exv4w23



 





Exhibit 4.23



THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED PURSUANT TO THE
EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES
(TOGETHER, THE “SECURITIES”) HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH DISPOSITION IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS.




No. WC-291           Initial Issue Date: 12/04/03



Reissued 06/15/05 as result of Transfer from WC-274




WARRANT TO PURCHASE COMMON STOCK




 






     THIS CERTIFIES THAT, for good and valuable consideration, S. Neborsky and R Neborsky TTEE
Robert J. Neborsky MD Inc Comb Retirement Trust (the “Holder”) is entitled to subscribe for and
purchase from Adventrx Pharmaceuticals, Inc., a Delaware corporation (the “Company”), Sixty-seven
Thousand, Five Hundred (67,500) fully paid and nonassessable shares of Common Stock, par value
$0.001 per share (“Common Stock”), of the Company (as adjusted pursuant to Section 3 hereof) (the
“Warrant Shares”) at a price per share equal to Fifty Cents ($.50) (as adjusted pursuant to Section
3 hereof) (the “Exercise Price”), subject to the provisions and upon the terms and conditions
hereinafter set forth.



1. Method of Exercise; Payment.





     (a) Exercise Period. The purchase right represented by this Warrant may be exercised
by the Holder during the term of this Warrant (as set forth in Section 9 hereof) at any time
after the Commencement Date, as defined below, by the surrender of this Warrant (with the notice
of exercise form attached hereto as Exhibit A (the “Notice of Exercise”) duly executed)
at the principal office of the Company. This Warrant may only be exercised in whole and not in
part.




     (b) Cash Exercise. Upon exercise of this Warrant, the Holder shall pay the Company an
amount equal to the product of (x) the Exercise Price multiplied by (y) the total number of
Warrant Shares subject to this Warrant, by wire transfer or certified check payable to the order
of the Company. The person or persons in whose name(s) any certificate(s) representing the
Warrant Shares shall be issuable upon exercise of this Warrant shall be deemed to have become
the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of,
the Warrant Shares represented thereby (and such Warrant Shares shall
be deemed to have been issued) immediately prior to the close of business on the date upon
which this Warrant is exercised.



 









 









     (c) Stock Certificates. In the event of the exercise of this Warrant, certificates for
the Warrant Shares so purchased shall be delivered to the Holder within a reasonable time after
exercise.


2. Stock Fully Paid; Reservation of Shares. All of the Warrant Shares issuable upon the exercise
of the rights represented by this Warrant will, upon issuance and receipt of the Exercise Price
therefor, be fully paid and nonassessable, and free from all preemptive rights, rights of first
refusal or first offer, taxes, liens and charges with respect to the issuance thereof. During the
period within which the rights represented by this Warrant may be exercised, the Company shall at
all times have authorized and reserved for issuance a sufficient number of Warrant Shares to
provide for the exercise of the rights represented by this Warrant.



3. Adjustment of Exercise Price and Number of Shares. The number and kind of Warrant Shares
purchasable upon the exercise of this Warrant and the Exercise Price therefor shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:





     (a) Reclassification, Consolidation or Reorganization. In case of any reclassification
of the Common Stock (other than a change in par value, or as a result of a subdivision or
combination), or in case of any consolidation or merger of the Company with or into another
corporation (other than a Change of Control, as defined below) (any of which is a
“Reorganization Transaction”), the Company, or such successor corporation as the case may be,
shall execute a new warrant, providing that the holder of this Warrant shall have the right to
exercise such new warrant, and procure upon such exercise and payment of the same aggregate
Exercise Price, in lieu of the Warrant Shares theretofore issuable upon exercise of this
Warrant, the kind and amount of shares of stock, other securities, money and property as would
be payable for the Warrant Shares issuable upon exercise of this Warrant as if such Warrant
Shares were outstanding on the consummation of the Reorganization Transaction. For purposes of
this Warrant, the term “Change of Control” shall mean (i) any acquisition of the Company by
means of merger, acquisition, or other form of corporate
reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to
be issued, by the acquiring corporation or its subsidiary or parent (other than a
reincorporation transaction or change of domicile) and pursuant to which the holders of the
outstanding voting securities of the Company immediately prior to such consolidation, merger or
other transaction fail to hold equity securities representing a majority of the voting power of
the Company or surviving entity immediately following such consolidation, merger or other
transaction (excluding voting securities of the acquiring corporation held by such holders prior
to such transaction) or (ii) a sale of all or substantially all of the assets of the Company.




