**Exhibit4.13**

 

**REGISTRATIONRIGHTS AGREEMENT**

 

This RegistrationRights Agreement (the “Agreement”) is made and entered into as of this14th 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.             Certain Definitions.  Capitalized terms used and not otherwise defined herein that aredefined in the Purchase Agreement will have the meanings given such terms inthe Purchase Agreement.  As used in thisAgreement, the following terms 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 securites 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 (i) tothe Purchasers pursuant to the Purchase Agreement, (ii) upon exercise of theWarrants issued or issuable to the Purchasers pursuant to the PurchaseAgreement, and (iii) upon exercise of compensation warrants issued or issuableto the placement agents identified in the Disclosure Schedule to the PurchaseAgreement, and any other securities issued or issuable with respect to or inexchange for Registrable Securities; provided, that, a securityshall 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)           Registration Statements.  Not later than the first to occur of (i) the30th day following the Second Closing and (ii) the 15th dayfollowing termination of the obligations to complete the Second Closing inaccordance with the Purchase Agreement, the Company shall prepare and file with the SEC aRegistration Statement on Form S-1 covering the resale of all RegistrableSecurities.  The Registration Statementshall contain (except if otherwise required pursuant to written commentsreceived from the SEC upon a review of such Registration Statement) the “Planof Distribution” attached hereto as Annex A.  Such Registration Statement also shall cover, to theextent allowable under the 1933 Act and the rules promulgated thereunder(including Rule 416), such indeterminate number of additional shares of CommonStock resulting from stock splits, stock dividends or similar transactions withrespect to the Registrable Securities. The “Selling Stockholders” and“Plan of Distribution” sections of the Registration Statement (and eachamendment or supplement thereto, and each request for acceleration ofeffectiveness thereof) and any risk factor contained in such document thataddresses specifically this transaction or the Selling Stockholders, shall beprovided in accordance with Section 3(c) to the Holders prior to itsfiling or other submission.  Promptlyfollowing any date on which the Company becomes eligible to use a registrationstatement on Form S-3 to register Registrable Securities for resale, but in noevent more than 20 days after such date, the Company shall file a RegistrationStatement on Form S-3 covering the Registrable Securities (or a post-effectiveamendment on Form S-3 to the then effective Registration Statement) and shallcause such Registration Statement to be declared effective as soon as possiblethereafter, but in any event by the 90th day following the date onwhich the Company becomes eligible to utilize Form S-3 for the registration ofthe resale of its securities by selling stockholders.

 

(b)           Expenses.  The Company will pay all expenses associatedwith each registration hereunder, including filing and printing fees, counseland accounting fees and expenses, costs associated

 

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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 use its reasonablebest efforts to have the Registration Statement declared effective as soon aspossible, but in any event by the “Effectiveness Date” defined below for suchRegistration Statement.  “EffectivenessDate” for the initial Registration Statement required hereunder means thefirst to occur of (a) the 60th day following the Second Closing (or 90thday after the Second Closing if the filed Registration Statement is reviewedand commented upon by the SEC), (b) the 60th day followingtermination of the obligations to complete the Second Closing in accordancewith the Purchase Agreement (or 90th day after such event if thefiled Registration Statement is reviewed and commented upon by the SEC), and (c) the fifth Business Day following thedate on which the Company is notified by the SEC that such RegistrationStatement will not be reviewed or is no longer subject to further review andcomments.  If a RegistrationStatement covering all Registrable Securities is not declared effective by theSEC by the Effectiveness Date, then theCompany will, in addition to all other rights of the Holders hereunder and underapplicable law, as partial liquidated damages and not as a penalty, makepayments to each Purchaser in accordance with Section 2(e) hereof.

 

(ii)           For not more than twenty-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 of material non-publicinformation concerning the Company, by suspending the use of any Prospectusincluded in any registration contemplated by this Section containing suchinformation, the disclosure of which at the time would be, in the good faithopinion of the Company, materially detrimental to the Company (an “AllowedDelay”); provided, that the Company shall promptly (a) notify theHolders in writing of the existence of (but in no event, without the priorwritten consent of a Purchaser, shall the Company disclose to such Purchaserany of the facts or circumstances regarding) material non-public informationgiving rise to an Allowed Delay, and (b) advise the Holders in writing to ceaseall sales under the Registration Statement until the end of the AllowedDelay.  Liquidated damages set forth inSection 2(e) will be due and payable notwithstanding any Allowed Delayshereunder.

