**Exhibit 10.146**

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**REGISTRATION RIGHTS AGREEMENT**

 

This RegistrationRights Agreement (this “Agreement”) is made and entered into as ofOctober 10, 2003, by and among The Immune Response Corporation, a Delawarecorporation (the “Company”), and the investors signatory hereto (each a“Purchaser” and collectively, the “Purchasers”).

 

This Agreement ismade pursuant to the Securities Purchase Agreement, dated as of the date hereofamong the Company and the Purchasers (the “Purchase Agreement”).

 

The Company andthe Purchasers hereby agree as follows:

 

# 1.             Definitions.  Capitalized terms used and not otherwisedefined herein that are defined in the Purchase Agreement shall have themeanings given such terms in the Purchase Agreement.  As used in this Agreement, the following terms shall have thefollowing meanings:

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“EffectivenessDate” means, with respect to the Registration Statement required to befiled hereunder, the earlier of (a) the 90th calendar day following the ClosingDate (120th calendar day in the event of a full review by theCommission) and (b) the fifth Trading Day following the date on which theCompany is notified by the Commission that the Registration Statement will notbe reviewed or is no longer subject to further review and comments.

 

“EffectivenessPeriod” shall have the meaning set forth in Section 2(a).

 

“Filing Date”means, with respect to the Registration Statement required to be filedhereunder, the 20th calendar day following the Closing Date;provided, however, that if any Holder fails to provide the Company with anyinformation that is required to be provided in the Registration Statement withrespect to such Holder (including the information required by Section 3(i)) orif counsel to a Holder or to the placement agent does not furnish comments tothe Company with respect to information that is required to be provided in theRegistration Statement, then the Filing Date shall be extended until three (3)Trading Days following the date of receipt of such information by the Company.

 

“Holder” or“Holders” means the holder or holders, as the case may be, from time totime of Registrable Securities.

 

“IndemnifiedParty” shall have the meaning set forth in Section 5(c).

 

“IndemnifyingParty” shall have the meaning set forth in Section 5(c).

 

“Losses”shall have the meaning set forth in Section 5(a).

 

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“Proceeding”means an action, claim, suit, investigation or proceeding (including, withoutlimitation, an investigation or partial proceeding, such as a deposition),whether commenced or threatened.

 

“Prospectus”means the prospectus included in the Registration Statement (including, withoutlimitation, a prospectus that includes any information previously omitted froma prospectus filed as part of an effective registration statement in relianceupon Rule 430A promulgated under the Securities Act), as amended orsupplemented by any prospectus supplement, with respect to the terms of theoffering of any portion of the Registrable Securities covered by theRegistration Statement, and all other amendments and supplements to theProspectus, including post-effective amendments, and all material incorporatedby reference or deemed to be incorporated by reference in such Prospectus.

 

“RegistrableSecurities” means the Shares, the Warrant Shares, the shares of CommonStock issuable upon exercise of the warrant issued to Rodman & Renshaw,Inc. in connection with the transactions contemplated by the Purchase Agreementand the shares of Common Stock issuable upon exercise of the warrant issued toCardinal, together with any shares of Common Stock issued or issuable upon anystock split, dividend or other distribution, recapitalization or similar eventwith respect to the foregoing or in connection with any anti-dilutionprovisions in the Warrant.

 

“RegistrationStatement” means the registration statements required to be filedhereunder, including (in each case) the Prospectus, amendments and supplementsto the registration statement or Prospectus, including pre- and post-effectiveamendments, all exhibits thereto, and all material incorporated by reference ordeemed to be incorporated by reference in the registration statement.

 

“Rule 415”means Rule 415 promulgated by the Commission pursuant to the Securities Act, assuch Rule may be amended from time to time, or any similar rule or regulationhereafter adopted by the Commission having substantially the same effect assuch Rule.

 

“Rule 424”means Rule 424 promulgated by the Commission pursuant to the Securities Act, assuch Rule may be amended from time to time, or any similar rule or regulationhereafter adopted by the Commission having substantially the same effect assuch Rule.

 

“Securities Act”means the Securities Act of 1933, as amended.

 

# 2.             Registration.

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## (a)           On or prior to the Filing Date, the Company shallprepare and file with the Commission the Registration Statement covering theresale of all of the Registrable Securities for an offering to be made on acontinuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-3(except if the Company is not then eligible to register for resale theRegistrable Securities on Form S-3, in which case the Registration Statementshall be on another appropriate form in accordance herewith), any may includesecurities for the Company’s own account and/or the account

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## of other holders of the Company’s securities.  The Registration Statement requiredhereunder shall contain (except if otherwise directed by the Holders) the “Planof Distribution” attached hereto as Annex A.  The Company shall cause the RegistrationStatement to become effective and remain effective as provided herein. TheCompany shall use its commercially reasonable efforts to cause the RegistrationStatement to be declared effective under the Securities Act as promptly aspossible after the filing thereof, but in any event not later than theEffectiveness Date, and shall use its commercially reasonable efforts to keepthe Registration Statement continuously effective under the Securities Actuntil the earlier of (a) twenty-four months after the Effectiveness Date of theRegistration Statement or (b) may be sold without volume restrictions pursuantto Rule 144(k) under the Securities Act or any other rule of similar effect asdetermined by the counsel to the Company pursuant to a written opinion letterto such effect, addressed and acceptable to the Company’s transfer agent andthe affected Holders (the “Effectiveness Period”).

