Exhibit
4.5


 




 





Advanced
Life Sciences Holdings, Inc.


 


and


 


Onyx
Stock Transfer, LLC,


 


Warrant
Agent


 




 





Warrant Agent Agreement


 


Dated as of May       ,
2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.

  	
   

  	
  Certain Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.

  	
   

  	
  Appointment of Warrant Agent

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.

  	
   

  	
  Book-Entry Warrant Certificates

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.

  	
   

  	
  Form of Warrant Certificates

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.

  	
   

  	
  Countersignature and Registration

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.

  	
   

  	
  Transfer, Split Up, Combination and Exchange of Warrant
  Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.

  	
   

  	
  Exercise of Warrants

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.

  	
   

  	
  Cancellation and Destruction of Warrant Certificates

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.

  	
   

  	
  Certain Representations; Reservation and Availability of
  Shares of Common Stock or Cash

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.

  	
   

  	
  Common Stock Record Date

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.

  	
   

  	
  Adjustment of Exercise Price, Number of Shares of Common
  Stock or Number of the Company Warrants

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 12.

  	
   

  	
  Certification of Adjusted Exercise Price or Number of
  Shares of Common Stock

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 13.

  	
   

  	
  Reclassification, Consolidation, Purchase, Combination,
  Sale or Conveyance

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 14.

  	
   

  	
  Agreement of Warrant Certificate Holders

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 15.

  	
   

  	
  Concerning the Warrant Agent

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 16.

  	
   

  	
  Purchase or Consolidation or Change of Name of Warrant
  Agent

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 17.

  	
   

  	
  Duties of Warrant Agent

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 18.

  	
   

  	
  Change of Warrant Agent

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 19.

  	
   

  	
  Notices

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 20.

  	
   

  	
  Supplements and Amendments

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 21.

  	
   

  	
  Successors

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 22.

  	
   

  	
  Benefits of this Agreement

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 23.

  	
   

  	
  Governing Law

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 24.

  	
   

  	
  Counterparts

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 25.

  	
   

  	
  Captions

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 26.

  	
   

  	
  Force Majeure

  	
   

  	
  12

  



 


i

















 


WARRANT AGENT AGREEMENT


 


WARRANT AGENT AGREEMENT,
dated as of May       , 2010 (“Agreement”),
between Advanced Life Sciences Holdings, Inc., a Delaware corporation (the
“Company”), and Onyx Stock Transfer, LLC, a California limited liability
company (the “Warrant Agent”).


 


W I T N E S S E T H


 


WHEREAS, pursuant to an
effective registration statement, SEC File No. 333-165388, the Company
wishes to issue an aggregate of up to 2,900,000 Units , each unit consisting of
100 shares of common stock, par value $0.01 (the “Common Stock”), and 50
warrants (the “Warrants”), entitling the respective holders of the
Warrants (the “Holders” which term shall include a Holder’s transferees,
successors and assigns) to purchase one share of Common Stock upon the terms
and subject to the conditions set forth herein and in the Warrant Certificate;
and


 


WHEREAS, the Company wishes
the Warrant Agent to act on behalf of the Company, and the Warrant Agent is
willing so to act, in connection with the issuance, registration, transfer,
exchange, exercise and replacement of the Warrants and, in the Warrant Agent’s
capacity as the Company’s transfer agent, the delivery of the Warrant Shares;


 


NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:


 


Section 1.                                            Certain
Definitions.  For
purposes of this Agreement, the following terms have the meanings indicated:


 


(a)                                  “Business
Day” means any day other than a Saturday, Sunday or a day on which the New
York Stock Exchange is authorized or obligated by law or executive order to
close.


 


(b)                                 “Close of
Business” on any given date means 5:00 p.m., New York City time, on
such date; provided, however, that if such date is not a Business
Day it means 5:00 p.m., New York City time, on the next succeeding
Business Day.


 


(c)                                  “Exercise
Price” means, depending on the context, the Initial Exercise Price or the
adjusted exercise price per share, adjusted from time to time as described in
the Warrant Certificate.


 


(d)                                 “Initial
Exercise Price” means $[        ]
per share of Common Stock.


 


(e)                                  “Person”
means an individual, sole proprietorship, corporation, partnership, limited
liability partnership, limited liability company, association, joint venture,
trust, unincorporated organization, estate or
other mutual company, joint stock company, estate, union, employee
organization, bank, trust company, land trust or other organization, whether or
not a legal entity.


