gncapurchaseagreement






                                                                                                       SECURITIES PURCHASE AGREEMENT          This Securities Purchase Agreement (this “Agreement”) is dated as of July 22, 2020 (the   “Effective Date”), among Genocea Biosciences, Inc., a Delaware corporation (the “Company”),   and each purchaser identified on the signature pages hereto (each a “Purchaser” and collectively   the “Purchasers”).         WHEREAS, the Company and the Purchasers are executing and delivering this Agreement   in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the   Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D as   promulgated by the United States Securities and Exchange Commission (the “Commission”) under   the Securities Act.          WHEREAS, each Purchaser wishes to purchase, and the Company wishes to sell, upon the   terms and conditions stated in this Agreement, (i) that aggregate number of shares of Common   Stock (the “Shares”) which aggregate amount for all Purchasers together shall be 21,390,904   Shares, (ii) at the Closing (as defined below) a warrant to acquire up to that number of additional   Shares set forth opposite such Purchaser’s name on Exhibit A (the “Closing Warrants”), in   substantially the form attached hereto as Exhibit B (as exercised, collectively, the “Closing   Warrant Shares”) and (iii) at the Closing (as defined below) a pre-funded warrant to acquire up  to that number of additional shares of Common Stock set forth opposite such Purchaser’s name on  Exhibit A  (the “Pre-Funded Warrants” and collectively with the Closing Warrants, the  “Warrants”), in substantially the form attached hereto as Exhibit C  (as exercised, collectively,  the “Pre-Funded Warrant Shares” and together with the Closing Warrant Shares, the “Warrant  Shares”). The Shares, the Warrants and the Warrant Shares collectively are referred to herein as  the “Securities”.           WHEREAS, in connection with the offering and sale of the Securities, the Company has   entered into an engagement letter dated July 8, 2020, (the “Engagement Letter”), with Stifel,   Nicolaus & Company, Incorporated (the “Placement Agent”).          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 each Purchaser, severally and not jointly, agree as follows:    1.    DEFINITIONS         1.1    Definitions. In addition to the terms defined elsewhere in this Agreement, the   following terms have the meanings set forth in this Section 1.1:          “Closing” means the closing of the purchase and sale of the Securities on the Closing Date   pursuant to Section 2.1 of this Agreement.          “Closing Date” means July 24, 2020.         “Closing Price” means $2.25 per share.                                            1.   84474864_12 





 






      “Common Stock” means the common stock of the Company, $0.001 par value per share,  and any other class of securities into which such securities may hereafter be reclassified or changed  into.         “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules  and regulations promulgated thereunder.        “GAAP” means U.S. generally accepted accounting principles consistently applied.         “Governmental Entity” shall mean any national, federal, state, county, municipal, local or  foreign government, or any political subdivision, court, body, agency or regulatory authority  thereof, and any person exercising executive, legislative, judicial, regulatory, taxing or  administrative functions of or pertaining to any of the foregoing.         “Investment Company Act” means the Investment Company Act of 1940, as amended.         “Material Adverse Effect” means a circumstance that (i) could reasonably be expected to  have a material adverse effect on the performance of this Agreement or the consummation of any  of the transactions contemplated hereby or (ii) could reasonably be expected to have a material  adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties  of the Company and its Subsidiary taken as a whole.          “Nasdaq” means The Nasdaq Capital Market.         “Person” means an individual, firm, corporation (including any non-profit corporation),  partnership, limited liability company, joint venture, association, trust, Governmental Entity or  other entity or organization.         “Pre-Funded Warrant Closing Price” means $2.25 per share, of which $2.24 per share  will be paid at Closing.         “Registration Statement” means a registration statement or registration statements of the  Company filed under the Securities Act pursuant to Section 4 hereof.         “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities  Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter  adopted by the Commission having substantially the same effect as such Rule.         “SEC Reports” means collectively all reports, schedules, forms, statements and other  documents required to be filed by the Company under the Exchange Act, including pursuant to  Section 13(a) or 15(d) thereof, since January 1, 2019 (including the exhibits thereto and documents  incorporated by reference therein).         “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO of the  Exchange Act, but shall be deemed to not include the location and/or reservation of borrowable  shares of Common Stock.                                          2.  84474864_12 





 






       “Subsidiary” means any individual or entity the Company wholly-owns or controls, or in   which the Company, directly or indirectly, owns a majority of the voting stock or similar voting   interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K   promulgated under the Securities Act.          “Trading Day” means a day on which the Common Stock is traded on a Trading Market.          “Trading Market” means the following markets or exchanges on which (and if) the   Common Stock is listed or quoted for trading on the date in question: the NYSE American; The   Nasdaq Capital Market; The Nasdaq Global Market; The Nasdaq Global Select Market; or the   New York Stock Exchange.          “Transaction Documents” means this Agreement, the Warrants and any other documents   or agreements executed and delivered to the Purchasers in connection with the transactions   contemplated hereunder.          “Transfer” means to voluntarily or involuntarily sell, mortgage, gift, assign, contribute,   transfer, assign, pledge, hypothecate, participate, donate or otherwise encumber or dispose of,   directly or indirectly, in any case, whether by merger, testamentary disposition, operation of Law  or otherwise, or enter into a definitive agreement with respect to any of the foregoing.   “Transfer”   used as a noun has a correlative meaning.  Notwithstanding the foregoing, each of the following   shall be deemed not to be a “Transfer” for the purposes of this Agreement:  (i) a pledge of or grant   of a security interest by a holder in any Securities beneficially owned by such holder, in connection   with such holder’s bona fide indebtedness for borrowed money, to any creditor, lender or other   person performing similar functions in the ordinary course of such creditor’s, lender’s or other   person’s business to which such pledge or grant is made, (ii) the exercise by any pledgee or grantee   described in the foregoing clause (i) of its rights to foreclose on or by similar remedy otherwise   acquire such shares, (iii) any transfer of any Securities by a Purchaser to an affiliate of such   Purchaser, but in the case of this clause (iii), only (1) if such affiliate agrees in writing prior to   such transfer for the express benefit of the Company (in form and substance reasonably satisfactory   to the Company and with a copy thereof to be furnished to the Company) to be bound by the terms   of this Agreement and (2) if such Purchaser and such affiliate agree in writing prior to such transfer   for the express benefit of the Company (in form and substance reasonably satisfactory to the   Company and with a copy thereof to be furnished to the Company) that such affiliate shall Transfer   the Securities so transferred back to such Purchaser or another affiliate of such Purchaser in   accordance with this clause at or before such time as such affiliate ceases to be an affiliate of the   Purchaser, and (iv) any transfer by a limited partner of equity interests in any person that holds a   direct or indirect interest in the Purchaser (or, to the extent any Securities are transferred to an   affiliate of the Purchaser, in such affiliate).    2.    PURCHASE AND SALE          2.1   Closing.                (a)   At the Closing, upon the terms set forth herein, the Company hereby agrees   to issue and sell to each Purchaser, and each Purchaser agrees to purchase from the Company,   severally and not jointly, the number of Shares set forth opposite such Purchaser’s name on   Exhibit A hereto, at a purchase price equal to the Closing Price per share of Common Stock.                                           3.   84474864_12 





 






            (b)   At the Closing, upon the terms set forth herein, the Company hereby agrees  to issue and sell to each Purchaser, and each Purchaser agrees to purchase from the Company,  severally and not jointly, a Warrant exercisable for a number of Warrant Shares set forth opposite  such Purchaser’s name on Exhibit A hereto, at a purchase price equal to $0.125 per Warrant Share.               (c)   At the Closing, upon the terms set forth herein, the Company hereby agrees  to issue and sell to certain Purchasers, and such Purchasers agree to purchase from the Company,  severally and not jointly, Pre-Funded Warrants set forth opposite such Purchaser’s name on  Exhibit A hereto, at a purchase price equal to the Pre-Funded Warrant Closing Price per Pre- Funded Warrant Share.               (d)   At the Closing, each Purchaser shall deliver to the Company via wire  transfer immediately available funds equal to the purchase price set forth opposite such Purchaser’s  name on Exhibit A hereto and the Company shall deliver to each Purchaser its respective  Securities in the amounts set forth opposite such Purchaser’s name on Exhibit A hereto, deliverable  at the Closing on the Closing Date, in accordance with Section 2.2 of this Agreement. The Closing  shall occur at 10:00 a.m. (New York City Time) on the Closing Date or such other time and  location as the parties shall mutually agree.         2.2   Deliveries; Closing Conditions.               (a)   At the Closing, the Company will deliver or cause to be delivered to each  Purchaser certificate(s) or book-entry shares representing the Common Stock, purchased by such  Purchaser, registered in such Purchaser’s name. Such delivery shall be against payment of the  purchase price therefor by such Purchaser by wire transfer of immediately available funds to the  Company in accordance with the Company’s written wiring instructions.                 (b)   At the Closing, the Company will deliver or cause to be delivered to each  Purchaser the Warrant purchased by such Purchaser registered in the Purchaser’s name. Such  delivery shall be against payment of the purchase price therefor by the Purchaser by wire transfer  of immediately available funds to the Company in accordance with the Company’s written wiring  instructions.               (c)   The respective obligations of the Company, on the one hand, and each  Purchaser, on the other hand, hereunder in connection with the Closing are subject to the following  conditions being met:                     (i)   the accuracy in all material respects on the Closing Date of the  representations and warranties contained herein (unless made as of a specified date therein) of the  Company (with respect to the obligations of the Purchasers) and the Purchasers (with respect to  the obligations of the Company);                     (ii)  all obligations, covenants and agreements of the Company (with  respect to the obligations of the Purchasers) and the Purchasers (with respect to the obligations of  the Company) required to be performed at or prior to the Closing Date shall have been performed  in all material respects;                                           4.  84474864_12 





 






                   (iii) the Purchasers shall have received a certificate of the Secretary of   the Company (a “Secretary’s Certificate”), dated as of the Closing Date in form and substance   reasonably satisfactory to the Purchasers;                      (iv)  the Purchasers shall have received a certificate signed by the Chief   Executive Officer of the Company (an “Officer’s Certificate”), dated as of the Closing Date in  form and substance reasonably satisfactory to the Purchasers;                     (v)   the Purchasers shall have received an opinion of Ropes & Gray LLP,  counsel for the Company (“Company Counsel”), dated as of the Closing Date, addressed to the  Purchasers and the Placement Agent, in a form reasonably satisfactory to the Purchasers.   3.    REPRESENTATIONS AND WARRANTIES          3.1   Representations and Warranties of the Company.  Other than the   representations contained in Section 3.1(u) and Section 3.1(v), except as set forth in the SEC   Reports, which disclosures serve to qualify these representations and warranties in their entirety,   the Company represents and warrants to the Purchasers and the Placement Agent that the   statements contained in this Section 3.1 are true and correct as of the date hereof and as of the   Closing Date:          (a)   The Company was not and is not an Ineligible Issuer (as defined in Rule 405 under   the Securities Act), without taking account of any determination by the Commission pursuant to   Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.          (b)   Each of the Company and its Subsidiary has been duly incorporated and is validly   existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered   or organized with full corporate power and authority to own or lease, as the case may be, and to   operate its properties and conduct its business, and to execute and deliver this Agreement and the   Warrants, to be dated as of the Closing Date. Each of the Company and its Subsidiary is duly   qualified to do business as a foreign corporation and is in good standing under the laws of each   jurisdiction which requires such qualification. The Company has no Subsidiaries except as set forth   on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31,   2019 filed with the SEC on February 13, 2020.          (c)   As of the date hereof, the authorized capital stock of the Company consists of   195,000,000 shares of capital stock, of which 170,000,000 are designated as Common Stock and   25,000,000 are designated as preferred stock, $0.001 par value per share. As of June 30, 2020: (i)   29,964,496 shares of Common Stock were issued and outstanding; (ii) 1,635 shares of preferred   stock was issued and outstanding; (iii) 2,417,098 shares of Common Stock were issuable (and such   number was reserved for issuance) upon exercise of options to purchase Common Stock   outstanding as of such date; and (iv) 5,122,183 shares of Common Stock were issuable (and such   number was reserved for issuance) upon exercise of warrants to purchase Common Stock   outstanding as of such date.          (d)   The outstanding shares of Common Stock have been duly and validly authorized   and issued and are fully paid and nonassessable; the Shares and the Warrant Shares have been duly   and validly authorized and, when issued and delivered to and paid for by the Purchasers pursuant                                          5.   84474864_12 





 






 to this Agreement, will be fully paid and nonassessable; the certificates for the securities are in   valid form; the holders of outstanding shares of capital stock of the Company are not entitled to   preemptive or other rights to subscribe for the Securities, except for any such rights as have been   effectively waived or complied with; and, except as set forth in Section 3.1(c) above, no options,   warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert   any obligations into or exchange any securities for, shares of capital stock of or ownership interests   in the Company are outstanding.          (e)   The Warrants have been duly authorized by the Company and, when executed and   delivered by the Company, will be valid and binding agreements of the Company, enforceable   against the Company in accordance with their terms, except as the enforcement thereof may be   limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or   affecting the rights and remedies of creditors or by general equitable principles; the Warrant Shares   have been duly authorized and validly reserved for issuance upon exercise of the Warrants; the   Warrant Shares, when issued and delivered upon exercise of the Warrants in accordance therewith,   will be validly issued, fully paid and nonassessable, and the issuance of the Warrant Shares is not   subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or   purchase the Warrant Shares.          (f)   This Agreement has been duly authorized by the Company and, when executed and   delivered by the Company, will be valid and binding agreements of the Company, enforceable   against the Company in accordance with its terms, except as the enforcement thereof may be   limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or   affecting the rights and remedies of creditors or by general equitable principles.          (g)   Neither the Company nor its Subsidiary is or, after giving effect to the offering and   sale of the Securities and the application of the proceeds thereof as described in Section 5.4 of this   Agreement, will be, an “investment company” or an entity “controlled” by an “investment   company,” as such terms are defined in the Investment Company Act.          (h)   No consent, approval, authorization, filing with or order of any court or   governmental agency or body is required in connection with the transactions contemplated herein,   except as may be required under the Securities Act or blue sky laws of any jurisdiction in   connection with the purchase of the Securities by the Purchasers.          (i)   Neither the issue and sale of the Securities, nor the consummation of any of the   other transactions herein contemplated nor the fulfillment of the terms hereof, will conflict with,   result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any   property or assets of the Company or its Subsidiary pursuant to, (i) the charter or by-laws of the  Company or its Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,  note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument  to which the Company or its Subsidiary is a party or bound or to which its property is subject, or  (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its  Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or  other authority having jurisdiction over the Company, its Subsidiary or any of their properties.         (j)   The Company’s Common Stock is registered under Section 12 of the Exchange  Act. The Company has filed all SEC Reports on a timely basis or has received a valid extension                                          6.   84474864_12 





 






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 Exchange Act and, in each case, to the rules promulgated thereunder, 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.         (k)   The financial statements and the related notes 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 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 the consolidated financial  position of the Company as of and for the dates thereof and the consolidated 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.         (l)   No action, suit or proceeding by or before any court or governmental agency,  authority or body or any arbitrator involving the Company, its Subsidiary or their property is  pending or, to the knowledge of the Company, threatened that is likely to have a Material Adverse  Effect, whether or not arising from transactions in the ordinary course of business.         (m)   The Company or its Subsidiary own or lease all such properties as are necessary to  the conduct of their operations as presently conducted in all material respects.         (n)   Neither the Company nor its Subsidiary is in violation or default of (i) any provision  of its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,  note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument  to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule,  regulation, judgment, order or decree of any court, regulatory body, administrative agency,  governmental body, arbitrator or other authority having jurisdiction over the Company, its  Subsidiary or any of their properties, as applicable, except in the case of clauses (ii) and (iii), as  would not reasonably be expected to have a Material Adverse Effect.         (o)   Ernst & Young LLP, who have certified certain financial statements of the  Company and delivered their report with respect to the audited financial statements included in the  SEC Reports, are independent public accountants with respect to the Company within the meaning  of the Securities Act and the applicable published rules and regulations thereunder.          (p)   There are no transfer taxes or other similar fees or charges under Federal law or the  laws of any state, or any political subdivision thereof, required to be paid in connection with the  execution and delivery of this Agreement, or the issuance by the Company or sale by the Company  of the Securities.         (q)   The Company has filed all tax returns that are required to be filed or has requested  extensions thereof (except in any case in which the failure so to file would not have a Material  Adverse Effect, whether or not arising from transactions in the ordinary course of business) and                                         7.  84474864_12 





 






has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against  it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine  or penalty that is currently being contested in good faith or as would not have a Material Adverse  Effect.         (r)   No labor problem or dispute with the employees of the Company or its Subsidiary  exists or, to the knowledge of the Company, is threatened or imminent, and the Company is not  aware of any existing or imminent labor disturbance by the employees of any of its principal  suppliers, contractors or customers, that could have a Material Adverse Effect, whether or not  arising from transactions in the ordinary course of business.         (s)   The Company and its Subsidiary are insured by insurers of recognized financial  responsibility against such losses and risks and in such amounts as the Company reasonably  believes are prudent and customary in the businesses in which they are engaged; all policies of  insurance and fidelity or surety bonds insuring the Company, its Subsidiary or their businesses,  assets, employees, officers and directors are in full force and effect; the Company and its  Subsidiary are in compliance with the terms of such policies and instruments in all material  respects; and there are no claims by the Company or its Subsidiary under any such policy or  instrument as to which any insurance company is denying liability or defending under a reservation  of rights clause. Neither the Company nor any such Subsidiary has been refused any insurance  coverage sought or applied for and neither the Company nor any such 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 at a cost that would not have a Material Adverse Effect, whether or not arising  in the ordinary course of business.         (t)   Each of the Company and its Subsidiary possess all licenses, certificates, permits  and other authorizations issued by all applicable authorities necessary to conduct its business, and  neither the Company nor its Subsidiary has received any notice of proceedings relating to the  revocation or modification of any such certificate, authorization or permit which, singly or in the  aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material  Adverse Effect.         (u)   Except as would not, individually or in the aggregate, result in a Material Adverse  Effect: (i) each of the Company and its Subsidiary is and has been in compliance with statutes,  laws, ordinances, rules and regulations applicable to it for the ownership, testing, development,  manufacture, packaging, processing, use, labeling, storage, or disposal of any product  manufactured by or on behalf of the Company and its Subsidiary or out-licensed by the Company  and its Subsidiary, including without limitation, the Federal Food, Drug, and Cosmetic Act, 21  U.S.C. § 301, et seq., the Public Health Service Act, 42 U.S.C. § 262, similar laws of other  Governmental Entities and the regulations promulgated pursuant to such laws (collectively,  “Applicable Laws”); (ii) each of the Company and its Subsidiary possess all licenses, certificates,  approvals, authorizations, permits and supplements or amendments thereto required by any such  Applicable Laws and/or for the ownership of its properties or the conduct of its business as  described in the SEC Reports (collectively, “Authorizations”) and such Authorizations are valid  and in full force and effect and the Company and its Subsidiary are not in violation of any term of  any such Authorizations; (iii) neither the Company nor its Subsidiary have received any written                                         8.  84474864_12 