 

(d)           UnderwrittenOffering.  If any offering pursuantto a Registration Statement pursuant to Section 2(a) hereof involves anunderwritten offering, the Company shall have the right to select an investmentbanker and manager to administer the offering, which investment banker ormanager shall be reasonably satisfactory to the Holders holding a majority ofthe Registrable Securities.

 

(e)           LiquidatedDamages.  If: (i) a RegistrationStatement is not timely filed in accordance with Section 2(a) hereof (if theCompany files a Registration Statement without affording the Holders theopportunity to review and comment on the same as required by Section 3(c)hereof, the Company shall not be deemed to have satisfied this clause (i)), or(ii) a Registration Statement is not timely declared effective by the SEC inaccordance with Section 2(c) hereof, or (iii) after the date upon which theRegistration Statement is declared effective by the SEC, without regard for thereason thereunder or efforts therefore and without regard to any AllowedDelays, such Registration Statement ceases for any reason to be effective andavailable to the Holders as to all Registrable Securities to which it isrequired to cover at any time prior to the time when such RegistrableSecurities have ceased to be “Registrable Securities” in accordance with the definitionof Registrable Securities for more than an aggregate of 20 Business Days (whichneed not be consecutive) (any such failure or breach being referred to as an **“Event,”**and for purposes of clauses (i) or (ii) the date on which such Event occurs, orfor purposes of clause (iii) the date which such 20 Business Day-period isexceeded, 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 eachmonthly anniversary thereof, the Company shall issue to each Holder an amountin freely tradeable shares of validly issued, fully paid and non-assessableshares of Common Stock (which shall become Registrable Shares), as liquidateddamages and not as a penalty, equal to 2% of the aggregate investment amountpaid by such Holder pursuant to the Purchase Agreement (valued at the ClosingPrice).  The partial liquidated damagespursuant to this Section shall apply on a pro rata basis for any portion of amonth prior to the cure of an Event, other with respect to the first Event Date(for which the entire partial liquidated damages for that month will be due infull on the initial Event Date).

 

3.             Company Obligations.  The Company will effect the registration ofthe Registrable Securities in accordance with the terms hereof, and pursuantthereto the Company will, as expeditiously as possible:

 

(a)           use its reasonable best efforts tocause 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 with the SEC suchamendments and post-effective amendments to the Registration Statement and theProspectus as may be necessary to keep the Registration Statement effective forthe period specified in Section 3(a) hereof and to comply with theprovisions of the 1933 Act and the 1934 Act with respect to the distribution ofall of the Registrable Securities covered thereby;

 

(c)           provide copies to and permit eachHolder 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) promptlyafter the same is prepared and publicly distributed, filed with the SEC, orreceived by the Company (but not later than two (2) Business Days after thefiling date, receipt date or sending date, as the case may be) one (1) copy ofany Registration Statement and any amendment thereto, each preliminaryprospectus and Prospectus and each amendment or supplement thereto, and eachletter written by or on behalf of the Company to the SEC or the staff of theSEC, and each item of correspondence from the SEC or the staff of the SEC, ineach case relating to such Registration Statement (other than any portion ofany thereof which contains information for which the Company has soughtconfidential treatment or believes might constitute material and non-publicinformation concerning the Company), and (ii) such number of copies of aProspectus, 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 an underwrittenoffering hereunder wherein the Company selects an underwriter, the Companyshall enter into and perform its reasonable obligations under an underwritingagreement, in usual and customary form, including, without limitation,customary indemnification and contribution obligations, with the underwriter ofsuch offering;

 

(f)            if required by the underwriter, orif any Holder is described in the Registration Statement as an underwriter, theCompany shall furnish, on the effective date of the Registration Statement(except with respect to clause (i) below) and on the date that RegistrableSecurities 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 is customarilygiven in an underwritten public offering, addressed to the underwriters and theHolders participating in such underwritten offering or (B) in the case of an“at the market” offering, an opinion, dated as of or promptly after theeffective date of the Registration Statement to the Holders, from legal counselrepresenting the Company for purposes of such Registration Statement, in form,scope and substance as is customarily given in a public offering, addressed tothe Holders, and (ii) a letter, dated as of the effective date of suchRegistration Statement and confirmed as of the applicable dates describedabove, from the Company’s independent certified public accountants in form andsubstance as is customarily given by independent certified public accountantsto underwriters in an underwritten public offering, addressed to theunderwriters (including any Holder deemed to be an underwriter);

 

(g)           use its reasonable best efforts to(i) prevent the issuance of any stop order or other suspension of effectivenessand, (ii) if such order is issued, obtain the withdrawal of any such order atthe earliest possible moment;

 

(h)           prior to any public offering ofRegistrable Securities, use its reasonable best efforts to register or qualifyor cooperate with the Holders and their counsel in connection with theregistration or qualification of such Registrable Securities for offer and saleunder the securities or blue sky laws of such jurisdictions requested by theHolders 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 reasonable best efforts tocause all Registrable Securities covered by a Registration Statement to belisted on each securities exchange, interdealer quotation system or othermarket on which similar securities issued by the Company are then listed;

 

(j)            immediately notify the Holders, atany time when a Prospectus relating to Registrable Securities is required to bedelivered under the 1933 Act, upon discovery that, or upon the happening of anyevent as a result of which, the Prospectus included in a RegistrationStatement, as then in effect, includes an untrue statement of a material factor omits to state any material fact required to be stated therein or necessaryto make the statements therein not misleading in light of the circumstancesthen existing, and at the request of any such Holder, promptly prepare andfurnish to such Holder a reasonable number of copies of a supplement to or anamendment of such Prospectus as may be necessary so that, as thereafterdelivered to the Holders of such Registrable Securities, such Prospectus shallnot include an untrue statement of a material fact or omit to state a materialfact required to be stated therein or necessary to make the statements thereinnot misleading in light of the circumstances then existing; and

 

(k)           otherwise comply with all applicablerules and regulations of the SEC under the 1933 Act and the 1934 Act, use itsreasonable best efforts to take such other actions as may be reasonablynecessary to facilitate the registration of the Registrable Securitieshereunder; and make available to its security holders, as soon as reasonablypracticable, but not later than the Availability Date (as defined below), anearnings statement covering a period of at least twelve (12) months, beginningafter the effective date of each Registration Statement, which earningsstatement shall satisfy the provisions of Section 11(a) of the 1933 Act (forthe purpose of this section 3(k), “Availability Date” means the45th day following the end of the fourth fiscal quarter that includes theeffective 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 the Holders.

 

(a)           Each Holder agrees to furnish to the Company a completed Questionnairein the 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 its acceptance of theRegistrable Securities agrees to cooperate with the Company as reasonablyrequested by the Company in connection with the preparation and filing of aRegistration Statement hereunder, unless such Holder has notified the Companyin writing of its election to exclude all of its Registrable Securities fromsuch 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 agrees that, upon receiptof any notice from the Company of either (A) the commencement of an AllowedDelay pursuant to Section 2(c)(ii) or (B) the happening of an eventpursuant to Section 3(j) hereof, such Holder will immediatelydiscontinue disposition of Registrable Securities pursuant to the RegistrationStatement covering such Registrable Securities, until the Holder’s receipt ofthe copies of the supplemented or amended prospectus filed with the SEC anddeclared effective and, if so directed by the Company, the Holder shall deliverto the Company (at the expense of the Company) or destroy (and deliver to theCompany a certificate of destruction) all copies in the Holder’s possession ofthe Prospectus covering the Registrable Securities current at the time ofreceipt of such notice.

 

(e)           No Holder may participate in anythird party underwritten registration hereunder unless it (i) agrees to sellthe Registrable Securities on the basis provided in any underwritingarrangements in usual and customary form entered into by the Company, (ii)completes and executes all questionnaires, powers of attorney, indemnities,underwriting agreements and other documents reasonably required under the termsof such underwriting arrangements, and (iii) agrees to pay its pro rata shareof all underwriting discounts and commissions. Notwithstanding the foregoing, no Holder shall be required to make anyrepresentations to such underwriter, other than those with respect to itselfand the Registrable Securities owned by it, including its right to sell theRegistrable Securities, and any indemnification in favor of the underwriter bythe Holders shall be several and not joint and limited in the case of anyHolder, to the proceeds received by such Holder from the sale of itsRegistrable Securities.  The scope ofany such indemnification in favor of an underwriter shall be limited to thesame extent as the indemnityprovided in Section 5(a) hereof.