 





















 


(f)                                    “Warrant
Certificate” means a certificate in substantially the form attached as Exhibit 1
hereto representing such number of Warrant Shares as is indicated on the face
thereof, provided that any reference to the delivery of a Warrant Certificate
in this Agreement shall include delivery of notice from the Depository or a
Participant (each as defined below) of the transfer or exercise of Warrant in
the form of a Book-Entry Warrant Certificate (as defined below).


 


(g)                                 “Warrant
Shares” means the shares of Common Stock issuable upon exercise of the
Warrants.


 


Section 2.                                            Appointment of
Warrant Agent.  The Company
hereby appoints the Warrant Agent to act as agent for the Company in accordance
with the terms and conditions set forth herein and in the Warrant Certificate,
and the Warrant Agent hereby accepts such appointment. The Company may from
time to time appoint such Co-Warrant Agents as it may, in its sole discretion,
deem necessary or desirable.


 


Section 3.                                            Book-Entry
Warrant Certificates.


 


(a)                                  The Warrants
shall be issuable in book entry (the “Book-Entry Warrant Certificates”).
All of the Warrants shall initially be represented by one or more Book-Entry
Warrant Certificates deposited with the Depository Trust Company (“Depository”)
and registered in the name of Cede & Co., a nominee of the Depository.
Ownership of beneficial interests in the Warrants shall be shown on, and the
transfer of such ownership shall be effected through, records maintained by (i) the
Depository or its nominee for each Book-Entry Warrant Certificate or (ii) institutions
that have accounts with the Depository (such institution, with respect to a
Warrant in its account, a “Participant”).


 


(b)                                 If the
Depository subsequently ceases to make its book-entry settlement system
available for the Warrants, the Company may instruct the Warrant Agent
regarding other arrangements for book-entry settlement. In the event that the
Warrants are not eligible for, or it is no longer necessary to have the
Warrants available in, book-entry form, the Warrant Agent shall provide written
instructions to the Depository to deliver to the Warrant Agent for cancellation
each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant
Agent to deliver to each Holder a Warrant Certificate.


 


Section 4.                                            Form of
Warrant Certificates.  The Warrant
Certificate, together with the form of election to purchase Common Stock (“Exercise
Notice”) and the form of assignment to be printed on the reverse thereof,
shall be substantially in the form of Exhibit 1 hereto.


 


Section 5.                                            Countersignature
and Registration.  The Warrant
Certificates shall be executed on behalf of the Company by its Chairman, or its
President, either manually or by facsimile signature, and have affixed thereto
the Company’s seal or a facsimile thereof which shall be attested by the
Secretary, either manually or by facsimile signature. The Warrant Certificates
shall be countersigned by the Warrant Agent either manually or facsimile
signature and shall not be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the 


 


2

















 


Company, such Warrant Certificates,
nevertheless, may be countersigned by the Warrant Agent, issued and delivered
with the same force and effect as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
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 a proper
officer of the Company to sign such Warrant Certificate, although at the date
of the execution of this Warrant Agreement any such person was not such an
officer.


 


The Warrant Agent will keep
or cause to be kept, at its office in Mountain View, California, or at the
office of one of its agents, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of warrants
evidenced on the face of each of such Warrant Certificate and the date of each
of such Warrant Certificate.   The
Warrant Agent will create a special account for the issuance of Warrant
Certificates.


 


Section 6.                                            Transfer, Split
Up, Combination and Exchange of Warrant Certificates; Mutilated, Destroyed,
Lost or Stolen Warrant Certificates.  Subject to the provisions of Section 14
hereof and the last sentence of this first paragraph of Section 7 and
subject to compliance with any applicable securities laws, the Warrant
Certificate or Warrant Certificates or Book-Entry Warrant Certificate or
Book-Entry Warrant Certificates and all rights thereunder, are transferable, in
whole or in part, upon surrender of the Warrant Certificate or Warrant
Certificates to be transferred at the principal office of the Company or the
Warrant Agent, provided that no such surrender is applicable to the Holder of a
Book-Entry Warrant Certificate, together with a written assignment of such
Warrant Certificate duly executed by the Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the making of such
transfer.  Upon such surrender, and if
required, such payment, the Company shall execute and deliver a new Warrant
Certificate or Warrant Certificates in the name of such assignee or assignees
and in the denomination or denominations specified in such instrument of
assignment to the Warrant Agent to be countersigned and delivered to such
assignee or assignees.  The Company shall
execute and deliver a new Warrant Certificate evidencing the portion of the
Warrant Certificate not so assigned to the Warrant Agent to be countersigned
and delivered to the assignor.  The
original Warrant Certificate shall promptly by cancelled by the Warrant
Agent.  Any such transfer shall be promptly
recorded in the warrant register.