 






 notice of adverse finding, warning letter or other written correspondence or notice from the U.S.   Food and Drug Administration (“FDA”) or any other Governmental Entity alleging or asserting  noncompliance with any Applicable Laws or Authorizations; (iv) neither the Company nor its   Subsidiary have received notice of any ongoing claim, action, suit, proceeding, hearing,   enforcement, investigation, arbitration or other action from any Governmental Entity or third party   alleging that any product, operation or activity is in violation of any Applicable Laws or   Authorizations or has any knowledge that any such Governmental Entity or third party is   considering any such claim, litigation, arbitration, action, suit, investigation or proceeding, nor, to   the best of the Company’s knowledge, has there been any noncompliance with or violation of any   Applicable Laws by the Company or its Subsidiary that could reasonably be expected to require   the issuance of any such written notice or result in an investigation, corrective action, or   enforcement action by FDA or similar Governmental Entity; (v) neither the Company nor its   Subsidiary have received notice that any Governmental Entity has taken, is taking or intends to   take action to limit, suspend, modify or revoke any Authorizations or has any knowledge that any   such Governmental Entity has threatened or is considering such action; and (vi) the Company and   its Subsidiary have filed, obtained, maintained or submitted all reports, documents, forms, notices,   applications, records, claims, submissions and supplements or amendments as required by any   Applicable Laws or Authorizations and that all such reports, documents, forms, notices,   applications, records, claims, submissions and supplements or amendments were complete, correct   and not misleading on the date filed (or were corrected or supplemented by a subsequent   submission). To the Company’s knowledge, none of the Company, its Subsidiary or any of their   respective directors, officers, employees or agents, has made, or caused the making of, any false   statements on, or material omissions from, any other records or documentation prepared or   maintained to comply with the requirements of the FDA or any other Governmental Entity.          (v)   The pre-clinical and clinical studies and tests conducted by the Company have been   and, if still pending, are being conducted in all material respects pursuant to all Applicable Laws   and Authorizations; the descriptions of the results of such clinical studies and tests contained in   the SEC Reports are accurate and complete in all material respects and fairly present the data   derived from such clinical studies and tests; the Company is not aware of any clinical studies or   tests, the results of which the Company believes reasonably call into question the research,   nonclinical or clinical study or test results; and the Company has not received any written notices   or correspondence from any Governmental Entity requiring the termination, suspension or material   modification of any clinical study or test conducted by or on behalf of the Company other than  verbal notification from the FDA that the agency has completed its review of the Company’s  Investigational New Drug (“IND”) Application for GEN-011 and that it has placed the IND on  clinical hold.         (w)   The Company and its Subsidiary own, possess, license or otherwise have sufficient  rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade  and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets,  technology, know-how and other intellectual property (collectively, the “Intellectual Property”)   necessary for the conduct of their businesses as now conducted or as proposed in the SEC Reports   to be conducted.  (a) There are no rights of third parties to any material Intellectual Property; (b)   there is no material infringement by third parties of any such Intellectual Property; (c) there is no   pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by   others challenging the Company’s or its Subsidiary’s rights in or to any such Intellectual Property,                                          9.   84474864_12 





 






and the Company is unaware of any facts which would form a reasonable basis for any such claim;  (d) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding  or claim by others challenging the validity or scope of any such Intellectual Property, and the  Company is unaware of any facts which would form a reasonable basis for any such claim; (e)  there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or  claim by others that the Company or its Subsidiary infringes or otherwise violates any patent,  trademark, copyright, trade secret or other proprietary rights of others, and the Company is  unaware of any act which would form a reasonable basis for any such claim; (f) to the knowledge  of the Company, there is no U.S. patent which contains claims that dominate or may dominate any  Intellectual Property described in the SEC Reports owned by or licensed to the Company or its  Subsidiary or that interferes with the issued claims of any such Intellectual Property; and (g) there  is no prior art of which the Company is aware that may render any U.S. patent held by the Company  or its Subsidiary invalid or any U.S. patent application held by the Company or its Subsidiary  unpatentable which has not been disclosed to the U.S. Patent and Trademark Office.         (x)   The Company (i) does not have any material lending or other relationship with any  bank or lending affiliate of the Placement Agent and (ii) does not intend to use any of the proceeds  from the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of the  Placement Agent.         (y)   The Company maintains 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 generally accepted accounting principles and to  maintain accountability for assets; (iii) access to assets is permitted only in accordance with  management’s general or specific authorization; and (iv) the recorded accountability for assets is  compared with the existing assets at reasonable intervals and appropriate action is taken with  respect to any differences. The Company’s internal controls over financial reporting are effective  and the Company is not aware of any material weakness in its internal controls over financial  reporting.         (z)   The Company maintains “disclosure controls and procedures” (as such term is  defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are  effective.         (aa)  Neither the Company nor its Subsidiary nor, to the knowledge of the Company, any  director, officer, agent, employee or affiliate of the Company or its Subsidiary has taken, directly  or indirectly, without giving effect to activities by the Placement Agent, any action designed to or  that would constitute or that might reasonably be expected to cause or result in, under the Exchange  Act or otherwise, stabilization or manipulation of the price of any security of the Company to  facilitate the sale or resale of the Securities.         (bb)  The Company and its Subsidiary (i) are in compliance with any and all applicable  foreign, federal, state and local laws and regulations relating to the protection of human health and  safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants  (“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or  other approvals required of them under applicable Environmental Laws to conduct their respective                                        10.  84474864_12 





 






businesses and (iii) have not received notice of any actual or potential liability under any  environmental law, except where such non-compliance with Environmental Laws, failure to  receive required permits, licenses or other approvals, or liability would not, individually or in the  aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary  course of business. Neither the Company nor its Subsidiary been named as a “potentially  responsible party” under the Comprehensive Environmental Response, Compensation, and  Liability Act of 1980, as amended.         (cc)  In the ordinary course of its business, the Company periodically reviews the effect  of Environmental Laws on the business, operations and properties of the Company and its  Subsidiary, in the course of which it identifies and evaluates associated costs and liabilities  (including, without limitation, any capital or operating expenditures required for clean-up, closure  of properties or compliance with Environmental Laws, or any permit, license or approval, any  related constraints on operating activities and any potential liabilities to third parties). On the basis  of such review, the Company has reasonably concluded that such associated costs and liabilities  would not, singly or in the aggregate, have a Material Adverse Effect, whether or not arising from  transactions in the ordinary course of business.         (dd)  None of the following events has occurred or exists: (i) a failure to fulfill the  obligations, if any, under the minimum funding standards of Section 302 of the United States  Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations  and published interpretations thereunder with respect to a Plan that is required to be funded,  determined without regard to any waiver of such obligations or extension of any amortization  period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of  Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental  agency or any foreign regulatory agency with respect to the employment or compensation of  employees by any of the Company or its Subsidiary that would reasonably be expected to have a  Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation of law or  applicable qualification standards, with respect to the employment or compensation of employees  by the Company or its Subsidiary that could have a Material Adverse Effect; or (iv) a non-exempt  prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code  with respect to any Plan that could have a Material Adverse Effect. None of the following events  has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of  contributions required to be made to all Plans in the current fiscal year of the Company compared  to the amount of such contributions made in the most recently completed fiscal year of the  Company; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within  the meaning of FASB Accounting Standards Codification Topic 715-30) of the Company or its  Subsidiary as compared to the amount of such obligations in the most recently completed fiscal  year of the Company; (iii) any event or condition giving rise to a liability under Title IV of ERISA  that would reasonably be expected to have a Material Adverse Effect; or (iv) the filing of a claim  by one or more employees or former employees of the Company or its Subsidiary related to their  employment that would reasonably be expected to have a Material Adverse Effect. For purposes  of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA)  subject to Title IV of ERISA with respect to which the Company or its Subsidiary may have any  liability.                                         11.  84474864_12 





 






       (ee)  There is and has been no failure on the part of the Company, its Subsidiary and any  of their respective directors or officers, in their capacities as such, to comply with any provision  of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection  therewith (the “Sarbanes-Oxley Act”), including Section 402 relating to loans.         (ff)  Neither the Company nor its Subsidiary nor, to the knowledge of the Company, any  director, officer, agent, employee or affiliate of the Company or its Subsidiary is aware of or has  taken any action, directly or indirectly, while acting on behalf of the Company or its Subsidiary,  that would result in a violation by such Persons of the Foreign Corrupt Practices Act of 1977, as  amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation,  making use of the mails or any means or instrumentality of interstate commerce corruptly in  furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or  other property, gift, promise to give, or authorization of the giving of anything of value to any  “foreign official” (as such term is defined in the FCPA) or any foreign political party or official  thereof or any candidate for foreign political office, in contravention of the FCPA; and the  Company and its Subsidiary and, to the knowledge of the Company, their respective affiliates have  conducted their businesses in compliance with the FCPA and have instituted and maintain policies  and procedures designed to ensure, and which are reasonably expected to continue to ensure,  continued compliance therewith.          (gg)  The operations of the Company and its Subsidiary are and have been conducted at  all times in compliance with applicable financial recordkeeping and reporting requirements and  the money laundering statutes and the rules and regulations thereunder and any related or similar  rules, regulations or guidelines, issued, administered or enforced by any governmental agency  (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 its  Subsidiary with respect to the Money Laundering Laws is pending or, to the Company’s  knowledge, threatened.         (hh)  Neither the Company nor its Subsidiary nor, to the knowledge of the Company, any  director, officer, agent, employee or affiliate of the Company or its Subsidiary (i) is currently  subject to any sanctions administered or imposed by the United States (including any administered  or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”))   or (ii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise   make available such proceeds to any subsidiary, joint venture partner or other Person in any   manner that will result in a violation of any economic sanctions imposed by the United States   (including any administered or enforced by OFAC, the U.S. Department of State, or the Bureau of   Industry and Security of the U.S. Department of Commerce), the United Nations Security Council,   the European Union, or the United Kingdom (including sanctions administered or controlled by   Her Majesty’s Treasury) (collectively, “Sanctions” and such Persons, “Sanction Persons”) by, or   could result in the imposition of Sanctions against, any Person (including any Person participating   in the offering, whether as underwriter, advisor, investor or otherwise).          (ii)  Neither the Company nor its Subsidiary nor, to the knowledge of the Company, any   director, officer, agent, employee or affiliate of the Company or its Subsidiary, is a Person that is,   or is 50% or more owned or otherwise controlled by a Person that is: (i) the subject of any   Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose                                         12.   84474864_12 





 






government is, the subject of Sanctions that broadly prohibit dealings with that country or territory  (currently, Cuba, Iran, North Korea, Syria and the Crimea Region of the Ukraine) (collectively,  “Sanctioned Countries” and each, a “Sanctioned Country”).         (jj)  The Company and its Subsidiary have not engaged in any dealings or transactions  with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding  3 years, nor does the Company or its Subsidiary have any plans to increase its dealings or  transactions with Sanctioned Persons, or with or in Sanctioned Countries.         (kk)  The Common Stock is listed on the Nasdaq. Neither the Company nor its Subsidiary  have taken any action designed to, or likely to have the effect of, terminating the registration of  the Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq, nor  has the Company or its Subsidiary received any notification that the Commission or the Nasdaq is  contemplating terminating such registration or listing. To the Company’s knowledge, it is in  compliance with all applicable listing requirements of the Nasdaq.         (ll)  Neither the Company nor its Subsidiary, nor any of their affiliates or any other  Person acting on the their behalf, has directly or indirectly engaged in any form of general  solicitation or general advertising with respect to the Securities, nor have any of such Persons made  any offers or sales of any security of the Company, its Subsidiary, or any of their affiliates or  solicited any offers to buy any security of the Company, or any of the Company’s or any affiliates  under circumstances that would require registration of the Securities under the Securities Act or  any other securities laws or cause this offering of Securities to be integrated with any prior offering  of securities of the Company for purposes of the Securities Act in any manner that would affect  the validity of the private placement exemption under the Securities Act for the offer and sale of  the Securities hereunder.         (mm)  The Company shall, at all times while any Warrants are outstanding, use  commercially reasonable efforts to maintain a registration statement covering the resale of the  Warrant Shares upon exercise of the Warrants such that the Warrant Shares, when issued, will not  be subject to resale and restrictions under the Securities Act except to the extent that the Warrant  Shares are owned by affiliates.         (nn)  No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the 1933  Act (a “Disqualification Event”) is applicable to the Company or, to the Company’s knowledge,  any Company Covered Person (as defined below), except for a Disqualification Event as to which  Rule 506(d)(2)(ii–iv) or (d)(3), is applicable. “Company Covered Person” means, with respect to  the Company as an “issuer” for purposes of Rule 506 promulgated under the 1933 Act, any Person  listed in the first paragraph of Rule 506(d)(1).         (oo)  The Company shall file a Form D with respect to the Securities as required under  Regulation D and, to the extent the Form D is not publicly available on the Commission’s EDGAR  reporting system, will provide a copy thereof to each Purchaser promptly after such filing. The  Company, on or before the Closing Date, shall take such action as the Company shall reasonably  determine is necessary in order to obtain an exemption for or to qualify the Securities for sale to  the Purchasers at the Closing, pursuant to this Agreement under applicable securities or blue sky  laws of the states of the United States (or to obtain an exemption from such qualification), and, if  requested by a Purchaser, shall provide evidence of any material action so taken to such Purchaser                                        13.  84474864_12 





 






 on or prior to the Closing Date. The Company shall make all filings and reports relating to the   offer and sale of the Securities required under applicable securities or blue sky laws of the states   of the United States following the Closing Date.          (pp)  Assuming the accuracy of the Purchasers’ representations and warranties set forth   in Section 3.2 of this Agreement, no registration under the Securities Act is required for the offer   and sale of the Securities by the Company to the Purchasers hereunder.          (qq)  The Company is not, and has never been, an issuer identified in, or subject to, Rule   144(i).             3.2   Representations, Warranties and Covenants of the Purchasers.  Each   Purchaser, for itself and for no other Purchaser, hereby represents, warrants and covenants to the   Company and the Placement Agent as of the Closing:                (a)   Such Purchaser has all requisite legal and corporate or other power and   capacity and has taken all requisite corporate or other action to execute and deliver this Agreement,   to purchase the Securities and to carry out and perform all of its obligations under this Agreement;   and (b) this Agreement constitutes the legal, valid and binding obligation of such Purchaser,  enforceable against such Purchaser in accordance with its terms, except (i) as limited by applicable  bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of  creditors’ rights generally and (ii) as limited by equitable principles generally.               (b)   At the time such Purchaser was offered the Securities, it was, and as of the  date hereof it is, and on the date on which it exercises any Warrants, it will be either: (i) an  “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the  Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the  Securities Act. Such Purchaser is aware of the Company’s business affairs and financial condition  and has had access to and has acquired sufficient information about the Company to reach an  informed and knowledgeable decision to acquire the Securities. Such Purchaser has such business  and financial experience as is required to give it the capacity to protect its own interests in  connection with the purchase of the Securities.  Such Purchaser acknowledges that it has had the  opportunity to review the Company’s filings with the Commission 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  Securities and the merits and risks of investing in the Securities and (ii) 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.                (c)   Such Purchaser is purchasing the Securities, and upon exercise of the  Warrants will acquire the Warrant Shares issuable upon exercise of the Warrants, for its own  account, for investment purposes only, and not with a present view to, or for, resale, distribution  or fractionalization thereof, in whole or in part (within the meaning of the Securities Act) in  violation of the Securities Act. Such Purchaser understands that its acquisition of the Securities  has not been registered under the Securities Act or registered or qualified under any state securities  law in reliance on specific exemptions therefrom, which exemptions may depend upon, among                                         14.   84474864_12 





 






other things, the bona fide nature of such Purchaser’s investment intent as expressed herein. Such  Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or  solicit any offers to buy, purchase or otherwise acquire or take a pledge of) the Securities except  in compliance with the Securities Act and the rules and regulations promulgated thereunder.               (d)   Such Purchaser represents and acknowledges that is has not been solicited  to offer to purchase or to purchase any Securities by means of any general solicitation or  advertising within the meaning of Regulation D under the Securities Act.               (e)   Such Purchaser represents that it is not a Person of the type described in  Section 506(d) of Regulation D under the Securities Act that would disqualify the Company from  engaging in a transaction pursuant to Section 506 of Regulation D under the Securities Act.                (f)   Such Purchaser understands that the Securities being offered and sold to it  in reliance on specific exemptions from the registration requirements of United States federal and  state securities laws and that the Company is relying in part upon the truth and accuracy of, and  such Purchaser’s compliance with, the representations, warranties, agreements,  acknowledgements and understandings of such Purchaser set forth herein in order to determine the  availability of such exemptions and the eligibility of such Purchaser to acquire the Securities.  Such  Purchaser further acknowledges and understands that the Securities may not be resold or otherwise  transferred except in a transaction registered under the Securities Act or unless an exemption from  such registration is available.               (g)   Such Purchaser understands that nothing in this Agreement or any other  materials presented to the Purchaser in connection with the purchase and sale of the Securities  constitutes legal, tax or investment advice.  Such Purchaser has consulted such legal, tax and  investment advisors and made such investigations as such Purchaser, in its sole discretion, has  deemed necessary or appropriate in connection with its purchase of the Securities.    Such  Purchaser hereby acknowledges and agrees that it has independently evaluated the merits of its  decision to purchase the Securities, and that (a) the Placement Agent is acting solely as placement  agent in connection with the execution, delivery and performance of this Agreement and is not  acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary  for such Purchaser, the Company or any other person or entity in connection with the execution,  delivery and performance of this Agreement, (b) the Placement Agent has not made and will not  make any representation or warranty, whether express or implied, of any kind or character and has  not provided any advice or recommendation in connection with the execution, delivery and  performance of this Agreement, (c) the Placement Agent will not have any responsibility with  respect to (i) any representations, warranties or agreements made by any person or entity under or  in connection with the execution, delivery and performance of this Agreement, or the execution,  legality, validity or enforceability (with respect to any person) thereof, or (ii) the business, affairs,  financial condition, operations, properties or prospects of, or any other matter concerning the  Company, and (d) the Placement Agent will not have any liability or obligation (including without  limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments,  awards, liabilities, costs, expenses or disbursements incurred by such Purchaser, the Company or  any other person or entity), whether in contract, tort or otherwise, to such Purchaser, or to any  person claiming through it, in respect of the execution, delivery and performance of this  Agreement.                                        15.  84474864_12 





 






            (h)   Dispositions. As of the Closing Date, such Purchaser has not directly or  indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such  Purchaser, engaged in any purchases or sales of the Company’s securities (including, without  limitation, any Short Sales involving the Company’s securities) since the time that such Purchaser  was first contacted by the Company, the Placement Agent or any other Person regarding the  transactions contemplated hereby. Such Purchaser covenants that neither it nor any Person acting  on its behalf or pursuant to any understanding with it will engage in any purchases or sales of the  Company’s securities (including, without limitation, any Short Sales involving the Company’s  securities) prior to the public announcement of the Press Release (as defined below).               (i)   Such Purchaser has independently evaluated the merits of its decision to  purchase Securities pursuant to this Agreement. Such Purchaser understands that nothing in this  Agreement or any other materials presented to such Purchaser in connection with the purchase and  sale of the Securities constitutes legal, tax or investment advice.               (j)   Such Purchaser will hold in confidence all information concerning this  Agreement and the sale and issuance of the Securities until the Company has made a public  announcement of the Press Release, which shall be made not later than 9:00 am New York time  on the first Trading Day immediately after the signing of this Agreement.               (k)   Purchaser understands that no United States federal or state agency or any  other government or governmental agency has passed upon or made any recommendation or  endorsement of the Securities.               (l)   Legend.                     (i)   Such Purchaser understands that the Securities shall bear a  restrictive legend in substantially the following form (and a stop transfer order may be placed  against Transfer of the certificates for the Securities):         “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT        BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS        AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED        STATES OR IN ANY OTHER JURISDICTION. THE SECURITIES        REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR        TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION        STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES        LAWS UNLESS OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN        AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS        OF THOSE LAWS.                     (ii)  The Company shall, at its sole expense, upon appropriate notice  from any Purchaser stating that Registrable Shares have been sold pursuant to an effective  Registration Statement, timely prepare and deliver certificates or book-entry shares representing  the Securities to be delivered to a transferee pursuant to the Registration Statement, which  certificates or book-entry shares shall be free of any restrictive legends and in such denominations  and registered in such names as such Purchaser may request. Further, the Company shall, at its  sole expense, cause its legal counsel or other counsel satisfactory to the transfer agent: (i) while                                        16.  84474864_12 





 






 the Registration Statement is effective, to issue to the transfer agent a “blanket” legal opinion to   allow sales without restriction pursuant to the effective Registration Statement, and (ii) provide all   other opinions as may reasonably be required by the transfer agent in connection with the removal   of legends. A Purchaser may request that the Company remove, and the Company agrees to   authorize the removal of, the legend from such Securities, following the delivery by a Purchaser   to the Company or the Company’s transfer agent of a legended certificate representing such Shares:   (i) following any sale of such Securities pursuant to Rule 144, (ii) if such Securities are eligible   for sale under Rule 144(b)(1), or (iii) following the time that the Registration Statement is declared   effective. If a legend removal request is made pursuant to the foregoing, the Company will, no   later than two Trading Days following the delivery by a Purchaser to the Company or the   Company’s transfer agent of a legended certificate representing such Securities (or a request for   legend removal, in the case of Securities issued in book-entry form), deliver or cause to be   delivered to such Purchaser a certificate representing such Securities that is free from all restrictive   legends or an equivalent book-entry position, as requested by the Purchaser. Certificates for   Securities free from all restrictive legends may be transmitted by the Company’s transfer agent to   the Purchasers by crediting the account of the Purchaser’s prime broker with the Depository Trust   Company (“DTC”) as directed by such Purchaser. The Company warrants that the Securities shall   otherwise be freely transferable on the books and records of the Company as and to the extent   provided in this Agreement. If a Purchaser effects a Transfer of the Securities in accordance with   Section 3.2(l)(ii), the Company shall permit the transfer and shall promptly instruct its transfer   agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC   in such name and in such denominations as specified by such Purchaser to effect such transfer.   Such Purchaser hereby agrees that the removal of the restrictive legend pursuant to this Section   3.2(l)(ii) is predicated upon the Company’s reliance that such Purchaser will sell any such   Securities pursuant to either the registration requirements of the Securities Act, including any   applicable prospectus delivery requirements, or an exemption therefrom.                  (m)   Immediately prior to the Closing, such Purchaser, together with its affiliates   and any other Persons acting as a group together with such Purchaser and any of its affiliates,   beneficially owned the number of shares of Common Stock set forth on such Purchaser’s signature   page attached hereto (as such ownership is calculated pursuant to the rules of Nasdaq).                  (n)   If such Purchaser is not a United States person (as defined by Section   7701(a)(30) of the Code), such Purchaser hereby represents that it has satisfied itself as to the full   observance of the laws of its jurisdiction in connection with any invitation to subscribe for the   Securities or any use of this Agreement, including (a) the legal requirements within its jurisdiction   for the purchase of the Securities, (b) any foreign exchange restrictions applicable to such purchase   or acquisition, (c) any government or other consents that may need to be obtained, and (d) the   income tax and other tax consequences, if any, that may be relevant to the purchase, holding,   redemption, sale or transfer of the Securities. Such Purchaser’s subscription and payment for and   continued beneficial ownership of the Securities will not violate any applicable securities or other   laws of such Purchaser’s jurisdiction.                (o)   Such Purchaser hereby acknowledges and agrees that such Purchaser has  received and reviewed the disclosure set forth on Schedule 3.2(o) hereto a reasonable time prior  to the time that such Purchaser has agreed to purchase the Securities.                                          17.   84474864_12 





 






 4.    REGISTRATION RIGHTS          4.1   Definitions. For the purpose of this Section 4:                (a)   the term “Resale Registration Statement” shall mean any registration   statement required to be filed by Section 4.2 below, and shall include any preliminary prospectus,  final prospectus, exhibit or amendment included in or relating to such registration statements; and                (b)   the term “Registrable Shares” means the Shares and the Warrant Shares;   provided, however, that a security shall cease to be a Registrable Share upon the earliest to occur  of the following: (i) a Resale Registration Statement registering such security under the Securities  Act has been declared or becomes effective and such security has been sold or otherwise  transferred by the holder thereof pursuant to and in a manner contemplated by such effective  Resale Registration Statement, (ii) such security is sold pursuant to Rule 144 under circumstances  in which any legend borne by such security relating to restrictions on transferability thereof, under   the Security Act or otherwise, is removed by the Company, (iii) such security is eligible to be sold   pursuant to Rule 144 without condition or restriction, including without any limitation as to volume   of sales, and without the Holder complying with any method of sale requirements or notice   requirements under Rule 144, or (iv) such security shall cease to be outstanding following its   issuance.          4.2   Registration Procedures and Expenses. The Company shall:                (a)   use commercially reasonable efforts to file a Resale Registration Statement   (the “Mandatory Registration Statement”) with the Commission on or before the date 30 days   following the Closing Date (the “Filing Date”) to register all of the Registrable Shares on Form   S-3 under the Securities Act (providing for shelf registration of such Registrable Shares under   Commission Rule 415). In the event that Form S-3 is not available for the registration of the   Registrable Shares, the Company shall register the resale of the Registrable Shares on such other   form as is available to the Company;                (b)   use its commercially reasonable efforts to cause such Mandatory   Registration Statement to be declared effective within 30 days following the Filing Date (or, in the   event the Staff reviews and has written comments to the Mandatory Registration Statement, within   120 days following the Filing Date) (the earlier of the foregoing or the applicable date set forth in   Section 4.2(h), the “Effectiveness Deadline”), such efforts to include, without limiting the  generality of the foregoing, preparing and filing with the Commission any financial statements or  other information that is required to be filed prior to the effectiveness of such Mandatory  Registration Statement;               (c)   notwithstanding anything contained in this Agreement to the contrary, in  the event that the Commission limits the amount of Registrable Shares or otherwise requires a  reduction in the number of Registrable Shares that may be included and sold by the Purchasers in  the Mandatory Registration Statement (in each case, subject to Section 4.3), then the Company  shall prepare and file (i) within 10 Trading Days of the first date or time that such excluded  Registrable Shares may then be included in a Resale Registration Statement if the Commission  shall have notified the Company that certain Registrable Shares were not eligible for inclusion in  the Resale Registration Statement or (ii) in all other cases, within 20 days following the date that                                         18.   84474864_12 





 






 the Company becomes aware that such additional Resale Registration Statement is required (the   “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration   Statement registering such excluded Registrable Shares, an “Additional Registration Statement”   and, together with the Mandatory Registration Statement, a “Resale Registration Statement”) to   register any Registrable Shares that have been excluded (or, if applicable, the maximum number   of such excluded Registrable Shares that the Company is permitted to register for resale on such   Additional Registration Statement consistent with Commission guidance), if any, from being   registered on the Mandatory Registration Statement;                (d)   use its commercially reasonable efforts to cause any such Additional   Registration Statement to be declared effective as promptly as practicable following the Additional   Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and   filing with the Commission any financial statements or other information that is required to be   filed prior to the effectiveness of any such Additional Registration Statement;                (e)   prepare and file with the Commission such amendments and supplements   to such Resale Registration Statements and the prospectus used in connection therewith as may be   necessary to keep such Resale Registration Statements continuously effective and free from any   material misstatement or omission to state a material fact therein until termination of such   obligation as provided in Section 4.6 below, subject to the Company’s right to suspend pursuant   to Section 4.5;                (f)   furnish to the Purchasers such number of copies of prospectuses in   conformity with the requirements of the Securities Act and such other documents as the Purchasers   may reasonably request, in order to facilitate the public sale or other disposition of all or any of   the Registrable Shares by the Purchasers;                (g)   file such documents as may be required of the Company for normal   securities law clearance for the resale of the Registrable Shares in such states of the United States   as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to   maintain such blue sky qualifications during the period the Company is required to maintain   effectiveness of the Resale Registration Statements; provided, however, that the Company shall   not be required in connection with this Section 4.2(g) to qualify as a foreign corporation or execute  a general consent to service of process in any jurisdiction in which it is not now so qualified or has  not so consented;               (h)   upon notification by the Commission that the Resale Registration Statement  will not be reviewed or is not subject to further review by the Commission, the Company shall  within three Trading Days following the date of such notification request acceleration of such  Resale Registration Statement (with the requested effectiveness date to be not more than two  Trading Days later);               (i)   upon notification by the Commission that that the Resale Registration  Statement has been declared effective by the Commission, the Company shall file the final  prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period  prescribed by Rule 424;               (j)   advise the Purchasers promptly:                                         19.   84474864_12 





 






                   (i)   of the effectiveness of the Resale Registration Statement or any   post-effective amendments thereto;                      (ii)  of any request by the Commission for amendments to the Resale   Registration Statement or amendments to the prospectus or for additional information relating   thereto;                      (iii) of the issuance by the Commission of any stop order suspending the   effectiveness of the Resale Registration Statement under the Securities Act or of the suspension   by any state securities commission of the qualification of the Registrable Shares for offering or   sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and                     (iv)  of the existence of any fact and the happening of any event that  makes any statement of a material fact made in the Resale Registration Statement, the prospectus  and amendment or supplement thereto, or any document incorporated by reference therein, untrue,  or that requires the making of any additions to or changes in the Resale Registration Statement or  the prospectus in order to make the statements therein not misleading;               (k)   cause all Registrable Shares to be listed on each securities exchange, if any,  on which equity securities by the Company are then listed; and               (l)   bear all expenses in connection with the procedures in paragraphs (a)   through (l) of this Section 4.2 and the registration of the Registrable Shares on such Resale  Registration Statement and the satisfaction of the blue sky laws of such states.         4.3   Rule 415; Cutback.                If at any time the staff of the Commission (“Staff”) takes the position that the   offering of some or all of the Registrable Shares in a Registration Statement is not eligible to be   made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act   or requires any Purchaser to be named as an “underwriter,” the Company shall (in consultation   with legal counsel to the lead Purchaser) use its commercially reasonable efforts to persuade the   Commission that the offering contemplated by the Registration Statement is a valid secondary   offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none   of the Purchasers is an “underwriter.” In the event that, despite the Company’s commercially   reasonable efforts and compliance with the terms of this Section 4.3, the Staff refuses to alter its   position, the Company shall (i) remove from the Registration Statement such portion of the   Registrable Shares (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations   on the registration and resale of the Registrable Shares as the Staff may require to assure the   Company’s compliance with the requirements of Rule 415 (collectively, the “SEC Restrictions”);   provided, however, that the Company shall not agree to name any Purchaser as an “underwriter”   in such Registration Statement without the prior written consent of such Purchaser. Any cutback   imposed on the Purchasers pursuant to this Section 4.3 shall be allocated among the Purchasers   on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers   holding a majority of the Registrable Shares otherwise agree. No liquidated damages shall accrue   as to any Cut Back Shares until such date as the Company is able to effect the registration of such   Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction   Termination Date” of such Cut Back Shares). From and after the Restriction Termination Date                                         20.   84474864_12 





 






 applicable to any Cut Back Shares, all of the provisions of this Section 4 shall again be applicable   to such Cut Back Shares; provided, however, that (x) the Filing Deadline for the Registration   Statement including such Cut Back Shares shall be 10 Trading Days after such Restriction   Termination Date, and (y) the Effectiveness Deadline with respect to such Cut Back Shares shall   be the 90th day immediately after the Restriction Termination Date or the 120th day if the Staff  reviews such Registration Statement (but in any event no later than three Trading Days from the  Staff indicating it has no further comments on such Registration Statement).          4.4   Indemnification.               (a)   The Company agrees to indemnify and hold harmless each Purchaser and  its affiliates, partners, members, officers, directors, agents and representatives, and each Person, if  any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section  20 the Exchange Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the  fullest extent permitted by applicable law, from and against any losses, claims, damages or  liabilities (collectively, “Losses”) to which they may become subject (under the Securities Act or  otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are  based upon, any (i) material breach of this Agreement by the Company, (ii) breach of  representation, warranty, covenant or agreement made by or to be performed on the part of the  Company under this Agreement or (iii) any untrue statement or alleged untrue statement of a  material fact contained in the Resale Registration Statement or any omission or alleged omission  to state therein a material fact required to be stated therein or necessary to make the statements  therein, in light of the circumstances under which they were made, not misleading or arise out of  any failure by the Company to fulfill any undertaking included in the Resale Registration  Statement and the Company will, as incurred, reimburse the Purchaser Parties for any legal or  other expenses reasonably incurred in investigating, defending or preparing to defend any such  action, proceeding or claim; provided, however, that the Company shall not be liable in any such  case to the extent that such Loss arises out of, or is based upon: (i) an untrue statement or omission  or alleged untrue statement or omission made in such Resale Registration Statement in reliance  upon and in conformity with written information furnished to the Company by or on behalf of such  Purchaser specifically for use in preparation of the Resale Registration Statement; or (ii) any  breach of this Agreement by such Purchaser; provided further, however, that the Company shall  not be liable to any Purchaser Party (or any partner, member, officer, director or controlling Person  of the Purchasers) to the extent that any such Loss is caused by an untrue statement or omission or  alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) such  Purchaser failed to send or deliver a copy of the final prospectus with or prior to, or such Purchaser  failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with  Rule 172 of the Securities Act), the delivery of written confirmation of the sale by such Purchaser  to the Person asserting the claim from which such Loss resulted and (B) the final prospectus  corrected such untrue statement or omission, (ii) (X) such untrue statement or omission is corrected  in an amendment or supplement to the prospectus and (Y) having previously been furnished by or  on behalf of the Company with copies of the prospectus as so amended or supplemented or notified  by the Company that such amended or supplemented prospectus has been filed with the  Commission, in accordance with Rule 172 of the Securities Act, such Purchaser thereafter fails to  deliver such prospectus as so amended or supplemented, with or prior to or a Purchaser fails to  confirm that the prospectus as so amended or supplemented was deemed to be delivered prior to  (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the                                         21.   84474864_12 





 






 sale by such Purchaser to the Person asserting the claim from which such Loss resulted or (iii)   such Purchaser sold Registrable Shares in violation of such Purchasers’ covenants contained in   Section 3.2 of this Agreement.               (b)   Each Purchaser agrees, severally and not jointly, to indemnify and hold  harmless the Company and its officers, directors, affiliates, agents and representatives and each  Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act  or Section 20 of the Exchange Act (each a “Company Party” and collectively the “Company   Parties”), from and against any Losses to which the Company Parties may become subject (under   the Securities Act or otherwise), insofar as such Losses (or actions or proceedings in respect   thereof) arise out of, or are based upon, any (i) material breach of this Agreement by such   Purchaser, (ii) breach of representation, warranty, covenant or agreement made by or to be   performed on the part of such Purchaser under this Agreement or (iii) untrue statement or alleged   untrue statement of a material fact contained in the Resale Registration Statement (or any omission   or alleged omission to state therein a material fact required to be stated therein or necessary to   make the statements therein, in light of the circumstances under which they were made, not   misleading in each case, on the effective date thereof), if, and only to the extent, such untrue   statement or omission or alleged untrue statement or omission was made in reliance upon and in   conformity with written information furnished by or on behalf of such Purchaser specifically for   use in preparation of the Resale Registration Statement, and each Purchaser, severally and not   jointly, will reimburse each Company Party for any legal or other expenses reasonably incurred in   investigating, defending or preparing to defend any such action, proceeding or claim; provided,   however, that in no event shall any indemnity under this Section 4.4(b) be greater in amount than   the dollar amount of the net proceeds received by such Purchaser upon its sale of the Registrable   Shares included in the Registration Statement giving rise to such indemnification obligation.                (c)   Promptly after receipt by any indemnified Person of a notice of a claim or   the beginning of any action in respect of which indemnity is to be sought against an indemnifying   Person pursuant to this Section 4.4, such indemnified Person shall notify the indemnifying Person   in writing of such claim or of the commencement of such action, and, subject to the provisions   hereinafter stated, in case any such action shall be brought against an indemnified Person and such  indemnifying Person shall have been notified thereof, such indemnifying Person shall be entitled  to participate therein, and, to the extent that it shall wish, to assume the defense thereof, with  counsel reasonably satisfactory to such indemnified Person. After notice from the indemnifying  Person to such indemnified Person of its election to assume the defense thereof, such indemnifying  Person shall not be liable to such indemnified Person for any legal expenses subsequently incurred   by such indemnified Person in connection with the defense thereof; provided, however, that if there   exists or shall exist a conflict of interest that would make it inappropriate in the reasonable   judgment of the indemnified Person for the same counsel to represent both the indemnified Person   and such indemnifying Person or any affiliate or associate thereof, the indemnified Person shall be   entitled to retain its own counsel at the expense of such indemnifying Person; provided, further,   that no indemnifying Person shall be responsible for the fees and expense of more than one separate   counsel for all indemnified parties. The indemnifying party shall not settle an action without the   consent of the indemnified party, which consent shall not be unreasonably withheld.                (d)   If after proper notice of a claim or the commencement of any action against   the indemnified party, the indemnifying party does not choose to participate, then the indemnified                                         22.   84474864_12 





 






party shall assume the defense thereof and upon written notice by the indemnified party requesting  advance payment of a stated amount for its reasonable defense costs and expenses, the  indemnifying party shall advance payment for such reasonable defense costs and expenses (the  “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified  party’s actual defense costs and expenses exceed the amount of the Advance Indemnification  Payment, then upon written request by the indemnified party, the indemnifying party shall  reimburse the indemnified party for such difference; in the event that the Advance Indemnification  Payment exceeds the indemnified party’s actual costs and expenses, the indemnified party shall  promptly remit payment of such difference to the indemnifying party.               (e)   If the indemnification provided for in this Section 4.4 is held by a court of  competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims,  damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such  indemnified party thereunder, shall to the extent permitted by applicable law contribute to the  amount paid or payable by such indemnified party as a result of such loss, claim, damage or  liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party  on the one hand and of the indemnified party on the other, as well as any other relevant equitable  considerations; provided, that in no event shall any contribution by an indemnifying party  hereunder be greater in amount than the dollar amount of the proceeds received by such  indemnifying party upon the sale of such Registrable Shares.         4.5   Prospectus Suspension. Each Purchaser acknowledges that there may be times  when the Company must suspend the use of the prospectus forming a part of the Resale  Registration Statement until such time as an amendment to the Resale Registration Statement has  been filed by the Company and declared effective by the Commission, or until such time as the  Company has filed an appropriate report with the Commission pursuant to the Exchange Act. Each  Purchaser hereby covenants that it will not sell any Registrable Shares pursuant to said prospectus  during the period commencing at the time at which the Company gives the Purchasers notice of  the suspension of the use of said prospectus and ending at the time the Company gives the  Purchasers notice that the Purchasers may thereafter effect sales pursuant to said prospectus;  provided, that such suspension periods shall in no event exceed 30 days in any 12 month period  and that, in the good faith judgment of the Company’s board of directors, the Company would, in  the absence of such delay or suspension hereunder, be required under state or federal securities  laws to disclose any corporate development, a potentially significant transaction or event involving  the Company, or any negotiations, discussions, or proposals directly relating thereto, in either case  the disclosure of which would reasonably be expected to have a material adverse effect upon the  Company or its stockholders.         4.6   Termination of Obligations. The obligations of the Company pursuant to  Section 4.2 hereof shall cease and terminate, with respect to any Registrable Shares, upon the  earlier to occur of (a) such time such Registrable Shares have been resold, or (b) such time as such  Registrable Shares no longer remain Registrable Shares pursuant to Section 4.1(b) hereof.                                         23.  84474864_12 





 






      4.7   Reporting Requirements.               (a)   With a view to making available the benefits of certain rules and regulations  of the Commission that may at any time permit the sale of the Securities to the public without  registration or pursuant to a registration statement on Form S-3, the Company agrees to use:                     (i)   make and keep public information available, as those terms are  understood and defined in Rule 144;                     (ii)  file with the Commission in a timely manner all reports and other  documents required of the Company under the Securities Act and the Exchange Act; and                     (iii) so long as a Purchaser owns Registrable Shares, to furnish to such  Purchaser upon request (A) a written statement by the Company as to whether it is in compliance  with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, or whether  it is qualified as a registrant whose securities may be resold pursuant to Commission Form S-3,  (B) a copy of the most recent annual or quarterly report of the Company and such other reports  and documents so filed by the Company and (C) such other information as may be reasonably  requested to permit the Purchaser to sell such securities pursuant to Rule 144.         4.8   Blue Sky. The Company shall obtain and maintain all necessary blue sky law  permits and qualifications, or secured exemptions therefrom, required by any state for the offer  and sale of Registrable Shares.   5.    OTHER AGREEMENTS OF THE PARTIES         5.1   Integration. Except as contemplated by the terms of this Agreement, 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  Securities such that the rules of Nasdaq would require shareholder approval of this transaction  prior to the closing of such other transaction unless shareholder approval is obtained before the  closing of such subsequent transaction.         5.2   Restrictions on Transfers and Issuances.               (a)   Starting from the date hereof and until 30 (thirty) days from the date hereof,  the Company shall not Transfer any securities to any other Person pursuant to (i) that certain  Purchase Agreement, dated as of October 23, 2019, by and between the Company and Lincoln  Park Capital Fund, LLC or (ii) that certain Sales Agreement, dated March 2, 2015, by and between  the Company and Cowen and Company, LLC (as amended).               (b)   Starting from the date hereof and until the Closing Date, the Company shall  not subdivide its shares of capital stock of the same class as the Securities, by split-up or otherwise,  or combine such shares of capital stock, or issue additional shares of capital stock as a dividend  with respect to any shares of such capital stock.         5.3   Securities Laws Disclosure; Publicity.  The Company shall: (a) issue a press  release disclosing the material terms of the transactions contemplated hereby not later than 9:00                                        24.  84474864_12 





 






 am New York time on the first Trading Day immediately following the execution and delivery   hereof (the “Press Release”), and (b) by 5:30 p.m. (New York City time) on the fourth business   day following the date hereof, file a Current Report on Form 8-K disclosing the material terms of   the transactions contemplated hereby (the “Form 8-K”).  From and after the issuance of the Press   Release, no Purchaser shall be in possession of any material, non-public information received from   the Company or any of their respective officers, directors or employees that is not disclosed in the   Press Release, other than the Non-Public Clinical Data Information (as defined in Section 5.4).           5.4   Non-Public Information.  Except with respect to the material terms and conditions   of the transactions contemplated by the Transaction Documents (the “Non-Public Transaction   Information”) and certain clinical data communicated to those Purchasers who received it via   netroadshow (the “Non-Public Clinical Data Information”), the Company covenants and agrees   that neither it nor any other Person acting on its behalf will provide any Purchaser or its agents or   counsel with any information that the Company believes constitutes material non-public   information.  The Company covenants and agrees that it will publicly disclose the Non-Public   Clinical Data Information by no later than July 31, 2020.          5.5   Use of Proceeds. The Company will use the proceeds from the offering to support   the ongoing clinical studies of the GEN-009 and GEN-011 programs and the development of other   programs, as well as for working capital and other general corporate purposes.          5.6   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 the Shares and the Warrant Shares pursuant to any exercise of the Warrants.          5.7   Exercise Floor Price. From the date hereof through July 24, 2021, for so long as   any Closing Warrants are outstanding, unless or until the Company obtains the approval of its   stockholders providing for the issuance of all of the Closing Warrant Shares (without regard to any   limitation on exercise included in the Closing Warrants) without the need for any Exercise Floor   Price (as defined in the Closing Warrants) in accordance with the rules and regulations of Nasdaq   (the “Stockholder Approval”), the Company shall not take any action if the effect of such action   would be to cause the Exercise Price (as defined in the Closing Warrants) to be reduced below the   Exercise Floor Price without giving effect to the application of any Exercise Floor Price.    6.    MISCELLANEOUS          6.1   Termination. This Agreement may be terminated by any Purchaser, as to such   Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations   between the Company and the other Purchasers, by written notice to the other parties, if the Closing   has not been consummated within ten calendar days from the Effective Date through no fault of   such Purchaser; provided, however, that no such termination will affect the right of any party to   sue for any breach by the other party (or parties).          6.2   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. Notwithstanding the                                         25.   84474864_12 





 






 foregoing, the Company shall pay all transfer agent fees, stamp taxes and other taxes and duties   levied in connection with the delivery of any Securities to the Purchasers.          6.3   Entire Agreement.  The Transaction Documents, together with the exhibits and   schedules thereto, contain the entire understanding of the parties with respect to the subject matter   hereof and supersede all prior agreements and understandings, oral or written, with respect to such   subject matter, which the parties acknowledge have been merged into such documents, exhibits   and schedules.          6.4   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   upon actual receipt via mail, courier or confirmed email 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.          6.5   Amendments; Waivers.  No provision of this Agreement may be waived or   amended except in a written instrument signed, in the case of an amendment, by (a) the Company   and (b) Purchasers holding at least a majority of the Securities sold in the Closing (as a single class   on an as-converted to Common Stock basis) and then-held by a 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.         6.6   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.         6.7   Successors and Assigns.  This Agreement shall be binding upon and inure to the  benefit of the parties and their permitted successors and assigns.  The Company may not assign  this Agreement or any rights or obligations hereunder without the prior written consent of each  Purchaser (other than by merger).  The Purchasers may not assign this Agreement or any rights or  obligations hereunder without the prior written consent of the Company (other than by merger).         6.8   Third-Party Beneficiaries.  The Placement Agent shall be the third party  beneficiary of the representations and warranties of the Company in Section 3.1 and the  representations, warranties and covenants of the Purchasers in Section 3.2. This Agreement is  intended for the benefit of the parties hereto and their respective permitted successors and 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 this Section 6.8.         6.9   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, employees or agents) shall be commenced exclusively in the state                                         26.   84474864_12 





 






and federal courts sitting in the State of New York. Each party hereby irrevocably submits to the  exclusive jurisdiction of the state and federal courts sitting in the State of New York 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.  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  or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party  in such action 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.         6.10  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  on this Agreement is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format  data file, such signature shall create a legally 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.         6.11  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.         6.12  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 any 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 such 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.         6.13  Replacement of Securities.  If any certificate or instrument evidencing any  Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in                                        27.  84474864_12 





 






 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 and customary and   reasonable indemnity or bond, if requested.  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 Securities.         6.14  Remedies.  The Company shall be entitled to exercise all rights provided herein or  granted by law, including recovery of damages, for any breach of the Transaction Documents.           6.15  Independent Nature of Purchasers’ Obligations and Rights.  The obligations of   each Purchaser under any Transaction Document are several and not joint with the obligations of   any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non- performance of the obligations of any other Purchaser under any Transaction Document.  Nothing  contained herein or in any other Transaction Document, and no action taken by any Purchaser  pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a  joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way  acting in concert or as a group with respect to such obligations or the transactions contemplated  by the Transaction Documents.  Each Purchaser shall be entitled to independently protect and  enforce its rights, including without limitation, the rights arising out of this Agreement or out of  the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined  as an additional party in any proceeding for such purpose.         6.16  Construction. The parties agree that each of them and/or their respective counsel   has 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   hereto.          6.17  WAIVER OF JURY TRIAL.  IN ANY ACTION, SUIT, OR PROCEEDING IN  ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY 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.                       [Remainder of page intentionally left blank.]                                                                                                            28.   84474864_12 





 






      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.                                        GENOCEA BIOSCIENCES, INC.                                                                              By:   /s/ Diantha Duvall                                                      Name: Diantha Duvall                                     Title: Chief Financial Officer                                                                                                                                                  [Signature Page to the Purchase Agreement] 





 






   PURCHASERS:            AVORO LIFE SCIENCES FUND LLC      By:   /s/ Scott Epstein  Name: Scott Epstein  Title: CFO & CCO                                                            





 






                 PURCHASERS:                                        NEW ENTERPRISE ASSOCIATES 16, L.P.                                         By:   /s/ Louis S. Citron                   Name: Louis S. Citron                  Title: Chief Legal Officer                        [Signature Page to the Purchase Agreement] 





 






                   PURCHASERS:            M. KINGDON OFFSHORE MASTER     FUND L.P.             By:   /s/ William Walsh      Name: William Walsh     Title: Chief Financial Officer                         30. 





 






                                   PURCHASERS:                                      CITADEL MULTI-STRATEGY EQUITIES                  MASTER FUND LTD.                  By: Citadel Advisors LLC, its portfolio manager                                     By:   /s/ Christopher L. Ramsay                  Name: Christopher L. Ramsay                  Title: Authorized Signatory    [Signature Page to Purchase Agreement] 





 






                                     PURCHASERS:                                        ECOR1 CAPITAL FUND QUALIFIED, LP                                        By:   /s/ Oleg Nodelman                   Name: Oleg Nodelman                   Title: Manager, EcoRI Capital LLC, as GP                                                                                    [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        ECOR1 CAPITAL FUND, LP                                        By:   /s/ Oleg Nodelman                   Name: Oleg Nodelman                   Title: Manager, EcoRI Capital LLC, as GP                        [Signature Page to the Purchase Agreement] 





 






                 PURCHASERS:                                        BIOTECHNOLOGY VALUE FUND, L.P.                                        By:   /s/ Mark Lampert                   Name: Mark Lampert                  Title: Chief Executive Officer BVF I GP LLC,                          itself General Partner of Biotechnology                         Value Fund, L.P.                             [Signature Page to the Purchase Agreement] 





 






                 PURCHASERS:                                        BIOTECHNOLOGY VALUE FUND II, L.P.                                        By:   /s/ Mark Lampert                   Name: Mark Lampert                  Title: Chief Executive Officer BVF II GP                          LLC, itself General Partner of                         Biotechnology Value Fund, L.P.                      [Signature Page to the Purchase Agreement] 





 






                 PURCHASERS:                                        BIOTECHNOLOGY VALUE TRADING                   FUND OS, L.P.                                        By:   /s/ Mark Lampert                   Name: Mark Lampert                  Title: President BVF Inc., itself General                          Partner of BVF Partners LP, itself Sole                         Member BVF Partners OS, Ltd., itself                         General Partner Biotechnology Value                         Trading Fund OS, L.P.                                                       [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        MSI BVF SPV L.L.C.                                        By:   /s/ Mark Lampert                   Name: Mark Lampert                  Title: President BVF Inc., itself General                          Partner of BVF Partners LP, itself                         Attorney- In-Fact MSI BVF SPV,                        L.L.C.                            [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        SR ONE LTD.                    By:   /s/ Simeon J. George                   Name: Simeon J. George                   Title: CEO, Sr One Ltd.                                                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        LINCOLN PARK CAPITAL FUND, LLC                                        By:   /s/ Joshua Sheinfeld                   Name: Joshua Sheinfeld                   Title: President                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        PONTIFAX (CAYMAN) V L.P.                                        By:   /s/ Asaf Shinar                   Name: Asaf Shinar                   Title: CFO                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        PONTIFAX (ISRAEL) V L.P.                                        By:   /s/ Asaf Shinar                   Name: Asaf Shinar                   Title: CFO                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        PONTIFAX (CHINA) V L.P.                                        By:   /s/ Asaf Shinar                   Name: Asaf Shinar                   Title: CFO                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        PONTIFAX LATE STAGE FUND L.P.                                        By:   /s/ Asaf Shinar                   Name: Asaf Shinar                   Title: CFO                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        BOXER CAPITAL, LLC                                        By:   /s/ Aaron Davis                   Name: Aaron Davis                    Title: Chief Executive Officer                        [Signature Page to the Purchase Agreement] 





 






                                     PURCHASERS:                                        MVA INVESTORS, LLC                                       By:   /s/ Aaron Davis                   Name: Aaron Davis                    Title: Chief Executive Officer    [Signature Page to the Purchase Agreement] 





 






                                              EXHIBIT A                                          CLOSING SCHEDULE                                      Purchase Price     Pre-        Purchase       Closing      Purchase                          Shares of   for Common       Funded     Price for Pre- Warrants to    Price for                          Common          Stock       Warrants      Funded           be         Closing                         Stock to be                    to be      Warrants      Purchased     Warrants          Name           Purchased                    Purchased  Avoro Life Sciences      5,084,184  $11,439,414.00  11,722,538 $26,258,485.12   16,806,722  $2,184,873.86  Fund LLC  New Enterprise           3,151,260   $7,090,335.00           -              -    3,151,260    $409,663.80  Associates 16, L.P.  Biotechnology Value      1,403,335   $3,157,503.75     284,862    $638,090.88    1,691,465    $219,890.45  Fund, L.P.  Biotechnology Value        983,197   $2,212,193.25     174,151    $390,098.24    1,234,286    $160,457.18  Fund II, L.P.  Biotechnology Value        165,239     $371,787.75      37,426     $83,834.24      208,701     $27,131.13  Trading Fund OS, L.P.  MSI BVF SPV L.L.C.          99,489     $223,850.25       3,561      $7,976.64       16,808      $2,185.04  Pontifax (Cayman) V        305,039     $686,337.75           -              -      305,039     $39,655.07  L.P.  Pontifax (Israel) V L.P. 1,142,018   $2,569,540.50           -              -    1,142,018    $148,462.34  Pontifax (China) V L.P.    443,698     $998,320.50           -              -      443,698     $57,680.74  Pontifax Late Stage        210,084     $472,689.00           -              -      210,084     $27,310.92  Fund L.P.  EcoR1 Capital Fund       1,775,000   $3,993,750.00           -              -    1,775,000    $230,750.00  Qualified, LP  EcoR1 Capital Fund, LP     325,840     $733,140.00           -              -      325,840     $42,359.20  Citadel Multi-Strategy   1,680,672   $3,781,512.00           -              -    1,680,672    $218,487.36  Equities Master Fund  Ltd.  Boxer Capital, LLC       1,134,453   $2,552,519.25           -              -    1,134,453    $147,478.89  MVA Investors, LLC         126,050     $283,612.50           -              -      126,050      $16,386.5  M. Kingdon Offshore      1,260,504   $2,836,134.00           -              -    1,260,504    $163,865.52  Master Fund L.P.                                                                                          SR One Ltd.              1,260,504   $2,836,134.00           -              -    1,260,504    $163,865.52  Lincoln Park Capital       840,336   $1,890,756.00           -              -      840,336    $109,243.68  Fund, LLC                                                             31.      84474864_12 





 






                                 EXHIBIT B                                                                  FORM OF CLOSING WARRANT                                                                                                              32.  84474864_12 





 






 NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS   EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE   COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON   AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS   AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED   OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT   UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,   OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF   THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES   LAWS.     CLASS C WARRANT NO. 2020-[______]               NUMBER OF SHARES:  [_______]  DATE OF ISSUANCE:  July [__], 2020                  (subject to adjustment hereunder)  EXPIRATION DATE: July [__], 2024                      CLASS C WARRANT TO PURCHASE SHARES                              OF COMMON STOCK OF                            GENOCEA BIOSCIENCES, INC.        This Class C Warrant (the “Warrant”) is issued by Genocea Biosciences, Inc., a Delaware  corporation (the “Company”), to [________], or its registered assigns (including any successors   or assigns, the “Holder”), and is subject to the terms and conditions set forth below. The Warrant   is being issued pursuant to that certain Securities Purchase Agreement dated as of July [__], 2020,  among the Company and the purchasers signatory thereto (the “Purchase Agreement”). Capitalized   terms used and not otherwise defined herein shall have the meanings set forth in the Purchase   Agreement.        1.   EXERCISE OF WARRANT.            (a)  Number and Exercise Price of Warrant Shares; Expiration Date. Subject to the  terms and conditions set forth herein, the Holder is entitled to purchase from the Company up to   [______] shares of the Company’s Common Stock, $0.001 par value per share (the “Common   Stock”) (as adjusted from time to time pursuant to the provisions of this Warrant) (the “Warrant   Shares”), at a purchase price of $2.25 per share (the “Exercise Price”), on or before 5:00 p.m. New   York City time on July [__], 2024 (the “Expiration Date”).             (b)  Method of Exercise.  While this Warrant remains outstanding and exercisable in   accordance with Section 1(a) above, the Holder may exercise this Warrant in whole or in part in   accordance with Section 5 by either:                                          1 





 






               (1)  wire transfer to the Company or cashier’s check drawn on a United States  bank made payable to the order of the Company, or                  (2)  exercising of the right to credit the Exercise Price against the Fair Market  Value (as defined below) of the Warrant Shares (as defined below) at the time of exercise (the   “Net Exercise”) pursuant to Section 1(c).             (c)  Net Exercise. If at any time after the Effectiveness Deadline there is no effective  Resale Registration Statement registering the resale of the Warrant Shares by the Holder, then the   Holder may elect to exercise this Warrant by Net Exercise pursuant to this Section 1(c). At any   time that this Warrant may be exercised by Net Exercise pursuant to this Section 1(c), if the   Company shall receive written notice from the Holder at the time of exercise of this Warrant that   the Holder elects to Net Exercise the Warrant, the Company shall deliver to such Holder (without   payment by the Holder of any exercise price in cash) that number of Warrant Shares computed   using the following formula:                                            Y (A - B)                                        X =                                          A         Where               X =   The number of Warrant Shares to be issued to the Holder.               Y =   The number of Warrant Shares purchasable under this Warrant or, if only                    a portion of the Warrant is being exercised, the portion of the Warrant                    being cancelled (at the date of such calculation).               A =   The Fair Market Value of one share of Common Stock (at the date of such                    calculation).                B =   The Exercise Price (as adjusted to the date of such calculations).                The “Fair Market Value” of one share of Common Stock shall mean (x) the last   reported sale price and, if there are no sales, the last reported bid price, of the Common Stock on   the last trading day prior to the date of exercise on the trading market on which the Common   Stock is listed as reported by Bloomberg Financial Markets (or a comparable reporting service of   national reputation selected by the Company and reasonably acceptable to the Holder if   Bloomberg Financial Markets is not then reporting sales prices of the Common Stock)   (collectively, “Bloomberg”), or (y) if the foregoing does not apply, the last sales price of such  security in the over-the-counter market on the pink sheets by Pink Sheets LLC (formerly the  National Quotation Bureau, Inc.) (the “pink sheets”) or bulletin board for such security as  reported by Bloomberg, or if no sales price is so reported, the last bid price of the Common   Stock as reported by Bloomberg or (z) if the fair market value cannot be calculated on any of the                                        -2-





 






 foregoing bases, the fair market value determined by the Company’s Board of Directors in good   faith.              (d)  Disputes.  In the case of a dispute as to the determination of the Exercise Price  or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to the   Holder the number of Warrant Shares that are not disputed.             (e)  Deemed Exercise.  In the event that immediately prior to the close of business  on the Expiration Date, the Fair Market Value of one share of Common Stock (as determined in   accordance with Section 1(c) above) is greater than the then applicable Exercise Price, this Warrant   shall be deemed to be automatically exercised on a net exercise issue basis pursuant to Section   1(c) above, and the Company shall deliver the applicable number of shares of Common Stock to   the Holder pursuant to the provisions of Section 1(c) above and this Section 1(e).  Notwithstanding   anything to the contrary contained in this Section 1(e), to the extent that the Holder’s right to   receive shares of Common Stock upon such a net exercise would result in the Holder and its   affiliates exceeding the Beneficial Ownership Limitation, if applicable pursuant to Section 5(c)   herein, then the Holder shall not be entitled to such shares of Common Stock to the extent of the   Beneficial Ownership Limitation (and shall not be entitled to beneficial ownership of such shares   of Common Stock (and beneficial ownership) to the extent of any such excess) and the portion of   such shares of Common Stock shall be held in abeyance for the benefit of the Holder until such   time or times, if ever, as its right thereto would not result in the Holder and its affiliates exceeding   the Beneficial Ownership Limitation, at which time or times the Holder shall be granted such   shares of Common Stock to the same extent as if there had been no such limitation).        2.   CERTAIN ADJUSTMENTS.            (a)  Adjustment of Number of Warrant Shares and Exercise Price. The number and  kind of Warrant Shares purchasable upon exercise of this Warrant and the Exercise Price shall be  subject to adjustment from time to time as follows:                   (1)  Subdivisions, Combinations and Other Issuances.  If the Company shall at   any time after the Date of Issuance but prior to the Expiration Date subdivide its shares of capital  stock of the same class as the Warrant Shares, by split-up or otherwise, or combine such shares of   capital stock, or issue additional shares of capital stock as a dividend with respect to any shares of   such capital stock, the number of Warrant Shares issuable on the exercise of this Warrant shall   forthwith be proportionately increased in the case of a subdivision or stock dividend, or   proportionately decreased in the case of a combination.  Appropriate adjustments shall also be   made to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total   number of Warrant Shares purchasable under this Warrant (as adjusted) shall remain the same.   Any adjustment under this Section 2(a)(1) shall become effective at the close of business on the   date the subdivision or combination becomes effective, or as of the record date of such dividend,   or in the event that no record date is fixed, upon the making of such dividend.                                          -3-





 






              (2)  Reorganizations or Mergers.  In case of any reclassification, capital  reorganization or change in the capital stock of the Company (other than as a result of a  subdivision, combination or stock dividend provided for in Section 2(a)(1) above) that occurs after  the Date of Issuance, then, as a condition of such reclassification, reorganization or change, lawful  provision shall be made, and duly executed documents evidencing the same from the Company or  its successor shall be delivered to the Holder, so that the Holder shall thereafter have the right at  any time prior to the expiration of this Warrant to purchase, at a total price equal to that payable  upon the exercise of this Warrant, the kind and amount of shares of stock and/or other securities  or property (including, if applicable, cash) receivable in connection with such reclassification,  reorganization or change by a holder of the same number and type of securities as were purchasable  as Warrant Shares by the Holder immediately prior to such reclassification, reorganization or  change.  In any such case, appropriate provisions shall be made with respect to the rights and  interest of the Holder so that the provisions hereof shall thereafter be applicable with respect to  any shares of stock or other securities or property deliverable upon exercise hereof, and appropriate  adjustments shall be made to the Exercise Price payable hereunder, provided the aggregate  Exercise Price shall remain the same (and, for the avoidance of doubt, this Warrant shall be  exclusively exercisable for such shares of stock and/or other securities or property from and after  the consummation of such reclassification or other change in the capital stock of the Company).                 (3)  Rights Upon Distribution of Assets.  If the Company shall declare or make  any dividend, other distribution of its assets (or rights to acquire its assets) or evidences of its  indebtedness to holders of shares of Common Stock generally (which dividend or other distribution  has not already been given to the Holder with respect to the Warrant Shares), by way of return of  capital or otherwise not addressed by this Section 2 above (including, without limitation, any  distribution of cash, stock or other securities, property or options by way of a dividend, spin off,  subdivision, reclassification, corporate rearrangement, scheme of arrangement or other similar  transaction) (a “Distribution”), at any time after the issuance of this Warrant and prior to the  Expiration Date, then, in each such case the Holder shall be entitled (subject to the following  proviso) to participate in such Distribution to the same extent that the Holder would have  participated therein if the Holder had held the number of shares of Common Stock acquirable upon  complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of  this Warrant, including, without limitation, the Beneficial Ownership Limitation) immediately  before the date on which a record is taken for such Distribution, or, if no such record is taken, the  date as of which the record holders of shares of Common Stock are to be determined for the  participation in such Distribution; provided, however, that the Holder shall only be permitted to  take delivery of such Distribution if and to the extent the Holder exercises some or all of the  Warrant (the portion of delivery of the Distribution shall be based on the pro rata portion of the  Warrant Shares issuable upon the portion of the Warrant exercised as compared to the maximum  number of Warrant Shares issuable upon complete exercise of the Warrant (without regard to any  limitations or restrictions on exercise of this Warrant, including, without limitation, the Beneficial  Ownership Limitation)), provided that, to the extent that the Warrant has not been partially or  completely exercised at the time of such Distribution, such portion of the Distribution shall be held  in abeyance for the benefit of the Holder until the Holder has exercised the Warrant, at which time                                        -4-





 






the Company shall issue to the Holder the pro-rata portion of such Distribution equivalent to that  portion of this Warrant then exercised. Notwithstanding anything to the contrary contained herein,  to the extent that the Holder’s right to participate in any such Distribution would result in the  Holder and its affiliates exceeding the Beneficial Ownership Limitation, if applicable pursuant to  Section 5(c) herein, then the Holder shall not be entitled to participate in such Distribution to the  extent of the Beneficial Ownership Limitation (and shall not be entitled to beneficial ownership of  such shares of Common Stock as a result of such Distribution (and beneficial ownership) to the  extent of any such excess) and the portion of such Distribution shall be held in abeyance for the  benefit of the Holder until such time or times, if ever, as its right thereto would not result in the  Holder and its affiliates exceeding the Beneficial Ownership Limitation, at which time or times  the Holder shall be granted such Distribution (and any Distributions declared or made on such  initial Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent  as if there had been no such limitation).            (b)  Notice of Adjustment.  When any adjustment is required to be made in the number or kind of shares purchasable upon exercise of the Warrant, or in the Exercise Price, the  Company shall promptly notify the Holder of such event and of the number of Warrant Shares or  other securities or property thereafter purchasable upon exercise of this Warrant.            (c)  Calculations.  No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least $0.01 in such price; provided,  however, that any adjustment which by reason of this Section 2(c) is not required to be made shall  be carried forward and taken into account in any subsequent adjustments under this Section 2.  All  calculations under this Section 2 shall be made by the Company in good faith and shall be made  to the nearest cent or to the nearest one hundredth of a share, as applicable.  No adjustment need  be made for a change in the par value or no par value of the Company’s Common Stock.            (d)  Treatment of Warrant upon a Change of Control.                (1)  If, at any time while this Warrant is outstanding, there is a Change of Control (as defined below), then the Holder shall have the right thereafter to receive, upon exercise  of this Warrant, the same amount and kind of securities, cash or property as it would have been  entitled to receive upon the occurrence of such Change of Control if it had been, immediately prior  to such Change of Control, the holder of the number of Warrant Shares then issuable upon exercise  in full of this Warrant (the “Alternate Consideration”).  For purposes of any such exercise, the  determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate  Consideration based on the amount of Alternate Consideration issuable in respect of one share of  Common Stock in such Change of Control, and the Company shall apportion the Exercise Price  among the Alternate Consideration in a reasonable manner reflecting the relative value of any  different components of the Alternate Consideration.  If holders of Common Stock are given any  choice as to the securities, cash or property to be received in a Change of Control, then the Holder  shall be given the same choice as to the Alternate Consideration it receives upon any exercise of  this Warrant following such Change of Control.  Any successor to the Company or surviving entity                                       -5-





 






 in such Change of Control shall issue to the Holder a new warrant substantially in the form of this   Warrant and consistent with the foregoing provisions and evidencing the Holder’s right to purchase   the Alternate Consideration for the aggregate Exercise Price upon exercise thereof.                  (2)  Notice of a Change of Control. The Company shall provide written notice   to the Holder of a Change of Control reasonably promptly after public announcement thereof (and,   in any event, not less than twenty (20) trading days prior to the consummation of such Change of   Control) and such notice shall include (i) the projected date of consummation of the Change of   Control to the extent known at the time such notice is delivered and (ii) the expected consideration   to be received by the Company’s stockholders in such Change of Control.                  (3)  As used in this Warrant, a “Change of Control” shall mean (i) a merger or   consolidation of the Company with another entity, in which the Company is not the survivor or   the stockholders of the Company immediately prior to such merger or consolidation do not own,   directly or indirectly, at least 50% of the voting securities of the surviving entity, (ii) the   consummation of a stock purchase agreement or other business combination of the Company with   another Person whereby such other Person acquires more than 50% of the outstanding shares of  Common Stock (not including any shares of Common Stock held by the other Person or other  Persons making or party to, or associated or affiliated with the other Persons making or party to,   such stock purchase agreement or other business combination), (iii) the sale, assignment, transfer,   conveyance or other disposal of all or substantially all of the properties or assets or all or a majority   of the outstanding voting securities of the Company, (iv) a purchase, tender or exchange offer   accepted by the holders of a majority of the outstanding voting shares of capital stock of the   Company directly or indirectly, in one or more related transactions, (v) a “person” or “group” (as   these terms are used for purposes of Section 13(d) and 14(d) of the Securities Exchange Act of   1934, as amended (the “Exchange Act”)) is or shall become the “beneficial owner” (as defined in   Rule 13d-3 under the Exchange Act), directly or indirectly, of at least a majority of the outstanding  shares of Common Stock of the Company through a stock purchase agreement or other business  combination (including, without limitation, a reorganization, reclassification, spin off or scheme   of arrangement) with another person, or (vi) the Company has elected to reorganize, recapitalize   or reclassify its Common Stock (other than to change domicile).             (e)  Anti-Dilution Protection. If the Company, from the date hereof through July 24,   2021, at any time while this Warrant is outstanding, shall sell or grant any option to purchase, or   sell or grant any right to reprice, or issue any Common Stock or common stock equivalents   entitling any entity or person to acquire, shares of Common Stock at an effective price per share   less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances,   collectively, a “Dilutive Issuance”), then the Exercise Price shall be reduced (and only reduced) to   equal the Base Share Price. Such adjustment shall be made whenever such Common Stock or   common stock equivalents are issued.  Notwithstanding the foregoing, no adjustments shall be   made, paid or issued under this Section 2(e) in respect of an Exempt Issuance (as defined below).   The Company shall notify the Holder, in writing, no later than five (5) business days following the   issuance of any Common Stock or common stock equivalents subject to this Section 2(e),                                         -6-





 






 indicating therein the applicable issuance price, or applicable reset price, exchange price,   conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”).  For   purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice   pursuant to this Section 2(e), upon the occurrence of any Dilutive Issuance, after the date of such   Dilutive Issuance the Holder shall be entitled to exercise this warrant using the applicable Base   Share Price regardless of whether the Holder accurately refers to the Base Share Price in the   Exercise Notice (as defined below). Unless and until such time as the Company obtains   Stockholder Approval as required by the rules and regulations of Nasdaq, no adjustment pursuant  to this Section 2(e) shall cause the Exercise Price to be less than $2.25, as adjusted for any stock   dividend, stock split, stock combination, reclassification or similar transaction (the “Exercise Floor   Price”).  For the avoidance of doubt, if a Dilutive Issuance would cause the Exercise Price to be   lower than the Exercise Floor Price but for the immediately preceding sentence, then the Exercise   Price shall be equal to the Exercise Floor Price.  Upon the receipt of such Stockholder Approval,   any adjustment to the Exercise Price that would have been made pursuant to this Section 2(e), but   for the Exercise floor Price, shall be made on the date of such receipt.  For the avoidance of doubt,   this Section 2(e) shall terminate and have no further force and effect as of 12:01 a.m. (New York  City Time) on July 25, 2021.   For purposes of this Agreement, “Exempt Issuance” means the issuance of: (i) shares of Common   Stock, restricted stock units or options (and Common Stock issued upon exercise of such options)   to employees, officers, consultants, advisors, directors or former directors of the Company   pursuant to any stock or option plan duly adopted for such purpose by a majority of the existing   members of the Board of Directors or a majority of the members of a committee of directors   established for such purpose; (ii) securities upon the exercise, exchange  or conversion of any   securities issued hereunder and/or other securities exercisable or exchangeable for or convertible   into shares of Common Stock issued and outstanding on the Issuance Date, provided that such   securities have not been amended since the Issuance Date to increase the number of such securities   or to decrease the exercise, exchange or conversion price of such securities or to extend the term   of such securities; and (iii) securities issued pursuant to a merger, acquisition or similar transaction   (provided that (A) the primary purpose of such issuance is not to raise capital; (B) the purchaser   or acquirer of such securities in such issuance solely consists of either (x) the actual participants   in such transactions, (y) the actual owners of such assets or securities acquired in such merger,   acquisition or similar transaction, or (z) the shareholders, partners or members of the foregoing   persons; and (C) the number or amount (as the case may be) of such shares of Common Stock   issued to such person by the Company shall not be disproportionate to such person’s actual   participation in such merger, acquisition or similar transaction) or a strategic transaction (provided   that (AA) any such issuance shall only be to a person which is, itself or through its subsidiaries,   an operating company in a business synergistic with the business of the Company and in which   the Company receives benefits in addition to the investment of funds; (BB) the primary purpose   of such issuance is not to raise capital; (CC) the purchaser or acquirer of such securities in such   issuance solely consists of either (ww) the actual participants in such strategic transaction, (xx) the   actual owners of such strategic assets or securities acquired in such strategic transaction, (yy) the                                         -7-





 






 shareholders, partners or members of the foregoing persons or (zz) persons whose primary   business does not consist of investing in securities; and (DD) the number or amount (as the case   may be) of such shares of Common Stock issued to such person by the Company shall not be   disproportionate to such person’s actual participation in such strategic licensing or development   transactions or ownership of such strategic assets or securities to be acquired by the Company, as   applicable).        3.   NO STOCKHOLDER RIGHTS.  Until the exercise of this Warrant, the Holder shall   not have, nor exercise, any rights as a stockholder of the Company (including without limitation   the right to notification of stockholder meetings or the right to receive any notice or other   communication concerning the business and affairs of the Company), except as expressly provided   in this Warrant.        4.   COVENANT TO PERFORM; NON-CIRCUMVENTION.  The Company hereby   covenants and agrees that the Company will at all times in good faith carry out all the provisions  of this Warrant and will not, by amendment of its certificate of incorporation, bylaws or other   organizational documents or through a Change of Control, dissolution, sale of assets or any other   voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this   Warrant. Without limiting the generality of the foregoing, the Company (i) shall not increase the   par value of any shares of Common Stock receivable upon the exercise of this Warrant above the   Exercise Price then in effect, (ii) shall take such actions as may be necessary or appropriate in   order that the Company may validly and legally issue fully paid and nonassessable shares of   Common Stock upon the exercise of this Warrant, and (iii) shall, so long as this Warrant is   outstanding, take action necessary to reserve and keep available out of its authorized and unissued   shares of Common Stock, solely for the purpose of effecting the exercise of this Warrant, 100%   of the number of shares of Common Stock issuable upon exercise of this Warrant then outstanding.        5.   MECHANICS OF EXERCISE.  Delivery of Warrant Shares Upon Exercise. This   Warrant may be exercised by the Holder hereof upon the delivery of a Notice of Exercise (the   “Exercise Notice”) attached hereto as Exhibit A properly completed and duly executed by the   Holder hereof, at the office of the Company designated for such purpose together with this Warrant   and payment in full of the Exercise Price (unless the Holder has elected to Net Exercise) then in   effect with respect to the number of Warrant Shares as to which the Warrant is being exercised.   This Warrant shall be deemed to have been exercised immediately prior to the close of business   on the date of its surrender for exercise as provided above, and the person entitled to receive the   Warrant Shares issuable upon such exercise shall be treated for all purposes as the holder of such   shares of record as of the close of business on such date.  Notwithstanding anything herein to the   contrary (although the Holder may surrender the Warrant to, and receive a replacement Warrant  from, the Company), the Holder shall not be required to physically surrender this Warrant to the   Company until the Holder has purchased all of the Warrant Shares available hereunder and the   Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the  Company for cancellation within three (3) trading days of the date the final Exercise Notice is  delivered to the Company. Execution and delivery of the Exercise Notice with respect to less than                                         -8-





 






 all of the Warrant Shares available hereunder shall have the effect of lowering the outstanding   number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of   Warrant Shares purchased.  On or before the second (2nd) trading day following the date on which   the Company has received each of the Exercise Notice and the aggregate Exercise Price (or   confirmation from the Company of the number of shares of Warrant Shares issuable in connection  with a duly executed and delivered notice of Net Exercise), the Company shall transmit by  facsimile an acknowledgment of confirmation of receipt of the Exercise Notice to the Company’s   transfer agent (“Transfer Agent”).  The Company shall deliver any objection to the Exercise Notice   on or before the second trading day following the date on which the Company has received the   Exercise Notice.  On or before the second (2nd) trading day following the date on which the  Company has received the Exercise Notice and the aggregate Exercise Price (the “Share Delivery   Date”), the Company shall (X) provided that the Transfer Agent is participating in The Depository   Trust Company (“DTC”) Fast Automated Securities Transfer Program and either (i) there is an   effective registration statement permitting the issuance of the Warrant Shares to or resale of the   Warrant Shares by the Holder or (ii) this Warrant is being exercised via cashless exercise and Rule   144 is available, upon the request of the Holder, credit such aggregate number of Warrant Shares   to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance   account with DTC through its Deposit Withdrawal Agent Commission system, or (Y) if the   Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or (i)   there is not an effective registration statement permitting the issuance of the Warrant Shares to or   resale of the Warrant Shares by the Holder and (ii) this Warrant is being exercised via cashless   exercise and Rule 144 is not available, upon the request of the Holder, issue and dispatch by first   class mail, postage prepaid, to the address as specified in the Exercise Notice, a certificate,   registered in the Company’s share register in the name of the Holder or its designee, for the number   of shares of Common Stock to which the Holder is entitled pursuant to such exercise.  Upon   delivery of the Exercise Notice and the payment of the aggregate Exercise Price (or a duly executed   and delivered notice of Net Exercise), the Holder shall be deemed for all corporate purposes to   have become the holder of record of the Warrant Shares with respect to which this Warrant has   been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC   account or the date of delivery of the certificates or book-entry position evidencing such Warrant  Shares, as the case may be. The Company shall pay any and all taxes (other than taxes based upon  the income of the Holder) which may be payable with respect to the issuance and delivery of  Warrant Shares upon exercise of this Warrant; provided, that the Company shall not be required   to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of   shares of Common Stock in any name other than that of the Holder, in either case with respect to   any income or transfer tax due by the Holder with respect to such shares of Common Stock issued   upon exercise of this Warrant. The Company shall not have any duty or obligation to take any   action under any section of this Agreement that requires the payment of taxes and/or charges unless   and until it is satisfied that all such payments have been made.             (b)  Company’s Failure to Timely Deliver Securities.  If the Company shall fail for  any reason or for no reason to issue to the Holder by the Share Delivery Date in compliance with   the terms of this Section 5, a certificate or book entry position for the number of shares of Common                                        -9-





 






 Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s   share register or to credit the Holder’s balance account with DTC for such number of shares of   Common Stock to which the Holder is entitled upon the Holder’s exercise of this Warrant, and if   on or after such trading day the Holder purchases (in an open market transaction or otherwise,   provided such purchases shall be made in a commercially reasonable manner at prevailing market   prices) shares of Common Stock to deliver in satisfaction of a sale by the Holder of shares of   Common Stock issuable upon such exercise that the Holder anticipated receiving from the   Company, then the Company shall, within two (2) trading days after the Holder’s request and in   the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total   purchase price (including commercially reasonable brokerage commissions, if any) for the shares   of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to   deliver such certificate or evidence of book entry position (and to issue such Warrant Shares) shall   terminate, or (ii)  pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In   Price over the product of (A) such number of shares of Common Stock, times (B) the price at   which the sell order giving rise to such purchase obligation was executed (assuming such sale was   executed on commercially reasonable terms at prevailing market prices) and, at the option of the  holder, either (x) promptly honor its obligation to deliver to the Holder a certificate or certificates  or evidence of book entry position representing such Warrant Shares or (y) reinstate the portion of  the Warrant and equivalent number of Warrant Shares for which such exercise was not honored  (in which case such exercise shall be deemed rescinded).             (c)  [Holder’s Exercise Limitation. Notwithstanding anything to the contrary  contained in this Warrant, this Warrant shall not be exercisable by the Holder pursuant to Section   1 or otherwise, and any such exercise shall be void ab initio, to the extent (but only to the extent)   that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice,   the Holder (together with the Holder’s affiliates, and any other persons acting as a group together   with the Holder or any of the Holder’s affiliates (such person, “Attribution Parties”)), would   beneficially own in excess of 9.99% of the number of shares of Common Stock outstanding   immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise   of this Warrant (the “Beneficial Ownership Limitation”). Notwithstanding the forgoing, the Holder   shall have the right to increase or decrease the Beneficial Ownership Limitation (to an amount not   to exceed 9.99% of the number of shares of Common Stock outstanding immediately after giving   effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant, with any   increase to be effective only upon the Holder providing the Company with prior written notice of   such increase, which shall be effective 61 days after delivery of such notice to the Company. To   the extent the above limitation applies, the determination of whether this Warrant shall be   exercisable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the   Holder or any of its Attribution Parties) and of which such securities shall be exercisable (as among   all such securities owned by the Holder or any of its Attribution Parties) shall, subject to such   Beneficial Ownership Limitation, be determined by the Holder, and the Company shall have no   responsibility for determining the accuracy of the Holder’s determination. No prior inability to   exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the   provisions of this paragraph with respect to any subsequent determination of exercisability. For                                        -10-





 






 purposes of the calculation of the Beneficial Ownership Limitation, the aggregate number of shares   of Common Stock beneficially owned by the Holder and its Attribution Parties shall include the   number of shares of Common Stock issuable upon exercise of this Warrant with respect to which   such determination is being made, but shall exclude the number of shares of Common Stock which   would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant   beneficially owned by the Holder or any of its Attribution Parties and (ii) exercise or conversion   of the unexercised or nonconverted portion of any other securities of the Company (including,   without limitation, any other convertible notes or convertible preferred stock or warrants) subject   to a limitation on conversion or exercise analogous to the limitation contained herein beneficially   owned by the Holder or any of its Attribution Parties.  Except as set forth in the preceding sentence,   for purposes of this section, 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 Holder that the Company is not representing to the Holder that such   calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely   responsible for any schedules required to be filed in accordance therewith.  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 5(c), in determining the number of outstanding shares of Common Stock,   the Holder 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 Securities and Exchange   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 Company’s transfer agent setting forth the   number of shares of Common Stock 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, including this Warrant, by the Holder or its Attribution Parties since the date as   of which such number of outstanding shares of Common Stock was reported.  The provisions of   this paragraph shall be construed and implemented in a manner otherwise than in strict conformity   with the terms of this Section 5(c) 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.   The limitations contained in this paragraph shall apply to a successor holder of this Warrant. Upon   the reasonable written request of the Holder, the Company shall within three (3) trading days   confirm orally or in writing to the Holder the number of shares of Common Stock then outstanding,   including by virtue of any prior conversion or exercise of convertible or exercisable securities into   Common Stock, including, without limitation, pursuant to this Warrant or securities issued   pursuant to the Purchase Agreement.]1        6.   CERTIFICATE OF ADJUSTMENT.  Whenever the Exercise Price or number or type of securities issuable upon exercise of this Warrant is adjusted, as herein provided, the  Company shall, at its expense, promptly deliver to the Holder a certificate of an officer of the    1 NTD: To be included in Warrants for holders that request a beneficial ownership blocker.                                        -11-





 






Company setting forth the nature of such adjustment and showing in detail the facts upon which  such adjustment is based.          7.   NOTICES.  In the event of:           (a)  any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other  than a cash dividend payable out of earned surplus of the Company) or other distribution, or any  right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other  securities or property, or to receive any other right; or            (b)  any voluntary or involuntary dissolution, liquidation or winding-up of the  Company, then and in each such event the Company will promptly mail or cause to be delivered  to the Holder (or a permitted transferee) a notice specifying (i) the date on which any such record  is to be taken for the purpose of such dividend, distribution or right, and stating the amount and  character of such dividend, distribution or right, and (ii) the date on which any such dissolution,  liquidation or winding-up is to take place, and the time, if any, as of which the holders of record  of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock  (or other securities) for securities or other property deliverable upon such dissolution, liquidation  or winding-up.  Such notice shall be delivered at least twenty (20) days prior to the date therein  specified.            (c)  Whenever any other notice is required to be given under this Warrant, unless  otherwise provided herein, the Company shall provide prompt written notice of all actions taken  pursuant to this Warrant, including in reasonable detail a description of such action and the reason  therefore.       8.   REPLACEMENT OF WARRANTS.  On receipt of evidence reasonably satisfactory  to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any  such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement reasonably  satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender  and cancellation of such Warrant, the Company at its expense will execute and deliver, in lieu  thereof, a new Warrant of like tenor.       9.   ISSUANCE OF NEW WARRANTS.  Whenever the Company is required to issue a  new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with  this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase  the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued  pursuant to Sections 8 or 9, the Warrant Shares designated by the Holder which, when added to  the number of shares of Common Stock underlying the other new Warrants issued in connection  with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant),  (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same  as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.                                      -12-





 






     10.  NO FRACTIONAL SHARES.  No fractional Warrant Shares or scrip representing  fractional shares will be issued upon exercise of this Warrant.  In lieu of any fractional shares   which would otherwise be issuable, the Company shall pay cash equal to the product of such   fraction multiplied by the Fair Market Value of one Warrant Share.        11.  AMENDMENT AND WAIVER.  Except as otherwise provided herein, the provisions of this Warrant may be amended and the Company may take any action herein prohibited, or omit  to perform any act herein required to be performed by it, only if the Company has obtained the  written consent of the Holder.        12.  TRADING DAYS.  If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be other than a day on which the Common  Stock is traded (which for the avoidance of doubt includes a Saturday, Sunday or a legal U.S.  holiday) on the Nasdaq Capital Market, or, if the Nasdaq Capital Market is not the principal trading  market for the Common Stock or other such securities, as applicable, then on the principal  securities exchange or securities market on which the Common Stock is then traded, then such  action may be taken or such right may be exercised on the next succeeding day on which the  Common Stock is so traded.        13.  TRANSFERS; EXCHANGES.            (a)  Subject to compliance with applicable federal and state securities laws and  Section 7 hereof, this Warrant may be transferred by the Holder with respect to all of the Warrant   Shares purchasable hereunder.  For a transfer of this Warrant as an entirety by Holder, upon   surrender of this Warrant to the Company, together with the Notice of Assignment in the form   attached hereto as Exhibit B properly completed and duly executed by the Holder, the Company   shall issue a new Warrant of the same denomination to the assignee.  Upon surrender of this   Warrant to the Company, together with the Notice of Assignment in the form attached hereto as  Exhibit B properly completed and duly executed by the Holder, for transfer of this Warrant with   respect to a portion of the Warrant Shares purchasable hereunder, the Company will forthwith   issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 9),   registered as the Holder may request, representing the right to purchase the number of Warrant   Shares being transferred by the Holder and, if less than the total number of Warrant Shares then   underlying this Warrant is being transferred, a new Warrant (in accordance with Section 9) to the   Holder representing the right to purchase the number of Warrant Shares not being transferred.             (b)  This Warrant is exchangeable, without expense, at the option of the Holder, upon   presentation and surrender hereof to the Company for other warrants of different denominations   entitling the holder thereof to purchase in the aggregate the same number of shares of Common   Stock purchasable hereunder.  This Warrant may be combined with other warrants that carry the   same rights upon presentation hereof at the office of the Company designated for such purpose   together with a written notice specifying the denominations in which new warrants are to be issued                                         -13-





 






 to the Holder and signed by the Holder hereof.  The term “Warrants” as used herein includes any   warrants into which this Warrant may be divided or exchanged.              (c)  If, at the time of the surrender of this Warrant in connection with any transfer of   this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective   registration statement under the Securities Act and under applicable state securities or blue sky  laws or (ii) eligible for resale pursuant to Rule 144, the Company may require, as a condition of  allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, provide   to the Company an opinion of counsel selected by the Holder and reasonably acceptable to the   Company, the form and substance of which opinion shall be reasonably satisfactory to the   Company, to the effect that such transfer does not require registration of such transferred Warrant   under the Securities Act.             (d)  The Holder, by the acceptance hereof, represents and warrants that, except when  it exercises this Warrant pursuant to a Net Exercise, it is acquiring this Warrant and, upon any   exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account   and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in   violation of the Securities Act or any applicable state securities law, except pursuant to sales   registered or exempted under the Securities Act.        14.  GOVERNING LAW; VENUE.  All questions concerning the construction, validity,   enforcement and interpretation of this Warrant 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.  With respect to any disputes arising out of or related to this Warrant, the   parties consent to the exclusive jurisdiction of, and venue in, the state courts in the State of New   York (or in the event of exclusive federal jurisdiction, the courts of the District of New York).   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 Warrant and agrees that such service shall constitute good and sufficient   service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any   way any right to serve process in any other manner permitted by law.  EACH OF THE  COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES, TO THE   FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO   TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING   TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.          15.  DISPUTE RESOLUTION.  In the case of a dispute as to the determination of the   Exercise Price, the arithmetic calculation of the Warrant Shares or under Sections 2 or 6, the   disputing party shall submit the disputed determinations or arithmetic calculations to the other   party.  If the Holder and the Company are unable to agree upon such determination or calculation   of the Exercise Price or the Warrant Shares within three (3) trading days of such disputed   determination or arithmetic calculation being submitted to the non-disputing party, then the                                         -14-





 






 Company shall, within two (2) trading days submit the dispute to an independent, reputable   accountant.  The Company shall cause, at the expense of the prevailing party, the accountant to   perform the determinations or calculations and notify the Company and the Holder of the results   no later than ten (10) trading days from the time it receives the disputed determinations or   calculations.  Such accountant’s determination or calculation shall be binding upon all parties   absent demonstrable error.        16.  REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF.   The remedies provided in this Warrant shall be cumulative and in addition to all other remedies   available under this Warrant, at law or in equity (including a decree of specific performance and/or   other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual   damages for any failure by the Company to comply with the terms of this Warrant.        17.  CONSTRUCTION; HEADINGS.  This Warrant shall be deemed to be jointly drafted   by the Company and the Holder and shall not be construed against any person as the drafter hereof.   The headings of this Warrant are for convenience of reference and shall not form part of, or affect   the interpretation of, this Warrant.        18.  SUCCESSORS AND ASSIGNS.  Subject to applicable securities laws, this Warrant   and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon   the successors and permitted assigns of the Company and the successors and permitted assigns of   the Holder.  The provisions of this Warrant are intended to be for and the benefit of any Holder   from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant  Shares.        19.  RESTRICTIONS. The Holder acknowledges that the Warrant Shares acquired upon  the exercise of this Warrant, if not registered, must comply with the applicable restrictions upon  resale imposed by state and federal securities laws.        20.  MISCELLANEOUS.  All notices, requests, consents and other communications   hereunder shall be in writing, shall be sent by confirmed electronic mail, or mailed by first-class   registered or certified airmail, or nationally recognized overnight express courier, postage prepaid,   and shall be deemed given when so sent in the case of electronic mail transmission, or when so   received in the case of mail or courier, and addressed as follows:  (a) if to the Company, at   Cambridge Discovery Park, 100 Acorn Park Drive, 5th Floor, Cambridge, MA 02140, Attention:   Finance Department; with a copy to (which shall not constitute notice) Ropes & Gray LLP,   Prudential Tower, 800 Boylston Street   Boston, MA 02199-3600, Attention: Marc Rubenstein and (b) if to the Holder, at such address or   addresses (including copies to counsel) as may have been furnished by the Holder to the Company   in writing.  The invalidity or unenforceability of any provision hereof shall in no way affect the   validity or enforceability of any other provisions.                                [Signature Page Follows]                                        -15-





 






    IN WITNESS WHEREOF, this Common Stock Purchase Warrant is issued effective as of  the date first set forth above.                                 GENOCEA BIOSCIENCES, INC.                                  By:                                Name:                                Title:                                  SIGNATURE PAGE TO                           WARRANT NO. 2020-«WARRANT NO» 





 






                                 EXHIBIT A                          NOTICE OF INTENT TO EXERCISE                      (To be signed only upon exercise of Warrant)   To: Genocea Biosciences, Inc.       The undersigned, the Holder of the attached Warrant, hereby irrevocably elects to exercise  the purchase right represented by such Warrant for, and to purchase thereunder,  __________________________ shares of Common Stock of Genocea Biosciences, Inc., a  Delaware corporation (the “Company”), and (choose one)       __________ herewith makes payment of USD ___________________________ thereof       or       __________ elects to Net Exercise the Warrant pursuant to Section 1(b)(2) thereof.       The undersigned requests that the certificates or book entry position evidencing the shares  to be acquired pursuant to such exercise be issued in the name of, and delivered to  __________________________________________, whose address is  ______________________________________________________________________________ ______________________.       By its delivery of this Exercise Notice, the undersigned represents and warrants to the  Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially  own in excess of the number of shares of Common Stock (as determined in accordance with  Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted to be owned under  Section 5(c) of the Warrant to which this notice relates.       By its signature below the undersigned hereby represents and warrants that it is an  “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities  Act of 1933, as amended, and agrees to be bound by the terms and conditions of the attached  Warrant as of the date hereof, including Section 5 thereof.   DATED:                                    (Signature must conform in all                                    respects to name of the Holder                                    as specified on the face of the                                    Warrant)                                     [Holder Name]                                    Address:  





 






                                  EXHIBIT B                            NOTICE OF ASSIGNMENT FORM        FOR VALUE RECEIVED, [Holder Name] (the “Assignor”) hereby sells, assigns and   transfers all of the rights of the undersigned Assignor under the attached Warrant with respect to   the number of shares of common stock of Genocea Biosciences, Inc., a Delaware corporation (the  “Company”), covered thereby set forth below, to the following “Assignee” and, in connection with   such transfer, represents and warrants to the Company that the transfer is in compliance with   Section 5 of the Warrant and applicable federal and state securities laws:             NAME OF ASSIGNEE                            ADDRESS     Number of shares:    Dated:                                 Signature:                            ASSIGNEE ACKNOWLEDGMENT        The undersigned Assignee acknowledges that it has reviewed the attached Warrant and by  its signature below it hereby represents and warrants that it is an “accredited investor” as defined  in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, and  agrees to be bound by the terms and conditions of the Warrant as of the date hereof, including  Section 5 thereof.                                      Signature:                                      By:                                     Its:   Address: 





 






                                 EXHIBIT C                         FORM OF PRE-FUNDED WARRANT                                         33.  84474864_12





 






 NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS   EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE   COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON   AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS   AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED   OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT   UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,   OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF   THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES   LAWS.     CLASS C WARRANT NO. 2020-[______]               NUMBER OF SHARES:  [_______]  DATE OF ISSUANCE:  July [__], 2020                  (subject to adjustment hereunder)    EXPIRATION DATE: The first date on which no shares of Common Stock are issuable upon a   cash exercise of this Warrant                CLASS C PRE-FUNDED WARRANT TO PURCHASE SHARES                              OF COMMON STOCK OF                            GENOCEA BIOSCIENCES, INC.        This Class C Warrant (the “Warrant”) is issued by Genocea Biosciences, Inc., a Delaware   corporation (the “Company”), to [________], or its registered assigns (including any successors   or assigns, the “Holder”), and is subject to the terms and conditions set forth below. The Warrant   is being issued pursuant to that certain Securities Purchase Agreement dated as of July [__], 2020,   among the Company and the purchasers signatory thereto (the “Purchase Agreement”). Capitalized   terms used and not otherwise defined herein shall have the meanings set forth in the Purchase   Agreement.        1.   EXERCISE OF WARRANT.            (a)  Number and Exercise Price of Warrant Shares; Expiration Date. Subject to the  terms and conditions set forth herein, the Holder is entitled to purchase from the Company up to   [______] shares of the Company’s Common Stock, $0.001 par value per share (the “Common   Stock”) (as adjusted from time to time pursuant to the provisions of this Warrant) (the “Warrant   Shares”) until this Warrant is exercised in full. The aggregate exercise price of this Warrant of   $[__], except for a nominal exercise price of $0.01 per Warrant Share, was paid to the Company   on or prior to the date of issuance of this Warrant, and, consequently, no additional consideration   (other than the nominal exercise price of $0.01 per Warrant Share) shall be required to be paid by                                          1 





 






 the Holder to effect any exercise of this Warrant. The Holder shall not be entitled to return or   refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or  for any reason whatsoever, including in the event this Warrant shall not have been exercised prior  to the Expiration Date. The remaining unpaid exercise price per share of Common Stock under  this Warrant shall be $0.01, subject to adjustment as provided herein (the “Exercise Price”).              (b)  Method of Exercise.  While this Warrant remains outstanding and exercisable in  accordance with Section 1(a) above, the Holder may exercise this Warrant in whole or in part in   accordance with Section 5 by either:                  (1)  wire transfer to the Company or cashier’s check drawn on a United States  bank made payable to the order of the Company, or                  (2)  exercising of the right to credit the Exercise Price against the Fair Market  Value (as defined below) of the Warrant Shares (as defined below) at the time of exercise (the   “Net Exercise”) pursuant to Section 1(c).              (c)  Net Exercise. At any time the Holder may elect to exercise this Warrant by Net  Exercise pursuant to this Section 1(c). At any time that this Warrant may be exercised by Net   Exercise pursuant to this Section 1(c), if the Company shall receive written notice from the Holder   at the time of exercise of this Warrant that the Holder elects to Net Exercise the Warrant, the   Company shall deliver to such Holder (without payment by the Holder of any exercise price in   cash) that number of Warrant Shares computed using the following formula:                                            Y (A - B)                                        X =                                          A         Where               X =   The number of Warrant Shares to be issued to the Holder.               Y =   The number of Warrant Shares purchasable under this Warrant or, if only                    a portion of the Warrant is being exercised, the portion of the Warrant                    being cancelled (at the date of such calculation).               A =   The Fair Market Value of one share of Common Stock (at the date of such                    calculation).               B =   The Exercise Price (as adjusted to the date of such calculations).             The “Fair Market Value” of one share of Common Stock shall mean (x) the last   reported sale price and, if there are no sales, the last reported bid price, of the Common Stock on   the last trading day prior to the date of exercise on the trading market on which the Common Stock   is listed as reported by Bloomberg Financial Markets (or a comparable reporting service of national                                        -2-     





 






 reputation selected by the Company and reasonably acceptable to the Holder if Bloomberg   Financial Markets is not then reporting sales prices of the Common Stock) (collectively,   “Bloomberg”), or (y) if the foregoing does not apply, the last sales price of such security in the   over-the-counter market on the pink sheets by Pink Sheets LLC (formerly the National Quotation   Bureau, Inc.) (the “pink sheets”) or bulletin board for such security as reported by Bloomberg, or   if no sales price is so reported, the last bid price of the Common Stock as reported by Bloomberg   or (z) if the fair market value cannot be calculated on any of the foregoing bases, the fair market   value determined by the Company’s Board of Directors in good faith.              (d)  Disputes.  In the case of a dispute as to the determination of the Exercise Price  or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to the   Holder the number of Warrant Shares that are not disputed.             (e)  Deemed Exercise.  In the event that immediately prior to the close of business  on the Expiration Date, the Fair Market Value of one share of Common Stock (as determined in   accordance with Section 1(c) above) is greater than the then applicable Exercise Price, this Warrant   shall be deemed to be automatically exercised on a net exercise issue basis pursuant to Section   1(c) above, and the Company shall deliver the applicable number of shares of Common Stock to   the Holder pursuant to the provisions of Section 1(c) above and this Section 1(e).  Notwithstanding   anything to the contrary contained in this Section 1(e), to the extent that the Holder’s right to   receive shares of Common Stock upon such a net exercise would result in the Holder and its   affiliates exceeding the Beneficial Ownership Limitation, if applicable pursuant to Section 5(c)   herein, then the Holder shall not be entitled to such shares of Common Stock to the extent of the   Beneficial Ownership Limitation (and shall not be entitled to beneficial ownership of such shares   of Common Stock (and beneficial ownership) to the extent of any such excess) and the portion of   such shares of Common Stock shall be held in abeyance for the benefit of the Holder until such   time or times, if ever, as its right thereto would not result in the Holder and its affiliates exceeding   the Beneficial Ownership Limitation, at which time or times the Holder shall be granted such   shares of Common Stock to the same extent as if there had been no such limitation).        2.   CERTAIN ADJUSTMENTS.            (a)  Adjustment of Number of Warrant Shares and Exercise Price. The number and  kind of Warrant Shares purchasable upon exercise of this Warrant and the Exercise Price shall be  subject to adjustment from time to time as follows:                   (1)  Subdivisions, Combinations and Other Issuances.  If the Company shall at   any time after the Date of Issuance but prior to the Expiration Date subdivide its shares of capital  stock of the same class as the Warrant Shares, by split-up or otherwise, or combine such shares of   capital stock, or issue additional shares of capital stock as a dividend with respect to any shares of   such capital stock, the number of Warrant Shares issuable on the exercise of this Warrant shall   forthwith be proportionately increased in the case of a subdivision or stock dividend, or   proportionately decreased in the case of a combination.  Appropriate adjustments shall also be                                         -3-





 






 made to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total   number of Warrant Shares purchasable under this Warrant (as adjusted) shall remain the same.   Any adjustment under this Section 2(a)(1) shall become effective at the close of business on the   date the subdivision or combination becomes effective, or as of the record date of such dividend,   or in the event that no record date is fixed, upon the making of such dividend.                  (2)  Reorganizations or Mergers.  In case of any reclassification, capital  reorganization or change in the capital stock of the Company (other than as a result of a   subdivision, combination or stock dividend provided for in Section 2(a)(1) above) that occurs after   the Date of Issuance, then, as a condition of such reclassification, reorganization or change, lawful   provision shall be made, and duly executed documents evidencing the same from the Company or   its successor shall be delivered to the Holder, so that the Holder shall thereafter have the right at   any time prior to the expiration of this Warrant to purchase, at a total price equal to that payable   upon the exercise of this Warrant, the kind and amount of shares of stock and/or other securities   or property (including, if applicable, cash) receivable in connection with such reclassification,   reorganization or change by a holder of the same number and type of securities as were purchasable   as Warrant Shares by the Holder immediately prior to such reclassification, reorganization or   change.  In any such case, appropriate provisions shall be made with respect to the rights and   interest of the Holder so that the provisions hereof shall thereafter be applicable with respect to   any shares of stock or other securities or property deliverable upon exercise hereof, and appropriate   adjustments shall be made to the Exercise Price payable hereunder, provided the aggregate   Exercise Price shall remain the same (and, for the avoidance of doubt, this Warrant shall be   exclusively exercisable for such shares of stock and/or other securities or property from and after   the consummation of such reclassification or other change in the capital stock of the Company).                  (3)  Rights Upon Distribution of Assets.  If the Company shall declare or make  any dividend, other distribution of its assets (or rights to acquire its assets) or evidences of its   indebtedness to holders of shares of Common Stock generally (which dividend or other distribution   has not already been given to the Holder with respect to the Warrant Shares), by way of return of  capital or otherwise not addressed by this Section 2 above (including, without limitation, any  distribution of cash, stock or other securities, property or options by way of a dividend, spin off,  subdivision, reclassification, corporate rearrangement, scheme of arrangement or other similar  transaction) (a “Distribution”), at any time after the issuance of this Warrant and prior to the   Expiration Date, then, in each such case the Holder shall be entitled (subject to the following   proviso) to participate in such Distribution to the same extent that the Holder would have   participated therein if the Holder had held the number of shares of Common Stock acquirable upon   complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of   this Warrant, including, without limitation, the Beneficial Ownership Limitation) immediately   before the date on which a record is taken for such Distribution, or, if no such record is taken, the   date as of which the record holders of shares of Common Stock are to be determined for the   participation in such Distribution.. Notwithstanding anything to the contrary contained herein, to   the extent that the Holder’s right to participate in any such Distribution would result in the Holder   and its affiliates exceeding the Beneficial Ownership Limitation, if applicable pursuant to Section                                        -4-





 






 5(c) herein, then the Holder shall not be entitled to participate in such Distribution to the extent of   the Beneficial Ownership Limitation (and shall not be entitled to beneficial ownership of such   shares of Common Stock as a result of such Distribution (and beneficial ownership) to the extent   of any such excess) and the portion of such Distribution shall be held in abeyance for the benefit   of the Holder until such time or times, if ever, as its right thereto would not result in the Holder   and its affiliates exceeding the Beneficial Ownership Limitation, at which time or times the Holder   shall be granted such Distribution (and any Distributions declared or made on such initial   Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if   there had been no such limitation).                  (4)  Purchase Rights.  If at any time the Company grants, issues or sells any   options, convertible securities or rights to purchase stock, warrants, securities or other property   pro rata to the record holders of any class of Common Stock (the "Purchase Rights"), then the   Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate   Purchase Rights which the Holder could have acquired if the Holder had held the number of shares  of Common Stock acquirable upon complete exercise of this Warrant (without regard to any   limitations or restrictions on exercise of this Warrant, including without limitation, the Beneficial   Ownership Limitation) immediately before the date on which a record is taken for the grant,   issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the   record holders of shares of Common Stock are to be determined for the grant, issue or sale of such   Purchase Rights (provided, however, that to the extent that the Holder's right to participate in any   such Purchase Right would result in the Holder and the other Attribution Parties (as defined in   Section5(c)) exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled   to participate in such Purchase Right to such extent (and shall not be entitled to beneficial  ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial   ownership) to such extent) and such Purchase Right to such extent shall be held in abeyance for   the benefit of the Holder until such time or times as its right thereto would not result in the Holder  and the other Attribution Parties exceeding the Beneficial Ownership Limitation, at which time or   times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on   such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the   same extent as if there had been no such limitation).             (b)  Notice of Adjustment.  When any adjustment is required to be made in the   number or kind of shares purchasable upon exercise of the Warrant, or in the Exercise Price, the   Company shall promptly notify the Holder of such event and of the number of Warrant Shares or   other securities or property thereafter purchasable upon exercise of this Warrant.             (c)  Calculations.  No adjustment in the Exercise Price shall be required unless such   adjustment would require an increase or decrease of at least $0.01 in such price; provided,   however, that any adjustment which by reason of this Section 2(c) is not required to be made shall   be carried forward and taken into account in any subsequent adjustments under this Section 2.  All  calculations under this Section 2 shall be made by the Company in good faith and shall be made                                          -5-     





 






 to the nearest cent or to the nearest one hundredth of a share, as applicable.  No adjustment need   be made for a change in the par value or no par value of the Company’s Common Stock.             (d)  Treatment of Warrant upon a Change of Control.                 (1)  If, at any time while this Warrant is outstanding, there is a Change of  Control (as defined below), then the Holder shall have the right thereafter to receive, upon exercise   of this Warrant, the same amount and kind of securities, cash or property as it would have been   entitled to receive upon the occurrence of such Change of Control if it had been, immediately prior   to such Change of Control, the holder of the number of Warrant Shares then issuable upon exercise   in full of this Warrant (the “Alternate Consideration”).  For purposes of any such exercise, the   determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate   Consideration based on the amount of Alternate Consideration issuable in respect of one share of   Common Stock in such Change of Control, and the Company shall apportion the Exercise Price   among the Alternate Consideration in a reasonable manner reflecting the relative value of any   different components of the Alternate Consideration.  If holders of Common Stock are given any   choice as to the securities, cash or property to be received in a Change of Control, then the Holder   shall be given the same choice as to the Alternate Consideration it receives upon any exercise of   this Warrant following such Change of Control.  Any successor to the Company or surviving entity   in such Change of Control shall issue to the Holder a new warrant substantially in the form of this   Warrant and consistent with the foregoing provisions and evidencing the Holder’s right to purchase   the Alternate Consideration for the aggregate Exercise Price upon exercise thereof.                  (2)  Notice of a Change of Control. The Company shall provide written notice   to the Holder of a Change of Control reasonably promptly after public announcement thereof (and,   in any event, not less than twenty (20) trading days prior to the consummation of such Change of  Control) and such notice shall include (i) the projected date of consummation of the Change of  Control to the extent known at the time such notice is delivered and (ii) the expected consideration   to be received by the Company’s stockholders in such Change of Control.                  (3)  As used in this Warrant, a “Change of Control” shall mean (i) a merger or   consolidation of the Company with another entity, in which the Company is not the survivor or   the stockholders of the Company immediately prior to such merger or consolidation do not own,   directly or indirectly, at least 50% of the voting securities of the surviving entity, (ii) the   consummation of a stock purchase agreement or other business combination of the Company with   another Person whereby such other Person acquires more than 50% of the outstanding shares of   Common Stock (not including any shares of Common Stock held by the other Person or other   Persons making or party to, or associated or affiliated with the other Persons making or party to,   such stock purchase agreement or other business combination), (iii) the sale, assignment, transfer,   conveyance or other disposal of all or substantially all of the properties or assets or all or a majority   of the outstanding voting securities of the Company, (iv) a purchase, tender or exchange offer   accepted by the holders of a majority of the outstanding voting shares of capital stock of the   Company directly or indirectly, in one or more related transactions, (v) a “person” or “group” (as                                         -6-     





 






 these terms are used for purposes of Section 13(d) and 14(d) of the Securities Exchange Act of   1934, as amended (the “Exchange Act”)) is or shall become the “beneficial owner” (as defined in   Rule 13d-3 under the Exchange Act), directly or indirectly, of at least a majority of the outstanding   shares of Common Stock of the Company through a stock purchase agreement or other business   combination (including, without limitation, a reorganization, reclassification, spin off or scheme   of arrangement) with another person, or (vi) the Company has elected to reorganize, recapitalize   or reclassify its Common Stock (other than to change domicile).        3.   NO STOCKHOLDER RIGHTS.  Until the exercise of this Warrant, the Holder shall  not have, nor exercise, any rights as a stockholder of the Company (including without limitation   the right to notification of stockholder meetings or the right to receive any notice or other   communication concerning the business and affairs of the Company), except as expressly provided   in this Warrant.        4.   COVENANT TO PERFORM; NON-CIRCUMVENTION.           The Company hereby covenants and agrees that the Company will at all times in good faith carry out all the provisions  of this Warrant and will not, by amendment of its certificate of incorporation, bylaws or other  organizational documents or through a Change of Control, dissolution, sale of assets or any other  voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this  Warrant. Without limiting the generality of the foregoing, the Company (i) shall not increase the  par value of any shares of Common Stock receivable upon the exercise of this Warrant above the  Exercise Price then in effect, (ii) shall take such actions as may be necessary or appropriate in  order that the Company may validly and legally issue fully paid and nonassessable shares of  Common Stock upon the exercise of this Warrant, and (iii) shall, so long as this Warrant is  outstanding, take action necessary to reserve and keep available out of its authorized and unissued  shares of Common Stock, solely for the purpose of effecting the exercise of this Warrant, 100%  of the number of shares of Common Stock issuable upon exercise of this Warrant then outstanding.        5.   MECHANICS OF EXERCISE.            (a)  Delivery of Warrant Shares Upon Exercise. This Warrant may be exercised by  the Holder hereof upon the delivery of a Notice of Exercise (the “Exercise Notice”) attached hereto   as Exhibit A properly completed and duly executed by the Holder hereof, at the office of the   Company designated for such purpose together with this Warrant and payment in full of the   Exercise Price (unless the Holder has elected to Net Exercise) then in effect with respect to the   number of Warrant Shares as to which the Warrant is being exercised. This Warrant shall be   deemed to have been exercised immediately prior to the close of business on the date of its   surrender for exercise as provided above, and the person entitled to receive the Warrant Shares   issuable upon such exercise shall be treated for all purposes as the holder of such shares of record   as of the close of business on such date.  Notwithstanding anything herein to the contrary (although   the Holder may surrender the Warrant to, and receive a replacement Warrant from, the Company),   the Holder shall not be required to physically surrender this Warrant to the Company until the   Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been                                        -7-





 






 exercised in full, in which case, the Holder shall surrender this Warrant to the Company for   cancellation within three (3) trading days of the date the final Exercise Notice is delivered to the   Company. Execution and delivery of the Exercise Notice with respect to less than all of the   Warrant Shares available hereunder shall have the effect of lowering the outstanding number of   Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant   Shares purchased. On or before the second (2nd) trading day following the date on which the   Company has received each of the Exercise Notice and the aggregate Exercise Price (or   confirmation from the Company of the number of shares of Warrant Shares issuable in connection   with a duly executed and delivered notice of Net Exercise), the Company shall transmit by   facsimile an acknowledgment of confirmation of receipt of the Exercise Notice to the Company’s   transfer agent (“Transfer Agent”).  The Company shall deliver any objection to the Exercise Notice   on or before the second trading day following the date on which the Company has received the   Exercise Notice.  On or before the second (2nd) trading day following the date on which the   Company has received the Exercise Notice and the aggregate Exercise Price (the “Share Delivery   Date”), the Company shall (X) provided that the Transfer Agent is participating in The Depository   Trust Company (“DTC”) Fast Automated Securities Transfer Program and either (i) there is an   effective registration statement permitting the issuance of the Warrant Shares to or resale of the   Warrant Shares by the Holder or (ii) this Warrant is being exercised via cashless exercise and Rule  144 is available, upon the request of the Holder, credit such aggregate number of Warrant Shares   to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance   account with DTC through its Deposit Withdrawal Agent Commission system, or (Y) if the   Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or (i)   there is not an effective registration statement permitting the issuance of the Warrant Shares to or   resale of the Warrant Shares by the Holder and (ii) this Warrant is being exercised via cashless   exercise and Rule 144 is not available, upon the request of the Holder, issue and dispatch by first   class mail, postage prepaid, to the address as specified in the Exercise Notice, a certificate,   registered in the Company’s share register in the name of the Holder or its designee, for the number   of shares of Common Stock to which the Holder is entitled pursuant to such exercise.  Upon   delivery of the Exercise Notice and the payment of the aggregate Exercise Price (or a duly executed   and delivered notice of Net Exercise), the Holder shall be deemed for all corporate purposes to   have become the holder of record of the Warrant Shares with respect to which this Warrant has   been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC   account or the date of delivery of the certificates or book-entry position evidencing such Warrant  Shares, as the case may be. The Company shall pay any and all taxes (other than taxes based upon  the income of the Holder) which may be payable with respect to the issuance and delivery of   Warrant Shares upon exercise of this Warrant; provided, that the Company shall not be required   to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of   shares of Common Stock in any name other than that of the Holder, in either case with respect to   any income or transfer tax due by the Holder with respect to such shares of Common Stock issued   upon exercise of this Warrant.  The Company shall not have any duty or obligation to take any   action under any section of this Agreement that requires the payment of taxes and/or charges unless   and until it is satisfied that all such payments have been made.                                         -8-





 






         (b)  Company’s Failure to Timely Deliver Securities.  If the Company shall fail for any reason or for no reason to issue to the Holder by the Share Delivery Date in compliance with  the terms of this Section 5, a certificate or book entry position for the number of shares of Common  Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s  share register or to credit the Holder’s balance account with DTC for such number of shares of  Common Stock to which the Holder is entitled upon the Holder’s exercise of this Warrant, and if  on or after such trading day the Holder purchases (in an open market transaction or otherwise,  provided such purchases shall be made in a commercially reasonable manner at prevailing market  prices) shares of Common Stock to deliver in satisfaction of a sale by the Holder of shares of  Common Stock issuable upon such exercise that the Holder anticipated receiving from the  Company, then the Company shall, within two (2) trading days after the Holder’s request and in  the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total  purchase price (including commercially reasonable brokerage commissions, if any) for the shares  of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to  deliver such certificate or evidence of book entry position (and to issue such Warrant Shares) shall  terminate, or (ii) pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In  Price over the product of (A) such number of shares of Common Stock, times (B) the price at  which the sell order giving rise to such purchase obligation was executed (assuming such sale was  executed on commercially reasonable terms at prevailing market prices) and, at the option of the  holder, either (x) promptly honor its obligation to deliver to the Holder a certificate or certificates  or evidence of book entry position representing such Warrant Shares or (y) reinstate the portion of  the Warrant and equivalent number of Warrant Shares for which such exercise was not honored  (in which case such exercise shall be deemed rescinded).            (c)  [Holder’s Exercise Limitation. Notwithstanding anything to the contrary contained in this Warrant, this Warrant shall not be exercisable by the Holder pursuant to Section  1 or otherwise, and any such exercise shall be void ab initio, to the extent (but only to the extent)  that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice,  the Holder (together with the Holder’s affiliates, and any other persons acting as a group together  with the Holder or any of the Holder’s affiliates (such person, “Attribution Parties”)), would  beneficially own in excess of 9.99% of the number of shares of Common Stock outstanding  immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise  of this Warrant (the “Beneficial Ownership Limitation”).  Notwithstanding the forgoing, the  Holder shall have the right to increase or decrease the Beneficial Ownership Limitation (to an  amount not to exceed 9.99% of the number of shares of Common Stock outstanding immediately  after giving effect to the issuance of shares of Common Stock issuable upon exercise of this  Warrant, with any increase to be effective only upon the Holder providing the Company with prior  written notice of such increase, which shall be effective 61 days after delivery of such notice to  the Company. To the extent the above limitation applies, the determination of whether this Warrant  shall be exercisable (vis-à-vis other convertible, exercisable or exchangeable securities owned by  the Holder or any of its Attribution Parties) and of which such securities shall be exercisable (as  among all such securities owned by the Holder or any of its Attribution Parties) shall, subject to  such Beneficial Ownership Limitation, be determined by the Holder, and the Company shall have                                       -9-





 






no responsibility for determining the accuracy of the Holder’s determination. No prior inability to  exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the  provisions of this paragraph with respect to any subsequent determination of exercisability. For  purposes of the calculation of the Beneficial Ownership Limitation, the aggregate number of shares  of Common Stock beneficially owned by the Holder and its Attribution Parties shall include the  number of shares of Common Stock issuable upon exercise of this Warrant with respect to which  such determination is being made, but shall exclude the number of shares of Common Stock which  would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant  beneficially owned by the Holder or any of its Attribution Parties and (ii) exercise or conversion  of the unexercised or nonconverted portion of any other securities of the Company (including,  without limitation, any other convertible notes or convertible preferred stock or warrants) subject  to a limitation on conversion or exercise analogous to the limitation contained herein beneficially  owned by the Holder or any of its Attribution Parties.  Except as set forth in the preceding sentence,  for purposes of this section, 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 Holder that the Company is not representing to the Holder that such  calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely  responsible for any schedules required to be filed in accordance therewith.  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 5(c), in determining the number of outstanding shares of Common Stock,  the Holder 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 Securities and Exchange  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 Company’s transfer agent setting forth the  number of shares of Common Stock 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, including this Warrant, by the Holder or its Attribution Parties since the date as  of which such number of outstanding shares of Common Stock was reported.  The provisions of  this paragraph shall be construed and implemented in a manner otherwise than in strict conformity  with the terms of this Section 5(c) 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.  The limitations contained in this paragraph shall apply to a successor holder of this Warrant. Upon  the reasonable written request of the Holder, the Company shall within three (3) trading days  confirm orally or in writing to the Holder the number of shares of Common Stock then outstanding,  including by virtue of any prior conversion or exercise of convertible or exercisable securities into  Common Stock, including, without limitation, pursuant to this Warrant or securities issued  pursuant to the Purchase Agreement.] 1   1 NTD: To be included in Pre-Funded Warrants for holders that request a beneficial ownership  blocker.                                       -10-





 






    6.   CERTIFICATE OF ADJUSTMENT.  Whenever the Exercise Price or number or type of securities issuable upon exercise of this Warrant is adjusted, as herein provided, the  Company shall, at its expense, promptly deliver to the Holder a certificate of an officer of the  Company setting forth the nature of such adjustment and showing in detail the facts upon which  such adjustment is based.        7.   NOTICES.  In the event of:           (a)  any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other  than a cash dividend payable out of earned surplus of the Company) or other distribution, or any  right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other  securities or property, or to receive any other right; or            (b)  any voluntary or involuntary dissolution, liquidation or winding-up of the  Company, then and in each such event the Company will promptly mail or cause to be delivered  to the Holder (or a permitted transferee) a notice specifying (i) the date on which any such record  is to be taken for the purpose of such dividend, distribution or right, and stating the amount and  character of such dividend, distribution or right, and (ii) the date on which any such dissolution,  liquidation or winding-up is to take place, and the time, if any, as of which the holders of record  of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock  (or other securities) for securities or other property deliverable upon such dissolution, liquidation  or winding-up.  Such notice shall be delivered at least twenty (20) days prior to the date therein  specified.            (c)  Whenever any other notice is required to be given under this Warrant, unless  otherwise provided herein, the Company shall provide prompt written notice of all actions taken  pursuant to this Warrant, including in reasonable detail a description of such action and the reason  therefore.       8.   REPLACEMENT OF WARRANTS.  On receipt of evidence reasonably satisfactory  to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any  such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement reasonably  satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender  and cancellation of such Warrant, the Company at its expense will execute and deliver, in lieu  thereof, a new Warrant of like tenor.       9.   ISSUANCE OF NEW WARRANTS.  Whenever the Company is required to issue a  new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with  this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase  the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued  pursuant to Sections 8 or 9, the Warrant Shares designated by the Holder which, when added to  the number of shares of Common Stock underlying the other new Warrants issued in connection                                       -11-





 






 with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant),   (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same  as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.       10.  NO FRACTIONAL SHARES.  No fractional Warrant Shares or scrip representing  fractional shares will be issued upon exercise of this Warrant.  In lieu of any fractional shares   which would otherwise be issuable, the Company shall pay cash equal to the product of such   fraction multiplied by the Fair Market Value of one Warrant Share.        11.  AMENDMENT AND WAIVER.  Except as otherwise provided herein, the provisions  of this Warrant may be amended and the Company may take any action herein prohibited, or omit   to perform any act herein required to be performed by it, only if the Company has obtained the   written consent of the Holder.        12.  TRADING DAYS.  If the last or appointed day for the taking of any action or the  expiration of any right required or granted herein shall be other than a day on which the Common   Stock is traded (which for the avoidance of doubt includes a Saturday, Sunday or a legal U.S.   holiday) on the Nasdaq Capital Market, or, if the Nasdaq Capital Market is not the principal trading   market for the Common Stock or other such securities, as applicable, then on the principal   securities exchange or securities market on which the Common Stock is then traded, then such   action may be taken or such right may be exercised on the next succeeding day on which the   Common Stock is so traded.        13.  TRANSFERS; EXCHANGES.            (a)  Subject to compliance with applicable federal and state securities laws and Section 7 hereof, this Warrant may be transferred by the Holder with respect to all of the Warrant  Shares purchasable hereunder.  For a transfer of this Warrant as an entirety by Holder, upon  surrender of this Warrant to the Company, together with the Notice of Assignment in the form  attached hereto as Exhibit B properly completed and duly executed by the Holder, the Company   shall issue a new Warrant of the same denomination to the assignee.  Upon surrender of this   Warrant to the Company, together with the Notice of Assignment in the form attached hereto as   Exhibit B properly completed and duly executed by the Holder, for transfer of this Warrant with   respect to a portion of the Warrant Shares purchasable hereunder, the Company will forthwith   issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 9),   registered as the Holder may request, representing the right to purchase the number of Warrant   Shares being transferred by the Holder and, if less than the total number of Warrant Shares then   underlying this Warrant is being transferred, a new Warrant (in accordance with Section 9) to the   Holder representing the right to purchase the number of Warrant Shares not being transferred.             (b)  This Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company for other warrants of different denominations  entitling the holder thereof to purchase in the aggregate the same number of shares of Common                                        -12-





 






 Stock purchasable hereunder.  This Warrant may be combined with other warrants that carry the   same rights upon presentation hereof at the office of the Company designated for such purpose   together with a written notice specifying the denominations in which new warrants are to be issued   to the Holder and signed by the Holder hereof.  The term “Warrants” as used herein includes any   warrants into which this Warrant may be divided or exchanged.              (c)  If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective  registration statement under the Securities Act and under applicable state securities or blue sky  laws or (ii) eligible for resale pursuant to Rule 144, the Company may require, as a condition of  allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, provide  to the Company an opinion of counsel selected by the Holder and reasonably acceptable to the  Company, the form and substance of which opinion shall be reasonably satisfactory to the  Company, to the effect that such transfer does not require registration of such transferred Warrant   under the Securities Act.             (d)  The Holder, by the acceptance hereof, represents and warrants that, except when  it exercises this Warrant pursuant to a Net Exercise, it is acquiring this Warrant and, upon any   exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account   and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in   violation of the Securities Act or any applicable state securities law, except pursuant to sales   registered or exempted under the Securities Act.        14.  GOVERNING LAW; VENUE.  All questions concerning the construction, validity,  enforcement and interpretation of this Warrant 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.  With respect to any disputes arising out of or related to this Warrant, the   parties consent to the exclusive jurisdiction of, and venue in, the state courts in the State of New   York (or in the event of exclusive federal jurisdiction, the courts of the District of New York).   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 Warrant and agrees that such service shall constitute good and sufficient   service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any   way any right to serve process in any other manner permitted by law.  EACH OF THE   COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES, TO THE   FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO   TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING   TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.          15.  DISPUTE RESOLUTION.  In the case of a dispute as to the determination of the  Exercise Price, the arithmetic calculation of the Warrant Shares or under Sections 2 or 6, the   disputing party shall submit the disputed determinations or arithmetic calculations to the other                                        -13-





 






 party.  If the Holder and the Company are unable to agree upon such determination or calculation   of the Exercise Price or the Warrant Shares within three (3) trading days of such disputed   determination or arithmetic calculation being submitted to the non-disputing party, then the   Company shall, within two (2) trading days submit the dispute to an independent, reputable   accountant.  The Company shall cause, at the expense of the prevailing party, the accountant to   perform the determinations or calculations and notify the Company and the Holder of the results  no later than ten (10) trading days from the time it receives the disputed determinations or   calculations.  Such accountant’s determination or calculation shall be binding upon all parties   absent demonstrable error.        16.  REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF.  The remedies provided in this Warrant shall be cumulative and in addition to all other remedies   available under this Warrant, at law or in equity (including a decree of specific performance and/or   other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual   damages for any failure by the Company to comply with the terms of this Warrant.        17.  CONSTRUCTION; HEADINGS.  This Warrant shall be deemed to be jointly drafted   by the Company and the Holder and shall not be construed against any person as the drafter hereof.   The headings of this Warrant are for convenience of reference and shall not form part of, or affect   the interpretation of, this Warrant.        18.  SUCCESSORS AND ASSIGNS.  Subject to applicable securities laws, this Warrant  and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon   the successors and permitted assigns of the Company and the successors and permitted assigns of   the Holder.  The provisions of this Warrant are intended to be for and the benefit of any Holder   from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant  Shares.        19.  RESTRICTIONS. The Holder acknowledges that the Warrant Shares acquired upon  the exercise of this Warrant, if not registered, must comply with the applicable restrictions upon  resale imposed by state and federal securities laws.        20.  MISCELLANEOUS.  All notices, requests, consents and other communications   hereunder shall be in writing, shall be sent by confirmed electronic mail, or mailed by first-class   registered or certified airmail, or nationally recognized overnight express courier, postage prepaid,   and shall be deemed given when so sent in the case of electronic mail transmission, or when so   received in the case of mail or courier, and addressed as follows:  (a) if to the Company, at   Cambridge Discovery Park, 100 Acorn Park Drive, 5th Floor, Cambridge, MA 02140, Attention:   Finance Department; with a copy to (which shall not constitute notice) Ropes & Gray LLP,   Prudential Tower, 800 Boylston Street   Boston, MA 02199-3600, Attention: Marc Rubenstein and (b) if to the Holder, at such address or   addresses (including copies to counsel) as may have been furnished by the Holder to the Company                                         -14-





 






in writing.  The invalidity or unenforceability of any provision hereof shall in no way affect the  validity or enforceability of any other provisions.                               [Signature Page Follows]                                         -15-





 






    IN WITNESS WHEREOF, this Common Stock Purchase Warrant is issued effective as of  the date first set forth above.                                 GENOCEA BIOSCIENCES, INC.                                  By:                                Name:                                Title:                                  SIGNATURE PAGE TO                           WARRANT NO. 2019-«WARRANT NO» 





 






                                 EXHIBIT A                          NOTICE OF INTENT TO EXERCISE                      (To be signed only upon exercise of Warrant)   To: Genocea Biosciences, Inc.       The undersigned, the Holder of the attached Warrant, hereby irrevocably elects to exercise  the purchase right represented by such Warrant for, and to purchase thereunder,  __________________________ shares of Common Stock of Genocea Biosciences, Inc., a  Delaware corporation (the “Company”), and (choose one)       __________ herewith makes payment of USD ___________________________ thereof       or       __________ elects to Net Exercise the Warrant pursuant to Section 1(b)(2) thereof.       The undersigned requests that the certificates or book entry position evidencing the shares  to be acquired pursuant to such exercise be issued in the name of, and delivered to  __________________________________________, whose address is  ______________________________________________________________________________ ______________________.       By its delivery of this Exercise Notice, the undersigned represents and warrants to the  Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially  own in excess of the number of shares of Common Stock (as determined in accordance with  Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted to be owned under  Section 5(c) of the Warrant to which this notice relates.       By its signature below the undersigned hereby represents and warrants that it is an  “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities  Act of 1933, as amended, and agrees to be bound by the terms and conditions of the attached  Warrant as of the date hereof, including Section 5 thereof.   DATED:                                    (Signature must conform in all                                    respects to name of the Holder                                    as specified on the face of the                                    Warrant)                                     [Holder Name]                                    Address:  





 






                                  EXHIBIT B                            NOTICE OF ASSIGNMENT FORM        FOR VALUE RECEIVED, [Holder Name] (the “Assignor”) hereby sells, assigns and   transfers all of the rights of the undersigned Assignor under the attached Warrant with respect to   the number of shares of common stock of Genocea Biosciences, Inc., a Delaware corporation (the  “Company”), covered thereby set forth below, to the following “Assignee” and, in connection with   such transfer, represents and warrants to the Company that the transfer is in compliance with   Section 5 of the Warrant and applicable federal and state securities laws:             NAME OF ASSIGNEE                            ADDRESS     Number of shares:    Dated:                                 Signature:                            ASSIGNEE ACKNOWLEDGMENT        The undersigned Assignee acknowledges that it has reviewed the attached Warrant and by  its signature below it hereby represents and warrants that it is an “accredited investor” as defined  in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, and  agrees to be bound by the terms and conditions of the Warrant as of the date hereof, including  Section 5 thereof.                                      Signature:                                      By:                                     Its:   Address: 





 






                                                                 Schedule 3.2(o)                             Required Waiver Disclosure   On December 6, 2016, a final judgment (the “Judgment”) was entered against Stifel, Nicolaus &  Company, Incorporated (“Stifel”) by the United States District Court for the Eastern District of  Wisconsin (Civil Action No. 2:11-cv-00755) resolving a civil lawsuit filed by the U.S. Securities  & Exchange Commission (the “SEC”) in 2011 involving violations of several antifraud provisions  of the federal securities laws in connection with the sale of synthetic collateralized debt obligations  to five Wisconsin school districts in 2006.  As a result of the Judgment: (i) Stifel is required to  cease and desist from committing or causing any violations and any future violations of Section  17(a)(2) and 17(a)(3) of the Securities Act; and (ii) Stifel and a former employee were jointly liable  to pay disgorgement and prejudgment interest of $2.5 million. Stifel was also required to pay a  civil penalty of $22.0 million, of which disgorgement and civil penalty Stifel was required to pay  $12.5 million to the school districts involved in this matter.   Simultaneously with the entry of the Judgment, the SEC issued an Order granting Stifel a waiver  from, among other things, the application of the disqualification provisions of Rule 506(d)(1)(iv)  of Regulation D under the Securities Act.                  A copy of the Judgment is available on the SEC’s website at:          https://www.sec.gov/litigation/litreleases/2016/lr23700-final-judgment.pdf.                                         34.  84474864_12