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## (b)           If: (i) a Registration Statement is not filed on orprior to its Filing Date (if the Company files a Registration Statement withoutaffording Feldman Weinstein LLP as special counsel for the Holders for purposesof such review only, the opportunity to review and comment on the same asrequired by Section 3(a), the Company shall not be deemed to have satisfiedthis clause (i)); or (ii) the Company fails to file with the Commission arequest for acceleration in accordance with Rule 461 promulgated under theSecurities Act, within five Trading Days of the date that the Company isnotified (orally or in writing, whichever is earlier) by the Commission that aRegistration Statement will not be “reviewed,” or not subject to furtherreview, or (iii) prior to the date when such Registration Statement is firstdeclared effective by the Commission, the Company fails to file a pre-effectiveamendment and otherwise respond in writing to comments made by the Commissionin respect of such Registration Statement within ten Trading Days after thereceipt of comments by or notice from the Commission that such amendment isrequired in order for a Registration Statement to be declared effective, or(iv) a Registration Statement filed or required to be filed hereunder is notdeclared effective by the Commission on or before the Effectiveness Date, or(v) after a Registration Statement is first declared effective by theCommission, it ceases for any reason to remain continuously effective as to allRegistrable Securities for which it is required to be effective, or the Holdersare not permitted to utilize the Prospectus therein to resell such RegistrableSecurities, for in any such cases twenty Trading Days (which need not beconsecutive days) in the aggregate during any 12-month period (any such failureor breach being referred to as an “Event,” and for purposes of clause(i) or (iv) the date on which such Event occurs, or for purposes of clause (ii)the date on which such five Trading Day period is exceeded, or for purposes ofclauses (iii) the date which such ten Trading Day period is exceeded, or forpurposes of clause (v) the date on which such twenty Trading Day period isexceeded being referred to as “Event Date”), then in addition to anyother rights the Holders may have hereunder or under applicable law on eachmonthly anniversary of each such Event Date (if the applicable Event shall nothave been cured by such date) until the applicable Event is cured, the Companyshall pay to each Holder an amount in cash, as liquidated damages and not as apenalty, equal to 2% of the aggregate purchase price paid by such Holderpursuant to the Purchase Agreement for any Registrable Securities then held bysuch Holder.  If the Company fails to payany

 

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liquidateddamages pursuant to this Section in full within seven days after the datepayable, the Company will pay interest thereon at a rate of 18% per annum (orsuch lesser maximum amount that is permitted to be paid by applicable law) tothe Holder, accruing daily from the date such liquidated damages are due untilsuch amounts, plus all such interest thereon, are paid in full.  The liquidated damages pursuant to the termshereof shall apply on a pro-rata basis for any portion of a month prior to thecure of an Event.

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## (c)           If during the Effectiveness Period, the number ofRegistrable Securities at any time exceeds 100% of the number of shares ofCommon Stock then registered in a Registration Statement, then the Companyshall file as soon as reasonably practicable but in any case prior to the 30thday following the date such number is exceeded, an additional RegistrationStatement covering the resale of by the Holders of not less than all of suchRegistrable Securities and the Company shall use commercially reasonableefforts to cause such Registration Statement to be declared effective as soonas reasonably practicable thereafter.

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# 3.             Registration Procedures

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In connection withthe Company’s registration obligations hereunder, the Company shall:

 

## (a)           Not less than three Trading Days prior to the filingof the Registration Statement or any related Prospectus or any amendment orsupplement thereto, the Company shall, (i) furnish to Feldman Weinstein LLP, asspecial counsel for the Holders for the purposes of such review only, copies ofall such documents proposed to be filed (including documents incorporated ordeemed incorporated by reference to the extent requested by such Person) whichdocuments will be subject to the review of such Holders, and (ii) cause itsofficers and directors, counsel and independent certified public accountants torespond to such inquiries as shall be necessary, in the reasonable opinion ofrespective counsel to conduct a reasonable investigation within the meaning ofthe Securities Act.  The Company shallnot file the Registration Statement or any such Prospectus or any amendments orsupplements thereto to which the Holders of a majority of the RegistrableSecurities shall reasonably object in good faith. The failure of such specialcounsel to respond within the specified time may be accepted by the Company asa lack of any objections.

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## (b)           (i) Prepare and file with the Commission suchamendments, including post-effective amendments, to the Registration Statementand the Prospectus used in connection therewith as may be necessary to keep theRegistration Statement continuously effective as to the applicable RegistrableSecurities for the Effectiveness Period and prepare and file with theCommission such additional Registration Statements in order to register forresale under the Securities Act all of the Registrable Securities; (ii) causethe related Prospectus to be amended or supplemented by any required Prospectussupplement, and as so supplemented or amended to be filed pursuant to Rule 424;(iii) respond as promptly as reasonably possible to any comments received fromthe Commission with respect to the Registration Statement or any amendmentthereto and, as

 

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## promptly as reasonably possible, upon request, providethe Holders true and complete copies of all correspondence from and to theCommission relating to the Registration Statement; and (iv) comply in allmaterial respects with the provisions of the Securities Act and the ExchangeAct with respect to the disposition of all Registrable Securities covered bythe Registration Statement during the applicable period in accordance with theintended methods of disposition by the Holders thereof set forth in the RegistrationStatement as so amended or in such Prospectus as so supplemented.

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## (c)           Notify Feldman Weinstein, LLP, and in the case ofsubclasses (iii) through (v) the Holders of Registrable Securities, as promptlyas reasonably possible (and, in the case of (i)(A) below, not less than twoTrading Days prior to such filing) and (if requested by any such Person)confirm such notice in writing promptly following the day (i)(A) when aProspectus or any Prospectus supplement or post-effective amendment to theRegistration Statement is proposed to be filed; (B) when the Commissionnotifies the Company whether there will be a “review” of the RegistrationStatement and whenever the Commission comments in writing on the RegistrationStatement (the Company shall upon request provide true and complete copiesthereof and all written responses thereto to each of the Holders); and (C) withrespect to the Registration Statement or any post-effective amendment, when thesame has become effective; (ii) of any request by the Commission or any otherFederal or state governmental authority during the period of effectiveness ofthe Registration Statement for amendments or supplements to the RegistrationStatement or Prospectus or for additional information; (iii) of the issuance bythe Commission or any other federal or state governmental authority of any stoporder suspending the effectiveness of the Registration Statement covering anyor all of the Registrable Securities or the initiation of any Proceedings forthat purpose; (iv) of the receipt by the Company of any notification withrespect to the suspension of the qualification or exemption from qualificationof any of the Registrable Securities for sale in any jurisdiction, or theinitiation or threat in writing of any Proceeding for such purpose; and (v) ofthe occurrence of any event or passage of time that makes the financialstatements included in the Registration Statement ineligible for inclusiontherein or any statement made in the Registration Statement or Prospectus orany document incorporated or deemed to be incorporated therein by referenceuntrue in any material respect or that requires any revisions to theRegistration Statement, Prospectus or other documents so that, in the case ofthe Registration Statement or the Prospectus, as the case may be, it will notcontain any untrue statement of a material fact or omit to state any materialfact required to be stated therein or necessary to make the statements therein,in light of the circumstances under which they were made, not misleading.  Each Holder hereby covenants to comply withthe covenants set forth in the Purchase Agreement.

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## (d)           Use its commercially reasonable efforts to avoid theissuance of, or, if issued, obtain the withdrawal of (i) any order suspendingthe effectiveness of the Registration Statement, or (ii) any suspension of thequalification (or exemption from qualification) of any of the RegistrableSecurities for sale in any jurisdiction, at the earliest practicable moment.

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## (e)           Furnish to each Holder, without charge, at least oneconformed copy of the Registration Statement and each amendment thereto,including, to the extent requested by

 

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## such Holder, financial statements and schedules, alldocuments incorporated or deemed to be incorporated therein by reference andall exhibits (including those previously furnished or incorporated byreference) promptly after the filing of such documents with the Commission, ineach case only if such document is not available on-line on the Company’s orEDGAR’s website.

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## (f)            Promptly deliver to each Holder, without charge, asmany copies of the Prospectus or Prospectuses (including each form ofprospectus) and each amendment or supplement thereto as such Holder mayreasonably request in connection with resales by the Holder of RegistrableSecurities.  The Company hereby consentsto the use of such Prospectus and each amendment or supplement thereto by eachof the selling Holders in connection with the offering and sale of the RegistrableSecurities covered by such Prospectus and any amendment or supplement thereto,except after the giving on any notice pursuant to Section 3(c).

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## (g)           Prior to any resale of Registrable Securities by aHolder, use its commercially reasonable efforts to register or qualify orcooperate with the selling Holders in connection with the registration orqualification (or exemption from the registration or qualification) of suchRegistrable Securities for the resale by the Holder under the securities or BlueSky laws of such jurisdictions within the United States as any Holderreasonably requests in writing, to keep each the registration or qualification(or exemption therefrom) effective during the Effectiveness Period and to doany and all other acts or things reasonably necessary to enable the dispositionin such jurisdictions of the Registrable Securities covered by the RegistrationStatement; provided, that the Company shall not be required to qualifygenerally to do business in any jurisdiction where it is not then so qualified,subject the Company to any material tax in any such jurisdiction where it isnot then so subject or file a general consent to service of process in any suchjurisdiction.

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## (h)           If requested by the Holders, cooperate with the Holdersto facilitate the timely preparation and delivery of certificates representingRegistrable Securities to be delivered to a transferee pursuant to theRegistration Statement, which certificates shall be free, to the extentpermitted by the Purchase Agreement, of all restrictive legends, and to enablesuch Registrable Securities to be in such denominations and registered in suchnames as any such Holders may request.

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## (i)            Upon the occurrence of any event contemplated bySection 3(c)(v), as promptly as reasonably possible, prepare a supplement oramendment, including a post-effective amendment, to the Registration Statementor a supplement to the related Prospectus or any document incorporated ordeemed to be incorporated therein by reference, and file any other requireddocument so that, as thereafter delivered, neither the Registration Statementnor such Prospectus will contain an untrue statement of a material fact or omitto state a material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances under which they were made,not misleading.

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## (j)            Comply with all applicable rules and regulations ofthe Commission.

 

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## (k)           The Company may require each selling Holder to furnishto the Company a certified statement as to the number of shares of Common Stockbeneficially owned by such Holder and, if required by the Commission, theperson thereof that has voting and dispositive control over the Shares and anyother information required to effect the registration of the RegistrableSecurities.

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# 4.             Registration Expenses.  All fees and expenses incident to theperformance of or compliance with this Agreement by the Company shall be borneby the Company whether or not any Registrable Securities are sold pursuant tothe Registration Statement.  The feesand expenses referred to in the foregoing sentence shall include, withoutlimitation, (i) all registration and filing fees (including, withoutlimitation, fees and expenses (A) with respect to filings required to be madewith the Trading Market on which the Common Stock is then listed for trading,and (B) in compliance with applicable state securities or Blue Sky laws), (ii)printing expenses (including, without limitation, expenses of printingcertificates for Registrable Securities and of printing prospectuses if theprinting of prospectuses is reasonably requested by the holders of a majorityof the Registrable Securities included in the Registration Statement), (iii) messenger,telephone and delivery expenses incurred by the Company, (iv) fees anddisbursements of counsel for the Company, (v) Securities Act liabilityinsurance, if the Company so desires such insurance, and (vi) fees and expensesof all other Persons retained by the Company in connection with theconsummation of the transactions contemplated by this Agreement.  In addition, the Company shall beresponsible for all of its internal expenses incurred in connection with theconsummation of the transactions contemplated by this Agreement (including,without limitation, all salaries and expenses of its officers and employeesperforming legal or accounting duties), the expense of any annual audit and thefees and expenses incurred in connection with the listing of the RegistrableSecurities on any securities exchange as required hereunder.  Notwithstanding the foregoing, allunderwriting discounts, brokerage fees and commission incurred by the Holdersshall be borne by the Holders.

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# 5.             Indemnification

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## (a)           Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement,indemnify and hold harmless each Holder, the officers, directors, agents andemployees of each of them, each Person who controls any such Holder (within themeaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)and the officers, directors, agents and employees of each such controllingPerson, to the fullest extent permitted by applicable law, from and against anyand all losses, claims, damages, liabilities, costs (including, withoutlimitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”),as incurred,  to the extent arising outof or relating to any untrue or alleged untrue statement of a material factcontained in the Registration Statement, any Prospectus or any form ofprospectus or in any amendment or supplement thereto or in any preliminaryprospectus, or arising out of or relating to any omission or alleged omissionof a material fact required to be stated therein or necessary to make thestatements therein (in the case of any Prospectus or form of prospectus orsupplement thereto, in light of the circumstances under which they were made)not misleading, except to the extent, but only to the extent, that (1) suchuntrue statements or omissions are based solely upon information regarding suchHolder furnished in writing to the Company by such Holder expressly for usetherein, or to the

 

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## extent that such information relates to such Holder orsuch Holder’s proposed method of distribution of Registrable Securities and wasreviewed and expressly approved in writing by such Holder expressly for use inthe Registration Statement, such Prospectus or such form of Prospectus or inany amendment or supplement thereto (it being understood that the Holder hasapproved Annex A hereto for this purpose) or (2) in the case of an occurrenceof an event of the type specified in Section 3(c)(ii)-(v), the use by suchHolder of an outdated or defective Prospectus after the Company has notifiedsuch Holder in writing that the Prospectus is outdated or defective and priorto the receipt by such Holder of the Advice contemplated in Section 6(d).  The Company shall notify the Holders promptlyof the institution, threat or assertion of any Proceeding of which the Companyis aware in connection with the transactions contemplated by this Agreement.

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## (b)           Indemnification by Holders. Each Holder shall, severally and notjointly, indemnify and hold harmless the Company, its directors, officers,agents and employees, each Person who controls the Company (within the meaningof Section 15 of the Securities Act and Section 20 of the Exchange Act), andthe directors, officers, agents or employees of such controlling Persons, tothe fullest extent permitted by applicable law, from and against all Losses, asincurred, to the extent arising out of or based upon: (x) such Holder’s failureto comply with the prospectus delivery requirements of the Securities Act or(y) any untrue or alleged untrue statement of a material fact contained in anyRegistration Statement, any Prospectus, or any form of prospectus, or in anyamendment or supplement thereto or in any preliminary prospectus, or arisingout of or relating to any omission or alleged omission of a material factrequired to be stated therein or necessary to make the statements therein notmisleading (i) to the extent, but only to the extent, that such untruestatement or omission is contained in any information so furnished in writingby such Holder to the Company specifically for inclusion in the RegistrationStatement or such Prospectus or (ii) to the extent that (1) such untruestatements or omissions are based solely upon information regarding such Holderfurnished in writing to the Company by such Holder expressly for use therein,or to the extent that such information relates to such Holder or such Holder’sproposed method of distribution of Registrable Securities and was reviewed andexpressly approved in writing by such Holder expressly for use in theRegistration Statement (it being understood that the Holder has approved AnnexA hereto for this purpose), such Prospectus or such form of Prospectus or inany amendment or supplement thereto or (2) in the case of an occurrence of anevent of the type specified in Section 3(c)(ii)-(v), the use by such Holder ofan outdated or defective Prospectus after the Company has notified such Holderin writing that the Prospectus is outdated or defective and prior to thereceipt by such Holder of the Advice contemplated in Section 6(d).  In no event shall the liability of anyselling Holder hereunder be greater in amount than the dollar amount of the netproceeds received by such Holder upon the sale of the Registrable Securitiesgiving rise to such indemnification obligation.

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## (c)           Conduct of Indemnification Proceedings. If any Proceeding shall be brought orasserted against any Person entitled to indemnity hereunder (an “IndemnifiedParty”), such Indemnified Party shall promptly notify the Person from whomindemnity is sought (the “Indemnifying Party”) in writing, and theIndemnifying Party shall have the right to assume the defense thereof,including the employment of counsel reasonably

 

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## satisfactory to the Indemnified Party and the paymentof all fees and expenses incurred in connection with defense thereof; provided,that the failure of any Indemnified Party to give such notice shall not relievethe Indemnifying Party of its obligations or liabilities pursuant to thisAgreement, except (and only) to the extent that it shall be finally determinedby a court of competent jurisdiction (which determination is not subject toappeal or further review) that such failure shall have prejudiced theIndemnifying Party.

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An IndemnifiedParty shall have the right to employ separate counsel in any such Proceedingand to participate in the defense thereof, but the fees and expenses of suchcounsel shall be at the expense of such Indemnified Party or Partiesunless:  (1) the Indemnifying Party hasagreed in writing to pay such fees and expenses; (2) the Indemnifying Partyshall have failed promptly to assume the defense of such Proceeding and to employcounsel reasonably satisfactory to such Indemnified Party in any suchProceeding; or (3) the named parties to any such Proceeding (including anyimpleaded parties) include both such Indemnified Party and the IndemnifyingParty, and such Indemnified Party shall have been advised by counsel that aconflict of interest is likely to exist if the same counsel were to representsuch Indemnified Party and the Indemnifying Party (in which case, if suchIndemnified Party notifies the Indemnifying Party in writing that it elects toemploy separate counsel at the expense of the Indemnifying Party, theIndemnifying Party shall not have the right to assume the defense thereof andthe reasonable fees and expenses of one separate counsel shall be at theexpense of the Indemnifying Party).  TheIndemnifying Party shall not be liable for any settlement of any suchProceeding effected without its written consent, which consent shall not beunreasonably withheld.  No IndemnifyingParty shall, without the prior written consent of the Indemnified Party, effectany settlement of any pending Proceeding in respect of which any IndemnifiedParty is a party, unless such settlement includes an unconditional release ofsuch Indemnified Party from all liability on claims that are the subject matterof such Proceeding.

 

All reasonablefees and expenses of the Indemnified Party (including reasonable fees andexpenses to the extent incurred in connection with investigating or preparingto defend such Proceeding in a manner not inconsistent with this Section) shallbe paid to the Indemnified Party, as incurred, within ten Trading Days ofwritten notice thereof to the Indemnifying Party; provided, that theIndemnified Party shall promptly reimburse the Indemnifying Party for thatportion of such fees and expenses applicable to such actions for which suchIndemnified Party is not entitled to indemnification hereunder, determinedbased upon the relative faults of the parties.

 

## (d)           Contribution.  If a claimfor indemnification under Section 5(a) or 5(b) is unavailable to an IndemnifiedParty (by reason of public policy or otherwise), then each Indemnifying Party,in lieu of indemnifying such Indemnified Party, shall contribute to the amountpaid or payable by such Indemnified Party as a result of such Losses, in suchproportion as is appropriate to reflect the relative fault of the IndemnifyingParty and Indemnified Party in connection with the actions, statements oromissions that resulted in such Losses as well as any other relevant equitableconsiderations.  The relative fault of suchIndemnifying Party and Indemnified Party shall be determined by reference to,among other things, whether any action in question, including any untrue oralleged

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## untrue statement of a material fact or omission oralleged omission of a material fact, has been taken or made by, or relates toinformation supplied by, such Indemnifying Party or Indemnified Party, and theparties’ relative intent, knowledge, access to information and opportunity tocorrect or prevent such action, statement or omission.  The amount paid or payable by a party as aresult of any Losses shall be deemed to include, subject to the limitations setforth in Section 5(c), any reasonable attorneys’ or other reasonable fees orexpenses incurred by such party in connection with any Proceeding to the extentsuch party would have been indemnified for such fees or expenses if theindemnification provided for in this Section was available to such party inaccordance with its terms.

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The parties hereto agree that it would not be just andequitable if contribution pursuant to this Section 5(d) were determined by prorata allocation or by any other method of allocation that does not take intoaccount the equitable considerations referred to in the immediately precedingparagraph.  Notwithstanding theprovisions of this Section 5(d), no Holder shall be required to contribute, inthe aggregate, any amount in excess of the amount by which the proceeds actuallyreceived by such Holder from the sale of the Registrable Securities subject tothe Proceeding exceeds the amount of any damages that such Holder has otherwisebeen required to pay by reason of such untrue or alleged untrue statement oromission or alleged omission, except in the case of fraud by such Holder.  The indemnity and contribution agreementscontained in this Section are in addition to any liability that theIndemnifying Parties may have to the Indemnified Parties.

 

# 6.             Miscellaneous

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## (a)           Remedies.  In the eventof a breach by the Company or by a Holder, of any of their obligations underthis Agreement, each Holder or the Company, as the case may be, in addition tobeing entitled to exercise all rights granted by law and under this Agreement,including recovery of damages, will be entitled to specific performance of itsrights under this Agreement.  TheCompany and each Holder agree that monetary damages would not provide adequatecompensation for any losses incurred by reason of a breach by it of any of theprovisions of this Agreement and hereby further agrees that, in the event ofany action for specific performance in respect of such breach, it shall waivethe defense that a remedy at law would be adequate.

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## (b)           Intentionally Omitted.

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## (c)           Compliance.  Each Holdercovenants and agrees that it will comply with the prospectus deliveryrequirements of the Securities Act as applicable to it in connection with salesof Registrable Securities pursuant to the Registration Statement.

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## (d)           Discontinued Disposition. Each Holder agrees by its acquisition of such Registrable Securitiesthat, upon receipt of a notice from the Company of the occurrence of any eventof the kind described in Section 3(c), such Holder will forthwith discontinuedisposition of such Registrable Securities under the Registration Statementuntil such Holder’s receipt of the copies of the supplemented Prospectus and/oramended Registration Statement or until it is advised in writing (the “Advice”)by the Company

 

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## that the use of the applicable Prospectus may beresumed, and, in either case, has received copies of any additional orsupplemental filings that are incorporated or deemed to be incorporated byreference in such Prospectus or Registration Statement.  The Company may provide appropriate stoporders to enforce the provisions of this paragraph.

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## (e)           Piggy-Back Registrations. If at any time during the Effectiveness Period there is not an effectiveRegistration Statement covering all of the Registrable Securities and theCompany shall determine to prepare and file with the Commission a registrationstatement relating to an offering for its own account or the account of othersunder the Securities Act of any of its equity securities, other than on FormS-4 or Form S-8 (each as promulgated under the Securities Act) or their thenequivalents relating to equity securities to be issued solely in connectionwith any acquisition of any entity or business or equity securities issuable inconnection with the stock option or other employee benefit plans, then theCompany shall send to each Holder a written notice of such determination and,if within fifteen days after the date of such notice, any such Holder shall sorequest in writing, the Company shall include in such registration statementall or any part of such Registrable Securities such Holder requests to beregistered, subject to customary underwriter cutbacks applicable to all holdersof registration rights.

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## (f)            Amendments and Waivers.  Theprovisions of this Agreement, including the provisions of this sentence, maynot be amended, modified or supplemented, and waivers or consents to departuresfrom the provisions hereof may not be given, unless the same shall be inwriting and signed by the Company and each Holder of the then outstandingRegistrable Securities.

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## (g)           Notices.  Any and allnotices or other communications or deliveries required or permitted to beprovided hereunder shall be in writing and shall be deemed given and effectiveon the earliest of (a) the date of transmission, if such notice orcommunication is delivered via facsimile at the facsimile number in thePurchase Agreement specified on the signature pages attached thereto prior to6:30 p.m. (New York City time) on a Trading Day and electronic confirmation ofsuccessful transmission is received, (b) the next Trading Day after the date oftransmission, if such notice or communication is delivered via facsimile at thefacsimile number on the signature pages attached thereto on a day that is not aTrading Day or later than 6:30 p.m. (New York City time) on any Trading Day,(c) the Trading Day following the date of mailing, if sent by U.S. nationallyrecognized overnight courier service, or (d) upon actual receipt by the partyto whom such notice is required to be given. The address for such notices and communications shall be as set forth inthe Purchase Agreement

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## (h)           Successors and Assigns.  ThisAgreement shall inure to the benefit of and be binding upon the successors andpermitted assigns of each of the parties and shall inure to the benefit of eachHolder.  Each Holder may assign theirrespective rights hereunder in the manner and to the Persons as permitted underthe Purchase Agreement.

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## (i)            Execution and Counterparts. This Agreement may be executed in any number of counterparts, each ofwhich when so executed shall be deemed to be an

 

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## original and, all of which taken together shallconstitute one and the same Agreement. In the event that any signature is delivered by facsimile transmission,such signature shall create a valid binding obligation of the party executing(or on whose behalf such signature is executed) the same with the same forceand effect as if such facsimile signature were the original thereof.

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## (j)            Governing Law.  Allquestions concerning the construction, validity, enforcement and interpretationof this Agreement shall be governed by and construed and enforced in accordancewith the internal laws of the State of New York, without regard to theprinciples of conflicts of law thereof. Each party agrees that all legal proceedings concerning theinterpretations, enforcement and defense of the transactions contemplated bythis Agreement (whether brought against a party hereto or its respectiveaffiliates, directors, officers, shareholders, employees or agents) shall becommenced exclusively in the state and federal courts sitting in the City ofNew York, New York.  Each party heretohereby irrevocably submits to the exclusive jurisdiction of the state andfederal courts sitting in the City of New York, New York for the adjudicationof any dispute hereunder or in connection herewith or with any transactioncontemplated hereby or discussed herein (including with respect to theenforcement of this Agreement), and hereby irrevocably waives, and agrees notto assert in any suit, action or proceeding, any claim that it is notpersonally subject to the jurisdiction of any such court, that such suit,action or proceeding is improper.  Eachparty hereto hereby irrevocably waives personal service of process and consentsto process being served in any such suit, action or proceeding by delivering acopy thereof via overnight delivery (with evidence of delivery) to such partyat the address in effect for notices to it under this Agreement and agrees thatsuch service shall constitute good and sufficient service of process and noticethereof.  Nothing contained herein shallbe deemed to limit in any way any right to serve process in any mannerpermitted by law. Each party hereto hereby irrevocably waives, to the fullestextent permitted by applicable law, any and all right to trial by jury in anylegal proceeding arising out of or relating to this Agreement or thetransactions contemplated hereby. If either party shall commence an action orproceeding to enforce any provisions of this Agreement, then the prevailingparty in such action or proceeding shall be reimbursed by the other party forits attorneys fees and other costs and expenses incurred with the investigation,preparation and prosecution of such action or proceeding.

##  

## (k)           Cumulative Remedies.  The remediesprovided herein are cumulative and not exclusive of any remedies provided bylaw.

##  

## (l)            Severability. If any term, provision, covenant or restriction ofthis Agreement is held by a court of competent jurisdiction to be invalid,illegal, void or unenforceable, the remainder of the terms, provisions,covenants and restrictions set forth herein shall remain in full force andeffect and shall in no way be affected, impaired or invalidated, and theparties hereto shall use their commercially reasonable efforts to find andemploy an alternative means to achieve the same or substantially the sameresult as that contemplated by such term, provision, covenant orrestriction.  It is hereby stipulatedand declared to be the intention of the parties that they would have executedthe remaining terms, provisions, covenants and restrictions without includingany of such that may be hereafter declared invalid, illegal, void orunenforceable.

 

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## (m)          Headings.  The headingsin this Agreement are for convenience of reference only and shall not limit orotherwise affect the meaning hereof.

##  

## (n)           Independent Nature of Purchasers’ Obligations andRights.  The obligations of each Purchaser hereunderis several and not joint with the obligations of any other Purchaser hereunder,and no Purchaser shall be responsible in any way for the performance of theobligations of any other Purchaser hereunder. Nothing contained herein or in any other agreement or document deliveredat any closing, and no action taken by any Purchaser pursuant hereto orthereto, shall be deemed to constitute the Purchasers as a partnership, anassociation, a joint venture or any other kind of entity, or create apresumption that the Purchasers are in any way acting in concert with respectto such obligations or the transactions contemplated by this Agreement.  Each Purchaser shall be entitled to protectand enforce its rights, including without limitation the rights arising out ofthis Agreement, and it shall not be necessary for any other Purchaser to bejoined as an additional party in any proceeding for such purpose.

##  

## (o)           Entire Agreement.  TheTransaction Documents, together with the exhibits and schedules thereto,contain the entire understanding of the parties with respect to the subjectmatter hereof and supersede all prior agreements and understandings, oral orwritten, with respect to such matters, which the parties acknowledge have beenmerged into such documents, exhibits and schedules.

##  

*************************

 

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INWITNESS WHEREOF, the parties have executed this Registration Rights Agreementas of the date first written above.

 
|   |   |   |   |                                          | **IMMUNE RESPONSE CORPORATION** |
|--------|--------|--------|--------|-----------------------------------------------|---------------------------------|
|   |   |   |   |                                          |                            |
|   |   |   |   |                                          | By:                             | /s/ John M.  Bonfiglio |   |
|   |   |   |   |                                          |                            | Name: John M.  Bonfiglio |
|   |   |   |   |                                          |                            | Title: Chief  Executive Officer |
|   |   |   |   |                                          |                            |   |
|   |   |   |   | [PURCHASERS’  SIGNATURE PAGES TO FOLLOW] |
|        |        |        |        |                                               |                                 |  |  |  |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Alpha Capital Aktiengesellschaft

 
| By:    |  /s/ Thomas  Hackl |   |
|--------|-------------------------|--------|
|   | Name: Thomas  Hackl     |
|   | Title: Director         |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

BRISTOL INVESTMENTFUND, LTD.

 
| By:    |  /s/ Paul  Kessler |   |
|--------|-------------------------|--------|
|   | Name: Paul  Kessler     |
|   | Title: Director         |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

CohanzickPartners, L.P.

 
| By:    |  /s/ David  K. Sherman |   |
|--------|-----------------------------|--------|
|   | Name: David K.  Sherman     |
|   | Title:  Authorized Agent    |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

Cranshire CapitalL.P.

 
| By:    |  /s/ Keith  Goodman                   |   |
|--------|--------------------------------------------|--------|
|   | Name: Keith  Goodman                       |
|   | Title: CFO  -  Downsview Capital, Inc |
|   | THE GENERAL  PARTNER                       |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

