Exhibit
10.1


 





July 29, 2009


 


CONFIDENTIAL


 


Avtar Dhillon, MD


President and Chairman of
the Board


Inovio Biomedical
Corporation


450 Sentry Parkway


Blue Bell, PA  19422


Dear Dr. Dhillon:


 


This letter (the “Agreement”)
constitutes the agreement between Rodman & Renshaw, LLC (“Rodman”
or the “Placement Agent”) and Inovio Biomedical Corporation (the “Company”),
that Rodman shall serve as the exclusive placement agent for the Company, on a “reasonable
best efforts” basis, in connection with the proposed placement, to close on or
prior to August 4, 2009 (the “Placement”) of registered securities
(the “Securities”) of the Company, including shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (the “Common Stock”)
and greenshoe warrants to purchase shares of Common Stock.  The terms of such Placement and the
Securities shall be mutually agreed upon by the Company and the purchasers
(each, a “Purchaser” and collectively, the “Purchasers”) and
nothing herein constitutes that Rodman would have the power or authority to
bind the Company or any Purchaser or an obligation for the Company to issue any
Securities or complete the Placement.  This
Agreement and the documents executed and delivered by the Company and the
Purchasers in connection with the Placement shall be collectively referred to
herein as the “Transaction  Documents.”  The date of the closing of the Placement
shall be referred to herein as the “Closing Date.”  The Company expressly acknowledges and agrees
that Rodman’s obligations hereunder are on a reasonable best efforts basis only
and that the execution of this Agreement does not constitute a commitment by Rodman
to purchase the Securities and does not ensure the successful placement of the
Securities or any portion thereof.


 


SECTION 1.           COMPENSATION
AND OTHER FEES.


 


As compensation for the services provided by Rodman
hereunder, the Company agrees to pay to Rodman:


 


(A)          The
fees set forth below with respect to the Placement:


 


1.               A cash fee payable immediately upon (but
only in the event of) the closing of the Placement and equal to 5% of the aggregate
gross proceeds raised in the Placement from the sale of Shares sold at the
closing.  Additionally, a cash fee
payable within 48 hours of (but only in the event of) the receipt by the
Company of any proceeds from the exercise of the greenshoe warrants sold in the
Placement that are solicited by the Placement Agent and otherwise in compliance
with Financial Industry Regulatory Authority (“FINRA”) Rule 5110 equal
to 5% of the aggregate cash exercise price received by the Company upon such
exercise, if any (the


 

















 


“Warrant Solicitation Fee”), provided, however, the Warrant
Solicitation Fee shall be reduced (before any reduction to the Rodman Warrants
described in the last sentence of Section A.2 below or any reduction to
the expense reimbursement to Rodman in Section B below) to the extent (and
only to the extent) that Rodman’s aggregate compensation for the Placement, as
determined under FINRA Rule 5110, would otherwise exceed 8%.  Such determination of the actual Warrant
Solicitation Fee shall be made promptly following completion of the Placement
and communicated in writing to the Company.


 


2.               Such number of warrants (the “Rodman
Warrants”) to Rodman or its designees at the Closing to purchase shares of Common
Stock equal to 3% of the aggregate number of Shares sold in the Placement.  The Rodman Warrants shall have the same terms
as the warrants (if any) issued to the Purchasers in the Placement except that the exercise
price shall be 125% of the public offering price per share and shall have a
term of exercise expiring on the five year anniversary of the effective date of
the Registration Statement (i.e., July 1, 2014).  The Rodman Warrants shall not have
antidilution protections or be transferable for six months from the date of the
Offering except as permitted by FINRA Rule 5110, and further, the number
of Shares underlying the Rodman Warrants shall be reduced if necessary to
comply with FINRA rules or regulations.


 


(B)           The Company also agrees to reimburse Rodman’s
expenses (with supporting invoices/receipts) up to a maximum of 0.8% of the
aggregate gross proceeds raised in the placement, but in no event more than $30,000.  Such reimbursement shall be payable
immediately upon (but only in the event of) the closing of the Placement.


 


(C)           Fee Tail.  Rodman shall be entitled to a Placement Agent’s
Fee and Rodman Warrants, calculated in the manner provided in Paragraph A, with
respect to any financing of equity or debt or other capital raising activity of
the Company (“Tail Financing”) within 6 months after the expiration or
termination of this Agreement, to the extent that such financing or capital is
provided to the Company by any of the six investors introduced to the Company
by Rodman and set forth on Schedule 1(A)(C) delivered by Rodman to the
Company contemporaneous with the execution hereof.


