares. As of their respective filing 

  
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dates, or to the extent corrected by a subsequent amendment, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. Except for Material Contracts entered into by the Company after
September 30, 2011 where the entry into such Material Contract has been disclosed on Current Reports on Form 8-K filed with the Commission, each of the Material Contracts to which the Company is a party or to which the property or assets of the
Company are subject has been filed (or incorporated by reference) as an exhibit to the SEC Reports. 
 (i) Financial
Statements. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time
of filing (or to the extent corrected by a subsequent amendment). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of
and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial year-end audit adjustments. 

(j) Material Changes. Since the date of the latest financial statements included within the SEC Reports, except as specifically
disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there have been no events, occurrences or developments that have had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse
Effect, (ii) neither the Company nor the Subsidiary has incurred any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the Company’s consolidated financial statements pursuant to GAAP or required to be disclosed in filings made with the Commission, (iii) neither the Company nor the
Subsidiary has altered materially its method of accounting or the manner in which it keeps its accounting books and records, (iv) neither the Company nor the Subsidiary has declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock (other than in connection with repurchases of unvested stock issued to employees of the Company) and (v) neither the Company
nor the Subsidiary has issued any equity securities to any officer, director or Affiliate, except for issuances pursuant to existing Company stock option or stock purchase plans or executive and director compensation arrangements disclosed in the
SEC Reports. Except for the issuance of the Shares contemplated by this Agreement, no event, liability or development has occurred or exists with respect to the Company or its business, properties, operations or financial condition, that would be
required to be disclosed by the Company under applicable securities laws at the time this representation is made that has not been publicly disclosed at least one Trading Day prior to the date that this representation is made. 

(k) Litigation. There is no Action which affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Shares, would, if there were an unfavorable decision, individually or in the aggregate, have a Material Adverse Effect. None of the Company, the Subsidiary, nor to the Company’s Knowledge any director or officer thereof, is or
has 

  
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been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the
Company’s Knowledge there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the Securities Act. 

(l) Absence of Labor Dispute. No labor problem or dispute with the employees of the Company or the Subsidiary exist or, to the
Company’s knowledge, is threatened or imminent, in each case that would reasonably be expected to have a Material Adverse Effect. The Company is not aware that any key employee or significant group of employees of the Company or the Subsidiary
plans to terminate employment with the Company. 
 (m) Compliance. Each of the Company and the Subsidiary (i) is not
in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company under), nor has either the Company or the Subsidiary received written notice
of a claim that it is in default under or that it is in violation of, any Material Contract (whether or not such default or violation has been waived), (ii) is not in violation of any order of any court, arbitrator or governmental body having
jurisdiction over the Company or the Subsidiary or its properties or assets, and (iii) is not in violation of, or in receipt of written notice that it is in violation of, any statute, rule or regulation of any governmental authority applicable
to the Company or the Subsidiary, except in each case as would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect. 
 (n) Title to Assets. Each of the Company and the Subsidiary has good and marketable title to all tangible personal property owned by it that is material to its business, in each case free and clear
of all Liens except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or the Subsidiary. Any real property and facilities held under lease by
either the Company or the Subsidiary are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company
or the Subsidiary. 
 (o) The Exchange Act and Nasdaq. The Company is subject to and in compliance in all material
respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the NASDAQ Global Market, and the Company has
taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the NASDAQ Global Market, nor has the Company received any
notification that the Commission or the Nasdaq Stock Market LLC (“Nasdaq”) is contemplating terminating such registration or listing. No consent, approval, authorization or order of, or filing, notification or registration with, the
NASDAQ Global Market is required for the listing and trading of the Shares on the NASDAQ Global Market, except for (i) a Notification Form: Listing of Additional Shares and (ii) a Notification Form: Change in the Number of Shares
Outstanding. The Company is in compliance in all material respects with all applicable corporate governance requirements set forth in the Nasdaq Listing Rules. The Company’s board of directors has validly appointed an audit committee whose
composition satisfies the requirements of Rule 5605(c)(2) of the Nasdaq Listing Rules and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of Rule 5605(c)(1) of the Nasdaq


  
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Listing Rules. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Purchasers hereby acknowledge and agree that (i) the Company is not currently in compliance
with Nasdaq Listing Rules, has received a notification from Nasdaq of a potential delisting and may receive after date of signing of this Agreement further notices of non-compliance, including, without limitation, due to failure to meet the minimum
bid price rules, (ii) the matters disclosed in this sentence shall be deemed disclosed for all applicable representations and warranties contained in this Agreement. 
 (p) Intellectual Property. To the Company’s Knowledge, the Company owns, possesses or has valid, binding and enforceable rights to use the Company Intellectual Property (as defined below)
through ownership or otherwise. Except as described in the SEC Reports, (A) the Company has not received any written notice, nor to the Company’s knowledge, any other notice, of any infringement by the Company with respect to any
Intellectual Property (as defined below) of any third party, (B) the Company’s commercial products as described in SEC Reports do not, to the Company’s knowledge, infringe or interfere with any right or valid patent claim of any third
party, (C) to the Company’s Knowledge, the Company Intellectual Property consisting of patents and patent applications that are owned by the Company (the “Company Patents”) has been duly and properly filed; the Company is
not aware of any facts required to be disclosed to the United States Patent and Trademark Office (the “PTO”) that were not disclosed to the PTO and which would preclude the grant of a patent for the Company Patents; and the Company
is not aware of any facts which would preclude it from having clear title to the Company Patents that have been identified by the Company as being owned by the Company. For purposes of this Agreement, “Intellectual Property” means
patents, patent rights, trademarks, servicemarks, trade dress rights, copyrights, trade names and domain names, and all registrations and applications for each of the foregoing, trade secrets, know-how (including other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), inventions and technology, and “Company Intellectual Property” means Intellectual Property that is reasonably necessary or used in any material respect to conduct the
business of the Company, as described in the SEC Reports. Except as described in the SEC Reports, or as would not reasonably be expected to have a Material Adverse Effect, to the knowledge of the Company, the Company has complied with the United
States Patent and Trademark Office (the “PTO”) and applicable foreign patent authorities duty of candor and disclosure for all patent applications directed to Company Intellectual Property that are owned by the Company or which the
Company is prosecuting on behalf of the owner of such patent applications (the “Company Patent Applications”) and has made no material misrepresentation in the Company Patent Applications. 

