exv10w1






Exhibit 10.1




2,225,000 Units



THERMOGENESIS CORP.



PLACEMENT AGENT AGREEMENT



March 8, 2011




HOULIHAN LOKEY CAPITAL, INC.

One Sansome Street, Suite 1700

San Francisco, CA 94104




Dear Sirs:




     1. INTRODUCTION. ThermoGenesis Corp., a Delaware corporation (the “Company”), proposes to
issue and sell to the purchasers, pursuant to the terms and conditions of this Placement Agent
Agreement (this “Agreement”) and the Subscription Agreements in the form of Exhibit A
attached hereto (the “Subscription Agreements”) entered into with the purchasers identified therein
(each a “Purchaser” and collectively, the “Purchasers”), up to an aggregate of 2,250,000 units (the
“Units”) with each Unit consisting of (i) one share of common stock, $0.001 par value per share
(the “Common Stock”), of the Company (each, a “Share,” and, collectively, the “Shares”), and
(ii) one warrant to purchase one-half of one share of Common Stock (each, a “Warrant” and,
collectively, the “Warrants”). The terms and conditions of the Warrants are set forth in the form
of Exhibit B attached to the Subscription Agreements. The Units will not be issued or certificated.
The Shares and Warrants are immediately separable and will be issued separately. The
Company hereby confirms its agreement with Houlihan Lokey Capital, Inc. (the “Agent”) to act as the
placement agent in accordance with the terms and conditions hereof.



     2. AGREEMENT TO ACT AS PLACEMENT AGENT; PLACEMENT OF UNITS. On the basis of the
representations, warranties and agreements of the Company herein contained, and subject to all the
terms and conditions of this Agreement:



          2.1 The Company has authorized and hereby acknowledges that the Agent has acted as its
exclusive agent to solicit offers for the purchase of all or part of the Units from the Company in
connection with the proposed offering of the Units (the “Offering”). Until the Closing Date (as
defined in Section 4 hereof), the Company shall not, without the prior written consent of
the Agent, solicit or accept offers to purchase Units otherwise than through the Agent. The Company
acknowledges and agrees that the Agent may utilize the expertise of its affiliates and partners in
connection with the Agent’s placement agent activities.




          2.2 The Company hereby acknowledges that the Agent, as agent of the Company, used its
commercially reasonable efforts to solicit offers to purchase the Units from the Company on the
terms and subject to the conditions set forth in the Prospectus (as defined below). The Agent shall
use commercially reasonable efforts to assist the Company in obtaining performance by each
Purchaser whose offer to purchase Units was solicited by the Agent and accepted by the Company,
including the prompt execution by each Purchaser of a Subscription




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Agreement to purchase Units, but
the Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the
identity of any potential purchaser or have any liability to the Company in the event any such
purchase is not consummated for any reason. Under no circumstances will the Agent be obligated to
underwrite or purchase any Units for its own account and the Company acknowledges and agrees that,
in soliciting purchases of Units, the Agent has acted, and is acting, solely as the Company’s
agent, and not as a principal.




          2.3 Subject to the provisions of this Section 2, offers for the purchase of Units were
and shall be solicited by the Agent as agent for the Company at such times and in such amounts as
the Agent deems advisable. The Agent shall communicate to the Company, orally or in writing, each
reasonable offer to purchase Units received by it as agent of the Company. The Company shall have
the sole right to accept offers to purchase the Units and may reject any such offer, in whole or in
part. The Agent shall have the right, in its discretion reasonably exercised, without notice to the
Company, to reject any offer to purchase Units received by it, in whole or in part, and any such
rejection shall not be deemed a breach of this Agreement.




          2.4 The Units are being sold to the Purchasers at a price of $2.00 per Unit. The purchases of
the Units by the Purchasers shall be evidenced by the execution of Subscription Agreements by each
of the Purchasers and the Company.




          2.5 As compensation for services rendered, on the Closing Date (as defined in
Section 4 hereof), the Company shall pay to the Agent by wire transfer of immediately
available funds to an account or accounts designated by the Agent, an aggregate amount equal to
8.0% of the gross proceeds received by the Company from the sale of the Units on such Closing Date
(the “Share Placement Fee”). The Company hereby engages the Agent on an exclusive basis, as its
agent for the solicitation of the exercise of the Warrants. The Company will (i) assist the Agent
with respect to the solicitation, if requested by the Agent, and (ii) provide the Agent, and direct
the Company’s transfer and warrant agent to provide to the Agent, at the Company’s cost, lists of
the record and, to the extent known, beneficial owners of the Warrants. Commencing one year from
the effective date of the Offering, the Company will pay the Agent a commission of 8.0% of the
exercise price of the Warrants for Warrant exercised (together with the Share Placement Fee, the
“Placement Fee”), payable on the date of such exercise, on the terms provided for in the Warrant,
only if permitted under the rules and regulations of the Financial Industry Regulatory Authority,
Inc. (“FINRA”) and only to the extent that a holder who exercises such Warrants specifically
designates, in writing, that the Agent solicited the exercise. The Agent may engage sub-agents in
its solicitation efforts.




          2.6 No Units which the Company has agreed to sell pursuant to this Agreement and the
Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the
Company, until such Units shall have been delivered to the Purchaser thereof against payment by
such Purchaser. If the Company shall default in its obligations to deliver Units to a Purchaser
whose offer it has accepted, the Company shall indemnify and hold the Agent harmless against any
loss, claim, damage or expense arising from or as a result of such default by the Company in
accordance with the procedures set forth in Section 8(c) herein.




     3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to, and
agrees with, the Agent and the Purchasers that:



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          (a) The Company has prepared and filed in conformity with the requirements of the Securities
Act of 1933, as amended (the “Securities Act”), and published rules and regulations thereunder (the
“Rules and Regulations”) adopted by the Securities and Exchange Commission (the “Commission”) a
“shelf” Registration Statement (as hereinafter defined) on Form S-3 (File No. 333-171563), which
became effective as of January 19, 2011 (the “Effective Date”), including a base prospectus
relating to the securities registered pursuant to such Registration Statement (the “Base
Prospectus”), and such amendments and supplements thereto as may have been required to the date of
this Agreement. The term “Registration Statement” as used in this Agreement means the registration
statement described in the foregoing sentence (including all exhibits, financial schedules and all
documents and information deemed to be a part of the Registration Statement pursuant to Rule 430A
of the Rules and Regulations), as amended and/or supplemented to the date of this Agreement,
including the Base Prospectus. The Registration Statement is effective under the Securities Act and
no stop order preventing or suspending the effectiveness of the Registration Statement or
suspending or preventing the use of the Prospectus has been issued by the Commission and no
proceedings for that purpose have been instituted or, to the best of the Company’s knowledge, are
threatened by the Commission. The Company, if required by the Rules and Regulations of the
Commission, will file the Prospectus (as defined below), with the Commission pursuant to
Rule 424(b) of the Rules and Regulations. The term “Prospectus” as used in this Agreement means the
Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, or, if the Prospectus is not to be filed with the Commission pursuant to
Rule 424(b), the Prospectus in the form included as part of the Registration Statement as of the
Effective Date, except that if any revised prospectus or prospectus supplement shall be provided to
the Agent by the Company for use in connection with the offering and sale of the Units which
differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term
“Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be,
from and after the time it is first provided to the Agent for such use. Any preliminary prospectus
or prospectus subject to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 of the Rules and Regulations is hereafter called a “Preliminary
Prospectus.” Any reference herein to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), on or before the last to occur of the Effective Date, the date of the
Preliminary Prospectus, or the date of the Prospectus, and any reference herein to the terms
“amend,” “amendment,” or “supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document
under the Exchange Act after the Effective Date, the date of such Preliminary Prospectus or the
date of the Prospectus, as the case may be, which is incorporated by reference and (ii) any such
document so filed. If the Company has filed an abbreviated registration statement
 to register
additional securities pursuant to Rule 462(b) under the Rules and Regulations (the
“462(b) Registration Statement”), then any reference herein to the Registration Statement shall
also be deemed to include such 462(b) Registration Statement.




          (b) As of the Applicable Time (as defined below) and as of the Closing Date, neither (i) any
General Use Free Writing Prospectus (as defined below) issued at or prior to the Applicable Time,
and the Pricing Prospectus (as defined below), all considered together (collectively, the “General
Disclosure Package”), (ii) any individual Limited Use Free Writing




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Prospectus (as defined below)
issued at or prior to the Applicable Time, nor (iii) the bona fide electronic road show (as defined
in Rule 433(h)(5) of the Rules and Regulations), if any, that has been made available without
restriction to any person, when considered together with the General Disclosure Package, included
or will include, any untrue statement of a material fact or omitted or as of the Closing Date will
omit, to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to information contained in or omitted from any Issuer
Free Writing Prospectus or the Pricing Prospectus, in reliance upon, and in conformity with,
written information furnished to the Company by the Agent specifically for inclusion therein, which
information the parties hereto agree is limited to the Agent’s Information (as defined in
Section 17). As used in this paragraph (b) and elsewhere in this Agreement:




     “Applicable Time” means 11:30 P.M., New York time, on the date of this Agreement.



     “General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Exhibit B to this Agreement.



     “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the Rules and Regulations relating to the Units 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) of the Rules and Regulations.



     “Limited Use Free Writing Prospectuses” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.



     “Pricing Prospectus” means the Preliminary Prospectus, if any, and the Base Prospectus, each
as amended and supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof,
including the final prospectus supplement dated the date hereof.



          (c) No order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus relating to the Offering has been issued by the Commission,
and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been
instituted or, to the best of the Company’s knowledge, threatened by the Commission, and any
Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no representations or warranties as
to information contained in or omitted from any Preliminary Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company by the Agent specifically for
inclusion therein, which information the parties hereto agree is limited to the Agent’s Information
(as defined in Section 17).




          (d) At the respective times the Registration Statement and any amendments thereto became or
become effective, at the date of this Agreement and at the Closing Date, each Registration
Statement and any amendments thereto conformed and will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and did not and




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will not contain
any 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 the Prospectus and any
amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date, conformed and will conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and warranties in this
paragraph (d) shall not apply to information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon, and in
conformity with, written information furnished to the Company by the Agent specifically for
inclusion therein, which information the parties hereto agree is limited to the Agent’s Information
(as defined in Section 17). The Prospectus contains all required information under the
Securities Act with respect to the Units and the distribution of the Units.




          (e) Each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Units or until any earlier date
that the Company notified or notifies the Agent as described in Section 5(e), did not, does
not and will not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, Pricing Prospectus or the Prospectus,
including any document incorporated by reference therein and any prospectus supplement deemed to be
a part thereof that has not been superseded or modified, or includes an untrue statement of a
material fact or omitted or would omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by the Agent specifically for inclusion therein, which
information the parties hereto agree is limited to the Agent’s Information (as defined in
Section 17).




          (f) The documents incorporated by reference in the Registration Statement, the Prospectus or
the General Disclosure Package, as the case may be, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and none of such documents contained any untrue statement of a material fact or omitted
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; and any
further documents so filed and incorporated by reference in the Registration Statement, the
Prospectus or the General Disclosure Package, as the case may be, when such documents become
effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain any 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.




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          (g) At the time of filing the initial Registration Statement, any 462(b) Registration
Statement and any post-effective amendments thereto, and at the date hereof, the Company was not,
and the Company currently is not, an “ineligible issuer,” as defined in Rule 405 of the Rules and
Regulations. The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the Offering other than any Preliminary Prospectus, the
Prospectus and other materials, if any, permitted under the Securities Act and consistent with
Section 5(b) below. The Company will file with the Commission all Issuer Free Writing
Prospectuses (other than a “road show,” as described in Rule 433(d)(8) of the Rules and
Regulations), if any, in the time and manner required under Rule 433(d) of the Rules and
Regulations.




          (h) The Company and each of its subsidiaries (as defined in Section 15) has been duly
organized and is validly existing as corporations or other legal entities in good standing (or the
foreign equivalent thereof) under the laws of their respective jurisdictions of organization. The
Company and each of its subsidiaries is duly qualified to do business and is in good standing as
foreign corporations or other legal entities in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses require such
qualification and have all power and authority necessary to own or hold their respective properties
and to conduct the businesses in which each is engaged, except where the failure to so qualify or
have such power or authority (i) would not have, singularly or in the aggregate, a material adverse
effect on the condition (financial or otherwise), results of operations, assets, business,
liquidity or prospects of the Company and its subsidiaries taken as a whole, or (ii) impair in any
material respect the ability of the Company to perform its obligations under this Agreement or to
consummate any transactions contemplated by this Agreement (any such effect as described in clauses
(i) or (ii), a “Material Adverse Effect”). The Company does not own or control, directly or
indirectly, any corporation, partnership, limited liability partnership, limited liability company,
association or other entity.




          (i) The Company has the full right, power and authority to enter into this Agreement, each of
the Subscription Agreements and the Warrants, and to perform and to discharge its obligations
hereunder and thereunder; and each of this Agreement, each of the Subscription Agreements and each
of the Warrants has been duly authorized, executed and delivered by the Company, and constitutes a
valid and binding obligation of the Company enforceable in accordance with its terms; except that
such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws, now or hereafter in effect, affecting creditors’ rights generally.




          (j) The Shares to be issued and sold by the Company to the Purchasers hereunder and under the
Subscription Agreements and the shares of Common Stock issuable upon exercise of the Warrants (the
“Warrant Shares”) have been duly and validly authorized and, when the Shares have been issued and
delivered against payment therefor as provided herein and the Subscription Agreements and when the
Warrant Shares have been delivered and paid for in accordance with the Warrants, all such shares of
Common Stock will be duly and validly issued, fully paid and nonassessable and free of any
preemptive or similar rights and will conform to the description thereof contained in the General
Disclosure Package and the Prospectus.




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          (k) The Company has an authorized capitalization as set forth in the General Disclosure
Package, and all of the issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, have been issued in compliance with
federal and state securities laws, and conform to the description thereof contained in the General
Disclosure Package. None of the outstanding shares of Common Stock was issued in violation of any
preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
securities of the Company. As of the date set forth in the General Disclosure Package, there were
no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries other than those accurately
described in the General Disclosure Package. Since such date, the Company has not issued any
securities other than Common Stock issued pursuant to the exercise of warrants or upon the exercise
of stock options previously outstanding under the Company’s stock option plans and the issuance of
Common Stock pursuant to employee stock purchase plans, except for the issuance of an aggregate of
70,000 shares of restricted Common Stock on November 3, 2010 pursuant to that certain International
Distributor Agreement, dated November 3, 2010, between the Company and Nanshan Memorial Medical
Institute.




          (l) The Company has no subsidiaries.




          (m) The execution, delivery and performance of this Agreement, the Subscription Agreements and
the Warrants by the Company, the issue and sale of the Units by the Company and the consummation of
the transactions contemplated hereby and thereby will not (with or without notice or lapse of time
or both) conflict with or result in a breach or violation of any of the terms or provisions of,
constitute a default or Debt Repayment Triggering Event (as defined below) under, give rise to any
right of termination or other right or the cancellation or acceleration of any right or obligation
or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance,
security interest, claim or charge upon any property or assets of the Company or any subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation of the provisions of the
charter or by-laws (or analogous governing instruments, as applicable) of the Company or any of its
subsidiaries or any law, statute, rule, regulation, judgment, order or decree of any court or
governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets. A “Debt Repayment Triggering Event” means
any event or condition that gives, or with the giving of notice or lapse of time would give the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.




          (n) Except for the registration of the securities offered in the Offering under the Securities
Act and such consents, approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign securities laws, FINRA and the
Nasdaq Stock Market, LLC (“Nasdaq”) in connection with the offering and sale of the Units by the
Company, no consent, approval, authorization or order of, or filing, qualification or registration
with, any court or governmental agency or body, foreign or domestic, which has not




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been made,
obtained or taken and is not in full force and effect, is required for the execution, delivery and
performance of this Agreement, the Subscription Agreements and the Warrants by the Company, the
offer or sale of the Units or the consummation of the transactions contemplated hereby and thereby.




          (o) Ernst & Young LLP, who have audited the Company’s consolidated financial statements for
the years ended June 30, 2010 and 2009 and for the three years in the period ended June 30, 2010
and the related schedule and have performed reviews in accordance with Statement on Auditing
Standards No. 100 as of and for the three- and six- month periods ended December 31, 2010 and 2009
and as of and for the three month periods ended September 30, 2010 and 2009 incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus, and
have audited the Company’s internal control over financial reporting, is an independent registered
public accounting firm as required by the Securities Act and the Rules and Regulations and the
Public Company Accounting Oversight Board (United States) (the “PCAOB”). During the three year
period immediately preceding the date of this Agreement, Ernst & Young LLP has not performed any
“prohibited activities” (as defined in Section 10A of the Exchange Act) on behalf of the Company
and Ernst & Young LLP has not been engaged by the Company to perform any “prohibited activities”
(as defined in Section 10A of the Exchange Act) at any time on or after the date hereof.




          (p) The financial statements, together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package, the Prospectus and in the Registration
Statement fairly present the financial position and the results of operations and changes in
financial position of the Company and its consolidated subsidiaries at the respective dates or for
the respective periods therein specified. Such statements and related notes and schedules have been
prepared in accordance with the generally accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis throughout the periods involved except as may be set forth
in the related notes included or incorporated by reference in the General Disclosure Package. The
financial statements, together with the related notes and schedules, included or incorporated by
reference in the General Disclosure Package, the Prospectus and in the Registration Statement
comply in all material respects with the Securities Act, the Exchange Act, and the Rules and
Regulations and the rules and regulations under the Exchange Act. No other financial statements or
supporting schedules or exhibits, including, without limitation, any pro forma or as adjusted
financial information, are required by the Securities Act or the Rules and Regulations to be
described, or included or incorporated by reference in the General Disclosure Package, the
Prospectus or the Registration Statement.




          (q) None of the Company or any of its subsidiaries has sustained, since the date of the latest
audited financial statements included or incorporated by reference in the General Disclosure
Package, any material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree; and, since such date, there has not been any change in the capital stock
(other than Common Stock of the Company issued pursuant to the exercise of warrants or upon the
exercise of stock options previously outstanding under the Company’s stock option plans and the
issuance of Common Stock pursuant to employee stock purchase plans) or long-term debt of the
Company or any of its subsidiaries, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, assets, general affairs,
management, financial position, prospects,




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liquidity, stockholders’ equity or results of operations
of the Company and its subsidiaries taken as a whole, otherwise than as set forth in the General
Disclosure Package.




          (r) Except as set forth in the General Disclosure Package, there is no legal or governmental
action, suit, claim or proceeding pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of its subsidiaries is the subject
that is required to be described in the Registration Statement, the General Disclosure Package or
the Prospectus or a document incorporated by reference therein and is not described therein, or
which, singularly or in the aggregate, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse Effect or would prevent or
adversely affect the ability of the Company to perform its obligations under this Agreement; and to
the best of the Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.




          (s) None of the Company or any of its subsidiaries is in (i) violation of its charter or
by-laws (or analogous governing instrument, as applicable), (ii) default in any respect, and no
event has occurred which, 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, lease or other agreement or instrument to which it is a
party or by which it is bound or to which any of its property or assets is subject or
(iii) violation in any respect of any law, ordinance, governmental rule, regulation or court order,
decree or judgment to which it or its property or assets may be subject except, in the case of
clauses (ii) and (iii) of this paragraph (s), for any violations or defaults which,
singularly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.




          (t) The clinical evaluations conducted by or on behalf of or sponsored by the Company or in
which the Company or its product candidates have participated that are described in the General
Disclosure Package and Prospectus or the results of which are referred to in the General Disclosure
Package or Prospectus were and, if still pending, are being conducted in all material respects in
accordance with medical and scientific research procedures that the Company reasonably believes are
appropriate. The descriptions in the General Disclosure Package and Prospectus of the results of
such clinical evaluations are accurate and fairly present the data derived from such clinical
evaluations, and the Company has no knowledge of any studies or tests performed by or on behalf of
the Company the results of which are materially inconsistent with or otherwise materially call into
question the results described or referred to in the General Disclosure Package and Prospectus.
Except to the extent disclosed in the General Disclosure Package and the Prospectus, the Company
has not received any notices or other correspondence from the United States Food and Drug
Administration (“FDA”) or any other governmental agency requiring the termination, suspension or
modification of any clinical evaluations that are described in the General Disclosure Package or
the Prospectus or the results of which are referred to in the General Disclosure Package or the
Prospectus.




          (u) None of the Company, its subsidiaries, or its or their respective business operations, is
in violation of any applicable Health Care Laws, except as would not reasonably be expected to have
a Material Adverse Effect. For purposes of this Agreement, “Health Care Laws” means (i) all federal
and state fraud and abuse laws, including, but not limited to, the federal Anti-Kickback Statute
(42 U.S.C. §1320a-7(b)), the Stark Law (42 U.S.C. §1395nn and §1395(q)), the Anti-Inducement Law
(42 U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act





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(31 U.S.C. §3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the
exclusion laws (42 U.S.C. § 1320a-7), the civil monetary penalty laws (42 U.S.C. § 1320a-7a) and
the regulations promulgated pursuant to such statutes; (ii) the Health Insurance Portability and
Accountability Act of 1996 (Pub. L. No. 104-191) and the Health Information Technology for Economic
and Clinical Health Act of 2009, and the regulations promulgated thereunder and comparable state
privacy and security laws, (iii) Medicare (Title XVIII of the Social Security Act) and the
regulations promulgated thereunder; (iv) Medicaid (Title XIX of the Social Security Act) and the
regulations promulgated thereunder; (v) quality, safety and accreditation standards and
requirements of all applicable state laws or regulatory bodies; and (vi) any and all other
applicable health care laws, regulations, manual provisions, policies and administrative guidance,
each of (i) through (vi) as may be amended from time to time. The Company has not received notice
of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other
action from any governmental authority alleging that any product, operation or activity is in
violation of any applicable Health Care Law, except as would not reasonably be expected to have a
Material Adverse Effect, and has no knowledge that any such governmental authority is considering
any such claim, litigation, arbitration, action, suit, investigation or proceeding.




          (v) The Company and each of its subsidiaries possess all licenses, certificates,
authorizations and permits issued by, and have made all declarations and filings with, the
appropriate local, state, federal or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of their respective properties or the conduct of their respective
businesses as described in the General Disclosure Package and the Prospectus (collectively, the
“Governmental Permits”), except where any failures to possess or make the same, singularly or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect. The Company and
its subsidiaries are in material compliance with all such Governmental Permits; all such
Governmental Permits are valid and in full force and effect, except where the validity or failure
to be in full force and effect would not, singularly or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Neither the Company nor any subsidiary has received notification of
any revocation or modification (or proceedings related thereto) of any such Governmental Permit and
the Company has no reason to believe that any such Governmental Permit will not be renewed.




          (w) None of the Company or any of its subsidiaries is or, after giving effect to the Offering
and the application of the proceeds thereof as described in the General Disclosure Package and the
Prospectus, will be required to register as an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder.




          (x) Neither the Company, its subsidiaries nor, to the best of the Company’s knowledge, any of
the Company’s or its subsidiaries’ officers, directors or affiliates has taken or will take,
directly or indirectly, any action designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which would in the future reasonably be
expected to cause or result in, stabilization or manipulation of the price of any security of the
Company.




          (y) The Company and its subsidiaries own, possess or can timely acquire on reasonable terms
the right to use all patents, trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets and rights






10









 







necessary to carry on their respective businesses as now conducted and as described in the
General Disclosure Package and the Prospectus, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and its subsidiaries
with respect to the foregoing. To the best of the Company’s knowledge, the Company’s business as
now conducted and as proposed to be conducted does not and will not infringe or conflict with any
patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses or other
intellectual property or franchise right of any person except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except as described in the
General Disclosure Package and the Prospectus, no claim has been made against the Company alleging
the infringement by the Company of any patent, trademark, service mark, trade name, copyright,
trade secret, license in or other intellectual property right or franchise right of any person,
except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company and each of its subsidiaries has at all times complied in all respects
with all applicable laws relating to privacy, data protection, and the collection and use of
personal information collected, used, or held for use by the Company or its subsidiaries in the
conduct of the Company’s for any of its subsidiary’s business, in each case except as would not
reasonably be expected to have a Material Adverse Effect.




          (z) The Company and each of its subsidiaries have good and marketable title in fee simple to,
or have valid rights to lease or otherwise use, all items of real or personal property that are
material to the business of the Company and its subsidiaries taken as a whole, in each case free
and clear of all liens, encumbrances, security interests, claims and defects that do not,
singularly or in the aggregate, materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the General Disclosure Package and the Prospectus, are in full force
and effect, and neither the Company nor any subsidiary has received any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or negatively affecting or
questioning the rights of the Company or such subsidiary to the continued possession of the leased
or subleased premises under any such lease or sublease.




          (aa) No labor disturbance by the employees of the Company or any of its subsidiaries that
would reasonably be expected to have a Material Adverse Effect either exists or, to the best of the
Company’s knowledge, is imminent. Except as set forth in the General Disclosure Package, the
Company is not aware that any key employee or significant group of employees of the Company or any
subsidiary voluntarily plans to terminate employment with the Company or any such subsidiary.




          (bb) No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended from time to
time (the “Code”)) or “accumulated funding deficiency” (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with respect to which the
thirty (30)-day notice requirement under Section 4043 of ERISA has been waived) has occurred or
could reasonably be expected to occur with respect to any employee benefit plan of the Company or
any of its subsidiaries which would, singularly or in






11









 







the aggregate, reasonably be expected to have a Material Adverse Effect. Each employee benefit
plan of the Company or any of its subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code. The Company and its subsidiaries have not incurred
and would not reasonably be expected to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for
which the Company or any of its subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material respects, and nothing
has occurred, whether by action or by failure to act, which could, singularly or in the aggregate,
reasonably be expected to cause the loss of such qualification.




          (cc) The Company and its subsidiaries are in compliance with all foreign, federal, state and
local statute, law (including the common law), ordinance, rule, regulation, order, judgment, decree
or Governmental Permit, relating to the use, treatment, storage and disposal of hazardous or toxic
substances, materials or wastes and the protection of health and safety or the environment which
are applicable to their businesses (“Environmental Laws”), except where the failure to comply would
not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect. There
has been no storage, generation, transportation, handling, treatment, disposal, discharge,
emission, or other release of any kind of hazardous or toxic substances, materials or wastes by,
due to, or caused by the Company or any of its subsidiaries (or, to the best of the Company’s
knowledge, any other entity for whose acts or omissions the Company or any of its subsidiaries is
or may otherwise be liable) upon any of the property now or previously owned or leased by the
Company or any of its subsidiaries, or upon any other property, in violation of, or which would
give rise to any liability under, any Environmental Law, except for any violation or liability
which would not reasonably be expected to have, singly or in the aggregate with all such violations
and liabilities, a Material Adverse Effect; and there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment surrounding such property of
any hazardous or toxic substances, materials or wastes with respect to which the Company has
knowledge, except for any such disposal, discharge, emission, or other release of any kind which
would not reasonably be expected to have, singly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect.




          (dd) The Company and its subsidiaries each (i) has timely filed all necessary federal, state,
local and foreign tax returns or have properly requested extensions thereof, and all such returns
were true, complete and correct in all respects, (ii) has paid all federal, state, local and
foreign taxes, assessments, governmental or other charges due and payable for which it is liable,
including, without limitation, all sales and use taxes and all taxes which the Company or any of
its subsidiaries is obligated to withhold from amounts owing to employees, creditors and third
parties, except as may be being contested in good faith and by appropriate proceedings, and (iii)
does not have any tax deficiency or claims outstanding or assessed or, to the best of the Company’s
knowledge, proposed against any of them, except those, in each of the cases described in clauses
(i), (ii) and (iii) of this paragraph (dd), that would not, singularly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries each has
not engaged in any transaction which is a corporate tax shelter or which could reasonably be
characterized as such by the Internal Revenue Service or any other taxing authority. The accruals
and reserves on the books and records of the Company and its subsidiaries in respect of tax
liabilities for any taxable period not yet finally determined are adequate to meet any assessments
and related liabilities for any such period, and since June 30,






12









 







2010, none of the Company or any of its subsidiaries has incurred any liability for taxes
other than in the ordinary course.




          (ee) The Company and each of its subsidiaries carry, or are covered by, insurance provided by
recognized, financially sound and reputable institutions with policies in such amounts and covering
such risks as is adequate for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar businesses in similar
industries. The Company has no reason to believe that it or any subsidiary will not be able to (i)
renew its existing insurance coverage as and when such policies expire or (ii) obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as
now conducted and at a cost that would not reasonably be expected to have a Material Adverse
Effect. The Company has not been denied any insurance coverage that it has sought or for which it
has applied.




          (ff) The Company and each of its subsidiaries maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15 of the General Rules and Regulations
under the Exchange Act (the “Exchange Act Rules”)) that complies with the requirements of the
Exchange Act and has been designed to provide reasonable assurances 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 GAAP and to
maintain accountability for assets; (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 existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. Since the end of the Company’s most recent audited fiscal year, there as been
(A) no material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (B) 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. The Company maintains disclosure controls and procedures (as such is
defined in Rule 13a-15 of the Exchange Act Rules) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that information required
to be disclosed by the Company and its subsidiaries is accumulated and communicated to the
Company’s management, including the Company’s principal executive officer and principal financial
officer by others within those entities, such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were established.




          (gg) The minute books of the Company and each of its subsidiaries that would be a “significant
subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X under the Exchange Act have been
made available to the Agent and counsel for the Agent, and such books (i) contain a complete
summary of all meetings and actions of the board of directors (including each board committee) and
stockholders of the Company, and each of such subsidiaries since the time of its respective
incorporation or organization through the date of the latest meeting and action, and (ii)
accurately in all material respects reflect all transactions referred to in such minutes or written
consents.




          (hh) There is no franchise, lease, contract, agreement or document required by the Securities
Act or by the Rules and Regulations to be described in the General Disclosure Package and in the
Prospectus or a document incorporated by reference therein or to be filed as






13









 







an exhibit to the Registration Statement or a document incorporated by reference therein which
is not described or filed therein as required; and all descriptions of any such franchises, leases,
contracts, agreements or documents contained in the Registration Statement or the General
Disclosure Package or in any document incorporated by reference therein are accurate and complete
descriptions of such documents. Other than as described in the General Disclosure Package, no such
franchise, lease, contract or agreement has been suspended or terminated for convenience or default
by the Company or any of its subsidiaries or any of the other parties thereto, and none of the
Company or any of its subsidiaries has received notice nor does the Company have any other
knowledge of any such pending or threatened suspension or termination, except for such pending or
threatened suspensions or terminations that would not reasonably be expected to, singularly or in
the aggregate, have a Material Adverse Effect.




          (ii) No relationship, direct or indirect, exists between or among the Company and any of its
subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries or any of their affiliates, on the other hand, that is
required to be described in the General Disclosure Package and the Prospectus or a document
incorporated by reference therein and that is not so described.




          (jj) No person or entity has the right to require registration of shares of Common Stock or
other securities of the Company or any of its subsidiaries because of the filing or effectiveness
of the Registration Statement or otherwise, except for persons and entities who have expressly
waived such right in writing or who have been given timely and proper written notice and have
failed to exercise such right within the time or times required under the terms and conditions of
such right. Except as described in the General Disclosure Package, there are no persons with
registration rights or similar rights to have any securities registered for sale under the
Registration Statement or to include such securities in the Offering.




          (kk) None of the Company or any of its subsidiaries own any “margin securities” as that term
is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “Federal
Reserve Board”), and none of the proceeds of the sale of the Units will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of
reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Units to be considered a “purpose
credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.




          (ll) Other than this Agreement and that certain letter agreement, dated October 26, 2010, by
and between the Company and the Agent, none of the Company or any of its subsidiaries is a party to
any contract, agreement or understanding with any person that would give rise to a valid claim
against the Company, the Agent for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Units or any transaction contemplated by this
Agreement, the Registration Statement, the General Disclosure Package or the Prospectus.




          (mm) No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the General Disclosure Package or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.







14









 








          (nn) The Company is subject to and in compliance in all material respects with the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on Nasdaq, and the Company has taken no
action designed to, or reasonably likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company
received any notification that the Commission, Nasdaq or FINRA is contemplating terminating such
registration or listing, except for the notice, dated September 16, 2009, delivered by Nasdaq to
the Company, stating that the Common Stock failed to meet the minimum bid price requirement on
Nasdaq for 30 consecutive days. No consent, approval, authorization or order of, or filing,
notification or registration with, Nasdaq is required for the listing and trading of the shares of
Common Stock on Nasdaq, except such as will have been obtained or made, as the case may be, prior
to the Closing Date.




          (oo) The Company is in material compliance with all applicable provisions of the
Sarbanes-Oxley Act of 2002 and all applicable rules and regulations promulgated thereunder or
implementing the provisions thereof (the “Sarbanes-Oxley Act”).




          (pp) The Company is in compliance with all applicable corporate governance requirements set
forth in Nasdaq Marketplace Rules.




          (qq) None of the Company, any of its subsidiaries or, to the best of the Company’s knowledge,
any director, officer, agent, employee, affiliate or other person acting on behalf of the Company
or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that has
resulted or would result in a violation of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof
or any candidate for foreign political office, in contravention of the FCPA; and the Company and
its subsidiaries and, to the best of the Company’s knowledge, the Company’s affiliates have
conducted their respective businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.




          (rr) There are no transactions, arrangements or other relationships between and/or among the
Company, any of its affiliates (as such term is defined in Rule 405 of the Securities Act) and any
unconsolidated entity, including, but not limited to, any structured finance, special purpose or
limited purpose entity that could reasonably be expected to materially affect the Company’s or any
of its subsidiaries’ liquidity or the availability of or requirements for their capital resources,
which transaction, arrangement or other relationship is required to be described in the General
Disclosure Package and the Prospectus or any document incorporated by reference therein that has
not been described as required.




          (ss) There are no outstanding loans, advances (except normal advances for business expense in
the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit
of any of the officers or directors of the Company or any of their






15









 







respective family members, except as disclosed in the General Disclosure Package and the
Prospectus.




          (tt) The statistical and market related data included in the Registration Statement, the
General Disclosure Package and the Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and such data agree with the sources from which they are
derived.




          (uu) The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering
statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries with respect to the
Money Laundering Laws is pending, or to the best of the Company’s knowledge, threatened.




          (vv) None of the Company or any of its subsidiaries nor, to the best of the Company’s
knowledge, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or
indirectly use the proceeds of the Offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.




          (ww) All of the information provided to the Agent or to counsel for the Agent by the Company,
its officers and directors and the holders of any securities (debt or equity) or options to acquire
any securities of the Company in connection with letters, filings or other supplemental information
provided to FINRA pursuant to FINRA Rule 5110 or the National Association of Securities Dealers
Inc. (the “NASD”) Conduct Rule 2710 or 2720 is true, complete and correct. Neither the Company nor,
to the best of the Company’s knowledge, any of its affiliates (within the meaning of the NASD
Conduct Rule 2720(f)(1)) directly or indirectly controls, is controlled by, or is under common
control with, or is an associated person (within the meaning of Article I, Section 1(ee) of the
By-laws of FINRA) of, any member firm of FINRA. There are no affiliations with the FINRA among the
Company’s officers or directors. To the best of the Company’s knowledge, (i) no proceeds of the
Offering, excluding compensation, fees or expenses paid to the Agent, will be paid to any FINRA
member, or any person or entity associated or affiliated with a member of FINRA, and (ii) no person
or entity to whom securities of the Company have been privately issued within the 180-day period
prior to either: (a) the initial filing date of the Registration Statement or (b) the date hereof
has any relationship or affiliation or association with any member of FINRA.




          (xx) As of the date the Registration Statement was filed with the Commission and as of the
date hereof, the Company satisfied and, as of the Closing Date, the Company will satisfy, the
conditions for use of Form S-3 applicable to the Offering, set forth in the General Instructions
thereto.







16









 








          (yy) No approval of the stockholders of the Company under the rules and regulations of Nasdaq
(including Rule 5635 of the Nasdaq Marketplace Rules) is required for the Company to issue and
deliver to the Purchasers the Units.




     Any certificate signed by or on behalf of the Company and delivered to the Agent or to counsel
for the Agent shall be deemed to be a representation and warranty by the Company to the Agent and
the Purchasers as to the matters covered thereby.



     4. THE CLOSING. The time and date of closing and delivery of the documents required to be
delivered to the Agent pursuant to Sections 5 and 7 hereof shall be at 10:00 A.M.,
New York time, on March 9, 2011 (the “Closing Date”) at the office of Weintraub Genshlea Chediak,
400 Capitol Mall, Eleventh Floor, Sacramento, CA 95816, Attention: David C. Adams.



     5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the Agent and the Purchasers:



          (a) To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the
Agent and file such Rule 462(b) Registration Statement with the Commission on the date hereof; to
prepare the Prospectus in a form approved by the Agent containing information previously omitted at
the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B or 430C of
the Rules and Regulations and to file such Prospectus pursuant to Rule 424(b) of the Rules and
Regulations not later than the second business (2nd) day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be required by Rule 430A of the Rules
and Regulations; to notify the Agent promptly of the Company’s intention to file or prepare any
supplement or amendment to any Registration Statement or to the Prospectus and to make no amendment
or supplement to the Registration Statement, the General Disclosure Package or to the Prospectus to
which the Agent shall reasonably object by notice to the Company after a reasonable period to
review; to advise the Agent, promptly after it receives notice thereof, of the time when any
amendment to any Registration Statement has been filed or becomes effective or any supplement to
the General Disclosure Package or the Prospectus or any amended Prospectus has been filed and to
furnish the Agent with copies thereof; to file within the time periods prescribed by the Exchange
Act, including any extension thereof, all material required to be filed by the Company with the
Commission pursuant to Rules 433(d) or 163(b)(2) of the Rules and Regulations, as the case may be;
to file promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations)
is required in connection with the offering or sale of the Units; to advise the Agent, promptly
after it receives notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, of the suspension of the qualification of the Units for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of the Registration
Statement, the General Disclosure Package or the Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending any such
qualification, and promptly to use its best efforts to obtain the withdrawal of such order.







17









 








          (b) The Company represents and agrees that, unless it obtains the prior consent of the Agent,
it has not made and will not, make any offer relating to the Units that would constitute a “free
writing prospectus” as defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free
Writing Prospectus”); provided that the prior written consent of the Agent shall be deemed to have
been given in respect of the General Use Free Writing Prospectus, if any, included in Exhibit
A hereto. The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the
requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free
Writing Prospectus, including the requirements relating to timely filing with the Commission,
legending and record keeping and will not take any action that would result in the Agent or the
Company being required to file with the Commission pursuant to Rule 433(d) of the Rules and
Regulations a free writing prospectus prepared by or on behalf of the Agent that the Agent
otherwise would not have been required to file thereunder.




          (c) If at any time when a Prospectus relating to the Units is required to be delivered under
the Securities Act, any event occurs or condition exists as a result of which the Prospectus, as
then amended or supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or the Registration Statement, as then
amended or supplemented, would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, or if for any other reason
it is necessary at any time to amend or supplement any Registration Statement or the Prospectus or
to file under the Exchange Act any document incorporated by reference in the Prospectus to comply
with the Securities Act or the Exchange Act, the Company will promptly notify the Agent, and upon
the Agent’s request, the Company will promptly prepare and file with the Commission, at the
Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the
Prospectus or make an appropriate filing under Section 13 or 14 of the Exchange Act that corrects
such statement or omission or effects such compliance and will deliver to the Agent, without
charge, such number of copies thereof as the Agent may reasonably request. The Company consents to
the use of the Prospectus or any amendment or supplement thereto by the Agent.




          (d) If the General Disclosure Package is being used to solicit offers to buy the Units at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
as a result of which, in the judgment of the Company or in the opinion of the Agent, it becomes
necessary to amend or supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or to make
the statements therein not conflict with the information contained or incorporated by reference in
the Registration Statement then on file and not superseded or modified, or if it is necessary at
any time to amend or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and furnish to the Agent
and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii)
prepare and file with the Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in the General Disclosure Package so that the General Disclosure Package
as so amended or supplemented will not, in the light of the circumstances under which they were
made, be misleading or conflict with the Registration Statement then on file, or so that the
General Disclosure Package will comply with law.





18












 





          (e) If at any time following issuance of an Issuer Free Writing Prospectus in
connection with the Offering there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or will conflict with the information contained in
the Registration Statement, Pricing Prospectus or Prospectus, including any document incorporated
by reference therein and any prospectus supplement deemed to be a part thereof and not superseded
or modified or included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
the Company has promptly notified or will promptly notify the Agent so that any use of the Issuer
Free Writing Prospectus may cease until it is amended or supplemented and has promptly amended or
will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon, and
in conformity with, written information furnished to the Company through the Agent by or on behalf
of the Agent specifically for inclusion therein, which information the parties hereto agree is
limited to the Agent’s Information (as defined in Section 17).




          (f) To furnish promptly to the Agent and to counsel for the Agent, upon request, a signed
copy of the Registration Statement as originally filed with the Commission, and of each amendment
thereto filed with the Commission, including all consents and exhibits filed therewith.



          (g) To the extent not available on the Commission’s Electronic Data Gathering, Analysis
and Retrieval (“EDGAR”) system or any successor system, to deliver promptly to the Agent such
number of the following documents as the Agent shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission (in each case excluding
exhibits), (ii) any Preliminary Prospectus, (iii) any Issuer Free Writing Prospectus, (iv) the
Prospectus (the delivery of the documents referred to in clauses (i), (ii), (iii) and (iv) of this
paragraph (g) to be made not later than 10:00 A.M., New York time, on the business day
following the execution and delivery of this Agreement), (v) conformed copies of any amendment to
the Registration Statement (excluding exhibits), (vi) any amendment or supplement to the General
Disclosure Package or the Prospectus (the delivery of the documents referred to in clauses (v) and
(vi) of this paragraph (g) to be made not later than 10:00 A.M., New York City time, on the
business day following the date of such amendment or supplement) and (vii) any document
incorporated by reference in the General Disclosure Package or the Prospectus (excluding exhibits
thereto) (the delivery of the documents referred to in clause (vi) of this paragraph (g) to
be made not later than 10:00 A.M., New York City time, on the business day following the date of
such document).



          (h) As soon as practicable, but in any event not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of the Company during which the most
recent effective date of the Registration Statement occurs (or 90 days after the end of such
12-month period if such 12-month period coincides with the Company’s fiscal year), the Company will
make generally available to its security holders and to the Agent an earning statement (as defined
in Rule 158(c) of the Securities Act) of the Company and its subsidiaries (which need not be
audited), covering such 12-month period which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.



19









 





          (i) The Company will promptly take from time to time such actions as the Agent may
reasonably request to qualify the Units for offering and sale under the securities or Blue Sky laws
of such jurisdictions (domestic or foreign) as the Agent may designate and to continue such
qualifications in effect for so long as required for the distribution of the Securities; provided
that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in
any jurisdiction in which they are not so qualified or to file a general consent to service of
process in any jurisdiction.



          (j) Upon request, during the period of five years from the date hereof, the Company will
deliver to the Agent, (i) upon request, copies of all reports or other communications furnished to
stockholders and (ii) upon request, copies of any reports and financial statements furnished or
filed with the Commission pursuant to the Exchange Act or any national securities exchange or
automatic quotation system on which the Units is listed or quoted; however, so long as the Company
is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act
and is timely filing reports with the Commission on EDGAR, it is not required to furnish such
reports or statements to the Agent.



          (k) That the Company will not, for a period of ninety (90) days from the date of this
Agreement, (the “Lock-Up Period”) without the prior written consent of the Agent, directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, any
shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common
Stock, other than (i) the Company’s sale of the Units hereunder, (ii) the issuance of restricted
Common Stock or options to acquire Common Stock pursuant to the Company’s employee benefit plans,
qualified stock option plans or other employee compensation plans as such plans are in existence on
the date hereof and described in the Prospectus, and (iii) the issuance of Common Stock pursuant to
the valid exercises of options, warrants or rights outstanding on the date hereof. The Company has
caused each executive officer and director listed in Exhibit C to furnish to the Agent,
prior to the date hereof, a letter, substantially in the form of Exhibit D hereto. The
Company also agrees that during such period, the Company will not file any registration statement,
preliminary prospectus or prospectus, or any amendment or supplement thereto, under the Securities
Act for any such transaction or which registers, or offers for sale, Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, except for a registration
statement on Form S-8 relating to employee benefit plans. The Company hereby agrees that (i) if it
issues an earnings release or material news, or if a material event relating to the Company occurs,
during the last seventeen (17) days of the Lock-Up Period, or (ii) if prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results during the sixteen
(16)-day period beginning on the last day of the Lock-Up Period, unless waived by the Agent in
writing, the restrictions imposed by this paragraph (k) or the letter shall continue to
apply until the expiration of the eighteen (18)-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event, as applicable, except
that such extension will not apply if, (x) the shares of Common Stock are “actively traded
securities” (as defined in Regulation M), (y) the Company meets the applicable requirements of
paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by FINRA’s NASD
Conduct Rule 2711(f)(4), and (z) the provisions of FINRA’s NASD Conduct Rule 2711(f)(4) do not
restrict the publishing or distribution of any research reports relating to the Company during the
15 days before or after the last day of the Lock-up Period (before giving effect to such
extension).



20









 





          (l) To supply the Agent with copies of all correspondence to and from, and all documents
issued to and by, the Commission in connection with the registration of the Units under the
Securities Act.



          (m) Prior to the Closing Date, to furnish to the Agent, promptly after they have been
prepared, copies of any unaudited interim consolidated financial statements of the Company for any
periods subsequent to the periods covered by the financial statements appearing in or incorporated
by reference into the Registration Statement and the Prospectus.



          (n) Prior to the Closing Date, not to issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its condition,
financial or otherwise, or earnings, business affairs or business prospects (except for routine
oral marketing communications in the ordinary course of business and consistent with the past
practices of the Company and of which the Agent is notified in advance), without the prior written
consent of the Agent, unless in the judgment of the Company and its counsel, and after notification
to the Agent, such press release or communication is required by law.



          (o) Until the Agent shall have notified the Company of the completion of the Offering, the
Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the
Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any
account in which it or any of its affiliated purchasers has a beneficial interest, any Units, or
attempt to induce any person to purchase any Units; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Units.



          (p) Not to take any action prior to the Closing Date that would require the Prospectus to
be amended or supplemented pursuant to Section 5.



          (q) To at all times comply with all applicable provisions of the Sarbanes-Oxley Act in
effect from time to time.



          (r) To apply the net proceeds from the sale of the Units as set forth in the Prospectus
under the heading “Use of Proceeds.”



          (s) To use its best efforts to list, effect and maintain, subject to notice of issuance,
the Common Stock on Nasdaq.



          (t) To use its best efforts to do and perform all things required to be done or performed
under this Agreement by the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Units.



     6. PAYMENT OF FEES, COSTS AND EXPENSES. The Company agrees to pay, or reimburse if paid by
the Agent, whether or not the transactions contemplated hereby are consummated or this Agreement is
prevented from becoming effective or is terminated: (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Units to the Purchasers and any taxes payable in
that connection; (b) the costs incident to the registration of the Units, the Shares, the Warrants
and the Warrant Shares under the Securities Act; (c) the costs incident to the preparation,
printing and distribution of the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the General



21









 




Disclosure Package, the Prospectus, any amendments, supplements and exhibits thereto or any
document incorporated by reference therein and the costs of printing, reproducing and distributing
any transaction document by mail, telex or other means of communications; (d) the fees and expenses
incurred in connection with securing any required review by FINRA of the terms of the sale of the
Units and any filings made with FINRA; (e) any applicable listing, quotation or other fees and
expenses; (f) the fees and expenses (including related fees and expenses of counsel to the Agent)
of qualifying the Units under the securities laws of the several jurisdictions as provided in
Section 5(i) and of preparing, printing and distributing wrappers, Blue Sky Memoranda and
Legal Investment Surveys (if any); (g) the cost of preparing and printing stock certificates; (h)
all fees and expenses of the registrar and transfer agent of the Units, and (i) and all other
fees, costs and expenses incurred by the Company incident to the Offering by, or the performance of
the obligations of, the Company under this Agreement (including, without limitation, the fees,
costs and expenses of the Company’s counsel and the Company’s independent accountants and the
travel and other expenses actually incurred by Company’s personnel in connection with any “road
show” including, without limitation, any expenses advanced by the Agent on the Company’s behalf
(which will be promptly reimbursed)). Except to the extent otherwise provided in this Section 6 and
in Section 10, the Agent shall pay its own costs and expenses, including the fees and expenses of
its counsel and the expenses of advertising any offering of the Shares and the Warrants made by the
Agent.




     7. CONDITIONS TO THE OBLIGATIONS OF THE AGENT AND THE PURCHASERS, AND THE SALE OF THE
UNITS. The obligations of the Agent hereunder and the Purchasers under the Subscription Agreements,
and the Closing of the sale of the Units, are subject to the accuracy, when made and as of the
Applicable Time and on the Closing Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder,
and to each of the following additional terms and conditions:



          (a) The Registration Statement is effective under the Securities Act, and no stop order
suspending the effectiveness of the Registration Statement or any part thereof, preventing or
suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for
that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or
threatened by the Commission, and all requests for additional information on the part of the
Commission (to be included or incorporated by reference in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Agent;
the Rule 462(b) Registration Statement, if any, any Issuer Free Writing Prospectus, and the
Prospectus shall have been filed with the Commission within the applicable time period prescribed
for such filing by, and in compliance with, the Rules and Regulations and in accordance with
Section 5(a), and the Rule 462(b) Registration Statement, if any, shall have become
effective immediately upon its filing with the Commission; and, if applicable, FINRA shall have
raised no objection to the fairness and reasonableness of the terms of this Agreement or the
transactions contemplated hereby.



          (b) The Agent shall not have discovered and disclosed to the Company on or prior to the
Closing Date that the Registration Statement or any amendment or supplement thereto contains an
untrue statement of a fact that, in the opinion of the Agent, is material or



22









 




omits to state any fact which, in the opinion of the Agent, is material and is required to be
stated therein or is necessary to make the statements therein not misleading, or that the General
Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or
supplement thereto contains an untrue statement of fact that, in the opinion of the Agent, is
material or omits to state any fact that, in the opinion of the Agent, is material and is necessary
in order to make the statements, in the light of the circumstances in which they were made, not
misleading.




          (c) All corporate proceedings and other legal matters incident to the authorization, form
and validity of each of this Agreement, the Subscription Agreements, the Warrants, the Units, the
Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus, if
any, and the Prospectus and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the
Agent, and the Company shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.



          (d) Weintraub Genshlea Chediak shall have furnished to the Agent, such counsel’s written
opinion and negative assurances letter, as counsel to the Company, each addressed to the Agent and
dated the Closing Date, in the form and substance reasonably satisfactory to the Agent.



          (e) The Agent shall have received from Paul, Hastings, Janofsky & Walker LLP, counsel for
the Agent, such opinion or opinions, addressed to the Agent dated the Closing Date, with respect to
such matters as the Agent may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for enabling them to pass upon such matters.



          (f) At the time of the execution of this Agreement, the Agent shall have received from
Ernst & Young LLP, a letter, addressed to the Agent, executed and dated such date, in form and
substance satisfactory to the Agent, (i) confirming that they are an independent registered
accounting firm with respect to the Company and its subsidiaries within the meaning of the
Securities Act and the Rules and Regulations and the PCAOB and (ii) stating the conclusions and
findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to
underwriters, with respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus.



          (g) On the effective date of any post-effective amendment to any Registration Statement
and on the Closing Date, the Agent shall have received a letter (the “Bring-Down Letter”) from
Ernst & Young LLP addressed to the Agent and dated the effective date of such post-effective
amendment or the Closing Date, as the case may be, confirming, as of the date of the Bring-Down
Letter (or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the General Disclosure Package and the
Prospectus, as the case may be, as of a date not more than three (3) business days prior to the
date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily
included in accountants’ “comfort letters” to underwriters, with respect to the



23









 




financial information and other matters covered by its letter delivered to the Agent
concurrently with the execution of this Agreement pursuant to paragraph (f) of this
Section 7.




          (h) The Company shall have furnished to the Agent a certificate, dated the Closing Date,
of its Chief Executive Officer and its Chief Financial Officer stating in their capacities as
officers of the Company that (i) such officers have carefully examined the Registration Statement,
the General Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in
their opinion, the Registration Statement and each amendment thereto, at the Applicable Time and as
of the date of this Agreement and as of the Closing Date did not include any untrue statement of a
material fact and did not omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the General Disclosure Package, as of the
Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date
and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the
respective date thereof and as of the Closing Date, did not include any untrue statement of a
material fact and did not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not misleading, (ii) since the
effective date of the initial Registration Statement, no event has occurred that should have been
set forth in a supplement or amendment to the Registration Statement, the General Disclosure
Package or the Prospectus that was not so set forth therein, (iii) to the best of their knowledge,
as of the Closing Date, the representations and warranties of the Company in this Agreement are
true and correct in all material respects, (except that any such representation and warranty shall
be true and correct in all respects where such representation and warranty is qualified with
respect to materiality), and the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and
(iv) there has not been, subsequent to the date of the most recent audited financial statements
included or incorporated by reference in the General Disclosure Package, any material adverse
change in the financial position or results of operations of the Company and its subsidiaries taken
as a whole, or any change or development that, singularly or in the aggregate, would reasonably be
expected to involve a material adverse change or a prospective material adverse change, in or
affecting the condition (financial or otherwise), results of operations, business, liquidity,
assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in
the Prospectus.



          (i) Since the date of the latest audited financial statements included in the General
Disclosure Package or incorporated by reference in the General Disclosure Package as of the date
hereof, (i) none of the Company or any of its subsidiaries shall have sustained any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
and (ii) there shall not have been any change in the capital stock (other than issuance of options
in the ordinary course of business and pursuant to the Company’s stock option plans described in
the General Disclosure Package and the Prospectus or Common Stock issued pursuant to the exercise
of warrants or upon the exercise of stock options previously outstanding under the Company’s stock
option plans and the issuance of Common Stock pursuant to employee stock purchase plans) or
long-term debt of the Company nor any of its subsidiaries, or any change, or any development
involving a prospective change, in or affecting the business, general affairs, management,
financial position, liquidity, stockholders’ equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth in the General Disclosure Package in each of the above
instances, the effect of which, in any such case described in clause (i) or (ii) of



24









 




this paragraph (i), is, in the judgment of the Agent, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of the Units on the terms
and in the manner contemplated in the General Disclosure Package.




          (j) No action shall have been taken and no law, statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which would prevent the
issuance or sale of the Units or materially and adversely affect or potentially materially and
adversely affect the business or operations of the Company and its subsidiaries, taken as a whole;
and no injunction, restraining order or order of any other nature by any federal or state court of
competent jurisdiction shall have been issued which would prevent the issuance or sale of the Units
or materially and adversely affect or potentially materially and adversely affect the business or
operations of the Company and its subsidiaries, taken as a whole.



          (k) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock Exchange,
Nasdaq or the NYSE Amex LLC or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been suspended or materially
limited, or minimum or maximum prices or maximum range for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or market or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, (iii) the United
States shall have become engaged in hostilities, or the subject of an act of terrorism, or there
shall have been an outbreak of or escalation in hostilities involving the United States, or there
shall have been a declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Agent, impracticable or inadvisable to proceed
with the sale or delivery of the Units on the terms and in the manner contemplated in the General
Disclosure Package and the Prospectus.



          (l) The Company shall have filed an Application for Listing of Additional Shares covering
the Shares and the Warrant Shares with Nasdaq and Nasdaq shall not have rejected such Application.



          (m) The Agent shall have received the written agreements, substantially in the form of
Exhibit D hereto, of the executive officers and directors of the Company listed in
Exhibit C to this Agreement, and each such agreement shall be in full force and effect.



          (n) The Company shall have entered into Subscription Agreements with each of the
Purchasers and such agreements shall be in full force and effect.



          (o) The Company shall have prepared and filed with the Commission a Current Report on Form
8-K with respect to the Offering, which shall include as an exhibit thereto this Agreement, the
form of Subscription Agreement and the form of Warrant.



25









 





          (p) On or prior to the Closing Date, the Company shall have furnished to the Agent such
further information, opinions, certificates, letters or documents as the Agent shall have
reasonably requested.



     All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Agent.



     8. INDEMNIFICATION AND CONTRIBUTION.



          (a) The Company shall indemnify and hold harmless the Agent, each of its affiliates and
each of its and their respective directors, officers, members, employees, representatives and
agents, and each person, if any, who controls any Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively the “Agent Indemnified Parties,” and
each a “Agent Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever
(or any action, investigation or proceeding in respect thereof), joint or several, to which a Agent
Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, expense, liability, action, investigation or proceeding arises out of or is based
upon (A) any untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or
required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated by
reference therein, (B) the omission or alleged omission to state in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto or document incorporated by reference therein, a material fact
required to be stated therein or necessary to make the statements therein in the light of (other
than in the case of any Registration Statement) the circumstances under which they are made not
misleading, or (C) any breach of the representations and warranties of the Company contained herein
or the failure of the Company to perform its obligations hereunder or pursuant to any law, any act
or failure to act, or any alleged act or failure to act, by the Agent in connection with, or
relating in any manner to, the Units or the Offering, and which is included as part of or referred
to in any loss, claim, damage, expense, liability, action, investigation or proceeding arising out
of or based upon matters covered by subclause (A), (B) or (C) above of this Section 8(a)
(provided that the Company shall not be liable in the case of any matter covered by this subclause
(C) to the extent that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, expense or liability resulted solely and directly from any such act,
or failure to act, undertaken or omitted to be taken by the Agent through its gross negligence or
willful misconduct), and shall reimburse each Agent Indemnified Party promptly upon demand for any
legal fees or other expenses reasonably incurred by that Agent Indemnified Party in connection with
investigating, or preparing to defend, or defending against, or appearing as a third party witness
in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense,
liability, action, investigation or proceeding, as such fees and expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability arises out of or is based upon an untrue statement or alleged
untrue statement in, or omission or alleged omission from any Preliminary Prospectus, any
Registration Statement or the Prospectus, or any such amendment or supplement thereto, or



26









 




any Issuer Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company through the Agent by or on behalf of the Agent specifically
for use therein, which information the parties hereto agree is limited to the Agent’s Information
(as defined in Section 17). The indemnity agreement in this Section 8(a) is not
exclusive and is and will be in addition to any liability, which the Company might otherwise have
and shall not limit any rights or remedies which may otherwise be available at law or in equity to
each Agent Indemnified Party.




          (b) The Agent shall indemnify and hold harmless the Company and its directors, its
officers who signed the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively the “Company Indemnified Parties” and each a “Company Indemnified Party”) against any
loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in
respect thereof), joint or several, to which such Company Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, any Issuer
Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule
433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or
required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to
be stated therein or necessary to make the statements therein in the light of (other than in the
case of any Registration Statement) the circumstances under which they are made not misleading, but
in each case only to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written information furnished
to the Company through the Agent by or on behalf of the Agent specifically for use therein, which
information the parties hereto agree is limited to the Agent’s Information (as defined in
Section 17), and shall reimburse the Company Indemnified Parties for any legal or other
expenses reasonably incurred by such party in connection with investigating or preparing to defend
or defending against or appearing as third party witness in connection with any such loss, claim,
damage, liability, action, investigation or proceeding, as such fees and expenses are incurred.
Notwithstanding the provisions of this Section 8(b), in no event shall any indemnity by the
Agent under this Section 8(b) exceed the total compensation received by the Agent in
accordance with Section 2.5. This indemnity agreement is not exclusive and will be in
addition to any liability which the Agent might otherwise have and shall not limit any rights or
remedies which may otherwise be available under this Agreement, at law or in equity to the Company
Indemnified Parties.



          (c) Promptly after receipt by an indemnified party under this Section 8 of notice
of the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party under this Section 8, notify such indemnifying party
in writing of the commencement of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have under this Section
8 except to the extent it has been materially prejudiced by such failure; and, provided,
further, that the failure to notify an indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8. If any



27









 




such action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume
the defense of such action with counsel reasonably satisfactory to the indemnified party (which
counsel shall not, except with the written consent of the indemnified party, be counsel to the
indemnifying party). After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such action, except as provided herein, the indemnifying party
shall not be liable to the indemnified party under Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the defense of such
action other than reasonable costs of investigation; provided, however, that any indemnified party
shall have the right to employ separate counsel in any such action and to participate in the
defense of such action but the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be at the expense of such indemnified party unless (i) the employment thereof
has been specifically authorized in writing by the Company in the case of a claim for
indemnification under Section 8(a) or Section 2.6 or the Agent in the case of a
claim for indemnification under Section 8(b), (ii) such indemnified party shall have been
advised by its counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party, or (iii) the
indemnifying party has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party within a reasonable period of time after notice of the
commencement of the action or the indemnifying party does not diligently defend the action after
assumption of the defense, in which case, if such indemnified party notifies the indemnifying party
in writing that it elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of (or, in the case of a failure
to diligently defend the action after assumption of the defense, to continue to defend) such action
on behalf of such indemnified party and the indemnifying party shall be responsible for legal or
other expenses subsequently incurred by such indemnified party in connection with the defense of
such action; provided, however, that the indemnifying party shall not, in connection with any one
such action or separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all such indemnified parties
(in addition to any local counsel), which firm shall be designated in writing by the Agent if the
indemnified parties under this Section 8 consist of the Agent Indemnified Party or by the
Company if the indemnified parties under this Section 8 consist of any Company Indemnified
Parties. Subject to this Section 8(c), the amount payable by an indemnifying party under
Section 8 shall include, but not be limited to, (x) reasonable legal fees and expenses of
counsel to the indemnified party and any other expenses in investigating, or preparing to defend or
defending against, or appearing as a third party witness in respect of, or otherwise incurred in
connection with, any action, investigation, proceeding or claim, and (y) all amounts paid in
settlement of any of the foregoing. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of judgment with respect
to any pending or threatened action or any claim whatsoever, in respect of which indemnification or
contribution could be sought under this Section 8 (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party in form and substance reasonably
satisfactory to such indemnified party from all liability arising out of such action or claim and
(ii) 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. Subject to the provisions of the following sentence, no
indemnifying party shall be liable for






28









 







settlement of any pending or threatened action or any claim whatsoever that is effected
without its written consent (which consent shall not be unreasonably withheld or delayed), but if
settled with its written consent, if its consent has been unreasonably withheld or delayed or if
there be a judgment for the plaintiff in any such matter, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or liability by reason
of such settlement or judgment. In addition, if at any time an indemnified party shall have
requested that an indemnifying party reimburse the indemnified party for reasonable fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated herein effected without its written consent if (i) such settlement is
entered into more than forty-five (45) days after receipt by such indemnifying party of the request
for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least thirty (30) days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.




          (d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or Section
8(b), then each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid, payable or otherwise incurred by such indemnified party as a result
of such loss, claim, damage, expense or liability (or any action, investigation or proceeding in
respect thereof), as incurred, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Agent on the other hand from the
Offering, or (ii) if the allocation provided by clause (i) of this Section 8(d) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) of this Section 8(d) but also the relative fault of the
Company on the one hand and the Agent on the other with respect to the statements, omissions, acts
or failures to act which resulted in such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Agent on the
other with respect to such offering shall be deemed to be in the same proportion as the total net
proceeds from the Offering (before deducting expenses) received by the Company bear to the total
Placement Fee received by the Agent in connection with the Offering, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the Company on the one hand
and the Agent on the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand or the Agent on the
other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement, omission, act or failure to act; provided
that the parties hereto agree that the written information furnished to the Company by the Agent by
and on behalf of the Agent for use in any Preliminary Prospectus, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, consists solely of the Agent’s Information
as defined in Section 17. The Company and the Agent agree that it would not be just and
equitable if contributions pursuant to this Section 8(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, damage, expense, liability, action, investigation or proceeding referred to
above in this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified party in connection
with



29









 




investigating, preparing to defend or defending against or appearing as a third party witness
in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense,
liability, action, investigation or proceeding. Notwithstanding the provisions of this Section
8(d), the Agent shall not be required to contribute any amount in excess of the total
compensation received by the Agent in accordance with Section 2.5 less the amount of any
damages which the Agent has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement, omission or alleged omission, act or alleged act or failure to act or
alleged failure to act. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.




     9. TERMINATION. The obligations of the Agent and the Purchasers hereunder and under the
Subscription Agreements may be terminated by the Agent, in its sole and absolute discretion, by
notice given to the Company prior to delivery of and payment for the Units if, prior to that time,
any of the events described in Section 7(i), Section 7(j) or Section 7(k)
have occurred or if the Purchasers shall decline to purchase the Units for any reason permitted
under this Agreement or the Subscription Agreements.



     10. REIMBURSEMENT OF PLACEMENT AGENT’S EXPENSES. Notwithstanding anything to the contrary
in this Agreement, if (a) this Agreement shall have been terminated pursuant to Section 9,
(b) the Company shall fail to tender the Units for delivery to the Purchasers for any reason not
permitted under this Agreement, (c) the Purchasers shall decline to purchase the Units for any
reason permitted under this Agreement or (d) the sale of the Units is not consummated because any
condition to the obligations of the Purchasers or the Agent set forth herein is not satisfied or
because of the refusal, inability or failure on the part of the Company to perform any agreement
herein or to satisfy any condition or to comply with the provisions hereof, then the Company shall
reimburse the Agent for the reasonable out-of-pocket accountable fees, costs and expenses of the
Agent’s counsel and for such other reasonable accountable out-of-pocket expenses as shall have been
incurred by them in connection with this Agreement and the proposed purchase of the Units, and upon
demand, the Company shall pay the full amount thereof to the Agent.



     11. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company acknowledges and agrees that:



          (a) The Agent’s responsibility to the Company is solely contractual in nature, the Agent
has been retained solely to act as a placement agent in connection with the Offering and no
fiduciary, advisory or agency relationship between the Company, on the one hand, and the Agent, on
the other hand, has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Agent has advised or is advising the Company on other
matters;



          (b) the price of the Units set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Agent, and the Company is capable of
evaluating and understanding, and understands and accepts, the terms, risks and conditions of the
transactions contemplated by this Agreement;



          (c) it has been advised that the Agent and its affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and that



30









 




the Agent has no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and




          (d) it waives, to the fullest extent permitted by law, any claims it may have against the
Agent for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Agent
shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the
Company, including stockholders, employees or creditors of the Company.



     12. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Agent, the Company, and their respective successors and
assigns. This Agreement shall also inure to the benefit of the Purchasers and each of their
respective successors and assigns, which shall be third party beneficiaries hereof. As provided in
the Subscription Agreements, the determination as to whether any condition in Section 7
hereof shall have been satisfied, and the waiver of any condition in Section 7 hereof, may
be made by the Agent in its sole discretion, and any such determination or waiver shall be binding
on each of the Purchasers and shall not require the consent of any Purchaser. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, other than the
persons mentioned in the preceding sentences, any legal or equitable right, remedy or claim under
or in respect of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and exclusive benefit
of such persons and for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall
also be for the benefit of the Agent Indemnified Parties and the indemnities of the Agent shall be
for the benefit of the Company Indemnified Parties. It is understood that the Agent’s
responsibility to the Company is solely contractual in nature and that the Agent does not owe the
Company, or any other party, any fiduciary duty as a result of this Agreement. No Purchaser shall
be deemed to be a successor or assign by reason merely of such purchase.



     13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective indemnities,
covenants, agreements, representations, warranties and other statements of the Company and the
Agent, as set forth in this Agreement or made by them respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation made by or on behalf of the
Agent, the Company, the Purchasers or any person controlling any of them and shall survive delivery
of and payment for the Units; provided, however, that notwithstanding the foregoing, with respect
to the Purchasers, such survivability shall be limited as set forth in the Subscription Agreements.
Notwithstanding any termination of this Agreement, including without limitation any termination
pursuant to Sections 9 or 10, the indemnity and contribution agreements contained
in Section 8 and the covenants, representations, warranties set forth in this Agreement
shall not terminate and shall remain in full force and effect at all times.



     14. NOTICES. All statements, requests, notices and agreements hereunder shall be in
writing, and:



          (a) if to the Agent, shall be delivered or sent by mail, telex, facsimile transmission,
overnight courier or email to Houlihan Lokey Capital, Inc., One Sansome Street, Suite 1700, San
Francisco, CA 94104, Attention: John Soden, Fax: (415) 974-5969; Email:




31












 




jsoden@hl.com; with a copy to Paul, Hastings, Janofsky & Walker LLP, 55 Second Street,
Twenty-Fourth Floor, San Francisco, CA 94105, Attention: Jeffrey T. Hartlin, Fax: (415) 856-7124;
Email: jeffhartlin@paulhastings.com;




          (b) if to the Company, shall be delivered or sent by mail, telex, facsimile transmission,
overnight courier or email to ThermoGenesis Corp., 2711 Citrus Road, Rancho Cordova, California
95742, Attention: Matthew T. Plavan, CFO & EVP, Business Development, Fax: (916) 858-5197; with a
copy to Weintraub Genshlea Chediak, 400 Capitol Mall, Eleventh Floor, Sacramento, CA 95816,
Attention: David C. Adams, Fax: (916) 446-1611; Email: dadams@weintraub.com.




          Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof, except that any such statement, request, notice or agreement delivered or sent by email
shall take effect at the time of confirmation of receipt thereof by the recipient thereof.




     15. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a) “business day” means any
day on which the New York Stock Exchange, Inc. is open for trading, (b) “knowledge” means the
knowledge of the officers of the Company after reasonable inquiry and (c) “subsidiary” has the
meaning set forth in Rule 405 of the Rules and Regulations.



     16. GOVERNING LAW, AGENT FOR SERVICE AND JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. NO LEGAL PROCEEDING MAY BE COMMENCED,
PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE
CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, WHICH COURTS SHALL HAVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE COMPANY
AND THE AGENT EACH HEREBY CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH
RESPECT THERETO. THE COMPANY AND THE AGENT EACH HEREBY CONSENT TO PERSONAL JURISDICTION, SERVICE
AND VENUE IN ANY COURT IN WHICH ANY LEGAL PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST THE COMPANY OR THE AGENT. THE COMPANY AND THE AGENT
EACH HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE COMPANY AGREES THAT
A FINAL JUDGMENT IN ANY SUCH LEGAL PROCEEDING BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND
BINDING UPON THE COMPANY AND THE AGENT AND MAY BE ENFORCED IN ANY OTHER COURTS IN THE JURISDICTION
OF WHICH THE COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.



     17. PLACEMENT AGENT’S INFORMATION. The parties hereto acknowledge and agree that, for all
purposes of this Agreement, the Agent’s Information consists solely of the following information in
the Prospectus: (i) the last paragraph on the front cover page concerning



32









 




the terms of the offering by the Agent; and (ii) the statements concerning the Agent contained
in the sixth paragraph under the heading “Plan of Distribution” in the Prospectus Supplement.




     18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any section, paragraph,
clause or provision of this Agreement shall not affect the validity or enforceability of any other
section, paragraph, clause or provision hereof. If any section, paragraph, clause or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.



     19. GENERAL. This Agreement constitutes the entire agreement of the parties to this Agreement
and supersedes all prior written or oral and all contemporaneous oral agreements, understandings
and negotiations with respect to the subject matter hereof. In this Agreement, the masculine,
feminine and neuter genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended or modified, and
the observance of any term of this Agreement may be waived, only by a writing signed by the Company
and the Agent. This Agreement hereby amends and restates in its entirety that certain Placement
Agent Agreement, dated March 4, 2011, by and between the Company and the Agent.



     20. COUNTERPARTS. This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument and such signatures may be delivered by facsimile or by e-mail delivery of a “.pdf”
format data file.



33









 





     If the foregoing is in accordance with your understanding of the agreement between the Company
and the Agent, kindly indicate your acceptance in the space provided for that purpose below.



	 	 	 	 	 
	 	Very truly yours,



THERMOGENESIS CORP.

 	 
	 	By:  	/s/ J. Melville Engle
 	 
	 	 	Name:  	J. Melville Engle       	 
	 	 	Title:  	Chief Executive Officer & Chairman 	 
	 



[Signature Page to Thermogenesis Corp. Placement Agent Agreement]






 









 








					
	 	


Accepted as of the date

first above written:




HOULIHAN LOKEY CAPITAL, INC.

 	 
	 	By:  	/s/ Daniel S. Hoverman	 
	 	 	Name:  	Daniel S. Hoverman	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Thermogenesis Corp. Placement Agent Agreement]






 









 








EXHIBIT A




Form of Subscription Agreement


See Exhibit 10.2 filed herein.









C-1









 








EXHIBIT B




General Use Free Writing Prospectuses


None





B-1











 





EXHIBIT C




List of officers and directors subject to Section 5



Directors




Hubert E. Huckel, M.D.

David W. Carter

Patrick J. McEnany

Craig W. Moore

Mahendra S. Rao, Ph.D., M.D.

J. Melville Engle




Section 16 Officers




Matthew T. Plavan

Jorge Artiles

Hal Baker

Moni Shavit









C-1









 








Exhibit D




Form of Lock Up Agreement



January ____, 2011




HOULIHAN LOKEY CAPITAL, INC.

One Sansome Street, Suite 1700

San Francisco, CA 94104




     Re:      ThermoGenesis Corp. — Registered Offering of Common Stock


Dear Sirs:




     This Agreement is being delivered to you in connection with the proposed Placement Agent
Agreement (the “Placement Agent Agreement”) among ThermoGenesis Corp., a Delaware corporation (the
“Company”) and Houlihan Lokey Capital, Inc. (“Houlihan” or the “Representative”), relating to the
proposed offering of shares of the common stock, par value $0.001 per share (the “Common Stock”),
of the Company.



     In order to induce you to enter into the Placement Agent Agreement, and in light of the
benefits that the offering of the Common Stock will confer upon the undersigned in his or her
capacity as a security holder and/or an officer, director or employee of the Company, and for good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with the Representative that, during the period beginning on and including the
date of the Placement Agent Agreement through and including the date that is the 90th day after the
date of the Placement Agent Agreement (the “Lock-Up Period”), the undersigned will not, without the
prior written consent of Houlihan, directly or indirectly, (i) offer, sell, assign, transfer,
pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose
of, any Common Stock (including, without limitation, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and regulations promulgated
under the Securities Act of 1933, as the same may be amended or supplemented from time to time
(such shares, the “Beneficially Owned Shares”)) or securities convertible into or exercisable or
exchangeable for Common Stock; (ii) enter into any swap, hedge or similar agreement or arrangement
that transfers in whole or in part, the economic risk of ownership of the Beneficially Owned Shares
or securities convertible into or exercisable or exchangeable for Common Stock, whether now owned
or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter
acquires the power of disposition, or (iii) engage in any short selling of the Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock. To the extent you are
at such time providing research coverage to the Company and subject to the restrictions set forth
in FINRA Rule 2711(f)(4), then if (i) the Company issues an earnings release or material news or a
material event relating to the Company occurs during the last 17 days of the Lock-Up Period, or
(ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then in
each case the Lock-Up Period shall be extended and the restrictions imposed by this Agreement shall



D-1









 




continue to apply until the expiration of the 18-day period beginning on the date of the
issuance of the earnings release or the occurrence of the material news or material event.




     The restrictions set forth in the immediately preceding paragraph shall not apply to any
transfers made by the undersigned (i) as a bona fide gift to any member of the immediate family (as
defined below) of the undersigned or to a trust the beneficiaries of which are exclusively the
undersigned or members of the undersigned’s immediate family, (ii) by will or intestate succession
upon the death of the undersigned, (iii) as a bona fide gift to a charity or educational
institution or (iv) by disposition of Common Stock or Beneficially Owned Shares pursuant to any
trading plan designed to meet the requirements of the safe harbor of Rule 10b5-1 under the
Securities Exchange Act of 1934, as amended, existing prior to the Lock-up Period or entered into
in renewal or replacement of such an existing plan upon its expiration on substantially similar
terms, provided, however, that in the case of any transfer described in clauses (i) and (ii) above,
it shall be a condition to the transfer that (A) the transferee executes and delivers to Houlihan,
not later than one business day prior to such transfer, a written agreement, in substantially the
form of this agreement (it being understood that any references to “immediate family” in the
agreement executed by such transferee shall expressly refer only to the immediate family of the
undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form
and substance to Houlihan, and (B) if the undersigned is required to file a report under Section
16(a) of the Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial
ownership of Common Stock or Beneficially Owned Shares or any securities convertible into or
exercisable or exchangeable for Common Stock or Beneficially Owned Shares during the Lock-Up Period
(as the same may be extended as described above), the undersigned shall include a statement in such
report to the effect that such transfer is being made as a gift or by will or intestate succession.
For purposes of this paragraph, “immediate family” shall mean a spouse, child, grandchild or other
lineal descendant (including by adoption), father, mother, father-in-law, mother-in-law, brother or
sister of the undersigned; and “affiliate” shall have the meaning set forth in Rule 405 under the
Securities Act of 1933, as amended.



     Any Common Stock or Beneficially Owned Shares acquired by the undersigned in the open market
after the date of this Agreement will not be subject to the restrictions set forth in this
agreement. After the date of this agreement, the undersigned may at any time enter into a written
plan meeting the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended,
relating to the sale of Common Stock or Beneficially Owned Shares, if then permitted by the
Company, provided, however, that the shares subject to such plan shall be subject to the
restrictions set forth in this agreement.



     In order to enable this covenant to be enforced, the undersigned hereby consents to the
placing of legends or stop transfer instructions with the Company’s transfer agent with respect to
any Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.



     The undersigned further agrees that (i) it will not, during the Lock-Up Period (as the same
may be extended as described above), make any demand or request for or exercise any right with
respect to the registration under the Securities Act of 1933, as amended, of any Common Stock or
other Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable
for Common Stock or other Beneficially Owned Shares, and (ii) the



D-2









 





Company may, with respect to any Common Stock or other Beneficially Owned Shares or any
securities convertible into or exercisable or exchangeable for Common Stock or other Beneficially
Owned Shares owned or held (of record or beneficially) by the undersigned, cause the transfer agent
or other registrar to enter stop transfer instructions and implement stop transfer procedures with
respect to such securities during the Lock-Up Period (as the same may be extended as described
above).




     The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this agreement and that this agreement has been duly executed and delivered
by the undersigned and is a valid and binding agreement of the undersigned. This agreement and all
authority herein conferred are irrevocable and shall survive the death or incapacity of the
undersigned and shall be binding upon the undersigned and upon the heirs, personal representatives,
successors and assigns of the undersigned.



     The undersigned acknowledges and agrees that whether or not any offering of Common Stock
actually occurs depends on a number of factors, including market conditions. It is understood and
agreed that if (i) the Placement Agent Agreement is not executed by May 30, 2011, (ii) the Company
notifies you in writing that it does not intend to proceed with the offering of Common Stock, (iii)
the undersigned ceases to serve as an officer or director of the Company, or (iv) the Placement
Agent Agreement shall be terminated (other than the provisions that survive termination thereof)
prior to payment for and delivery of the securities to be sold pursuant thereto, the undersigned
shall be released from his or her obligations under the provisions of this agreement.



     This agreement shall be governed by, and construed in accordance with, the laws of the State
of New York.



	 	 	 	 	 	 	 

	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	(Name of Stockholder — Please Print)
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 
	 

	 	(Signature)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 







D-3