 


SECTION 2.           REGISTRATION
STATEMENT.


 


The Company represents and
warrants to, and agrees with, the Placement Agent that:


 


(A)          The Company has filed
with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-3 (Registration File No. 333-160123) under the
Securities Act of 1933, as amended (the “Securities Act”), which became
effective on July 1, 2009, for the registration under the Securities Act
of the Shares.  At the time of such
filing, the Company met the requirements of Form S-3 under the Securities
Act.  Such registration statement meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities
Act and complies with said Rule.  The
Company will file with the Commission pursuant to Rule 424(b) under
the Securities Act, and the rules and regulations (the “Rules and
Regulations”) of the Commission promulgated thereunder, a supplement to the
form of prospectus included in such registration statement relating to the
placement of the Shares and the plan of distribution thereof and will advise
the Placement Agent of all further information (financial and other) with
respect to the Company required to be set forth therein.  Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement, is hereinafter
called the “Registration Statement”; such prospectus in the form in which was
filed on June 19, 2009 is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424(b) (including the Base Prospectus
as so supplemented) is


 

















 


hereinafter
called the “Prospectus Supplement.” Any reference in this Agreement to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or before the date of this Agreement, or the issue date of the Base
Prospectus or the Prospectus Supplement, as the case may be; and any reference
in this Agreement to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement, or the issue date of
the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to
be incorporated therein by reference.  All
references in this Agreement to financial statements and schedules and other
information that is “contained,” “included,” “described,” “referenced,” “set
forth” or “stated” in the Registration Statement, the Base Prospectus or the
Prospectus Supplement (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 or is deemed to be incorporated by reference in the
Registration Statement, the Base Prospectus or the Prospectus Supplement, as
the case may be.  No stop order
suspending the effectiveness of the Registration Statement or the use of the
Base Prospectus or the Prospectus Supplement has been issued, and no proceeding
for any such purpose is pending or has been initiated or, to the Company’s
knowledge, is threatened by the Commission. 
For purposes of this Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale
Prospectus” means the preliminary prospectus, if any, together with the
free writing prospectuses, if any, used in connection with the Placement,
including any documents incorporated by reference therein.


 


(B)           The Registration Statement (and any
further documents to be filed with the Commission in connection with the
Placement) contains, or will contain, as applicable, all exhibits and schedules
as required by the Securities Act.  Each
of the Registration Statement and any post-effective amendment thereto, at the
time it became or becomes effective, complied or will comply, as applicable, in
all material respects with the Securities Act and the Exchange Act and the
applicable Rules and Regulations and did not and, as amended or
supplemented, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.  The Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, each as of its respective
date, comply in all material respects with the Securities Act and the Exchange
Act and the applicable Rules and Regulations.  Each of the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, as amended or supplemented,
did not and will not contain as of the date thereof any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no representation or
warranty as to information contained in or admitted from the Registration
Statement, the Time of Sale Prospectus, if any, or Prospectus Supplement,
including any amendments or supplements thereto, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
Rodman expressly for use in or preparation thereof.  The Incorporated Documents, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations,
and none of such documents, when they were filed with the Commission, contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein (with respect to Incorporated
Documents incorporated by reference in the Base Prospectus or Prospectus
Supplement), in light of the circumstances under which they were made not
misleading; and any further documents so filed and incorporated by reference in
the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any
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.  No
post-effective amendment to the Registration Statement reflecting any facts or
events arising after the date thereof which represent, individually or in the
aggregate, a fundamental change in the information set forth therein is
required to be filed with the Commission. 
There are no documents required to be filed with the Commission in
connection with the transaction contemplated hereby that (x) have not been
filed as required pursuant to the Securities Act or (y) will not be filed
within the requisite time period.  There
are no contracts or other documents required to be described in the Base Prospectus,
the Time of Sale Prospectus, if any, or Prospectus Supplement, or to be filed
as exhibits or schedules to the Registration Statement, that have not been or
will not be described or filed as required.


