EXHIBIT 10.1


EXECUTION
VERSION

GERON CORPORATION


Common Stock
(par value
$0.001 per share) 

At Market Issuance Sales
Agreement 

August 28, 2015 

MLV & Co. LLC
1301
Avenue of the Americas
43rd Floor
New York, NY 10019 

Ladies and Gentlemen:


Geron Corporation, a
Delaware corporation (the “Company”), confirms its
agreement (this “Agreement”) with MLV &
Co. LLC (“MLV”), as follows: 

1. Issuance and Sale of Shares. The Company agrees that, from time to time during
the term of this Agreement, on the terms and subject to the conditions set forth
herein, it may issue and sell through MLV, shares (the “Placement Shares”) of the Company’s common stock, par value $0.001
per share (the “Common
Stock”), up to an aggregate
offering price of $50,000,000, provided, however, that in
no event shall the Company issue or sell through MLV such number of Placement
Shares that (a) would cause the Company to not satisfy the eligibility
requirements for use of Form S-3, (b) exceeds the number of shares of Common
Stock registered on the effective Registration Statement (as defined below)
pursuant to which the offering is being made or (c) exceeds the number of
authorized but unissued shares of the Common Stock (the lesser of (a), (b) and
(c), the “Maximum
Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that
compliance with the limitations set forth in this Section 1 on the amount of
Placement Shares issued and sold under this Agreement shall be the sole
responsibility of the Company and that MLV shall have no obligation in
connection with such compliance. The issuance and sale of Placement Shares
through MLV will be effected pursuant to the Registration Statement (as defined
below) to be filed by the Company and to be declared effective by the Securities
and Exchange Commission (the “Commission”), although
nothing in this Agreement shall be construed as requiring the Company to use the
Registration Statement to issue any Placement Shares. 







The Company shall file, in
accordance with the provisions of the Securities Act of 1933, as amended (the
“Securities Act”), and the rules and regulations thereunder (the
“Securities Act Regulations”), with the
Commission a registration statement on Form S-3, including a prospectus relating
to the Placement Shares, and which incorporates by reference, to the extent
provided for under Form S-3, documents that the Company has filed or will file
in accordance with the provisions of the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), and the rules and
regulations thereunder. Following the date that such registration statement is
declared effective by the Commission, the Company will furnish to MLV, for use
by MLV, copies of the prospectus included as part of such registration statement
relating to the Placement Shares. Except where the context otherwise requires,
such registration statement, including all documents filed as part
thereof or incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed with the
Commission pursuant to Rule 424(b) under the Securities Act Regulations or
deemed to be a part of such registration statement pursuant to Rule 430B of the
Securities Act Regulations, is herein called the “Registration Statement.” The prospectus
relating to the Placement Shares, including all documents incorporated therein
by reference, included in the Registration Statement, as it may be supplemented
from time to time, in the form in which such prospectus or any prospectus
supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act Regulations is herein called
the “Prospectus.”

Any reference herein to the
Registration Statement, the Prospectus or any amendment or supplement thereto
shall be deemed to refer to and include the documents incorporated by reference
therein, and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement or the Prospectus shall
be deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein (the
“Incorporated
Documents”). 

For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or to
any amendment or supplement thereto shall be deemed to include the most recent
copy filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval System, or if applicable, the Interactive Data Electronic
Application system when used by the Commission (collectively, “EDGAR”).

2. Placements. Each time that the Company wishes to issue and sell Placement
Shares hereunder (each, a
“Placement”), it will notify MLV by email notice (or other
written method mutually agreed to in writing by the parties) of the proposed
terms of such Placement, which shall include at a minimum the number of
Placement Shares to be issued, the time period during which sales are requested
to be made, any limitation on the number of Placement Shares that may be sold in
any one day and any minimum price below which sales may not be made (a
“Placement Notice”), the form of which is attached hereto as
Schedule 1. The Placement Notice shall originate from any of
the individuals from the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on
such schedule), and shall be addressed to each of the individuals from MLV set
forth on Schedule
3, as such Schedule 3 may be amended from time to time. The Placement Notice shall be
effective unless and until (i) MLV declines to accept the terms contained
therein for any reason, in its sole discretion by email notice to the Company
within one Business Day (as defined below) from the time the Placement Notice is
received, (ii) the entire amount of the Placement Shares thereunder have been
sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this
Agreement has been terminated under the provisions of Section 13. The amount of
any discount, commission or other compensation to be paid by the Company to MLV
in connection with the sale of the Placement Shares shall be calculated in
accordance with the terms set forth in Schedule 2. It is
expressly acknowledged and agreed that neither the Company nor MLV will have any
obligation whatsoever with respect to a Placement or any Placement Shares unless
and until the Company delivers a Placement Notice to MLV and MLV does not
decline such Placement Notice pursuant to the terms set forth above, and then
only upon the terms specified therein and herein. In the event of a conflict
between the terms of this Agreement and the terms of a Placement Notice, the
terms of the Placement Notice will control. 

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3. Sale of Placement Shares by MLV. 

(a) Subject to the terms and conditions of this Agreement, for the period
specified in the Placement Notice, MLV will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of the NASDAQ Stock
Market (the “Exchange”), to sell the
Placement Shares up to the amount specified, and otherwise in accordance with
the terms of such Placement Notice. MLV will provide written confirmation to the
Company no later than the opening of the Trading Day (as defined below)
immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to MLV pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below)
payable by MLV to the Company, with an itemization of the deductions made by MLV
(as set forth in Section
5(b)) from the gross proceeds
that it receives from such sales. Subject to the terms of the Placement Notice,
MLV shall sell Placement Shares only by methods deemed to be an “at the market
offering” as defined in Rule 415 of the Securities Act Regulations, including
without limitation sales made directly on the Exchange, on any other existing
trading market for the Common Stock or to or through a market maker. Subject to
the terms of a Placement Notice and only with the Company’s prior written
consent, MLV may also sell Placement Shares by any other method permitted by
law, including but not limited to in privately negotiated transactions.
“Trading Day” means any day on which shares of Common Stock
are purchased and sold on the Exchange. 

(b) During
the term of this Agreement, neither MLV nor any of its affiliates or
subsidiaries shall engage in (i) any short sale of any security of the Company,
(ii) any sale of any security of the Company that MLV does not own or any sale
which is consummated by the delivery of a security of the Company borrowed by,
or for the account of, MLV or (iii) any market-making, bidding, stabilization or
other trading activity with respect to the Common Stock or related derivative
securities if such activity would be prohibited under Regulation M or other
anti-manipulation rules under the Securities Act. Neither MLV nor any of its
affiliates or subsidiaries shall engage in any proprietary trading or trading
for MLV’s (or its affiliates’ or subsidiaries’) own account. 

4. Suspension of Sales. The Company or MLV may, upon notice to the other
party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 3, if receipt of
such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than via auto-reply) or by telephone (confirmed
immediately by verifiable facsimile transmission or email correspondence to each
of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair
any party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. Each of the parties agrees that no such
notice under this Section 4 shall be effective against any other party unless it
is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to
time.  

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5. Sale and Delivery to MLV;
Settlement. 

(a) Sale of Placement Shares. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, unless MLV declines to accept the terms of a
Placement Notice, and unless the sale of the Placement Shares described therein
has been declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, MLV, for the period specified in the Placement Notice,
will use its commercially reasonable efforts consistent with its normal trading
and sales practices to sell such Placement Shares up to the amount specified in,
and otherwise in accordance with, the terms of such Placement Notice. The
Company acknowledges and agrees that (i) there can be no assurance that MLV will
be successful in selling Placement Shares, (ii) MLV will incur no liability or
obligation to the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by MLV to use its
commercially reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such Placement Shares as
required under this Agreement and (iii) MLV shall be under no obligation to
purchase Placement Shares on a principal basis pursuant to this Agreement,
except as otherwise agreed by MLV and the Company. 

(b) Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Shares will occur on the third
(3rd) Trading Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each, a
“Settlement Date”). The amount of proceeds to be delivered to the
Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price
received by MLV, after deduction for (i) MLV’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof,
and (ii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales. 

(c) Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its
transfer agent to, electronically transfer the Placement Shares being sold by
crediting MLV’s or its designee’s account (provided MLV shall have given the
Company written notice of such designee a reasonable period of time prior to the
Settlement Date) at The Depository Trust Company through its Deposit and
Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as
may be mutually agreed upon by the parties hereto which in all cases shall be
freely tradable, transferable, registered shares in good deliverable form. On
each Settlement Date, MLV will deliver the related Net Proceeds to an account
designated by the Company on, or prior to, the Settlement Date in funds made
available on the same day. MLV will be responsible for providing DWAC
instructions or instructions for delivery by other means with regard to the
transfer of Placement Shares being sold. If the Company, or its transfer agent
(if applicable), defaults in its obligation to deliver Placement Shares on a
Settlement Date through no fault of MLV, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in Section 11(a)
hereto, it will (i) hold MLV harmless against any loss, claim, damage, or
expense (including reasonable legal fees and expenses), as incurred, arising out
of or in connection with such default by the Company or its transfer agent (if
applicable) and (ii) pay to MLV (without duplication) any commission, discount,
or other compensation to which it would otherwise have been entitled absent such
default. 

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(d) Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or
sale of any Placement Shares if, after giving effect to the sale of such
Placement Shares, the aggregate gross sales proceeds of Placement Shares sold
pursuant to this Agreement would exceed the lesser of (A) together with all
sales of Placement Shares under this Agreement, the Maximum Amount, (B)
the amount available for offer and sale under the Registration Statement or (C)
the amount authorized from time to time to be issued and sold under this
Agreement by the Company’s board of directors, a duly authorized committee
thereof or a duly authorized officer, and notified to MLV in writing. Under no
circumstances shall the Company cause or request the offer or sale of any
Placement Shares pursuant to this Agreement at a price lower than any minimum
price authorized from time to time by the Company’s board of directors, a duly
authorized committee thereof or a duly authorized officer, and notified to MLV
in writing. 