(q) No Shareholder Approval Required. No approval of the stockholders of the Company under the rules and regulations of Nasdaq is
required for the Company to issue and deliver to the Purchasers the Shares. 
 (r) Absence of Further Requirements. No
consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company of the transactions on its part contemplated herein, including the offering and
sale of the Shares, except such as have been obtained or as may be required under the Securities Act, the Securities Act Regulations, state securities laws or the rules and regulations of the Financial Industry Regulatory Authority, Inc.
(“FINRA”), or Nasdaq. 

  
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 (s) Possession of Licenses and Permits. The Company and the Subsidiary
(A) possesses all certificates, authorizations, registrations, permits, licenses, approvals and consents issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business of the Company
as described in the SEC Reports, including without limitation, all such certificates, authorizations, registrations, permits, licenses, approvals and consents required by the United States Food and Drug Administration (the “FDA”),
the United States Drug Enforcement Administration or any other federal, state, local or foreign agencies or bodies engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials (collectively,
“Governmental Licenses”), except where the failure so to possess such Governmental Licenses would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect ; and (B) is in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect;
and neither the Company nor the Subsidiary has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse Effect. 
 (t) Regulatory Compliance. Except as
described in the SEC Reports, the Company: (A) has operated and currently is in compliance in all material respects with, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect, all statutes, rules or regulations applicable to the ownership, business, testing, research, development, manufacture, handling, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product that is under development, manufactured or distributed by the Company (“Applicable Laws”); (B) (other than a Form 483 which was received by a clinical investor of the Company involved
in the Company’s HIV-PN clinical trials for Qutenza, the receipt or matters addressed therein would not reasonably be expected to have a Material Adverse Effect) has not received any FDA Form 483, notice of adverse finding, warning letter,
untitled letter or other correspondence or other written notice from the FDA or any other applicable federal, state, local or foreign governmental or regulatory authority alleging or asserting material noncompliance with any Applicable Laws or any
licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”), which would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; (C) possesses all material Authorizations and such Authorizations are valid and in full force and effect and is not in material violation of any term of any such Authorizations; (D) has not
received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from the FDA or any other federal, state, local or foreign governmental or regulatory authority or third party alleging that any
product, testing, research, operation or activity is in material violation of any Applicable Laws or Authorizations; (E) has not received notice that the FDA or any other federal, state, local or foreign governmental authority or regulatory
authority has initiated action to limit, suspend, modify or revoke any material Authorizations; (F) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the
date filed (or were corrected or supplemented by a subsequent submission); and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or
replacement, safety alert, post-sale warning, “dear doctor” letter, or other notice or 

  
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action relating to the alleged lack of safety or efficacy of any Company product or any alleged Company product defect or violation. To the extent required by applicable laws and regulations
of the FDA or any other applicable federal, state, local or foreign governmental or regulatory authority, the Company has submitted an Investigational New Drug Application or amendment or supplement thereto or other required documentation for each
clinical trial it has conducted or sponsored or is conducting or sponsoring, all such submissions were in material compliance with applicable laws and rules and regulations when submitted and no material deficiencies have been asserted by the FDA or
any other applicable federal, state, local or foreign governmental or regulatory authority with respect to any such submissions. 
 (u) Regulatory Status. The Company has no Knowledge of any pending communication from the FDA that would cause the Company to revise its strategy for seeking marketing approval from the FDA for any
of the Company’s products under development as described in the SEC Reports. 
 (v) General Healthcare Regulatory
Compliance. 
 (i) Except as would not reasonably be expected to have a Material Adverse Effect, each of the Company, the
Subsidiary, and each of the Company’s and the Subsidiary’s directors, officers, employees, and, to the Company’s Knowledge, each of its agents (while acting in such capacity), is, and at all times has been, in compliance with all
health care laws, rules and regulations applicable to the Company or by which any of its properties, businesses, products or other assets is bound or affected, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. §
1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), the Food Drug and Cosmetic Act (21 U.S.C. §§ 301 et seq.) and the Veterans Administration Federal Supply Schedule (38 U.S.C. §
8126) (collectively, “Health Care Laws”). Except as described in the SEC Reports and except as would not reasonably be expected to have a Material Adverse Effect, neither the Company nor the Subsidiary has received any notification,
correspondence or any other written or oral communication from any federal or state governmental agency alleging or asserting a violation of any Health Care Laws. 
 (ii) Neither of the Company nor the Subsidiary is a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any
governmental entity. 
 (w) Compliance With ERISA. (i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance in all material
respects with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code, whether or not waived, has occurred or is reasonably expected to 

  
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occur; (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan);
(v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any material liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the
meaning of Section 4001(a)(3) of ERISA). 
 (x) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or the Subsidiary, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or the Subsidiary, on the other hand, that is required by the Securities Act to be described in
the SEC Reports. 
 (y) Statistical and Market-Related Data. Any statistical and market-related data included in the SEC
Reports was as of the date of disclosure based on or derived from sources that the Company believes to be reliable. 
 (z)
Money Laundering Laws. The operations of the Company and the Subsidiary are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. 
 (aa) Margin Rules.
Neither the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the Company will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors. 
 (bb) Insurance. The Company is insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as the Company believes to be prudent and customary in the businesses and locations in which the Company is engaged. The Company has not received any notice of cancellation of any such insurance, nor, to the
Company’s Knowledge, will it be unable to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in
cost. 
 (cc) Transactions With Affiliates and Employees. Except as set forth in the SEC Reports and except with respect
to the sale and issuance of shares of Common Stock and warrants pursuant to the Securities Purchase Agreement, dated as of July 21, 2011, and the transactions contemplated thereby, none of the executive officers or directors of the Company and,
to the Company’s Knowledge, none of the employees of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors) that would be required to be disclosed pursuant to
Item 404 of Regulation S-K promulgated under the Securities Act. 

  
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 (dd) Accounting Controls and Disclosure Controls. 

(i) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (w) transactions
are executed in accordance with management’s general or specific authorization; (x) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets;
(y) access to assets is permitted only in accordance with management’s general or specific authorization; and (z) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. Neither the
Company’s board of directors nor the audit committee has been informed, nor is any director of the Company aware, of (x) any significant deficiencies in the design or operation of the Company’s internal controls that could adversely
affect the Company’s ability to record, process, summarize and report financial data or any material weakness in the Company’s internal controls; or (y) any fraud, whether or not material, that involves management or other employees
of the Company who have a significant role in the Company’s internal controls. 
 (ii) The Company employs disclosure
controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and the principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure. 
 (ee) Compliance with the Sarbanes-Oxley Act. The Company is in compliance in
all material respects with all provisions of the Sarbanes-Oxley Act and all rules and regulations promulgated thereunder or implementing the provisions thereof, including Section 402 related to loans and Sections 302 and 906 related to
certifications. 
 (ff) Certain Fees. No person or entity will have, as a result of the transactions contemplated by this
Agreement, any valid right, interest or claim against or upon the Company or a Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company with respect
to the offer and sale of the Shares, other than the fees of Leerink Swann LLC (the “Financial Advisor”) acting as a financial advisor to the Company (which fees are being paid by the Company). The Purchasers shall have no obligation
with respect to any fees or with respect to any claim made by or on behalf of other Persons for fees of a type contemplated in this paragraph (ff) that may be due in connection with the transactions contemplated by the Transaction Documents. The
Company shall indemnify, pay, and hold each Purchaser harmless against, any liability, loss or expense (including, without limitation, attorneys’ fees and out-of-pocket expenses) arising in connection with any such right, interest or claim.

 (gg) Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in
Section 3.2 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Company to the Purchasers under the Transaction Documents. The issuance and sale of the Shares hereunder does not
contravene the rules and regulations of the Principal Trading Market. 

  
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 (hh) Investment Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the Shares, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so
that it will not become subject to the Investment Company Act of 1940, as amended. 
 (ii) Registration Rights. Other
than each of the Purchasers pursuant to the Registration Rights Agreement, no Person has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company. 

(jj) Application of Takeover Protections; Rights Agreements. The Company and the Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s charter
documents or the laws of its state of incorporation that is or could reasonably be expected to become applicable to any of the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the
Transaction Documents, including, without limitation, the Company’s issuance of the Shares and the Purchasers’ ownership of the Shares. 
 (kk) Disclosure. The Company confirms that it has not provided, and none of its officers or directors nor, to the Company’s Knowledge, any other Person acting on its or their behalf has
provided any Purchaser or its respective agents or counsel with any information that it believes constitutes material, non-public information except insofar as the existence, provisions and terms of the Transaction Documents and the proposed
transactions hereunder may constitute such information, all of which will be disclosed by the Company in the Press Release as contemplated by Section 4.5 hereof. The Company understands and confirms that the Purchasers will rely on the
foregoing representations in effecting transactions in securities of the Company. All disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company, its business and the transactions contemplated hereby is true and
correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not
misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereto.

 (ll) No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in
Section 3.2, neither the Company nor, to the Company’s Knowledge, any Person acting on its behalf has, directly or indirectly, at any time within the past six months, made any offers or sales of any Company security or solicited any offers
to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection with the offer and sale by the Company of the Shares as contemplated
hereby or (ii) cause the offering of the Shares pursuant to the Transaction Documents to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions, including, without
limitation, under the rules and regulations of any Trading Market on which any of the securities of the Company are listed or designated. 

  
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 (mm) Payment of Taxes. The Company has filed all United States federal income tax
returns that have been required to be filed and has paid all taxes shown thereon or otherwise assessed, which are due and payable, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have
been provided. Each of the Company and the Subsidiary has filed all other tax returns that are required to have been filed by it pursuant to applicable state, local or foreign law, except insofar as the failure to file such returns would not
reasonably be expected to have a Material Adverse Effect, and has paid all taxes shown thereon or otherwise assessed, which are due and payable, except assessments against which appeals have been or will be promptly taken and as to which adequate
reserves have been provided. Neither the Company nor the Subsidiary has any tax deficiency that has been or, to the knowledge of the Company, might be asserted or threatened against it that would reasonably be expected to have a Material Adverse
Effect. 
 (nn) Environmental Laws. Each of the Company and the Subsidiary (a) to the Company’s Knowledge, is
in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “Environmental Laws”); (b) to the Company’s Knowledge has received and is in compliance with all permits, licenses or other approvals required of it under applicable Environmental Laws to
conduct its business; and (c) has not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in each
case described above, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 

(oo) No General Solicitation. Neither the Company nor, to the Company’s Knowledge, 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. 
 (pp) Off Balance Sheet
Arrangements. There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in the SEC Reports and is not so disclosed.

 (qq) Foreign Corrupt Practices Act. Neither the Company, the Subsidiary nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or other person acting on behalf of the Company or the Subsidiary, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or
any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and each of the Company, the Subsidiary, and, to the knowledge of the Company, its affiliates, has conducted its businesses
in compliance with the FCPA, and has instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. 

  
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 (rr) Acknowledgment Regarding Purchasers’ Purchase of Shares. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges
that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Shares. The Company further represents to each Purchaser that
the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives. 

(ss) Regulation M Compliance. The Company has not, and to the Company’s Knowledge no one acting on its behalf has,
(i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) sold, bid for,
purchased, or, paid any compensation for soliciting purchases of, any of the Shares in violation of Regulation M under the Exchange Act, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Financial Advisor in connection with the transactions contemplated by this Agreement. 

(tt) PFIC Status. Neither the Company nor the Subsidiary is or intends to become a “passive foreign investment company”
within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended. 
 (uu) OFAC. Neither the
Company, the Subsidiary, nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or person acting on behalf of the Company or the Subsidiary is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC in contravention of the laws, rules and regulations pertaining to the U.S.
sanctions administered by OFAC. 
 (vv) Business With Cuba. The Company and the Subsidiary have complied in all material
respects with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government of Cuba or with any person or affiliate located in Cuba. 

