**Exhibit10.143**

 

**THE IMMUNE RESPONSECORPORATION**

 

**REGISTRATION RIGHTS AGREEMENT**

 

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”)is made as of the 23rd day of June 2003, by and between The Immune ResponseCorporation, a corporation organized under the laws of the State of Delaware(the “Company”), with its principal offices at 5931 Darwin Court,Carlsbad, California 92008, and individuals and entities listed on Exhibit Aof that certain Purchase Agreement (as hereinafter defined) (the “Investors”).

 

WHEREAS, inconnection with that certain Purchase Agreement by and among the Company andthe Investors of even date herewith (the “Purchase Agreement”), the Company desires to sell to the Investors, and theInvestors desire to purchase from the Company, severally and not jointly, 12% promissory notes (“Note(s)”) and 166,665 shares of the Company’s common stock (“Common Stock”), par value$0.0025 per share (“Shares”),in the aggregate, for an aggregate purchase price of One Million Dollars($1,000,000); and

 

WHEREAS, to inducethe Investors to purchase the Note and Shares, the Company has agreed toregister the Shares and Contingent Shares (as defined in the PurchaseAgreement) pursuant to the termsof this Agreement;

 

NOW, THEREFORE, theCompany and the Investors hereby covenant and agree as follows:

 

1.                                       Certain Definitions. As used in this Agreement, the following terms shall have the followingrespective meanings:

 

“Commission” shall mean the Securities and ExchangeCommission, or any other federal agency at the time administering theSecurities Act.

 

“Eligible Securities” shall mean all RegistrableSecurities other than Excluded Securities.

 

“Exchange Act” shall mean the Securities Exchange Actof 1934 and the rules and regulations of the Commission thereunder, all as thesame shall be in effect at the time.

 

“Excluded Securities” shall mean RegistrableSecurities that are free of restriction on resale under the Securities Act (byremoval of all restrictive legends, instructions to transfer agent or otherwise)pursuant to Rule 144(k).

 

“Register,” “registered” and “registration” each shallrefer to a registration effected by preparing and filing a registrationstatement or statements or similar documents in compliance with the SecuritiesAct and the declaration or ordering of effectiveness of such registrationstatement or document by the Commission.

 

“Registrable Securities” shall mean the Shares andContingent Shares held by the Investors, but excluding any Shares andContingent Shares held by the Investors which (x) are

 

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eligible for resale under Rule 144(k) or (y) are sold by the Investorsin a transaction in which the Investors’ registration rights under thisAgreement have not been assigned.

 

“Securities Act” shall mean the Securities Act of1933, as amended, and the rules and regulations of the Commission thereunder,all as the same shall be in effect at the applicable time.

 

Capitalized terms used but not defined herein shallhave the meanings set forth in the Purchase Agreement.

 

2.                                       Piggyback Registration.

 

(a)                                  Ifthe Company, at any time during the two (2) year period commencing on the datehereof, proposes to register any of its securities under the Securities Act forsale to the public, whether for its own account or for the account of othersecurity holders or both (except with respect to registration statements onForms S-4, S-8 and any successor forms thereto as well as registrations that donot permit resales) (a “Piggyback Registration”), each such time it will givewritten notice to such effect to all holders of outstanding RegistrableSecurities at least thirty (30) days prior to such filing.  Upon the written request of any such holderreceived by the Company within twenty (20) days after the giving of any suchnotice by the Company to register any of its Eligible Securities, the Companywill cause the Eligible Securities as to which registration shall have been sorequested to be included in the securities to be covered by the registrationstatement proposed to be filed by the Company, all to the extent required topermit the sale or other disposition by the holder of such Eligible Securitiesso registered.

