**Exhibit4.15**

 

**REGISTRATIONRIGHTS AGREEMENT**

 

This RegistrationRights Agreement (the “Agreement”) is made and entered into as of this19th day of April, 2004 by and among IMCOR Pharmaceutical Co., a Nevadacorporation (the “Company”), and the “Purchasers” named in that certainSecurities Purchase Agreement, of even date herewith, by and among the Companyand the Purchasers (the “Purchase Agreement”).

 

The parties herebyagree as follows:

 

1.             CertainDefinitions.  Capitalized terms usedand not otherwise defined herein that are defined in the Purchase Agreementwill have the meanings given such terms in the Purchase Agreement.  As used in this Agreement, the followingterms shall have the following meanings:

 

“Affiliate”means, with respect to any person, any other person which directly orindirectly controls, is controlled by, or is under common control with, suchperson.

 

“Business Day”means a day, other than a Saturday or Sunday, on which banks in New York Cityare open for the general transaction of business.

 

 “Closing Price” as of any date means(a) the closing bid price of one share of Common Stock as reported on TheNasdaq SmallCap Market (“Nasdaq”) or other national securities exchangeor OTC bulletin board on which the Company’s shares may be quoted or listed onsuch date, (b) if no closing bid price is available, the average of the highbid and the low asked price quoted on Nasdaq on such date, or (c) if the sharesof Common Stock are not then quoted on Nasdaq, the value of one share of CommonStock on such date as shall be determined in good faith by the Board ofDirectors of the Company and the Purchasers, provided, that if the Boardof Directors of the Company and the Purchasers are unable to agree upon thevalue of a share of Common Stock pursuant to this subpart (c), the Company andthe Purchasers shall jointly select an appraiser who is experienced in suchmatters to determine the Closing Price. The decision of such appraiser shall be final and conclusive, and thecost of such appraiser shall be borne one-half by the Company and one-half bythe Purchasers.

 

“Common Stock”shall mean the Company’s common stock, par value $0.001 per share.

 

“Holder” or“Holders” shall mean the holder or holders, as the case may be, fromtime to time of Registrable Securities.

 

“Prospectus”shall mean the prospectus included in any Registration Statement, as amended orsupplemented by any prospectus supplement, with respect to the terms of theoffering of any portion of the Registrable Securities covered by such RegistrationStatement and by all other amendments and supplements to the prospectus,including post-effective amendments and all material incorporated by referencein such prospectus.

 

“Purchasers”shall mean the Purchasers identified in the Purchase Agreement and anyAffiliate or permitted transferee of any Purchaser who is a subsequent Holder.

 

“Register,”“registered” and “registration” refer to a registration made bypreparing and filing a Registration Statement or similar document in compliancewith the 1933 Act, and the declaration or ordering of effectiveness of suchRegistration Statement or document.

 

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“RegistrableSecurities” shall mean the shares of Common Stock issued or issuable to thePurchasers pursuant to the Purchase Agreement,; provided, that, asecurity shall cease to be a Registrable Security upon (A) sale pursuant to aRegistration Statement or Rule 144 under the 1933 Act, or (B) such securitybecoming eligible for sale by the Holder pursuant to Rule 144(k).

 

“RegistrationStatement” shall mean any registration statement of the Company filed underthe 1933 Act that covers the resale of the Registrable Securities pursuant tothe provisions of this Agreement, amendments and supplements to suchRegistration Statement, including post-effective amendments, all exhibits andall material incorporated by reference in such Registration Statement.

 

“SEC” meansthe U.S. Securities and Exchange Commission.

 

“Warrants”means those warrants issued or issuable pursuant to the terms and conditions ofthose certain Warrant Agreements dated even date with the Purchase Agreemententered into pursuant to the Purchase Agreement.

 

“1933 Act”means the Securities Act of 1933, as amended, and the rules and regulationspromulgated thereunder.

 

“1934 Act”means the Securities Exchange Act of 1934, as amended, and the rules andregulations promulgated thereunder.

 

2.             Registration.

 

(a)           RegistrationStatements.  Not later than thefirst to occur of (i) the 30th day following the Second Closing and (ii) the 15thday following termination of the obligations to complete the Second Closing inaccordance with the Purchase Agreement, the Company shall prepare and file with the SEC a Registration Statement onForm S-1 covering the resale of all Registrable Securities; provided, however,in no event shall the Registration Statement be filed before the date which isfive business days following the date on which the SEC declares effective thatcertain registration statement (the “Investor Registration Statement”) filed onbehalf of the purchasers of the Company’s Common Stock and warrants topurchaser shares of its Common Stock pursuant to that certain SecuritiesPurchase Agreement dated as of April 14, 2004 by and among the Company and thepurchasers party thereto.  TheRegistration Statement shall contain (except if otherwise required pursuant towritten comments received from the SEC upon a review of such RegistrationStatement) the “Plan of Distribution” attached hereto as Annex A.  Such Registration Statement alsoshall cover, to the extent allowable under the 1933 Act and the rulespromulgated thereunder (including Rule 416), such indeterminate number ofadditional shares of Common Stock resulting from stock splits, stock dividendsor similar transactions with respect to the Registrable Securities.  The “Selling Stockholders” and “Plan of Distribution” sections of the RegistrationStatement (and each amendment or supplement thereto, and each request foracceleration of effectiveness thereof) and any risk factor contained in suchdocument that addresses specifically this transaction or the SellingStockholders, shall be provided in accordance with Section 3(c) to theHolders prior to its filing or other submission.  Promptly following any date on which the Company becomes eligibleto use a registration statement on Form S-3 to register Registrable Securitiesfor resale, but in no event more than 20 days after such date, the Companyshall file a Registration Statement on Form S-3 covering the RegistrableSecurities (or a post-effective amendment on Form S-3 to the then effectiveRegistration Statement) and shall cause such Registration Statement to bedeclared effective as soon as possible thereafter, but in any event by the 90thday following the date on which the Company becomes eligible to utilize FormS-3 for the registration of the resale of its securities by sellingstockholders.