(ww) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in SEC Reports has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. 
 (xx) No Additional Agreements. The Company does not have any agreement or understanding with any Purchaser with respect to the transactions contemplated by the Transaction Documents other than as
specified in the Transaction Documents 

  
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 (yy) Certain Declined Information. Notwithstanding anything to the contrary in
this Agreement, no representation or warranty of the Company contained in Sections 3.1(h), (j), (m), (s), (t) or (u) shall be deemed breached or otherwise be deemed not to be true and correct, and the Company shall not be deemed to have
breached any covenant hereunder, or otherwise be liable, with respect to any information contained in the draft material that is currently in the possession of the Company (the “Draft Information”) from the U.S. Food and Drug
Administration related to the meeting of the Anesthetic and Analgesic Drug Products Advisory Committee (“AADPAC”) regarding the Qutenza label expansion Supplemental New Drug Application (the “Meeting”) or with
respect to any subsequent versions of such materials (the “Subsequent Information”) or any information in other material released by the U.S. Food and Drug Administration in connection with the Meeting (along with the Draft
Information and Subsequent Information, collectively the “FDA Information”). 
 3.2 Representations and
Warranties of the Purchasers. Each Purchaser hereby, for itself and for no other Purchaser, represents and warrants as of the date hereof and as of the Closing Date to the Company as follows: 

(a) Organization; Authority. Such Purchaser is an entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with the requisite corporate or partnership power and authority to enter into and to consummate the transactions contemplated by the applicable Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement by such Purchaser and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or, if such Purchaser
is not a corporation, such partnership, limited liability company or other applicable like action, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such
Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. 

(b) No Conflicts. The execution, delivery and performance by such Purchaser of this Agreement and the Registration Rights
Agreement and the consummation by such Purchaser of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such Purchaser, (ii) 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 Purchaser is a party, or
(iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts,
defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Purchaser to perform its obligations hereunder. 

(c) Investment Intent. Such Purchaser understands that the Securities are “restricted securities” and have not been
registered under the Securities Act or any applicable state securities law and is acquiring the Shares as principal for its own account and not with a view to, or for distributing or reselling such Shares or any part thereof in violation of the
Securities Act or any applicable state securities laws; provided, however, that by making the representations herein, such 

  
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Purchaser does not agree to hold any of the Shares for any minimum period of time and reserves the right, subject to the provisions of this Agreement and the Registration Rights Agreement, at all
times to sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities
laws. Such Purchaser is acquiring the Shares hereunder in the ordinary course of its business. Such Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any
distribution of any of the Shares (or any securities which are derivatives thereof) to or through any person or entity; such Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business
that would require it to be so registered as a broker-dealer. 
 (d) Purchaser Status. At the time such Purchaser was
offered the Shares, it was, and at the date hereof it is, an “accredited investor” as defined in Rule 501(a) under the Securities Act. 
 (e) General Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at any seminar or any other general advertisement. 

(f) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able
to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment. 
 (g) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about the Company
and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or
can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf of such Purchaser or its
representatives or counsel shall modify, amend or affect such Purchaser’s right to rely on the truth, accuracy and completeness of the SEC Reports and the Company’s representations and warranties contained in the Transaction Documents.
Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed decision with respect to its acquisition of the Shares. 
 (h) Certain Trading Activities. Such Purchaser has not directly or indirectly engaged in any transactions in the securities of the Company (including, without limitation, Short Sales involving the
Company’s securities) since the time that such Purchaser was first contacted by the Company regarding the investment in the Company contemplated herein. “Short Sales” include, without limitation, all “short sales” as
defined in Rule 200 promulgated under Regulation SHO under the 1934 Act and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales
and other transactions through non-U.S. broker dealers or foreign regulated brokers (but shall not be deemed to include the location and/or reservation of borrowable shares of Shares). 

  
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 (i) Brokers and Finders. No Person will have, as a result of the transactions
contemplated by this Agreement, any valid right, interest or claim against or upon the Company or any Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the
Purchaser. 
 (j) Independent Investment Decision. Such Purchaser has independently evaluated the merits of its decision
to purchase Shares pursuant to the Transaction Documents, and such Purchaser confirms that it has not relied on the advice of any other Purchaser’s business and/or legal counsel in making such decision. Such Purchaser understands that nothing
in this Agreement or any other materials presented by or on behalf of the Company to the Purchaser in connection with the purchase of the Shares constitutes legal, tax or investment advice. Such Purchaser 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 the Shares. 

(k) Reliance on Exemptions. Such Purchaser understands that the Shares being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgements and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Shares. 

(l) No Governmental Review. Such Purchaser understands that no United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.

 (m) Beneficial Ownership. The purchase by such Purchaser of the Shares issuable to it at the Closing will not result
in such Purchaser (individually or together with any other Person with whom such Purchaser has identified, or will have identified, itself as part of a “group” in a public filing made with the Commission involving the Company’s
securities) acquiring, or obtaining the right to acquire, in excess of 19.999% of the outstanding shares of Common Stock or the voting power of the Company on a post-transaction basis that assumes that such Closing shall have occurred. Such
Purchaser does not presently intend to, alone or together with others, make a public filing with the Commission to disclose that it has (or that it together with such other Persons have) acquired, or obtained the right to acquire, as a result of
such Closing (when added to any other securities of the Company that it or they then own or have the right to acquire), in excess of 19.999% of the outstanding shares of Common Stock or the voting power of the Company on a post-transaction basis
that assumes that each Closing shall have occurred. 
 (n) Residency. Such Purchaser’s residence (if an individual)
or offices in which its investment decision with respect to the Shares was made (if an entity) are located at the address immediately below such Purchaser’s name on its signature page hereto. 

  
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 (o) Certain Declined Information. Each of the undersigned Purchasers hereby
acknowledges and agrees that the Company has offered to provide to such Purchaser the FDA Information in its possession or otherwise known to the Company, and has made such information and materials available for review by or disclosure to such
Purchaser, and that such Purchaser has (i) had the opportunity to receive the FDA Information, and to ask questions of, and receive answers from, the Company, concerning the FDA Information and (ii) requested that the Company not disclose
to such Purchaser any FDA Information and has not asked any questions concerning the FDA Information. 
 The Company and each of the Purchasers
acknowledge and agree that no party to this Agreement has made or makes any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Article III and the Transaction Documents.

 ARTICLE IV 
 OTHER AGREEMENTS OF THE PARTIES 
 4.1 Transfer Restrictions.