 


(C)           The Company is eligible to use free
writing prospectuses in connection with the Placement pursuant to Rules 164
and 433 under the Securities Act.  Any
free writing prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act and related to the Placement has been, or will be, filed
with the Commission in accordance with the requirements of the Securities Act
and the applicable rules and regulations of the Commission
thereunder.  Each free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act and related to the Placement or that was prepared by or
behalf of or used by the Company complies or will comply in all material
respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. 
The Company will not, without the prior consent of the Placement Agent,
prepare, use or refer to, any free writing prospectus related to the Placement.


 


(D)          The Company has delivered or made
available to, or will as promptly as practicable deliver or make available to,
to the Placement Agent complete conformed copies of the Registration Statement
and of each consent and certificate of experts, as applicable, filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits),
the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such places
as the Placement Agent reasonably requests. 
Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date, any
offering material in connection with the offering and sale of the Shares other
than the Base Prospectus, the Time of Sale Prospectus, if any, the Prospectus
Supplement, the Registration Statement, copies of the documents incorporated by
reference therein and any other materials permitted by the Securities Act.


 


SECTION 3.           REPRESENTATIONS
AND WARRANTIES.  Except as set forth
under the corresponding section of the Disclosure Schedules to the Transaction
Documents which Disclosure Schedules shall be deemed a part hereof, the Company
hereby makes the representations and warranties set forth in Article III
of the Securities Purchase Agreement of even date herewith by and between the
Purchasers and the Company to the Placement Agent.


 


SECTION 4.           ENGAGEMENT TERM.  Rodman’s engagement hereunder will be for the
period of 5 days.  The engagement
may be terminated by either the Company or Rodman at any time upon 5 days’
written notice and, subject to the delivery and satisfaction (or waiver) of all
closing documents and conditions in connection with the Placement, will be
terminated automatically on the Closing Date. 
Notwithstanding anything to the contrary contained herein, the
provisions concerning confidentiality, indemnification and contribution
contained herein and the Company’s obligations contained in the Indemnification
Provisions will survive any expiration or termination of this Agreement, and the
Company’s obligation to pay fees actually earned and payable and to reimburse
expenses actually incurred and reimbursable pursuant to Section 1 hereof
(including, without limitation, any fee payable pursuant to Section 1(C) in
connection with any Tail Financing), will survive any expiration or termination
of this Agreement.  Rodman agrees not to
use any confidential information concerning the Company provided to them by the
Company for any purposes other than those contemplated under this Agreement.


 

















 


SECTION 5.           RODMAN
INFORMATION.  The Company agrees that
any information or advice rendered by Rodman in connection with this engagement
is for the confidential use of the Company only in their evaluation of the
Placement and, except as otherwise required by law or the rules and
regulations of NYSE Amex (the “Trading Market”), the Company will not disclose
or otherwise refer to the advice or information in any manner without Rodman’s
prior written consent; except that the Company may file this Agreement as an
exhibit to, and disclose Rodman’s role as placement agent pursuant to this
Agreement, in its filings with the Commission..


 


SECTION 6.           NO
FIDUCIARY RELATIONSHIP.  This
Agreement does not create, and shall not be construed as creating rights
enforceable by any person or entity not a party hereto, except those entitled
hereto by virtue of the indemnification provisions hereof.  The Company acknowledges and agrees that Rodman
is not and shall not be construed as a fiduciary of the Company and shall have
no duties or liabilities to the equity holders or the creditors of the Company
or any other person by virtue of this Agreement or the retention of Rodman
hereunder, all of which are hereby expressly waived.


 


SECTION 7.           CLOSING.  The
obligations of the Placement Agent and the Purchasers, and the closing of the
sale of the Securities hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties on the part of the
Company and its Subsidiaries contained herein, to the accuracy of the
statements of the Company and its Subsidiaries made in any certificates
pursuant to the provisions hereof, to the performance by the Company and its
Subsidiaries of their obligations hereunder, and to each of the following
additional terms and conditions:


 


(A)          No stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent.


 


(B)           The Placement Agent shall not have
discovered and disclosed to the Company on or prior to the Closing Date that
the Registration Statement, the Base Prospectus or the Prospectus Supplement or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the reasonable opinion of counsel for the Placement Agent, is
material or omits to state any fact which, in the reasonable opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.


 


(C)           All corporate proceedings and other
legal matters incident to the authorization, form, execution, delivery and
validity of each of this Agreement, the Securities, the Registration Statement,
the Base Prospectus and the Prospectus Supplement and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the Placement
Agent, and the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.


