REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
April 5, 2004 (the "Agreement Date"), is among ADVENTRX Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), each of the persons and entities listed on
Schedule 1 hereto (each, an "Investor").
BACKGROUND
A. The Company and the Investors (other than Xxxxxxx Xxxx Partners)
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 the Investors and the Investors desire 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 the Investors certain
warrants to purchase shares of Common Stock, and, in consideration of services
as placement agent, the Company shall issue to Xxxxxxx Hill Partners certain
warrants to purchase shares of Common Stock (collectively, the "Warrants").
C. A condition to the obligations under the Purchase Agreement is that
the Company and the Investors enter into this Agreement in order to provide the
Investors with certain rights to register the resale of the Shares.
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 each Investor
or its transferee 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 or
Section 9 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.
(b) "Commission" means the Securities and Exchange Commission.
(c) "Warrant Shares" means the shares of Common Stock issuable
upon exercise of the Warrants.
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(d) "Securities Act" means the Securities Act of 1933, 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 SDS
Management, LLC ("SDS"), 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 any holder 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 such holders, 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 holders of a majority of
the Registrable Securities or counsel to SDS 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 Holder to comply with Section 4 hereof, shall
prepare and file with the Commission such additional Registration
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
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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 SDS 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 Investors
thereof set forth in the Registration Statement as so amended or in
such prospectus as so supplemented.
(c) The Company shall notify the holders of Registrable
Securities to be sold and counsel to SDS 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 Investors 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) Each 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
of 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 each 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 any 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 their Registrable Securities. In that connection,
each selling 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. The Company shall have no obligation to
register the Registrable Securities pursuant to this Agreement or otherwise
following the end of the Effectiveness Period.
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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 each Investor, the officers, directors, agents and employees
of each of them, each Person who controls any such Investor (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, 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 any Investor
or officer, director, agent 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 any such Investor or officer, director or agent thereof
or any controlling person.
(b) To the extent permitted by law, each 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
that such Violation occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Investor or officer, director, 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 under this Section 7(b)
for only that amount as does not exceed the net proceeds to such
Investor as a result of the sale of Registrable Securities pursuant to
such Registration Statement.
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.
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9. Failure to File Registration Statement. The Company and the Investors agree
that the Investors 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
Investors 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 each Investor an amount equal to two percent
(2%) of the total purchase price such Investor paid for the Shares and Warrants
purchased pursuant to the Purchase Agreement (the "Total 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 an Investor pursuant to this
Section 9 shall be due and payable within 5 business days of any demand therefor
by such 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 Investors 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
Investors agree that the Investors 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 Investors 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 each Investor an amount equal to (a) two percent (2%) of such
Investor's Total 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 such Investor's Total 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 an Investor pursuant to this
Section 10 shall be due and payable within 5 business days of any demand
therefor by such 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 date of this
Agreement, of the amount of damages that may be incurred by the Investors 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 Investors 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 investors 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 each Investor so long as such
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 Investors 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.
(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 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.
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(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: To the address set forth in Schedule 1 hereto.
(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 holders of a majority of the Registrable Securities
then outstanding. Any amendment or waiver effected in accordance with
this Section 12(e) shall be binding upon each party to this Agreement,
whether or not such party has signed such amendment or waiver and the
Company. 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 and may not be assigned without the written consent of
the other parties; provided, however, that any of the Investors 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.
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(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 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
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desires such insurance, (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,
and (vi) fees and expenses of the counsel to SDS, up to $5,000, in
connection with any Registration Statement hereunder. 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, 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.
(m) Independent Nature of Investors' Obligations and Rights.
The obligations of each Investor under this Agreement are several and
not joint with the obligations of any other Investor, and no Investor
shall be responsible in any way for the performance of the obligations
of any other Investor under any such agreement. Nothing contained
herein, and no action taken by any Investor pursuant thereto, shall be
deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that
the Investors are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by such
agreement. Each Investor shall be entitled to independently protect and
enforce its rights, including without limitation, the rights arising
out of this Agreement, and it shall not be necessary for any other
Investor to be joined as an additional party in any proceeding for such
purpose. Each Investor represents that it has been represented by its
own separate legal counsel in its review and negotiation of this
Agreement. For reasons of administrative convenience only, the
Investors acknowledge and agree that they and their respective counsel
have chosen to communicate with the Company through Xxxxxx and Xxxx
LLP, but Xxxxxx and Xxxx LLP does not represent any of the Investors in
this transaction other than SDS (an affiliate of an Investor).
[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 and Chief Executive Officer
[Investor signature pages follow.]
Company Signature page to the Registration Rights Agreement
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INVESTORS:
Print Exact Name: [see attached schedule for list of investors party to this
agreement]
By:_____________________________________________
Name:
Title:
[ADVENTRX Registration Rights Agreement]
12
SCHEDULE 1
INVESTORS
Alpha Capital AG
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Anasazi Partners III LLC
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Anasazi Partners III Offshore Fund Ltd.
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Xxxxxx X. Xxxxxx
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Bank Xxx. Xxxxxxxxx jr. & Cie (Switzerland) Limited
--------------------------------------------------------------------------------
BayStar Capital II, L.P.
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Bristol Investment Fund, Ltd.
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BSI New BioMedical Frontier (SICAV)
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BSI SA
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Capital Ventures International
--------------------------------------------------------------------------------
Castle Creek Healthcare Partners LLC
--------------------------------------------------------------------------------
Centrum Bank AG
--------------------------------------------------------------------------------
Xxxxxxxxxxx X. Xxxxx
--------------------------------------------------------------------------------
Clariden Investments Ltd.
--------------------------------------------------------------------------------
Crescent International Ltd
--------------------------------------------------------------------------------
Crestview Capital Master, LLC
--------------------------------------------------------------------------------
E Xxxx Xxxxx
--------------------------------------------------------------------------------
Enable Growth Partners
--------------------------------------------------------------------------------
Gamma Opportunity Capital Partners, LP
--------------------------------------------------------------------------------
Xxxx Xxxxxxx, MD
--------------------------------------------------------------------------------
Greenwich Growth Fund Limited
--------------------------------------------------------------------------------
Xxxxx Xxxxxx
--------------------------------------------------------------------------------
JIBS Equities
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx
--------------------------------------------------------------------------------
Laddcap Value Partners LP
--------------------------------------------------------------------------------
LB (Swiss) Privatbank AG
--------------------------------------------------------------------------------
Xxxxxxxxxx Investment Foundation
--------------------------------------------------------------------------------
Longview Fund, LP
--------------------------------------------------------------------------------
Xxxxxxx Xxxx
--------------------------------------------------------------------------------
North Sound Legacy Fund LLC
--------------------------------------------------------------------------------
North Sound Legacy Institutional Fund LLC
--------------------------------------------------------------------------------
North Sound Legacy International Ltd
--------------------------------------------------------------------------------
OTAPE Investments LLC
--------------------------------------------------------------------------------
Xxxx Xxxxxxxx
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx
--------------------------------------------------------------------------------
Platinum Long Term Growth
--------------------------------------------------------------------------------
ProMed Offshore Fund, Ltd.
--------------------------------------------------------------------------------
ProMed Partners II, L.P.
--------------------------------------------------------------------------------
ProMed Partners, L.P.
--------------------------------------------------------------------------------
RHP Master Fund, Ltd.
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx
--------------------------------------------------------------------------------
Xxxxxxx Xxxx/Short Trading Ltd.
--------------------------------------------------------------------------------
Xxxxxx X. and Xxxxxx X. Xxxxxxxx JTWROS
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx, MD, Inc. Combination Retirement Trust U/T/A 11/30/82
--------------------------------------------------------------------------------
Xxxxxx Xxxxxx
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
Saad Investments Company Limited
--------------------------------------------------------------------------------
Xxxxxxxx & Co Bank AG
--------------------------------------------------------------------------------
SDS Capital Group SPC, Ltd.
--------------------------------------------------------------------------------
Xxxx X. Xxxxx
--------------------------------------------------------------------------------
SF Capital Partners Ltd.
--------------------------------------------------------------------------------
Xxxxxxxxxxx XX
--------------------------------------------------------------------------------
Sunrise Overseas, Ltd.
--------------------------------------------------------------------------------
TCMP3 Partners
--------------------------------------------------------------------------------
Xxxxx Xxxxx
--------------------------------------------------------------------------------
Whalehaven Fund Limited
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx
--------------------------------------------------------------------------------
Xmark Fund, L.P.
--------------------------------------------------------------------------------
Xmark Fund, LTD
13