 

5.             Indemnification.

 

(a)           Indemnification by the Company.  The Company will indemnify and hold harmlesseach Holder and its officers, directors, members, employees and agents,successors and assigns, and each other person, if any, who controls such Holderwithin the meaning of the 1933 Act, against any losses, claims, damages orliabilities, joint or several, to which such Holder, officer, director, member,or controlling person may become subject under the 1933 Act or otherwise,insofar as such losses, claims, damages or liabilities (or actions in respectthereof) arise out of or are based upon: (i) any untrue statement or allegeduntrue statement of any material fact contained in any Registration 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 not misleading;(iv) any violation by the Company or its agents of any rule or regulationpromulgated under the 1933 Act applicable to the Company or its agents andrelating to action or inaction required of the Company in connection with suchregistration; or (v) any failure to register or qualify the RegistrableSecurities included in any such Registration in any state where the Company orits agents has affirmatively undertaken or agreed in writing that the Companywill undertake such registration or qualification on a Holder’s behalf (theundertaking of any underwriter chosen by the Company being attributed to theCompany) and will reimburse such Holder, and each such officer, director ormember and each such controlling person for any legal or other expensesreasonably incurred by them in connection with investigating or defending anysuch 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 by the Holders.  Each Holder agrees, severally but notjointly, to indemnify and hold harmless, to the fullest extent permitted bylaw, the Company, its directors, officers, employees, stockholders, andsuccessors and each person who controls the Company (within the meaning of the1933 Act) against any losses, claims, damages, liabilities and expense(including reasonable attorney fees) resulting from any untrue statement of amaterial fact or any omission of a material fact required to be stated in theRegistration Statement or Prospectus or preliminary prospectus or amendment orsupplement thereto or necessary to make the statements therein not misleading,to the extent, but only to the extent that such untrue statement or omission iscontained in any information furnished in writing by or on behalf of suchHolder to the Company specifically for inclusion in such Registration Statementor Prospectus or amendment or supplement thereto.  In no event shall the liability of a Holder be greater in amountthan the dollar amount of the proceeds (net of all expense paid by such Holderand the amount of any damages such holder has otherwise been required to pay byreason of such untrue statement or omission) received by such Holder upon thesale of the Registrable Securities giving rise to such indemnificationobligation.

 

(c)           Conduct of IndemnificationProceedings.  Any person entitled toindemnification hereunder shall (i) give prompt notice to the indemnifyingparty of any claim with respect to which it seeks indemnification and (ii)permit such indemnifying party to assume the defense of such claim with counselreasonably satisfactory to the indemnified party; provided that anyperson entitled to indemnification hereunder shall have the right to employseparate counsel and to participate in the defense of such claim, but the feesand expenses of such separate counsel shall be at the expense of such personunless (a) the indemnifying party has agreed to pay such fees or expenses, or(b) the indemnifying party shall have failed to assume the defense of suchclaim and employ counsel reasonably satisfactory to such person or (c) in thereasonable 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 any timefor all such indemnified parties.  Noindemnifying party will, except with the consent of the indemnified party,consent to entry of any judgment or enter into any settlement that does notinclude 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 the relativefault of the indemnified party and the indemnifying party, as well as any otherrelevant equitable considerations.  Noperson guilty of fraudulent misrepresentation within the meaning of Section11(f) of the 1933 Act shall be entitled to contribution from any person notguilty of such fraudulent misrepresentation. In no event shall the contribution obligation of a holder of RegistrableSecurities be greater in amount than the dollar amount of the proceeds (net ofall expenses paid by such holder and the amount of any damages such holder hasotherwise been required to pay by reason of such untrue or alleged untruestatement or omission or alleged omission) received by it upon the sale of theRegistrable Securities giving rise to such contribution obligation.

 

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)           NoPiggyback on Registrations.  Exceptas and to the extent specified in the Disclosure Schedule to the PurchaseAgreement, neither the Company nor any of its security holders (other than theHolders in such capacity pursuant hereto) may include securities of the Companyin a Registration Statement hereunder other than the Registrable Securities,and the Company shall not after the date hereof enter into any agreementproviding any such right to any of its security holders.

 

(c)           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 Company’s registration to Dr. Gerald Wolf as described in the DisclosureSchedule or any registration statement on Form S-4 or Form S-8 (each aspromulgated under the 1933 Act) or their then equivalents relating to equitysecurities to be issued solely in connection with any acquisition of any entityor business or equity securities issuable in connection with stock option orother employee benefit plans, then the Company shall send to each Holderwritten notice of such determination and, if within fifteen days after receiptof such notice, any such Holder shall so request in writing, the Company shallinclude in such registration statement all or any part of such RegistrableSecurities such holder requests to be registered, subject to customaryunderwriter cutbacks applicable to all holders of registration rights.

 

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(e)           Amendments andWaivers.  The provisions ofthis Agreement, including the provisions of this section, may not be amended,modified or supplemented, and waivers or consents to departures from theprovisions hereof may not be given, unless the same shall be in writing andsigned by the Company and the Holder or Holders (as applicable) of no less thana majority in interest of the then outstanding Registrable Securities.  Notwithstanding the foregoing, a waiver orconsent to depart from the provisions hereof with respect to a matter thatrelates exclusively to the rights of certain Holders and that does not directlyor indirectly affect the rights of other Holders may be given by Holders of atleast a majority of the Registrable Securities to which such waiver or consentrelates.

 

(f)            Notices.  All notices and other communicationsprovided for or permitted hereunder shall be made as set forth in the PurchaseAgreement or, with respect to a Holder, to such other address as provided inwriting by a Holder to the Company.

 

(g)           Assignments andTransfers 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.

 

(h)           Assignments andTransfers by the Company.  ThisAgreement may not be assigned by the Company (whether by operation of law orotherwise), provided, however, that the Company must assign itsrights and delegate its duties hereunder to any surviving or successorcorporation in connection with a merger or consolidation of the Company withanother corporation, or a sale, transfer or other disposition of all orsubstantially all of the Company’s assets to another corporation.

 

(i)            Benefits of theAgreement.  The terms and conditionsof this Agreement shall inure to the benefit of and be binding upon therespective permitted successors and assigns of the parties.  Other than with respect to indemnifiedparties hereunder who are not parties to this Agreement, nothing in thisAgreement, express or implied, is intended to confer upon any party other thanthe parties hereto or their respective successors and assigns any rights,remedies, obligations, or liabilities under or by reason of this Agreement,except as expressly provided in this Agreement.

 

(j)            Counterparts;Faxes.  This Agreement may beexecuted in two or more counterparts, each of which shall be deemed anoriginal, but all of which together shall constitute one and the sameinstrument.  This Agreement may also beexecuted via facsimile, which shall be deemed an original.

 

(k)           Titles andSubtitles.  The titles and subtitlesused in this Agreement are used for convenience only and are not to beconsidered in construing or interpreting this Agreement.

 

(l)            Severability.  Any provision of this Agreement that isprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,be ineffective to the extent of such prohibition or unenforceability withoutinvalidating the remaining provisions hereof but shall be interpreted as if itwere written so as to be enforceable to the maximum extent permitted byapplicable law, and any such prohibition or unenforceability in any jurisdictionshall not invalidate or render unenforceable such provision in any otherjurisdiction.  To the extent permittedby applicable law, the parties hereby waive any provision of law which rendersany provisions hereof prohibited or unenforceable in any respect.

 

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(m)          Further Assurances.  The parties hereto shall execute and deliverall such further instruments and documents and take all such other actions asmay reasonably be required to carry out the transactions contemplated herebyand to evidence the fulfillment of the agreements herein contained.

 

(n)           Entire Agreement.  This Agreement and the Purchase Agreement(and the Exhibits and Schedules annexed thereto) are intended by the partieshereto as a final expression of their agreement and intended to be a completeand exclusive statement of the agreement and understanding of the partieshereto in respect of the subject matter contained herein and therein.  This Agreement and the Purchase Agreement(and the Exhibits and Schedules annexed thereto) supersede all prior agreementsand understandings between the parties with respect to such subject matter.

 

(o)           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 or overnightdelivery (with evidence of delivery) to such party at the address in effect fornotices to it under this Agreement and agrees that such service shallconstitute 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.

 

(p)           CumulativeRemedies.  The remedies providedherein are cumulative and not exclusive of any remedies provided by law.

 

(q)           IndependentNature of Holders Obligations and Rights. The obligations of each Holder hereunder is several and not joint withthe obligations of any other Holder hereunder, and no Holder shall beresponsible in any way for the performance of the obligations of any otherHolder hereunder.  Nothing containedherein or in any other agreement or document delivered at any closing, and noaction taken by any Holder pursuant hereto or thereto, shall be deemed to constitutethe Holder as a partnership, an association, a joint venture or any other kindof entity, or create a presumption that the Holder are in any way acting inconcert with respect to such obligations or the transactions contemplated bythis Agreement.  Each Holder shall beentitled to protect and enforce its rights, including without limitation therights arising out of this Agreement, and it shall not be necessary for anyother Holder to be joined as an additional party in any proceeding for suchpurpose.  The Companyacknowledges that each of the Purchasers has been provided with the sameAgreement for the purpose of closing a transaction with multiple Purchasers andnot because it was required or requested to do so by any Purchaser.

 

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*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:                     | Taffy J. Williams,  Ph.D. |
|   | Title:                    | President and Chief  Executive Officer |
|        |                           |  |  |  |

 

----

 

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 brokerage transactions andtransactions in which the broker-dealer solicits Investors;

 

•      block trades in which the broker-dealerwill attempt to sell the shares as agent but may position and resell a portionof the block as principal to facilitate the transaction;

 

•      purchases by a broker-dealer as principaland resale by the broker-dealer for its account;

 

•      an exchange distribution in accordancewith the rules of the applicable exchange;

 

•      privately negotiated transactions;

 

•      to cover short sales made after the datethat this Registration Statement is declared effective by the Commission;

 

•      broker-dealers may agree with the SellingStockholders to sell a specified number of such shares at a stipulated priceper share;

 

•      a combination of any such methods of sale;and

 

•      any other method permitted pursuant toapplicable 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 of eachsuch 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 commissions receivedby such broker-dealers or agents and any profit on the resale of the sharespurchased by them may be deemed to be underwriting commissions or discountsunder the Securities Act.  Discounts,concessions, commissions and similar selling expenses, if any, that can beattributed to the sale of Securities will be paid by the Selling Stockholderand/or the purchasers.  Each SellingStockholder has represented and warranted to the Company that it acquired thesecurities subject to this registration statement in the ordinary course ofsuch Selling Stockholder’s business and, at the time of its purchase of suchsecurities such Selling Stockholder had no agreements or understandings,directly or indirectly, with any person to distribute any such securities.

 

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 herebyprovides the following information to the Company and represents and warrantsthat such information is accurate:

 

**QUESTIONNAIRE**

 

**1.             Name.**

 

(a)           FullLegal Name of Selling Securityholder

 

 

 

(b)           Full Legal Name of Registered Holder(if not the same as (a) above) through which Registrable Securities Listed inItem 3 below are held:

 

 

 

(c)           Full Legal Name of Natural ControlPerson (which means a natural person who directly you indirectly alone or withothers has power to vote or dispose of the securities covered by thequestionnaire):

 

 

 

**2. Address for Notices to Selling Securityholder:**

 
|                   |
|------------------------|
|                   |
|                   |
|  Telephone:       |
|  Fax:             |
|  Contact  Person: |

 

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

 

(a)           Typeand Principal Amount of Registrable Securities beneficially owned:

 

 

 

 

 

**4. Broker-Dealer Status:**

 

(a)           Areyou a broker-dealer?

 

Yes   o  No   o

 

Note:      If yes, the SEC’s staff has indicated thatyou should be identified as an underwriter in the Registration Statement.

 

(b)           Areyou an affiliate of a broker-dealer?

 

Yes   o  No   o

 

(c)           If you are an affiliate of a broker-dealer,do you certify that you bought the Registrable Securities in the ordinarycourse of business, and at the time of the purchase of the RegistrableSecurities to be resold, you had no agreements or understandings, directly orindirectly, with any person to distribute the Registrable Securities?

 

Yes   o  No   o

 

Note:      If no, the SEC’s staff has indicated thatyou should be identified as an underwriter 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)           Typeand Amount of Other Securities beneficially owned by the SellingSecurityholder:

 

 

 

 

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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 topromptly notify the Company of any inaccuracies or changes in the informationprovided herein that may occur subsequent to the date hereof and prior to theEffective Date for the Registration Statement.

 

By signing below, theundersigned consents to the disclosure of the information contained herein inits answers to Items 1 through 6 and the inclusion of such information in theRegistration Statement and the related prospectus.  The undersigned understands that such information will be reliedupon by the Company in connection with the preparation or amendment of theRegistration Statement and the related prospectus.

 

IN WITNESS WHEREOF theundersigned, by authority duly given, has caused this Notice and Questionnaireto be executed and delivered either in person or by its duly authorized agent.

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

 

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