Exhibit 10.1


 





SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as of April 9, 2014, between Northwest Biotherapeutics,
Inc., a Delaware corporation (the “Company”), and the purchaser identified on the signature page hereto (including
its successors and assigns, the “Purchaser”).


 


WHEREAS, subject
to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to the
Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as
more fully described in this Agreement.


 


NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:


 


ARTICLE I.

DEFINITIONS


 


1.1             
 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the
following terms have the meanings set forth in this Section 1.1:


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.


 


“Action”
shall have the meaning ascribed to such term in Section 3.1(k).


 


“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.


 


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


 


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


 





“Closing”
means, collectively, the Initial Closing and each Overallotment Closing.


 


“Closing
Date” means collectively, the Initial Closing Date and each Overallotment Closing Date.


  


“Closing
Statement” means the Closing Statement in the form on Annex A attached hereto.


 






    	1



    	 



    

 


“Commission”
means the United States Securities and Exchange Commission.


 


“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.


 


“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.


 


“Company
Counsel” means Wyrick Robbins Yates & Ponton LLP.


 


“Disclosure
Schedules” means the Disclosure Schedules of the Company, if any, delivered concurrently herewith.


 


“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Ave. of the Americas, New York, New York 10105.


 


“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors
or a majority of the members of a committee of non-employee directors established for such purpose, (b) shares of Common Stock
upon the exercise or exchange of or conversion of securities exercisable or exchangeable for or convertible into shares of Common
Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date
of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price
of such securities, (c) up to 2,500,000 unregistered shares of Common Stock in payment of contractor invoices in the ordinary course
of business as described in the Disclosure Schedule, (d) up to $20,000,000 of Common Stock or Common Stock Equivalents to Cognate
BioServices, Inc. for cash only on market terms as described in the Disclosure Schedules, and (e) issued pursuant to acquisitions
or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance
shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company
or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.


 






    	2



    	 



    

 


“FDA”
shall have the meaning ascribed to such term in Section 3.1(hh).


 


“FDCA”
shall have the meaning ascribed to such term in Section 3.1(hh).


 


“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).


 


“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(z).


 


“Initial
Closing” means the closing of the purchase and sale of the Shares pursuant to Section 2.1(a).


 


“Initial
Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the
applicable parties thereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the Subscription Amount
and (ii) the Company’s obligations to deliver the Shares, in each case, have been satisfied or waived, but in no event later
than the third Trading Day following the date hereof.


 


“Intellectual
Property” shall have the meaning ascribed to such term in Section 3.1(p).


 


“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).


 


“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).


 





“Overallotment
Amount” means the aggregate amount to be paid for Overallotment Shares purchased hereunder as specified below the Purchaser’s
name on the signature page of its Overallotment Notice and next to the heading “Subscription Amount,” in United States
dollars and in immediately available funds.


 


“Overallotment
Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.2(a).


  


“Per
Share Purchase Price” equals $6.60, subject to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.


 


“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(hh).


 






    	3



    	 



    

 


“Placement
Agent” means H.C. Wainwright & Co., LLC.


 


“Placement
Agent Agreement” means the Placement Agent Agreement, dated on the date hereof, between the Company and the Placement
Agent.


 


“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.


 


“Prospectus”
means the final prospectus filed for the Registration Statement.


 





“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with
the Commission and delivered by the Company to the Purchaser at the Initial Closing for the issuance of the Shares and the Overallotment
Shares.


  


“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.


 


“Registration
Statement” means the effective registration statement with Commission file No. 333-185898 which registers the sale of
the Shares to the Purchaser.


 


“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).


 


“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.


 


“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.


 


“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“Shares”
means the shares of Common Stock issued or issuable to the Purchaser pursuant to this Agreement.


 


“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include the location and/or reservation of borrowable shares of Common Stock).


 


“Subscription
Amount” means the aggregate amount to be paid for Shares purchased hereunder as specified below
the Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.


 






    	4



    	 



    

 


“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company
formed or acquired after the date hereof.


 


“Trading
Day” means a day on which the principal Trading Market is open for trading.


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on
the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New
York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).


 


“Transaction
Documents” means this Agreement, the Placement Agent Agreement, and any other documents or agreements executed in connection
with the transactions contemplated hereunder.


 


“Transfer
Agent” means Computershare, the current transfer agent of the Company, with a mailing address of 520 Pike Street, Suite
1220, Seattle, WA 98101, and any successor transfer agent of the Company.


 


ARTICLE II.

PURCHASE AND SALE


 





2.1             
Initial Closing. On the Initial Closing Date, upon the terms and subject to the conditions set forth herein, substantially
concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchaser
agrees to purchase, an aggregate of $15,000,000 of Shares. The Purchaser shall deliver to the Company, via wire transfer or a certified
check, immediately available funds equal to the Purchaser’s Subscription Amount as set forth on the signature page hereto
executed by the Purchaser and the Company shall deliver to the Purchaser its Shares, and the Company and the Purchaser shall deliver
the other items set forth in Section 2.3 deliverable at the Initial Closing. Upon satisfaction of the covenants and conditions
set forth in Sections 2.3 and 2.4, the Initial Closing shall occur at the offices of EGS or such other location as the parties
shall mutually agree, including the delivery to the Company of immediately available funds comprising the full Subscription Amounts.


 


2.2             
Overallotment Right.


 


(a)               
From the date of the Initial Closing until one year after the Initial Closing Date, the Purchaser may, in its sole determination,
elect to purchase, in whole or in part, through one or more purchases additional Shares with an aggregate subscription amount thereof
of up to $17,045,460 (the “Overallotment Shares” and such right to receive the Overallotment Shares pursuant
to this Section 2.2, the “Overallotment Right”). Notwithstanding anything herein to the contrary, to the extent
that the Registration Statement (or another registration statement registering the Overallotment Shares) is suspended or unavailable
for the issuance of the Overallotment Shares during the term of the Overallotment Right, the term of the Overallotment Right shall
be extended by an equivalent number of days and in no event shall the Overallotment Right terminate on a Trading Day during the
term of the Overallotment Right on which the Registration Statement is suspended or unavailable. The Overallotment Shares shall
be on the same terms and conditions as the sale of the Shares at the Initial Closing except that the price per Overallotment Share
shall be $7.50 (subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other
similar transactions of the Common Stock that occur after the date of this Agreement) and except that Section 4.12 of this Agreement
shall not be extended or renewed by virtue of the exercise of the Overallotment Right. Subject to the terms of this Agreement,
each Overallotment Closing shall occur within 3 Trading Days of a duly delivered exercise notice by the exercising party (each
such notice, an “Overallotment Notice” and each such Overallotment Closing following delivery of an Overallotment
Notice, an “Overallotment Closing Date”). Upon the issuance and sale of the Overallotment Shares, the Overallotment
Shares shall be deemed Shares for the purposes of this Agreement.


  






    	5



    	 



    

 





(b)              
If
on or after the fifth Trading Day following delivery of an Overallotment Notice, provided that the Purchaser shall have paid the
purchase price of the Overallotment Shares, the Company has failed to deliver the Overallotment Shares and the Purchaser purchases
(in an open market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by the Purchaser of all or any portion
of the number of Common Stock, or a sale of a number of Common Stock equal to all or any portion of the number of Overallotment
Shares that the Purchaser anticipated receiving from the Company in connection with any such Overallotment Right, then, in addition
to all other remedies available to the Purchaser, the Company shall, within three (3) Trading Days after the Purchaser’s
request and in the Purchaser’s sole discretion, either (i) pay cash to the Purchaser in an amount equal to the Purchaser’s
total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the Common Stock so purchased
(including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”), at which point
the Company’s obligation to so deliver such certificate or credit the Purchaser’s balance account shall terminate and
such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to the Purchaser a certificate or certificates
or credit the Purchaser’s DTC account representing such number of Overallotment Shares that would have been so delivered
if the Company timely complied with its obligations hereunder and pay cash to the Purchaser in an amount equal to the excess (if
any) of the Buy-In Price over the product of (A) such number of Overallotment Shares (as the case may be) that the Company was
required to deliver to the Purchaser by such Overallotment Closing Date multiplied by (B) the lowest volume-weighted average price
on any Trading Day during the period commencing on the fifth Trading Day following delivery of such Overallotment Notice and ending
on the date of such delivery and payment under this clause (ii).


  






    	6



    	 



    

 





(c)The
Company shall not effect any exercise of an Overallotment Right, and the Purchaser shall not have the right to exercise any portion
of its Overallotment Right to the extent that after giving effect to such issuance after exercise of an Overallotment Right, the
Purchaser (together with the Purchaser’s Affiliates, and any other Persons acting as a group together with the Purchaser
or any of the Purchaser’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined
below). Except as set forth in the preceding sentence, for purposes of this Section 2.2, beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged
by the Purchaser that the Company is not representing to the Purchaser that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Purchaser is solely responsible for any schedules required to be filed in accordance therewith. To
the extent that the limitation contained in this Section 2.2 applies, the determination of whether an Overallotment Right is exercisable
(in relation to other securities owned by the Purchaser together with any Affiliates) and of which portion of a Purchaser’s
Overallotment Right is exercisable shall be in the sole discretion of the Purchaser, and the submission of an Overallotment Notice
shall be deemed to be the Purchaser’s determination of whether its Overallotment Right is exercisable (in relation to other
securities owned by the Purchaser together with any Affiliates) and of which portion of its Overallotment Right is exercisable,
in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the
accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in
accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section
2.2, in determining the number of outstanding shares of Common Stock, a Purchaser may rely on the number of outstanding shares
of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the
case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Purchaser, the Company
shall within two Trading Days confirm orally and in writing to the Purchaser the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise
of securities of the Company by the Purchaser or its Affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of Common
Stock outstanding immediately after giving effect to the issuance of the shares of Common Stock issuable upon exercise of such
Overallotment Right. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2.2 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with
the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. For the purposes of clarification, at any time from the date hereof until one year after the Initial
Closing Date, if a Purchaser (together with the Purchaser’s Affiliates, and any other Persons acting as a group together
with the Purchaser or any of the Purchaser’s Affiliates) beneficially owns less than the Beneficial Ownership Limitation,
it shall have the right to exercise any unexercised portion of its Overallotment Right, further subject to the beneficial ownership
limitations set forth in this Section 2.2(c).


  






    	7



    	 



    

 


2.3             
Deliveries.


 


(a)               
On or prior to each Closing Date (except as noted), the Company shall deliver or cause to be delivered to the Purchaser
the following:


 


(i)                
As to the Initial Closing, this Agreement duly executed by the Company;


 


(ii)              
a legal opinion of Company Counsel, substantially in the form of Exhibit A attached hereto, addressed to the Placement
Agent and the Purchaser;


 


(iii)            
a legal opinion of Christensen, O’Connor, Johnson, Kindness PLLC, or other intellectual property counsel to the Company,
substantially in the form of Exhibit B attached hereto, addressed to the Placement Agent and the Purchaser;


 


(iv)            
As to the Initial Closing, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to
deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to the Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of the
Purchaser;


 





(v)as to
each Overallotment Closing, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver
on an expedited basis via DWAC Overallotment Shares as set forth on the Purchaser’s Overallotment Notice;


 


(vi)as
to each Overallotment Closing, an officer’s certificate setting forth the Company’s compliance with its Representations
and Warranties and a bring-down of the Disclosure Schedules; and


  


(vii)          
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).


 


(b)              
On or prior to the applicable Closing Date, the Purchaser shall deliver or cause to be delivered to the Company, the following:


 


(i)                
as to the Initial Closing, this Agreement duly executed by the Purchaser; and


 





(ii)               
the
Purchaser’s Subscription Amount, as to the Initial Closing, or the Purchaser’s Overallotment Amount set forth on an
Overallotment Notice, as to any Overallotment Closing, by wire transfer to the account specified in writing by the Company.


 







 






    	8



    	 



    

 


2.4             
Closing Conditions. 


 


(a)              
The
obligations of the Company hereunder in connection with each Closing are subject to the following conditions being met:


 


(i)                
the accuracy in all material respects on the applicable Closing Date of the representations and warranties of the Purchaser
contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);


 


(ii)               all
obligations, covenants and agreements of the Purchaser required to be performed at or prior to the applicable Closing Date
shall have been performed; and


 


(iii)            
the delivery by the Purchaser of the items set forth in Section 2.3(b) of this Agreement.


 


(b)              
The obligations of the Purchaser hereunder in connection with each Closing are subject to the following conditions
being met:


 


(i)                
the accuracy in all material respects when made and on the applicable Closing Date of the representations and warranties
of the Company contained herein (unless as of a specific date therein);


 


(ii)              
all obligations, covenants and agreements of the Company required to be performed at or prior to such Closing Date shall
have been performed;


 


(iii)            
the delivery by the Company of the items set forth in Section 2.3(a) of this Agreement;


 


(iv)            
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and


 


(v)              
from the date hereof to the applicable Closing Date, trading in the Common Stock shall not have been suspended by the Commission
or the Company’s principal Trading Market, and, at any time prior to the applicable Closing Date, trading in securities generally
as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities
whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by
the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities
or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the
Shares at the applicable Closing.


 






    	9



    	 



    

 


ARTICLE III.

REPRESENTATIONS AND WARRANTIES


 


3.1             
Representations and Warranties of the Company. Except as set forth in the last Annual Report on Form 10-K, as supplemented
by the Prospectus Supplement and by the Disclosure Schedules (if any), which reports and Disclosure Schedules shall be deemed a
part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained therein, the
Company hereby makes the following representations and warranties to the Purchaser:


 


(a)               
Subsidiaries. The Company owns, directly or indirectly, all of the capital stock or other equity interests of each
Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If
the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be
disregarded.


 


(b)              
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with
the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on
the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations,
assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii)
a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under
any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.


 


(c)               
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action
on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.


 






    	10



    	 



    

 


(d)              
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction
Documents to which it is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated
hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.


 


(e)               Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents,
other than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus
Supplement, (iii) application(s) to each applicable Trading Market for the listing of the Shares for trading thereon in the time
and manner required thereby and (iv) such filings as are required to be made under applicable state securities laws (collectively,
the “Required Approvals”).


 





(f)               Issuance
of the Shares; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable
pursuant to this Agreement. The Company has prepared and filed the Registration Statement in conformity with the requirements of
the Securities Act, which became effective on February 5, 2013 (the “Effective Date”), including the Prospectus,
and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement
is effective under the Securities Act, including, without limitation, with respect to the issuance or resale of the Overallotment
Shares pursuant to the Overallotment Right, and no stop order preventing or suspending the effectiveness of the Registration Statement
or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have
been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and
regulations of the Commission, shall file the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration
Statement and any amendments thereto became effective, at the date of this Agreement and at each Closing Date, the Registration
Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements
thereto, at time the Prospectus or any amendment or supplement thereto was issued and at each Closing Date, conformed and will
conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.


 






    	11



    	 



    

 


(g)              
Capitalization. The Company has not issued any capital stock since its most recently filed periodic report under
the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the
conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under
the Exchange Act, except as disclosed in the most recently filed periodic report under the Exchange Act. No Person has any right
of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by the Transaction Documents. Except as a result of the purchase and sale of the Shares or payment of the contractor invoices in
whole or in part in Shares in the ordinary course of business, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common
Stock or Common Stock Equivalents. The issuance and sale of the Shares will not obligate the Company to issue shares of Common
Stock or other securities to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all
federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors
or others is required for the issuance and sale of the Shares. There are no stockholders agreements, voting agreements or other
similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the
Company, between or among any of the Company’s stockholders.


 






    	12



    	 



    

 





(h)              
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to
file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together
with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject
to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect
at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.


 


(i)                
S-3 Eligibility. The Company meets the requirements for use of Form S-3 under the Securities Act including the transaction
requirements set forth in General Instruction 1.B.1 of such form.


 


(j)                
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date
hereof, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice (B) liabilities not required to
be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission and
(C) non-cash accounting measures that have effect of reducing shareholder equity, (iii) the Company has not altered its method
of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders
or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not
issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The
Company does not have pending before the Commission any request for confidential treatment of information. No event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to
the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.


 






    	13



    	 



    

 


(k)              
Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the
knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability
of any of the Transaction Documents or the Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected
to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has
been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or
any Subsidiary under the Exchange Act or the Securities Act.


 


(l)                
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of
the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s
or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company
or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no
executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract
or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer
does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company
and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment
and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 






    	14



    	 



    

 


(m)            
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of
its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree
or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance
or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to
taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except
in each case as could not have or reasonably be expected to result in a Material Adverse Effect.


 


(n)              
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued
by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as
described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a
Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice
of proceedings relating to the revocation or modification of any Material Permit.


 


(o)              
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property
owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company
and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries
and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with
GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and
the Subsidiaries are in compliance.


 


(p)              
Intellectual Property. The Company and its Subsidiaries own or possess adequate rights to use all patents, patent
applications, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, trademark registrations, service marks, service mark
registrations, trade names, mask work rights and other intellectual property necessary to carry on the business now operated by
it or proposed to be operated by it as described in the SEC Reports (collectively, “Intellectual Property”),
except where the lack of such ownership or rights to use would not have a Material Adverse Effect. Except as disclosed in the SEC
Reports, there is no litigation or other proceeding pending or, to the Company’s knowledge, threatened and no claims are
presently being asserted by any third party challenging or questioning the ownership, validity, or enforceability of the Company's
right to use or own any Intellectual Property or asserting that the use of the Company’s Intellectual Property by the Company
or the operation of the Company’s business infringes upon or misappropriates the Intellectual Property of any third party,
and the Company is unaware of any facts which would form a reasonable basis for any such claim. None of, and neither the Company
nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property has expired, terminated
or been abandoned, or is essential for the Company’s business and is expected to expire or terminate or be abandoned within
two (2) years from the date of this Agreement. Except as disclosed in the SEC Reports, the Company is not otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any of the Company's Intellectual Property or the operation
of the Company’s business. Except as disclosed in the SEC Reports, the Company is not otherwise aware of any facts or circumstances
which would render any of the Company's Intellectual Property invalid or inadequate to protect the interests of the Company therein,
or with respect to the patent applications contained in the Intellectual Property, unpatentable. Except as disclosed in the SEC
Reports, or as would not, individually or in the aggregate have a Material Adverse Effect, to the best of the Company’s knowledge,
(i) there is no infringement by third parties engaged in commercial activity of any Intellectual Property of the Company relating
to the Company’s business and (ii) there are no non-commercial activities being performed by any third parties which, upon
commercialization thereof, could reasonably be expected to infringe on the Intellectual Property of the Company. The Company and
its subsidiaries have taken all steps necessary to perfect its ownership of and interest in the Intellectual Property.


 






    	15



    	 



    

 


(q)              
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries
are engaged, including, but not limited to, directors and officers insurance coverage at least equal to $5,000,000. Neither the
Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without
a significant increase in cost.


 


(r)                
Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is
presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental
of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner,
in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option or incentive agreements
under any stock option or incentive plan of the Company.


 






    	16



    	 



    

 


(s)               
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all
applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of each Closing
Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient 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 GAAP 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 and the Subsidiaries have established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures
to ensure that information required to be disclosed by the Company in the reports 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. The
Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date,
the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange
Act 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 changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is
reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.


 


(t)                
Certain Fees. Except as set forth in the Prospectus Supplement and except for fees to be paid to the Placement Agent,
no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made
by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions
contemplated by the Transaction Documents.


 


(u)              
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for
the Shares, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company
Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.


 






    	17



    	 



    

 





(v)              
Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under
the Securities Act of any securities of the Company or any Subsidiary.


 


(w)            
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market. The Company is, and 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.


 


(x)              
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar
charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchaser as a result of
the Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including
without limitation as a result of the Company’s issuance of the Shares and the Purchaser’ ownership of the Shares.


 


(y)              
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided the Purchaser or
its agents or counsel with any information that it believes constitutes or might constitute material, non-public information
which is not otherwise disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchaser will rely
on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on
behalf of the Company to the Purchaser regarding the Company and its Subsidiaries, their respective businesses and the transactions
contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do 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, in light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made
any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth
in Section 3.2 hereof.


 






    	18



    	 



    

 


(z)               
No Integrated Offering. Assuming the accuracy of the Purchaser’ representations and warranties set forth in
Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this
offering of the Shares to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval
provisions of any Trading Market on which any of the securities of the Company are listed or designated.


 


(aa)           
Solvency. Based on the consolidated financial condition of the Company as of each Closing Date, after giving effect
to the receipt by the Company of the proceeds from the sale of the Shares hereunder, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).
The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one year from Initial Closing Date. The SEC Reports sets
forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the
Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any
liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance
with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 


(bb)          
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state
and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which
it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the
payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the
Company or of any Subsidiary know of no basis for any such claim.


 






    	19



    	 



    

 


(cc)           
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for
unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii)
made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties
or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made
by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material
respect any provision of FCPA.


 


(dd)         
Accountants. To the knowledge and belief of the Company, the Company’s accounting firm (i) is a registered
public accounting firm as required by the Exchange Act and (ii) has expressed , in the Company’s most recent Form 10-K, its
opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ended
December 31, 2013.


 


(ee)             Acknowledgment
Regarding Purchaser’s Purchase of Shares. The Company acknowledges and agrees that the Purchaser is acting
solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that the Purchaser is not acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions
contemplated thereby and any advice given by the Purchaser or any of its respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchaser’
purchase of the Shares. The Company further represents to the Purchaser that the Company’s decision to enter into this
Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.


 


(ff)            
Acknowledgement Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(e) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) the Purchaser
has not been asked by the Company to agree, nor has the Purchaser agreed, to desist from purchasing or selling, long and/or short,
securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Shares
for any specified term; (ii) past or future open market or other transactions by the Purchaser, specifically including, without
limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement
transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) the Purchaser, and
counter-parties in “derivative” transactions to which the Purchaser is a party, directly or indirectly, presently
may have a “short” position in the Common Stock, and (iv) the Purchaser shall not be deemed to have any affiliation
with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands
and acknowledges that (y) the Purchaser may engage in hedging activities at
various times during the period that the Shares are outstanding, and (z) such hedging activities (if any) could reduce the value
of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted.
The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.


 






    	20



    	 



    

 





(gg)          
Regulation M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken,
directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s
placement agent in connection with the placement of the Shares.


 


(hh)          
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration
(“FDA”) under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”)
that is manufactured, packaged, labeled, tested, distributed, sold, and/or marketed
by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”), such Pharmaceutical Product
is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance with all
applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices,
product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance
would not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action (including
any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the
Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling
and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or
withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii)
imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any
facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction
with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the
Company or any of its Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect.
The properties, business and operations of the Company have been and are being conducted in all material respects in accordance
with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit
the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed by the
Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed
to be developed by the Company.


 






    	21



    	 



    

 


(ii)              
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 


(jj)              
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.


 


(kk)          
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent
or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


(ll)              
Money Laundering. 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, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the
“Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company or any Subsidiary, threatened.


 


(mm)      
 Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted
(i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the
fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law.
No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted,
and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate
the grant of stock options with, the release or other public announcement of material information regarding the Company or its
Subsidiaries or their financial results or prospects.


 






    	22



    	 



    

 


3.2             
Representations and Warranties of the Purchaser. The Purchaser hereby represents
and warrants as of the date hereof and as of each Closing Date to the Company as follows (unless as of a specific date therein):


 


(a)               
Organization; Authority. The Purchaser is either an individual
or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation
or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and
to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and performance by the
Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of the
Purchaser. Each Transaction Document to which it is a party has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance with the
terms hereof, will constitute the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 


(b)               Understandings
or Arrangements. The Purchaser is acquiring the Shares as principal for its own account and has no direct or indirect
arrangement or understandings with any other persons to distribute or regarding the distribution of such Shares (this
representation and warranty not limiting the Purchaser’s right to sell the Shares pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state securities laws). The Purchaser is acquiring the
Shares hereunder in the ordinary course of its business.


 


(c)                Purchaser
Status. At the time the Purchaser was offered the Shares, it was, and as of each Closing Date, it will be an
“accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act.


 


(d)               Experience
of the  Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to
bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such
investment.


 






    	23



    	 



    

 


(e)               
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated
hereunder, the Purchaser has not, nor has any Person acting on behalf of or
pursuant to any understanding with the Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that
the Purchaser first received a term sheet (written or oral) from the Company
or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending
immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment
vehicle whereby separate portfolio managers manage separate portions of the
Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio
managers managing other portions of the Purchaser’s assets, the representation
set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment
decision to purchase the Shares covered by this Agreement. Other than to other Persons party to this Agreement, the
Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including
the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein
shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability
of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future.


 


(f)               
Access to Information. The Purchaser acknowledges that it has had the opportunity to review the Transaction Documents
(including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions
of the offering of the Shares and the merits and risks of investing in the Shares; (ii) access to information about the Company
and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate
its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. 
The Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided the
Purchaser with any information or advice with respect to the Shares nor is such information or advice necessary or desired. 
Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Shares
and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which the Purchaser
agrees need not be provided to it.  In connection with the issuance of the Shares to the Purchaser, neither the Placement
Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to the Purchaser.


 


The Company acknowledges
and agrees that the representations contained in Section 3.2 shall not modify, amend or affect the Purchaser’s right to
rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained
in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transaction contemplated hereby.


 






    	24



    	 



    

 


ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES


 


 





4.1             Registration
Statement. The Company shall use best efforts to keep a registration statement (including the Registration Statement) registering
the issuance or resale of the Shares (including the issuance of Overallotment Shares pursuant to the Overallotment Right) effective
during the term of the Overallotment Right.


 


4.2              Furnishing
of Information. Until the time that the Purchaser owns no Shares, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act.


 


4.3             
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares for
purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing
of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.


 


4.4             
Securities Laws Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City
time) on the Trading Day immediately following the date hereof, issue a press release disclosing the material terms of the transactions
contemplated hereby, and (b) file a Current Report on Form 8-K, including descriptions of the Transaction Documents or including
the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after
the issuance of such press release, the Company represents to the Purchaser that it shall have publicly disclosed all material,
non-public information delivered to the Purchaser by the Company or any of its Subsidiaries, or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. The Company and
the Purchaser shall consult with each other in issuing any other press releases
with respect to the transactions contemplated hereby. Notwithstanding the foregoing, the Company shall not publicly disclose the
name of the Purchaser, or include the name of the
Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent
of the Purchaser, except (a) as required by federal securities law in connection
with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or
Trading Market regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted
under this clause (b).


 


4.5             
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any
other Person, that the Purchaser is an “Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that the Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue
of receiving Shares under the Transaction Documents or under any other agreement between the Company and the Purchaser.


 






    	25



    	 



    

 


4.6             
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated
by the Transaction Documents, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will
provide the Purchaser or its agents or counsel with any information that the
Company believes constitutes material non-public information, unless prior thereto the
Purchaser shall have entered into a written agreement with the Company regarding the confidentiality and use of such information.
The Company understands and confirms that the Purchaser shall be relying on
the foregoing covenant in effecting transactions in securities of the Company.


 


4.7             
Use of Proceeds. Except as set forth in the Prospectus Supplement, the Company shall use the net proceeds from the
sale of the Shares hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion
of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior
practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation
or (d) in violation of FCPA or OFAC regulations.


 


4.8             
Indemnification of Purchaser. Subject to the provisions of this Section 4.8, the Company will indemnify and hold
the Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person
who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each,
a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages,
costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of
the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents
or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any
stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties
or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder
or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes
fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect
of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion
of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party,
in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but
only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction
Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein
shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities
the Company may be subject to pursuant to law.


 






    	26



    	 



    

 


4.9             
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue Shares pursuant to this Agreement. 


 


4.10         
Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the
Common Stock on the Trading Market on which it is currently listed, and concurrently with the Initial Closing, the Company shall
apply to list or quote all of the Shares on such Trading Market and use best efforts to promptly secure the listing of all of the
Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other
Trading Market, it will then use best efforts to include in such application all of the Shares, and will take such other action
as is necessary to cause all of the Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company
will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and
will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading
Market.


 


4.11         
[RESERVED]


 


4.12         
Subsequent Equity Sales.


 


(a)               
From the date hereof until 30 days after the Initial Closing Date, neither the Company nor any Subsidiary shall issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents
other than Exempt Issuances.


 


(b)              
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.


 


4.13         
[RESERVED].


 


4.14          Certain
Transactions and Confidentiality. The Purchaser covenants that
neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases
or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of
this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4. The
Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the
Company pursuant to the initial press release as described in Section 4.4, the
Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in
the Disclosure Schedules, if any. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to
the contrary, the Company expressly acknowledges and agrees that (i) the
Purchaser makes no representation, warranty or covenant hereby that it will
not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) the
Purchaser shall not be restricted or prohibited from effecting any
transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the
transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4 and (iii) the Purchaser shall not have
any duty of confidentiality to the Company or its Subsidiaries after the issuance of the initial press release as described
in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of the Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of the Purchaser’s assets, the covenant set
forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the
investment decision to purchase the Shares covered by this Agreement.


 






    	27



    	 



    

 


ARTICLE V.

MISCELLANEOUS


 


5.1             
Termination.  This Agreement may be terminated by the Purchaser, or terminated by the Company,
by written notice to the other parties, if the Initial Closing has not been consummated without breach hereof by the terminating
party on or before April 15, 2014; provided, however, that no such termination will affect the right of any party
to sue for any breach by any other party (or parties).


 


5.2             
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay
the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered
by the Company), stamp taxes and other taxes and duties levied in connection with the delivery of any Shares to the Purchaser.


 


5.3             
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and
the Prospectus Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof
and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.


 






    	28



    	 



    

 


5.4             
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, with confirmation of delivery, at the facsimile number set forth on the signature pages
attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile, with confirmation of delivery, at the facsimile number set forth on
the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading
Day, (c) upon delivery 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 attached hereto.


 


5.5             
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a
written instrument signed, in the case of an amendment, by the Company and the Purchaser or, in the case of a waiver, by the party
against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right.


 


5.6             
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not
be deemed to limit or affect any of the provisions hereof.


 





5.7             Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of
the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement (other than the Overallotment
Right, which shall be non-transferrable) to any Person to whom the Purchaser assigns or transfers any Shares, provided that such
transferee agrees in writing to be bound, with respect to the transferred Shares, by the provisions of the Transaction Documents
that apply to the “Purchaser.”


  


5.8             
No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto, the Placement Agent,
and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by,
any other Person, except as otherwise set forth in Section 4.8.


 


5.9             
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought
against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits
to the 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 herewith or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any
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 improper or is an inconvenient venue for such proceeding. 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 via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof, effective
upon receipt. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an action, suit or proceeding to enforce any provisions of the Transaction Documents, then,
in addition to the obligations of the Company under Section 4.8, the prevailing party in such action, suit or proceeding shall
be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.


 






    	29



    	 



    

 


5.10         
Survival. The representations and warranties contained herein shall survive the Closings and the delivery of the
Shares.


 


5.11         
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered
to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an original thereof.


 


5.12         
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or unenforceable.


 


5.13         
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any
similar provisions of) any of the other Transaction Documents, whenever the Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided,
then the Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future actions and rights.


 






    	30



    	 



    

 


5.14         
Replacement of Shares. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall
also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Shares.


 


5.15         
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery
of damages, the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations
contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any
such obligation the defense that a remedy at law would be adequate.


 


5.16         
Payment Set Aside. To the extent that the Company makes a payment or payments to the Purchaser pursuant to any Transaction
Document or the Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from,
disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person
under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action),
then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.


 


5.17         
Saturdays, Sundays, Holidays, etc.If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised
on the next succeeding Business Day.


 


5.18         
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments
thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be
subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
of the Common Stock that occur after the date of this Agreement.


 






    	31



    	 



    

 


5.19         
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ONE PARTY AGAINST THE
OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY,
UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. 


 


 


 


(Signature Pages Follow)


 






    	32



    	 



    

 


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


 


 





	NORTHWEST BIOTHERAPEUTICS, INC. 	 	Address for Notice:
	 	 	 
	By:	/s/ Linda F. Powers	 	
        4800 Montgomery Lane, Suite 800

	Name:  	Linda F. Powers	 	Bethesda, MD 20814
	Title:	Chairman & CEO	 	Fax: 240-497-4065
	 	 	 	 
	With a copy to (which shall not constitute notice):







  


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 






    	33



    	 



    

 


[PURCHASER SIGNATURE PAGES TO NWBO SECURITIES
PURCHASE AGREEMENT]


 


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


 








	Name of Purchaser: 	 






	 	 
	Signature of Authorized Signatory of Purchaser:	 






	 	 
	Name of Authorized Signatory: 	 






	 	 
	Title of Authorized Signatory: 	 






	 	 
	Email Address of Authorized Signatory:	



 


	 	 
	Facsimile Number of Authorized Signatory: 	 


 













Address for Notice to Purchaser:


 


 





Address for Delivery of Shares to Purchaser (if not same as
address for notice):


 


 





Subscription Amount: $15,000,000


 


Shares: 2,272,727


 


Overallotment Shares: 2,272,727


 


EIN Number: _______________________


 


 x
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of
the above-signed to purchase the securities set forth in this Agreement to be purchased
from the Company by the above-signed, and the obligations of the Company to sell such securities to the above-signed, shall
be unconditional and all conditions to Initial Closing shall be disregarded, (ii) the Initial Closing shall occur on the
third (3rd) Trading Day following the date of this Agreement and (iii) any condition to Initial Closing
contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or
the above-signed of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a
condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such
agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the Initial
Closing Date.


 






    	34



    	 



    

 











[SIGNATURE PAGES CONTINUE]


 






    	35