 


(D)          The Placement Agent shall have
received from outside counsel to the Company such counsel’s written opinion,
addressed to the Placement Agent and the Purchasers dated as of the Closing
Date, in form and substance reasonably satisfactory to the Placement Agent.


 


(E)           Neither the Company nor any of its
Subsidiaries shall have sustained since June 16, 2009 (i) any loss or
interference with its business from fire, explosion, flood, terrorist act or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth
in or contemplated by the Base Prospectus and (ii) since such date


 

















 


there shall not have been
any change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change, or any development involving a prospective change,
in or affecting the business, general affairs, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its
Subsidiaries, otherwise than as set forth in or contemplated by the Base
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the reasonable and good faith judgment of the Placement Agent, so
material and adverse as to make it impracticable or inadvisable to proceed with
the sale or delivery of the Securities on the terms and in the manner
contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and
the Prospectus Supplement.


 


(F)           The Common Stock is registered under
the Exchange Act.  The Company shall have
taken no action designed to, or likely to have the effect of terminating the
registration of the Common Stock under the Exchange Act or delisting or
suspending from trading the Common Stock from the Trading Market, nor has the
Company received any information suggesting that the Commission or the Trading
Market is contemplating terminating such registration or listing.


 


(G)           Subsequent to the execution and
delivery of this Agreement, there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the
Nasdaq National Market or the NYSE Alternext US or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or maximum prices
or maximum ranges for prices shall have been established on any such exchange
or such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by federal or state authorities or a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States shall
have become engaged in hostilities in which it is not currently engaged, the
subject of an act of terrorism, there shall have been an escalation in hostilities
involving the United States, or there shall have been a declaration of a
national emergency or war by the United States, or (iv) there shall have
occurred any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if the
effect of any such event in clause (iii) or (iv) makes it, in
the reasonable and good faith judgment of the Placement Agent, impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus and the Prospectus
Supplement.


 


(H)          No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued
by any governmental agency or body which would, as of the Closing Date, prevent
the issuance or sale of the Securities or could reasonably be expected to
materially and adversely affect the business or operations of the Company; and
no injunction, restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Securities or could
reasonably be expected to materially and adversely affect the business or
operations of the Company.


 


(I)            The Company shall have prepared and
filed with the Commission a Current Report on Form 8-K with respect to the
Placement, including as an exhibit thereto this Agreement.


 


(J)            The Company shall have entered into
subscription agreements with each of the Purchasers and such agreements shall
be in full force and effect and shall contain representations and warranties of
the Company as agreed between the Company and the Purchasers.


 


(K)          FINRA shall have raised no objection
to the fairness and reasonableness of the terms and arrangements of this
Agreement.  In addition, the Company
shall, if requested by the Placement Agent, make or authorize Placement Agent’s
counsel to make on the Company’s behalf, an Issuer Filing with


 

















 


FINRA
pursuant to FINRA Rule 5110 with respect to the Registration Statement and
pay all filing fees required in connection therewith.


 


(L)           Prior to the Closing Date, the
Company shall have furnished to the Placement Agent such further information,
certificates and documents as the Placement Agent may reasonably request.


 


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


 


SECTION 8.           INDEMNIFICATION.         (A)  To the extent permitted by
law, the Company will indemnify Rodman and its affiliates, stockholders,
directors, officers, employees and controlling persons (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) against all
losses, claims, damages, expenses and liabilities, as the same are incurred
(including the reasonable fees and expenses of counsel), relating to or arising
out of its activities hereunder or pursuant to this engagement letter, except
to the extent that any losses, claims, damages, expenses or liabilities (or
actions in respect thereof) are found in a final judgment (not subject to
appeal) by a court of law to have resulted primarily and directly from Rodman’s
willful misconduct or gross negligence in performing the services described
herein.


 


(B)           Promptly after receipt by Rodman of
notice of any claim or the commencement of any action or proceeding with
respect to which Rodman is entitled to indemnity hereunder, Rodman will notify
the Company in writing of such claim or of the commencement of such action or
proceeding, and the Company will assume the defense of such action or
proceeding and will employ counsel reasonably satisfactory to Rodman and will
pay the fees and expenses of such counsel. 
Notwithstanding the preceding sentence, Rodman will be entitled to
employ counsel separate from counsel for the Company and from any other party
in such action if counsel for Rodman reasonably determines that it would be
inappropriate under the applicable rules of professional responsibility
for the same counsel to represent both the Company and Rodman.  In such event, the reasonable fees and
disbursements of no more than one such separate counsel will be paid by the
Company.  The Company will have the
exclusive right to settle the claim or proceeding provided that the Company
will not settle any such claim, action or proceeding without the prior written
consent of Rodman, which will not be unreasonably withheld.