 


The Company and the Warrant
Agent covenant that upon receipt by the Company or the Warrant Agent of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of the Warrant Certificate or any stock certificate relating to the
Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to the Company or the Warrant Agent and upon
surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver the a new Warrant Certificate or stock
certificate, without charge, of like date, tenor and denomination, to the
Warrant Agent for delivery to the Holder in lieu of such Warrant Certificate or
stock certificate.


 


3

















 


Section 7.                                            Exercise of
Warrants.


 


(a)                                  Subject to the
provisions of the Warrant Certificate, the Holder of a Warrant may exercise the
Warrant at any time in whole or in part, at the option of the Holder, upon
surrender of the Warrant Certificate, if required, with the executed Exercise
Notice and payment of the Exercise Price, which may be made, at the option of
the holder, by certified or bank cashier’s check payable to the Company, or a
wire transfer of funds to an account designated by the Company, to the Warrant
Agent at the principal office of the Warrant Agent in Mountain View, California
or to the office of one of its agents as may be designated in writing by the
Warrant Agent. In the case of the Holder of a Book-Entry Warrant Certificate,
the Holder shall deliver the executed Exercise Notice and the payment of the
Exercise Price as described herein.  Upon
receipt of an Exercise Notice for a cashless exercise, the Warrant Agent will
promptly deliver a copy of the Exercise Notice to the Company to confirm the
number of Warrant Shares issuable in connection with the cashless exercise. The
Company shall calculate and transmit to the Warrant Agent, and the Warrant
Agent shall have no obligation under this section to calculate, the number of
Warrant Shares issuable in connection with the cashless exercise.


 


(b)                                 Upon receipt of
by the Warrant Agent of the Warrant Certificate, as applicable, the Exercise
Notice and the Exercise Price as described in Section 7(a) above, the
Warrant Agent shall use reasonable efforts to cause the Warrant Shares to be
delivered to or upon the order of the Holder of such Warrant, registered in
such name or names as may be designated by such Holder by the date that is
three (3) Business Days after the latest of (A) the delivery to the
Warrant Agent of the executed Exercise Notice, (B) surrender of the
Warrant Certificate (but only if required herein) and (C) payment of the
Exercise Price and other amounts as set forth herein or in the Warrant
Certificate (including by cashless exercise, if permitted) (such date, the “Warrant
Share Delivery Date”); provided, however, that the Warrant Agent shall not
be liable to the Company or the Holder for any damages arising out of the
failure to deliver the Warrant Share by the Warrant Share Delivery Date. If the
Warrant Agent fails to deliver to the Holder a certificate or the certificates
representing the Warrant Shares (or, as described below, to credit the account
of the Holder’s prime broker through the DWAC system) by the Warrant Share
Delivery Date, the Holder will have the right to rescind such exercise.
Notwithstanding the foregoing, if the Company is then a participant in the
Deposit Withdrawal Agent Commission (“DWAC”) system of the Depository
and either (A) there is an effective registration statement permitting the
issuance of the Warrant Shares to and resale of the Warrant Shares by holder or
(B) the Warrant is being exercised via cashless exercise, the certificates
for Warrant Shares shall be transmitted by the Warrant Agent to the Holder by
crediting the account of the Holder’s prime broker with the Depository through
its DWAC system.


 


(c)                                  In case the
Holder of any Warrant Certificate shall exercise fewer than all Warrants
evidenced thereby, a new Warrant Certificate evidencing the number of Warrants
equivalent to the number of Warrants remaining unexercised shall be issued by
the Warrant Agent to the Holder of such Warrant Certificate or to his duly
authorized assigns, subject to the provisions of Sections 7 and 14 hereof.


 


Section 8.                                            Cancellation
and Destruction of Warrant Certificates.  All Warrant Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange 


 


4

















 


shall, if surrendered to the Company or to
any of its agents, be delivered to the Warrant Agent for cancellation or in
canceled form, or, if surrendered to the Warrant Agent, shall be canceled by
it, and no Warrant Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement or the Warrant
Certificate. The Company shall deliver to the Warrant Agent for cancellation
and retirement, and the Warrant Agent shall so cancel and retire, any other
Warrant Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. Upon written request by the Company, the Warrant Agent shall
deliver all canceled Warrant Certificates to the Company, or shall, at the
written request of the Company, destroy such canceled Warrant Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company,
subject to any applicable law, rule or regulation requiring the Warrant
Agent to retain such canceled certificates.


 


Section 9.                                            Certain
Representations; Reservation and Availability of Shares of Common Stock or Cash.


 


(a)                                  This Agreement
has been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery hereof by the Warrant Agent,
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, and the Warrants have been
duly authorized, executed and issued by the Company and, assuming due
authentication thereof by the Warrant Agent pursuant hereto, constitute valid
and legally binding obligations of the Company enforceable against the Company
in accordance with their terms and entitled to the benefits hereof; in each
case except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally or by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).


 


(b)                                 As of the date
hereof, the authorized capital stock of the Company consists of (i) 390,372,067
shares, of Common Stock, of which 100,372,067 shares of Common Stock are issued
and outstanding, 145,000,000  shares
of Common Stock are reserved for issuance upon exercise of the Warrants, up to [                   ]
shares issuable upon the exercise of other outstanding warrants and not more
than 6,279,303 shares of Common Stock are reserved for future issuance under
equity incentive plans and (ii) 5,000,000 shares of preferred stock, no
par value per share, of which no shares are outstanding. There are no other
outstanding obligations, warrants, options or other rights to subscribe for or
purchase from the Company any class of capital stock of the Company.


 


(c)                                  The Company
covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued shares of Common Stock or its authorized and
issued shares of Common Stock held in its treasury, free from preemptive
rights, the number of shares of Common Stock that will be sufficient to permit
the exercise in full of all outstanding Warrants.


 


(d)                                 The Company
further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of
the original issuance or delivery of the Warrant Certificates or certificates
evidencing Common Stock upon exercise of the Warrants. The Company shall not,
however, be required to 


 


5

















 


pay any tax or governmental charge which may
be payable in respect of any transfer involved in the transfer or delivery of
Warrant Certificates or the issuance or delivery of certificates for Common
Stock in a name other than that of the Holder of the Warrant Certificate
evidencing Warrants surrendered for exercise or to issue or deliver any
certificate for shares of Common Stock upon the exercise of any Warrants until
any such tax or governmental charge shall have been paid (any such tax or
governmental charge being payable by the holder of such Warrant Certificate at
the time of surrender) or until it has been established to the Company’s
reasonable satisfaction that no such tax or governmental charge is due.


 


Section 10.                                      Common Stock
Record Date.  Each person
in whose name any certificate for shares of Common Stock is issued (or to whose
prime broker’s account is credited shares of Common Stock through the DWAC
system) upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record for the Common Stock represented thereby on, and
such certificate shall be dated, the date upon which the Warrant Certificate
evidencing such the Company Warrants was duly surrendered (but only if required
herein) and payment of the Exercise Price (and any applicable transfer taxes)
and submission of the Exercise Notice was made; provided, however, that if the
date of such surrender (if applicable), payment and submission is a date upon
which the Common Stock transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding day on which the Common Stock
transfer books of the Company are open.


 


Section 11.                                      Adjustment of
Exercise Price, Number of Shares of Common Stock or Number of the Company Warrants.  The Exercise Price, the number of shares
covered by each Warrant and the number of Warrants outstanding are subject to
adjustment from time to time as provided in the Warrant Certificate.


 


Section 12.                                      Certification
of Adjusted Exercise Price or Number of Shares of Common Stock.  Whenever the Exercise Price or the number of
shares of Common Stock issuable upon the exercise of each Warrant is adjusted
as provided in the Warrant Certificate, the Company shall (a) promptly
prepare a certificate setting forth the Exercise Price of each Warrant as so
adjusted, and a brief statement of the facts accounting for such adjustment, (b) promptly
file with the Warrant Agent and with each transfer agent for the Common Stock a
copy of such certificate and (c) instruct the Warrant Agent to mail a
brief summary thereof to each holder of a Warrant Certificate.


 


Section 13.                                      Reclassification,
Consolidation, Purchase, Combination, Sale or Conveyance.  If, at any time while this Warrant is
outstanding, the Company shall effect any Fundamental Transaction, as such
terms is used in the Warrant Certificate, the Company shall instruct the
Warrant Agent to mail by first class mail, postage prepaid, to each Holder of a
Warrant, written notice of the execution of any such amendment, supplement or
agreement. Any supplemented or amended agreement entered into by the successor
corporation or transferee shall provide for adjustments as set forth in the
Warrant Certificate. The Warrant Agent shall be under no responsibility to
determine the correctness of any provisions contained in such agreement
relating either to the kind or amount of securities or other property
receivable upon exercise of warrants or with respect to the method employed and
provided therein for any adjustments and 


 


6

















 


shall be entitled to rely upon the provisions
contained in any such agreement. The provisions of this Section 13 shall
similarly apply to successive Fundamental Transactions.


 


Section 14.                                      Agreement of
Warrant Certificate Holders.  Every holder of a Warrant Certificate by
accepting the same consents and agrees with the Company and the Warrant Agent
and with every other holder of a Warrant Certificate that:


 


(a)                                  the Warrant
Certificates are transferable only on the registry books of the Warrant Agent
if surrendered at the principal office of the Warrant Agent, duly endorsed or
accompanied by a proper instrument of transfer; and


 


(b)                                 the Company and
the Warrant Agent may deem and treat the person in whose name the Warrant
Certificate is registered as the absolute owner thereof and of the Warrants
evidenced thereby (notwithstanding any notations of ownership or writing on the
Warrant Certificates made by anyone other than the Company or the Warrant
Agent) for all purposes whatsoever, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.


 


Section 15.                                      Concerning the
Warrant Agent.  The Company
agrees to pay to the Warrant Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Warrant
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder.


 


The Company covenants and
agrees to indemnify and to hold the Warrant Agent harmless against any costs,
expenses (including reasonable fees of its legal counsel), losses or damages,
which may be paid, incurred or suffered by or to which it may become subject,
arising from or out of, directly or indirectly, any claims or liability
resulting from its actions as Warrant Agent pursuant hereto; provided, that
such covenant and agreement does not extend to, and the Warrant Agent shall not
be indemnified with respect to, such costs, expenses, losses and damages
incurred or suffered by the Warrant Agent as a result of, or arising out of,
its gross negligence, bad faith, or willful misconduct.


 


Promptly after the receipt by
the Warrant Agent of notice of any demand or claim or the commencement of any
action, suit, proceeding or investigation, the Warrant Agent shall, if a claim
in respect thereof is to be made against the Company, notify the Company
thereof in writing. The Company shall be entitled to participate as its own
expense in the defense of any such claim or proceeding, and, if it so elects at
any time after receipt of such notice, it may assume the defense of any suit
brought to enforce any such claim or of any other legal action or proceeding.
For the purposes of this Section 15, the term “expense or loss” means any
amount paid or payable to satisfy any claim, demand, action, suit or proceeding
settled with the express written consent of the Warrant Agent, and all
reasonable costs and expenses, including, but not limited to, reasonable
counsel fees and disbursements, paid or incurred in investigating or defending
against any such claim, demand, action, suit, proceeding or investigation.


 


The Warrant Agent shall be
responsible for and shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments, 


 


7

















 


expenses
and liability arising out of or attributable to the Warrant Agent’s refusal or
failure to comply with the terms of this Agreement, or which arise out of
Warrant Agent’s negligence or willful misconduct or which arise out of the
breach of any representation or warranty of the Warrant Agent hereunder, for
which the Warrant Agent is not entitled to indemnification under this
Agreement; provided, however, that Warrant Agent’s aggregate liability during
any term of this Agreement with respect to, arising from, or arising in
connection with this Agreement, or from all services provided or omitted to be
provided under this Agreement, whether in contract, or in tort, or otherwise,
is limited to, and shall not exceed, the amounts paid under this Agreement by
the Company to Warrant Agent as fees and charges, but not including
reimbursable expenses.


 


Promptly after the receipt by
the Company of notice of any demand or claim or the commencement of any action,
suit, proceeding or investigation, the Company shall, if a claim in respect
thereof is to be made against the Warrant Agent, notify the Warrant Agent
thereof in writing. The Warrant Agent shall be entitled to participate at its
own expense in the defense of any such claim or proceeding, and, if it so
elects at any time after receipt of such notice, it may assume the defense of
any suit brought to enforce any such claim or of any other legal action or
proceeding.


 


Section 16.                                      Purchase or
Consolidation or Change of Name of Warrant Agent.  Any corporation into which the Warrant Agent
or any successor Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Warrant Agent or any successor Warrant Agent shall be party, or any
corporation succeeding to the business of the Warrant Agent or any successor
Warrant Agent, shall be the successor to the Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Warrant Agent under the provisions of Section 18.
In case at the time such successor Warrant Agent shall succeed to the agency
created by this Agreement any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor Warrant Agent may adopt the
countersignature of the predecessor Warrant Agent and deliver such Warrant
Certificates so countersigned; and in case at that time any of the Warrant
Certificates shall not have been countersigned, any successor Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor Warrant Agent; and in all such
cases such Warrant Certificates shall have the full force provided in the
Warrant Certificates and in this Agreement.


 


In case at any time the name
of the Warrant Agent shall be changed and at such time any of the Warrant
Certificates shall have been countersigned but not delivered, the Warrant Agent
may adopt the countersignature under its prior name and deliver Warrant
Certificates so countersigned; and in case at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.


 


Section 17.                                      Duties of
Warrant Agent.  The Warrant
Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which


 


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the Company and the Holders of Warrant
Certificates, by their acceptance thereof, shall be bound:


 


(a)                                  The Warrant
Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete authorization
and protection to the Warrant Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.


 


(b)                                 Whenever in the
performance of its duties under this Agreement the Warrant Agent shall deem it
necessary or desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate signed
by the Chairman, or President of the Company and by the Secretary of the
Company and delivered to the Warrant Agent; and such certificate shall be full
authentication to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.


 


(c)                                  The Warrant
Agent shall be liable hereunder only for its own gross negligence, bad faith or
willful misconduct, pursuant to Section 16, above.


 


(d)                                 The Warrant
Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Warrant Certificates (except its
countersignature thereof) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the
Company only.


 


(e)                                  The Warrant
Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof
by the Warrant Agent) or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate; nor shall it be responsible for the
adjustment of the Exercise Price or the making of any change in the number of
shares of Common Stock required under the provisions of Section 11, Section 13
and the Warrant Certificate or responsible for the manner, method or amount of
any such change or the ascertaining of the existence of facts that would
require any such adjustment or change (except with respect to the exercise of
Warrants evidenced by Warrant Certificates after actual notice of any adjustment
of the Exercise Price); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant
Certificate or as to whether any shares of Common Stock will, when issued, be
duly authorized, validly issued, fully paid and nonassessable.


 


(f)                                    The Company
agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing by the Warrant Agent of the provisions
of this Agreement.


 


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(g)                                 The Warrant
Agent is hereby authorized to accept instructions with respect to the
performance of its duties hereunder from the Chairman or the President or the
Secretary of the Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable and shall be
indemnified and held harmless for any action taken or suffered to be taken by
it in good faith in accordance with instructions of any such officer, provided
Warrant Agent carries out such instructions without gross negligence, bad faith
or willful misconduct.


 


(h)                                 The Warrant
Agent and any shareholder, director, officer, manager, member or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction
in which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal
entity.


 


(i)                                     The Warrant
Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorney or
agents, and the Warrant Agent shall not be answerable or accountable for any
act, default, neglect or misconduct of any such attorney or agents or for any
loss to the Company resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.


 


Section 18.                                      Change of
Warrant Agent.  The Warrant
Agent may resign and be discharged from its duties under this Agreement upon 30
days’ notice in writing mailed to the Company and to each transfer agent of the
Common Stock by registered or certified mail, and to the holders of the Warrant
Certificates by first-class mail. The Company may remove the Warrant Agent or
any successor Warrant Agent upon 30 days’ notice in writing, mailed to the
Warrant Agent or successor Warrant Agent, as the case may be, and to each
transfer agent of the Common Stock by registered or certified mail, and to the
holders of the Warrant Certificates by first-class mail. If the Warrant Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the holder of a Warrant
Certificate (who shall, with such notice, submit his Warrant Certificate for
inspection by the Company), then the Holder of any Warrant Certificate may
apply to any court of competent jurisdiction for the appointment of a new
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
by such a court, shall be a corporation organized and doing business under the
laws of the United States or of a state thereof, in good standing. After
appointment, the successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the predecessor Warrant Agent
shall deliver and transfer to the successor Warrant Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with 


 


10

















 


the predecessor Warrant Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to the
Holders of the Warrant Certificates. However, failure to give any notice
provided for in this Section 18, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the Warrant Agent or
the appointment of the successor Warrant Agent, as the case may be.


