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.
1
(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 similar provisions then in
force) promulgated under the Securities Act; (iii) respond as promptly as
2
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.
3
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.
4
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.
5
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.
6
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.
7
(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
8
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
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
9
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, (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.]
10
COMPANY SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ADVENTRX PHARMACEUTICALS, INC.
By:
---------------------------------------------------
Name:
-------------------------------------------------
Title:
------------------------------------------------
[Investor signature pages follow.]
COMPANY SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTORS:
Print Exact Name:_________________________________
By:_____________________________________________
Name:
Title:
[ADVENTRX Registration Rights Agreement]
SCHEDULE 1
INVESTORS
