EX-10.56






Exhibit 10.56




INHIBITEX, INC.




Common Stock

(par value $0.001 per share)




At Market Issuance Sales Agreement




November 23, 2010




McNicoll, Lewis & Vlak LLC


The Graybar Building


420 Lexington Avenue, Suite 628


New York, NY 10170



Ladies and Gentlemen:



Inhibitex, Inc., a Delaware corporation (the “Company”), confirms its agreement (this
“Agreement”) with McNicoll, Lewis & Vlak LLC (“MLV”), as follows:



Issuance and Sale of Shares. The Company agrees that, from time to time from the date
hereof through the two (2) year anniversary of the date hereof, on the terms and subject to the
conditions set forth herein, it may issue and sell through MLV shares (the “Placement
Shares”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), with an aggregate offering price of up to $20,000,000; provided however, that in no
event shall the Company issue or sell through MLV such number of Shares that (a) exceeds the number
of shares of Common Stock registered on the effective Registration Statement (as defined below)
pursuant to which the offering is being made, or (b) exceeds the number of authorized but unissued
shares of the Company’s Common Stock (the “Maximum Amount”). Notwithstanding anything to
the contrary contained herein, the parties hereto agree that compliance with the limitations set
forth in this Section 1 on the amount of Placement Shares issued and sold under this
Agreement shall be the sole responsibility of the Company and that MLV shall have no obligation in
connection with such compliance. The issuance and sale of Placement Shares through MLV will be
effected pursuant to the Registration Statement (as defined below) filed by the Company and
declared effective by the Securities and Exchange Commission (the “Commission”), although
nothing in this Agreement shall be construed as requiring the Company to use the Registration
Statement to issue Common Stock.



The Company has filed with the Commission, in accordance with the provisions of the Securities
Act of 1933, as amended (the “Securities Act”), and the rules and regulations thereunder
(the “Securities Act Regulations”), a registration statement on Form S-3 (File No.
333-165786), including a base prospectus, relating to certain securities, including the Placement
Shares, to be issued from time to time by the Company, and which incorporates by reference
documents that the Company has filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations thereunder (the “Exchange Act Regulations”). The Company has prepared a
prospectus supplement specifically relating to the Placement Shares (the “Prospectus
Supplement”) to the base prospectus included as part of such registration statement. The
Company will furnish to MLV, for use by MLV, copies of the prospectus included as part of such
registration statement, as supplemented by the Prospectus Supplement, relating to the Placement
Shares. Except where the context otherwise requires, such registration statement, including all
documents filed as part thereof or incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration
statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the
“Registration Statement.” The base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the
Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most
recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities
Act Regulations is herein called the “Prospectus”. Any reference herein to the
Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference therein, and any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein (the “Incorporated
Documents”).



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



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



Sale of Placement Shares by MLV.



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



During the term of this Agreement, neither MLV nor any of its affiliates or subsidiaries shall
engage in (i) any short sale of any security of the Company or (ii) any sale of any security of the
Company that MLV does not own or any sale which is consummated by the delivery of a security of the
Company borrowed by, or for the account of, MLV. Neither MLV nor any of its affiliates or
subsidiaries, shall engage in any proprietary trading or trading for MLV’s (or its affiliates’ or
subsidiaries’) own account.



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



Sale and Delivery to MLV; Settlement.



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



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



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



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



Representations and Warranties of the Company. The Company represents and warrants
to, and agrees with MLV that as of the date of this Agreement and as of each Applicable Time (as
defined below), unless such representation, warranty or agreement specifies a different time or
time:



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



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



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



Financial Information. The consolidated financial statements of the Company included
or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free
Writing Prospectuses, if any, together with the related notes and schedules, complied as to form
in all material respects with applicable accounting requirements and the published rules and
regulations of the Commission with respect thereto as in effect as of the time of filing. Such
financial statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and the consolidated results of operations
and cash flows of the Company for the periods specified (subject, in the case of unaudited
statements, to normal year-end audit adjustments which will not be material, either individually or
in the aggregate); the other financial and statistical data with respect to the Company and the
Subsidiaries contained or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented and prepared
on a basis consistent with the financial statements and books and records of the Company; there are
no financial statements (historical or pro forma) that are required to be included or incorporated
by reference in the Registration Statement, or the Prospectus that are not included or incorporated
by reference as required; the Company and the Subsidiaries (as defined below) do not have any
material liabilities or obligations, direct or contingent (including any off-balance sheet
obligations), not described in the Registration Statement (including the exhibits thereto), and the
Prospectus which are required to be described in the Registration Statement or the Prospectus
(including Exhibits thereto and Incorporated Documents); and all disclosures contained or
incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing
Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules
and regulations of the Commission) comply in all material respects with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable;



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



Organization. The Company and each of its Subsidiaries are, and will be, duly
organized, validly existing as a corporation and in good standing under the laws of their
respective jurisdictions of organization. The Company and each of its Subsidiaries are, and will
be, duly qualified as a foreign corporation for transaction of business and in good standing under
the laws of each other jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all corporate power
and authority necessary to own or hold their respective properties and to conduct their respective
businesses as described in the Registration Statement and the Prospectus, except where the failure
to be so qualified or in good standing or have such power or authority would not, individually or
in the aggregate, have a material adverse effect or would reasonably be expected to have a material
adverse effect on the assets, business, operations, earnings, properties, condition (financial or
otherwise), prospects, stockholders’ equity or results of operations of the Company and the
Subsidiaries (as defined below) taken as a whole, or prevent or materially interfere with
consummation of the transactions contemplated hereby (a “Material Adverse Effect”).



Subsidiaries. The subsidiaries set forth on Schedule 4 (collectively, the
“Subsidiaries”), are the Company’s only subsidiaries. Except as set forth in the
Registration Statement and in the Prospectus, the Company owns, directly or indirectly, all of the
equity interests of the Subsidiaries free and clear of any lien, charge, security interest,
encumbrance, right of first refusal or other restriction, and all the equity interests of the
Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and
similar rights.



No Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company 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 are subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of each of clauses (ii) and
(iii) above, for any such violation or default that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as described in the Prospectus,
the Prospectus Supplement or the Incorporated Documents, to the Company’s knowledge, no other party
under any material contract or other agreement to which it or any of its Subsidiaries is a party is
in default in any respect thereunder where such default would reasonably be expected to have a
Material Adverse Effect.



No Material Adverse Change. Subsequent to the respective dates as of which
information is given in the Registration Statement, the Prospectus and the Free Writing
Prospectuses, if any (including any document deemed incorporated by reference therein), there has
not been (i) any Material Adverse Effect, or any development involving a prospective Material
Adverse Effect, in or affecting the business, properties, management, financial, condition
(financial or otherwise), results of operations or prospects of the Company and the Subsidiaries
taken as a whole, (ii) any transaction which is material to the Company and the Subsidiaries taken
as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material to the Company and
the Subsidiaries taken as a whole, (iv) any material change in the capital stock (other than as a
result of the sale of Placement Shares or other than as described in a proxy statement filed on
Schedule 14A or a Registration Statement on Form S-4 and otherwise publicly announced) or
outstanding long-term indebtedness of the Company or any of its Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company or any
Subsidiary, other than in each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectus (including any document deemed incorporated
by reference therein);



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



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



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



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



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



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



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



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



Licenses and Permits. Except as set forth in the Registration Statement or the
Prospectus, the Company and each of its Subsidiaries possess or have obtained, all licenses,
certificates, consents, orders, approvals, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses as described in the
Registration Statement and the Prospectus (the “Permits”), except where the failure to
possess, obtain or make the same would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement or
the Prospectus, neither the Company nor any of its Subsidiaries have received written notice of any
proceeding relating to revocation or modification of any such Permit or has any reason to believe
that such Permit will not be renewed in the ordinary course, except where the failure to obtain any
such renewal would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



Market Capitalization. As of the close of trading on the Exchange on the Trading Day
immediately prior to the date of this Agreement, the aggregate market value of the outstanding
voting equity (as defined in Securities Act Rule 405) of the Company held by persons other than
affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly
through one or more intermediaries, control, or are controlled by, or are under common control
with, the Company)  (the “Non-Affiliate Shares”), was greater than $100 million (calculated
by multiplying (x) the price at which the common equity of the Company was last sold on the
Exchange on the Trading Day immediately prior to the date of this Agreement times (y) the number of
Non-Affiliate Shares).



No Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted
on any installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of
the Exchange Act since the filing of its last Annual Report on Form 10-K, indicating that it
(i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



Certain Market Activities. Neither the Company, nor any of the Subsidiaries, nor any
of their respective directors, officers or controlling persons has taken, directly or indirectly,
any action designed, or that has constituted or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Placement Shares.



Broker/Dealer Relationships. Neither the Company nor any of the Subsidiaries or any
related entities (i) is required to register as a “broker” or “dealer” in accordance with the
provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries,
controls or is a “person associated with a member” or “associated person of a member” (within the
meaning set forth in the FINRA Manual).



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



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



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



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



Environmental Laws. Except as set forth in the Registration Statement or the
Prospectus, the Company and its Subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received and are
in compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as described in the Registration
Statement and the Prospectus; and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii)
or (iii) above, for any such failure to comply or failure to receive required permits, licenses,
other approvals or liability as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



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



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



Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any
liability for any finder’s fees, brokerage commissions or similar payments in connection with the
transactions herein contemplated, except as may otherwise exist with respect to MLV pursuant to
this Agreement.



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



Investment Company Act. Neither the Company nor any of the Subsidiaries is or, after
giving effect to the offering and sale of the Placement Shares, will be an “investment company” or
an entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).



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



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



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



ERISA. To the knowledge of the Company, (i) each material employee benefit plan,
within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), that is maintained, administered or contributed to by the Company or any
of its Subsidiaries (other than a Multiemployer Plan, within the meaning of Section 3(37) of ERISA)
for employees or former employees of the Company and any of its Subsidiaries has been maintained in
compliance with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”); (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any such plan (excluding transactions
effected pursuant to a statutory or administrative exemption); and (iii) for each such plan that is
subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these purposes accrued but
unpaid contributions) equals or exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions, other than, in the case of (i), (ii) and (iii)
above, as would not reasonably be expected to have a Material Adverse Effect.



Margin Rules. Neither the issuance, sale and delivery of the Placement Shares nor the
application of the proceeds thereof by the Company as described in the Registration Statement and
the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.



Insurance. The Company and each of its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company and each of its Subsidiaries
reasonably believe are adequate for the conduct of their properties and as is customary for
companies of similar size engaged in similar businesses in similar industries.



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



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



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



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



Clinical Studies. The clinical, pre-clinical and other studies and tests conducted by
or, to the knowledge of the Company, on behalf of the Company were, and, if still pending, are
being, conducted in accordance in all material respects with all statutes, laws, rules and
regulations, as applicable (including, without limitation, the U.S. Federal and Drug
Administration’s (the “FDA”) Good Laboratory Practices and Good Clinical Practices as well as all
other applicable rules, regulations, or requirements of the FDA or any foreign, federal, state or
local governmental or regulatory authority performing functions similar to those performed by the
FDA). Except as set forth in the Registration Statement and Prospectus, the Company has not
received any written notices or other written correspondence from the FDA or any other foreign,
federal, state or local governmental or regulatory authority performing functions similar to those
performed by the FDA requiring the Company to terminate or suspend any ongoing clinical or
pre-clinical studies or tests.



Compliance Program. Except as disclosed in the Registration Statement and the
Prospectus, the Company has established and administers a compliance program applicable to the
Company, to assist the Company and the directors, officers and employees of the Company in
complying with applicable regulatory guidelines (including, without limitation, those administered
by the FDA and any other foreign, federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA); except where such noncompliance would
not reasonably be expected to have a Material Adverse Effect. 



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



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



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



Registration Statement Amendments. After the date of this Agreement and during any
period in which a Prospectus relating to any Placement Shares is required to be delivered by MLV
under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), (i) the Company will notify MLV promptly of the
time when any subsequent amendment to the Registration Statement, other than documents incorporated
by reference, has been filed with the Commission and/or has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon MLV’s request, any amendments or
supplements to the Registration Statement or Prospectus that, in MLV’s reasonable opinion, may be
necessary or advisable in connection with the distribution of the Placement Shares by MLV
(provided, however, that the failure of MLV to make such request shall not relieve the Company of
any obligation or liability hereunder, or affect MLV’s right to rely on the representations and
warranties made by the Company in this Agreement and provided, further, that the only remedy MLV
shall have with respect to the failure to make such filing shall be to cease making sales under
this Agreement until such amendment or supplement is filed); (iii) the Company will not file any
amendment or supplement to the Registration Statement or Prospectus relating to the Placement
Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted
to MLV within a reasonable period of time before the filing and MLV has not reasonably objected
thereto (provided, however, that the failure of MLV to make such objection shall not relieve the
Company of any obligation or liability hereunder, or affect MLV’s right to rely on the
representations and warranties made by the Company in this Agreement and provided, further, that
the only remedy MLV shall have with respect to the failure by the Company to provide MLV with such
copy shall be to cease making sales under this Agreement) and the Company will furnish to MLV at
the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by
reference into the Registration Statement or Prospectus, except for those documents available via
EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the
Securities Act or, in the case of any document to be incorporated therein by reference, to be filed
with the Commission as required pursuant to the Exchange Act, within the time period prescribed
(the determination to file or not file any amendment or supplement with the Commission under this
Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be
made exclusively by the Company).



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



Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus
relating to the Placement Shares is required to be delivered by MLV under the Securities Act with
respect to the offer and sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus
Delivery Period”), the Company will comply with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or before their respective due dates
all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
the Exchange Act. If the Company has omitted any information from the Registration Statement
pursuant to Rule 430A under the Securities Act, it will use its best efforts to comply with the
provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to
notify MLV promptly of all such filings. If during the Prospectus Delivery Period any event
occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if during the
Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement or
Prospectus to comply with the Securities Act, the Company will promptly notify MLV to suspend the
offering of Placement Shares during such period and the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.



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



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



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



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



Notice of Other Sales. Without the prior written consent of MLV, the Company will
not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this
Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights
to purchase or acquire, Common Stock during the period beginning on the fifth (5th) Trading Day
immediately prior to the date on which any Placement Notice is delivered to MLV hereunder and
ending on the fifth (5th) Trading Day immediately following the final Settlement Date with respect
to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been
terminated or suspended prior to the sale of all Placement Shares covered by a Placement Notice,
the date of such suspension or termination); and will not directly or indirectly in any other
“at-the-market” offering sell, contract to sell, grant any option to sell or otherwise dispose of
any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock prior to the later of the termination of this Agreement and the earliest to occur of
(1) the date on which this Agreement is terminated by the Company pursuant to Section 13(b)(ii),
(2) the date on which MLV terminates this Agreement pursuant to Section 13(c) or (3) the thirtieth
(30th) day immediately following the final Settlement Date with respect to Placement Shares sold
pursuant to such Placement Notice; provided, however, that such restrictions will not be required
in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common
Stock or Common Stock issuable upon the exercise of options, pursuant to any employee or director
stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but not Common
Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company
whether now in effect or hereafter implemented; (ii) Common Stock issuable upon conversion of
securities or the exercise of warrants, options or other rights in effect or outstanding, and
disclosed in filings by the Company available on EDGAR or otherwise in writing to MLV and (iii)
Common Stock, or securities convertible into or exercisable for Common Stock, offered and sold in a
privately negotiated transaction to vendors, customers, strategic partners or potential strategic
partners who are qualified institutional buyers and not more than three persons that are
“accredited investors” within the meaning of such term under paragraph (a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) of Rule 501 under the Securities Act and otherwise conducted in a manner so as not
to be integrated with the offering of Common Stock hereby.



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



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



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



Representation Dates; Certificate. On the date of this Agreement and each time the
Company:




(i) files the Prospectus relating to the Placement Shares or amends or supplements (other
than a prospectus supplement relating solely to an offering of securities other than the
Placement Shares) the Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or supplement but not by means of
incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;




(ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A
that contains restated financial statements);




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




(iv) files a current report on Form 8-K containing amended audited financial information
(other than information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K or to provide
disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain
properties as discontinued operations in accordance with Statement of Financial Accounting
Standards No. 144) under the Exchange Act (each date of filing of one or more of the
documents referred to in clauses (i) through (iv) shall be a “Representation Date”);



the Company shall furnish MLV (but in the case of clause (iv) above only if MLV reasonably
determines that the information contained in such Form 8-K is material) with a certificate, in the
form attached hereto as Exhibit 7(l). The requirement to provide a certificate under this Section
7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice
is pending, which waiver shall continue until the earlier to occur of the date the Company delivers
a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date; provided, however, that such waiver shall not
apply for any Representation Date on which the Company files its annual report on Form 10-K.
Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares
following a Representation Date when the Company relied on such waiver and did not provide MLV with
a certificate under this Section 7(l), then before the Company delivers the Placement Notice or MLV
sells any Placement Shares, the Company shall provide MLV with a certificate, in the form attached
hereto as Exhibit 7(l), dated the date of the Placement Notice.



Legal Opinion. (1) On the date of this Agreement and (2) within five (5) Trading Days
of each Representation Date with respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall
cause to be furnished to MLV written opinions of Dechert LLP (“Company Counsel”), or other
counsel reasonably satisfactory to MLV, in form and substance reasonably satisfactory to MLV and
its counsel; provided, however, the Company shall be required to furnish to MLV no more than one
opinion hereunder per calendar quarter; provided, further, that in lieu of such opinions for
subsequent periodic filings under the Exchange Act, counsel may furnish MLV with a letter (a
“Reliance Letter”) to the effect that MLV may rely on a prior opinion delivered under this
Section 7(m) to the same extent as if it were dated the date of such letter (except that
statements in such prior opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented as of the date of the Reliance Letter).



Comfort Letter. (1) On the date of this Agreement and (2) within five (5) Trading
Days of each Representation Date, other than pursuant to Section 7(l)(iii), with respect to
which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l)
for which no waiver is applicable, the Company shall cause its independent accountants to furnish
MLV letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which
shall meet the requirements set forth in this Section 7(n). The Comfort Letter from the
Company’s independent accountants shall be in a form and substance reasonably satisfactory to MLV,
(i) confirming that they are an independent public accounting firm within the meaning of the
Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to underwriters in connection with registered public offerings (the first such
letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with
any information that would have been included in the Initial Comfort Letter had it been given on
such date and modified as necessary to relate to the Registration Statement and the Prospectus, as
amended and supplemented to the date of such letter.



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



Investment Company Act. The Company will conduct its affairs in such a manner so as
to reasonably ensure that neither it nor any of its Subsidiaries will be or become, at any time
prior to the termination of this Agreement, an “investment company,” as such term is defined in the
Investment Company Act.



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



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



Representations and Covenants of MLV. MLV represents and warrants that it is duly
registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and
regulations of each state in which the Placement Shares will be offered and sold, except such
states in which MLV is exempt from registration or such registration is not otherwise required.
MLV shall continue, for the term of this Agreement, to be duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the
Placement Shares will be offered and sold, except such states in which MLV is exempt from
registration or such registration is not otherwise required, during the term of this Agreement.
MLV will comply with all applicable law and regulations in connection with the Placement Shares,
including but not limited to Regulation M.



Payment of Expenses.



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



If this Agreement is terminated by the Company prior to the two (2) year anniversary of the
date hereof, the Company shall reimburse MLV, within thirty (30) days of the date of such
termination, for a pro rata portion of any costs and expenses of the Company reimbursed by MLV,
based on the percentage of the Maximum Amount of Placement Shares sold by MLV hereunder through the
date of such termination; provided, however, that the provisions of this Section 9(b) shall not
apply upon any termination of this Agreement by the Company pursuant to Section 13(b)(ii) of this
Agreement.



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



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



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



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



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



Legal Opinion. MLV shall have received the opinions of Company Counsel required to be
delivered pursuant Section 7(m) on or before the date on which such delivery of such
opinions are required pursuant to Section 7(m).



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



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



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



Other Materials. On each date on which the Company is required to deliver a
certificate pursuant to Section 7(l), the Company shall have furnished to MLV such
appropriate further information, certificates and documents as MLV may reasonably request and which
are usually and customarily furnished by an issuer of securities in connection with a securities
offering. All such opinions, certificates, letters and other documents will be in compliance with
the provisions hereof. The Company will furnish MLV with such conformed copies of such opinions,
certificates, letters and other documents as MLV shall reasonably request.



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



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



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



Indemnification and Contribution.



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



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



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



(iii) against any and all expense whatsoever, as incurred (including the reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or
(ii) above,



provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made solely in reliance upon and in conformity with written
information furnished to the Company by MLV expressly for use in the Registration Statement (or any
amendment thereto), or in any related Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).



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



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



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



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



Termination.



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



(i) The Company shall have the right, by giving ten (10) days notice as hereinafter specified
to terminate this Agreement in its sole discretion at any time after the date of this Agreement.



(ii) If MLV declines any commercially reasonable placement notice pursuant to clause (i) of
Section 2 of this Agreement, then the Company shall have the right to terminate this Agreement by
giving written notice of termination to MLV. Any such termination shall be effective immediately
upon a delivery of a termination notice by the Company to MLV.



Any termination pursuant to Section 13(b) shall be without liability of any party to any other
party except that the provisions of Section 9, Section 11, Section 12, Section 18 and Section 19
hereof shall remain in full force and effect notwithstanding such termination.



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



Unless earlier terminated pursuant to this Section 13, this Agreement shall
automatically terminate upon the earlier to occur of (i) the two (2) year anniversary of the date
hereof or (ii) the issuance and sale of all of the Placement Shares through MLV on the terms and
subject to the conditions set forth herein, except that, in either such case, the provisions of
Section 9, Section 11, Section 12, Section 18 and Section
19 hereof shall remain in full force and effect notwithstanding such termination.



This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 13(a), (b), (c) or (d) above or otherwise by mutual
agreement of the parties. Upon termination of this Agreement, the Company shall not have any
liability to MLV for any discount, commission or other compensation with respect to any Placement
Shares not otherwise sold by MLV under this Agreement.



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



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



	 	 	 
	McNicoll, Lewis & Vlak LLC

	420 Lexington Avenue

	New York, NY 10017

	Attention:

Facsimile:

	 	General Counsel

(212) 542-5870






	 	 	 
	with a copy to:

	 	

	DLA Piper LLP (US)

	 	

	1251 Avenue of the Americas

	New York, NY 10020

Attention:

Facsimile:

	 	

Daniel I. Goldberg

(212) 884-8466






	 	 	 
	and if to the Company, shall be delivered to:

	Inhibitex, Inc.

9005 Westside Parkway

Alpharetta, GA 30009

	 	





	Attention: Russell H. Plumb

	President and Chief Executive Officer

	Facsimile:

	 	(678) 746-1299






	 	 	 
	with a copy to:

	 	

	Dechert LLP

	 	

	1095 Avenue of the Americas

	New York, NY 10036

Attention:

Facsimile:

	 	

David S. Rosenthal

(212) 698-0416






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



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



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



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



Entire Agreement; Amendment; Severability. This Agreement (including all schedules
and exhibits attached hereto and Placement Notices issued pursuant hereto), together with the
Confidential Disclosure Agreement, dated November 10, 2010, by and between the Company and MLV (the
“Confidentiality Agreement”) and the letter agreement, dated as of the date hereof, by and
between the Company and MLV, constitute the entire agreement of the parties with respect to the
subject matter hereof and thereof and supersede all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with regard to the subject matter
hereof and thereof. Neither this Agreement nor any term hereof may be amended except pursuant to a
written instrument executed by the Company and MLV. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall
be given full force and effect to the fullest possible extent that it is valid, legal and
enforceable, and the remainder of the terms and provisions herein shall be construed as if such
invalid, illegal or unenforceable term or provision was not contained herein, but only to the
extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement.



GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.



CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN,
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR
NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.