     (b) Stock Splits, Dividends and Combinations. In the event that the Company shall at
any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on
its outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of
this Warrant immediately prior to such subdivision or to the issuance of such
stock dividend shall be proportionately increased, and the Exercise Price shall be
proportionately decreased, and in the event that the Company shall at any time combine the
outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise



 









 







of this
Warrant immediately prior to such combination shall be proportionately decreased, and the
Exercise Price shall be proportionately increased, effective at the close of business on the
date of such subdivision, stock dividend or combination, as the case may be.


4. Transfer of Warrant. This Warrant may only be transferred in compliance with federal and state
securities laws and, except as provided below, may not be transferred except with the prior written
consent of the Company, which shall not be unreasonably withheld or delayed, and any purported
transfer without such prior written consent shall be null and void; provided,
however, that the Company may withhold its consent to transfer or assignment of this
Warrant to any person or entity who is deemed to be a competitor or prospective competitor of the
Company, such determination to be made in the reasonable judgment of the Board.



5. Condition to Exercise of Warrant. Each certificate evidencing the Warrant Shares issued upon
exercise of this Warrant shall be stamped or imprinted with a legend substantially in the following
form:





THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF, AND HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.


6. Fractional Shares. No fractional Warrant Shares will be issued in connection with any exercise
hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor
upon the basis of the Exercise Price then in effect.



7. Representations and Warranties by the Holder. The Holder represents and warrants to the Company
as follows:





     (a) This Warrant is being acquired for the Holder’s own account, for investment and not with a
view to, or for resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Upon exercise of
this Warrant, the Holder shall, if so requested by the Company, confirm in writing, in a form
reasonably satisfactory to the Company, that the Warrant Shares issuable upon exercise of this
Warrant are being acquired for investment and not with a view toward distribution or resale.
The Holder is an “accredited investor” within the meaning of the Securities Act.




     (b) The Holder understands that this Warrant and the Warrant Shares have not been registered
under the Securities Act by reason of their issuance in a transaction exempt from
the registration and prospectus delivery requirements of the Securities Act pursuant to
Section 4(2) thereof and that the Company’s reliance upon such exemption is predicated, in



 









 







part,
upon the Holder’s representations and warranties set forth in this Agreement. The Holder
understands that this Warrant and the Warrant Shares must be held by the Holder indefinitely,
and that the Holder must therefore bear the economic risk of such investment indefinitely,
unless a subsequent disposition thereof is registered under the Securities Act or is exempted
from such registration. The Holder further understands that this Warrant and the Warrant Shares
have not been registered under the securities laws of any state.




     (c) The Holder acknowledges that it is acquiring this Warrant without being offered or
furnished any offering literature or prospectus. The Holder understands that neither the United
States Securities and Exchange Commission, nor any governmental agency charged with the
administration of the securities laws of any state nor any other governmental agency has passed
upon or reviewed the merits or qualifications of, or recommended or approved the issuance of
this Warrant or the Warrant Shares.




     (d) The Holder understands that, except as provided in Section 10 of this Warrant, the Company
is under no obligation to register this Warrant or the Warrant Shares.




     (e) The Holder is a bona fide resident and domiciliary (not a temporary or transient resident)
of the state indicated in the signature page hereto and the Holder has no present intention of
becoming a resident of any other state or jurisdiction.




     (f) The Holder has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the purchase of this Warrant and the Warrant
Shares purchasable pursuant to the terms of this Warrant and of protecting its interests in
connection therewith. The Holder is able to bear the economic risk of the purchase of the
Warrant Shares pursuant to the terms of this Warrant.




     (g) The Holder does not currently have and will not undertake during the term of this Warrant
any short position with respect to shares of Common Stock of the Company.


8. Rights of Stockholders. No holder of this Warrant shall be entitled, as a Warrant holder, to
vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the
Company which may at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issuance of stock, reclassification of stock, change of par
value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to
receive dividends or subscription rights or otherwise with respect to the Warrant Shares until this
Warrant shall have been exercised and the Warrant Shares purchasable upon the exercise hereof shall
have become deliverable, as provided herein.




 









 







9. Term of Warrant.





     (a) This Warrant shall become exercisable on the date of issuance set forth below (the
“Commencement Date”) and shall no longer be exercisable as of the earlier of (i) 5:00 p.m., San
Diego, California local time, on December 4, 2006 (ii) immediately prior to a Change of Control
and (iii) 5:00 p.m., San Diego, California local time, on the Call Termination Date (as defined
below).




     (b) Notwithstanding anything herein to the contrary, at any time after the Commencement Date,
if the closing price of one share of Common Stock quoted in the over-the-counter market summary,
the Bulletin Board Exchange, the Nasdaq National Market or the closing price quoted on a
national securities exchange, whichever is applicable, is greater than or equal to 200% of the
Exercise Price for a period of 20 consecutive trading days, then thereafter the Company shall
have the right (the “Company Termination Right”), exercisable at the Company’s sole discretion,
to terminate this Warrant with at least 10-days’ prior written notice (the “Termination Notice”)
which Termination Notice shall state the date this Warrant shall terminate (the “Call
Termination Date”); provided, however, that the Company may not exercise the
Company Termination Right unless a registration statement registering the Warrant Stock has been
declared effective and is effective from the date of delivery of the Termination Notice until
the Call Termination Date, provided, further, that if this Warrant is terminated
pursuant to this Section 9(b), then the Company shall use commercially reasonable efforts to
maintain the effectiveness of a registration statement registering the Warrant Stock until the
date that is 15 days after the Call Termination Date or, if earlier, the date the Holder shall
have sold all its Warrant Shares covered by such registration statement.


10. Registration Rights.





     (a) Piggy-back Rights. If (but without any obligation to do so) the Company proposes
to register any shares of Common Stock solely for cash pursuant to a registration statement
under the Securities Act, other than a registration solely in connection with a transaction
under Rule 145 promulgated under the Securities Act (a “Public Offering”), the Company shall
promptly give the Holder written notice of such Public Offering, at least 10 business days prior
to the filing of the registration statement under the Securities Act regarding such Public
Offering. Upon the written request of the Holder given within 5 business days after delivery of
such written notice by the Company, the Company shall, subject to the provisions of Section
10(b) below, use its best efforts to cause to be registered under the Securities Act all of the
Warrant Shares that the Holder has requested to be registered.




     (b) Underwriting. If the registration statement under which the Company gives notice
under this Section 10 is for an underwritten Public Offering, the Company shall so advise the
Holder. The right of the Holder to registration pursuant to Section 10(a) above shall be
conditioned upon the Holder’s participation in such underwriting and the inclusion of the
Warrant Shares in the underwriting to the extent provided herein. The Holder shall (together
with the Company and any other holders of Company securities distributing their securities
through such underwriting) enter into an underwriting agreement in customary



 









 







form with the
underwriter or underwriters selected for underwriting by the Company. Notwithstanding any
other provision of this Section 10, if the underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the underwriter may exclude
some or all of the Warrant Shares from such registration and underwriting.




     (c) Furnish Information. It shall be a condition to the Company’s obligations to take
any action under this Section 10 that the Holder shall furnish to the Company such information
regarding itself, the Warrant Shares, and the intended method of disposition of such Warrant
Shares as shall be required to effect the registration of any Warrant Shares. In that
connection, the Holder shall be required to represent to the Company that all such information
which is given is both complete and accurate in all material respects when made.




     (d) Delay of Registration. The Holder shall have no right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or implementation of this
Section 10.




     (e) Termination of Registration Rights. The Company shall have no obligation to
register Warrant Shares pursuant to this Section 10 with respect to any request or requests made
by any Holder on or after that date which is one year after the date such Warrant Shares were
deemed to be acquired for purposes of determining the holding period of such Warrant Shares
under Rule 144 of the Act.



11. Miscellaneous.





     (a) This Warrant is being delivered in the state of California and shall be construed and
enforced in accordance with and governed by the laws of the state of California, without giving
effect to principles of conflicts of laws.




     (b) The headings in this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof.




     (c) The terms of this Warrant shall be binding upon and shall inure to the benefit of any
successors or assigns of the Company and of the Holder and of the Warrant Shares issued or
issuable upon the exercise hereof.




     (d) Any notice provided for or permitted under this Warrant shall be treated as having been
given (a) upon receipt, when delivered personally, (b) upon receipt, when sent by confirmed
facsimile or telecopy, (c) one day after sending, when sent by commercial overnight courier with
written verification of receipt, or (d) three business days after deposit with the United States
Postal Service, when mailed postage prepaid by certified or registered mail, return receipt
requested, addressed (a) if to the Company, at 9948 Hibert Street, Suite 100, San Diego, CA
92131, facsimile: (858) 271-9678, Attention: Nicholas J. Virca, or (b) if to the Holder, at such
address or facsimile number as the Holder shall have furnished to the Company in writing, or at
such other place of which the other party has been notified in accordance with the provisions of
this Section 11(d).



 









 






     (e) This Warrant constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof.




     (f) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company at the Holder’s expense will execute and deliver to the holder of record,
in lieu thereof, a new Warrant of like date and tenor.




     (g) This Warrant and any provision hereof may be amended, waived or terminated only by an
instrument in writing signed by the Company and the Holder.




     (h) Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to the
foregoing terms and conditions.



[Signature page follows.]




 









 








     IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized
officer.



	 	 	 	 	 	 	 
	 	 	Adventrx Pharmaceuticals, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carrie Carlander	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Carrie Carlander	 	 
	 

	 	Title:
	 	Chief Financial Officer     6/15/05
	 	 
	 
	 	 	 	 	 	 
	 	 	S. Neborsky and R. Neborsky TTEE

Robert J. Neborsky MD Inc Comb Retirement Trust	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sandra Neborsky	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Neborsky	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:	 	 	 	 
	 

	 	 	 	 	 	 





 









 






Exhibit A




Notice of Exercise




	 	 	 
	TO:

	 	Adventrx Pharmaceuticals, Inc.
	 

	 	9948 Hibert Street, Suite 100
	 

	 	San Diego, CA 92131






RE: WC-291




     The undersigned hereby elects to purchase 67,500 shares of Common Stock, par value $0.001 per
share, of the Company (“Common Stock”) pursuant to the terms of Section 1(b) of the Warrant to
Purchase Common Stock dated December 4, 2003 (the “Warrant”), and tenders herewith payment of the
purchase price of such shares in full.



     Please issue a certificate or certificates representing said 67,500 shares of Common Stock in
the name of the undersigned or in such other name as is specified below:



	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





     The undersigned hereby represents and warrants that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a view to, or for
resale, in connection with the distribution thereof, and that the undersigned has no present
intention of distributing or reselling such shares, and that all representations and warranties of
the undersigned set forth in Section 7 of the Warrant are true and correct as of the date hereof.



	 	 	 	 	 	 	 
	 	 	S. Neborsky and Robert J. Neborsky TTEE

Robert J. Neborsky MD Inc Comb Retirement Trust	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date: