Form 8-K XOMA Corp For: Dec 08

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December 9, 2014 9:03 AM EST

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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FORM 8-K

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CURRENT REPORT

Pursuant to Section�13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December�8, 2014

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XOMA CORPORATION

(Exact name of registrant as specified in its charter)

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Delaware
(State or other jurisdiction of incorporation)

0-14710	�	52-2154066
(Commission File Number)	�	(IRS Employer Identification No.)

2910 Seventh Street, Berkeley, California	�	94710
(Address of principal executive offices)	�	(Zip code)

Registrant�s telephone number, including area code (510) 204-7200

(Former name or former address, if changed since last report)

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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

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�	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

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�	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

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�	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

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�	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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Item�1.01.

Entry into a Material Definitive Agreement

On December�8, 2014, XOMA Corporation (the �Company�) entered into a Placement Agent Agreement with Cowen and Company, LLC., as a sole placement agent (the �Placement Agent�), relating to the sale and issuance by the Company in a registered offering to select institutional investors (the �Investors�) of 8,097,165 shares of its common stock, par value $0.0075 per share (�Common Stock�), and accompanying warrants to purchase one share of Common Stock for each share purchased at a price of $4.94 for each share and warrant. The sale of the Common Stock and accompanying warrants is being made pursuant to Subscription Agreements, each dated December�8, 2014 (the �Subscription Agreements�), with each of the Investors pursuant to which the Investors agreed to purchase each share of Common Stock and the accompanying warrant at a purchase price of $4.94. In the aggregate, the Company would issue 8,097,165 shares of Common Stock (the �Shares�) and warrants to purchase 8,097,165 shares of Common Stock (the �Warrants�) pursuant to the terms of the Placement Agent Agreement and the related Subscription Agreements. The Warrants to be issued to each Investor would generally be exercisable for a period of two years from the date of issuance and would carry an exercise price of $7.90 per share, which is equal to 160% of the closing consolidated bid price of the Common Stock on December�8, 2014 as reported by NASDAQ. The Company anticipates raising gross proceeds of $40.0 million. The net offering proceeds to the Company from the sale of the Shares and Warrants, after deducting the placement agent�s fees and other estimated offering expenses payable by the Company, are expected to be approximately $37.7 million.

The Shares, the Warrants and the shares of Common Stock issuable upon exercise of the Warrants (together, the �Securities�) are being offered and sold pursuant to a prospectus dated September�20, 2013 and a prospectus supplement dated December�8, 2014 (the �Prospectus Supplement�), pursuant to the Company�s effective shelf registration statement on Form S-3 (Registration No.�333-191078). The legal opinion of Cooley LLP relating to the Securities is filed as Exhibit 5.1 to this Current Report on Form 8-K.

The closing of the sale and issuance of the Shares and the Warrants is expected to take place on or about December�12, 2014, subject to the satisfaction of customary closing conditions.

The foregoing is only a brief description of the material terms of the Placement Agent Agreement, the Warrants and the Subscription Agreements, does not purport to be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to the Placement Agent Agreement, the form of Warrant and the form of Subscription Agreement, respectively, that are filed as Exhibits 1.1, 4.1 and 10.1 to this Current Report on Form 8-K and incorporated by reference herein.

Item�9.01.

Exhibits.

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��1.1	��	Placement Agent Agreement, dated December�8, 2014, by and between XOMA Corporation and Cowen and Company, LLC.

��4.1	��	Form of Warrant to Purchase Common Stock

��5.1	��	Opinion of Cooley LLP

10.1	��	Form of Subscription Agreement

23.1	��	Consent of Cooley LLP (included as part of Exhibit 5.1)

99.1	��	Press Release dated December 9, 2014

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

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Date: December�9, 2014	�	XOMA CORPORATION

	�	By:��	�	/s/ Fred Kurland
	�		�	Fred Kurland
	�		�	Vice President, Finance, Chief Financial Officer and Secretary

EXHIBIT INDEX

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Number	��	Description

��1.1	��	Placement Agent Agreement, dated December�8, 2014, by and between XOMA Corporation and Cowen and Company, LLC.

��4.1	��	Form of Warrant to Purchase Common Stock

��5.1	��	Opinion of Cooley LLP

10.1	��	Form of Subscription Agreement

23.1	��	Consent of Cooley LLP (included as part of Exhibit 5.1)

99.1	��	Press Release dated December 9, 2014

Exhibit 1.1

EXECUTION VERSION

8,097,165 Shares

and Warrants to Purchase 8,097,165 Shares

XOMA Corporation

Common Stock

PLACEMENT AGENT AGREEMENT

December�8, 2014

COWEN AND COMPANY, LLC

As Placement Agent,

599 Lexington Avenue

New York, N.Y. 10022

Dear Sirs:

1. Introductory. XOMA Corporation, a Delaware corporation (the �Company�), proposes to issue and sell to certain purchasers, pursuant to the terms and conditions of a subscription agreement in the form of Exhibit A attached hereto (the �Subscription Agreement�) to be entered into with such purchasers (each a �Purchaser� and collectively, the �Purchasers�), up to an aggregate of 8,097,165 units (the �Units�), each Unit consisting of (i)�one share of common stock, $.0075 par value (the �Common Stock�) and (ii)�one warrant (the �Warrants�) to purchase one share of Common Stock. The aggregate 8,097,165 shares of Common Stock so proposed to be sold is hereinafter referred to as the �Stock� and the number of shares of Common Stock issuable upon exercise of the Warrants is hereinafter referred to as the �Warrant Stock.� The Warrant Stock, together with the Stock and the Warrants, are referred to herein as the �Securities.� The Company hereby confirms that Cowen and Company, LLC, (�Cowen� or the �Placement Agent�) acted as Placement Agent in the sale of the Units in accordance with the terms and conditions of this Placement Agent Agreement (this �Agreement�) and the Subscription Agreement.

2. Agreement to Act as Placement Agent of the Securities. On the basis of the representations, warranties and agreements of the Company contained herein, and subject to all the terms and conditions of this Agreement:

(a) The Company hereby acknowledges that the Placement Agent acted as its sole agent to solicit offers for the purchase of all or part of the Units from the Company and in connection with the proposed offering of the Units (the �Offering�). Until the Closing Date (as defined in Section�3 hereof), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Stock or the Warrants otherwise than through the Placement Agent.

(b) The Company hereby acknowledges that the Placement Agent, as agent of the Company, used its best efforts to solicit offers to purchase the Units from the Company on the terms and subject to the conditions set forth in the Prospectus (as defined below). The Placement Agent shall use reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase the Units was solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Units or Securities for its own account and, in soliciting purchases of Units, the Placement Agent acted solely as the Company�s agent and not as principal. Notwithstanding the foregoing and except as otherwise provided in this Section�2(b), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase the Units as principal.

(c) Offers for the purchase of Units were solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deemed advisable. The Placement Agent communicated to the Company, orally or in writing, each reasonable offer to purchase Units received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase the Units and may reject any such offer, in whole or in part. The Placement Agent has the right, in its discretion, without notice to the Company, to reject any offer to purchase Units received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.

(d) The Units are being sold to the Purchaser(s) at a price of $4.94 per Unit. The purchases of the Units by the Purchaser(s) shall be evidenced by the execution of the Subscription Agreement(s) by each of the Purchaser(s) and the Company.

(e) As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to $2,000,000.

(f) No Stock which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreement(s) shall be deemed to have been purchased and paid for, or sold by the Company, until such Stock shall has been delivered to the Purchaser(s) thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Units to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company in accordance with the procedures set forth in Section�7 herein.

3. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Placement Agent and the Purchaser(s) that:

(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Company has filed with the Commission a registration statement on Form�S-3

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(No.�333-191078), including a related prospectus or prospectuses, covering the registration of the Units under the Act, which has become effective. �Registration Statement� at any particular time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. �Registration Statement� without reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule�430B.

For purposes of this Agreement:

�430B Information� means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule�430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule�430B(f).

�430C Information� means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule�430C.

�Act� means the Securities Act of 1933, as amended.

�Applicable Time� means 6:00�P.M. (Eastern time) on the date of this Agreement.

�Closing Date� has the meaning defined in Section�3 hereof.

�Commission� means the Securities and Exchange Commission.

�Effective Time� of the Registration Statement relating to the Units means the time of the first contract of sale for the Units.

�Exchange Act� means the Securities Exchange Act of 1934, as amended.

�Final Prospectus� means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Units and otherwise satisfies Section�10(a) of the Act.

�General Use Issuer Free Writing Prospectus� means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule�B to this Agreement.

�Issuer Free Writing Prospectus� means any �issuer free writing prospectus,� as defined in Rule�433, relating to the Units in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company�s records pursuant to Rule�433(g).

�Limited Use Issuer Free Writing Prospectus� means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.

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�Rules and Regulations� means the rules and regulations of the Commission.

�Securities Laws� means, collectively, the Sarbanes-Oxley Act of 2002 (�Sarbanes-Oxley�), the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of �issuers� (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of the New York Stock Exchange and the NASDAQ Stock Market (�Exchange Rules�).

�Statutory Prospectus� with reference to any particular time means the prospectus relating to the Units that is included in the Registration Statement immediately prior to that time, including any document incorporated by reference therein and all 430B Information and all 430C Information with respect to the Registration Statement, that in any case has not been superseded or modified at that time. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule�424(b) and not retroactively.

Unless otherwise specified, a reference to a �rule� is to the indicated rule under the Act.

(b) Compliance with Securities Act Requirements. (i)�(A)�At the time the Registration Statement initially became effective, (B)�at the time of each amendment thereto for the purposes of complying with Section�10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C)�at the Effective Time relating to the Units and (D)�on the Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii)�(A)�on its date, (B)�at the time of filing the Final Prospectus pursuant to Rule�424(b) and (C)�on the Closing Date, the Final Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any such document based upon written information furnished to the Company by the Placement Agent specifically for use therein, it being understood and agreed that the only such information is that described as such in Section�8(b) hereof.

(c) Shelf Registration Statement. The Registration Statement is effective under the Act and no stop order preventing or suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. At the time the Registration Statement was filed with and declared effective by the Commission, the Company was eligible to register the Securities on Form�S-3 promulgated under the Act, and as of the date hereof, remains eligible to use the Registration Statement pursuant to General Instruction�I.B.1 of Form�S-3. The date of this Agreement is not more than three years

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subsequent to the initial effective time of the Registration Statement. If, immediately prior to the third anniversary of the initial effective time of the Registration Statement, any of the Securities remain unsold, the Company will, upon 60 days prior written notice, prior to that third anniversary file, if it has not already done so, a new shelf registration statement that covers any unsold securities, in a form satisfactory to the Placement Agent, will use its reasonable best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement shall include such new shelf registration statement.

(d) Ineligible Issuer Status. (i)�At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule�164(h)(2)) of the Units and (ii)�at the date of this Agreement, the Company was not and is not an �ineligible issuer,� as defined in Rule�405, including (x)�the Company or any other subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule�405 and (y)�the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a proceeding under Section�8 of the Act and not being the subject of a proceeding under Section�8A of the Act in connection with the offering of the Securities, all as described in Rule�405.

(e) General Disclosure Package. As of the Applicable Time, neither (i)�any General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the preliminary prospectus supplement, dated December�8, 2014, including the base prospectus, dated September�20, 2013, (which is the most recent Statutory Prospectus distributed to investors generally), and the other information, if any, stated in Schedule�A to this Agreement, all considered together (collectively, the �General Disclosure Package�), nor (ii)�any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by the Placement Agent specifically for use therein, it being understood and agreed that the only such information furnished by the Placement Agent consists of the information described as such in Section�8(b) hereof. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the offering of the Securities other than any Statutory Prospectus, the Final Prospectus and other materials, if any, permitted under the Act.

(f) Incorporated Documents. The documents incorporated by reference into the Registration Statement, the General Disclosure Package and the Final Prospectus, when such incorporated documents became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained any untrue statement of a material fact or omitted to state any material fact

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required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference into the Registration Statement, the General Disclosure Package and the Final Prospectus, when such incorporated documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(g) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus (if any), as of its issue date and at all subsequent times through the completion of the public offer and sale of the Units or until any earlier date that the Company notified or notifies the Placement Agent as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i)�the Company has promptly notified or will promptly notify the Placement Agent and (ii)�the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.

(h) Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the General Disclosure Package. The Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or to be in good standing would not have a material adverse effect on the condition (financial or otherwise), properties, assets, liabilities, rights, operations, earnings, business, management or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a �Material Adverse Effect�).

(i) Subsidiaries. Each subsidiary of the Company, as listed in Schedule�C hereto (collectively, the �Subsidiaries�), has been duly incorporated or organized and is validly existing as a corporation or other legal entity in good standing under the laws of the jurisdiction of its incorporation or organization, with all power and authority to own or lease its properties and conduct its business as described in the General Disclosure Package. Each Subsidiary is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or to be in good standing would not have a Material Adverse Effect. All of the issued and outstanding capital stock of each Subsidiary has

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been duly authorized and validly issued and is fully paid and nonassessable. The capital stock of each Subsidiary is wholly owned by the Company or another Subsidiary free and clear of all liens, encumbrances, equities and claims. No options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in the Subsidiaries are outstanding. The Subsidiaries are the only subsidiaries, direct or indirect, of the Company.

(j) Securities. The Securities and all other outstanding shares of capital stock of the Company have been duly authorized; the authorized equity capitalization of the Company is as set forth in the General Disclosure Package and the Final Prospectus; all outstanding shares of capital stock of the Company are, validly issued, fully paid and nonassessable and conform in all material respects to the information in the General Disclosure Package and to the description of such Securities contained in the Final Prospectus; when the Stock has been delivered and paid for by the Purchaser(s) on the Closing Date in accordance with this Agreement and each Subscription Agreement, such Stock will have been, validly issued, fully paid and nonassessable and will conform to the information in the General Disclosure Package and to the description of such Securities contained in the Final Prospectus; the Warrant Stock has been duly reserved for issuance; when the Warrant Stock has been issued in accordance with the terms of the Warrants, such Warrant Stock will have been validly issued, fully paid and nonassessable and will conform to the information in the General Disclosure Package and to the description of such Securities contained in the Final Prospectus; the stockholders of the Company have no preemptive rights with respect to the Securities; none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive or similar rights of any security holder; and the form of certificates for the Securities conforms to the corporate law of the jurisdiction of the Company�s incorporation.

(k) No Finder�s Fee. Other than any contracts or agreements between the Company and the Placement Agent, neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any Person that would give rise to a valid claim against the Company or the Placement Agent for a brokerage commission, finder�s fee or like payment in connection with the offering and sale of the Units or any transaction contemplated by this Agreement, the Subscription Agreement(s), the Registration Statements, the General Disclosure Package or the Prospectus.

(l) Registration Rights. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any shares of Securities under the Act. No holders of securities of the Company have rights to the registration of such securities under the Registration Statement that have not been waived.

(m) Listing. The Common Stock is registered pursuant to Section�12(b) of the Exchange Act and listed on The NASDAQ Global Market; the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Securities under the Exchange Act or delisting the Securities from The NASDAQ Global Market, nor has the Company received any notification that the Commission or the Financial Industry Regulatory Authority, Inc. (�FINRA�) is contemplating terminating such registration or listing; no consent, approval, authorization or order of, or filing, notification or registration with,

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The NASDAQ Global Market is required for the listing and trading of the Stock and Warrant Stock on The NASDAQ Global Market that will not have been obtained or filed as of the Closing Date; and no approval of the stockholders of the Company under the rules and regulations of The NASDAQ Global Market is required for the Company to issue and deliver the Units.

(n) Absence of Further Requirements. Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement, the Subscription Agreement(s) and the Warrants and the consummation of the transactions contemplated hereby and thereby (except such additional steps as may be necessary to qualify the Units for sale under state securities laws) has been obtained or made and is in full force and effect.

(o) Absence of Defaults and Conflicts Resulting from Transaction. The execution and delivery of this Agreement, the Subscription Agreement(s) and the Warrants and the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party, or of the charter or by-laws of the Company or any order, rule or regulation applicable to the Company or any of the Subsidiaries of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction; except for any such contraventions that would not, individually or in the aggregate, have a Material Adverse Effect.

(p) Absence of Existing Defaults and Conflicts. Neither the Company nor any of the Subsidiaries is in violation of its respective charter or by-laws (or other governing documents) or in default (or with the giving of notice or lapse of time would be in default) under any agreement, lease, contract, indenture or other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably expected to have a Material Adverse Effect.

(q) Anti-Takeover Provisions. The Company and its Board of Directors (the �Board�) have taken all necessary action, if any, to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company�s charter or the laws of the State of Delaware that is or could become applicable as of result of the Company�s issuance of the Units hereunder.

(r) Authorization of Agreement. The Company has the full right, power and authority to enter into this Agreement, the Subscription Agreement(s) and the Warrants, and to perform and to discharge its obligations hereunder and thereunder; and this Agreement, the Subscription Agreement(s) and the Warrants have been duly authorized, executed and delivered by the Company, and constitute valid, legal and binding obligations of the Company enforceable in accordance with their terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity.

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(s) Title to Property. The Company and the Subsidiaries have good and marketable title to all of the properties and assets reflected in the General Disclosure Package and the Final Prospectus, including the financial statements contained therein, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such financial statements (or as described in the General Disclosure Package and the Final Prospectus) or which are not material in amount. The Company and the Subsidiaries occupy their material leased properties under valid and binding leases conforming in all material respects to the descriptions thereof set forth in the General Disclosure Package and the Final Prospectus with no terms or provisions that would materially interfere with the use made or to be made thereof by them.

(t) Possession of Intellectual Property. The Company and each of the Subsidiaries owns, has obtained valid and enforceable licenses for, or otherwise has sufficient rights to use, all U.S. and foreign patents and patent applications, inventions, trademarks, service marks, tradenames, copyrights, know-how (including trade secrets and other unpatented and unpatentable proprietary information), domain names and other proprietary rights, including registrations and applications for registration thereof currently necessary for the conduct of all material aspects of its respective business as currently carried on and as proposed to be carried on as described in the General Disclosure Package and the Final Prospectus (collectively and together with any applications or registrations for the foregoing, the �Intellectual Property�). Except as specifically described in the General Disclosure Package and the Final Prospectus, (i)�no third parties have obtained rights to any such Intellectual Property from the Company, other than licenses granted in the ordinary course and those that would not have a Material Adverse Effect, and no third party has, or to the Company�s knowledge has alleged it has, any ownership or other rights in or to such Intellectual Property, except those rights held by third parties who have granted the Company a license or covenant not to sue thereto or under licenses granted by the Company in the ordinary course; (ii)�to the Company�s knowledge, there is no infringement or misappropriation by third parties of any such Intellectual Property which could reasonably be expected to have a Material Adverse Effect; (iii)�none of the Intellectual Property has been adjudged invalid or unenforceable, in whole or in part, and there is no pending or, to the Company�s knowledge, threatened action, suit, proceeding or claim by others challenging the Company�s or any Subsidiary�s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a basis for any such claim, except for any such action, suit, proceeding or claim which could not reasonably be expected to have a Material Adverse Effect; (iv)�there is no pending or, to the Company�s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, enforceability, or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a basis for any such claim, except for any such action, suit, proceeding or claim which could not reasonably be expected to have a Material Adverse Effect; (v)�to the Company�s knowledge, there is no patent or patent application that contains claims that dominate, may dominate or interfere (as such term is described in 35 U.S.C. �135 and 37 C.F.R. 41.100 to 41.208) with the issued or pending claims of any of the Intellectual Property except as would not reasonably be expected to have a Material Adverse Effect; (vi)�there is no prior art of which the Company is aware that could reasonably be deemed to render any issued U.S. patent held by the Company invalid or any pending U.S. patent application held by the Company unpatentable which has not been disclosed

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to the U.S. Patent and Trademark Office; and (vii)�there is no pending or, to the Company�s knowledge, threatened action, suit, proceeding or claim by others that the Company�s, or any of the Subsidiaries�, products, product candidates, or services as described in the General Disclosure Package and the Final Prospectus infringes, misappropriates, or otherwise violates, or would infringe upon, misappropriate or otherwise violate, any patent, trademark, copyright, trade secret or other proprietary right of others, or would, upon the commercialization of any product, product candidate or service described in the General Disclosure Package and the Final Prospectus, infringe upon, misappropriate or otherwise violate any patent, trademark, copyright, trade secret or other proprietary right of others, and the Company is unaware of any facts which would form a basis for any such claim, except for any such action, suit, proceeding or claim which could not reasonably be expected to have a Material Adverse Effect. None of the technology employed by the Company has been obtained or, to the knowledge of any of the officers of the Company, is being used by the Company in violation of any contractual obligation binding on the Company or in violation of the rights of any person or third party. The Company is not aware of any allegations that any of its employees are in or have ever been in violation of any employment contract, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where such violation relates to such employee�s breach of a confidentiality obligation, obligation to assign to the company Intellectual Property, or obligation not to use third party Intellectual Property or other proprietary rights on behalf of the Company.

(u) Possession of Licenses and Permits. The Company and each of the Subsidiaries has all material licenses, certifications, permits, franchises, approvals, clearances and other regulatory authorizations (�Permits�) from governmental authorities as are necessary to conduct its businesses as currently conducted and to own, lease and operate its properties in the manner described in the General Disclosure Package and the Final Prospectus. There is no claim, proceeding or controversy, pending or, to the knowledge of the Company or any of the Subsidiaries, threatened, involving the status of or sanctions under any of the Permits which could reasonably be expected to have a Material Adverse Effect. The Company and each of the Subsidiaries has fulfilled and performed all of its material obligations with respect to the Permits, and no event has occurred which allows, or after notice or lapse of time would allow, the revocation, termination, modification or other impairment of the rights of the Company or any of the Subsidiaries under such Permit which could reasonably be expected to have a Material Adverse Effect.

(v) Absence of Labor Dispute. No labor problem or dispute with the employees of the Company or any of the Subsidiaries exists or, to the Company�s knowledge, is threatened or imminent that could reasonably be expected to have a Material Adverse Effect.

(w) Accurate Disclosure. The statements in the General Disclosure Package and the Final Prospectus under the heading �Description of Capital Stock� are true and correct in all material respects and in the Company�s Annual Report on Form 10-K incorporated by reference into the Registration Statement, the General Disclosure Package and the Final Prospectus under the captions �Business�Regulatory� and �Business�Patents and Trade Secrets,� insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings and present the information required to be shown. All of

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the Units conform in all material respects to the description thereof contained in the General Disclosure Package and the Final Prospectus. There are no statutes, regulations, contracts or other documents (including, without limitation, any voting agreement) that are required to be described in the Registration Statement, the General Disclosure Package or the Final Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required. Neither the Company nor any of the Subsidiaries has sent or received any notice indicating the termination of or intention to terminate any of the contracts or agreements referred to or described in the Registration Statement, the General Disclosure Package or the Final Prospectus, or filed as an exhibit to the Registration Statement, and no such termination has been threatened by the Company, any Subsidiary or any other party to any such contract or agreement.

(x) Statistical and Market-Related Data. Any statistical, industry-related and market-related data included in, or incorporated by reference into, the Registration Statement, a Statutory Prospectus or the General Disclosure Package are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate.

(y) Forward-Looking Statements. The information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus regarding the Company�s expectations, plans and intentions, and any other information that constitutes �forward-looking� information within the meaning of the Act and the Exchange Act were made by the Company on a reasonable basis and reflect the Company�s good faith belief and/or estimate of the matters described therein.

(z) FINRA Affiliations. To the Company�s knowledge, there are no affiliations or associations between any member of FINRA and any of the Company�s officers, directors or 5% or greater security holders, except as set forth in the Registration Statement, the General Disclosure Package or the Final Prospectus.

(aa) Absence of Manipulation. Neither the Company, nor to the Company�s knowledge, any of its affiliates, has taken or may take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Securities to facilitate the sale or resale of the Units.

(bb) Compliance with Sarbanes-Oxley. The Company and the Board are in compliance with Sarbanes-Oxley and all applicable Exchange Rules. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the executive officers or directors of the Company or any of their respective family members, except as disclosed in the General Disclosure Package and the Final Prospectus. The Company has not directly or indirectly extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive officer of the Company.

(cc) Internal Controls. The Company maintains a system of internal accounting controls, including, but not limited to, internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory compliance controls

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(collectively, �Internal Controls�), that comply with the Securities Laws and sufficient to provide reasonable assurances that (i)�transactions are executed in accordance with management�s general or specific authorization; (ii)�transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. 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 existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls are overseen by the Audit Committee (the �Audit Committee�) of the Board in accordance with Exchange Rules. The Company has not publicly disclosed or reported to the Audit Committee or the Board, and within the next 90 days the Company does not reasonably expect to publicly disclose or report to the Audit Committee or the Board, a significant deficiency, material weakness, change in Internal Controls or fraud involving management or other employees who have a significant role in Internal Controls (each, an �Internal Control Event�), any violation of, or failure to comply with, the Securities Laws, or any matter which, if determined adversely, would have a Material Adverse Effect.

(dd) Disclosure Controls. The Company has established and maintains �disclosure controls and procedures� (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act; the Company�s �disclosure controls and procedures� are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and regulations of the Commission, and that all such information is accumulated and communicated to the Company�s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports.

(ee) Exchange Act Reporting. The Company is subject to and in compliance in all material respects with the reporting requirements of Section�13 or Section�15(d) of the Exchange Act

(ff) Financial Statements. The consolidated financial statements of the Company and the Subsidiaries, together with the related notes and schedules, as set forth in or incorporated by reference into the Registration Statement and the General Disclosure Package, present fairly in all material respects the financial position and the results of operations and cash flows of the Company and the consolidated Subsidiaries, at the indicated dates and for the indicated periods. Such financial statements and related schedules have been prepared in accordance with U.S. generally accepted principles of accounting, consistently applied throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included in, or incorporated by reference into, the Registration Statement and the Disclosure Package present fairly in all material respects the information shown therein and such data has been compiled on a basis consistent with the financial statements presented therein and the books and records of the Company.

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(gg) Auditor Independence. Ernst�& Young LLP, which has certified certain financial statements of the Company and delivered its opinion with respect to the audited financial statements and schedules included in, or incorporated by reference into, the Registration Statement and the General Disclosure Package, is an independent registered public accounting firm with respect to the Company within the meaning of the Act and the Rules and Regulations.

(hh) Litigation. There is no action, suit, claim or proceeding pending or, to the knowledge of the Company, threatened against or affecting the Company, any of the Subsidiaries or any of their respective properties before any court or administrative agency or otherwise (1)�that is required to be described in the Registration Statement or the Disclosure Package and is not so described or (2)�which, if determined adversely to the Company or any of the Subsidiaries, could reasonably be expected to have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Disclosure Package.

(ii) Insurance. The Company and each of the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as are prudent for the conduct of their respective businesses and the value of their respective properties and customary for companies engaged in similar industries. All policies of insurance insuring the Company or any Subsidiary or any of their respective businesses, assets, employees, officers and directors are in full force and effect, and the Company and the Subsidiaries are in compliance with the terms of such policies in all material respects. There are no claims by the Company or any Subsidiary under any such policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.

(jj) No Material Adverse Change in Business. Since the end of the period covered by the latest audited financial statements included in the General Disclosure Package, there has not been any material adverse change which has had or is reasonably likely to have a Material Adverse Effect, and there has not been any material transaction entered into or any material transaction that is contemplated of being entered into by the Company or the Subsidiaries, other than transactions in the ordinary course of business and changes and transactions described in the General Disclosure Package. The Company and the Subsidiaries have no material contingent obligations that are not disclosed in the Company�s consolidated financial statements in, or incorporated by reference into, the Registration Statement and the General Disclosure Package. Except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and the Subsidiaries.

(kk) Investment Company Act. Neither the Company nor any of the Subsidiaries is, nor after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the General Disclosure Package will be, an �investment company� within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder (collectively, the �Investment Company Act�).

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(ll) Regulatory Compliance. The conduct of business by the Company and each of the Subsidiaries complies, and at all times has complied, in all material respects with federal, state, local and foreign laws, statutes, ordinances, rules, regulations, decrees, orders, Permits and other similar items (�Laws�) applicable to its business, including, without limitation: (a)�the U.S. Food, Drug and Cosmetic Act (�FDCA�) (21 U.S.C. ��301 et seq.), the Public Health Services Act (�PHSA�) ( 42 U.S.C. ��262), the regulations promulgated pursuant to such laws, each as may be amended from time to time, and similar federal, state, local and foreign Laws; (b)�the Occupational Safety and Health Act, the Environmental Protection Act, the Toxic Substance Control Act and similar federal, state, local and foreign Laws applicable to hazardous or regulated substances and radioactive or biologic materials; (c)�the federal Anti-kickback Statute (42 U.S.C. ��1320a-7b(b)), the Stark Law (42 U.S.C. ��1395nn), any applicable state fraud and abuse prohibitions, including those that apply to all payors (governmental, commercial insurance and self-payors), the Anti-Inducement Law (42 U.S.C. ��1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. ��3729 et seq.), the administrative False Claims Law (42 U.S.C. ��1320a-7b(a)), the civil monetary penalty laws (42 U.S.C. ��1320a-7a), the Program Fraud and Civil Remedies Act (31 U.S.C. ��3801 et seq.), the criminal false claims statutes (e.g., 18 U.S.C. ��287 and 1001), the exclusion laws (42 U.S.C. ��1320a-7), the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. ��1320d et seq.), as amended by the Health Information, Technology for Economic and Clinical Health Act of 2009, the exclusion laws (42 U.S.C. 1320a-7), any federal or state billing or reimbursement laws or related guidance issued by the Centers for Medicare�& Medicaid Services or any applicable state Medicaid agency, and any comparable state or local laws, and the regulations promulgated pursuant to such laws, each as amended from time to time; and (d)�licensing, permitting, authorizing, approving and certification Laws covering any aspect of the business of the Company or any of the Subsidiaries. Neither the Company nor any of the Subsidiaries has received any notification asserting, or has knowledge of, any present or past failure to comply with or violation of any such Laws nor has the Company nor any of the Subsidiaries received any notification of proceedings relating to the revocation or modification of any license, permit, approval, certification, authorization or other governmental license. Except to the extent disclosed in the General Disclosure Package, the pending and completed clinical, pre-clinical and other studies, tests and research conducted by the Company or any of the Subsidiaries or on behalf of the Company or any of the Subsidiaries that are disclosed in the General Disclosure Package, if still pending, are and, if completed, were conducted in compliance, in all material respects, with, to the extent applicable, the FDCA and the regulations and guidelines promulgated thereunder, including Title 21 of the Code of Federal Regulations, and other U.S. Food and Drug Administration (�FDA�) regulations and guidelines governing clinical studies, current good laboratory practices and good clinical practices, the International Conference on Harmonisation Guidelines, the protocols submitted to the FDA, and applicable institutional review board and independent ethics committee requirements; the drug substances used in the clinical trials have been manufactured under current Good Manufacturing Practices; the descriptions of the preclinical and clinical studies and results thereof, conducted by or, on behalf of the Company or any of the Subsidiaries contained in the General Disclosure Package are accurate and complete in all material respects; neither the Company nor any of the Subsidiaries are in receipt of any written communications from the FDA or any foreign, state or local governmental body exercising comparable authority that reasonably call into question the results of the studies described or referred to in the General Disclosure Package; and neither the

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Company nor any of the Subsidiaries have received any notice or correspondence from the FDA or any foreign, state or local governmental body exercising comparable authority requiring the termination, suspension, or clinical hold of any tests or preclinical or clinical studies, or such written notice or correspondence from any Institutional Review Board or comparable authority requiring the termination or suspension of a clinical study, conducted by or on behalf of the Company or any of the Subsidiaries, which termination, suspension, or clinical hold would reasonably be expected to have a Material Adverse Effect. No filing or submission to the FDA or any other regulatory body, to the knowledge of the Company, contains any material omission or, material false information.

(mm) Environmental Laws. Neither the Company nor any Subsidiary is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous chemicals, toxic substances or radioactive and biological materials or relating to the protection or restoration of the environment or human exposure to hazardous chemicals, toxic substances or radioactive and biological materials (collectively, �Environmental Laws�) except for any such violation which could not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, neither the Company nor the Subsidiaries own or operate any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.

(nn) ERISA Compliance. The Company is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (�ERISA�); no �reportable event� (as defined in ERISA) has occurred with respect to any �pension plan� (as defined in ERISA) subject to Title IV of ERISA for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i)�Title IV of ERISA with respect to termination of, or withdrawal from, any �pension plan� or (ii)�Sections�412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the �Code�); and each �pension plan� for which the Company would have any liability that is intended to be qualified under Section�401(a) of the Code is so qualified in all material respects and, to the Company�s knowledge, nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

(oo) No Unlawful Payments. No payments or inducements have been made or given, directly or indirectly, to any federal or local official or candidate for, any federal or state office in the United States or foreign offices by the Company or any Subsidiary, or, to the knowledge of the Company, by any of their officers, directors, employees or agents, by any other person in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization relating to the business of the Company or any Subsidiary, except for such payments or inducements as were lawful under applicable laws, rules and regulations. Neither the Company nor any of the Subsidiaries, any director, executive officer, nor, to the Company�s knowledge, any officer, agent, employee or other person associated with or acting on

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behalf of the Company or any of the Subsidiaries has (i)�used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii)�made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii)�violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)�made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

(pp) Compliance with Money Laundering Laws. The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Company does business, 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 any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company threatened.

(qq) Compliance with OFAC. None of the Company, any of the Subsidiaries, any director, executive officer, or, to the Company�s knowledge, any officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (�OFAC�); and the Company will not, directly or indirectly, use the proceeds of the offering of the Units hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

(rr) Taxes. The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and have paid all taxes indicated by said returns and all assessments received by them or any of them to the extent that such taxes have become due and are not being contested in good faith and for which an adequate reserve for accrual has been established in accordance with U.S. generally accepted accounting principles. All tax liabilities have been adequately provided for in the financial statements of the Company, and the Company does not know of any actual or proposed additional material tax assessments. 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 Units.

(ss) Partnerships and Joint Ventures. Other than the Subsidiaries or except as disclosed in the General Disclosure Package, the Company does not own, directly or indirectly, any shares of capital stock and does not have any other equity or ownership or proprietary interest in any corporation, partnership, association, trust, limited liability company, joint venture or other entity.

(tt) Officer Certificates. Any certificate signed by any officer of the Company and delivered to the Placement Agent or counsel for the Placement Agent in connection with the

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offering of the Units contemplated hereby shall be deemed a representation and warranty by the Company to the Placement Agent and shall be deemed to be a part of this Section�3 and incorporated herein by this reference.

(uu) Closing. Time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 6 hereunder shall be at 10:00AM., New York time, on December�12, 2014 (the �Closing Date�) at the office of Cooley LLP, 1114 Avenue of the Americas, New York, New York, 10036.

4. Certain Agreements of the Company. The Company agrees with the Placement Agent that:

(a) Filing of Prospectuses. The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule�424(b)(2) (or, if applicable and consented to by the Placement Agent, subparagraph�(5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of this Agreement. The Company has complied and will comply with Rule�433.

(b) Filing of Amendments; Response to Commission Requests. The Company will promptly advise the Placement Agent of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Placement Agent a reasonable opportunity to comment on any such amendment or supplement; and the Company will also advise the Placement Agent promptly of (i)�the filing of any such amendment or supplement, (ii)�any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii)�the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv)�the receipt by the Company of any notification with respect to the suspension of the qualification of the Units in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.

(c) Continued Compliance with Securities Laws. If, at any time when a prospectus relating to the Units is (or but for the exemption in Rule�172 would be) required to be delivered under the Act by any Placement Agent or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Placement Agent of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Placement Agent and the dealers and any other dealers upon request of the Placement Agent, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Placement Agent�s consent to, nor the Placement Agent�s delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section�6 hereof.

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(d) Rule�158. As soon as practicable, but not later than 15 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 consecutive months (which need not be audited) beginning after the date of this Agreement and satisfying the provisions of Section�11(a) of the Act and Rule�158.

(e) Furnishing of Prospectuses. The Company will furnish to the Placement Agent copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Placement Agent reasonably requests. The Company will pay the expenses of printing and distributing to the Placement Agent all such documents.

(f) [Intentionally Omitted]

(g) Blue Sky Qualifications. The Company will arrange for the qualification of the Units for sale under the laws of such jurisdictions as the Placement Agent designates and will continue such qualifications in effect so long as required for the distribution; provided, that , in connection therewith, the Company will not be required to file a general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it would not otherwise be required to so qualify, or subject itself to taxation for doing business in any jurisdiction in which it is not otherwise so subject.

(h) Reporting Requirements. The Company will file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Final Prospectus and prior to the termination of the offering of the Units. During the period of three�(3) years hereafter, the Company will furnish to the Placement Agent and, upon request, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Placement Agent (i)�as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii)�from time to time, such other information concerning the Company as the Placement Agent may reasonably request; provided, that, if the Placement Agent shall request nonpublic confidential information after the Closing Date, the Company shall only be required to provide the Placement Agent with such information if the Placement Agent shall enter into a customary confidentiality agreement with the Company with respect thereto. However, so long as the Company is subject to the reporting requirements of either Section�13 or Section�15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (�EDGAR�), it is not required to furnish such reports or statements to the Placement Agent.

(i) Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including but not limited to any filing fees and other expenses (including fees, disbursements and other charges of counsel to the Placement Agent) incurred in connection with qualification of the Units for sale under the laws of such jurisdictions as the Placement Agent designates and the preparation and printing of memoranda relating, costs and expenses relating to investor presentations or any �road show� in connection with the offering and sale of the Units including, without limitation, expenses associated with the

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production of road show slides and graphics, fees and expenses of any consultants engaged with the written consent of the Company in connection with such presentations, any travel expenses of the Company�s officers and employees and any such consultants and any other expenses of the Company, fees and expenses incident to listing the Stock and Warrant Stock on The NASDAQ Global Market and other national and foreign exchanges, fees and expenses in connection with the registration of the Units under the Exchange Act, and expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Placement Agent and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors.

(j) Use of Proceeds. The Company will use the net proceeds received by the Company in connection with this offering in the manner described in the �Use of Proceeds� section of the General Disclosure Package and, except as disclosed in the General Disclosure Package, the Company does not intend to use any of the proceeds from the sale of the Units hereunder to repay any outstanding debt owed to any affiliate of the Placement Agent. The Company will not invest, or otherwise use the proceeds received by the Company from its sale of the Units in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act.

(k) Absence of Manipulation. The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.

(l) Transfer Agent and Registrar. The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Securities.

(m) Restriction on Sale of Securities by the Company. For the period specified below (the �Lock-Up Period�), the Company will not, directly or indirectly, take any of the following actions with respect to its Securities or any securities convertible into or exchangeable or exercisable for any of its Securities (�Lock-Up Securities�): (i)�amend, modify or change the terms of any warrants to acquire Common Stock outstanding on the date hereof, (ii)�offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (iii)�offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iv)�enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (v)�establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section�16 of the Exchange Act or (vi)�file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, without the prior written consent of the Placement Agent, except (A)�grants of awards to purchase Lock-Up Securities, or issuing Lock-Up Securities, pursuant to employee benefit plans in effect on the date hereof and described in the General Disclosure Package and the Final Prospectus or (B)�issuances of Lock-Up Securities pursuant to the exercise, conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement; provided further, that this provision will not restrict the Company from issuing shares of Lock-Up Securities, which in the aggregate shall not exceed 5% of the outstanding shares of the Securities as of the date of this Agreement, as consideration

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in connection with collaborations, acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that (x)�any such issuance shall only be to a person or entity (or to the equityholders of such entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company or any of the Subsidiaries and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (y)�the recipient of any such Lock-Up Securities shall agree in writing to be bound by the terms of this Section�4(m). The initial Lock-Up Period will commence on the date hereof and continue for 60 days after the date hereof or such earlier date that the Placement Agent consents to in writing; provided, however, that if (1)�during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2)�prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the materials news or material event, as applicable, unless the Placement Agent waives, in writing, such extension; provided, further, that such extension shall not apply if (A)�the Company�s securities are �actively traded securities� (as defined in Regulation M of the Exchange Act, (B)�the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act of 1933, as amended, in the manner contemplated by NASD Conduct Rule 2711(f)(4), and (C)�the provisions of NASD Conduct Rule 2711(f)(4) are not applicable to any research reports relating to the Company published or distributed by any of the Placement Agent during the 15 days before or after the last day of the Lockup Period (before giving effect to such extension). The Company will provide the Placement Agent with notice of any announcement described in clause�(2) of the preceding sentence that gives rise to an extension of the Lock-Up Period.

(n) Lock-Up Agreements. The Company has caused each officer and director of the Company to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the Placement Agent, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of the Securities of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for the Securities or derivative of the Securities owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 60 days after the date of this Agreement, directly or indirectly, except with the prior written consent of the Placement Agent (the �Lock-Up Agreements�).

5. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Placement Agent, and the Placement Agent represents and agrees that, unless it obtains the prior consent of the Company and the Placement Agent, it has not made and will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a �free writing prospectus,� as defined in Rule�405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Placement Agent is hereinafter referred to as a �Permitted Free Writing Prospectus.� The Company represents that it has treated and agrees that it will treat

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each Permitted Free Writing Prospectus as an �issuer free writing prospectus,� as defined in Rule�433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.

6. Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder will be subject to the accuracy of the representations and warranties of the Company herein (as though made on such Closing Date), to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:

(a) Accountants� Comfort Letter. The Placement Agent shall have received letters, dated, respectively, the date hereof and the Closing Date, of Ernst�& Young LLP in form and substance reasonably satisfactory to the Placement Agent containing statements and information of the type customarily included in accountants� �comfort letters� to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus and confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws.

(b) Filing of Prospectus. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section�4(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Placement Agent, shall be contemplated by the Commission.

(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i)�any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to market the Units; (ii)�any downgrading in the rating of any debt securities of the Company by any �nationally recognized statistical rating organization� (as defined for purposes of Rule�436(g)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii)�any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Placement Agent, impractical to market or to enforce contracts for the sale of the Units, whether in the primary market or in respect of dealings in the secondary market; (iv)�any suspension or material limitation of trading in securities generally on the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ Capital Market or the NYSE MKT or any setting of minimum or maximum prices for trading on such exchange; (v)�or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi)�any banking moratorium declared by any U.S. federal or New York authorities; (vii)�any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed or

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(viii)�any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Units or to enforce contracts for the sale of the Units.

(d) Opinion and 10b-5 Statement of Counsel for Company. The Placement Agent shall have received an opinion and 10b-5 statement, dated such Closing Date, of Cooley LLP, counsel for the Company, in form and substance reasonably satisfactory to the Placement Agent.

(e) Opinion of Intellectual Property Counsel for Company. The Placement Agent shall have received an opinion, dated such Closing Date, of Diane Wilcock, counsel for the Company, in form and substance reasonably satisfactory to the Placement Agent.

(f) Opinion and 10b-5 Statement of Counsel for the Placement Agent. The Placement Agent shall have received from Proskauer Rose LLP, counsel for the Placement Agent, such opinion or opinions, dated such Closing Date, with respect to such matters as the Placement Agent may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(g) Officer�s Certificate. The Placement Agent shall have received a certificate, dated such Closing Date, of (i)�the Chief Executive Officer and the Chief Financial Officer of the Company in which such officers shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate and (ii)�of the Chief Financial Officer stating the conclusions and findings of such individual, in his capacity as Chief Financial Officer of the Company, with respect to certain financial information and such other matters as reasonably requested by the Placement Agent.

(h) Secretary�s Certificate. The Placement Agent shall have received a certificate, dated such Closing Date, of the Secretary of the Company certifying as to (i)�the Company�s charter, (ii)�the Company�s by-laws, (iii)�the resolutions of the Board (or committee thereof) authorizing the filing of the Registration Statement, the execution and delivery of this Agreement and all other matters related thereto and (iv)�the execution and delivery of this Agreement.

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(i) Lock-Up Agreements. On or prior to the date hereof, the Placement Agent shall have received Lock-Up Agreements from each executive officer and director of the Company.

(j) Subscription Agreements. The Company shall have entered into Subscription Agreement(s) with each of the Purchaser(s) and each such Subscription Agreement(s) shall be in full force and effect.

The Company will furnish the Placement Agent with conformed copies of such opinions, certificates, letters and documents as the Placement Agent reasonably requests. The Placement Agent may in its sole discretion waive compliance with any conditions to the obligations of the Placement Agent hereunder, whether in respect of the Closing Date or otherwise.

7. Indemnification and Contribution.

(a) Indemnification of Placement Agent. The Company will indemnify and hold harmless the Placement Agent, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Placement Agent within the meaning of Section�15 of the Act or Section�20 of the Exchange Act (each, an �Indemnified Party�), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by the Placement Agent specifically for use therein, it being understood and agreed that the only such information furnished by the Placement Agent consists of the information described as such in subsection�(b) below.

(b) Indemnification of Company. The Placement Agent will severally and not jointly indemnify and hold harmless the Company, each of its directors and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within the meaning of Section�15 of the Act or Section�20 of the Exchange Act (each, a �Placement Agent Indemnified Party�), against any losses, claims, damages or liabilities to which such Placement Agent Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages

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or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Placement Agent specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Placement Agent Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Placement Agent Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by the Placement Agent consists of the following information in the Final Prospectus furnished on behalf of each Underwriter: the Placement Agent Fee figure appearing in the third paragraph under the caption �Plan of Distribution.�

(c) Actions Against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection�(a) or (b)�above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection�(a) or (b)�above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection�(a) or (b)�above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i)�includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii)�does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.

(d) Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection�(a) or (b)�above, then each indemnifying party shall contribute to the amount paid or payable by such

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indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection�(a) or (b)�above (i)�in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Placement Agent on the other from the offering of the Units or (ii)�if the allocation provided by clause�(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause�(i) above but also the relative fault of the Company on the one hand and the Placement Agent on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Placement Agent on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Placement Agent as provided in Section�2(e). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Placement Agent and the parties� relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection�(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection�(d). Notwithstanding the provisions of this subsection�(d), the Placement Agent shall not be required to contribute any amount in excess of the amount of compensation received by it pursuant to Section�2(e), less the amount of any damages which the Placement Agent has otherwise paid or become liable to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section�11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Company and the Placement Agent agree that it would not be just and equitable if contribution pursuant to this Section�7(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section�7(d).

8. Termination. The obligations of the Placement Agent and the Purchasers hereunder and under the Subscription Agreements may be terminated by the Placement Agent, in its absolute discretion by notice given to the Company prior to delivery of and payment for the Units if, prior to that time, any of the events described in Section�6(c) have occurred or if the Purchasers shall decline to purchase the Units for any reason permitted under this Agreement or the Subscription Agreements.�The Company hereby acknowledges that in the event that this Agreement is terminated by the Placement Agent pursuant to the terms hereof, the Subscription Agreements shall automatically terminate without any further action on the part of the parties thereto.

9. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the Placement Agent set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Placement Agent, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Units. If

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the purchase of the Units by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section�8 hereof, the Company will reimburse the Placement Agent for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Units, and the respective obligations of the Company and the Underwriters pursuant to Section�8 hereof shall remain in effect. In addition, if any Units have been purchased hereunder, the representations and warranties in Section�3 and all obligations under Section�4 shall also remain in effect.

10. Notices. All communications hereunder will be in writing and, if sent to the Placement Agent, will be mailed, delivered or telegraphed and confirmed to the Cowen and Company, LLC, at 599 Lexington Avenue, New York, New York 10022, Attention: General Counsel, with a copy (which shall not constitute notice hereunder) to Proskauer Rose LLP, Eleven Times Square, New York, New York 10036, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 2910 Seventh Street, Berkeley, California 94710, Attention: Chief Financial Officer, with a copy (which shall not constitute notice hereunder) to Cooley LLP, 3175 Hanover Street, Palo Alto, California 94304-1130, Fax No. (650)�849-7400, Attention: Jim Fulton.

11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section�7, and no other person will have any right or obligation hereunder.

12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

13. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:

(a) No Other Relationship. The Placement Agent has been retained solely to act as a placement agent in connection with the sale of the Units and that no fiduciary, advisory or agency relationship between the Company and the Placement Agent has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the Placement Agent advised or is advising the Company on other matters;

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

(c) Absence of Obligation to Disclose. The Company has been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and

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

14. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.

15. Integration. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes and replaces all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.

[Remainder of page intentionally left blank]

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If the foregoing is in accordance with the Placement Agent�s understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the Placement Agent in accordance with its terms.

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Very truly yours,

XOMA CORPORATION

By:	�	/s/ Fred Kurland
Name: Fred Kurland
Title: Vice President, Finance and Chief Financial Officer

The foregoing Placement Agent Agreement is hereby confirmed and accepted as of the date first above written.

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COWEN AND COMPANY, LLC

By:	�	/s/ Grant Wood
Name: Grant Wood
Title: Head of Equity Capital Markets

Acting as Placement Agent

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EXHIBIT A

SUBSCRIPTION AGREEMENT

[Separately Filed]

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EXHIBIT B

FORM OF WARRANT

[Separately Filed]

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SCHEDULE A

1. General Use Free Writing Prospectuses (included in the General Disclosure Package)

None.

2. Other Information Included in the General Disclosure Package

None.

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SCHEDULE B

LIST OF SUBSIDIARIES

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Subsidiaries of the Company	��	�	��	�	��	Jurisdiction of Organization
XOMA Ireland Limited	��		��		��	Ireland
XOMA Technology Ltd.	��		��		��	Bermuda
XOMA (US) LLC	��		��		��	Delaware
XOMA Commercial LLC	��		��		��	Delaware
XOMA CDRA LLC	��		��		��	Delaware
XOMA UK Limited	��		��		��	United Kingdom

Exhibit 4.1

XOMA CORPORATION

WARRANT TO PURCHASE COMMON STOCK

Warrant No.:��

Number of Shares of Common Stock:��

Date of Issuance: ��, 2014 (the �Issuance Date�)

XOMA Corporation, a Delaware corporation (the �Company�), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the registered holder hereof or its permitted assigns (the �Holder�) is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below) then in effect, upon exercise of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the �Warrant�), at any time or times on or after the date hereof (the �Exercisability Date�), but not after 11:59 p.m., New York time, on the Expiration Date (as defined below), ��(��)¹ fully paid nonassessable shares of Common Stock (as defined below) (the �Warrant Shares�). Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section�16. This Warrant is the Warrant to purchase Common Stock (this �Warrant�) issued pursuant to (i)�Section�2 of that certain Subscription Agreement (the �Subscription Agreement�), dated as of December ��, 2014 (the �Subscription Date�), by and between the Company and the Holder (the �Subscription Agreement�) and (ii)�certain prospectus supplement dated December��, 2014 and accompanying prospectus (collectively, the �Prospectus�) that forms a part of the Company�s Registration Statement on Form S-3 (File number ��) (the �Registration Statement�).

1. EXERCISE OF WARRANT.

(a) Mechanics of Exercise. Subject to the terms and conditions hereof, this Warrant may be exercised by the Holder on any day on or after the Exercisability Date, in whole or in part, by delivery of a written notice, in the form attached hereto as Exhibit A (the �Exercise Notice�), of the Holder�s election to exercise this Warrant. Within one (1)�day following the Exercise Notice, the Holder shall make payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares as to which this Warrant is being exercised (the �Aggregate Exercise Price�) in cash or by wire transfer of immediately available funds, or provided the conditions for cashless exercise set forth in Section�1(d) are satisfied, by notifying the Company that this Warrant is being exercised pursuant to a Cashless Exercise (as defined in Section�1(d)). The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. On or before the first (1^st)�Business Day following the date on which the Company has received the Exercise Notice, the Company shall

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¹�	Insert a number of shares equal to the number of shares of Common Stock purchased under the Subscription Agreement.

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transmit by facsimile an acknowledgment of confirmation of receipt of the Exercise Notice to the Holder and the Company�s transfer agent (the �Transfer Agent�). On or before the third (3^rd)�Business Day following the date on which the Company has received the Exercise Notice (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, 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, issue and dispatch by overnight courier 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, 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 evidencing such Warrant Shares, as the case may be. If this Warrant is submitted in connection with any exercise pursuant to this Section�1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than three Business Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section�7(d)) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder or an affiliate thereof. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant.

(b) Exercise Price. For purposes of this Warrant, �Exercise Price� means $��², subject to adjustment as provided herein.

(c) Company�s Failure to Timely Deliver Securities. If the Company shall fail for any reason or for no reason to issue to the Holder on or prior to the Share Delivery Date in compliance with the terms of this Section�1, a certificate 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) shares of Common Stock to deliver in satisfaction of a sale by the

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²�	Insert 160% of the Purchase Price for the Common Stock under the Subscription Agreement, but not greater than $8.00.

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Holder of shares of Common Stock issuable upon such exercise that the Holder anticipated receiving from the Company (a �Buy-In�), then the Company shall, within three (3)�Business 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 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 (and to issue such Warrant Shares or credit such Holder�s balance account at DTC) shall terminate, or (ii)�promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Warrant Shares or credit such Holder�s balance account at DTC and 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 Closing Bid Price on the date of exercise.

(d) Cashless Exercise. Notwithstanding anything contained herein to the contrary, if at the time of exercise hereof, the Registration Statement is not effective for the issuance and resale of the Warrant Shares that are subject of the Exercise Notice (the �Unavailable Warrant Shares�), or an exemption from registration is not available for the issuance and resale by the Holder of such Unavailable Warrant Shares, the Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, elect instead to receive upon such exercise the �Net Number� of shares of Common Stock determined according to the following formula (a �Cashless Exercise�):

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			�	Net�Number�= (A x B) - (A x C)
			�	��D

			�	For purposes of the foregoing formula:

�	A=	��	�	the total number of shares with respect to which this Warrant is then being exercised.

�	B=	��	�	the arithmetic average of the Closing Sale Prices of the shares of Common Stock for the five (5) consecutive Trading Days ending on the date immediately preceding the date of the Exercise Notice.

�	C=	��	�	the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.

�	D=	��	�	the Closing Sale Price on the date of the Exercise Notice.

(e) Rule 144. For purposes of Rule 144(d) promulgated under the Securities Act, as in effect on the date hereof, it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued pursuant to the Subscription Agreement.

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(f) 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.

(g) Beneficial Ownership Limitation. The Company shall not effect the exercise of this Warrant, and the Holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Holder (together with such Holder�s affiliates) would beneficially own in excess of 4.99% (the �Maximum Percentage�) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i)�exercise of the remaining, unexercised portion of this Warrant beneficially owned by such Person and its affiliates and (ii)�exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section�13(d) of the Securities Exchange Act of 1934, as amended (the �Exchange Act�), it being acknowledged 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.. For purposes of this Warrant, 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 (1)�the Company�s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2)�a more recent public announcement by the Company or (3)�any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the Holder, the Company shall within one (1)�Business Day confirm in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% or less than 4.99% specified in such notice; provided that (i)�any such increase will not be effective until the sixty-first (61st)�day after such notice is delivered to the Company, and (ii)�any such increase or decrease will apply only to the Holder and not to any other holder of the Warrants. For the avoidance of doubt, to the extent the limitation set forth in this Section�1(g) applies, the determination (i)�of whether the exercise of this Warrant may be effected (vis-a-vis other Options or Convertible Securities owned by the Holder or any of its Affiliates) and (ii)�of which such Options or Convertible Securities shall be convertible, exercisable or exchangeable (as the case may be, as among all such securities owned by the Holder) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). The provisions of this paragraph shall be construed and implemented in a manner other than

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in strict conformity with the terms of this Section�1(g) 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.

2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES . The Exercise Price and the number of Warrant Shares shall be adjusted from time to time as follows:

(a) Stock Dividends and Splits. Without limiting any provision of Section�4, if the Company, at any time on or after the Subscription Date, (i)�pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii)�subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii)�combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller number of shares (a �Stock Combination Event�), then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i)�of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii)�or (iii)�of this paragraph shall become effective immediately after the effective date of such subdivision or combination. If any event requiring an adjustment under this paragraph occurs during the period that an Exercise Price is calculated hereunder, then the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.

(b) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to paragraphs (a)�of this Section�2, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein).

(c) Holder�s Right of Alternative Exercise Price Following Issuance of Certain Options or Convertible Securities. In addition to and not in limitation of the other provisions of this Section�2, if the Company in any manner issues or sells any Options or Convertible Securities (any such securities, �Variable Price Securities�) after the Subscription Date that are convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may vary with the market price of the Common Shares, including by way of one or more reset(s) to a fixed price, but exclusive of such formulations reflecting customary anti-dilution provisions (such as share splits, share combinations, share dividends and similar transactions) (each of the formulations for such variable price being herein referred to as, the �Variable Price�), the Company shall provide written notice thereof via facsimile and overnight courier to the Holder on the date of issuance of such Convertible Securities or Options. From

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and after the date the Company issues any such Convertible Securities or Options with a Variable Price, the Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the Exercise Price upon exercise of this Warrant by designating in the Exercise Notice delivered upon any exercise of this Warrant that solely for purposes of such exercise the Holder is relying on the Variable Price rather than the Exercise Price then in effect. The Holder�s election to rely on a Variable Price for a particular exercise of this Warrant shall not obligate the Holder to rely on a Variable Price for any future exercises of this Warrant.

(d) Calculations. All calculations under this Section�2 shall be made by rounding to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.

3. RIGHTS UPON DISTRIBUTION OF ASSETS. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a �Distribution�), at any time after the issuance of this Warrant, then, in each such case (a)�any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of shares of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction of which (i)�the numerator shall be the Closing Bid Price of the shares of Common Stock on the Trading Day immediately preceding such record date minus the value of the Distribution (as determined in good faith by the Company�s Board of Directors) applicable to one share of Common Stock, and (ii)�the denominator shall be the Closing Bid Price of the shares of Common Stock on the Trading Day immediately preceding such record date; and (b)�the number of Warrant Shares shall be increased to a number of shares equal to the number of shares of Common Stock obtainable immediately prior to the close of business on the record date fixed for the determination of holders of shares of Common Stock entitled to receive the Distribution multiplied by the reciprocal of the fraction set forth in the immediately preceding paragraph (a).

4. PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS.

(a) Purchase Rights. In addition to any adjustments pursuant to Section�2 above, 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 shares 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 on exercise hereof, including without limitation, the Maximum Percentage) 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

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(provided, however, to the extent that the Holder�s right to participate in any such Purchase Right would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Maximum Percentage).

(b) Fundamental Transactions. Upon the consummation of each Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of the applicable Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the �Company� shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of each Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation of the applicable Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of this Warrant prior to the applicable Fundamental Transaction, such shares of publicly traded common stock (or its equivalent) of the Successor Entity (including its Parent Entity) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted in accordance with the provisions of this Warrant. Notwithstanding the foregoing, and without limiting Section�1(g) hereof, the Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section�4(b) to permit the Fundamental Transaction without the assumption of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to the consummation of each Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a �Corporate Event�), the Company shall make appropriate provision to insure that the Holder will thereafter have the right to receive upon an exercise of this Warrant at any time after the consummation of the applicable Fundamental Transaction but prior to the Expiration Date, in lieu of the shares of the Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of the Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder. Notwithstanding the foregoing, in the event of a Fundamental Transaction, at the request of the Holder delivered before the 90th day after such Fundamental Transaction, the Company (or the Successor Entity) shall purchase this Warrant from the Holder by paying to the Holder, within five Business Days after such request (or, if later, on the effective date of the Fundamental Transaction), cash in an amount equal to the Black Scholes Value of the remaining unexercised portion of this Warrant on the date of such Fundamental Transaction.

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(c) Application. The provisions of this Section�4 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events and shall be applied as if this Warrant (and any such subsequent warrants) were fully exercisable and without regard to any limitations on the exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied however with respect to shares of capital stock registered under the 1934 Act and thereafter receivable upon exercise of this Warrant (or any such other warrant)).

5. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation, Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. 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 all 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 all 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 (without regard to any limitations on exercise).

6. WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person�s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person�s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.

7. REISSUANCE OF WARRANTS.

(a) Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section�7(d)),

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registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less then the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred.

(b) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.

(c) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, that no Warrants for fractional shares of Common Stock shall be given.

(d) 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 Section�7(a) or Section�7(c), 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.

8. NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section�7 of Annex I to the Subscription Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i)�immediately upon each adjustment of the Exercise Price and the number of Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s) and (ii)�at least fifteen (15)�days prior to the date on which the Company closes its books or takes a record (A)�with respect to any dividend or distribution upon the shares of Common Stock, (B)�with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property to holders of shares of Common Stock or (C)�for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or in conjunction with such

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notice being provided to the Holder and (iii)�at least ten (10)�Trading Days prior to the consummation of any Fundamental Transaction. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of its Subsidiaries, the Company shall simultaneously file such notice with the SEC (as defined in the Securities Purchase Agreement) pursuant to a Current Report on Form 8-K. It is expressly understood and agreed that the time of execution specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.

9. 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.

10. SEVERABILITY. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

11. GOVERNING LAW. This Warrant shall be governed by and construed and enforced in accor�dance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company�s obligations to the Holder or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.

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12. 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.

13. DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price, the Closing Sale Price, the Closing Bid Price or fair market value or the arithmetic calculation of the Warrant Shares (as the case may be), the Company or the Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via facsimile (i)�within two (2)�Business Days after receipt of the applicable notice giving rise to such dispute to the Company or the Holder (as the case may be) or (ii)�if no notice gave rise to such dispute, at any time after the Holder learned of the circumstances giving rise to such dispute. If the Holder and the Company are unable to agree upon such determination or calculation (as the case may be) of the Exercise Price, the Closing Sale Price, the Closing Bid Price or fair market value or the number of Warrant Shares (as the case may be) within three (3)�Business Days of such disputed determination or arithmetic calculation being submitted to the Company or the Holder (as the case may be), then the Company shall, within two (2)�Business Days submit via facsimile (a)�the disputed determination of the Exercise Price, the Closing Sale Price, the Closing Bid Price or fair market value (as the case may be) to an independent, reputable investment bank selected by the Company and agreed to by the Holder or (b)�the disputed arithmetic calculation of the Warrant Shares to the Company�s independent, outside accountant. The Company shall cause the investment bank or the accountant (as the case may be) to perform the determinations or calculations (as the case may be) and notify the Company and the Holder of the results no later than ten (10)�Business Days from the time it receives such disputed determinations or calculations (as the case may be). Such investment bank�s or accountant�s determination or calculation (as the case may be) shall be binding upon all parties absent demonstrable error. The expenses of the investment bank and accountant will be borne by the Company unless the investment bank or accountant determines that the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares by the Holder was incorrect, in which case the expenses of the investment bank and accountant will be borne by the Holder.

14. REMEDIES, CHARACTERIZATION, 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 and the Subscription Agreement, 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. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, exercises and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company

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11.

therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company�s compliance with the terms and conditions of this Warrant (including, without limitation, compliance with Section�2 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the exercise of this Warrant shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than the Holder or its agent on its behalf.

15. TRANSFER. This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company, subject to the applicable securities laws.

16. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:

(a) �Black Scholes Value� means the value of the unexercised portion of this Warrant remaining on the date of the Holder�s request, which value is calculated using the Black Scholes Option Pricing Model obtained from the �OV� function on Bloomberg utilizing (i)�an underlying price per share equal to the greater of (1)�the highest Closing Sale Price of the Common Stock during the period beginning on the Trading Day immediately preceding the public disclosure of the applicable Fundamental Transaction and ending on the Trading Day immediately preceding the consummation of the applicable Fundamental Transaction and (2)�the sum of the price per share being offered in cash in the applicable Fundamental Transaction (if any) plus the value of the non-cash consideration being offered in the applicable Fundamental Transaction (if any), (ii)�a strike price equal to the Exercise Price in effect on the of date of the Holder�s request, (iii)�a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the greater of (1)�the remaining term of this Warrant as of the date of the Holder�s request and (2)�the remaining term of this Warrant as of the date of consummation of the applicable Fundamental Transaction or as of the date of the Holder�s request pursuant to Section�4(c) if such request is prior to the date of the consummation of the applicable Fundamental Transaction and (iv)�an expected volatility equal to the greater of 80% and the 90 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the earlier to occur of the public disclosure or consummation of the applicable Fundamental Transaction.

(b) �Bloomberg� means Bloomberg, L.P.

(c) �Business Day� means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.

(d) �Closing Bid Price� and �Closing Sale Price� means, for any security as of any date, the last closing bid price and last closing trade price, respectively, for

�

12.

such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then the last bid price or the last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported in the �pink sheets� by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price, as the case may be, of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.

(e) �Common Stock� means (i)�the Company�s shares of common stock, and (ii)�any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.

(f) �Convertible Securities� means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.

(g) �Eligible Market� means The New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market, the Nasdaq Global Market or the Principal Market.

(h) �Expiration Date� means the date that is the second (2nd)�anniversary of the Exercisability Date, if such date falls on a day other than a Business Day or on which trading does not take place on the Principal Market (a �Holiday�), the next date that is not a Holiday.

(i) �Fundamental Transaction� means that (i)�the Company or any of its Subsidiaries shall, directly or indirectly, in one or more related transactions, (1)�consolidate or merge with or into (whether or not the Company or any of its Subsidiaries is the surviving corporation) any other Person, or (2)�sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its respective properties or assets to any other Person, or (3)�allow any other Person to make a purchase, tender or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares of Voting Stock of the Company held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), or (4)�consummate a stock or share purchase agreement or other business

�

13.

combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other Person whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares of Voting Stock of the Company 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 or share purchase agreement or other business combination), or (5)�(I)�reorganize, recapitalize or reclassify the Common Stock, (II) effect or consummate a stock combination, reverse stock split or other similar transaction involving the Common Stock or (III) make any public announcement or disclosure with respect to any stock combination, reverse stock split or other similar transaction involving the Common Stock (including, without limitation, any public announcement or disclosure of (x)�any potential, possible or actual stock combination, reverse stock split or other similar transaction involving the Common Stock or (y)�board or stockholder approval thereof, or the intention of the Company to seek board or stockholder approval of any stock combination, reverse stock split or other similar transaction involving the Common Stock), or (ii)�any �person� or �group� (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations promulgated thereunder) is or shall become the �beneficial owner� (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Voting Stock of the Company.

(j) �Options� means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.

(k) �Parent Entity� of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.

(l) �Person� means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof.

(m) �Principal Market� means the Nasdaq Global Select Market.

(n) �Successor Entity� means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been entered into.

(o) �Trading Day� means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that �Trading Day� shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder.

�

14.

(p) �Voting Stock� of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

[signature page follows]

�

15.

IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.

�


XOMA CORPORATION

By:	�	�
	�	Name:
	�	Title:

EXHIBIT A

EXERCISE NOTICE

TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS

WARRANT TO PURCHASE COMMON STOCK

XOMA CORPORATION

The undersigned holder hereby exercises the right to purchase ��of the shares of Common Stock (�Warrant Shares�) of XOMA CORPORATION, a Delaware corporation (the �Company�), evidenced by the attached Warrant to Purchase Common Stock (the �Warrant�). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.

1. Form of Exercise Price. The Holder intends that payment of the Exercise Price shall be made as:

��a �Cash Exercise� with respect to ��Warrant Shares; and/or

��a �Cashless Exercise� with respect to ��Warrant Shares.

2. Payment of Exercise Price. In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the holder shall pay the Aggregate Exercise Price in the sum of $��to the Company in accordance with the terms of the Warrant.

3. Delivery of Warrant Shares. The Company shall deliver to the holder ��Warrant Shares in accordance with the terms of the Warrant.

Date: �� , ��

Name of Registered Holder

�



By:	�	�
	�	Name:
	�	Title:

ACKNOWLEDGMENT

The Company hereby acknowledges this Exercise Notice and hereby directs [INSERT NAME OF TRANSFER AGENT] to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated ��, 201��from the Company and acknowledged and agreed to by [INSERT NAME OF TRANSFER AGENT].

�


XOMA CORPORATION

	�	By:	�	�
	�		�	Name:
	�		�	Title:

Exhibit 5.1

�

LOGO

�

Michael E. Tenta

T: +1 650 843 5636

[email protected]

December�9, 2014

XOMA Corporation

2910 Seventh Street

Berkeley, California 94710

Ladies and Gentlemen:

We have acted as counsel to XOMA Corporation, a Delaware corporation (the �Company�), and you have requested our opinion in connection with the sale and issuance by the Company of up to 8,097,165 shares (the �Shares�) of the Company�s common stock, par value $0.0075 par value per share (the �Common Stock�) together with the Warrants (the �Warrants�) to purchase up to an additional 8,097,165 shares of Common Stock (the �Warrant Shares�) pursuant to a Registration Statement on Form S-3 (File No.�333-191078) (the �Registration Statement�) filed with the Securities and Exchange Commission (the �Commission�) under the Securities Act of 1933, as amended (the �Act�), the related Prospectus included therein and the Prospectus Supplement to be filed with the Commission pursuant to Rule 424(b) promulgated under the Act (the �Prospectus Supplement�).

In connection with this opinion, we have examined and relied upon the Registration Statement and related Prospectus and Prospectus Supplement included therein, the form of Warrant to be filed as an exhibit to a current report of the Company on Form 8-K, the Company�s Certificate of Incorporation, as amended, and the Company�s Bylaws, each as currently in effect, and the originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and other instruments as we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof. With regard to the Warrant Shares, we have assumed that at the time of issuance or sale, a sufficient number of shares of Common Stock are authorized and available for issuance.

We have also assumed that the Warrants and Warrant Shares will be sold at the price established by the Board of Directors of the Company or a pricing committee thereof in accordance with Section 153 of the General Corporation Law of the State of Delaware (the �DGCL�) and at the time of exercise is equal to or greater than the par value of the Common Stock, and (ii) we express no opinion to the extent that, notwithstanding its current reservation of shares of Common Stock, future issuances of securities, of the Company and/or antidilution adjustments to outstanding securities of the Company, including the Warrant Shares, cause the Warrants to be exercisable for more shares of Common Stock than the number that then remain authorized but unissued.

Our opinion herein is expressed solely with respect to the DGCL and, as to the Warrants constituting valid and legally binding obligations of the Company, with respect to the laws of the State of New York.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that (i)�the Shares, when issued and sold in accordance with the Registration Statement and the related Prospectus and Prospectus Supplement, will be validly issued, fully paid and nonassessable, (ii)�provided that the Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers thereof against payment therefor, then the Warrants, when issued and sold in accordance with the Registration Statement and the related Prospectus and Prospectus Supplement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors� rights generally and by general equitable principles (regardless of whether such

�

3175 Hanover Street, Palo Alto, CA 94304 T: (650) 843-5000 F: (650) 849-7400 www.cooley.com

LOGO

�

XOMA Corporation

December 9, 2014

Page Two

�

enforceability is considered in a proceeding at law or in equity) and implied covenants of good faith and fair dealing, and (iii)�the Warrant Shares, when issued and sold against payment therefor in accordance with the terms of the Warrants and in accordance with the Registration Statement and the related Prospectus and Prospectus Supplement, will be validly issued, fully paid and nonassessable.

We consent to the reference to our firm under the caption �Legal Matters� in the Prospectus Supplement and to the filing of this opinion as an exhibit to a current report of the Company on Form 8-K.

Sincerely,

�


COOLEY LLP

By:	�	/s/ Michael E. Tenta
	�	��Michael E. Tenta

�

3175 Hanover Street, Palo Alto, CA 94304 T: (650) 843-5000 F: (650) 849-7400 www.cooley.com

Exhibit 10.1

SUBSCRIPTION AGREEMENT

XOMA Corporation

2910 Seventh Street

Berkeley, California 94710

Ladies and Gentlemen:

The undersigned (the �Investor�) hereby confirms its agreement with you as follows:

1. This Subscription Agreement, including the Terms and Conditions For Purchase of Units attached hereto as Annex I (collectively, this �Agreement�) is made as of the date set forth below between XOMA Corporation, a Delaware corporation (the �Company�), and the Investor.

2. The Company has authorized the sale and issuance to certain investors of up to an aggregate of [��] units (the �Units�), with each Unit consisting of (i)�one share (the �Share,� collectively, the �Shares�) of its common stock, par value $0.0075 per share (the �Common Stock�), and (ii)�one warrant (the �Warrant,� collectively, the �Warrants�) to purchase one share of Common Stock, in substantially the form attached hereto as Exhibit B, for a purchase price of $[��] per Unit (the �Purchase Price�). Units will not be issued or certificated. The Shares and Warrants are immediately separable and will be issued separately. The shares of Common Stock issuable upon exercise of the Warrants are referred to herein as the �Warrant Shares� and, together with the Units, the Shares and the Warrants, are referred to herein as the �Securities�).

3. The offering and sale of the Units (the �Offering�) are being made pursuant to (1)�an effective Registration Statement on Form S-3 (File No.�333-191078) (including the Prospectus contained therein (the �Base Prospectus�), the �Registration Statement�) filed by the Company with the Securities and Exchange Commission (the �Commission�), (2)�if applicable, the �free writing prospectus� (as that term is defined in Rule 405 under the Securities Act of 1933, as amended (the �Act�)), that have or will be filed with the Commission and delivered to the Investor on or prior to the date hereof (the �Issuer Free Writing Prospectus�), and (3)�a Prospectus Supplement (the �Prospectus Supplement� and together with the Base Prospectus, the �Prospectus�) containing certain supplemental information regarding the Securities, the terms of the Offering the terms of the Offering and information that may be material to the Company and its securities that will be filed with the Commission and delivered to the Investor (or made available to the Investor by the filing by the Company of an electronic version thereof with the Commission).

4. The Company and the Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor the Units set forth below for the aggregate purchase price set forth below. The Units shall be purchased pursuant to the Terms and Conditions for Purchase of Units attached hereto as Annex I and incorporated herein by this reference as if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten by the placement agents (the �Placement Agents�) named in the Prospectus Supplement and that there is no minimum offering amount.

5. The manner of settlement of the Shares included in the Units purchased by the Investor shall be as follows:

Delivery versus payment (�DVP�) through DTC (i.e., the Company shall deliver Shares registered in the Investor�s name and address as set forth below and released by the Transfer Agent to the Investor through DTC at the Closing directly to the account(s) at Cowen�& Company, LLC (�Cowen�) identified by the Investor and simultaneously therewith payment shall be made by Cowen by wire transfer to the Company). NO LATER THAN ONE (1)�BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:

�

(I)

NOTIFY COWEN OF THE ACCOUNT OR ACCOUNTS AT COWEN TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND

�

(II)

CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT COWEN TO BE CREDITED WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR.

IT IS THE INVESTOR�S RESPONSIBILITY TO (A)�MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B)�ARRANGE FOR SETTLEMENT BY WAY OF DWAC OR DVP IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE UNITS MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE OFFERING ALTOGETHER.

6. The executed Warrant included in the Units purchased by the Investor shall be delivered in accordance with the terms thereof.

7. The Investor represents that, except as set forth below, (a)�it has had no position, office or other material relationship within the past three years with the Company or persons known to it to be affiliates of the Company, (b)�it is not a FINRA member or an Associated Person (as such term is defined under the FINRA Membership and Registration Rules Section�1011) as of the Closing, and (c)�neither the Investor nor any group of Investors (as identified in a public filing made with the Commission) of which the Investor is a part in connection with the Offering, acquired, or obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for Common Stock) or the voting power of the Company on a post-transaction basis. Exceptions:

�

(If no exceptions, write �none.� If left blank, response will be deemed to be �none.�)

8. The Investor represents that it has received (or otherwise had made available to it by the filing by the Company of an electronic version thereof with the Commission) the Base Prospectus, dated September�20, 2013, which is a part of the Company�s Registration Statement, the documents incorporated by reference therein and the Issuer Free Writing Prospectus (collectively, the �Disclosure Package�), which includes pricing and other information regarding the Offering (the �Offering Information�), prior to or in connection with the receipt of this Agreement. Such information may be provided to the Investor by any means permitted under the Act, including the Preliminary Prospectus Supplement, Prospectus Supplement, a free writing prospectus and oral communications.

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9. No offer by the Investor to buy Units will be accepted and no part of the Purchase Price will be delivered to the Company until the Investor has received the Disclosure Package including the Offering Information and the Company has accepted such offer by countersigning a copy of this Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the Company (or a Placement Agent on behalf of the Company) sending (orally, in writing or by electronic mail) notice of its acceptance of such offer. An indication of interest will involve no obligation or commitment of any kind until the Investor has been delivered the Disclosure Package including the Offering Information and this Agreement is accepted and countersigned by or on behalf of the Company.

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Number of Units:	�	�

Purchase Price Per Unit: $	�	�

Aggregate Purchase Price: $	�	�

Please confirm that the foregoing correctly sets forth the agreement between us by signing in the space provided below for that purpose.

�


Dated as of: December [��], 2014

�
INVESTOR

By:	�	�
Print�Name:	�
Title:	�
Address:	�

Agreed and Accepted

this [��] day of December, 2014:

�


XOMA CORPORATION

By:	�	�
Title:	�

�

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ANNEX I

TERMS AND CONDITIONS FOR PURCHASE OF UNITS

1. Authorization and Sale of the Units. Subject to the terms and conditions of this Agreement, the Company has authorized the sale of the Units.

2. Agreement to Sell and Purchase the Units; Placement Agents.

2.1 At the Closing (as defined in Section�3.1), the Company will sell to the Investor, and the Investor will purchase from the Company, upon the terms and conditions set forth herein, the number of Units set forth on the last page of the Agreement to which these Terms and Conditions for Purchase of Units are attached as Annex I (the �Signature Page�) for the aggregate purchase price therefor set forth on the Signature Page.

2.2 The Company proposes to enter into substantially this same form of Subscription Agreement with certain other investors (the �Other Investors�) and expects to complete sales of Units to them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as the �Investors,� and this Agreement and the Subscription Agreements executed by the Other Investors are hereinafter sometimes collectively referred to as the �Agreements.�

2.3 Investor acknowledges that the Company has agreed to pay Cowen�& Company, LLC (�Cowen� or the �Placement Agents�) a fee (the �Placement Fee�) in respect of the sale of Units to the Investor.

2.4 The Company has entered into a Placement Agent Agreement, dated December [��], 2014 (the �Placement Agreement�), with the Placement Agents that contains certain representations, warranties, covenants and agreements of the Company that may be relied upon by the Investor, which shall be a third party beneficiary thereof. The Company confirms that neither it nor any other Person (as defined below) acting on its behalf has provided the Investor or their agents or counsel with any information that constitutes or could reasonably be expected to constitute material, nonpublic information, except as will be disclosed in the Form 8-K filing (as defined below) that will be filed with the Commission in connection with the Offering. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting transactions in securities of the Company. �Person� means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.

3. Closings and Delivery of the Units and Funds.

3.1 Closing. The completion of the purchase and sale of the Units (the �Closing�) shall occur at a place and time (the �Closing Date�) to be specified by the Company and Cowen, and of which the Investors will be notified in advance by Cowen, in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the �Exchange Act�). At the Closing, (a)�the Company shall cause the Transfer Agent to deliver to the Investor the number of Shares set forth on the Signature Page registered in the name of the Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit A, in the name of a nominee designated by the Investor, (b)�the Company shall cause to be delivered to the Investor a Warrant to purchase a number of whole Warrant Shares equal to the number of Shares set forth on the signature page and (c)�the aggregate purchase price for the Units being purchased by the Investor will be delivered by or on behalf of the Investor to the Company.

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3.2 Conditions to the Company�s Obligations.

(a) The Company�s obligation to issue and sell the Units to the Investor shall be subject to: (i)�the receipt by the Company of the purchase price for the Units being purchased hereunder as set forth on the Signature Page and (ii)�the accuracy of the representations and warranties made by the Investor and the fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing Date.

(b) Conditions to the Investor�s Obligations. The Investor�s obligation to purchase the Units will be subject to the accuracy of the representations and warranties made by the Company and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing Date, including without limitation, those contained in the Placement Agreement, and to the condition that the Placement Agents shall not have: (a)�terminated the Placement Agreement pursuant to the terms thereof or (b)�determined that the conditions to the closing in the Placement Agreement have not been satisfied. The Investor�s obligations are expressly not conditioned on the purchase by any or all of the Other Investors of the Units that they have agreed to purchase from the Company.

3.3 Delivery of Funds. No later than the Closing Date, the Investor shall confirm that the account or accounts at Cowen to be credited with the Units being purchased by the Investor have a minimum balance equal to the aggregate purchase price for the Units being purchased by the Investor.

3.4 Delivery of Shares. Delivery Versus Payment through The Depository Trust Company. No later than one (1)�business day after the execution of this Agreement by the Investor and the Company, the Investor shall notify Cowen of the account or accounts at Cowen to be credited with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver the Shares to the Investor through DTC directly to the account(s) at Cowen identified by Investor and simultaneously therewith payment shall be made by Cowen by wire transfer to the Company.

4. Representations, Warranties and Covenants of the Investor.

The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agents that:

4.1 The Investor (a)�is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Units, including investments in securities issued by the Company and investments in comparable companies, (b)�has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c)�in connection with its decision to purchase the number of Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package (including the documents incorporated by reference therein).

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4.2 No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Units, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b)�if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c)�the Placement Agents are not authorized to make and have not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Units, except as set forth in the Issuer Free Writing Prospectus or as set forth in or incorporated by reference in the Base Prospectus or the Prospectus Supplement.

4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b)�this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors� and contracting parties� rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).

4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Units. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing the Warrants on any securities exchange. Without an active market, the liquidity of the Warrants will be limited.

4.5 Since the date on which the Placement Agents first contacted such Investor about the Offering, the Investor has not engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company�s securities). Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) or disclose any information about the Offering (other than to its advisors that are under a legal obligation of confidentiality prior to the time that the transactions contemplated by this Agreement are publicly disclosed pursuant to the Form 8-K Filing. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, �Short Sales� include, without limitation, all �short sales� as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, �put equivalent positions� (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.

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5. Representations, Warranties and Covenants of the Company

6.1. 5.1 The Company acknowledges and agrees that the Investor is acting solely in the capacity of an arm�s length purchaser with respect to the Securities and the transactions contemplated hereby and thereby and that the Investor is not (i)�an officer or director of the Company or any of its Subsidiaries (as defined below), (ii)�an �affiliate� (as defined in Rule 144) of the Company or any of its Subsidiaries or (iii)�to its knowledge, a �beneficial owner� of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Exchange Act. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Securities and the transactions contemplated hereby and thereby, and any advice given by the Investor or any of its representatives or agents in connection with this Agreement and the transactions contemplated hereby and thereby is merely incidental to the Investor�s purchase of the Securities. The Company further represents to the Investor that the Company�s decision to enter into this Agreement has been based solely on the independent evaluation by the Company and its representatives. �Subsidiaries� means any Person in which the Company, directly or indirectly, (I)�owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (II) controls or operates all or any part of the business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a �Subsidiary�.

5.2 It is understood and acknowledged by the Company that (i)�following the public disclosure of the transactions contemplated by this Agreement in connection with the Form 8-K Filing, in accordance with the terms thereof, the Investor has not been asked by the Company or any of its Subsidiaries to agree, nor has the Investor agreed with the Company or any of its Subsidiaries, to desist from effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short) any securities of the Company, or �derivative� securities based on securities issued by the Company or to hold any of the Securities for any specified term; (ii)�the Investor, and counterparties in �derivative� transactions to which any the Investor is a party, directly or indirectly, presently may have a �short� position in the Common Stock which was established prior to the Investor�s knowledge of the transactions contemplated by this Agreement; and (iii)�the Investor shall not be deemed to have any affiliation with or control over any arm�s length counterparty in any �derivative� transaction. The Company further understands and acknowledges that following the public disclosure of the transactions contemplated by this Agreement pursuant to the Form 8-K Filing, the Investor may engage in hedging and/or trading activities at various times during the period that the Securities are outstanding and (b)�such hedging and/or trading activities, if any, can reduce the value of the existing stockholders� equity interest in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such aforementioned hedging and/or trading activities do not constitute a breach of this Agreement or the Warrants or any of the documents executed in connection herewith or therewith.

5.3 Except as disclosed in the Form 8-K Filing, the Company confirms that neither it nor any other Person acting on its behalf has provided the Investor or their agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure provided to the Investor regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, furnished by or on behalf of the Company or any

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of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each press release issued by the Company or any of its Subsidiaries during the twelve (12)�months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been so publicly disclosed. The Company acknowledges and agrees that the Investor does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section�4.

5.4. No executive officer (as defined in Rule 501(f) promulgated under the Act) or other key employee of the Company or any of its Subsidiaries has notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such officer�s employment with the Company or any such Subsidiary.

6. Covenants.

6.1. Press Release and Form 8-K. The Company and the Investor agree that the Company shall issue a press release and file a Form 8-K announcing the Offering prior to the open of regular trading on The NASDAQ Global Market on December [��], 2014, which such Form 8-K shall include any other material information regarding the Company that is contained in the Issuer Free Writing Prospectus, and attaching this Agreement and the Form of Warrants (the �Form 8-K Filing�), and shall be in a form reasonably acceptable to the Investor. The Company confirms that it has not provided the Investor with any information that constitutes material, nonpublic information, except as will be disclosed in the Form 8-K filing. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Investor with any material, non-public information regarding the Company or any of its Subsidiaries from and after the Form 8-K Filing without the express prior written consent of such Buyer.

6.2 Company Lock Up.

(a) For the period specified below (the �Lock-Up Period�), the Company will not, directly or indirectly, take any of the following actions with respect to its Securities or any securities convertible into or exchangeable or exercisable for any of its Securities (�Lock-Up Securities�): (i)�amend, modify or change the terms of any warrants to acquire Common Stock outstanding on the date hereof, (ii)�offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (iii)�offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iv)�enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (v)�establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section�16 of the Exchange Act or (vi)�file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly

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disclose the intention to take any such action, without the prior written consent of the Placement Agents, except (A)�grants of awards to purchase Lock-Up Securities, or issuing Lock-Up Securities, pursuant to employee benefit plans in effect on the date hereof and described in the General Disclosure Package and the Final Prospectus, (B)�issuances of Lock-Up Securities pursuant to the exercise, conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement provided that the exercise price or conversion price of such securities are not lowered or otherwise materially amended in any manner that adversely affects the Investor or (C)�issuances of Lock-Up Securities, which in the aggregate shall not exceed 5% of the outstanding shares of the Securities as of the date of this Agreement, as consideration in connection with collaborations, acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that (x)�any such issuance shall only be to a person or entity (or to the equityholders of such entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company or any of the Subsidiaries and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (y)�the recipient of any such Lock-Up Securities shall agree in writing to be bound by the terms of this Section�6.2(a).

(b) For so long as any Warrant remain outstanding, the Company and each of its Subsidiaries shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. �Variable Rate Transaction� means a transaction in which the Company or any subsidiary (i)�issues or sells any Convertible Securities either (A)�at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B)�with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary �weighted average� anti-dilution provision or (ii)�enters into any agreement (including, without limitation, an equity line of credit) whereby the Company or any subsidiary may sell securities at a future determined price (other than standard and customary �preemptive� or �participation� rights). The Investor shall be entitled to obtain injunctive relief against the Company and its subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

6. Survival of Representations, Warranties and Agreements; Third Party Beneficiary. Notwithstanding any investigation made by any party to this Agreement or by the Placement Agents, all covenants, agreements, representations and warranties made by the Company and the Investor herein will survive the execution of this Agreement, the delivery to the Investor of the Units being purchased and the payment therefor. The Placement Agent shall be third party beneficiary with respect to the representations, warranties and agreements of the Investor in Section�4 hereof.

7. Notices. All notices, requests, consents and other communications hereunder will be in writing, will be mailed (a)�if within the domestic United States by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, or by facsimile or (b)�if delivered from outside the United States, by International Federal Express or facsimile, and will be deemed given (i)�if delivered by first-class registered or certified mail domestic, three business days after so mailed, (ii)�if delivered by nationally recognized overnight carrier, one business day after so mailed, (iii)�if delivered by International Federal Express, two business days after so mailed and (iv)�if delivered by facsimile, upon electric confirmation of receipt and will be delivered and addressed as follows:

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(a) if to the Company, to:

XOMA Corporation

2910 Seventh Street

Berkeley, California 94710

Attention: Fred Kurland

Facsimile: (510)�649 0315

with copies to (which shall not constitute notice):

Cooley LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, CA 94306

Attention: Jim Fulton and Mike Tenta

Facsimile: (650)�490-7400

(b) if to the Investor, at its address on the Signature Page hereto, or at such other address or addresses as may have been furnished to the Company in writing.

8. Changes. This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Investor.

9. Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.

10. Severability. In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.

11. Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.

12. Counterparts. This Agreement may be executed in two or more counterparts, each of which will constitute an original, but all of which, when taken together, will constitute but one instrument, and will become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that the Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or the filing by the Company of an electronic version thereof with the Commission).

13. Confirmation of Sale. The Investor acknowledges and agrees that such Investor�s receipt of the Company�s counterpart to this Agreement, together with the Prospectus Supplement (or the filing by the Company of an electronic version thereof with the Commission), shall constitute written confirmation of the Company�s sale of Units to such Investor.

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14. Termination. In the event that the Placement Agreement is terminated by the Placement Agents pursuant to the terms thereof, this Agreement shall terminate without any further action on the part of the parties hereto.

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EXHIBIT A

XOMA CORPORATION

INVESTOR QUESTIONNAIRE

Pursuant to Section�3 of Annex I to the Agreement, please provide us with the following information:

�



1.	�	The exact name that your Shares and Warrants are to be registered in. You may use a nominee name if appropriate:	��	�

2.	�	The relationship between the Investor and the registered holder listed in response to item 1 above:	��	�

3.	�	The mailing address of the registered holder listed in response to item 1 above:	��	�

4.	�	The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above:	��	�

5.	�	Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained):	��	�

6.	�	DTC Participant Number:	��	�

7.	�	Name of Account at DTC Participant being credited with the Shares:	��	�

8.	�	Account Number at DTC Participant being credited with the Shares:	��	�

Exhibit B

Form of Warrant

�

Exhibit 99.1

�

�� LOGO

XOMA Announces Pricing of $40.0 Million Registered Offering of Common Stock and Warrants

�

BERKELEY, Calif., December�9, 2014 � XOMA Corporation (Nasdaq: XOMA), announced today the pricing of 8,097,165 shares of its common stock and accompanying warrants to purchase one share of common stock for each share purchased at a price to the public of $4.94. The warrants are exercisable at an exercise price of $7.90 per share beginning on the date of issuance and will expire on the second anniversary of the date of issuance. The shares and warrants will be issued pursuant to a prospectus supplement filed as part of a shelf registration statement previously filed with the Securities and Exchange Commission (SEC) on Form S-3. XOMA anticipates its aggregate proceeds from the offering will be approximately $37.7 million, not including any future proceeds from the exercise of the warrants, after deducting the placement agent�s discount and estimated offering expenses payable by XOMA. The offering is expected to close on or about December�12, 2014, subject to customary closing conditions.

Cowen and Company is acting as the sole placement agent.

This press release does not constitute an offer to sell or a solicitation of an offer to buy nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. This press release is being issued pursuant to and in accordance with Rule 134 under the Securities Act of 1933, as amended. Any offer, if at all, will be made only by means of a prospectus supplement and accompanying prospectus forming a part of the effective registration statement. Copies of the final prospectus supplement and accompanying prospectus relating to the offering may be obtained, when available, from Cowen and Company, LLC c/o Broadridge Financial Services, 1155 Long Island Avenue, Edgewood, NY 11717, Attn: Prospectus Department, Phone: 631-274-2806, Fax: 631-254-7140. XOMA intends to file a final prospectus supplement relating to the offering with the SEC, which will be available along with the prospectus filed with the SEC in connection with the shelf registration, on the SEC�s website at http://www.sec.gov/.

About XOMA

XOMA discovers and develops innovative antibody therapeutics.

Forward-Looking Statements

Certain statements contained in this press release, including, but not limited to, statements related to the anticipated closing of the offering and the estimated closing expenses are forward-looking statements within the meaning of Section�27A of the Securities Act and Section�21E of the Securities Exchange Act of 1934, as amended (the �Exchange Act�). The words

�estimate,� �anticipate,� �intend,� �expect,� �potential� and similar expressions are intended to identify forward-looking statements. These statements are based on assumptions that may not prove accurate. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation, risks related to whether the offering will close when anticipated or at all, and other risks, including those related to current economic and financial market conditions, that are described in more detail in �Risk Factors� above and the additional risk factors contained in our most recent Quarterly Report on Form 10-Q for the quarter ended September�30, 2014. We undertake no obligation to publicly update any forward-looking statements, regardless of any new information, future events or other occurrences. We advise you, however, to consult any additional disclosures we make in our reports to the SEC on Forms 10-K, 10-Q and 8-K.

CONTACT: XOMA Corporation

Ashleigh Barreto

510-204-7482

[email protected]

Juliane Snowden

The Oratorium Group, LLC

[email protected]

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Form 8-K XOMA Corp For: Dec 08

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