 


Section 19.                                      Notices.  Notices or demands authorized by this
Agreement to be given or made (i) by the Warrant Agent or by the Holder of
any Warrant Certificate to or on the Company, (ii)  subject to the
provisions of Section 18, by the Company or by the Holder of any Warrant
Certificate to or on the Warrant Agent or (iii) by the Company or the
Warrant Agent to the Holder of any Warrant Certificate, shall be deemed given (x) on
the date delivered, if delivered personally, (y) on the first Business Day
following the deposit thereof with Federal Express or another recognized
overnight courier, if sent by Federal Express or another recognized overnight
courier, and (z) on the fourth Business Day following the mailing thereof
with postage prepaid, if mailed by registered or certified mail (return receipt
requested), in each case to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):


 


(a)                                  If to the
Company, to:


 


Advanced
Life Sciences Holdings, Inc.


1440
Davey Road


Woodridge,
Illinois  60517-5037


Attention:
Chief Financial Officer


 


(b)                                 If to the
Warrant Agent, to:


 


Onyx Stock Transfer, LLC


2672 Bayshore Parkway, Suite 1055


Mountain View,
California  94043


Attention:  President & Managing Partner


Telecopy:
(650) 215-4881


 


(c)                                  If to the
Holder of any Warrant Certificate, to the address of such holder as shown on
the registry books of the Company. Any notice required to be delivered by the
Company to the Holder of any Warrant may be given by the Warrant Agent on
behalf of the Company.


 


Section 20.                                      Supplements and
Amendments.


 


(a)                                  The Company and
the Warrant Agent may from time to time supplement or amend this Agreement
without the approval of any Holders of Warrant Certificates in order to cure
any ambiguity, to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provisions herein, or to make
any other provisions with regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not adversely affect the interests of the Holders of Warrants
Certificates.


 


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(b)                                 In addition to
the foregoing, with the consent of Holders of Warrants entitled, upon exercise
thereof, to receive not less than a majority of the shares of Common Stock
issuable thereunder, the Company and the Warrant Agent may modify this
Agreement for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Warrant Agreement or modifying in
any manner the rights of the holders of the Warrant Certificates; provided,
however, that no modification of the terms (including but not limited to
the adjustments described in Section 11) upon which the Warrants are
exercisable or reducing the percentage required for consent to modification of
this Agreement may be made without the consent of the holder of each
outstanding warrant certificate affected thereby.


 


Section 21.                                      Successors.  All covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.


 


Section 22.                                      Benefits of
this Agreement.  Nothing in
this Agreement shall be construed to give any Person other than the Company and
the Warrant Agent any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of
the Company, the Warrant Agent and the Holders of the Warrant Certificates.


 


Section 23.                                      Governing Law.  This Agreement and each Warrant Certificate
issued hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York without giving effect to the conflicts of law
principles thereof.


 


Section 24.                                      Counterparts.  This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.


 


Section 25.                                      Captions.  The captions of the sections of this
Agreement have been inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.


 


Section 26.                                      Force Majeure.  Notwithstanding anything to the contrary
contained herein, Warrant Agent shall not be liable for any delays or failures
in performance resulting from acts beyond its reasonable control including,
without limitation, acts of God, terrorist acts, shortage of supply, breakdowns
or malfunctions, interruptions or malfunction of computer facilities, or loss
of data due to power failures or mechanical difficulties with information
storage or retrieval systems, labor difficulties, war, or civil unrest.


 


12

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above written.


 


 


	
   

  	
  ADVANCED
  LIFE SCIENCES HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Michael
  T. Flavin, Ph.D.

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ONYX
  STOCK TRANSFER, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Jennifer
  Hodges, Esq.

  
	
   

  	
  Title:

  	
  President
  and Managing Partner

  



 


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