6. Representations and Warranties of the
Company. Except as disclosed in
the Registration Statement or
the Prospectus (including the Incorporated Documents), the Company represents
and warrants to, and agrees with MLV that as of the date of this Agreement and
as of each Applicable Time (as defined below), unless such representation,
warranty or agreement specifies a different time or times: 

(a) Registration Statement and
Prospectus. The Company and,
assuming no act or omission on the part of MLV that would make such statement
untrue, the transactions contemplated by this Agreement, meet the requirements
for and comply with the conditions for the use of Form S-3 under the Securities
Act. The Registration Statement will be filed with the Commission and will be
declared effective under the Securities Act prior to the issuance of any
Placement Notices by the Company. The Prospectus will name MLV as the agent in
the section entitled “Plan of Distribution.” The Company has not received, and
has no notice of, any order of the Commission preventing or suspending the use
of the Registration Statement, or threatening or instituting proceedings for
that purpose. The Registration Statement and the offer and sale of Placement
Shares as contemplated hereby meet or will meet the requirements of Rule 415
under the Securities Act and comply in all material respects with said Rule. Any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement have been or will be so described or
filed. Copies of the Registration Statement, the Prospectus, and any such
amendments or supplements and all documents incorporated by reference therein
that were filed with the Commission on or prior to the date of this Agreement
have been delivered, or are available through EDGAR, to MLV and its counsel. The
Company has not distributed and, prior to the later to occur of each Settlement
Date and completion of the distribution of the Placement Shares, will not
distribute any offering material in connection with the offering or sale of the
Placement Shares other than the Registration Statement and the Prospectus and
any Issuer Free Writing Prospectus (as defined below) to which MLV has
consented, such consent not to be unreasonably withheld, conditioned or delayed.
The Common Stock is currently quoted on the Exchange under the trading symbol
“GERN”. The Company has not, in the 12 months preceding the date hereof,
received notice from the Exchange to the effect that the Company is not in
compliance with the listing or maintenance requirements of the Exchange, and the
Company does not believe, other than with respect to the Exchange’s bid price
requirement, that it will not in the foreseeable future continue to be in
compliance in all material respects with all such listing and maintenance
requirements. 

5 







(b) No
Misstatement or Omission. The
Registration Statement, when it became or becomes effective, and the Prospectus,
and any amendment or supplement thereto, on the date of such Prospectus or
amendment or supplement, conformed and will conform in all material respects
with the requirements of the Securities Act. At each Settlement Date, the
Registration Statement and the Prospectus, as of such date, will conform in all
material respects with the requirements of the Securities Act. The
Registration Statement, when it became or becomes effective, did not, and will
not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus and any amendment and supplement thereto, on the
date thereof and at each Applicable Time (defined below), did not or will not
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The documents incorporated by reference in
the Prospectus did not, and any further documents filed and incorporated by
reference therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated in such document or necessary to make the statements in such document, in
light of the circumstances under which they were made, not misleading. The
foregoing shall not apply to statements in, or omissions from, any such document
made in reliance upon, and in conformity with, information furnished to the
Company by MLV specifically for use in the preparation thereof. 

(c) Conformity with Securities Act and Exchange Act. The Registration Statement, the Prospectus, or
any amendment or supplement thereto, and the documents incorporated by reference
in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the
Securities Act or the Exchange Act or became or become effective under the
Securities Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the Exchange Act, as
applicable. 

(d) Financial Information. The
consolidated financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, together with the
related notes and schedules, present fairly, in all material respects, the
consolidated financial position of the Company as of the dates indicated and the
consolidated results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified (subject, in the case of
unaudited statements, to normal year-end audit adjustments) and have been
prepared in compliance with the requirements of the Securities Act and Exchange
Act, as applicable, and in conformity with GAAP (as defined below) applied on a
consistent basis (except for such adjustments to accounting standards and
practices as are noted therein and except in the case of unaudited financial
statements to the extent they may exclude footnotes or may be condensed or
summary statements) during the periods involved; the other financial and
statistical data with respect to the Company contained or incorporated by
reference in the Registration Statement and the Prospectus are accurately and
fairly presented and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement or the Prospectus that
are not included or incorporated by reference as required; the Company does not
have any material liabilities or obligations, direct or contingent (including
any off-balance sheet obligations), not described in the Registration Statement
(including the exhibits thereto and Incorporated Documents) and the Prospectus
which are required to be described in the Registration Statement or the
Prospectus (including exhibits thereto and Incorporated Documents); and all
disclosures contained or incorporated by reference in the Registration Statement
and the Prospectus regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply in all material
respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable. 

6 







(e) Conformity with EDGAR Filing. The Prospectus delivered to MLV for use in connection with the sale of
the Placement Shares pursuant to this Agreement will be identical to the
versions of the Prospectus created to be transmitted to the Commission for
filing via EDGAR, except to the extent permitted by Regulation S-T. 

(f) Organization. The Company
is, and will be, duly organized, validly existing as a corporation and in good
standing under the laws of its jurisdiction of organization. The Company is, and
will be, duly licensed or qualified as a foreign corporation for transaction of
business and in good standing under the laws of each other jurisdiction in which
its ownership or lease of property or the conduct of its business requires such
license or qualification, and has all corporate power and authority necessary to
own or hold its properties and to conduct its business as described in the
Registration Statement and the Prospectus (including the Incorporated
Documents), except where the failure to be so qualified or in good standing or
have such power or authority would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the assets,
business, operations, earnings, properties, condition (financial or otherwise),
prospects, stockholders’ equity (as set forth on the Company’s most recent
balance sheet included in the Incorporated Documents) or results of operations
of the Company taken as a whole (a “Material Adverse Effect”).


(g) Subsidiaries. The Company
has no subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X
promulgated by the Commission). 

(h) No
Violation or Default. The Company
is not (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject; or (iii) in violation of any
law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of each
of clauses (i), (ii) and (iii) above, for any such violation or default that
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Except as described in the Prospectus or the
Incorporated Documents, to the Company’s knowledge, no other party under any
material contract or other agreement to which it is a party is in default in any
respect thereunder where such default would reasonably be expected to have a
Material Adverse Effect. 

(i) No
Material Adverse Change.
Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus (including the Incorporated
Documents), and other than the Company’s execution of this Agreement and the
sale of any Placement Shares hereunder, there has not been (i) any Material
Adverse Effect, (ii) any transaction which is material to the Company taken as a
whole, (iii) any obligation or liability, direct or contingent (including any
off-balance sheet obligations), incurred by the Company, which is material to
the Company taken as a whole, (iv) any material change in the capital stock
(other than (A) as described in a current report on Form 8-K, a proxy statement
filed on Schedule 14A or a Registration Statement on Form S-4 and otherwise
publicly announced or (B) changes in the number of outstanding shares of Common
Stock due to the issuance of shares upon the exercise or conversion of
securities exercisable for, or convertible into, shares of Common Stock, or the
vesting of equity awards) or outstanding long-term indebtedness of the Company
or (v) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company, other than in each case above (A) in the ordinary
course of business, (B) as otherwise disclosed in the Registration Statement or
Prospectus (including the Incorporated Documents) or (C) where such matter,
item, change or development would not make the statements in the Registration
Statement or the Prospectus contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.

7 







(j) Capitalization. The issued
and outstanding shares of capital stock of the Company have been validly issued,
are fully paid and non-assessable and, other than as disclosed in or
contemplated by the Registration Statement or the Prospectus, are not subject to
any preemptive rights, rights of first refusal or similar rights. The Company
has an authorized, issued and outstanding capitalization as set forth in the
Registration Statement and the Prospectus as of the dates referred to therein
(other than the grant of additional options or other equity awards under the
Company’s existing equity compensation plans, or changes in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise, vesting or conversion of securities exercisable for, or convertible
into, shares of Common Stock outstanding on the date hereof or described in the
Registration Statement and the Prospectus (including the Incorporated Documents)
or as a result of the issuance of Placement Shares) and such authorized capital
stock conforms in all material respects to the description thereof set forth in
the Registration Statement and the Prospectus (including the Incorporated
Documents). The description of the Common Stock in the Registration Statement
and the Prospectus is complete and accurate in all material respects. Other than
as set forth or described in the Registration Statement and the Prospectus
(including the Incorporated Documents), as of the dates referred to therein, the
Company did not have outstanding any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or
exchangeable for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities. 

(k) Authorization; Enforceability. The Company has full legal right, power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that (i) enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general equitable principles and
(ii) the indemnification and contribution provisions of Section 11 hereof may be
limited by federal or state securities laws and public policy considerations in
respect thereof. 

(l) Authorization of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms
approved by the board of directors of the Company or a duly authorized committee
thereof, or a duly authorized officer, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim (other than any pledge, lien, encumbrance, security
interest or other claim arising from an act or omission of MLV or a purchaser),
including any statutory or contractual preemptive rights, resale rights, rights
of first refusal or other similar rights, and will be registered pursuant to
Section 12 of the Exchange Act. The Placement Shares, when issued, will conform
in all material respects to the description thereof set forth in or incorporated
into the Prospectus. 

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(m) No
Consents Required. No consent,
approval, authorization, order, registration or qualification of or with any
court or arbitrator or any governmental or regulatory authority is required for
the execution, delivery and performance by the Company of this Agreement, and
the issuance and sale by the Company of the Placement Shares as contemplated
hereby, except for the registration of the Placement Shares under the Securities
Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws or by
the by-laws and rules of the Financial Industry Regulatory Authority
(“FINRA”) or the Exchange in connection with the sale of
the Placement Shares by MLV. 

(n) No
Preferential Rights. (i) No
person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under
the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to such Person
any shares of Common Stock or shares of any other capital stock or other
securities of the Company (other than upon the exercise of options or warrants
to purchase Common Stock or upon the exercise or vesting of options or other
equity awards that may be granted from time to time under the Company’s equity
compensation plans), (ii) no Person has any preemptive rights, rights of first
refusal, or any other rights (whether pursuant to a “poison pill” provision or
otherwise) to purchase any shares of Common Stock or shares of any other capital
stock or other securities of the Company from the Company which have not been
duly waived with respect to the offering contemplated hereby, (iii) except as
may be disclosed to MLV, no Person has the right to act as an underwriter or
sales agent in connection with the offer and sale of the Common Stock, and (iv)
no Person has the right, contractual or otherwise, to require the Company to
register under the Securities Act any shares of Common Stock or shares of any
other capital stock or other securities of the Company, or to include any such
shares or other securities in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as contemplated
thereby or otherwise. 

(o) Independent Public Accountants. Ernst & Young LLP, whose report on the consolidated financial
statements of the Company is filed with the Commission as part of the Company’s
most recent Annual Report on Form 10-K filed with the Commission and
incorporated into the Registration Statement, is and, during the periods covered
by its reports, was an independent public accounting firm within the meaning of
the Securities Act and the Public Company Accounting Oversight Board (United
States). To the Company’s knowledge, Ernst & Young LLP is not in violation
of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley
Act”) with respect to the
Company. 

(p) Enforceability of Agreements. To the Company’s knowledge, all agreements between the Company and third
parties expressly referenced in the Prospectus, other than such agreements that
have expired by their terms or whose termination is disclosed in documents filed
by the Company on EDGAR, are legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms, except to the extent that
(i) enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions of certain
agreements may be limited by federal or state securities laws or public policy
considerations in respect thereof, except for any unenforceability that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. 

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(q) Litigation. There are no
legal, governmental or regulatory actions, suits or proceedings pending, nor, to
the Company’s knowledge, any legal, governmental or regulatory investigations,
to which the Company is a party or to which any property of the Company is the
subject that, individually or in the aggregate, if determined adversely to the
Company, would reasonably be expected to have a Material Adverse Effect or
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement; to the Company’s knowledge, no such actions,
suits or proceedings are threatened or contemplated by any governmental or
regulatory authority or threatened by others that, individually or in the
aggregate, if determined adversely to the Company, would reasonably be expected
to have a Material Adverse Effect; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings or, to the
Company’s knowledge, investigations that are required under the Securities Act
to be described in the Prospectus that are not described in the Prospectus
including any Incorporated Document; and (ii) there are no contracts or other
documents that are required under the Securities Act to be filed as exhibits to
the Registration Statement that are not so filed. 

(r) Licenses and Permits. The
Company possesses or has obtained, all licenses, certificates, consents, orders,
approvals, permits and other authorizations issued by, and has made all
declarations and filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the ownership or
lease of its properties or the conduct of its business as described in the
Registration Statement and the Prospectus (the “Permits”), except where the failure to possess, obtain or make the same would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has not received written notice of any proceeding
relating to revocation or modification of any such Permit nor has any reason to
believe that such Permit will not be renewed in the ordinary course, except
where the failure to obtain any such renewal would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. 

(s) No
Material Defaults. The Company
has not defaulted on any installment on indebtedness for borrowed money or on
any rental on one or more long-term leases, which defaults, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the
Exchange Act since the filing of its last Annual Report on Form 10-K, indicating
that it (i) has failed to pay any dividend or sinking fund installment on
preferred stock or (ii) has defaulted on any installment on indebtedness for
borrowed money or on any rental on one or more long-term leases, which defaults,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. 

(t) Certain Market Activities.
Neither the Company, nor, to the Company’s knowledge, any of its directors,
officers or controlling persons has taken, directly or indirectly, any action
designed, or that has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Placement Shares. 

10 







(u) Broker/Dealer Relationships. The Company (i) is not required to register as a “broker” or “dealer” in
accordance with the provisions of the Exchange Act or (ii) does not directly or
indirectly through one or more intermediaries, control or is a “person
associated with a member” or “associated person of a member” (within the meaning
set forth in the FINRA Manual). 

(v) No
Reliance. The Company has not
relied upon MLV or legal counsel for MLV for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares. 

(w) Taxes. The Company has
filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the
extent that such taxes have become due and are not being contested in good
faith, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect. No tax deficiency has been determined adversely
to the Company which has had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The Company has no
knowledge of any federal, state or other governmental tax deficiency, penalty or
assessment which has been asserted or threatened against it which would have a
Material Adverse Effect. 

(y) Title to Real and Personal Property. The Company has good and marketable title in fee
simple to all items of real property and good and valid title to all personal
property (excluding Intellectual Property) described in the Registration
Statement or Prospectus as being owned by it that are material to the business
of the Company, in each case free and clear of all liens, encumbrances and
claims, except those that (i) do not materially interfere with the use made of
such property by the Company or (ii) would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect. Any real
property described in the Registration Statement or Prospectus as being leased
by the Company is held by the Company under valid, existing and enforceable
leases, except those that (A) do not materially interfere with the use made or
proposed to be made of such property by the Company or (B) would not be
reasonably expected, individually or in the aggregate, to have a Material
Adverse Effect. 

(z) Intellectual Property. To
its knowledge, the Company owns or possesses adequate rights to use all patents,
patent applications, trademarks (both registered and unregistered), service
marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) (collectively, the “Intellectual Property”),
necessary for the conduct of its business as conducted as of the date hereof,
except to the extent that the failure to own or possess adequate rights to use
such Intellectual Property would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; except as disclosed in
writing to MLV, the Company has not received any written notice of any claim of
infringement or conflict which asserted Intellectual Property rights of others,
which infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Effect; there are no pending, or to the Company’s
knowledge, threatened judicial proceedings or interference proceedings against
the Company challenging the Company’s rights in or to or the validity of the
scope of any of the Company’s owned patents, patent applications or proprietary
information, except for any such proceedings that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. To
the Company’s knowledge, no
other entity or individual has any right or claim in any of the Company’s owned
patents, patent applications or any patent to be issued therefrom by virtue of
any contract, license or other agreement entered into between such entity or
individual and the Company or by any non-contractual obligation of the Company,
other than by written licenses granted by the Company and other than such rights
or claims that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has not received any
written notice of any claim challenging the rights of the Company in or to any
Intellectual Property owned, licensed or optioned by the Company which claim, if
the subject of an unfavorable decision, would result in a Material Adverse
Effect. 

11 






(aa) Environmental Laws. The Company (i) 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”); (ii)
has received and is in compliance with all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business as
described in the Registration Statement and the Prospectus; and (iii) 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 the case of any of clauses (i),
(ii) or (iii) above, for any such failure to comply or failure to receive
required permits, licenses, other approvals or liability as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. 

(bb) Disclosure Controls. The Company maintains a system of internal
accounting controls designed to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company is not aware of any material weaknesses
in its internal control over financial reporting (other than as set forth in the
Prospectus). Since the date of the latest audited financial statements of the
Company included in the Prospectus, there has been 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 (other than as set forth in the Prospectus). The Company has
established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and
procedures to ensure that material information relating to the Company is made
known to the certifying officers by others within those entities, particularly
during the period in which the Company’s Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls
and procedures as of a date within 90 days prior to the filing date of the Form
10-K for the fiscal year most recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for the
fiscal year most recently ended the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in the Company’s internal controls (as such term is
defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the
Company’s knowledge, in other factors that could significantly adversely affect
the Company’s internal controls. To the knowledge of the Company, the Company’s
“internal controls over financial reporting” and “disclosure controls and
procedures” are effective.

12 







(cc) Sarbanes-Oxley. There is and has been no failure on the part of
the Company or, to the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply with any applicable
provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder. Each of the principal executive officer and the principal financial
officer of the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company as
applicable) has made all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and
other documents required to be filed by it or furnished by it to the Commission.
For purposes of the preceding sentence, “principal executive officer” and
“principal financial officer” shall have the meanings given to such terms in the
Sarbanes-Oxley Act. 

(dd) Finder’s Fees. The Company has not incurred any liability for
any finder’s fees, brokerage commissions or similar payments in connection with
the transactions herein contemplated, except as may otherwise exist with respect
to MLV pursuant to this Agreement. 

(ee) Labor Disputes. No labor disturbance by or dispute with employees
of the Company exists or, to the knowledge of the Company, is threatened which
would reasonably be expected to result in a Material Adverse Effect. 

(ff) Investment Company Act. The Company is not, nor, after giving effect to
the offering and sale of the Placement Shares, will be an “investment company”
or an entity “controlled” by an “investment company,” as such terms are defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”).

(gg) Operations. The operations of the Company are and have been conducted at all times
in compliance with applicable financial record keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions to which the Company
is subject, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency having jurisdiction over the Company (collectively, the
“Money Laundering
Laws”), except as would not
reasonably be expected to result in a Material Adverse Effect; and no action,
suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.


(hh) Off-Balance Sheet Arrangements. There are no transactions, arrangements and other
relationships between and/or among the Company, and/or, to the knowledge of the
Company, any of its affiliates and any unconsolidated entity, including, but not
limited to, any structural finance, special purpose or limited purpose entity
(each, an “Off Balance
Sheet Transaction”) that would reasonably be expected to affect materially the Company’s
liquidity or the availability of or requirements for its capital resources,
including those Off Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of Financial Conditions and
Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), in each case that
are required to be described in the Prospectus which have not been described as
required.

13 







(ii) Underwriter Agreements. The Company is not a party to any agreement with
an agent or underwriter for any other “at-the-market” transaction. 

(jj) ERISA. Except as disclosed in the Registration Statement or the Prospectus, to
the knowledge of the Company, (i) each material employee benefit plan, within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), that is maintained, administered or contributed to
by the Company for employees or former employees of the Company has been
maintained in material compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) no prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, has occurred which would reasonably be
expected to result in a material liability to the Company with respect to any
such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and (iii) for each such plan, if any, 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 has been
incurred, whether or not waived, and the fair market value of the assets of each
such plan (excluding for these purposes accrued but unpaid contributions) equals
or exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions, other than, in the case of (i), (ii) and
(iii) above, as would not reasonably be expected to have a Material Adverse
Effect. 

(kk) Forward Looking Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act) (a
“Forward Looking Statement”)
contained in the Registration Statement and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith. The Forward Looking Statements incorporated by reference in the
Registration Statement and the Prospectus from the Company’s Annual Report on
Form 10-K for the fiscal year most recently ended (i) except for any Forward
Looking Statement included in any financial statements and notes thereto, are
within the coverage of the safe harbor for forward looking statements set forth
in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or
Rule 3b-6 under the Exchange Act, as applicable, and (ii) were made by the
Company with a reasonable basis and in good faith and reflect the Company’s good
faith commercially reasonable best estimate of the matters described therein.


(ll) Margin Rules. Neither the issuance, sale and delivery of the
Placement Shares nor the application of the proceeds thereof by the Company as
described in the Registration Statement and the Prospectus 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. 

(mm) Insurance. The Company carries, or is covered by, insurance in such amounts and
covering such risks as the Company reasonably believes are adequate for the use
of its properties and as is customary for companies of similar size engaged in
similar businesses in similar industries. 

14 







(nn) No Improper Practices. (i) Neither the Company nor, to the Company’s
knowledge, any of its executive officers has, in the past five years, made any
unlawful contributions to any candidate for any political office (or failed
fully to disclose any contribution in violation of law) or made any contribution
or other payment to any official of, or candidate for, any federal, state,
municipal, or foreign office or other person charged with similar public or
quasi-public duty in violation of any law or of the character required to be
disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s knowledge, any affiliate of
the Company, on the one hand, and the directors, officers and stockholders of
the Company, on the other hand, that is required by the Securities Act to be
described in the Registration Statement and the Prospectus that is not so
described; (iii) no relationship, direct or indirect, exists between or among
the Company or any affiliate of the Company, on the one hand, and the directors,
officers, stockholders or directors of the Company, on the other hand, that is
required by the rules of FINRA to be described in the Registration Statement and
the Prospectus that is not so described; (iv) there are no material outstanding
loans or advances or material guarantees of indebtedness by the Company to or
for the benefit of any of its officers or directors or any of the members of the
families of any of them; (v) the Company has not offered, or caused any
placement agent to offer, Common Stock to any person with the intent to
influence unlawfully (A) a customer or supplier of the Company to alter the
customer’s or supplier’s level or type of business with the Company or (B) a
trade journalist or publication to write or publish favorable information about
the Company or any of its products or services; and (vi) neither the Company
nor, to the Company’s knowledge, any employee or agent of the Company has made
any payment of funds of the Company or received or retained any funds in
violation of any law, rule or regulation (including, without limitation, the
Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of
funds is of a character required to be disclosed in the Registration Statement
or the Prospectus. 

(oo) Status Under the Securities Act. The Company was not and is not an ineligible
issuer as defined in Rule 405 under the Securities Act at the times specified in
Rules 164 and 433 under the Securities Act in connection with the offering of
the Placement Shares. 

(pp) No Misstatement or Omission in an Issuer Free
Writing Prospectus. Each Issuer
Free Writing Prospectus, as of its issue date and as of each Applicable Time (as
defined in Section
24 below), did not, does not and
will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the Prospectus,
including any incorporated document deemed to be a part thereof that has not
been superseded or modified. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by MLV specifically
for use therein. 

(qq) No Conflicts. Neither the execution of this Agreement by the
Company, nor the issuance, offering or sale of the Placement Shares, nor the
consummation by the Company of any of the transactions contemplated herein and
therein, nor the compliance by the Company with the terms and provisions hereof
and thereof will conflict with, or will result in a breach of, any of the terms
and provisions of, or has constituted or will constitute a default under, or has
resulted in or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms of
any contract or other agreement to which the Company is a party or to which any
of the property or assets of the Company is subject, except (i) such conflicts,
breaches or defaults as may have been waived and (ii) such conflicts, breaches,
defaults, liens, charges or encumbrances that would not reasonably be expected
to have a Material Adverse Effect; nor will such action result (x) in any
violation of the provisions of the certificate of incorporation or bylaws of the
Company, or (y) in any material violation of the provisions of any statute or
any order, rule or regulation applicable to the Company or of any court or of
any federal, state or other regulatory authority or other government body having
jurisdiction over the Company, except where such violation would not reasonably
be expected to have a Material Adverse Effect.

15 







(rr) Clinical Studies. The clinical, pre-clinical and other studies and
tests conducted by or, to the knowledge of the Company, on behalf of the Company
were, and, if still pending, are being, conducted in accordance in all material
respects with all applicable statutes, laws, rules and regulations (including,
without limitation, those administered by the United States Food and Drug
Administration (the “FDA”) or by any foreign,
federal, state or local governmental or regulatory authority performing
functions similar to those performed by the FDA), except where the failure do so
would not have a Material Adverse Effect. For purpose of clarity, any clinical,
pre-clinical and other studies and tests conducted by third parties for any
product candidate for which the Company does not hold an Investigational New
Drug Application shall not be deemed to be conducted on behalf of the Company.
The Company has not received any written notices or other written correspondence
from the FDA or any other foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by the FDA
requiring the Company to terminate or suspend any ongoing clinical or
pre-clinical studies or tests. 

(ss) Compliance Program. The Company has established and administers a
compliance program, in accordance with the standard operating procedures (SOPs)
identified by the Company in writing to MLV, applicable to the Company, to
assist the Company and the directors, officers and employees of the Company in
complying with applicable regulatory guidelines (including, without limitation,
those administered by the FDA and any other foreign, federal, state or local
governmental or regulatory authority performing function similar to those
performed by the FDA); except where such noncompliance would not reasonably be
expected to have a Material Adverse Effect. 

(tt) OFAC. (i) Neither the Company nor, to the Company’s knowledge, any director,
officer, employee, agent, affiliate or representative of the Company, is a
government, individual, or entity (in this paragraph (tt), “Person”) that is, or is owned or controlled by a Person that is: 

(A) the
subject of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor 

(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria). 

16 







(ii) The Company represents
and covenants that the Company will not, directly or indirectly,
knowingly use the proceeds of the offering, or knowingly lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other Person: 

(A) to
fund or facilitate any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or 

(B) in any
other manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise). 

(iii) The Company
represents and covenants that, except as detailed in the Prospectus, for the
past five years, the Company has not knowingly engaged in, is not now knowingly
engaged in, and will not knowingly engage in, any dealings or transactions with
any Person, or in any country or territory, that at the time of the dealing or
transaction is or was the subject of Sanctions. 

(uu) Stock Transfer Taxes. On each Settlement Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Placement Shares to be sold
hereunder will be, or will have been, fully paid or provided for by the Company
and all laws imposing such taxes will be or will have been fully complied with
in all material respects. 

Any certificate signed by
an officer of the Company and delivered to MLV or to counsel for MLV pursuant to
or in connection with this Agreement shall be deemed to be a representation and
warranty by the Company, as applicable, to MLV as to the matters set forth
therein. 

7. Covenants of the Company. The Company covenants and agrees with MLV that:


(a) Registration Statement Amendments. After the date of this Agreement and during any
period in which a prospectus relating to any Placement Shares is required to be
delivered by MLV under the Securities Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the
“Prospectus
Delivery Period”), (i) the Company will notify MLV promptly of the time when any subsequent
amendment to the Registration Statement, other than documents incorporated by
reference, has been filed with the Commission and/or has become effective or any
subsequent supplement to the Prospectus (other than documents incorporated by
reference therein) has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for
additional information, (ii) the Company will not file any amendment or
supplement to the Registration Statement or Prospectus (except for documents
incorporated by reference therein) unless a copy thereof has been submitted to
MLV at least two Business Days before the filing and MLV has not reasonably and
in good faith objected thereto within two Business Days of receiving such copy
(provided, however, that (A) the failure of MLV to make such objection shall not
relieve the Company of any obligation or liability hereunder, or affect MLV’s
right to rely on the representations and warranties made by the Company in this
Agreement, (B) the Company has no obligation to provide MLV any advance copy of
such filing or to provide MLV an opportunity to object to such filing if such
filing does not name MLV or does not relate to the transactions contemplated by
this Agreement, and (C) the only remedy MLV shall have with respect to the
failure by the Company to provide MLV with such copy or the filing of such
amendment or supplement despite MLV’s objection shall be to cease making sales
under this Agreement) and the Company will furnish to MLV at the time of filing
thereof a copy of any document that upon filing is deemed to be incorporated by
reference into the Registration Statement or Prospectus, except for those
documents available via EDGAR; and (iii) the Company will cause each amendment
or supplement to the Prospectus to be filed with the Commission as required
pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in
the case of any document to be incorporated therein by reference, to be filed
with the Commission as required pursuant to the Exchange Act, within the time
period prescribed (the determination to file or not file any amendment or
supplement with the Commission under this Section 7(a), based on the Company’s
reasonable opinion or reasonable objections, shall be made exclusively by the
Company).

17 







(b) Notice of Commission Stop Orders. The Company will advise MLV, promptly after it receives notice or
obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Placement Shares for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued. The Company will advise MLV
promptly after it receives any request by the Commission for any amendments to
the Registration Statement or any amendment or supplements to the Prospectus or
any Issuer Free Writing Prospectus or for additional information related to the
offering of the Placement Shares or for additional information related to the
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.


(c) Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the
Company will use commercially reasonable efforts to comply in all material
respects with all requirements imposed upon it by the Securities Act, as from
time to time in force, and to file on or before their respective due dates all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d)
or any other provision of or under the Exchange Act. If the Company has omitted
any information from the Registration Statement pursuant to Rule 430A under the
Securities Act, it will use its best efforts to comply with the provisions of
and make all requisite filings with the Commission pursuant to said Rule 430A
and to notify MLV promptly of all such filings. If during the Prospectus
Delivery Period any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if during such
Prospectus Delivery Period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Securities Act, the
Company will promptly notify MLV to suspend the offering of Placement Shares
during such period and the Company will promptly amend or supplement the
Registration Statement or Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance; provided, however,
that the Company may delay any such amendment or supplement if, in the judgment
of the Company, it is in the best interests of the Company to do so. 

18 







(d) Listing of Placement Shares. During the Prospectus Delivery Period, the Company will use its
commercially reasonable efforts to cause the Placement Shares to be listed on
the Exchange and to qualify the Placement Shares for sale under the securities
laws of such jurisdictions as MLV reasonably designates and to continue such
qualifications in effect so long as required for the distribution of the
Placement Shares; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation or dealer in securities
or file a general consent to service of process in any jurisdiction. 

(e) Delivery of Registration Statement and Prospectus. The Company will furnish to MLV and its counsel
(at the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all
amendments and supplements to the Registration Statement or Prospectus that are
filed with the Commission during the Prospectus Delivery Period (including all
documents filed with the Commission during such period that are deemed to be
incorporated by reference therein), in each case as soon as reasonably
practicable and in such quantities as MLV may from time to time reasonably
request and, at MLV’s request, will also furnish copies of the Prospectus to
each exchange or market on which sales of the Placement Shares may be made;
provided, however, that the Company
shall not be required to furnish any document (other than the Prospectus) to MLV
to the extent such document is available on EDGAR. 

(f) Earnings Statement. The
Company will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement covering a 12-month
period that satisfies the provisions of Section 11(a) and Rule 158 of the
Securities Act. 

(g) Use
of Proceeds. The Company will use
the Net Proceeds as described in the Prospectus in the section entitled “Use of
Proceeds.” 

(h) Notice of Other Sales.
Without the prior written consent of MLV, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Stock (other than the Placement Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable for
Common Stock, warrants or any rights to purchase or acquire, Common Stock during
the period beginning on the fifth (5th) Trading Day immediately prior to the
date on which any Placement Notice is delivered to MLV hereunder and ending on
the fifth (5th) Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the
Placement Notice has been terminated or suspended prior to the sale of all
Placement Shares covered by a Placement Notice, the date of such suspension or
termination); and, at any time during the term of this Agreement, will not
directly or indirectly engage in any other “at the market” transactions;
provided, however, that such
restrictions will not be required in connection with the Company’s issuance or
sale of (i) Common Stock, options to purchase Common Stock or equity awards or
Common Stock issuable upon the exercise of options or vesting of equity awards,
pursuant to any employee or director equity compensation or benefits plan, stock
ownership plan or dividend reinvestment plan (but not Common Stock subject to a
waiver to exceed plan limits in its dividend reinvestment plan) of the Company
whether now in effect or hereafter implemented; (ii) Common Stock issuable upon
conversion of securities or the exercise or vesting of warrants, options or
other rights in effect or outstanding and (iii) Common Stock, or securities
convertible into or exercisable for Common Stock, in connection with any joint
venture, commercial, strategic or collaborative relationship, or the acquisition
or license by the Company of the securities, businesses, property or other
assets of another person or entity.

19 







(i) Change of Circumstances. The Company will, at any time during the pendency
of a Placement Notice advise MLV promptly after it shall have received notice or
obtained knowledge thereof, of any information or fact that would alter or
affect in any material respect any opinion, certificate, letter or other
document required to be provided to MLV pursuant to this Agreement. 

(j) Due Diligence Cooperation. The Company will cooperate with any reasonable
due diligence review conducted by MLV or its representatives in connection with
the transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers, during
regular business hours and at the Company’s principal offices or such other
location mutually agreeable by the parties, as MLV may reasonably request.


(k) Required Filings Relating to Placement of
Placement Shares. To the extent
that the filing of a prospectus supplement with the Commission with respect to a
placement of Placement Shares becomes required under Rule 424(b) under the
Securities Act, the Company agrees that on such dates as the Securities Act
shall require, the Company will file a prospectus supplement with the Commission
under the applicable paragraph of Rule 424(b) under the Securities Act (the date
of each and every such filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth, within the relevant
period, the amount of Placement Shares sold through MLV, the Net Proceeds to the
Company and the compensation payable by the Company to MLV with respect to such
Placement Shares, and deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as may
be required by the rules or regulations of such exchange or market. 

(l) Representation Dates; Certificate. Each time during the term of this Agreement that
the Company: 

(i) post-effectively amends the Registration Statement or supplements the
Prospectus, in either case such that the audited financial information contained
therein is materially amended, but not by means of incorporation of documents by
reference into the Registration Statement or the Prospectus relating to the
Placement Shares; 

(ii) files
an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A
containing restated financial statements or a material amendment to the
previously filed Form 10-K); 

(iii) files
its quarterly reports on Form 10-Q under the Exchange Act; or 

(iv) files
a current report on Form 8-K containing amended audited financial information
(other than information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K
or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the
reclassification of certain properties as discontinued operations in accordance
with Statement of Financial Accounting Standards No. 144) under the Exchange
Act; (Each date of filing of one or more of the documents referred to in clauses
(i) through (iv) shall be a “Representation Date”) the
Company shall furnish MLV (but in the case of clause (iv) above only if MLV
reasonably determines that the information contained in such Form 8-K is
material) with a certificate, in the form attached hereto as Exhibit 7(l). The
requirement to provide a certificate under this Section 7(l) shall be
automatically waived for any Representation Date occurring at a time at which no
Placement Notice is pending, which waiver shall continue until the date the
Company delivers a Placement Notice hereunder (which for such calendar quarter
shall be considered a Representation Date); provided, however, that such waiver
shall not apply for any Representation Date on which the Company files its
annual report on Form 10-K. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date
when the Company relied on such waiver and did not provide MLV with a
certificate under this Section 7(l), then before the Company delivers the
Placement Notice or MLV sells any Placement Shares, the Company shall provide
MLV with a certificate, in the form attached hereto as Exhibit 7(l), dated the
date of the Placement Notice. In addition to the requirement to provide
certificates under this Section 7(l) with respect to Representation Dates, on or
prior to the date of the first Placement Notice given hereunder, the Company
shall furnish MLV with a certificate under this Section 7(l).

20 







(m) Legal Opinion. On or prior
to the date of the first Placement Notice given hereunder, the Company shall
cause to be furnished to MLV a written opinion and letter of Cooley LLP
(“Company
Counsel”), or such other counsel
reasonably satisfactory to MLV, covering opinions and statements substantially
in the forms attached hereto as Exhibits 7(m)(1) and 7(m)(2). Thereafter within
ten (10) Trading Days of each Representation Date with respect to which the
Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be
furnished to MLV a letter of Company Counsel, or other counsel reasonably
satisfactory to MLV, covering statements substantially in the form attached
hereto as Exhibits 7(m)(2) (such letter, a "Negative Assurance Letter"), modified, as
necessary, to relate to the Registration Statement and the Prospectus as then
amended or supplemented; provided, however, the Company shall be required to furnish to MLV no more than one
Negative Assurance Letter hereunder per calendar quarter and the Company shall
not be required to furnish any such Negative Assurance Letter if the Company
does not intend to deliver a Placement Notice in such calendar quarter until
such time as the Company delivers its next Placement Notice; provided, further, that in lieu of such letters for subsequent
periodic filings under the Exchange Act, counsel may furnish MLV with a letter
(a “Reliance Letter”) to the effect
that MLV may rely on a prior Negative Assurance Letter delivered under this
Section 7(m) to the same extent as if it were dated the date of such letter
(except that statements in such prior letter shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented as of the
date of the Reliance Letter). Notwithstanding anything to the contrary set forth
herein, each obligation of the Company to cause to be furnished to MLV a
Negative Assurance Letter shall be conditioned upon the concurrent delivery to
MLV by counsel reasonably acceptable to MLV (“MLV Counsel”) of a letter covering statements substantially similar to those covered
by such Negative Assurance Letter of Company Counsel. 

(n) Comfort Letter. On or
prior to the date the first Placement Notice is given hereunder and thereafter
within ten (10) Trading Days after each Representation Date referred to in
Section 7(l)(ii), the Company shall cause its independent accountants to furnish
MLV letters (the “Comfort
Letters”), dated the date the
Comfort Letter is delivered, which shall meet the requirements set forth in this
Section 7(n); provided, that if requested by MLV, the Company shall cause a
Comfort Letter to be furnished to MLV prior to the tenth (10th) Trading Day
after the date of occurrence of any material transaction or event (including the
restatement of the Company’s financial statements) requiring the filing of a
current report on Form 8-K containing material financial information, or the
date the first Placement Notice is given hereunder following such a material
transaction or event, whichever is later. The Comfort Letter from the Company’s
independent accountants shall be in a form and substance reasonably satisfactory
to MLV, (i) confirming that they are an independent public accounting firm
within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such
date, the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings (the
first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial
Comfort Letter with any information that would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.

21 







(o) Market Activities. The
Company will not, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of Placement Shares or (ii) sell, bid for, or
purchase Common Stock in violation of Regulation M, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than MLV.


(p) Investment Company Act.
The Company will conduct its affairs in such a manner so as to reasonably ensure
that it will not be or become, at any time prior to the termination of this
Agreement, an “investment company,” as such term is defined in the Investment
Company Act. 

(q) No
Offer to Sell. Other than an
Issuer Free Writing Prospectus approved in advance by the Company and MLV in its
capacity as agent hereunder, neither MLV nor the Company (including its agents
and representatives, other than MLV in their capacity as such) will make, use,
prepare, authorize, approve or refer to any written communication (as defined in
Rule 405 under the Securities Act), required to be filed with the Commission,
that constitutes an offer to sell or solicitation of an offer to buy Placement
Shares hereunder. 

(r) Sarbanes-Oxley Act. The
Company will maintain and keep accurate books and records reflecting its assets
and maintain internal accounting controls in a manner designed to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and including those policies and
procedures that (i) pertain to the maintenance of records that in reasonable
detail accurately and fairly reflect the transactions and dispositions of the
assets of the Company, (ii) provide reasonable assurance that transactions are
recorded as necessary to permit the preparation of the Company’s consolidated
financial statements in accordance with generally accepted accounting
principles, (iii) that receipts and expenditures of the Company are being made
only in accordance with management’s and the Company’s directors’ authorization,
and (iv) provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the Company’s assets that
could have a material effect on its financial statements. The Company will
maintain such controls and other procedures, including, without limitation,
those required by Sections 302 and 906 of the Sarbanes-Oxley
Act, and the applicable regulations thereunder 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,
including, without limitation, controls and procedures 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 accumulated and communicated to the
Company’s management, including its principal executive officer and principal
financial officer, or persons performing similar functions, as appropriate to
allow timely decisions regarding required disclosure and to ensure that material
information relating to the Company is made known to them by others within those
entities, particularly during the period in which such periodic reports are
being prepared. 

22 






8. Representations and Covenants of MLV. MLV represents and warrants that it is duly
registered as a broker-dealer under FINRA, the Exchange Act and the applicable
statutes and regulations of each state in which the Placement Shares will be
offered and sold, except such states in which MLV is exempt from registration or
such registration is not otherwise required. MLV shall continue, for the term of
this Agreement, to be duly registered as a broker-dealer under FINRA, the
Exchange Act and the applicable statutes and regulations of each state in which
the Placement Shares will be offered and sold, except such states in which MLV
is exempt from registration or such registration is not otherwise required,
during the term of this Agreement. MLV will comply with all applicable laws and
regulations (including, without limitation, Regulation M) in connection with
performing its obligations under this Agreement. 

9. Payment of Expenses.


(a) The Company will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, filing, including any fees required by
the Commission, and printing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment and
supplement thereto and each Issuer Free Writing Prospectus, in such number as
MLV shall reasonably deem necessary, (ii) the printing and delivery to MLV of
this Agreement and such other documents as may be required in connection with
the offering, purchase, sale, issuance or delivery of the Placement Shares,
(iii) the preparation, issuance and delivery of the certificates, if any, for
the Placement Shares to MLV, including any stock or other transfer taxes and any
capital duties, stamp duties or other duties or taxes payable upon the sale,
issuance or delivery of the Placement Shares to MLV, (iv) the fees and
disbursements of the counsel, accountants and other advisors to the Company, (v)
the reasonable fees and disbursements of counsel to MLV incurred in connection
with the transactions contemplated by this Agreement, up to a maximum amount of
$20,000, (vi) the fees and expenses of the transfer agent and registrar for the
Common Stock, (vii) the filing fees incident to any review by FINRA of the terms
of the sale of the Placement Shares, and (viii) the fees and expenses incurred
in connection with the listing of the Placement Shares on the Exchange.


23 







10. Conditions to MLV’s Obligations. The obligations of MLV hereunder with respect to a Placement will be
subject to the continuing accuracy and completeness of the representations and
warranties made by the Company herein, to the due performance by the Company of
its obligations hereunder, to the completion by MLV of a due diligence review
satisfactory to it in its reasonable judgment, and to the continuing
satisfaction (or waiver by MLV in its sole discretion) of the following
additional conditions: 

(a) Registration Statement Effective. The Registration Statement shall have become effective and shall be
available for the sale of all Placement Shares contemplated to be issued by any
Placement Notice. 

(b) No
Material Notices. None of the
following events shall have occurred and be continuing: (i) receipt by the
Company of any request for additional information from the Commission or any
other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any
post-effective amendments or supplements to the Registration Statement or the
Prospectus; (ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Placement
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) any event that makes any material statement
made in the Registration Statement or the Prospectus or any material document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in the Registration
Statement, the Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, that in the case of
the Prospectus, it will not contain any materially untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. 

(c) No
Misstatement or Material Omission. MLV shall not have advised the Company that the Registration Statement
or Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in MLV’s reasonable opinion is material, or omits to
state a fact that in MLV’s opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.


(d) Material Changes. Except
as contemplated in the Prospectus, or disclosed in the Company’s reports filed
with the Commission, there shall not have been any material adverse change, on a
consolidated basis, in the authorized capital stock of the Company or any
Material Adverse Effect, or any development in the business or affairs of the
Company that could reasonably be expected to cause a Material Adverse Effect.


(e) Legal Opinion and Letters.
MLV shall have received the opinion and letters, as applicable, of Company
Counsel and MLV Counsel required to be delivered pursuant Section 7(m) on or
before the date on which such delivery of such opinion and letters, as
applicable, are required pursuant to Section 7(m). 

(f) Comfort Letter. MLV shall
have received the Comfort Letter required to be delivered pursuant Section 7(n)
on or before the date on which such delivery of such letter is required pursuant
to Section 7(n). 

24 







(g) Representation Certificate. MLV shall have received the certificate required to be delivered
pursuant to Section 7(l) on or before the date on which delivery of such
certificate is required pursuant to Section 7(l). 

(h) No
Suspension. Trading in the Common
Stock shall not have been suspended on the Exchange and the Common Stock shall
not have been delisted from the Exchange. 

(i) Securities Act Filings Made. All filings with the Commission required by Rule 424 under the
Securities Act to have been filed prior to the issuance of any Placement Notice
hereunder shall have been made within the applicable time period prescribed for
such filing by Rule 424. 

(j) Approval for Listing. The
Placement Shares shall either have been approved for listing on the Exchange,
subject only to notice of issuance, or the Company shall have filed an
application for listing of the Placement Shares on the Exchange at, or prior to,
the issuance of any Placement Notice. 

(k) No
Termination Event. There shall
not have occurred any event that would permit MLV to terminate this Agreement
pursuant to Section 13(a). 

11. Indemnification and Contribution. 

(a) Company Indemnification. The Company agrees to indemnify and hold harmless
MLV, its partners, members, directors, officers, employees and agents and each
person, if any, who controls MLV within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows: 

(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, joint or several, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact included in any related
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; 

(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 11(d) below) any such
settlement is effected with the written consent of the Company, which consent
shall not unreasonably be delayed or withheld; and 

(iii) against any and all
expense whatsoever, as incurred (including the reasonable fees and disbursements
of counsel), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above, provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made solely
in reliance upon and in conformity with written information furnished to the
Company by MLV expressly for use in the Registration Statement (or any amendment
thereto) or in any related Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto).

25 







(b) MLV
Indemnification. MLV agrees to
indemnify and hold harmless the Company and its directors and each officer of
the Company who signed the Registration Statement, and each person, if any, who
(i) controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act or (ii) is controlled by or is under common
control with the Company against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 11(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendments
thereto) or any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Company in writing by MLV expressly for use
therein. 

(c) Procedure. Any party that
proposes to assert the right to be indemnified under this Section 11 will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 11, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any indemnified party
otherwise than under this Section 11 and (ii) any liability that it may have to
any indemnified party under the foregoing provision of this Section 11 unless,
and only to the extent that, such omission results in the forfeiture or material
impairment of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on
written advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based on written advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly after the indemnifying party receives a written
invoice relating to fees, disbursements and other charges in reasonable detail.
An indemnifying party will not, in any event, be liable for any settlement of
any action or claim effected without its written consent. No indemnifying party
shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
11 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent (1) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (2) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.

26 







(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 11 is applicable in accordance with its
terms but for any reason is held to be unavailable from the Company or MLV, the
Company and MLV will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than MLV, such as
persons who control the Company within the meaning of the Securities Act,
officers of the Company who signed the Registration Statement and directors of
the Company, who also may be liable for contribution) to which the Company and
MLV may be subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and MLV on the other
hand. The relative benefits received by the Company on the one hand and MLV on
the other hand shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Placement Shares (before deducting expenses)
received by the Company bear to the total compensation received by MLV (before
deducting expenses) from the sale of Placement Shares on behalf of the Company.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the
Company, on the one hand, and MLV, on the other hand, with respect to the
statements or omission that resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or MLV, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
MLV agree that it would not be just and equitable if contributions pursuant to
this Section 11(d) were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense, or damage, or action
in respect thereof, referred to above in this Section 11(d) shall be deemed to
include, for the purpose of this Section 11(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim to the extent consistent with Section
11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(d),
MLV shall not be required to contribute any amount in excess of the commissions
received by it under this Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 11(d), any person who
controls a party to this Agreement within the meaning of the Securities Act, and
any officers, directors, partners, employees or agents of MLV, will have the
same rights to contribution as that party, and each officer and director of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made under this Section 11(d), will notify any such party or parties from
whom contribution may be sought, but the omission to so notify will not relieve
that party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 11(d) except to the extent
that the failure to so notify such other party materially prejudiced the
substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section
11(c) hereof, no party will be liable for contribution with respect to any
action or claim settled without its written consent if such consent is required
pursuant to Section 11(c) hereof.

27 







12. Representations and Agreements to Survive Delivery. The indemnity and contribution agreements
contained in Section 11 of this Agreement and all representations and warranties
of the Company and MLV herein or in certificates delivered pursuant hereto shall
survive, as of their respective dates, regardless of (i) any investigation made
by or on behalf of MLV, any controlling persons, or the Company (or any of their
respective officers, directors or controlling persons), (ii) delivery and
acceptance of the Placement Shares and payment therefor or (iii) any termination
of this Agreement. 

13. Termination.

(a) MLV may terminate this Agreement, by notice to
the Company, as hereinafter specified at any time (1) if there has been, since
the time of execution of this Agreement or since the date as of which
information is given in the Prospectus, any Material Adverse Effect, or any
development that is reasonably likely to have a Material Adverse Effect or in
the sole judgment of MLV makes it impractical or inadvisable to market the
Placement Shares or to enforce contracts for the sale of the Placement Shares,
(2) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the sole judgment of MLV, impracticable or inadvisable to
market the Placement Shares or to enforce contracts for the sale of the
Placement Shares, (3) if trading in the Common Stock has been suspended or
limited by the Commission or the Exchange, or if trading generally on the
Exchange has been suspended or limited, or minimum prices for trading have been
fixed on the Exchange, (4) if any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market shall have occurred
and be continuing for at least ten (10) consecutive Trading Days, (5) if a major
disruption of securities settlements or clearance services in the United States
shall have occurred and be continuing, or (6) if a banking moratorium has been
declared by either U.S. Federal or New York authorities. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section 12 (Representations and Agreements to Survive Delivery),
Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19
(Consent to Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination. If MLV elects to terminate this Agreement as
provided in this Section 13(a), MLV shall provide the required notice as
specified in Section 14 (Notices).

28 







(b) The
Company shall have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time after
the date of this Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 9, Section
11, Section 12, Section 18 and Section 19 hereof shall remain in full force and
effect notwithstanding such termination. 

(c) MLV
shall have the right, by giving ten (10) days notice as hereinafter specified to
terminate this Agreement in its sole discretion at any time after the date of
this Agreement. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 9, Section 11, Section 12,
Section 18 and Section 19 hereof shall remain in full force and effect
notwithstanding such termination. 

(d) Unless
earlier terminated pursuant to this Section 13, this Agreement shall
automatically terminate upon the earlier to occur of (i) the third
(3rd) year anniversary of the date hereof and (ii) the issuance and
sale of all of the Placement Shares through MLV on the terms and subject to the
conditions set forth herein except that the provisions of Section 9, Section 11,
Section 12, Section 18 and Section 19 hereof shall remain in full force and
effect notwithstanding such termination. 

(e) This
Agreement shall remain in full force and effect unless terminated pursuant to
Sections 13(a), (b), (c), or (d) above or otherwise by mutual agreement of the
parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 9, Section 11, Section 12,
Section 18 and Section 19 shall remain in full force and effect. Upon
termination of this Agreement, the Company shall not have any liability to MLV
for any discount, commission or other compensation with respect to any Placement
Shares not otherwise sold by MLV under this Agreement. 

(f) Any termination of this
Agreement shall be effective on the date specified in such notice of
termination; provided, however, that such termination shall not be effective
until the close of business on the date of receipt of such notice by MLV or the
Company, as the case may be. If such termination shall occur prior to the
Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement. 


29 






14. Notices. All notices or other communications required or permitted to be given by
any party to any other party pursuant to the terms of this Agreement shall be in
writing, unless otherwise specified, and if sent to MLV,
      shall be delivered to:

	                               	MLV & Co. LLC 
	 	1301 Avenue of the Americas, 43rd Floor
	 	New York, NY 10020
	 	Attention:	General Counsel
	 	Email: mlvlegal@mlvco.com
	 	 
	with a copy (which shall not constitute
      notice) to:
	 	 
	 	LeClairRyan, A Professional Corporation
	 	885 Third Avenue, 16th Floor
	 	New York, NY 10022
	 	Attention:          
      	James T. Seery
	 	Email: james.seery@leclairryan.com
	 	 
	and if to the Company, shall be delivered
      to:
	 	 
	 	Geron Corporation
	 	149 Commonwealth Drive
	 	Menlo Park, CA 94025
	 	Attention:	General Counsel
	 	Telephone:	(650) 566-7276
	 	Facsimile:	(650) 473-7701
	 	 
	with a copy (which shall not constitute
      notice) to:
	 	 
	 	Cooley LLP	 
	 	101 California Street
	 	San Francisco, CA 94111
	 	Attention:	Chadwick Mills
	 	Telephone:	(650) 843-5654
	 	Facsimile:	(650) 849-7400



Each party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose. Each such notice or
other communication shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on or before 4:30
p.m., New York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid). For purposes of
this Agreement, “Business
Day” shall mean any day on which
the Exchange and commercial banks in the City of New York are open for business.


An electronic communication
(“Electronic
Notice”) shall be deemed written
notice for purposes of this Section 14 if sent to the electronic mail address
specified by the receiving party under separate cover. Electronic Notice shall
be deemed received at the time the party sending Electronic Notice receives
confirmation of receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on paper, in a
nonelectronic form (“Nonelectronic
Notice”) which shall be sent to
the requesting party within ten (10) days of receipt of the written request for
Nonelectronic Notice.

30 







15. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the Company and
MLV and their respective successors and the affiliates, controlling persons,
officers and directors referred to in Section 11 hereof. References to any of
the parties contained in this Agreement shall be deemed to include the
successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Neither party may assign its
rights or obligations under this Agreement without the prior written consent of
the other party. 

16. Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers
contained in this Agreement shall be adjusted to take into account any share
consolidation, stock split, stock dividend, corporate domestication or similar
event effected with respect to the Placement Shares. 

17. Entire Agreement; Amendment; Severability. Effective and contingent upon execution of this
Agreement by the Company and MLV, At-the-Market Issuance Sales Agreement, dated
October 8, 2012, by and between the company and MLV is hereby terminated, and
the Company, MLV hereby agree to be bound by the provisions hereof as the sole
agreement of the Company, and MLV with respect to the subject matter hereof.
This Agreement (including all schedules and exhibits attached hereto and
Placement Notices issued pursuant hereto), together with that certain side
letter agreement between the Company and MLV dated the date hereof and that
certain Confidential Disclosure Agreement, dated May 30, 2012, as amended May
30, 2014, by and between the Company and MLV (the “CDA”), constitute the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all other prior and contemporaneous agreements and undertakings, both
written and oral, among the parties hereto with regard to the subject matter
hereof. Moreover, the Company and MLV agree that all exchanges of information
hereunder shall be governed by the terms of the CDA, which CDA the parties agree
is and shall hereby be amended to remain in full force and effect at all times
during the term of this Agreement. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company
and MLV. In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable as written by a court of competent jurisdiction, then such
provision shall be given full force and effect to the fullest possible extent
that it is valid, legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent
that giving effect to such provision and the remainder of the terms and
provisions hereof shall be in accordance with the intent of the parties as
reflected in this Agreement. 

18. GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME. THE COMPANY 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.

31 







19. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY
IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) 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. 

20. Use
of Information. MLV may not use
any information gained in connection with this Agreement and the transactions
contemplated by this Agreement, including due diligence, to advise any party
with respect to transactions not expressly approved by the Company. 

22. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed Agreement by one party to the other may be
made by facsimile transmission. 

23. Effect of Headings. The
section and Exhibit headings herein are for convenience only and shall not
affect the construction hereof. 

24. Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that,
unless it obtains the prior consent of MLV (such consent not to be unreasonably
withheld, conditioned or delayed), and MLV represents, warrants and agrees that,
unless it obtains the prior consent of the Company (such consent not to be
unreasonably withheld, conditioned or delayed), it has not made and will not
make any offer relating to the Placement Shares that would constitute an Issuer
Free Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by MLV or by the Company, as the
case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely filing with the Commission where required,
legending and record keeping. For the purposes of clarity, the parties hereto
agree that all free writing prospectuses, if any, listed in Exhibit 23 hereto are Permitted Free Writing Prospectuses.

32 







25. Absence of Fiduciary Relationship. The Company acknowledges and agrees that: 

(a) MLV is
acting solely as agent in connection with the public offering of the Placement
Shares and in connection with each transaction contemplated by this Agreement
and the process leading to such transactions, and no fiduciary or advisory
relationship between the Company or any of its respective affiliates,
stockholders (or other equity holders), creditors or employees or any other
party, on the one hand, and MLV, on the other hand, has been or will be created
in respect of any of the transactions contemplated by this Agreement,
irrespective of whether or not MLV has advised or is advising the Company on
other matters, and MLV has no obligation to the Company with respect to the
transactions contemplated by this Agreement except the obligations expressly set
forth in this Agreement; 

(b) it is
capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;


(c) MLV
has not provided any legal, accounting, regulatory or tax advice with respect to
the transactions contemplated by this Agreement and it has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate; 

(d) it is
aware that MLV and its affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company and MLV has no
obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and 

(e) it
waives, to the fullest extent permitted by law, any claims it may have against
MLV for breach of fiduciary duty or alleged breach of fiduciary duty in
connection with the sale of Placement Shares under this Agreement and agrees
that MLV shall not have any liability (whether direct or indirect, in contract,
tort or otherwise) to it in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on its behalf or in right of it or the
Company, employees or creditors of Company, other than in respect of MLV’s
obligations under this Agreement and to keep information provided by the Company
to MLV and MLV's counsel confidential to the extent not otherwise
publicly-available. 

25. Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below: 

“Applicable
Time” means (i) each
Representation Date and (ii) the time of each sale of any Placement Shares
pursuant to this Agreement. 

“Issuer Free Writing
Prospectus” means any “issuer
free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2)
is a “road show” that is a “written communication” within the meaning of Rule
433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Placement Shares or of the offering that does not reflect the
final terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) under the Securities Act
Regulations.

33 







“Rule 172,” “Rule 405,”
“Rule 415,” “Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such
rules under the Securities Act Regulations. 

All references in this
Agreement to financial statements and schedules and other information that is
“contained,” “included” or “stated” in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information that
is incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. 

All references in this
Agreement to the Registration Statement, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to EDGAR; all references in this Agreement to any
Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses
that, pursuant to Rule 433, are not required to be filed with the Commission)
shall be deemed to include the copy thereof filed with the Commission pursuant
to EDGAR; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or
similar materials prepared in connection with any offering, sale or private
placement of any Placement Shares by MLV outside of the United States.


[Remainder of page
intentionally left blank] 

34 







If the foregoing correctly
sets forth the understanding between the Company and MLV, please so indicate in
the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Company and MLV. 