 

(b)                               Ifthe registration for which the Company gives notice pursuant to Section 2(a)above is a registered public offering involving an underwriting, the Companyshall so advise the holders as a part of the written notice given pursuant toSection 2(a) above.  In such event, (i)the right of any holder to include its Registrable Shares in such registrationpursuant to this Section 2 shall be conditioned upon such holder’sparticipation in such underwriting on the terms set forth herein and (ii) allholders including Registrable Shares in such registration shall enter into anunderwriting agreement with the underwriter or underwriters selected for theunderwriting by the Company.  If anyholder who has requested inclusion of its Registrable Shares in suchregistration as provided above disapproves of the terms of the underwriting,such holder may elect, by written notice to the Company, to withdraw its sharesfrom such registration statement and underwriting.  If the managing underwriter advises the Company in writing thatin its good faith determination marketing factors require a limitation on thenumber of shares to be underwritten, the shares to be included in theunderwriting shall be allocated, first to the Company, and second,to each of the holders requesting inclusion of their Registrable Securities insuch registration statement;*provided*,*however*, that the right ofthe underwriters to exclude the Registrable Shares from the registration andunderwriting as described above shall be restricted so that (i) the aggregatenumber of Registrable Shares included in any such registration for allInvestors is not  reduced belowtwenty-five percent (25%) of the shares included in the registration, fromwhich all Registrable Shares may be excluded and (ii) all shares that are notRegistrable Shares and are held by persons who are employees or directors ofthe Company (or

 

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any subsidiary of the Company) shall first be excluded from suchregistration and underwriting before any Registrable Shares are so excluded.The number of shares that may be included in such registration statement andunderwriting shall be allocated among all holders requesting registration inproportion, as nearly as practicable, to the respective number of shares ofCommon Stock held by them on the date the Company gives the notice specified inSection 2(a) above.  If any holder wouldthus be entitled to include more shares than such holder requested to beregistered, the excess shall be allocated among other requesting holders prorata in the manner described in the preceding sentence.

 

3.                                       Registration Procedures. If and whenever the Company is required by the provisions of Section 2hereof to use its reasonable commercial efforts to effect the registration ofany Registrable Securities under the Securities Act, the Company will, aspromptly as practicable:

 

(a)                                  prepareand file with the Commission a registration statement with respect to suchsecurities and use its reasonable commercial efforts to cause such registrationstatement to become effective not later than 60 days from the date of itsfiling;

 

(b)                                 prepareand file with the Commission such amendments and supplements to suchregistration statement and the prospectus used in connection therewith as maybe necessary to keep such registration statement effective and comply with theprovisions of the Securities Act with respect to the disposition of allRegistrable Securities covered by such registration statement in accordancewith the intended method of disposition set forth in such registrationstatement for such period;

 

(c)                                  furnishto each seller of Registrable Securities and to each underwriter such number ofcopies of the registration statement and the prospectus included therein(including each preliminary prospectus) as such persons reasonably may requestin order to facilitate the intended disposition of the Registrable Securitiescovered by such registration statement;

 

(d)                                 useits reasonable commercial efforts (i) to register or qualify the RegistrableSecurities covered by such registration statement under the securities or “bluesky” laws of such jurisdictions as the sellers of Registrable Securities or, inthe case of an underwritten public offering, the managing underwriter,reasonably shall request, (ii) to prepare and file in those jurisdictions suchamendments (including post-effective amendments) and supplements, and take suchother actions, as may be reasonably necessary to maintain such registration andqualification in effect at all times for the period of distributioncontemplated thereby and (iii) to take such further action as may be reasonablynecessary or advisable to enable the disposition of the Registrable Securitiesin such jurisdictions, *provided*,that the Company shall not for any such purpose be required to qualifygenerally to transact business as a foreign corporation in any jurisdictionwhere it is not so qualified or to consent to general service of process in anysuch jurisdiction;

 

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(e)                                  useits reasonable commercial efforts to list the Registrable Securities covered bysuch registration statement with any securities exchange on which the CommonStock of the Company is then listed;

 

(f)                                    notify,as promptly as practicable, each seller of Registrable Securities and eachunderwriter under such registration statement, at any time when a prospectusrelating thereto is required to be delivered under the Securities Act, of thehappening of any event of which the Company has knowledge as a result of whichthe prospectus contained in such registration statement, as then in effect,includes any untrue statement of a material fact or omits 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 promptly amendor supplement such registration statement to correct any such untrue statementor omission;

 

(g)                                 notifyeach seller of Registrable Securities of the issuance by the Commission of anystop order suspending the effectiveness of the registration statement or theinitiation of any proceedings for that purpose and make every reasonable effortto prevent the issuance of any stop order and, if any stop order is issued, toobtain the lifting thereof at the earliest possible time;

 

(h)                                 ifthe offering is an underwritten offering, enter into a written agreement withthe managing underwriter selected in the manner herein provided in such formand containing such provisions as are usual and customary in the securitiesbusiness for such an arrangement between such underwriter and companies of theCompany’s size and investment stature, including, without limitation, customaryindemnification and contribution provisions;

 

(i)                                     ifthe offering is an underwritten offering, at the request of any seller ofRegistrable Securities, use its reasonable commercial efforts to furnish tosuch seller on the date that Registrable Securities are delivered to theunderwriters for sale pursuant to such registration: (i) a copy of an opiniondated such date of counsel representing the Company for the purposes of suchregistration, addressed to the underwriters, stating that such registrationstatement has become effective under the Securities Act and that (A) to thebest knowledge of such counsel, no stop order suspending the effectivenessthereof has been issued and no proceedings for that purpose have beeninstituted or are pending or contemplated under the Securities Act, (B) theregistration statement, the related prospectus and each amendment or supplementthereof comply as to form in all material respects with the requirements of theSecurities Act (except that such counsel need not express any opinion as tofinancial statements or other financial or statistical information containedtherein) and (C) to such other effects as reasonably may be requested bycounsel for the underwriters; and (ii) a copy of a letter dated such date fromthe independent public accountants retained by the Company, addressed to theunderwriters, stating that they are independent public accountants within themeaning of the Securities Act and that, in the opinion of such accountants, thefinancial statements of the Company included in the registration statement orthe prospectus, or any amendment or supplement thereof, comply as to form inall material respects with the applicable accounting requirements of theSecurities Act, and such letter shall additionally cover such other financialmatters (including information as to the period ending no more than fivebusiness days prior to the date of such letter) with respect to suchregistration as such underwriters reasonably may request;

 

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(j)                                     takeall actions reasonably necessary to facilitate the timely preparation anddelivery of certificates (not bearing any legend restricting the sale ortransfer of such securities) representing the Registrable Securities to be soldpursuant to the Registration Statement and to enable such certificates to be insuch denominations and registered in such names as the Investors or anyunderwriters may reasonably request; and

 

(k)                                  takeall other reasonable actions necessary to expedite and facilitate theregistration of the Registrable Securities pursuant to the RegistrationStatement.

 

4.                                       Obligationsof Holders.

 

Each holder of Registrable Securities shall furnish tothe Company such information regarding such holder, the number of RegistrableSecurities owned and proposed to be sold by it, the intended method ofdisposition of such securities and any other information as shall be requiredto effect the registration of the Registrable Securities, and cooperate withthe Company in preparing the registration statement and in complying with therequirements of the Securities Act.

 

5.                                       Expenses.                                           Allexpenses incurred by the Company in complying with Sections 2 and 3 including,without limitation, all registration and filing fees, printing expenses, feesand disbursements of counsel and independent public accountants for theCompany, fees and expenses (including counsel fees) incurred in connection withcomplying with state securities or “blue sky” laws, fees of the NASD, Inc.,fees of transfer agents and registrars and fees and disbursements of onecounsel for the sellers of Registrable Securities, but excluding any SellingExpenses, are called “Registration Expenses.” All underwriting discounts and selling commissions applicable to thesale of Registrable Securities are called “Selling Expenses.”

 

The Company will pay all Registration Expenses inconnection with any registration statement filed hereunder, and the SellingExpenses in connection with each such registration statement shall be borne bythe participating sellers in proportion to the number of Registrable Securitiessold by each or as they may otherwise agree.

 

6.                                       Indemnification and Contribution.

 

(a)                                  Inthe event of a registration of any of the Registrable Securities under theSecurities Act pursuant to the terms of this Agreement, the Company willindemnify and hold harmless and pay and reimburse, each seller of suchRegistrable Securities thereunder, each underwriter of such RegistrableSecurities thereunder and each other person, if any, who controls such selleror underwriter within the meaning of the Securities Act, against any losses,claims, damages or liabilities, joint or several, to which such seller,underwriter or controlling person may become subject under the Securities Actor otherwise, insofar as such losses, claims, damages or liabilities (oractions in respect thereof) arise out of or are based upon any untrue statementor alleged untrue statement of any material fact contained in any registrationstatement under which such Registrable Securities were registered under theSecurities Act pursuant hereto or any preliminary prospectus or finalprospectus contained therein, or any amendment or

 

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supplement thereof, or arise out of or are based upon the omission oralleged omission to state therein a material fact required to be stated thereinor necessary to make the statements therein not misleading, or any violation oralleged violation of the Securities Act or any state securities or “blue sky”laws and will reimburse each such seller, each such underwriter and each suchcontrolling person for any legal or other expenses reasonably incurred by themin connection with investigating or defending any such loss, claim, damage,liability or action; *provided*,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 theCompany’s reliance on an untrue statement or alleged untrue statement oromission or alleged omission so made in conformity with information furnishedby any such seller, any such underwriter or any such controlling person inwriting specifically for use in such registration statement or prospectus.

 

(b)                                 Inthe event of a registration of any of the Registrable Securities under theSecurities Act pursuant hereto each seller of such Registrable Securitiesthereunder, severally and not jointly, will indemnify and hold harmless theCompany, each person, if any, who controls the Company within the meaning ofthe Securities Act, each officer of the Company who signs the registrationstatement, each director of the Company, each underwriter and each person whocontrols any underwriter within the meaning of the Securities Act, against alllosses, claims, damages or liabilities, joint or several, to which the Companyor such officer, director, underwriter or controlling person may become subjectunder the Securities Act or otherwise, insofar as such losses, claims, damagesor liabilities (or actions in respect thereof) arise out of or are based uponreliance on any untrue statement or alleged untrue statement of any materialfact contained in the registration statement under which such RegistrableSecurities were registered under the Securities Act pursuant hereto or anypreliminary prospectus or final prospectus contained therein, or any amendmentor supplement thereof, or arise out of or are based upon the omission or allegedomission to state therein a material fact required to be stated therein ornecessary to make the statements therein not misleading, and will reimburse theCompany and each such officer, director, underwriter and controlling person forany legal or other expenses reasonably incurred by them in connection withinvestigating or defending any such loss, claim, damage, liability or action,provided, that such seller will be liable hereunder in any such case if andonly to the extent that any such loss, claim, damage or liability arises out ofor is based upon an untrue statement or alleged untrue statement or omission oralleged omission made in reliance upon and in conformity with informationpertaining to such seller, as such, furnished in writing to the Company by suchseller specifically for use in such registration statement or prospectus, andprovided, that the liability of each seller hereunder shall be limited to theproceeds received by such seller from the sale of Registrable Securitiescovered by such registration statement. Notwithstanding the foregoing, theindemnity provided in this Section 6(b) shall not apply to amounts paid insettlement of any such loss, claim, damage, liability or expense if suchsettlement is effected without the consent of such indemnified party andprovided further, that the Company shall not be liable in any such case to theextent that any such loss, claim, damage or liability (or action in respectthereof) arises out of or is based upon an untrue statement or alleged untrue statementor omission or alleged omission in such registration statement, which untruestatement or alleged untrue statement or omission or alleged omission iscompletely corrected in an amendment or supplement to the registrationstatement and the undersigned indemnitees thereafter fail to deliver or causeto be delivered such registration statement as so amended or supplemented priorto or concurrently with the sale of the Registrable Shares to the

 

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person asserting such loss, claim, damage or liability (or actions inrespect thereof) or expense after the Company has furnished the undersignedwith the same.

 

(c)                                  Promptlyafter receipt by an indemnified party hereunder of notice of the commencementof any action, such indemnified party shall, if a claim in respect thereof isto be made against the indemnifying party hereunder, notify the indemnifyingparty in writing thereof, but the omission so to notify the indemnifying partyshall not relieve it from any liability which it may have to such indemnifiedparty other than under this Section 6 and shall only relieve it from anyliability which it may have to such indemnified party under this Section 6 ifand to the extent the indemnifying party is materially prejudiced by suchomission.  In case any such action shallbe brought against any indemnified party and it shall notify the indemnifyingparty of the commencement thereof, the indemnifying party shall be entitled toparticipate in and, to the extent it shall wish, to assume and undertake thedefense thereof with counsel reasonably satisfactory to such indemnified party,and, after notice from the indemnifying party to such indemnified party of itselection so to assume and undertake the defense thereof, the indemnifying partyshall not be liable to such indemnified party under this Section 6 for anylegal expenses subsequently incurred by such indemnified party in connectionwith the defense thereof other than reasonable costs of investigation and ofliaison with counsel so selected, *provided*,that if the defendants in any such action include both the indemnified partyand the indemnifying party and the indemnified party shall have reasonablyconcluded based upon written advise of its counsel that there may be reasonabledefenses available to it which are different from or additional to thoseavailable to the indemnifying party or if the interests of the indemnifiedparty reasonably may be deemed to conflict with the interests of theindemnifying party, the indemnified party shall have the right to select aseparate counsel and to assume such legal defenses and otherwise to participatein the defense of such action, with the expenses and fees of such separatecounsel and other expenses related to such participation to be reimbursed bythe indemnifying party as incurred.

 

(d)                                 Inorder to provide for just and equitable contribution to joint liability underthe Securities Act in any case in which either (i) any holder of RegistrableSecurities exercising rights under this Agreement, or any controlling person ofany such holder, makes a claim for indemnification pursuant to this Section 6but it is judicially determined (by the entry of a final judgment or decree bya court of competent jurisdiction and the expiration of time to appeal or thedenial of the last right of appeal) that such indemnification may not beenforced in such case notwithstanding the fact that this Section 6 provides forindemnification in such case, or (ii) contribution under the Securities Act maybe required on the part of any such selling holder or any such controllingperson in circumstances for which indemnification is provided under thisSection 6; then, and in each such case, the Company and such holder willcontribute to the aggregate losses, claims, damages or liabilities to whichthey may be subject (after contribution from others) in such proportion so thatsuch holder is responsible for the portion represented by the percentage thatthe public offering price of its Registrable Securities offered by theregistration statement bears to the public offering price of all securitiesoffered by such registration statement, and the Company is responsible for theremaining portion; *provided*,that, in any such case, (A) no such holder will be required to contribute anyamount in excess of the public offering price of all such RegistrableSecurities offered by it pursuant to such registration statement and (B) noperson or entity guilty of fraudulent misrepresentation (within the meaning

 

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of Section 12(f) of the Securities Act) will be entitled tocontribution from any person or entity who was not guilty of such fraudulentmisrepresentation.

 

7.                                       Changes in Capital Stock.       If,and as often as, there is any change in the capital stock of the Company by wayof a stock split, stock dividend, combination or reclassification, or through amerger, consolidation, reorganization or recapitalization, or by any othermeans, appropriate adjustment shall be made in the provisions hereof so thatthe rights and privileges granted hereby shall continue as so changed.

 

8.                                       Representations and Warranties of the Company. The Company represents and warrantsto the Investor as follows:

 

(a)                                  Theexecution, delivery and performance of this Agreement by the Company have beenduly authorized by all requisite corporate action and will not violate anyprovision of law, any order of any court or other agency of government, theCertificate of Incorporation or By-laws of the Company or any provision of anyindenture, agreement or other instrument to which it or any or its propertiesor assets is bound, conflict with, result in a breach of or constitute (withdue notice or lapse of time or both) a default under any such indenture, agreementor other instrument or result in the creation or imposition of any lien, chargeor encumbrance of any nature whatsoever upon any of the properties or assets ofthe Company or its subsidiaries.

 

(b)                                 ThisAgreement has been duly executed and delivered by the Company and constitutesthe legal, valid and binding obligation of the Company, enforceable inaccordance with its terms, subject to any applicable bankruptcy, insolvency orother laws affecting the rights of creditors generally and to general equitableprinciples and the availability of specific performance.

 

9.                                       Miscellaneous.

 

(a)                                  Allcovenants and agreements contained in this Agreement by or on behalf of any ofthe parties hereto shall bind and inure to the benefit of the respectivesuccessors and assigns of the parties hereto (including without limitationtransferees of any Registrable Securities), whether so expressed or not.

 

(b)                                 Allnotices, requests, consents and other communications hereunder shall be inwriting and shall be delivered in person, mailed by certified or registeredmail, return receipt requested, or sent by telecopier or telex, addressed (i)if to the Company, to The Immune Response Corporation, at 5931 Darwin Court,Carlsbad, California 92008, or (b) if to the Investors at addresses as setforth at in the Purchase Agreement, or at such other address or addresses asmay have been furnished to the Company in writing; and (ii) if to anysubsequent holder of Registrable Securities, to it at such address as may havebeen furnished to the Company in writing by such holder; or, in any case, atsuch other address or addresses as shall have been furnished in writing to theCompany (in the case of a holder of Registrable Securities) or to the holdersof Registrable Securities (in the case of the Company) in accordance with theprovisions of this paragraph.

 

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(c)                                  ThisAgreement shall be governed by and construed in accordance with the laws of theState of New York applicable to contracts entered into and to be performedwholly within said State.

 

(d)                                 Allcontroversies which may arise between the parties concerning this Agreementshall be determined by arbitration pursuant to the rules then pertaining to theAmerican Arbitration Association in New York, New York.  Judgment on any award of any sucharbitration may be entered in the Supreme Court of the State of New York or inany other court having jurisdiction of the Person or Persons against whom such awardis rendered.  Any notice of such arbitrationor for the confirmation of any award in any arbitration shall be sufficient ifgiven in accordance with the provisions of this Agreement.  The parties agree that the determination ofthe arbitrators shall be binding and conclusive upon them.

 

(e)                                  ThisAgreement may not be amended or modified without the written consent of theCompany and the holders of at least a majority of the Registrable Securities.

 

(f)                                    Failureof any party to exercise any right or remedy under this Agreement or otherwise,or delay by a party in exercising such right or remedy, shall not operate as awaiver thereof.  No waiver shall beeffective unless and until it is in writing and signed by the party grantingthe waiver.

 

(g)                                 ThisAgreement may be executed in two or more counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the sameinstrument.

 

(h)                                 Ifany provision of this Agreement shall be held to be illegal, invalid orunenforceable, such illegality, invalidity or unenforceability shall attachonly to such provision and shall not in any manner affect or render illegal,invalid or unenforceable any other provision of this Agreement, and thisAgreement shall be carried out as if any such illegal, invalid or unenforceableprovision were not contained herein.

 

(i)                                     ThisAgreement constitutes the entire contract among the Company and the Purchasersrelative to the subject matter hereof and supersedes in its entirety any andall prior agreements, understandings and discussions with respect thereto.

 

(j)                                   Theheadings of the Sections of this Agreement are for convenience and shall not bythemselves determine the interpretation of this Agreement.

 

 

**[SignaturePage to Follow]**

 

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IN WITNESS WHEREOF,the undersigned have executed this Agreement as of the date first writtenabove.

 

 
|   | **THE IMMUNE RESPONSE CORPORATION** |
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