 (a) Compliance with Laws. Notwithstanding any other provision of this Article IV, each Purchaser, severally but not
jointly, covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration
statement, (ii) to the Company, (iii) pursuant to Rule 144 (provided that the applicable Purchaser provides the Company with reasonable assurances (in the form of seller and, if applicable, broker representation letters) that the
securities may be sold pursuant to such rule) or (iv) in connection with a bona fide pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the
transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares under the
Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the Registration Rights Agreement and shall have the rights of a Purchaser under this Agreement and the
Registration Rights Agreement with respect to such transferred Shares. 
 (b) Legends. Certificates evidencing the Shares
shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend in substantially the following form, until such time as they are not required under Section 4.1(c): 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE 

  
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STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID
ACT. [NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.] 

The Company acknowledges and agrees that a Purchaser that is not an Affiliate of the Company may from time to time pledge, and/or grant a
security interest in, some or all of the legended Shares in connection with applicable securities laws, pursuant to a bona fide margin agreement in compliance with a bona fide margin loan. Such a pledge would not be subject to approval or consent of
the Company and no legal opinion of legal counsel to the pledgee, secured party or pledgor shall be required in connection with the pledge, but such legal opinion shall be required in connection with a subsequent transfer or foreclosure following
default by the Purchaser transferee of the pledge. No notice shall be required of such pledge, but Purchaser’s transferee shall promptly notify the Company of any such subsequent transfer or foreclosure of such legended Shares. Each Purchaser
acknowledges that the Company shall not be responsible for (i) any pledges relating to, or the grant of any security interest in, any of the Shares or for any agreement, understanding or arrangement between any Purchaser and its pledgee or
secured party. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares may reasonably request in connection with a pledge or transfer of the Shares,
including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders thereunder, and
(ii) any violations of applicable securities laws that may result from the sale of pledged shares as a result of the Purchaser holding material non-public information at the time of such sale. Each Purchaser acknowledges and agrees that, except
as otherwise provided in Section 4.1(c), any Shares subject to a pledge or security interest as contemplated by this Section 4.1(b) shall continue to bear the legend set forth in this Section 4.1(b) and be subject to the restrictions
on transfer set forth in Section 4.1(a). 
 (c) Removal of Legends. The legend set forth in Section 4.1(b)
above shall be removed and the Company shall issue a certificate without such legend or any other legend to the holder of the applicable Shares upon which it is stamped or issue to such holder by electronic delivery at the applicable balance account
at the Depository Trust Company (“DTC”), if (i) such Shares are registered for resale under the Securities Act (provided that, if the Purchaser is selling pursuant to the effective registration statement registering the Shares
for resale, the Purchaser agrees to only sell such Shares during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold or
transferred pursuant to Rule 144 (if the transferor is not an Affiliate of the Company), or (iii) such Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information
required under Rule 144 as to such securities and without volume or manner-of-sale restrictions. Following the earlier of (i) the Effective Date or (ii) Rule 144 becoming available for the resale of Shares, without the requirement for the
Company to be in compliance with the current public information required under Rule 144 as to such securities and without volume or manner-of-sale restrictions, the Company shall deliver to the Transfer Agent irrevocable instructions that the
Transfer Agent shall reissue a certificate representing the applicable Shares without legend upon receipt by the Transfer Agent of the legended certificates for such 

  
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Shares. Any fees (with respect to the Transfer Agent or otherwise) associated with the removal of such legend shall be borne by the Company. Following the Effective Date, or at such earlier time
as a legend is no longer required for certain Shares, the Company will no later than three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent (with notice to the Company) of a legended certificate representing
Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer), and an opinion of counsel to the extent required by Section 4.1(a) (such third Trading Day, the
“Legend Removal Date”), deliver or cause to be delivered to the transferee of such Purchaser or such Purchaser, as applicable, a certificate representing such Shares that is free from all restrictive and other legends. The Company
may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.1(c). Certificates for Shares subject to legend removal hereunder may be transmitted by
the Transfer Agent to the Purchasers by crediting the account of the Purchaser’s prime broker with DTC as directed by such Purchaser. 
 4.2 Acknowledgment of Dilution. The Company acknowledges that the issuance of the Shares may result in dilution of the outstanding shares of Common Stock, which dilution may be substantial
under certain market conditions. The Company further acknowledges that its obligations under the Transaction Documents, including without limitation its obligation to issue the Shares pursuant to the Transaction Documents, are unconditional and
absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may
have on the ownership of the other stockholders of the Company. 
 4.3 Furnishing of Information. In order to
enable the Purchasers to sell the Shares under Rule 144, until the date that the Shares cease to be Registrable Securities (as defined in the Registration Rights Agreement) (and for no less than 12 months from the Closing), the Company shall timely
file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act. During such period, if the Company is not required to file
reports pursuant to the Exchange Act, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such information as is required for the Purchasers to sell the Shares under Rule 144. 

4.4 No Integration. The Company shall not, and shall ensure that no Affiliate of the Company shall, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that will be integrated with the offer or sale of the Shares in a manner that would require the registration under the
Securities Act of the sale of the Shares to the Purchasers, or that will be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the
closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction. 

4.5 Securities Laws Disclosure; Publicity. On or before 9:00 a.m., New York City time, on the Business Day immediately
following the date hereof, the Company shall issue a press release (the “Press Release”) disclosing all material terms of the transactions contemplated hereby. On or before 5:30 p.m., New York City time, by the fourth Business Day
immediately following the execution of this Agreement, the Company will file a Current Report on Form 8-K with the Commission describing the material terms of the Transaction Documents (and including as exhibits to such Current Report on Form 8-K
the material Transaction Documents (including, without 

  
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limitation, this Agreement and the Registration Rights Agreement)). From and after the issuance of the Press Release, no Purchaser shall be in possession of any material, non-public information
received from the Company or any of its officers, directors, employees or agents, that is not disclosed in the Press Release. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are required to be publicly disclosed by the Company as described in this Section 4.5, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including
the existence and terms of this transaction). 
 4.6 Shareholder Rights Plan. No claim will be made or enforced by
the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or
similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, in either case solely by virtue of receiving Shares under the
Transaction Documents or under any other written agreement between the Company and the Purchasers; provided, however, that no such Purchaser owns any equity in the Company prior to its purchase of the Shares hereunder. 

4.7 Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by
the Transaction Documents, including this Agreement, or as expressly required by any applicable securities law, the Company covenants and agrees that neither it, nor any other Person acting on its behalf, will provide any Purchaser or its agents or
counsel with any information regarding the Company that the Company believes constitutes material non-public information without the express written consent of such Purchaser, unless prior thereto such Purchaser shall have executed a written
agreement regarding the confidentiality and use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. Notwithstanding the
foregoing, the terms of this Section 4.7 shall not apply to any Potentially Disclosed Information or information provided to a Purchaser, directly or indirectly, that has a representative occupying management or director positions with the
Company. 
 4.8 Use of Proceeds. The Company shall use the net proceeds from the sale of the Shares hereunder for
working capital and general corporate purposes. The Company shall, subject to the closing conditions set forth in Article II, be obligated to issue not less than 2,900,000 shares pursuant to this Agreement. 

4.9 Indemnification of Purchasers. Subject to the provisions of this Section 4.9, the Company will indemnify and hold
each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title),
each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities,
obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (the “Indemnified Liabilities”) that any such
Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other


  
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Transaction Documents or (b) any action instituted against a Purchaser in any capacity, or any Purchaser Party or their respective Affiliates, by any stockholder of the Company who is not an
Affiliate of such Purchaser seeking indemnification, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser’s representations, warranties or covenants under
the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross
negligence, willful misconduct or malfeasance). To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Promptly after receipt by any such Person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the
commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 4.9, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses relating to such action, proceeding or investigation; provided, however, that the failure of any
Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually and materially prejudiced by such failure to notify. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have mutually agreed to the retention
of such counsel; (ii) the Company shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (iii) in the reasonable judgment of
counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not be liable for any settlement of any proceeding effected
without its written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, the Company
shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability arising out of such proceeding. 
 4.10
Listing of Securities. In the time and manner required by the Principal Trading Market, the Company shall prepare and file with such Principal Trading Market an additional shares listing application covering all of the Shares and shall take
all steps necessary to cause all of the Shares to be approved for listing on the Principal Trading Market as promptly as possible thereafter. 
 4.11 Form D; Blue Sky. The Company agrees to timely file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof, promptly upon the written request
of any Purchaser. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Shares for sale to the Purchasers at the Closing
pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States (or to obtain an exemption from such qualification) and shall provide evidence of such actions promptly upon the written request
of any Purchaser. 

  
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 4.12 Confidentiality After The Date Hereof. Each Purchaser, severally and not
jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.5, such Purchaser will maintain the confidentiality of the
existence and terms of this transaction and the information included in the Transaction Documents. 
 4.13 Subsequent
Equity Sales. From the date hereof until 30 days after the Effective Date, the Company shall not issue shares of Common Stock or Common Stock Equivalents; provided, however, the 30-day period set forth in this Section 4.13 shall be extended
for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in
the Registration Statement may not be used by the Purchasers for the resale of the Shares. Notwithstanding the foregoing, in no event shall this Section 4.13 prohibit the Company from issuing shares of Common Stock or Common Stock Equivalents
(i) in connection with acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person which is, itself or through its subsidiaries, an
operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is investing in securities, (ii) upon the exercise of any options, warrants or convertible securities outstanding on the date hereof, provided they are not amended after
the date hereof, other than an amendment solely in connection with the repricing of any options, (iii) to employees, directors or consultants pursuant to any stock option or equity incentive or employee stock purchase plan, (iv) to banks,
financial institutions or venture lenders with which the Company has entered into debt arrangements or facilities as of the date hereof, or (v) in connection with the entry by the Company into settlement agreements or similar arrangements with
parties adverse to the Company in any litigation or disputes described in the SEC Reports prior to the date hereof. 
 ARTICLE
V 
 CONDITIONS PRECEDENT TO CLOSING 
 5.1 Conditions Precedent to the Obligations of the Purchasers to Purchase Securities. The obligation of each Purchaser to acquire Shares at the Closing is subject to the fulfillment to such
Purchaser’s satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by such Purchaser (as to itself only): 
 (a) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct in all material respects (except for those representations and
warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date when made and as of the Closing Date, as though made on and as of such date, except for
such representations and warranties that speak as of a specific date. 
 (b) Performance. The Company shall have
performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the Closing. 

  
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 (c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents. 

(d) Consents. The Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and
waivers necessary for consummation of the purchase and sale of the Shares at the Closing (including all Required Approvals), all of which shall be and remain so long as necessary in full force and effect. 

(e) Adverse Change. Since the date of execution of this Agreement, no event or series of events shall have occurred that has had
or would reasonably be expected to have a Material Adverse Effect, provided that no direct or indirect effects or circumstances that have occurred or may occur with respect to, or as a result of, the release by the U.S. Food and Drug Administration
of any FDA Information or the use by the AADPAC panel of the FDA Information shall be considered to be a Material Adverse Effect for purposes of this Section 5.1. 
 (f) Listing. The NASDAQ Global Market shall have approved the listing of additional shares application for the Shares, if such application and approval are required. 

(g) No Suspensions of Trading in Common Stock. The Common Stock shall not have been suspended, as of the Closing Date, by the
Commission or the Principal Trading Market from trading on the Principal Trading Market. 
 (h) Company Deliverables. The
Company shall have delivered the Company Deliverables in accordance with Section 2.2(a). 
 (i) Compliance
Certificate. The Company shall have delivered to each Purchaser a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfillment of
the conditions specified in Sections 5.1(a) and (b) in the form attached hereto as Exhibit C. 
 (j)
Termination. This Agreement shall not have been terminated as to such Purchaser in accordance with Section 6.18 herein. 
 5.2 Conditions Precedent to the Obligations of the Company to sell Securities. The Company’s obligation to sell and issue the Shares at the Closing to the Purchasers is subject to the
fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which may be waived by the Company: 
 (a) Representations and Warranties. The representations and warranties made by the Purchasers in Section 3.2 hereof shall be true and correct in all material respects (except for those
representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date when made, and as of the Closing Date as though made on and as of such
date, except for representations and warranties that speak as of a specific date. 
 (b) Performance. Such Purchaser
shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the Closing Date.


  
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 (c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents. 

(d) Consents. The Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and
waivers necessary for consummation of the purchase and sale of the Shares, all of which shall be and remain so long as necessary in full force and effect. 
 (e) Purchasers Deliverables. Such Purchaser shall have delivered its Purchaser Deliverables in accordance with Section 2.2(b). 

(f) Listing. The NASDAQ Global Market shall have approved the listing of additional shares application for the Shares, if such
application and approval are required. 
 (g) Termination. This Agreement shall not have been terminated as to such
Purchaser in accordance with Section 6.18 herein. 
 ARTICLE VI 

MISCELLANEOUS 
 6.1 Fees and Expenses. The Company and the Purchasers shall each pay the fees and expenses of their respective advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party in connection with the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with
the sale and issuance of the Shares to the Purchasers. 
 6.2 Entire Agreement. The Transaction Documents,
together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, discussions and representations, oral or written, with
respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. At or after the Closing, and without further consideration, the Company and the Purchasers will execute and deliver to the other
such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents. 
 6.3 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile (provided the sender receives a machine-generated confirmation of successful transmission) at the facsimile number specified in this
Section 6.3 prior to 5:00 p.m., New York City time, on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this
Section 6.3 on a day that is not a Trading Day or later than 5:00 p.m., New York City time, on any Trading Day, (c) the Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service with next
day delivery specified, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as follows: 

  
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	                    If to the Company:	  	NeurogesX, Inc.
		  	2215 Bridgepointe Parkway, Suite 200
		  	San Mateo, CA 94404
		  	Telephone No.: 650-358-3300
		  	Facsimile No.: 650-412-1999
		  	Attention: Stephen Ghiglieri
		  	E-mail: sghiglieri@neurogesx.com
		  	
	                    With a copy to:	  	Morrison & Foerster LLP
		  	755 Page Mill Road
		  	Palo Alto, CA 94304
		  	Telephone No.: 650-813-5600
		  	Attention: Michael J. O’Donnell
		  	E-mail: MichaelODonnell@mofo.com
		  	
	                    If to a Purchaser:	  	To the address set forth under such Purchaser’s name on the signature page hereof; or such other address as may be designated in writing hereafter, in the same manner, by such
Person.

 6.4 Amendments; Waivers; No Additional Consideration. No provision of this Agreement may be
waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers holding or having the right to acquire 66 2/3% of the Shares at the time of such amendment or, in the
case of a waiver, by the party against whom enforcement of any such waiver is sought; provided, that any amendment, waiver modification or supplement of this Agreement that modifies the Subscription Amount of any Purchaser, the Purchase Price or
Section 2.1(a) of this Agreement or causes any such Purchaser to assume any additional liability or obligation, may be effected only pursuant to a written instrument signed by the Company and such Purchaser. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right. No consideration shall be offered or paid to any Purchaser to amend or consent to a waiver or modification of any provision of
this Agreement unless the same consideration is also offered to all Purchasers who then hold Shares. 
 6.5
Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement or any of the Transaction Documents. 

  
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 6.6 Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of and be binding upon the parties and their successors and permitted assigns. This Agreement, or any rights or obligations hereunder, may not be assigned by the Company without the prior written consent of Purchasers holding or having
the right to acquire more than 50% of the Shares at the time of such consent. Any Purchaser may assign its rights hereunder in whole or in part to any Person to whom such Purchaser assigns or transfers any Shares in compliance with the Transaction
Documents and applicable law, provided such transferee shall agree in writing to be bound, with respect to the transferred Shares, by the terms and conditions of this Agreement that apply to the “Purchasers”. 

6.7 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, except each Purchaser Party is an intended third party beneficiary of Section 4.9. 

6.8 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective Affiliates, employees or agents) shall be commenced exclusively in the New York
Courts. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such New York Court,
or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 

6.9 Survival. Subject to applicable statute of limitations, the representations, warranties agreements and covenants
contained herein shall survive the Closing and the delivery of the Shares. 
 6.10 Execution. This Agreement may
be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, or by e-mail delivery of a “.pdf” format data file, 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 signature page were an original thereof. 

  
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 6.11 Severability. If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision
that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement. 

6.12 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any
similar provisions of) the Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided,
then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights. 

6.13 Replacement of Securities. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company and the Transfer Agent of such loss, theft or destruction and the execution by the holder thereof of a customary lost certificate affidavit of that fact and an agreement to indemnify and hold harmless the Company and the
Transfer Agent for any losses in connection therewith or, if required by the Transfer Agent, a bond in such form and amount as is required by the Transfer Agent. The applicants for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs associated with the issuance of such replacement Shares. If a replacement certificate or instrument evidencing any Shares is requested due to a mutilation thereof, the Company may require delivery of such
mutilated certificate or instrument as a condition precedent to any issuance of a replacement. 
 6.14 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree
that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agree to waive in any action for specific performance of any such obligation (other
than in connection with any action for a temporary restraining order) the defense that a remedy at law would be adequate. 

6.15 Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other person under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such enforcement or setoff had not occurred. 
 6.16 Adjustments in Share Numbers and Prices. In the
event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination
or other similar recapitalization or event occurring after the date hereof and prior to the Closing, each reference in any Transaction Document to a number of shares or a price per share shall be deemed to be amended to appropriately account for
such event. 

  
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 6.17 Independent Nature of Purchasers’ Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under
any Transaction Document. The decision of each Purchaser to purchase Shares pursuant to the Transaction Documents has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company which may have been made or given by any other Purchaser or by any agent or
employee of any other Purchaser, and no Purchaser and any of its agents or employees shall have any liability to any other Purchaser (or any other Person) relating to or arising from any such information, materials, statement or opinions. Nothing
contained herein or in any Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser acknowledges that no other Purchaser has acted as agent for
such Purchaser in connection with making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the Shares or enforcing its rights under the Transaction Documents.
Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser
to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The Company has elected to provide all
Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any Purchaser. 
 6.18 Termination. This Agreement may be terminated and the sale and purchase of the Shares abandoned at any time prior to the Closing by either the Company or any Purchaser (with respect to
itself only) upon written notice to the other, if the Closing has not been consummated on or prior to 5:00 p.m., New York City time, on the Outside Date; provided, however, that the right to terminate this Agreement under this Section 6.18
shall not be available to any Person whose failure to comply with its obligations under this Agreement has been the cause of or resulted in the failure of the Closing to occur on or before such time. Nothing in this Section 6.18 shall be deemed
to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its
obligations under this Agreement or the other Transaction Documents. In the event of a termination pursuant to this Section 6.18, the Company shall promptly notify all non-terminating Purchasers. Upon a termination in accordance with this
Section 6.18, the Company and the terminating Purchaser(s) shall not have any further obligation or liability (including arising from such termination) to the other, and no Purchaser will have any liability to any other Purchaser under the
Transaction Documents as a result therefrom. The Company and any Purchaser(s) may extend the term of this Agreement in accordance with the amendment provisions of Section 6.4 herein. 

  
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 6.19 Massachusetts Business Trust. A copy of the Agreement and Declaration of
Trust of each Purchaser or any affiliate thereof is on file with the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that this Agreement is executed on behalf of the trustees of such Purchaser or any affiliate
thereof as trustees and not individually and that the obligations of this Agreement are not binding on any of the trustees, officers or stockholders of such Purchaser or any affiliate thereof individually but are binding only upon such Purchaser or
any affiliate thereof and its assets and property. 
 6.20 No Promotion. Except to the extent required by
law or applicable regulation, the Company agrees that it will not, and shall cause each of its Subsidiaries to not, without the prior written consent of Fidelity Management & Research Company (“Fidelity”), use in advertising,
publicity, or otherwise the name of Fidelity, or any Purchaser, or any partner or employee of Fidelity or any Purchaser, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned
by Fidelity, any Purchaser or any of their respective affiliates. The Company further agrees that it shall obtain the written consent of Fidelity prior to the Company’s or any of its Subsidiaries” issuance of any public statement
detailing the purchase of Common Units by Purchasers pursuant to this Agreement. 
 [Remainder of Page Intentionally Left
Blank, Signatures Follow] 

  
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 IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above. 
  

					
	NEUROGESX, INC.
		
	By:	 	  

		 	Name:	 	Stephen Ghiglieri
		 	Title:	 	Executive Vice President, Chief Operating Officer and Chief Financial Officer


 Company Signature Page to Securities Purchase Agreement 







  
  

			
	NAME OF PURCHASER:
		
	By:	 	 
		 	Name:
		 	Title:
		 	
	Aggregate Shares to be
Purchased:                                       
             
	
	
	Aggregate Purchase Price
	(Subscription
Amount):    $                                   
                                 
	
	Tax ID No.:
                                         
                   
	
	Address for Notice:
	
	 
	
	 
	
	 
	
	Telephone No.:
                                         
                   
	Facsimile No.:
                                         
                       
	E-mail
Address:                                       
                         
	Attention:
                                         
                           


  

			
	Registration Information:
		
		 	 
		
		 	 
		
		 	 
		
		 	 
		
		 	Delivery Instructions:
		 	(if different than above)
		 	
		 	c/o
                                         
                                 
		 	Street:
                                         
                             
		 	City/State/Zip:
                                         
               
		 	Attention:
                                         
                       
		 	Telephone No.:
                                         
               
		 	Street:
                                         
                               
		 	City/State/Zip:
                                         
               
		 	Attention:
                                         
                       
		 	Telephone No.:
                                         
               

 Purchaser Signature Page to Securities Purchase Agreement 







 NeurogesX, Inc. 
 Securities Purchase Agreement 
 Schedule per Section 3.1(g) 

 

													
	 As of January 31, 2012:
	  	Authorized	 	  	Issued	 	  	Outstanding *	 
	 Common Stock, $0.001 par value
	  	 	100,000,000	  	  	 	29,912,186	  	  	 	29,912,182	  
	 Warrants to acquire Common Stock
	  				  				  	 	7,932,295	  
	 Options to acquire Common Stock
	  				  				  	 	3,542,584	  
	 Restricted Stock Units
	  				  				  	 	859,000	  
	 Redeemable Convertible Preferred Stock, $0.001 par value
	  	 	10,000,000	  	  	 	0	  	  	 	0	  
		  				  	  
	  
	 	  	  
	  
	 
	 Total
	  				  	 	29,912,186	  	  	 	42,246,065	  
		  				  	  
	  
	 	  	  
	  
	 

  

	*	Excludes potential stock or stock options that may be issued under a final settlement agreement as more fully described in footnote 10 to the financial statements
included in NeurogesX, Inc. 2010 Annual Report on Form 10-K. 








 EXHIBIT A 

REGISTRATION RIGHTS AGREEMENT 
 (SEE ATTACHED) 







 EXHIBIT B 

COMPANY ACCOUNT 
 Wire
Instructions: 
 Silicon Valley Bank

NeurogesX, Inc. 
 Checking Account # 33002-47915

 3003 Tasman Drive 
 Santa Clara, CA
95054 
 Bank Routing No: 121140399 







 EXHIBIT C 

FORM OF COMPLIANCE CERTIFICATE 
 The undersigned, Stephen Ghiglieri, hereby certifies on behalf of NeurogesX, Inc. that: 
 1. He is the duly elected, qualified and acting Executive Vice President, Chief Operating Officer and Chief Financial Officer of NeurogesX, Inc., a Delaware corporation (the “Company”).

 2. This Compliance Certificate is provided pursuant to Section 5.1(i) of the Securities Purchase Agreement (the
“Purchase Agreement”), dated as of             , 2012, by and among the Company and the purchasers indentified on the signature pages thereto. Capitalized terms not otherwise
defined herein shall have the meaning assigned to them in the Purchase Agreement. 
 3. The representations and warranties of
the Company contained in the Purchase Agreement are true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties are true and
correct in all respects) as of the date when made and as of the Closing Date, as though made on and as of such date, except for such representations and warranties that speak as of a specific date. 

4. The Company has performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by it at or prior to the Closing. 
 IN WITNESS WHEREOF, the undersigned
has executed this Compliance Certificate as of             , 2012. 
  

			
	NEUROGESX, INC.
		
	By:	 	 
		 	Stephen Ghiglieri
		 	Executive Vice President, Chief Operating
		 	Officer and Chief Financial Officer