Use of Information. MLV may not use any information gained in connection with this
Agreement and the transactions contemplated by this Agreement, including due diligence, to advise
any party with respect to transactions not expressly approved by the Company. MLV acknowledges
that any information gained in connection with this Agreement and the transactions contemplated by
this Agreement are subject to confidentiality and other restrictions pursuant to the
Confidentiality Agreement and agrees to abide by the terms of the Confidentiality Agreement.



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



Effect of Headings.



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



Permitted Free Writing Prospectuses.



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



Absence of Fiduciary Relationship.



The Company acknowledges and agrees that:



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



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



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



it is aware that MLV and its affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and MLV has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship or otherwise; provided that MLV hereby agrees not to engage in any such transaction
which would cause its interests to be in direct conflict with the best interests of the Company;
and



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



Definitions.



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



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



“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Placement Shares.



“Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule
415,” “Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433”
refer to such rules under the Securities Act Regulations.



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



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



[Signature Page Follows]




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




Very truly yours,



	 	 	 
	INHIBITEX, INC.
	 
	By:
	 	


	 	 	Name: Russell H. Plumb

	 	 	Title: President and Chief Executive Officer








ACCEPTED as of the date first-above written:



	 	 	 
	MCNICOLL, LEWIS & VLAK LLC
	 
	By:
	 	


	 	 	Name: Patrice McNicoll

	 	 	Title: President







SCHEDULE 1












FORM OF PLACEMENT NOTICE














	 	 	 
	From:

To:

	 	Inhibitex, Inc.

McNicoll, Lewis & Vlak LLC






	 	 	 
	Attention: Patrice McNicoll

	Subject:

	 	At Market Issuance—Placement Notice






Gentlemen:



Pursuant to the terms and subject to the conditions contained in the At Market Issuance Sales
Agreement between Inhibitex, Inc., a Delaware corporation (the “Company”) and McNicoll,
Lewis & Vlak LLC (“MLV”), dated November 22, 2010, the Company hereby requests that MLV
sell up to        of the Company’s Common Stock, no par value per share, at a minimum market
price of $    per share, during the time period beginning [month, day, time] and ending [month,
day, time].



SCHEDULE 2












Compensation














The Company shall pay to MLV in cash, upon each sale of Placement Shares pursuant to this
Agreement, an amount equal to 3.0% of the gross proceeds from each sale of Placement Shares up to
gross proceeds of $20,000,000.



SCHEDULE 3












Notice Parties














The Company



Russell H. Plumb



MLV



Randy Billhardt




Ryan Loforte




Patrice McNicoll



SCHEDULE 4













Subsidiaries














FermaVir Pharmaceuticals, Inc. (f/k/a Frost Acquisition Corp.)



FermaVir Research, Inc.



EXHIBIT 7(l)

Form of Representation Date Certificate




This Officers Certificate (this “Certificate”) is executed and delivered in connection with
Section 7(l) of the At Market Issuance Sales Agreement (the “Agreement”), dated November
22, 2010, and entered into between Inhibitex, Inc. (the “Company”) and McNicoll, Lewis &
Vlak LLC. All capitalized terms used but not defined herein shall have the meanings given to such
terms in the Agreement.



The undersigned, a duly appointed and authorized officer of the Company, having made
reasonable inquiries to establish the accuracy of the statements below and having been authorized
by the Company to execute this certificate on behalf of the Company, hereby certifies as follows:



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



2. Each of the representations and warranties of the Company contained in the Agreement were,
when originally made, and are, as of the date of this Certificate, true and correct in all material
respects.



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



4. Subsequent to the date of the most recent financial statements in the Prospectus, and
except as described in the Prospectus, including Incorporated Documents, there has been no Material
Adverse Effect.



5. No stop order suspending the effectiveness of (a) the Registration Statement or of any part
thereof or (b) the qualification or registration of the Placement Shares under the securities or
Blue Sky laws of any jurisdiction has been issued, and, to the Company’s knowledge, no proceedings
for that purpose have been instituted or are pending or threatened by any securities or other
governmental authority (including, without limitation, the Commission).



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



	 
	INHIBITEX, INC.

	By:

	Name:      

	Title: