**Exhibit 4.12**

 

**WARRANT AGREEMENT**

 

WARRANTAGREEMENT dated as of April 14, 2004 (this “Warrant Agreement”), between IMCORPharmaceutical Co. , a Nevada corporation (the “Company”), and **[Purchaser]** (together with its successorsand assigns, the “Holder”).

 

WHEREAS,the Company and the Holder have entered into that certain Securities PurchaseAgreement dated as of April 14, 2004 (the “Purchase Agreement”) pursuant towhich the Company agreed to sell and the Holder agreed to purchase warrants, ashereinafter described (the “Warrants”), to purchase shares of the Company’scommon stock, par value $0.001 per share (the “Common Stock”);

 

WHEREAS,the Common Stock issuable upon the exercise of the Warrants is hereinafterreferred to as the “Warrant Shares”; and

 

WHEREAS,each Warrant entitles the Holder to purchase one Warrant Share at the exerciseprice set forth herein.

 

NOW,THEREFORE, in consideration of the premises and the mutual agreements hereinset forth and as set forth in the Purchase Agreement, the parties hereto agreeas follows:

 

# SECTION1.           Warrant Certificate.  Thecertificate evidencing the Warrants (the “Warrant Certificate”) to be deliveredpursuant to this Agreement shall be in registered form only and shall besubstantially in the form set forth in Annex A attached hereto.

 

# SECTION2.           Execution of Warrant Certificates. Warrant Certificates shall be signed on behalf of the Company by itsChairman of the Board or its President or a Vice President and by its Secretaryor an Assistant Secretary.  Each suchsignature upon the Warrant Certificates may be in the form of a facsimilesignature of the present or any future Chairman of the Board, President, VicePresident, Secretary or Assistant Secretary and may be imprinted or otherwisereproduced on the Warrant Certificates and for that purpose the Company mayadopt and use the facsimile signature of any person who shall have beenChairman of the Board, President, Vice President, Secretary or AssistantSecretary, notwithstanding the fact that at the time the Warrant Certificatesshall be countersigned and delivered or disposed of he shall have ceased tohold such office.

 

AnyWarrant Certificate may be signed on behalf of the Company by any person who,at the actual date of the execution of such Warrant Certificate, shall be aproper officer of the Company to sign such Warrant Certificate, although at thedate of the execution of this Warrant Agreement any such person was not suchofficer.

 

# SECTION3.           Registration.  TheCompany shall number and register the Warrant Certificates in the name of therecord holder in a register to be maintained by the Company as they are issuedby the Company.  The Company may deemand treat the registered holder(s) of the Warrant Certificates as the absoluteowner(s) thereof (notwithstanding any notation of ownership or other writingthereon made by anyone), for all purposes, absent actual notice to thecontrary.

 

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# SECTION4.           Registration of Transfers and Exchanges.  TheCompany shall register the transfer of any outstanding Warrant Certificatesupon the records to be maintained by it for that purpose, upon surrenderthereof accompanied (if so required by it) by a written instrument orinstruments of transfer duly executed by the registered holder or holdersthereof or by the duly appointed legal representative thereof or by a dulyauthorized attorney.  Upon any suchregistration of transfer, a new Warrant Certificate shall be issued to the transferee(s)and the surrendered Warrant Certificate shall be canceled by the Company.  Canceled Warrant Certificates shallthereafter be disposed of in a manner satisfactory to the Company.  The acceptance of the new WarrantCertificate by the transferee thereof shall be deemed the acceptance by suchtransferee of all of the rights and obligations of a holder of a WarrantCertificate.

#  

TheHolder agrees that each certificate representing Warrant Shares will bear thefollowing legend until the Warrant Shares are registered or freely tradeableunder the Securities Act of 1933, as amended and the regulations promulgatedthereunder:

 

NEITHERTHESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIESHAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THESECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROMREGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIESACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO ANEFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO ANAVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATESECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TOSUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THECOMPANY.  THESE SECURITIES AND THESECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED INCONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.

 

WarrantCertificates may be exchanged at the option of the holder(s) thereof, whensurrendered to the Company at its office for another Warrant Certificate orother Warrant Certificates of like tenor and representing in the aggregate alike number of Warrants.  WarrantCertificates surrendered for exchange shall be canceled by the Company.

 

# SECTION5.           Terms of Warrants, Exercise of Warrants. Subject to the terms of this Agreement and the Warrant Certificate setforth as Annex A,  the Warrant holdershall have the right, commencing on the date hereof and until 5:00 p.m.,Pacific time on April 19, 2009 (the “Exercise Period”), to receive from theCompany the number of fully paid and nonassessable Warrant Shares which theHolder may at the time be entitled to receive on exercise of such Warrants andpayment of the Exercise Price (defined herein) then in effect for such WarrantShares in cash or by certified or official bank check payable to the order ofthe Company, or through exercise of the cashless exercise provisions hereof ifavailable with respect to such exercise. Each Warrant not exercised prior to 5:00 p.m., Pacific time, on April19, 2009 (the “Expiration Date”) shall become void and all rights thereunderand all rights in respect thereof under this agreement shall cease as of suchtime.

 

AWarrant may be exercised upon surrender to the Company at its principal officeof the certificate or certificates evidencing the Warrants to be exercised withthe form of election to purchase duly filled in and signed, and upon payment tothe Company of the exercise price (the “Exercise Price”)

 

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which is set forth in the form of WarrantCertificate attached hereto as Annex A as adjusted as herein provided, for thenumber of Warrant Shares in respect of which such Warrants are thenexercised.  For purposes of thisAgreement, an “Exercise Date” means the business day on which a Holder tendersby facsimile to the Company an Exercise Notice, together with the payment of theExercise Price in respect of such exercise (whether or not actual WarrantCertificates have yet been received by the Company.

 

TheHolder may pay the Exercise Price in one of the following manners:

 

### (1)           Cash Exercise.  TheHolder may deliver immediately available funds; or

###  

### (2)           Cashless Exercise.  Ifan Exercise Notice is delivered after the first to occur of (1) the date that aregistration statement covering the resale of the Warrant Shares is required tobe declared effective in accordance with terms of the Registration RightsAgreement (as defined in the Purchase Agreement) or (2) the date that suchregistration statement is required to have been declared effective inaccordance with the Registration Rights Agreement, and a registration statementpermitting the Holder to resell the Warrant Shares subject to such exercise isnot then effective or the prospectus forming a part thereof is not thenavailable to the Holder for the resale of such Warrant Shares, then the Holdermay notify the Company in a form of election to purchase of its election toutilize cashless exercise, in which event the Company shall issue to the Holderthe number of Warrant Shares determined as follows:

 

X= Y [(A-B)/A]

 

where:

 

X= the number of Warrant Shares to be issued to the Holder.

 

Y= the number of Warrant Shares with respect to which this Warrant is beingexercised.

 

A= the average of the closing prices for the five trading days immediately priorto (but not including) the Exercise Date.

 

B= the Exercise Price.

 

## Forpurposes of Rule 144 promulgated under the Securities Act, it is intended,understood and acknowledged that the Warrant Shares issued in a cashlessexercise transaction shall be deemed to have been acquired by the Holder, andthe holding period for the Warrant Shares shall be deemed to have commenced, onthe date this Warrant was originally issued.

##  

## Uponsuch surrender of Warrants and payment of the Exercise Price the Company shallpromptly issue and cause to be delivered with all reasonable dispatch to or uponthe written order of the Holder in the name of the Holder, a certificate orcertificates for the number of full Warrant Shares issuable upon the exerciseof such Warrants together with cash as provided in SECTION 14; provided,however, that if any consolidation, merger or lease or sale of assets isproposed to be effected by the Company as described in subsection (m) ofSECTION 13 hereof, or a tender offer or an exchange offer for shares of CommonStock of the Company shall be made, upon such surrender of Warrants and paymentof the Exercise Price as aforesaid, the Company shall, as soon as possible, butin any event not later than two business days thereafter, issue and cause to bedelivered the full number of Warrant Shares issuable upon the exercise of suchWarrants in the manner described in this sentence together with cash asprovided in SECTION 14. Such certificate or certificates shall be deemed tohave been issued to the holder of record of such Warrant Shares as of theapplicable Exercise Date.

 

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## Ifby the third business day after an Exercise Date the Company fails to deliverthe required number of Warrant Shares in the manner set forth above, then theHolder will have the right to rescind such exercise.

##  

## Ifby the third business day after an Exercise Date the Company fails to deliverthe required number of Warrant Shares in the manner required above, and ifafter such third business day and prior to the receipt of such Warrant Shares,the Holder purchases (in an open market transaction or otherwise) shares ofCommon Stock to deliver in satisfaction of a sale by the Holder of the WarrantShares which the Holder anticipated receiving upon such exercise (a “**Buy-In**”), then the Company shall (1) pay incash to the Holder the amount by which (x) the Holder’s total purchase price(including brokerage commissions, if any) for the shares of Common Stock sopurchased exceeds (y) the amount obtained by multiplying (A) the number ofWarrant Shares that the Company was required to deliver to the Holder inconnection with the exercise at issue by (B) the closing bid price of theCommon Stock at the time of the obligation giving rise to such purchaseobligation and (2) at the option of the Holder, either reinstate the portion ofthe Warrant and equivalent number of Warrant Shares for which such exercise wasnot honored or deliver to the Holder the number of shares of Common Stock thatwould have been issued had the Company timely complied with its exercise anddelivery obligations hereunder.  TheHolder shall provide the Company written notice indicating the amounts payableto the Holder in respect of the Buy-In.

##  

## TheCompany’s obligations to issue and deliver Warrant Shares in accordance withthe terms hereof are absolute and unconditional, irrespective of any action orinaction by the Holder to enforce the same, any waiver or consent with respectto any provision hereof, the recovery of any judgment against any Person or anyaction to enforce the same, or any setoff, counterclaim, recoupment, limitationor termination, or any breach or alleged breach by the Holder or any otherPerson of any obligation to the Company or any violation or alleged violationof law by the Holder or any other Person, and irrespective of any othercircumstance which might otherwise limit such obligation of the Company to theHolder in connection with the issuance of Warrant Shares.  Nothing herein shall limit a Holder’s rightto pursue any other remedies available to it hereunder, at law or in equityincluding, without limitation, a decree of specific performance and/orinjunctive relief with respect to the Company’s failure to timely delivercertificates representing shares of Common Stock upon exercise of the Warrant  as required pursuant to the terms hereof.

##  

## TheWarrants shall be exercisable, at the election of the Holders, either in fullor from time to time in part and, in the event that a certificate evidencingWarrants is exercised in respect of fewer than all of the Warrant Shares issuableon such exercise at any time prior to the date of expiration of the Warrants, anew certificate evidencing the remaining Warrant or Warrants will be issuedpursuant to the provisions of this Section. All Warrant Certificates surrendered upon exercise of Warrants shall becanceled by the Company.  Such canceledWarrant Certificates shall then be disposed of by the Company.

 

# SECTION6.           Mandatory Exercise. Subject to the provisions of this Section 6, if at any time followingthe issuance of the Warrant Certificates: (i) the VWAP (as defined below) ofthe Common Stock for each of 20 consecutive trading days is greater than $3.50(subject to adjustments due to stock splits, recapitalizations or similarevents), (ii) the Warrant Shares are either registered for resale pursuant toan effective registration statement naming the Holders as selling stockholdersthereunder (and the prospectus thereunder is available for use by the Holdersas to all Warrant Shares) or freely transferable without volume restrictionspursuant to Rule 144(k) promulgated under the Securities Act, as determined bycounsel to the Company pursuant to a written opinion letter addressed and inform and substance reasonably acceptable to the Holders and the transfer agentfor the Common Stock, during the entire 20 trading day period referenced in (i)above through the expiration of the Call Date as set forth in the Company’snotice pursuant to this Section (the “Call Condition Period”), and (iii)the Company shall

 

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# have complied in all material respects with itsobligations under this Warrant Agreement and the Financing  Documents and the Common Stock shall at alltimes be listed or quoted on a the Nasdaq National Market or Nasdaq SmallCap Market,then, subject to the conditions set forth in this Section, the Company may, inits sole discretion, elect to require the exercise of all (but not less thanall) of the then unexercised portion of the Warrants, on the date that is the10th day after written notice thereof (a “Call Notice”) is received bythe Holders (the “Call Date”) at the address last shown on the recordsof the Company for the Holders or given by Holders to the Company for thepurpose of notice; provided, that the conditions to giving such noticemust be in effect at all times during the Call Condition Period or any suchCall Notice shall be null and void. The Company agrees that, if and to theextent Section 15 hereof would restrict the ability of a Holder to exercise itsWarrants in the event of a delivery of a Call Notice, then notwithstandinganything to the contrary set forth in the Call Notice, the Call Notice shall bedeemed automatically amended as to such Holder to apply only to such portion ofits Warrants as may be exercised by such Holder by the Call Date in accordancewith such Section.  A Holder willpromptly (and, in any event, prior to the Call Date) notify the Company inwriting following receipt of a Call Notice if Section 15 would restrict itsexercise of Warrants, specifying therein the number of Warrant Shares sorestricted.  The Company covenants andagrees that it will honor all Exercise Notices tendered through 5:00 p.m.(Pacific time) on the Call Date.  “VWAP”means on any particular trading day or for any particular period, the volumeweighted average trading price per share of Common Stock on such date or forsuch period as reported by the Bloomberg L.P., by any successor performingsimilar functions.

#  

Uponsuch surrender of Warrants and payment of the Exercise Price the Company shallpromptly issue and cause to be delivered with all reasonable dispatch to orupon the written order of the Holder in the name of the Holder, a certificateor certificates for the number of full Warrant Shares issuable upon the exerciseof such Warrants together with cash as provided in SECTION 14.

 

# SECTION7.           Registration Rights.  TheCompany shall register the Warrant Shares for resale under the Securities Actof 1933, as amended, pursuant to the terms and conditions of that certainRegistration Rights Agreement dated even date herewith by and among theCompany, the Holder and the other “Purchasers” named therein.

#  

# SECTION8.           Payment of Taxes. Issuance and delivery of certificates for shares of Common Stock uponexercise of a Warrant Certificate shall be made without charge to the Holderfor any issue or transfer tax, withholding tax, transfer agent fee or otherincidental tax or expense in respect of the issuance of such certificates, allof which such taxes and expenses shall be paid by the Company; provided,however, that the Company shall not be required to pay any tax or taxes whichmay be payable in respect of any transfer involved in the issue of any WarrantCertificates or any certificates for Warrant Shares in a name other than thatof the registered holder of a Warrant Certificate surrendered upon the exerciseof a Warrant, and the Company shall not be required to issue or deliver suchWarrant Certificates unless or until the person or persons requesting theissuance thereof shall have paid to the Company the amount of such tax or shallhave established to the satisfaction of the Company that such tax has beenpaid.

 

# SECTION9.           Mutilated or Missing Warrant Certificates.  Incase any of the Warrant Certificates shall be mutilated, lost, stolen ordestroyed, the Company may, in its discretion, issue in exchange andsubstitution for and upon cancellation of the mutilated Warrant Certificate, orin lieu of and substitution for the Warrant Certificate lost, stolen ordestroyed, a new Warrant Certificate of like tenor and representing anequivalent number of Warrants, but only upon receipt of evidence satisfactoryto the Company of such loss, theft or destruction of such Warrant Certificateand indemnity, if requested, also satisfactory to them.  Applicants for such substitute WarrantCertificates shall also comply with such other reasonable regulations and paysuch other reasonable charges as the Company may prescribe.

 

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# SECTION10.         Reservation of Warrant Shares.  TheCompany covenants that it will at all times reserve and keep available, freefrom preemptive rights, out of the aggregate of its authorized but unissuedCommon Stock or its authorized and issued Common Stock held in its treasury,for the purpose of enabling it to satisfy any obligation to issue WarrantShares upon exercise of Warrants, the maximum number of shares of Common Stockwhich may then be deliverable upon the exercise of all outstanding Warrants.  The Company covenants that all WarrantShares so issuable and deliverable shall, upon issuance and the payment of theapplicable Exercise Price in accordance with the terms hereof, be duly andvalidly authorized, issued and fully paid and nonassessable.

#  

TheCompany or, if appointed, the transfer agent for the Common Stock (the“Transfer Agent”) and every subsequent transfer agent for any shares of theCompany’s capital stock issuable upon the exercise of any of the rights ofpurchase aforesaid will be irrevocably authorized and directed at all times toreserve such number of authorized shares as shall be required for such purpose.

 

Beforetaking any action which would cause an adjustment pursuant to SECTION 12 hereofto reduce the Exercise Price below the then par value (if any) of the WarrantShares, the Company will take any corporate action which may, in the opinion ofits counsel (which may be counsel employed by the Company), be necessary inorder that the Company may validly and legally issue fully paid and nonassessableWarrant Shares at the Exercise Price as so adjusted.

 

# SECTION11.         Obtaining Stock Exchange Listings.  TheCompany will from time to time take all action which may be necessary so thatthe Warrant Shares, immediately upon their issuance upon the exercise ofWarrants, will be listed on the principal securities exchanges and marketswithin the United States of America, if any, on which other shares of CommonStock are then listed.

#  

# SECTION12.         Adjustment of Exercise Price and Number ofWarrant Shares Issuable.  The Exercise Price and the number of WarrantShares issuable upon the exercise of each Warrant are subject to adjustmentfrom time to time upon the occurrence of the events enumerated in this SECTION12 but subject in all events to the Company receiving approval from itsstockholders in accordance with Nasdaq rules to issue more than 20% of the itsstock in connection with the transactions in the Purchase Agreement (includingthis Warrant Agreement).  For purposesof this SECTION 12, “Common Stock” means shares now or hereafter authorized ofany class of common stock of the Company and any other stock of the Company,however designated, that has the right (subject to any prior rights of anyclass or series of preferred stock) to participate in any distribution of theassets or earnings of the Company without limit as to per share amount.

 

## (a)           Adjustment for Change in Capital Stock.

 

Ifthe Company:

 

### (1)           pays a dividend or makes a distribution onits Common Stock in shares of its Common Stock;

###  

### (2)           subdivides its outstanding shares of CommonStock into a greater number of shares;

 

### (3)           combines its outstanding shares of CommonStock into a smaller number of shares;

 

### (4)           makes a distribution on its Common Stock inshares of its capital stock other than Common Stock; or

 

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### (5)           issues by reclassification of its CommonStock any shares of its capital stock;

 

thenthe Exercise Price in effect immediately prior to such action shall beproportionately adjusted so that the holder of any Warrant thereafter exercisedmay receive the aggregate number and kind of shares of capital stock of theCompany which he would have owned immediately following such action if suchWarrant had been exercised immediately prior to such action.

 

Theadjustment shall become effective immediately after the record date in the caseof a dividend or distribution and immediately after the effective date in thecase of a subdivision, combination or reclassification.

 

Ifafter an adjustment a Holder upon exercise may receive shares of two or moreclasses of capital stock of the Company, the Company shall determine theallocation of the adjusted Exercise Price between the classes of capitalstock.  After such allocation, theexercise privilege and the Exercise Price of each class of capital stock shallthereafter be subject to adjustment on terms comparable to those applicable toCommon Stock in this Section.

 

Suchadjustment shall be made successively whenever any event listed above shalloccur.

 

## (b)           Adjustment for Rights Issue.

 

Ifthe Company distributes any rights, options or warrants to all holders of itsCommon Stock entitling them to purchase shares of Common Stock at a price pershare less than the current market price per share on that record date, theExercise Price shall be adjusted in accordance with the formula:

 

O  +  Nx P

E’  =   E  x        M    

O+ N

 

where:

 

E’  =        theadjusted Exercise Price.

 

E  =         thecurrent Exercise Price.

 

O  =         thenumber of shares of Common Stock outstanding on the record date.

 

N  =         thenumber of additional shares of Common Stock offered.

 

P  =         theoffering price per share of the additional shares.

 

M  =        thecurrent market price per share of Common Stock on the record date.

 

Theadjustment shall be made successively whenever any such rights, options orwarrants are issued and shall become effective immediately after the recorddate for the determination of stockholders entitled to receive the rights,options or warrants.  If, at the end ofthe period during which such rights, options or warrants are exercisable, notall rights, options or warrants shall have been exercised, the Exercise Priceshall be immediately readjusted to what it would have been if “N” in the aboveformula had been the number of shares actually issued.

 

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Thissubsection (b) does not apply to any of the transactions described insubsection (a) of this Section.

 

## (c)           Adjustment for Other Distributions.

 

Ifthe Company distributes to all holders of its Common Stock any of its assets ordebt securities or any rights or warrants to purchase debt securities, assetsor other securities of the Company, the Exercise Price shall be adjusted inaccordance with the formula:

 

E’  = E  x    M  –  F

M

 

where:

 

E’  =        theadjusted Exercise Price.

 

E  =         thecurrent Exercise Price.

 

M  =        thecurrent market price per share of Common Stock on the record date mentionedbelow.

 

F  =         thefair market value on the record date of the assets, securities, rights or warrantsapplicable to one share of Common Stock. The Board of Directors shall determine the fair market value.

 

Theadjustment shall be made successively whenever any such distribution is madeand shall become effective immediately after the record date for thedetermination of stockholders entitled to receive the distribution.

 

Thissubsection (c) does not apply to cash dividends or cash distributions paid outof consolidated current or retained earnings as shown on the books of theCompany prepared in accordance with generally accepted accountingprinciples.  Also, this subsection doesnot apply to any transaction in subsection (a) or rights, options or warrantsreferred to in subsection (b) of this SECTION 12.

 

## (d)           Adjustment for Common Stock Issue.

 

Ifthe Company issues shares of Common Stock for a consideration per share lessthan the Exercise Price per share on the date the Company fixes the offeringprice of such additional shares, the Exercise Price shall be adjusted inaccordance with the formula:

 

P

E’  = E  x    O  +  M

A

 

where:

 

E’  =        theadjusted Exercise Price.

 

E  =         thethen current Exercise Price.

 

O  =         thenumber of shares outstanding immediately prior to the issuance of suchadditional shares.

 

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P  =         theaggregate consideration received for the issuance of such additional shares.

 

M  =        thecurrent market price per share on the date of issuance of such additionalshares.

 

A  =        thenumber of shares outstanding immediately after the issuance of such additionalshares.

 

Theadjustment shall be made successively whenever any such issuance is made, andshall become effective immediately after such issuance.

 

Thissubsection (d) does not apply to:

 

### (1)             any of the transactions described insubsections (a), (b) or (c) of this SECTION 12,

###  

### (2)             the exercise of Warrants, or the conversionor exchange of other securities convertible or exchangeable for Common Stock,

###  

### (3)             Common Stock issued to the Company’semployees under bona fide employee benefit plans adopted by the Board ofDirectors and approved by the holders of Common Stock when required by law, ifsuch Common Stock would otherwise be covered by this subsection (d) (but onlyto the extent that the aggregate number of shares excluded hereby are issued pursuantto new plans (or amendments to existing plans) authorized after the date ofthis Warrant Agreement),

 

### (4)             Common Stock upon the exercise of rights orwarrants issued to the holders of Common Stock,

 

### (5)             Common Stock issued to shareholders of any personwhich merges into the Company in proportion to their stock holdings of suchperson immediately prior to such merger, upon such merger,

 

### (6)             Common Stock issued in a bona fide publicoffering pursuant to a firm commitment underwriting or

 

### (7)             Common Stock issued in a bona fide privateplacement (except to the extent that any discount from the current market priceattributable to restrictions on transferability of the Common Stock, asdetermined in good faith by the Board of Directors and described in a Boardresolution which shall be filed with the Trustee, shall exceed 25%).

 

## (e)           Adjustment for Convertible Securities Issue.

 

Ifthe Company issues any securities convertible into or exchangeable for CommonStock (other than securities issued in transactions described in subsections(b) and (c) of this SECTION 12) for a consideration per share of Common Stockinitially deliverable upon conversion or exchange of such securities less thanthe current market price per share on the date of issuance of such securities,the Exercise Price shall be adjusted in accordance with this formula:

 

P

E’  = E  x     O  +  M

O  +  D

 

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where:

 

E’  =        theadjusted Exercise Price.

 

E  =         thethen current Exercise Price.

 

O  =         thenumber of shares outstanding immediately prior to the issuance of suchsecurities.

 

P  =         theaggregate consideration received for the issuance of such securities.

 

M  =        thecurrent market price per share on the date of issuance of such securities.

 

D  =         themaximum number of shares deliverable upon conversion or in exchange for suchsecurities at the initial conversion or exchange rate.

 

Theadjustment shall be made successively whenever any such issuance is made, andshall become effective immediately after such issuance.

 

Ifall of the Common Stock deliverable upon conversion or exchange of suchsecurities have not been issued when such securities are no longer outstanding,then the Exercise Price shall promptly be readjusted to the Exercise Pricewhich would then be in effect had the adjustment upon the issuance of suchsecurities been made on the basis of the actual number of shares of CommonStock issued upon conversion or exchange of such securities.

 

Thissubsection (e) does not apply to:

 

### (1)             any of the transaction referred to insubsection (a), (b), (c) or (d) of this SECTION 12.

 

### (2)             convertible securities issued to shareholdersof any person which merges into the Company, or with a subsidiary of theCompany, in proportion to their stock holdings of such person immediately priorto such merger, upon such merger,

 

### (3)             convertible securities issued in a bona fidepublic offering pursuant to a firm commitment underwriting or

 

### (4)             convertible securities issued in a bona fideprivate placement (except to the extent that any discount from the currentmarket price attributable to restrictions on transferability of Common Stockissuable upon conversion, as determined in good faith by the Board of Directorsand described in a Board resolution, shall exceed 25% of the then currentmarket price).

 

## (f)            Current Market Price.

 

Insubsections (b), (c), (d) and (e) of this SECTION 12 the current market priceper share of Common Stock on any date shall be the fair market value perWarrant Share which shall mean (i) if the Common Stock is in theover-the-counter market and not in The Nasdaq National Market nor on anynational securities exchange, the average of the per share closing price on the10 consecutive trading days immediately preceding the date in question, asreported by The Nasdaq Small Cap Market (or an equivalent generally acceptedreporting service if quotations are not reported on The Nasdaq Small CapMarket), or (ii) if the Common Stock is traded in The Nasdaq National Market oron a national securities exchange, the average for the 10 consecutive tradingdays immediately preceding the date in question of

 

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the daily per share closing prices in TheNasdaq National Market or on the principal stock exchange on which it islisted, as the case may be.  Forpurposes of clause (i) above, if trading in the Common Stock is not reported byThe Nasdaq Small Cap Market, the applicable closing  price referred to in said clause shall be the last sale price asreported on the OTC Electronic Bulletin Board of the National Association ofSecurities Dealers, Inc. or, if not reported thereon, as reported in the “pinksheets” published by National Quotation Bureau, Incorporated, and, if suchsecurities are not so reported, shall be the price of a share of Common Stockdetermined by the Company’s Board of Directors in good faith. The closing pricereferred to in clauses (i) and (ii) above shall be the last reported sale priceor, in case no such reported sale takes place on such day, the average of thereported closing bid and asked prices, in any case in The Nasdaq Small CapMarket (or the equivalent generally accepted reporting service if quotationsare not reported on The Nasdaq Small Cap Market), The Nasdaq National Market oron the national securities exchange on which the Common Stock is then listed inaccordance with SECTION 11 of this Agreement.

 

## (g)           Consideration Received.

 

Forpurposes of any computation respecting consideration received pursuant tosubsections (d) and (e) of this SECTION 10, the following shall apply:

 

### (1)             in the case of the issuance of shares ofCommon Stock for cash, the consideration shall be the amount of such cash,provided that in no case shall any deduction be made for any commissions,discounts or other expenses incurred by the Company for any underwriting of theissue or otherwise in connection therewith;

###  

### (2)             in the case of the issuance of shares ofCommon Stock for a consideration in whole or in part other than cash, theconsideration other than cash shall be deemed to be the fair market valuethereof as determined in good faith by the Board of Directors (irrespective ofthe accounting treatment thereof), whose determination shall be conclusive, anddescribed in a Board resolution, a copy of which shall be mailed to eachholder; and

###  

### (3)             in the case of the issuance of securitiesconvertible into or exchangeable for shares, the aggregate considerationreceived therefor shall be deemed to be the consideration received by theCompany for the issuance of such securities plus the additional minimumconsideration, if any, to be received by the Company upon the conversion orexchange thereof (the consideration in each case to be determined in the samemanner as provided in clauses (1) and (2) of this subsection).

###  

## (h)           When De Minimis Adjustment May Be Deferred.

##  

Noadjustment in the Exercise Price need be made unless the adjustment wouldrequire an increase or decrease of at least 1% in the Exercise Price. Anyadjustments that are not made shall be carried forward and taken into accountin any subsequent adjustment.

 

## (i)            All calculations under this Section shall bemade to the nearest cent or to the nearest 1/100th of a share, as the case maybe.

##  

## (j)            When No Adjustment Required.

##  

Noadjustment need be made for a transaction referred to in subsections (b) or (c)of this SECTION 12 if Warrant holders are to participate in the transaction ona basis and with notice that the Board of Directors determines to be fair andappropriate in light of the basis and notice on which holders of Common Stockparticipate in the transaction.

 

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Noadjustment need be made for rights to purchase Common Stock pursuant to aCompany plan for reinvestment of dividends or interest.

 

Noadjustment need be made for a change in the par value or no par value of theCommon Stock.

 

Tothe extent the Warrants become convertible into cash, no adjustment need bemade thereafter as to the cash. Interest will not accrue on the cash.

 

## (k)           Notice of Adjustment.

##  

Wheneverthe Exercise Price is adjusted, the Company shall provide the notices requiredby SECTION 14 hereof.

 

## (l)            Voluntary Reduction.

##  

TheCompany from time to time may reduce the Exercise Price by any amount for anyperiod of time if the period is at least 20 days and if the reduction isirrevocable during the period; provided, however, that in noevent may the Exercise Price be less than the par value of a share of CommonStock and in no event may any such reduction apply to less than all of theWarrants then outstanding.

 

Wheneverthe Exercise Price is reduced, the Company shall mail to Holders a notice ofthe reduction.  The Company shall mailthe notice at least 15 days before the date the reduced Exercise Price takeseffect.  The notice shall state thereduced Exercise Price and the period it will be in effect.

 

Areduction of the Exercise Price does not change or adjust the Exercise Priceotherwise in effect for purposes of this Section 12.

 

## (m)          Notice of Certain Transactions.

##  

Ifthe Company:

 

### (1)             takes any action that would require anadjustment in the Exercise Price pursuant to this SECTION 12 and if the Companydoes not arrange for Warrant holders to participate pursuant to subsection (i)of this SECTION 12;

###  

### (2)             takes any action that would require asupplemental Warrant Agreement pursuant to subsection (m) of this SECTION 12;or

###  

### (3)             liquidates or dissolves,

###  

thenthe Company shall mail to Warrant holders a notice stating the proposed recorddate for a dividend or distribution or the proposed effective date of asubdivision, combination, reclassification, consolidation, merger, transfer,lease, liquidation or dissolution.  TheCompany shall mail the notice at least 20 days before such date.  Failure to mail the notice or any defect init shall not affect the validity of the transaction.

 

## (n)           Reorganization of Company.

 

12

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Ifthe Company consolidates or merges with or into, or transfers or leases all orsubstantially all its assets to, any person, upon consummation of suchtransaction the Warrants shall automatically become exercisable for the kindand amount of securities, cash or other assets which the holder of a Warrantwould have owned immediately after such transaction if the holder had exercisedthe Warrant immediately before the effective date of such transaction.  Concurrently with the consummation of suchtransaction, the corporation formed by or surviving any such consolidation or mergerif other than the Company, or the person to which such sale or conveyance shallhave been made, shall enter into a supplemental Warrant Agreement so providingand further providing for adjustments which shall be as nearly equivalent asmay be practical to the adjustments provided for in this Section.  The successor Company shall mail to Warrantholders a notice describing the supplemental Warrant Agreement.  In the event the surviving company to anysuch transaction does not have a class of securities registered for and tradingon the New York Stock Exchange, American Stock Exchange, Nasdaq Stock Market orOTC Bulletin Board, then, at the option of each Holder, such Holder may requirethat the Company, as a condition precedent to consummating any suchtransaction, redeem the remaining portion of such Holder’s Warrant for anamount in cash equal to the Black Scholes value of such Warrant.

 

Ifthe issuer of securities deliverable upon exercise of Warrants under thesupplemental Warrant Agreement is an Affiliate of the formed, surviving,transferee or lessee corporation, that issuer shall join in the supplementalWarrant Agreement.

 

Ifthis subsection (l) applies, subsections (a), (b), (c), (d) and (e) of thisSECTION 12 do not apply.

 

## (o)           When Issuance or Payment May Be Deferred.

##  

Inany case in which this  SECTION 12 shallrequire that an adjustment in the Exercise Price be made effective as of arecord date for a specified event, the Company may elect to defer until theoccurrence of such event (i) issuing to the holder of any Warrant exercised aftersuch record date the Warrant Shares and other capital stock of the Company, ifany, issuable upon such exercise over and above the Warrant Shares and othercapital stock of the Company, if any, issuable upon such exercise on the basisof the Exercise Price and (ii) paying to such holder any amount in cash in lieuof a fractional share pursuant to SECTION 13; provided, however,that the Company shall deliver to such holder a due bill or other appropriateinstrument evidencing such holder’s right to receive such additional WarrantShares, other capital stock and cash upon the occurrence of the event requiringsuch adjustment.

 

## (p)           Adjustment in Number of Shares.

 

Uponeach adjustment of the Exercise Price pursuant to this SECTION 12, each Warrantoutstanding prior to the making of the adjustment in the Exercise Price shallthereafter evidence the right to receive upon payment of the adjusted ExercisePrice that number of shares of Common Stock (calculated to the nearesthundredth) obtained from the following formula:

 

N’  = N   x  E 

E’

 

where:

 

N’  =       theadjusted number of Warrant Shares issuable upon exercise of a Warrant bypayment of the adjusted Exercise Price.

 

13

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N  =         thenumber or Warrant Shares previously issuable upon exercise of a Warrant bypayment of the Exercise Price prior to adjustment.

 

E’  =        theadjusted Exercise Price.

 

E  =         theExercise Price prior to adjustment.

 

## (q)           Form of Warrants.

 

Irrespectiveof any adjustments in the Exercise Price or the number or kind of sharespurchasable upon the exercise of the Warrants, Warrants theretofore orthereafter issued may continue to express the same price and number and kind ofshares as are stated in the Warrants initially issuable pursuant to thisAgreement.

 

## (r)            Any determination that the Company or itsBoard of Directors must make pursuant to this SECTION 12 is conclusive (absentmanifest error) if made reasonably and in good faith.

##  

# SECTION13.         Fractional Interests.  TheCompany shall not be required to issue fractional Warrant Shares on theexercise of Warrants.  If more than oneWarrant shall be presented for exercise in full at the same time by the sameholder, the number of full Warrant Shares which shall be issuable upon theexercise thereof shall be computed on the basis of the aggregate number ofWarrant Shares purchasable on exercise of the Warrants so presented.  If any fraction of a Warrant Share would,except for the provisions of this SECTION 13, be issuable on the exercise ofany Warrants (or specified portion thereof), the Company shall pay an amount incash equal to the Exercise Price on the day immediately preceding the date theWarrant is presented for exercise, multiplied by such fraction.

#  

# SECTION14.         Notices to Warrant Holders. Upon any adjustment of the Exercise Price pursuant to SECTION 12, theCompany shall promptly thereafter (i) cause to be given to each of theregistered holders of the Warrant Certificates at his address appearing on theWarrant register a certificate of a firm of independent public accountants ofrecognized standing selected by the Board of Directors of the Company (who maybe the regular auditors of the Company) setting forth the Exercise Price aftersuch adjustment and setting forth in reasonable detail the method ofcalculation and the facts upon which such calculations are based and settingforth the number of Warrant Shares (or portion thereof) issuable after suchadjustment in the Exercise Price, upon exercise of a Warrant and payment of theadjusted Exercise Price, which certificate shall be conclusive evidence of thecorrectness of the matters set forth therein, by first-class mail, postageprepaid.  Where appropriate, such noticemay be given in advance and included as a part of the notice required to bemailed under the other provisions of this SECTION 14.

#  

Incase:

 

## (a)           the Company shall authorize the issuance toall holders of shares of Common Stock of rights, options or warrants tosubscribe for or purchase shares of Common Stock or of any other subscriptionrights or warrants; or

##  

## (b)           the Company shall authorize the distributionto all holders of shares of Common Stock of evidences of its indebtedness orassets (other than cash dividends or cash distributions payable out ofconsolidated earnings or earned surplus or dividends payable in shares ofCommon Stock or distributions referred to in subsection (a) of SECTION 12hereof); or

 

## (c)           of any consolidation or merger to which theCompany is a party and for which approval of any shareholders of the Company isrequired, or of the conveyance or transfer of the

 

14

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## properties and assets of the Company substantiallyas an entirety, or of any reclassification or change of Common Stock issuableupon exercise of the Warrants (other than a change in par value, or from parvalue to no par value, or from no par value to par value, or as a result of asubdivision or combination), or a tender offer or exchange offer for shares ofCommon Stock; or

##  

## (d)           of the voluntary or involuntary dissolution,liquidation or winding up of the Company; or

##  

## (e)           the Company proposes to take any action(other than actions of the character described in Section 10(a)) which wouldrequire an adjustment of the Exercise Price pursuant to SECTION 12; then theCompany shall cause to be given to each of the registered holders of theWarrant Certificates at his address appearing on the Warrant register, at least20 days (or 10 days in any case specified in clauses (a) or (b) above) prior tothe applicable record date hereinafter specified, or promptly in the case ofevents for which there is no record date, by first-class mail, postage prepaid,a written notice stating (i) the date as of which the holders of record ofshares of Common Stock to be entitled to receive any such rights, options,warrants or distribution are to be determined, or (ii) the initial expirationdate set forth in any tender offer or exchange offer for shares of CommonStock, or (iii) the date on which any such consolidation, merger, conveyance,transfer, dissolution, liquidation or winding up is expected to becomeeffective or consummated, and the date as of which it is expected that holdersof record of shares of Common Stock shall be entitled to exchange such shares forsecurities or other property, if any, deliverable upon such reclassification,consolidation, merger, conveyance, transfer, dissolution, liquidation orwinding up.  The failure to give thenotice required by this SECTION 14 or any defect therein shall not affect thelegality or validity of any distribution, right, option, warrant,consolidation, merger, conveyance, transfer, dissolution, liquidation orwinding up, or the vote upon any action.

##  

Nothingcontained in this Agreement or in any of the Warrant Certificates shall beconstrued as conferring upon the holders thereof the right to vote or toconsent or to receive notice as shareholders in respect of the meetings ofshareholders or the election of Directors of the Company or any other matter,or any rights whatsoever as shareholders of the Company.

 

# SECTION15.         Limitations on Exercise. Notwithstanding anything to the contrary contained herein, the number ofshares of Common Stock that may be acquired by the Holder upon any exercise ofa Warrant Certificate (or otherwise in respect hereof) shall be limited to theextent necessary to insure that, following such exercise (or other issuance),the total number of shares of Common Stock then beneficially owned by suchHolder and its Affiliates and any other Persons whose beneficial ownership ofCommon Stock would be aggregated with the Holder’s for purposes of Section13(d) of the Exchange Act, does not exceed 9.999% of the total number of issuedand outstanding shares of Common Stock (including for such purpose the sharesof Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined inaccordance with Section 13(d) of the Exchange Act and the rules and regulationspromulgated thereunder.  This provisionshall not restrict the number of shares of Common Stock which a Holder mayreceive or beneficially own in order to determine the amount of securities orother consideration that such Holder may receive in the event of a merger orother business combination or reclassification involving the Company ascontemplated in Section 12 of this Warrant. This restriction may not be waived, but will expire automatically on the65th day prior to the Expiration Date.

#  

# SECTION16.         Notices to Company.  Anynotice or demand authorized by this Agreement to be given or made by theCompany or by a Holder to or on the Company shall be sufficiently given or madewhen and if deposited in the mail, first class or registered, postage prepaid,addressed (until another address is filed in writing by the Company), or byfacsimile, as follows:

 

15

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IMCORPharmaceutical Co.6175 Lusk BoulevardSan Diego, CA  92121858-410-5602****Attention:  Taffy J.Williams, Ph.D., President

 

Withcopy to (other than for Exercise Notices)

 

TheodoreW. Grippo, Esq.Grippo & Elden, LLC227 West Monroe Street, Suite 3600Chicago, IL 60606312-558-1195

 

Incase the Company shall fail to maintain such office or agency or shall fail togive such notice of the location or of any change in the location thereof,presentations may be made and notices and demands may be served at theprincipal office of the Transfer Agent.

 

# SECTION17.         Supplements and Amendments.  TheCompany and the Warrant holders may from time to time supplement or amend thisAgreement with the approval of not less than the Holders of at least a majorityof all then remaining Warrants.

#  

# SECTION18.         Successors.  All the covenants andprovisions of this Agreement by or for the benefit of the Company or the Holdershall bind and inure to the benefit of their respective successors and assignshereunder.

#  

# SECTION19.         Termination.  This Agreement shallterminate at 5:00 p.m., Pacific time on the Expiration Date, or such earlierdate on which all Warrants have been exercised and the Company shall havecomplied with its obligations as to such exercises.

#  

# SECTION20.         Governing Law; Jurisdiction and Venue. This Agreement and each Warrant Certificate issued hereunder shall bedeemed to be a contract made under the laws of the State of New York and forall purposes shall be construed in accordance with the internal laws of saidState, *provided, however*, thatif, as a result of the Company’s incorporation in the State of Nevada thecorporate laws of that State should govern a particular issue, the internallaws of the State of Nevada shall govern that issue.

#  

# SECTION21.         Transferability and Nonnegotiability ofWarrant. The Warrants maynot be transferred or assigned in whole or in part without compliance with allapplicable federal and state securities laws by the transferor and thetransferee. Subject to compliance with such laws, title to the Warrants may betransferred by endorsement (by the Holder executing an Assignment Formreasonably acceptable to the Company) and delivery in the same manner as anegotiable instrument transferable by endorsement and delivery.

#  

# SECTION22.         Exchange of Warrant Upon a Transfer.  Onsurrender of the Warrant Certificate for exchange, properly endorsed on theAssignment Form and subject to the provisions of this Agreement with respect tocompliance with applicable securities laws and with the limitations onassignments and transfers and contained in SECTION 21, the Company at itsexpense shall issue to or on the order of the Holder a new Warrant Certificateof like tenor, in the name of the Holder or as the Holder may direct, for thenumber of shares issuable upon exercise hereof.

 

16

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# SECTION23.         Compliance with Securities Laws.  TheHolder agrees that the Holder will not offer, sell or otherwise dispose of thisWarrant or any shares of Common Stock to be issued upon exercise hereof exceptunder circumstances that will not result in a violation of the federal or anystate securities laws.  Prior to anyproposed transfer of this Warrant, the holder thereof shall give written noticeto the Company of its intention to effect such transfer.  Each such notice shall describe the mannerof the proposed transfer and, if requested by the Company, shall be accompaniedby an opinion of counsel reasonably satisfactory to the Company to the effectthat the proposed transfer may be effected without registration under theSecurities Act, whereupon the Holder shall be entitled to transfer this Warrantin accordance with the terms of its notice; provided, however, that no suchopinion of counsel shall be required for a transfer to one or more partners ofthe transferor (in the case of a transferor that is a partnership) or to anaffiliated corporation (in the case of a transferor that is acorporation).  Each Warrant transferredas above provided shall bear the legend set forth at the beginning of the formWarrant Certificates annexed hereto as Annex A and B, as the case may be.

#  

# SECTION24.         Benefits of This Agreement.  Nothingin this Agreement shall be construed to give to any person or corporation otherthan the Company, the Holder and the registered holders of the WarrantCertificates any legal or equitable right, remedy or claim under thisAgreement; but this Agreement shall be for the sole and exclusive benefit ofthe Company, the Holder and the registered holders of the Warrant Certificates.

#  

# SECTION25.         Counterparts. This Agreement may be executed in any number of counterparts and each ofsuch counterparts shall for all purposes be deemed to be an original, and allsuch counterparts shall together constitute but one and the same instrument.

 

*Signaturepage follows.*

 

17

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INWITNESS WHEREOF, the parties hereto have caused this Agreement to be dulyexecuted, as of the day and year first above written.

 
|   | IMCOR  Pharmaceutical Co. |
|--------|---------------------------|
|   |                      |
|   |                      |
|   | By:                       |   |   |
|   |                      | Taffy  J. Williams, Ph.D., President |   |
|   |                      |
|   |                      |
|   | By:                       |   |   |
|   |                      | Brooks  Boveroux, Secretary |   |
|   |                      |
|   |                      |
|   | **[PURCHASER]**           |
|   |                      |
|   |                      |
|   | By:                       |   |   |
|   | Name:                     |
|   | Title:                    |
|        |                           |  |  |  |  |  |  |  |

 

18

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AnnexA

 

**[Form of Warrant Certificate]**

 

NEITHERTHESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIESHAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THESECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROMREGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIESACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO ANEFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO ANAVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATESECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TOSUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THECOMPANY.  THESE SECURITIES AND THESECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED INCONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.

 

EXERCISABLE ON OR BEFORE              ,2009

 
| No.          |   |             Warrants |
|-------------------------------------------------|--------|----------------------------------------------------------------------------------|

 

Warrant Certificate

 

IMCOR PHARMACEUTICAL CO.

 

ThisWarrant Certificate certifies that **[PURCHASER]**or registered assigns (“Holder”), is the registered holder of Warrants expiring                ,2009 (the “Warrants”) to purchase Common Stock, par value $0.001 per share (the“Common Stock”), of IMCOR PHARMACEUTICAL CO., a Nevada corporation (the“Company”).  Each Warrant entitles theHolder upon exercise to receive from the Company at any time from the datehereof and on or before 5:00 p.m. Pacific Time on                  ,2009 (the “Expiration Date”), one fully paid and nonassessable share of CommonStock (a “Warrant Share”) at the initial exercise price (the “Exercise Price”)of $1.00 per share payable in accordance with that certain Warrant Agreementdated as of                       ,2004 (the “Warrant Agreement”) between the Company and the original Holder ofthis Warrant Certificate upon surrender of this Warrant Certificate and paymentof the Exercise Price, in accordance with the terms and conditions set forthherein and in the Warrant Agreement. The Exercise Price and number of Warrant Shares issuable upon exerciseof the Warrants are subject to adjustment upon the occurrence of certain eventsset forth in the Warrant Agreement.

 

NoWarrant may be exercised after 5:00 p.m., Pacific Time on the Expiration Date,and to the extent not exercised by such time such Warrants shall become void.

 

ThisWarrant Certificate shall be governed and construed in accordance with theinternal laws of the State of New York, *provided,however*, that if, as a result of the Company’s incorporation in theState of Nevada the corporate laws of that State should govern a particularissue, the internal laws of the State of Nevada shall govern that issue.

 

TheWarrants evidenced by this Warrant Certificate are part of a duly authorizedissue of Warrants expiring on the Expiration Date entitling the Holder onexercise to receive shares of Common Stock, par value $0.001 per share, of theCompany (the “Common Stock”), and are issued or to be issued

 

B - 1

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pursuant to the Warrant Agreement, whichWarrant Agreement is hereby incorporated by reference in and made a part ofthis instrument and is hereby referred to for a description of the rights,limitation of rights, obligations, duties and immunities thereunder of theCompany, the Holder and the Holders.  Acopy of the Warrant Agreement may be obtained by the Holder upon writtenrequest to the Company.

 

Warrantsmay be exercised at any time on or before the Expiration Date.  The Holder of Warrants evidenced by thisWarrant Certificate may exercise them by surrendering this Warrant Certificate,with the form of election to purchase set forth hereon completed and executed,together with payment of the Exercise Price in accordance with the WarrantAgreement.  In the event that upon anyexercise of Warrants evidenced hereby the number of Warrants exercised shall beless than the total number of Warrants evidenced hereby, there shall be issuedto the Holder or its assignee a new Warrant Certificate evidencing the numberof Warrants not exercised.

 

TheWarrant Agreement provides that upon the occurrence of certain events theExercise Price set forth on the face hereof may, subject to certain conditions,be adjusted.  If the Exercise Price isadjusted, the Warrant Agreement provides that the number of shares of CommonStock issuable upon the exercise of each Warrant shall be adjusted.  No fractions of a share of Common Stock willbe issued upon the exercise of any Warrant, but the Company will pay the cashvalue thereof determined as provided in the Warrant Agreement.

 

WarrantCertificates, when surrendered at the office of the Company by the registeredholder thereof may be exchanged, in the manner and subject to the limitationsprovided in the Warrant Agreement, but without payment of any service charge,for another Warrant Certificate or Warrant Certificates of like tenorevidencing in the aggregate a like number of Warrants.

 

Upondue presentation for registration of transfer of this Warrant Certificate atthe office of the Company a new Warrant Certificate or Warrant Certificates oflike tenor and evidencing in the aggregate a like number of Warrants shall beissued to the transferee(s) in exchange for this Warrant Certificate, subjectto the limitations provided in the Warrant Agreement, without charge except forany tax or other governmental charge imposed in connection therewith.

 

TheCompany may deem and treat the registered Holder as the absolute owner of thisWarrant Certificate (notwithstanding any notation of ownership or other writinghereon made by anyone), for the purpose of any exercise hereof, of anydistribution to the Holder hereunder, and for all other purposes, and theCompany shall not be affected by any notice to the contrary other than asdelivered by or on behalf of the Holder. Neither the Warrants nor this Warrant Certificate entitles the Holderhereof to any rights of a stockholder of the Company.

 

B - 2

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INWITNESS WHEREOF, IMCOR Pharmaceutical Co. has caused this Warrant Certificateto be signed by its President and by its Secretary.

 

 
| Dated: |                            | ,  2004 |   |
|--------|---------------------------------|---------|--------|
|   |                            |
|   | IMCOR  PHARMACEUTICAL CO.       |
|   |                            |
|   |                            |
|   |                            |
|   | By:                             |    |   |
|   | Name:  Taffy J. Williams, Ph.D. |
|   | Title:  President               |
|   |                            |
|   |                            |
|   | By:                             |    |   |
|   | Name:  Brooks Boveroux          |
|   | Title:  Secretary          |

 

B - 3

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[EXERCISENOTICE]

 

Theundersigned hereby elects to exercise the right, represented by this WarrantCertificate, to receive                  shares of Common Stock and herewith and tenders payment for such shares incash, by certified or official bank check payable or through the use of thecashless exercise provisions of the Warrant Agreement relating to this ExerciseNotice, in accordance with the Warrant Agreement.

 

Theundersigned requests that a certificate for such shares be registered in thename of                      ,whose address is                                                                               and that such shares be delivered to                    whose address is                                                                                .  If said number of shares is less than all ofthe shares of Common Stock purchasable hereunder, the undersigned requests thata new Warrant Certificate representing the remaining balance of such shares beregistered in the name of                    ,whose address is                                                               and that such Warrant Certificate be delivered to                     ,whose address is                    .

 

 

Dated:

 
|   | Signature:                                                                                                        |   |   |
|--------|-------------------------------------------------------------------------------------------------------------------|--------|--------|
|   | (Signature  must confirm in all respects to name of holder  as specified on the face of the Warrant Certificate.) |

 

B - 4

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