REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), dated April 8, 2004
(the "AGREEMENT DATE"), is between ADVENTRX Pharmaceuticals, Inc., a Delaware
corporation (the "COMPANY") and CD Investment Partners, Ltd. ("CD").
BACKGROUND
A. The Company and CD have entered into a Common Stock and Warrant
Purchase Agreement (the "PURCHASE AGREEMENT") as of the Agreement Date pursuant
to which the Company desires to sell to CD and CD desires to purchase from the
Company shares of Common Stock, par value $0.001 per share ("COMMON STOCK"), of
the Company (the "SHARES").
B. As additional consideration for the purchase of the Shares, pursuant to
the Purchase Agreement, the Company shall issue to CD certain warrants to
purchase shares of Common Stock (the "WARRANTS").
C. A condition to the obligations under the Purchase Agreement is that the
Company and CD enter into this Agreement in order to provide the Investor (as
defined herein) with certain rights to register the resale of the Shares and the
Warrant Shares (as defined herein).
AGREEMENT
In consideration of the mutual promises, representations, warranties,
covenants and conditions set forth in this Agreement, the parties agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the term:
(a) "REGISTRABLE SECURITIES" means (a) the Shares and the Warrant Shares
or other securities issued or issuable to the Investor or its transferees,
assignees or designee (i) upon exercise of the Warrants, or (ii) upon any
dividend or distribution with respect to, any exchange for or any replacement of
the Shares, Warrants or Warrant Shares or (iii) upon any conversion, exercise or
exchange of any securities issued in connection with any such distribution,
exchange or replacement; (b) securities issued or issuable upon any stock split,
stock dividend, recapitalization or similar event with respect to the foregoing;
(c) securities issued pursuant to Section 8 of the Purchase Agreement, Section 9
or Section 10 of this Agreement or Section 3 of the Warrants and (d) any other
security issued as a dividend or other distribution with respect to, in exchange
for, in replacement or redemption of, or in reduction of the liquidation value
of, any of the securities referred to in the preceding clauses. The parties
acknowledge that the Company may choose to include the Registrable Securities
hereunder on a registration statement with other similar securities, but only if
to do so would not materially adversely affect the registration rights of the
Investor (including, without limitation, the ability of the Investor to sell
Registrable Securities freely without liability).
(b) "INVESTOR" means collectively CD and any transferees, assignees or
designees thereof who hold Registrable Securities.
(c) "COMMISSION" means the Securities and Exchange Commission.
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(d) "WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the Warrants.
(e) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(f) "EXCHANGE ACT" means the Exchange Act of 1934, as amended.
2. FILING OF REGISTRATION STATEMENT.
(a) The Company shall prepare and file with the Commission a "shelf"
registration statement (a "REGISTRATION STATEMENT") on Form S-3 (or if such form
is not available to the Company on another form appropriate for such
registration in accordance herewith) covering all Registrable Securities for a
secondary or resale offering to be made on a continuous basis pursuant to Rule
415, such Registration Statement to be filed by no later than June 30, 2004 (the
"TARGET FILING DATE"). The Company shall use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act not
later than 90 days after the Target Filing Date (including filing with the
Commission a request for acceleration of effectiveness in accordance with Rule
461 promulgated under the Securities Act within five business days of the date
that the Company is notified (orally or in writing, whichever is earlier) by the
Commission that a Registration Statement will not be "reviewed," or not be
subject to further review) and to keep such Registration Statement continuously
effective under the Securities Act until such date as is the earlier of (x) the
date when all Registrable Securities covered by such Registration Statement have
been sold or (y) the second anniversary of the Agreement Date (the
"EFFECTIVENESS PERIOD"). Upon the initial filing thereof, the Registration
Statement shall cover at least 100% of the Shares and 100% of the Warrant
Shares. Such Registration Statement also shall cover, to the extent allowable
under the Securities Act and the rules promulgated thereunder (including
Securities Act Rule 416), such indeterminate number of additional shares of
Common Stock resulting from stock splits, stock dividends or similar
transactions with respect to the Registrable Securities. Not less than three
business days prior to the filing of the Registration Statement or any related
prospectus or any amendment or supplement thereto, the Company shall (i) furnish
to counsel to the Investor, copies of all such documents proposed to be filed,
which documents (other than those incorporated by reference) will be subject to
the review of such counsel, and (ii) at the request of the Investor of
Registrable Securities cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall be necessary,
in the reasonable opinion of counsel to the Investor, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file the Registration Statement or any such prospectus or any amendments or
supplements thereto to which the Investor or counsel to the Investor shall
reasonably object in writing within three business days after their receipt
thereof.
(b) The Company shall (i) prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement
as may be necessary to keep the Registration Statement continuously effective as
to all Registrable Securities for the Effectiveness Period and to the extent any
Registrable Securities are not included in such Registration Statement for
reasons other than the failure of the Investor to comply with Section 4 hereof,
shall prepare and file with the Commission such additional Registration
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Statements in order to register for resale under the Securities Act all
Registrable Securities; (ii) cause the related prospectus to be amended or
supplemented by any required prospectus supplement, and as so supplemented or
amended to be filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; (iii) respond as promptly as
possible, and in no event later than 10 business days, to any comments received
from the Commission with respect to the Registration Statement or any amendment
thereto and as promptly as possible, upon request, provide counsel for the
Investor true and complete copies of all correspondence from and to the
Commission relating to the Registration Statement; and (iv) comply in all
material respects with the provisions of the Securities Act and the Exchange Act
with respect to the disposition of all Registrable Securities covered by the
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Investor thereof set forth in the
Registration Statement as so amended or in such prospectus as so supplemented.
(c) The Company shall notify the Investor and counsel to the Investor as
promptly as possible (i) when a prospectus or any prospectus supplement or
post-effective amendment to the Registration Statement is proposed to be filed
(but in no event in the case of this subparagraph (i), less than three business
days prior to the date of such filing); (ii) when the Commission notifies the
Company whether there will be a "review" of such Registration Statement; and
(iii) with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, and after the effectiveness
thereof: (A) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to the Registration
Statement or prospectus or for additional information; (B) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation of any proceedings for that purpose; (C) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose; and (D) if the financial statements included in the Registration
Statement become ineligible for inclusion therein or of the occurrence of any
event that makes any statement made in the Registration Statement or prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires any revisions to the
Registration Statement, prospectus or other documents so that, in the case of
the Registration Statement or the prospectus, as the case may be, it 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 the light of the circumstances under which they were made, not misleading.
Without limitation to any remedies to which the Investor may be entitled under
this Agreement, if any of the events described in Section 2(c)(iii) occur, the
Company shall use its best efforts to respond to and correct the event.
(d) The Investor acknowledges that the Registration Statement shall also
register a significant amount of shares of Common Stock owned by other
stockholders which have "piggy-back" registration rights under various
agreements with the Company.
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3. PIGGY-BACK REGISTRATION.
(a) RIGHT TO PIGGY-BACK. If (but without any obligation to do so other
than as provided above) the Company proposes to register any shares of Common
Stock in connection with any offering of shares of Common Stock pursuant to a
registration statement under the Securities Act (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan or a transaction covered by Rule 145 under the Securities Act, or a
registration in which the only stock being registered is Common Stock issuable
upon conversion of debt securities which are also being registered) (a "PUBLIC
OFFERING"), the Company shall promptly give the Investor written notice of such
registration, at least 10 business days prior to the filing of any registration
statement under the Securities Act. Upon the written request of the Investor
given within 5 business days after delivery of such written notice by the
Company, the Company shall, subject to the provisions of Section 3(b) below, use
its best efforts to cause to be registered under the Securities Act on such
registration statement all of the Registrable Securities that the Investor has
requested to be registered.
(b) UNDERWRITING. If the registration statement under which the Company
gives notice under Section 3(a) is for an underwritten Public Offering, the
Company shall so advise the Investor. The right of the Investor to registration
pursuant to Section 3(a) above shall be conditioned upon the Investor's
participation in such underwriting and the inclusion of the Registrable
Securities in the underwriting to the extent provided herein. The Investor shall
(together with the Company and any other holders of Company securities
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision of
Sections 3(a), if the underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the underwriter may
exclude some or all of the Registrable Securities from such registration and
underwriting.
4. FURNISH INFORMATION. It shall be a condition to the Company's obligations to
take any action under this Agreement with respect to the Registrable Securities
of the Investor that the Investor shall promptly furnish to the Company, upon
request, such information regarding itself, the Registrable Securities, and the
intended method of disposition of such securities as shall be necessary to
effect the registration of its Registrable Securities. In that connection, the
Investor shall be required to represent to the Company that all such information
which is given is both complete and accurate in all material respects when made.
5. DELAY OF REGISTRATION. The Investor shall have no right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of the terms of this Agreement.
6. TERMINATION OF REGISTRATION RIGHTS. Following the end of the Effectiveness
Period, the Company shall have no obligation to register the Registrable
Securities pursuant to this Agreement or otherwise.
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7. INDEMNIFICATION.
(a) To the extent permitted by law, the Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless the Investor, its
officers, directors, managers, agents and employees, each Person who controls
the Investor (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, managers, agents and
employees of each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation and
reasonable attorneys' fees) and expenses (collectively, "LOSSES"), as incurred,
arising out of or relating to any untrue or alleged untrue statement of a
material fact contained or incorporated by reference in the Registration
Statement, any prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
prospectus or form of prospectus or amendment or supplement thereto, in the
light of the circumstances under which they were made) not misleading
(collectively a "VIOLATION"), provided, however, that the indemnity agreement
contained in this Section 7(a) shall not apply to amounts paid in settlement of
any such Loss if such settlement is effected without the prior written consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable to the Investor or any officer, director, manager, agent,
employee or controlling person thereof to the extent that any Loss arises out of
or is based upon untrue statements, omissions or violations which occur in
reliance upon and in conformity with information furnished expressly for use in
connection with such registration by the Investor or any officer, director,
manager, agent or employee thereof or any controlling person thereof.
(b) To the extent permitted by law, the Investor shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), any
underwriter, any other stockholder of the Company selling securities in such
Registration Statement and any controlling person of any such underwriter or
other stockholder, against any Losses, as incurred, arising out of or relating
to any Violation in each case to the extent (but only to the extent)that such
Violation occurs in reliance upon and in conformity with written information
furnished in writing expressly for use in connection with such registration by
the Investor or any officer, director, manager, agent or controlling person
thereof; provided, however, that the indemnity agreement contained in this
Section 7(b) shall not apply to amounts paid in settlement of any such Loss if
such settlement is effected without the consent of the Investor, which consent
shall not be unreasonably withheld. Notwithstanding anything to the contrary
contained herein, the Investor shall be liable in the aggregate under this
Section 7(b) for only such amounts, if any, as in the aggregate do not exceed
the net proceeds to such Investor as a result of the sale of Registrable
Securities pursuant to such Registration Statement.
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8. LISTING. The Company shall cause all Registrable Securities to be listed on
any United States securities exchange, quotation system, market or
over-the-counter bulletin board on which similar securities issued by the
Company are then listed and use its best efforts to maintain such listing.
9. FAILURE TO FILE REGISTRATION STATEMENT. The Company and the Investor agree
that the Investor will suffer damages if the Registration Statement is not filed
on or prior to the Target Filing Date and maintained in the manner contemplated
herein during the Effectiveness Period. The Company and the Investor further
agree that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, if the Registration Statement is not filed on or prior
to the Target Filing Date, the Company shall pay in cash or in shares of Common
Stock (at the Company's option) as liquidated damages for such failure and not
as a penalty to the Investor an amount equal to two percent (2%) of the purchase
price the Investor paid for the Shares and Warrants purchased pursuant to the
Purchase Agreement (the "PURCHASE PRICE") for each 30-day period until the
Registration Statement has been filed with the Commission, which shall be pro
rated for such periods less than 30 days (the "LATE FILING DAMAGES"). Payments
to be made to the Investor pursuant to this Section 9 shall be due and payable
within 5 business days of any demand therefor by the Investor, but in no event
more than once during any 30-day period. The parties agree that the Late Filing
Damages represent a reasonable estimate on the part of the parties, as of the
date of this Agreement, of the amount of damages that may be incurred by the
Investor if the Registration Statement is not filed on or prior to the Target
Filing Date. If the Company elects to pay the Late Filing Damages in shares of
Common Stock, such shares of Common Stock shall be valued at the average closing
price of a share of Common Stock on the applicable trading market for the Common
Stock for the 5-trading-day period immediately preceding the date of demand of
such Late Filing Damages.
10. FAILURE OF REGISTRATION STATEMENT TO BECOME EFFECTIVE. The Company and the
Investor agree that the Investor will suffer damages if the Registration
Statement is not declared effective by the Commission on or prior to the
ninetieth (90th) day following the Target Filing Date (the "EFFECTIVENESS
DEADLINE"). The Company and the Investor further agree that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly, if
the Registration Statement is not declared effective by the Commission prior to
the Effectiveness Deadline, the Company shall pay in cash or in shares of Common
Stock (at the Company's option) as liquidated damages for such failure and not
as a penalty to the Investor an amount equal to (a) two percent (2%) of the
Purchase Price for the first 30-day period following the Effectiveness Deadline
(which shall be pro rated for such periods less than 30 days) and (b) one
percent (1%) of the Purchase Price for each subsequent 30-day period (which
shall be pro rated for such periods less than 30 days) (the "NON-EFFECTIVENESS
DAMAGES") until either (x) the Registration Statement is declared effective by
the Commission or (y) the first anniversary of the Agreement Date. Payments to
be made to the Investor pursuant to this Section 10 shall be due and payable
within 5 business days of any demand therefor by the Investor, but in no event
more than once during any 30-day period. The parties agree that the
Non-Effectiveness Damages represent a reasonable estimate on the part of the
parties, as of the Agreement Date, of the amount of damages that may be incurred
by the Investor if the Registration Statement is not declared effective on or
prior to the ninetieth (90th) day following the Target Filing Date. If the
Company elects to pay the Non-Effectiveness Damages in shares of Common Stock,
such shares of Common Stock shall be valued at the average closing price of a
share of Common Stock on the applicable trading market for the Common Stock for
the 5-trading-day period immediately preceding the date of demand of such
Non-Effectiveness Damages.
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11. LISTING; EXCHANGE ACT REPORTS.
(a) The Company shall use commercially reasonable best efforts to list its
Common Stock on the American Stock Exchange.
(b) With a view to making available to the Investor the benefits of Rule
144 promulgated under the Securities Act or any other similar rule or regulation
of the Commission that may at any time permit the Investor to sell securities of
the Company to the public without registration ("RULE 144"), the Company agrees
to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144;
(ii) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "EXCHANGE Act") so
long as the Company remains subject to such requirements and the
filing of such reports and other documents is required for the
applicable provisions of Rule 144; and
(iii)furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule
144, the Securities Act and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company to the extent any such
report is not available on the Commission's website, and (iii) such
other information as may be reasonably requested to permit the
Investor to sell such securities pursuant to Rule 144 without
registration.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement, all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the state of
California, without giving effect to principles of choice of law, except that
corporate matters shall be governed by Delaware law.
(b) JURISDICTION AND VENUE. Any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
shall be brought or otherwise commenced in any state or federal court located in
the county of San Diego, California. Each party to this Agreement: (i) expressly
and irrevocably consents and submits to the jurisdiction of each state and
federal court located in the county of San Diego, California and each appellate
court located in the state of California, in connection with any such legal
proceeding; (ii) agrees that each state and federal court located in the county
of San Diego, California shall be deemed to be a convenient forum; and (iii)
agrees not to assert, by way of motion, as a defense or otherwise, in any such
legal proceeding commenced in any state or federal court located in the county
of San Diego, California any claim that such party is not subject personally to
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the jurisdiction of such court, that such legal proceeding has been brought in
an inconvenient forum, that the venue of such proceeding is improper or that
this Agreement or the subject matter of this Agreement may not be enforced in or
by such court.
(c) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
(d) NOTICES. All notices and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person or facsimile transmission (received at the
facsimile machine to which it is transmitted prior to 5:00 p.m., local time, on
a business day in the state of California, for the party to which it is sent),
by courier or express delivery service or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section):
if to the Company: ADVENTRX Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to (not to constitute notice): Xxxxxxx XxXxxxxxx LLP
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
if to the Investor: CD Investment Partners, Ltd.
c/o CD Capital Management LLC
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to (not to constitute notice): Xxxxxxxxx Traurig, LLP
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx and Xxxx X . Xxxxx
Facsimile: (000) 000-0000
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(e) AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended,
waived or departed from only with the written consent of the Company and the
Investor. No such waiver or consent shall be deemed to be or shall constitute a
waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(f) SUCCESSORS AND ASSIGNS. This Agreement is personal to each of the
parties hereto and may not be assigned without the written consent of the other
party; provided, however, that the Investor shall be permitted to assign this
Agreement to any person to whom it assigns or transfers the Warrants or
Registrable Securities, other than in a public resale, in compliance with
applicable securities laws. Any assignee must be an "accredited investor" as
defined in Rule 501(a) promulgated under the Securities Act.
(g) SEVERABILITY. In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
(h) INTERPRETATION. The parties hereto acknowledge and agree that: (i)
each party and such party's counsel has reviewed the terms and provisions of
this Agreement; (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions of this
Agreement shall be construed fairly as to the parties hereto and not in favor of
or against any party, regardless of which party was generally responsible for
the preparation of this Agreement. Whenever used herein, the singular number
shall include the plural, the plural shall include the singular, the use of any
gender shall include all persons.
(i) HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect the meaning or construction of any of the terms or
provisions hereof.
(j) NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement, and
no course of dealing between the parties hereto, shall operate as a waiver of
any such right, power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
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expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(k) REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not the Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to the
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the American Stock Exchange and each other securities
exchange, quotation system, market or over-the-counter bulletin board on which
Registrable Securities are required hereunder to be listed, (B) with respect to
filings required to be made with the Commission, and (C) in compliance with
state securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of
printing or photocopying prospectuses), (iii) messenger, telephone and delivery
expenses, (iv) Securities Act liability insurance, if the Company so desires
such insurance, and (v) fees and expenses of all other persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement, including, without limitation, the Company's independent public
accountants (including, in the case of an underwritten offering, the expenses of
any comfort letters or costs associated with the delivery by independent public
accountants of a comfort letter or comfort letters) and legal counsel. In
addition, the Company shall be responsible for all of its internal expenses
incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder.
(l) COUNTERPARTS AND FACSIMILE DELIVERY. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signature page
delivered by facsimile or other electronic image transmission shall be binding
to the same extent as an original signature page, with regard to any agreement
subject to the terms hereof or any amendment thereto. Any party who delivers
such a signature page agrees to later deliver an original counterpart to any
party who requests it.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ADVENTRX PHARMACEUTICALS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
CD INVESTMENT PARTNERS, LTD.
By: CD Capital Management LLC
Its: Investment Manager
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: President