 


(C)           The Company agrees to notify Rodman
promptly of the assertion against it or any other person of any claim or the
commencement of any action or proceeding relating to a transaction contemplated
by this engagement letter.


 


(D)          If for any reason the foregoing
indemnity is unavailable to Rodman or insufficient to hold Rodman harmless,
then the Company shall contribute to the amount paid or payable by Rodman as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
on the one hand and Rodman on the other, but also the relative fault of the
Company on the one hand and Rodman on the other that resulted in such losses,
claims, damages or liabilities, as well as any relevant equitable
considerations.  The amounts paid or
payable by a party in respect of losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees and
expenses incurred in defending any litigation, proceeding or other action or
claim.  Notwithstanding the provisions
hereof, Rodman’s share of the liability hereunder shall not be in excess of the
amount of fees actually received, or to be received, by Rodman under this engagement
letter (excluding any amounts received as reimbursement of expenses incurred by
Rodman).


 


(E)           These indemnification provisions
shall remain in full force and effect whether or not the transaction
contemplated by this engagement letter is completed and shall survive the
termination of this


 

















 


engagement letter, and
shall be in addition to any liability that the Company might otherwise have to
any indemnified party under this engagement letter or otherwise.


 


SECTION 9.           GOVERNING
LAW.  This Agreement will be governed
by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed entirely in such State.  This Agreement may not be assigned by either
party without the prior written consent of the other party.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
permitted assigns.  Any right to trial by
jury with respect to any dispute arising under this Agreement or any transaction
or conduct in connection herewith is waived. 
Any dispute arising under this Agreement may be brought into the courts
of the State of New York or into the Federal Court located in New York, New
York and, by execution and delivery of this Agreement, the Company hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of aforesaid courts.  Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.  If either party shall commence an action or
proceeding to enforce any provisions of a Transaction Document, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.


 


SECTION 10.         ENTIRE
AGREEMENT/MISC.  This Agreement
(including the attached Indemnification Provisions) embodies the entire
agreement and understanding between the parties hereto, and supersedes all
prior agreements and understandings, relating to the subject matter
hereof.  If any provision of this
Agreement is determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect.  This Agreement may not be amended or
otherwise modified or waived except by an instrument in writing signed by both Rodman
and the Company.  The representations,
warranties, agreements and covenants contained herein shall survive the closing
of the Placement and delivery and/or exercise of the Securities, as
applicable.  This Agreement may be
executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart.  In the event that any signature is delivered
by facsimile transmission or a .pdf format file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or
..pdf signature page were an original thereof.


 


SECTION 11.         NOTICES.
 Any and all notices or other
communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest of (a) the
date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified on the signature pages attached
hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the
next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number on the
signature pages attached hereto on a day that is not a business day or
later than 6:30 p.m. (New York City time) on any business day, (c) the
business day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (d) upon actual receipt by the
party to whom such notice is required to be given.  The address for such notices and
communications shall be as set forth on the signature pages hereto.


 

















 


Please confirm that the
foregoing correctly sets forth our agreement by signing and returning to Rodman
a copy of this Agreement.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  RODMAN & RENSHAW, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ed Rubin

  
	
   

  	
   

  	
  Name: Ed Rubin

  
	
   

  	
   

  	
  Title: CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notice:

  
	
   

  	
  1251
  Avenue of the Americas, 20th Floor

  
	
   

  	
  New
  York, NY, 10020

  
	
   

  	
  Fax
  (646) 841-1640

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and Agreed to
  as of the date first written above:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INOVIO BIOMEDICAL CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Avtar Dhillon

  	
   

  	
   

  
	
   

  	
  Name: Avtar Dhillion

  	
   

  	
   

  
	
   

  	
  Title: Chairman and President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for notice:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  11494 Sorrento Valley
  Road

  	
   

  	
   

  
	
  San Diego, California
  92121

  	
   

  	
   

  
	
  Fax:
  (858) 597-0451

  	
   

  	
   

  
	
  Attention: President