DISCOVERY LABORATORIES, INC. Common Stock ($0.001 par value per share) AT-THE- MARKET EQUITY OFFERING SALES AGREEMENTAt-the-Market Equity Offering Sales Agreement • February 13th, 2013 • Discovery Laboratories Inc /De/ • Biological products, (no disgnostic substances) • New York
DISCOVERY LABORATORIES, INC., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time to or through Stifel, Nicolaus & Company, Incorporated (“Stifel Nicolaus”), as sales agent and/or principal (“Agent”), shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), having an aggregate offering price of up to $25,000,000 on the terms set forth in Section 2 of this At-the-Market Equity Offering Sales Agreement (the “Agreement”). The Company agrees that whenever it determines to sell Shares directly to the Agent as principal, it will enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance with Section 3 of this Agreement. Notwithstanding the foregoing, the Company shall not issue pursuant to this Agreement, or enter into a Terms Agreement with respect to the sale of, an aggregate amoun