 

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(b)           Expenses.  The Company will pay all expenses associatedwith each registration hereunder, including filing and printing fees, counseland accounting fees and expenses, costs associated with clearing theRegistrable Securities for sale under applicable state securities laws, listingfees and the Purchasers’ reasonable expenses in connection with theregistration, but excluding discounts, commissions, fees of Holder’ counsel,and fees of underwriters, selling brokers, dealer managers or similarsecurities industry professionals with respect to the Registrable Securitiesbeing sold.

 

(c)           Effectiveness.

 

(i)            The Company shall useits reasonable best efforts to have the Registration Statement declaredeffective as soon as possible, but in any event by the “Effectiveness Date”defined below for such Registration Statement. “Effectiveness Date” for the initial Registration Statementrequired hereunder means the first to occur of (a) the 60th day following thefiling of the Registration Statement (or 90th day after the filingof the Registration Statement if the filed Registration Statement is reviewedand commented upon by the SEC), and (b) thefifth Business Day following the date on which the Company is notified by theSEC that such Registration Statement will not be reviewed or is no longersubject to further review and comments. If a Registration Statement covering all Registrable Securitiesis not declared effective by the SEC by the Effectiveness Date, then the Company will, in addition to allother rights of the Holders hereunder and under applicable law, as partialliquidated damages and not as a penalty, make payments to each Purchaser inaccordance with Section 2(e) hereof.

 

(ii)           For not more thantwenty-five (25) consecutive days or for a total of not more than forty (40)days in any twelve (12) month period, the Company may delay the disclosure ofmaterial non-public information concerning the Company, by suspending the useof any Prospectus included in any registration contemplated by this Sectioncontaining such information, the disclosure of which at the time would be, inthe good faith opinion of the Company, materially detrimental to the Company(an “Allowed Delay”); provided, that the Company shall promptly(a) notify the Holders in writing of the existence of (but in no event, withoutthe prior written consent of a Purchaser, shall the Company disclose to suchPurchaser any of the facts or circumstances regarding) material non-publicinformation giving rise to an Allowed Delay, and (b) advise the Holders inwriting to cease all sales under the Registration Statement until the end ofthe Allowed Delay.  Liquidated damagesset forth in Section 2(e) will be due and payable notwithstanding any AllowedDelays hereunder.

 

(d)           Underwritten Offering.  Ifany offering pursuant to a Registration Statement pursuant to Section 2(a)hereof involves an underwritten offering, the Company shall have the right toselect an investment banker and manager to administer the offering, whichinvestment banker or manager shall be reasonably satisfactory to the Holdersholding a majority of the Registrable Securities.

 

(e)           Liquidated Damages.  If:(i) a Registration Statement is not timely filed in accordance with Section2(a) hereof (if the Company files a Registration Statement without affordingthe Holders the opportunity to review and comment on the same as required bySection 3(c) hereof, the Company shall not be deemed to have satisfied thisclause (i)), or (ii) a Registration Statement is not timely declared effectiveby the SEC in accordance with Section 2(c) hereof, or (iii) after the date uponwhich the Registration Statement is declared effective by the SEC, withoutregard for the reason thereunder or efforts therefore and without regard to anyAllowed Delays, such Registration Statement ceases for any reason to beeffective and available to the Holders as to all Registrable Securities towhich it is required to cover at any time prior to the time when suchRegistrable Securities have ceased to be “Registrable Securities” in accordancewith the definition of Registrable Securities for more than an aggregate of 20Business Days (which need not be consecutive) (any such failure or breach beingreferred to as an **“Event,”** and for purposes of clauses (i) or(ii) the date on which such Event occurs, or for purposes of clause (iii) thedate which such 20 Business Day-period is exceeded, being referred to as **“Event Date”**),

 

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then, in addition to any other rights available to the Holders underthis Agreement or under applicable law, on each such Event Date, and each monthlyanniversary thereof, the Company shall issue to each Holder an amount in freelytradeable shares of validly issued, fully paid and non-assessable shares ofCommon Stock (which shall become Registrable Shares), as liquidated damages andnot as a penalty, equal to 2% of the aggregate investment amount paid by suchHolder pursuant to the Purchase Agreement (valued at the Closing Price).  The partial liquidated damages pursuant tothis Section shall apply on a pro rata basis for any portion of a month priorto the cure of an Event, other with respect to the first Event Date (for whichthe entire partial liquidated damages for that month will be due in full on theinitial Event Date).

 

3.             CompanyObligations.  The Company willeffect the registration of the Registrable Securities in accordance with theterms hereof, and pursuant thereto the Company will, as expeditiously aspossible:

 

(a)           use its reasonable bestefforts to cause such Registration Statement to become effective and to remaincontinuously effective until such time as the Registrable Securities coveredthereby are no longer “Registrable Securities” under the definition thereof;

 

(b)           prepare and file withthe SEC such amendments and post-effective amendments to the RegistrationStatement and the Prospectus as may be necessary to keep the RegistrationStatement effective for the period specified in Section 3(a) hereof andto comply with the provisions of the 1933 Act and the 1934 Act with respect tothe distribution of all of the Registrable Securities covered thereby;

 

(c)           provide copies to andpermit each Holder to review the“Selling Stockholders” and “Plan of Distribution” sections of each RegistrationStatement and any risk factor that addresses specifically this transaction orthe Selling Stockholders under the Registration Statement and all amendmentsand supplements thereto, no fewer than five (5) Business Days prior totheir filing with the SEC and not, without the consent of such Holder, file anyRegistration Statement that contains disclosure regarding a Holder that differsin any material respect with the disclosure set forth in the Selling HolderQuestionnaire (as hereinafter defined) provided by such Holder for use in suchRegistration Statement;

 

(d)           furnish to the Holders(i) promptly after the same is prepared and publicly distributed, filed withthe SEC, or received by the Company (but not later than two (2) Business Daysafter the filing date, receipt date or sending date, as the case may be) one(1) copy of any Registration Statement and any amendment thereto, eachpreliminary prospectus and Prospectus and each amendment or supplement thereto,and each letter written by or on behalf of the Company to the SEC or the staffof the SEC, and each item of correspondence from the SEC or the staff of theSEC, in each case relating to such Registration Statement (other than anyportion of any thereof which contains information for which the Company hassought confidential treatment or believes might constitute material andnon-public information concerning the Company), and (ii) such number of copiesof a Prospectus, including a preliminary prospectus, and all amendments andsupplements thereto and such other documents as each Holder may reasonablyrequest in order to facilitate the disposition of the Registrable Securitiesowned by such Holder that are covered by the related Registration Statement;

 

(e)           in the event of anunderwritten offering hereunder wherein the Company selects an underwriter, theCompany shall enter into and perform its reasonable obligations under anunderwriting agreement, in usual and customary form, including, withoutlimitation, customary indemnification and contribution obligations, with theunderwriter of such offering;

 

(f)            if required by theunderwriter, or if any Holder is described in the Registration Statement as anunderwriter, the Company shall furnish, on the effective date of theRegistration Statement (except with respect to clause (i) below) and on thedate that Registrable Securities are delivered to an

 

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underwriter, ifany, for sale in connection with the Registration Statement (including anyHolder deemed to be an underwriter), (i) (A) in the case of an underwrittenoffering, an opinion, dated as of the closing date of the sale of RegistrableSecurities to the underwriters, from legal counsel representing the Company forpurposes of such Registration Statement, in form, scope and substance as iscustomarily given in an underwritten public offering, addressed to theunderwriters and the Holders participating in such underwritten offering or (B)in the case of an “at the market” offering, an opinion, dated as of or promptlyafter the effective date of the Registration Statement to the Holders, fromlegal counsel representing the Company for purposes of such RegistrationStatement, in form, scope and substance as is customarily given in a publicoffering, addressed to the Holders, and (ii) a letter, dated as of theeffective date of such Registration Statement and confirmed as of theapplicable dates described above, from the Company’s independent certifiedpublic accountants in form and substance as is customarily given by independentcertified public accountants to underwriters in an underwritten public offering,addressed to the underwriters (including any Holder deemed to be anunderwriter);

 

(g)           use its reasonable bestefforts to (i) prevent the issuance of any stop order or other suspension ofeffectiveness and, (ii) if such order is issued, obtain the withdrawal of anysuch order at the earliest possible moment;

 

(h)           prior to any publicoffering of Registrable Securities, use its reasonable best efforts to registeror qualify or cooperate with the Holders and their counsel in connection withthe registration or qualification of such Registrable Securities for offer andsale under the securities or blue sky laws of such jurisdictions requested bythe Holders and do any and all other commercially reasonable acts or thingsnecessary or advisable to enable the distribution in such jurisdictions of theRegistrable Securities covered by the Registration Statement;

 

(i)            use its reasonablebest efforts to cause all Registrable Securities covered by a RegistrationStatement to be listed on each securities exchange, interdealer quotationsystem or other market on which similar securities issued by the Company arethen listed;

 

(j)            immediately notify theHolders, at any time when a Prospectus relating to Registrable Securities isrequired to be delivered under the 1933 Act, upon discovery that, or upon thehappening of any event as a result of which, the Prospectus included in aRegistration Statement, as then in effect, includes an untrue statement of amaterial fact or omits to state any material fact required to be stated thereinor necessary to make the statements therein not misleading in light of thecircumstances then existing, and at the request of any such Holder, promptlyprepare and furnish to such Holder a reasonable number of copies of asupplement to or an amendment of such Prospectus as may be necessary so that,as thereafter delivered to the Holders of such Registrable Securities, suchProspectus shall not include an untrue statement of a material fact or omit tostate a material fact required to be stated therein or necessary to make thestatements therein not misleading in light of the circumstances then existing;and

 

(k)           otherwise comply withall applicable rules and regulations of the SEC under the 1933 Act and the 1934Act, use its reasonable best efforts to take such other actions as may bereasonably necessary to facilitate the registration of the RegistrableSecurities hereunder; and make available to its security holders, as soon asreasonably practicable, but not later than the Availability Date (as definedbelow), an earnings statement covering a period of at least twelve (12) months,beginning after the effective date of each Registration Statement, whichearnings statement shall satisfy the provisions of Section 11(a) of the 1933Act (for the purpose of this section 3(k), “Availability Date”means the 45th day following the end of the fourth fiscal quarter that includesthe effective date of such Registration Statement, except that, if such fourthfiscal quarter is the last quarter of the Company’s fiscal year, “AvailabilityDate” means the 90th day after the end of such fourth fiscal quarter).

 

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4.             Obligations of theHolders.

 

(a)           Each Holder agrees to furnish to the Company a completed Questionnaire inthe form attached to this Agreement as Annex B (a “Selling HolderQuestionnaire”).  The Company shallnot be required to include the Registrable Securities of a Holder in aRegistration Statement and shall not be required to pay any partial liquidatedor other damages under Section 2(e) hereof to a Holder who fails to furnish tothe Company a completed Selling Holder Questionnaire at least two (2) BusinessDays prior to the date a Registration Statement is required to be filed inaccordance with the requirements set forth in Section 2(a).

 

(b)           Each Holder, by itsacceptance of the Registrable Securities agrees to cooperate with the Companyas reasonably requested by the Company in connection with the preparation andfiling of a Registration Statement hereunder, unless such Holder has notifiedthe Company in writing of its election to exclude all of its RegistrableSecurities from such Registration Statement.

 

(c)           Each Holder covenants and agrees that it will comply with theprospectus delivery requirements of the 1933 Act as applicable to it inconnection with sales of Registrable Securities pursuant to the RegistrationStatement.

 

(d)           Each Holder agreesthat, upon receipt of any notice from the Company of either (A) thecommencement of an Allowed Delay pursuant to Section 2(c)(ii) or (B) thehappening of an event pursuant to Section 3(j) hereof, such Holder willimmediately discontinue disposition of Registrable Securities pursuant to theRegistration Statement covering such Registrable Securities, until the Holder’sreceipt of the copies of the supplemented or amended prospectus filed with theSEC and declared effective and, if so directed by the Company, the Holder shalldeliver to the Company (at the expense of the Company) or destroy (and deliverto the Company a certificate of destruction) all copies in the Holder’spossession of the Prospectus covering the Registrable Securities current at thetime of receipt of such notice.

 

(e)           No Holder mayparticipate in any third party underwritten registration hereunder unless it(i) agrees to sell the Registrable Securities on the basis provided in anyunderwriting arrangements in usual and customary form entered into by theCompany, (ii) completes and executes all questionnaires, powers of attorney,indemnities, underwriting agreements and other documents reasonably requiredunder the terms of such underwriting arrangements, and (iii) agrees to pay itspro rata share of all underwriting discounts and commissions.  Notwithstanding the foregoing, no Holdershall be required to make any representations to such underwriter, other thanthose with respect to itself and the Registrable Securities owned by it,including its right to sell the Registrable Securities, and any indemnificationin favor of the underwriter by the Holders shall be several and not joint andlimited in the case of any Holder, to the proceeds received by such Holder fromthe sale of its Registrable Securities. The scope of any such indemnification in favor of an underwriter shallbe limited to the same extent as the indemnity provided in Section 5(a) hereof.

 

5.             Indemnification.

 

(a)           Indemnification bythe Company.  The Company willindemnify and hold harmless each Holder and its officers, directors, members,employees and agents, successors and assigns, and each other person, if any,who controls such Holder within the meaning of the 1933 Act, against anylosses, claims, damages or liabilities, joint or several, to which such Holder,officer, director, member, or controlling person may become subject under the1933 Act or otherwise, insofar as such losses, claims, damages or liabilities(or actions in respect thereof) arise out of or are based upon: (i) any untruestatement or alleged untrue statement of any material fact contained in anyRegistration Statement, any preliminary prospectus

 

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or finalprospectus contained therein, or any amendment or supplement thereof; (ii) anyblue sky application or other document executed by the Company specifically forthat purpose or based upon written information furnished by the Company filedin any state or other jurisdiction in order to qualify any or all of theRegistrable Securities under the securities laws thereof (any such application,document or information herein called a **“**Blue Sky Application**”**);(iii) the omission or alleged omission to state therein a material factrequired to be stated therein or necessary to make the statements therein notmisleading; (iv) any violation by the Company or its agents of any rule orregulation promulgated under the 1933 Act applicable to the Company or itsagents and relating to action or inaction required of the Company in connectionwith such registration; or (v) any failure to register or qualify theRegistrable Securities included in any such Registration in any state where theCompany or its agents has affirmatively undertaken or agreed in writing thatthe Company will undertake such registration or qualification on a Holder’sbehalf (the undertaking of any underwriter chosen by the Company beingattributed to the Company) and will reimburse such Holder, and each suchofficer, director or member and each such controlling person for any legal orother expenses reasonably incurred by them in connection with investigating ordefending any such loss, claim, damage, liability or action; provided, however,that the Company will not be liable in any such case if and to the extent thatany such loss, claim, damage or liability arises out of or is based upon anuntrue statement or alleged untrue statement or omission or alleged omission somade in conformity with information furnished by or on behalf of such Holder orany such controlling person in writing specifically for use in suchRegistration Statement or Prospectus.

 

(b)           Indemnification bythe Holders.  Each Holder agrees,severally but not jointly, to indemnify and hold harmless, to the fullestextent permitted by law, the Company, its directors, officers, employees,stockholders, and successors and each person who controls the Company (withinthe meaning of the 1933 Act) against any losses, claims, damages, liabilitiesand expense (including reasonable attorney fees) resulting from any untruestatement of a material fact or any omission of a material fact required to bestated in the Registration Statement or Prospectus or preliminary prospectus oramendment or supplement thereto or necessary to make the statements therein notmisleading, to the extent, but only to the extent that such untrue statement oromission is contained in any information furnished in writing by or on behalfof such Holder to the Company specifically for inclusion in such RegistrationStatement or Prospectus or amendment or supplement thereto.  In no event shall the liability of a Holderbe greater in amount than the dollar amount of the proceeds (net of all expensepaid by such Holder and the amount of any damages such holder has otherwisebeen required to pay by reason of such untrue statement or omission) receivedby such Holder upon the sale of the Registrable Securities giving rise to suchindemnification obligation.

 

(c)           Conduct ofIndemnification Proceedings.  Anyperson entitled to indemnification hereunder shall (i) give prompt notice tothe indemnifying party of any claim with respect to which it seeksindemnification and (ii) permit such indemnifying party to assume the defenseof such claim with counsel reasonably satisfactory to the indemnified party; providedthat any person entitled to indemnification hereunder shall have the right toemploy separate counsel and to participate in the defense of such claim, butthe fees and expenses of such separate counsel shall be at the expense of suchperson unless (a) the indemnifying party has agreed to pay such fees orexpenses, or (b) the indemnifying party shall have failed to assume the defenseof such claim and employ counsel reasonably satisfactory to such person or (c)in the reasonable judgment of any such person, based upon written advice of itscounsel, a conflict of interest exists between such person and the indemnifyingparty with respect to such claims (in which case, if the person notifies theindemnifying party in writing that such person elects to employ separatecounsel at the expense of the indemnifying party, the indemnifying party shallnot have the right to assume the defense of such claim on behalf of suchperson); and provided, further, that the failure of anyindemnified party to give notice as provided herein shall not relieve theindemnifying party of its obligations hereunder, except to the extent that suchfailure to give notice shall materially adversely

 

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affect theindemnifying party in the defense of any such claim or litigation.  It is understood that the indemnifying partyshall not, in connection with any proceeding in the same jurisdiction, beliable for fees or expenses of more than one separate firm of attorneys at anytime for all such indemnified parties. No indemnifying party will, except with the consent of the indemnifiedparty, consent to entry of any judgment or enter into any settlement that doesnot include as an unconditional term thereof the giving by the claimant orplaintiff to such indemnified party of a release from all liability in respectof such claim or litigation.

 

(d)           Contribution.  If for any reason the indemnificationprovided for in the preceding paragraphs (a) and (b) is unavailable to anindemnified party or insufficient to hold it harmless, other than as expresslyspecified therein, then the indemnifying party shall contribute to the amountpaid or payable by the indemnified party as a result of such loss, claim,damage or liability in such proportion as is appropriate to reflect therelative fault of the indemnified party and the indemnifying party, as well asany other relevant equitable considerations. No person guilty of fraudulent misrepresentation within the meaning ofSection 11(f) of the 1933 Act shall be entitled to contribution from any personnot guilty of such fraudulent misrepresentation.  In no event shall the contribution obligation of a holder ofRegistrable Securities be greater in amount than the dollar amount of theproceeds (net of all expenses paid by such holder and the amount of any damagessuch holder has otherwise been required to pay by reason of such untrue oralleged untrue statement or omission or alleged omission) received by it uponthe sale of the Registrable Securities giving rise to such contributionobligation.

 

6.             Miscellaneous.

 

(a)           Remedies.  In the event of a breach by the Company orby a Holder of any of their obligations under this Agreement, each Holder orthe Company, as the case may be, in addition to being entitled to exercise allrights granted by law and under this Agreement, including recovery of damages,will be entitled to specific performance of its rights under thisAgreement.  The Company and each Holderagree that monetary damages may not provide adequate compensation for anylosses incurred by reason of a breach by it of any of the provisions of thisAgreement and hereby further agrees that, in the event of any action forspecific performance in respect of such breach, it shall waive the defense thata remedy at law would be adequate.

 

(b)           Piggy-BackRegistrations.  If at any time whilea Registration Statement is required to be effective hereunder there is not aneffective Registration Statement covering all of the Registrable Securities andthe Company shall determine to prepare and file with the SEC a registrationstatement relating to an offering for its own account or the account of othersunder the 1933 Act of any of its equity securities, other than with respect tothe Investor Registration Statement and the Company’s registration to Dr.Gerald Wolf as described in the Disclosure Schedule or any registrationstatement on Form S-4 or Form S-8 (each as promulgated under the 1933 Act) ortheir then equivalents relating to equity securities to be issued solely inconnection with any acquisition of any entity or business or equity securitiesissuable in connection with stock option or other employee benefit plans, thenthe Company shall send to each Holder written notice of such determination and,if within fifteen days after receipt of such notice, any such Holder shall sorequest in writing, the Company shall include in such registration statementall or any part of such Registrable Securities such holder requests to beregistered, subject to customary underwriter cutbacks applicable to all holdersof registration rights.

 

(c)           Amendments and Waivers.  Theprovisions of this Agreement, including the provisions of this section, may notbe amended, modified or supplemented, and waivers or consents to departuresfrom the provisions hereof may not be given, unless the same shall be inwriting and signed by the Company and the Holder or Holders (as applicable) ofno less than a majority in interest of the then outstanding RegistrableSecurities.  Notwithstanding theforegoing, a waiver or consent to depart from the

 

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provisions hereofwith respect to a matter that relates exclusively to the rights of certainHolders and that does not directly or indirectly affect the rights of otherHolders may be given by Holders of at least a majority of the Registrable Securitiesto which such waiver or consent relates.

 

(d)           Notices.  All notices and othercommunications provided for or permitted hereunder shall be made as set forthin the Purchase Agreement or, with respect to a Holder, to such other addressas provided in writing by a Holder to the Company.

 

(e)           Assignments and Transfers by Holders.  Theprovisions of this Agreement shall be binding upon and inure to the benefit ofthe Holders and their respective successors and assigns.  A Holder may transfer or assign, in whole orfrom time to time in part, to one or more persons its rights hereunder inconnection with the transfer of Registrable Securities by such Holder to suchperson, provided that such Holder complies with all laws applicable thereto andprovides written notice of assignment to the Company promptly after suchassignment is effected.

 

(f)            Assignments and Transfers by the Company. This Agreement may not be assigned by the Company (whether by operationof law or otherwise), provided, however, that the Company mustassign its rights and delegate its duties hereunder to any surviving orsuccessor corporation in connection with a merger or consolidation of theCompany with another corporation, or a sale, transfer or other disposition ofall or substantially all of the Company’s assets to another corporation.

 

(g)           Benefits of the Agreement.  Theterms and conditions of this Agreement shall inure to the benefit of and bebinding upon the respective permitted successors and assigns of theparties.  Other than with respect toindemnified parties hereunder who are not parties to this Agreement, nothing inthis Agreement, express or implied, is intended to confer upon any party otherthan the parties hereto or their respective successors and assigns any rights, remedies,obligations, or liabilities under or by reason of this Agreement, except asexpressly provided in this Agreement.

 

(h)           Counterparts; Faxes. This Agreement may be executed in two or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constituteone and the same instrument.  ThisAgreement may also be executed via facsimile, which shall be deemed anoriginal.

 

(i)            Titles and Subtitles.  Thetitles and subtitles used in this Agreement are used for convenience only andare not to be considered in construing or interpreting this Agreement.

 

(j)            Severability.  Anyprovision of this Agreement that is prohibited or unenforceable in anyjurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch prohibition or unenforceability without invalidating the remainingprovisions hereof but shall be interpreted as if it were written so as to beenforceable to the maximum extent permitted by applicable law, and any suchprohibition or unenforceability in any jurisdiction shall not invalidate orrender unenforceable such provision in any other jurisdiction.  To the extent permitted by applicable law,the parties hereby waive any provision of law which renders any provisionshereof prohibited or unenforceable in any respect.

 

(k)           Further Assurances.  Theparties hereto shall execute and deliver all such further instruments anddocuments and take all such other actions as may reasonably be required tocarry out the transactions contemplated hereby and to evidence the fulfillmentof the agreements herein contained.

 

(l)            Entire Agreement. This Agreement and the Purchase Agreement (and the Exhibits andSchedules annexed thereto) are intended by the parties hereto as a finalexpression of their agreement and intended to be a complete and exclusivestatement of the agreement and understanding of the parties hereto in respectof the subject matter contained herein and therein.  This Agreement and the Purchase

 

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Agreement (and the Exhibits and Schedules annexed thereto) supersedeall prior agreements and understandings between the parties with respect tosuch subject matter.

 

(m)          Governing Law; Consent to Jurisdiction.  Allquestions concerning the construction, validity, enforcement and interpretationof this Agreement shall be governed by and construed and enforced in accordancewith the internal laws of the State of New York, without regard to theprinciples of conflicts of law thereof. Each party agrees that all proceedings concerning the interpretations,enforcement and defense of the transactions contemplated by this Agreement(whether brought against a party hereto or its respective affiliates, employeesor agents) may be commenced non-exclusively in the state and federal courtssitting in the City of New York, Borough of Manhattan, (the “**New YorkCourts**”).  Each party heretohereby irrevocably submits to the non-exclusive jurisdiction of the New YorkCourts for the adjudication of any dispute hereunder or in connection herewithor with any transaction contemplated hereby or discussed herein, and herebyirrevocably waives, and agrees not to assert in any proceeding, any claim thatit is not personally subject to the jurisdiction of any New York Court, or thatsuch proceeding has been commenced in an improper or inconvenient forum.  Each party hereto hereby irrevocably waivespersonal service of process and consents to process being served in any suchproceeding by mailing a copy thereof via registered or certified mail orovernight delivery (with evidence of delivery) to such party at the address ineffect for notices to it under this Agreement and agrees that such serviceshall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed tolimit in any way any right to serve process in any manner permitted bylaw.  Each party hereto herebyirrevocably waives, to the fullest extent permitted by applicable law, any andall right to trial by jury in any proceeding arising out of or relating to thisAgreement or the transactions contemplated hereby.  If either party shall commence a proceeding to enforce anyprovisions of this Agreement, then the prevailing party in such proceedingshall be reimbursed by the other party for its attorney’s reasonable fees andother costs and expenses incurred with the investigation, preparation andprosecution of such proceeding.

 

(n)           Cumulative Remedies.  Theremedies provided herein are cumulative and not exclusive of any remediesprovided by law.

 

(o)           Independent Nature of Holders Obligations andRights.  The obligations of each Holder hereunder isseveral and not joint with the obligations of any other Holder hereunder, andno Holder shall be responsible in any way for the performance of theobligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document deliveredat any closing, and no action taken by any Holder pursuant hereto or thereto,shall be deemed to constitute the Holder as a partnership, an association, ajoint venture or any other kind of entity, or create a presumption that theHolder are in any way acting in concert with respect to such obligations or thetransactions contemplated by this Agreement. Each Holder shall be entitled to protect and enforce its rights,including without limitation the rights arising out of this Agreement, and itshall not be necessary for any other Holder to be joined as an additional partyin any proceeding for such purpose.  TheCompany acknowledges that each of the Purchasers has been provided with thesame Agreement for the purpose of closing a transaction with multiplePurchasers and not because it was required or requested to do so by anyPurchaser.

 

*Signaturepages follow.*

 

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IN WITNESS WHEREOF, the parties have executed thisAgreement or caused their duly authorized officers to execute this Agreement asof the date first above written.

 
|   | Company:                  |
|--------|---------------------------|
|   |                      |
|   | IMCOR Pharmaceutical  Co. |
|   |                      |
|   | By:                       |   |   |
|   | Name:                     |
|   | Title:                    |

 

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IN WITNESS WHEREOF, the parties have executed thisAgreement or caused their duly authorized officers to execute this Agreement asof the date first above written.

 
|   | PURCHASER: |
|--------|------------|
|   |       |
|   |       |
|   |       |
|   | By:        |   |   |
|   | Name:      |
|   | Title:     |

 

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Annex A

 

Plan of Distribution

 

The Selling Stockholders and any of their pledgees,donees, transferees, assignees and successors-in-interest may, from time totime, sell any or all of their shares of Common Stock on any stock exchange,market or trading facility on which the shares are traded or in privatetransactions.  These sales may be atfixed or negotiated prices.  The SellingStockholders may use any one or more of the following methods when sellingshares:

 

•      ordinary brokeragetransactions and transactions in which the broker-dealer solicits Investors;

 

•      block trades in which thebroker-dealer will attempt to sell the shares as agent but may position andresell a portion of the block as principal to facilitate the transaction;

 

•      purchases by a broker-dealeras principal and resale by the broker-dealer for its account;

 

•      an exchange distribution inaccordance with the rules of the applicable exchange;

 

•      privately negotiated transactions;

 

•      to cover short sales madeafter the date that this Registration Statement is declared effective by theCommission;

 

•      broker-dealers may agreewith the Selling Stockholders to sell a specified number of such shares at astipulated price per share;

 

•      a combination of any suchmethods of sale; and

 

•      any other method permittedpursuant to applicable law.

 

The Selling Stockholders may also sell shares underRule 144 under the Securities Act, if available, rather than under thisprospectus.

 

Broker-dealers engaged by the Selling Stockholders mayarrange for other brokers-dealers to participate in sales.  Broker-dealers may receive commissions ordiscounts from the Selling Stockholders (or, if any broker-dealer acts as agentfor the purchaser of shares, from the purchaser) in amounts to benegotiated.  The Selling Stockholders donot expect these commissions and discounts to exceed what is customary in thetypes of transactions involved.

 

The Selling Stockholders may from time to time pledgeor grant a security interest in some or all of the Shares owned by them and, ifthey default in the performance of their secured obligations, the pledgees orsecured parties may offer and sell shares of Common Stock from time to timeunder this prospectus, or under an amendment to this prospectus under Rule424(b)(3) or other applicable provision of the Securities Act of 1933 amendingthe list of selling stockholders to include the pledgee, transferee or othersuccessors in interest as selling stockholders under this prospectus.

 

Upon the Company being notified in writing by aSelling Stockholder that any material arrangement has been entered into with abroker-dealer for the sale of Common Stock through a block trade, specialoffering, exchange distribution or secondary distribution or a purchase by abroker or dealer, a supplement to this prospectus will be filed, if required,pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name ofeach such Selling Stockholder and of the participating broker-dealer(s), (ii)the

 

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number of sharesinvolved, (iii) the price at which such the shares of Common Stock were sold,(iv)the commissions paid or discounts or concessions allowed to suchbroker-dealer(s), where applicable, (v) that such broker-dealer(s) did notconduct any investigation to verify the information set out or incorporated byreference in this prospectus, and (vi) other facts material to thetransaction.  In addition, upon theCompany being notified in writing by a Selling Stockholder that a donee orpledge intends to sell more than 500 shares of Common Stock, a supplement tothis prospectus will be filed if then required in accordance with applicablesecurities law.

 

The Selling Stockholders also may transfer the sharesof Common Stock in other circumstances, in which case the transferees, pledgeesor other successors in interest will be the selling beneficial owners forpurposes of this prospectus.

 

The Selling Stockholders and any broker-dealers oragents that are involved in selling the shares may be deemed to be“underwriters” within the meaning of the Securities Act in connection with suchsales.  In such event, any commissionsreceived by such broker-dealers or agents and any profit on the resale of theshares purchased by them may be deemed to be underwriting commissions ordiscounts under the Securities Act. Discounts, concessions, commissions and similar selling expenses, ifany, that can be attributed to the sale of Securities will be paid by theSelling Stockholder and/or the purchasers. Each Selling Stockholder has represented and warranted to the Companythat it acquired the securities subject to this registration statement in theordinary course of such Selling Stockholder’s business and, at the time of itspurchase of such securities such Selling Stockholder had no agreements orunderstandings, directly or indirectly, with any person to distribute any suchsecurities.

 

The Company has advised each Selling Stockholder thatit may not use shares registered on this Registration Statement to cover shortsales of Common Stock made prior to the date on which this RegistrationStatement shall have been declared effective by the Commission.  If a Selling Stockholder uses thisprospectus for any sale of the Common Stock, it will be subject to theprospectus delivery requirements of the Securities Act.  The Selling Stockholders will be responsibleto comply with the applicable provisions of the Securities Act and ExchangeAct, and the rules and regulations thereunder promulgated, including, withoutlimitation, Regulation M, as applicable to such Selling Stockholders inconnection with resales of their respective shares under this RegistrationStatement.

 

The Company is required to pay all fees and expensesincident to the registration of the shares, but the Company will not receiveany proceeds from the sale of the Common Stock.  The Company has agreed to indemnify the Selling Stockholdersagainst certain losses, claims, damages and liabilities, including liabilitiesunder the Securities Act.  If theSelling Stockholders use this prospectus for any sale of the Common Stock, theywill be subject to the prospectus delivery requirements of the Securities Act.

 

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**Annex B**

 

**SellingSecurityholder Notice and Questionnaire**

 

The undersigned beneficialowner of common stock (the **“Common Stock”**), of IMCOR PharmaceuticalCo. (the **“Company”**)understands that the Company has filed or intends to file with the Securitiesand Exchange Commission (the **“SEC”**) a Registration Statement for theregistration and resale of the Registrable Securities, in accordance with theterms of the Registration Rights Agreement, dated as of April    , 2004 (the **“Registration Rights Agreement”**), among theCompany and the Purchasers named therein. A copy of the Registration Rights Agreement is available from theCompany upon request at the address set forth below.  All capitalized terms used and not otherwise defined herein shallhave the meanings ascribed thereto in the Registration Rights Agreement.

 

The undersigned hereby provides the following information to theCompany and represents and warrants that such information is accurate:

 

**QUESTIONNAIRE**

 

**1.****             Name.**

 

(a)           FullLegal Name of Selling Securityholder

 

 

 

(b)           FullLegal Name of Registered Holder (if not the same as (a) above) through whichRegistrable Securities Listed in Item 3 below are held:

 

 

 

(c)           FullLegal Name of Natural Control Person (which means a natural person who directlyyou indirectly alone or with others has power to vote or dispose of thesecurities covered by the questionnaire):

 

 

 

**2. Address for Notices to Selling Securityholder:**
|             |
|------------------|
|             |
|             |
|             |
| Telephone:       |
| Fax:             |
| Contact  Person: |

 

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**3. Beneficial Ownership of Registrable Securities:**

 

(a)           Type andPrincipal Amount of Registrable Securities beneficially owned:

 

 

 

 

 

**4. Broker-Dealer Status:**

 

(a)           Are you abroker-dealer?

 

Yes   o  No   o

 

Note:      Ifyes, the SEC’s staff has indicated that you should be identified as anunderwriter in the Registration Statement.

 

(b)           Are youan affiliate of a broker-dealer?

 

Yes   o  No   o

 

(c)           If youare an affiliate of a broker-dealer, do you certify that you bought theRegistrable Securities in the ordinary course of business, and at the time ofthe purchase of the Registrable Securities to be resold, you had no agreementsor understandings, directly or indirectly, with any person to distribute theRegistrable Securities?

 

Yes   o  No   o

 

Note:      Ifno, the SEC’s staff has indicated that you should be identified as anunderwriter in the Registration Statement.

 

**5. Beneficial Ownership of Other Securities of the Company Owned by theSelling Securityholder.**

 

*Except as set forth below in this Item 5, the undersigned isnot the beneficial or registered owner of any securities of the Company otherthan the Registrable Securities listed above in Item 3.*

 

(a)           Type andAmount of Other Securities beneficially owned by the Selling Securityholder:

 

 

 

 

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**6. Relationships with the Company:**

 

*Except as set forth below, neither the undersigned nor anyof its affiliates, officers, directors or principal equity holders (owners of5% of more of the equity securities of the undersigned) has held any positionor office or has had any other material relationship with the Company (or itspredecessors or affiliates) during the past three years.*

 

State any exceptions here:

 

 

 

 

The undersigned agrees to promptly notify the Company of anyinaccuracies or changes in the information provided herein that may occursubsequent to the date hereof and prior to the Effective Date for theRegistration Statement.

 

By signing below, the undersigned consents to the disclosure of theinformation contained herein in its answers to Items 1 through 6 and theinclusion of such information in the Registration Statement and the relatedprospectus.  The undersigned understandsthat such information will be relied upon by the Company in connection with thepreparation or amendment of the Registration Statement and the relatedprospectus.

 

IN WITNESS WHEREOF the undersigned, by authority duly given, has causedthis Notice and Questionnaire to be executed and delivered either in person orby its duly authorized agent.

 
| Dated: |   |   | Beneficial Owner: |   |   |
|--------|--------|--------|-------------------|--------|--------|
|   |   |
|   | By:    |   |              |
|   |   | Name:  |
|   |   | Title: |
|        |        |        |                   |        |        |  |

 

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