		Very truly yours,
		 
		GERON CORPORATION
		  
	By:
      	/s/ Olivia K.
      Bloom	 
		Name: Olivia K. Bloom
		Title: EVP, Finance, CFO
		 
	ACCEPTED as of the date first-above
      written:
	        MLV & CO. LLC
		 
	By:  	/s/ Patrice
      Mcnicoll	 
	 	Name: Patrice McNicoll
		Title: CEO




35 







SCHEDULE 1


_____________________________

FORM OF PLACEMENT NOTICE

_____________________________

 


	From:	Geron Corporation
		 
	To:	MLV
      & Co. LLC
		Attention:
      Patrice McNicoll
		  
	Subject:            
      	At-The-Market Issuance--Placement
Notice



Gentlemen: 

Pursuant to the terms and
subject to the conditions contained in the At Market Issuance Sales Agreement
between Geron Corporation, a Delaware corporation (the “Company”), and MLV & Co. LLC (“MLV”), dated August 28, 2015, the Company hereby
requests that MLV sell up to of the Company’s Common Stock, par value $0.001 per
share, at a minimum market price of $ per share, during the time period
beginning [month, day, time] and ending [month, day, time]. [The Company may
include such other sales parameters as it deems appropriate.] 

36 







SCHEDULE 2


_____________________________

Compensation

_____________________________

The Company shall pay to
MLV in cash, upon each sale of Placement Shares pursuant to this Agreement, an
amount equal to up to 3.0% of the gross proceeds from each sale of Placement
Shares. 

37 







SCHEDULE 3


_____________________________

Notice Parties

_____________________________


 

The Company



	
      John A. Scarlett
      
	 
	 	
	Olivia K.
      Bloom              
      	 



	MLV	
	 	
	Ryan
      Loforte	rloforte@mlvco.com
	 	
	Patrice McNicoll	pmcnicoll@mlvco.com
	 	
	Miranda
      Toledano          	mtoledano@mlvco.com
	 	
	With
      a copy to	mlvatmdesk@mlvco.com



38 







EXHIBIT
7(l) 

Form of Representation
Date Certificate 

This Representation Date
Certificate (this “Certificate”) is executed and delivered in connection with
Section 7(l) of the At Market Issuance Sales Agreement (the “Agreement”), dated August 28, 2015, and entered into between Geron Corporation
(the “Company”) and MLV & Co. LLC. All capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Agreement. 

The undersigned, a duly
appointed and authorized officer of the Company, having made reasonable
inquiries to establish the accuracy of the statements below and having been
authorized by the Company to execute this certificate on behalf of the Company,
hereby certifies, on behalf of the Company and not in the undersigned’s
individual capacity, as follows: 

1. As of
the date of this Certificate, (i) the Registration Statement does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) neither the Registration Statement nor the
Prospectus contains any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (iii) no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein not untrue or misleading for (i) and (ii) to be true. 

2. Each
of the representations and warranties of the Company contained in the
Agreement was true and
correct in all material respects, when originally made, and, except for those
representations and warranties that speak solely as of a specific date, are true
and correct in all material respects as of the date of this Certificate.


3. Except
as waived by MLV in writing, each of the covenants required to be performed by
the Company in the Agreement on or prior to the date of the Agreement, this
Representation Date, and each such other date prior to the date hereof as set
forth in the Agreement, has been duly, timely and fully performed in all
material respects and each condition required to be complied with by the Company
on or prior to the date of the Agreement, this Representation Date, and each
such other date prior to the date hereof as set forth in the Agreement has been
duly, timely and fully complied with in all material respects. 

4. No
stop order suspending the effectiveness of the Registration Statement or of any
part thereof has been issued, and, to the Company’s knowledge, no proceedings
for that purpose have been instituted or are pending or threatened by any
securities or other governmental authority (including, without limitation, the
Commission). 

5. No
order suspending the effectiveness of the Registration Statement or the
qualification or registration of the Placement Shares under the securities or
Blue Sky laws of any jurisdiction are in effect and no proceeding for such
purpose is pending before, or threatened, to the Company's knowledge or in
writing by, any securities or other governmental authority (including, without
limitation, the Commission).

39 







The undersigned has
executed this Officer’s Certificate on behalf of the Company as of the date
first written above. 


	
      GERON CORPORATION
      

	 
		  
	By:   	 





	Name: 
      	 





	Title: 
      	 




40 







EXHIBIT
7(m)(1)

Form of Legal Opinion


On the basis of the
foregoing, in reliance thereon and with the foregoing qualifications, Company
Counsel is of the opinion that: 

	       	1.       	The
      Company is a validly existing corporation in good standing under the laws
      of the State of Delaware.
		 
		2.	The
      Company has the requisite corporate power to own, lease and operate its
      property, to conduct its business as described in the Registration
      Statement and to execute and deliver the Agreement and to perform its
      obligations thereunder.
		 
		3.	The
      Company is duly qualified to do business as a foreign corporation and is
      in good standing under the laws of the State of California.
		 
		4.	All
      corporate action on the part of the Company necessary for the
      authorization, execution and delivery of the Agreement by the Company, and
      the authorization, sale, issuance and delivery of the Placement Shares has
      been taken.
		 
		5.	The
      Agreement has been duly and validly authorized, executed and delivered by
      the Company.
		 
		6.	The
      Placement Shares have been duly authorized and, when issued and paid for
      pursuant to the terms of the Agreement, will be validly issued, fully paid
      and nonassessable. The holders of outstanding shares of capital stock of
      the Company are not entitled to preemptive rights or, to Company Counsel’s
      knowledge, rights of first refusal or other similar rights to subscribe
      for the Placement Shares (other than rights which have been waived in
      writing or otherwise satisfied) under the Company’s Restated Certificate
      of Incorporation, as amended (the “Charter”) or Amended and Restated
      Bylaws (the “Bylaws”), the DGCL or any Material Contract.
		 
		7.	The
      issuance and sale of the Placement Shares pursuant to the Agreement will
      not result in (i) a material breach of or default under any Material
      Contract, (ii) a violation of the Charter or the Bylaws or (iii) to
      Company Counsel’s knowledge, a violation of any statute, law, rule, or
      regulation which, in Company Counsel’s experience is typically applicable
      to transactions of the nature contemplated by the Agreement and is
      applicable to the Company, or any order, writ, judgment, injunction,
      decree, or award that has been entered against the Company and of which
      Company Counsel is aware, in each case the breach or violation of which
      would materially and adversely affect the Company.
		 
		8.	To Company
      Counsel’s knowledge, there is (i) no action, suit or proceeding by or
      before any court or other governmental agency, authority or body or any
      arbitrator pending or overtly threatened against the Company by a third
      party of a character required to be disclosed in the Registration
      Statement, or the Prospectus that is not disclosed therein as required by
      the Securities Act and the rules thereunder and (ii) no indenture,
      contract, lease, mortgage, deed of trust, note agreement, loan or other
      agreement or instrument of a character required to be filed as an exhibit
      to the Registration Statement, or the Incorporated Documents, which is not
      filed as required by the Securities Act and the rules
  thereunder.


41 







	       	9.	No
      consent, approval, authorization or filing with or order of any U.S.
      Federal or California court or governmental agency or body having
      jurisdiction over the Company is required for the consummation by the
      Company of the transactions contemplated by the Agreement, except such as
      have been obtained under the Securities Act and except such as may be
      required under the securities or blue sky laws of any jurisdiction in
      connection with the purchase and distribution of the Placement Shares by
      you in the manner contemplated in the Agreement or under the bylaws, rules
      and regulations of FINRA.
		 
		10.    	The
      Company is not required to register as an “investment company” under the
      Investment Company Act.
		 
		11.	The
      Registration Statement has become effective under the Securities Act and
      no stop order suspending the effectiveness of the Registration Statement
      has been issued. Any required filing of the Prospectus pursuant to Rule
      424(b) under the Securities Act has been made in the manner and within the
      time period required by Rule 424(b).
		 
		12.	The
      Registration Statement as of [●], 2015 and the
      Prospectus as of the date of the Prospectus (other than the financial
      statements and notes thereto or other financial or statistical data
      derived therefrom, as to which Company Counsel expresses no opinion) each
      appeared on its face to comply as to form in all material respects with
      the applicable requirements of the Securities Act and the rules
      thereunder. For purposes of this paragraph, Company Counsel has assumed
      that the statements made in the Registration Statement and the Prospectus
      are correct and complete.


42 







EXHIBIT
7(m)(2)

Form of Negative
Assurance Letter 

The primary purpose of
Company Counsel’s professional engagement was not to establish or confirm
factual matters or financial or quantitative information. Therefore, Company
Counsel has not independently verified, and accordingly is not confirming and
assumes no responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus. However, in
the course of acting as Company Counsel in connection with the preparation by
the Company of the Registration Statement and the Prospectus, Company Counsel
reviewed the Registration Statement and Prospectus, and participated in
discussions and conferences with officers and other representatives of the
Company, with its independent registered public accounting firm, as well as with
your representatives and counsel, during which conferences and conversations the
contents of the Registration Statement and the Prospectus and related matters
were discussed. Company Counsel also reviewed and relied upon certain corporate
records and documents, letters from counsel for the Company and accountants, and
oral and written statements of officers and other representatives of the Company
and others as to the existence and consequence of certain factual and other
matters. Based on Company Counsel’s participation, review and reliance as
described above, Company Counsel advises you that no facts came to Company’s
Counsel attention that caused it to believe that: 

(i) the Registration
Statement (except as to (A) the financial statements and schedules, related
notes and other financial data and statistical data derived therefrom, (B) any
intellectual property related matters and (C) any matters related to regulatory
law, as to which, in each case, Company Counsel expresses no comment), at the
date and time that the Registration Statement became effective on [●], 2015,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or 

(ii) the Prospectus (except
as to (A) the financial statements and schedules, related notes and other
financial data and statistical data derived therefrom, (B) any intellectual
property related matters and (C) any matters related to regulatory law, as to
which, in each case, Company Counsel expresses no comment) as of its date or
dates as amended or supplemented, as applicable, and as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary, in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. 

43 







Exhibit
23 

Permitted Free Writing
Prospectus 

None. 

44