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.
(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
2
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.
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 7
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 Xxxxxxx XxXxxxxxx LLP
notice): 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
8
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
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
9
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, (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
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