CRESCENTINTERNATIONAL LTD.

 
| By:    |  /s/ Mel  Craw Maxi Brezzi |   |
|--------|---------------------------------|--------|
|   | Name: Mel Craw  Maxi Brezzi     |
|   | Title:  Authorized Signatories  |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity: Colbart Birnet LP

 
| By:    |  /s/ Ezra  Birnbaum |   |
|--------|--------------------------|--------|
|   | Name: Ezra  Birnbaum     |
|   | Title: Member            |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity: ELLIS INTERNATIONAL

 
| By:    |  /s/ John  Cabot |   |
|--------|-----------------------|--------|
|   | Name: John Cabot      |
|   | Title: Officer        |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:  ENABLE GROWTH PARTNERS LP

 
| By:    |  /s/  Mitchell Levine |   |
|--------|----------------------------|--------|
|   | Name: Mitchell  Levine     |
|   | Title: Managing  Partner   |

 

22

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

Gabriel Capital, L.P.

 
| By:    |  /s/ David  K. Sherman |   |
|--------|-----------------------------|--------|
|   | Name: David K.  Sherman     |
|   | Title:  Authorized Agent    |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Gamma OpportunityCapital Partners, LP:

 
| By:    |  /s/  Christopher Rossman |   |
|--------|--------------------------------|--------|
|   | Name:  Christopher Rossman     |
|   | Title: Managing  Director      |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

GRYPHON MASTERFUND, LP

 
| By:    |  /s/  Michael Scholten |   |
|--------|-----------------------------|--------|
|   | Name: Michael  Scholten     |
|   | Title:  Authorized Agent    |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

LANGLEY PARTNERS,L.P.

 
| By:    |  /s/  Jeffrey Thorp |                                      |
|--------|--------------------------|-------------------------------------------|
|   | Name: Jeffrey  Thorp     |
|   | Title:                   | Managing Member  of Langley Capital, LLC, |
|   |                     | its General  Partner                      |
|        |                          |                                           |  |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

MagellanInternational Ltd.

 
| By:    |  /s/ Anna  Marie Lowe |   |
|--------|----------------------------|--------|
|   | Name: Anna Marie  Lowe     |
|   | Title: Director            |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

OMICRON MASTERTRUST

By: OmicronCapital L.P., as advisor

By: OmicronCapital Inc., its general partner

 
| By:    |  /s/  Olivier Morali |   |
|--------|---------------------------|--------|
|   | Name: Olivier  Morali     |
|   | Title: President          |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity: PLATINUM PARTNERS VALUE ARBITRAGE FUND LP

 
| By:    |  /s/ Mark  Nordlicht       |   |
|--------|---------------------------------|--------|
|   | Name: Mark  Nordlicht           |
|   | Title: Managing  Member of G.P. |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

PORTSIDE GROWTHAND OPPORTUNITY FUND:

 
| By:    |  /s/  Jeffrey Solomon   |   |
|--------|------------------------------|--------|
|   | Name: Jeffrey  Solomon       |
|   | Title:  Authorized Signatory |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

SF CAPITALPARTNERS LTD

 
| By:    |  /s/ Brian  H. Davidson |   |
|--------|------------------------------|--------|
|   | Name: Brian H.  Davidson     |
|   | Title:                       |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 
| By:                           |  /s/ Murray  Todd |   |
|-------------------------------|------------------------|--------|
| Silver Oak  Investments, Inc. |
| Name: Murray  Todd            |
| Title: Board                  |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

SMITHFIELDFIDUCIARY LLC

 
| By:    |  /s/ Adam  J. Chill     |   |
|--------|------------------------------|--------|
|   | Name: Adam J.  Chill         |
|   | Title:  Authorized Signatory |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity: SOLOMON STRATEGIC HOLDINGS, INC.

 
| By:    |  /s/ A P  MacKellar |   |
|--------|--------------------------|--------|
|   | Name: A P  MacKellar     |
|   | Title: Director          |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity: SPECTRA CAPITAL MANAGEMENT

 
| By:    |  /s/ Greg  Porges |   |
|--------|------------------------|--------|
|   | Name: Greg  Porges     |
|   | Title: Sole  Member    |

 

35

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity:

 
| By:    |  /s/ M.  Finklestein | (Stonestreet) |
|--------|---------------------------|---------------|
|   | Name: M.  Finklestein     |
|   | Title: President          |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

THE TAIL WIND FUNDLIMITED

By: Tail WindAdvisory & Management Ltd.

 
| By:    |  /s/ David  Crook                |   |
|--------|---------------------------------------|--------|
|   | David Crook,  Chief Executive Officer |

 

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[PURCHASER’S IMNR RRA SIGNATURE PAGE]

 

Name of InvestorEntity: TCMP3 PARTNERS LLP

 
| By:    |  /s/ Steven  E. Slawson |   |
|--------|------------------------------|--------|
|   | Name: Steven E.  Slawson     |
|   | Title: Principal             |

 

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**ANNEX A**

 

Plan ofDistribution

 

The SellingStockholders and any of their pledgees, assignees and successors-in-interestmay, from time to time, sell any or all of their shares of Common Stock on anystock exchange, market or trading facility on which the shares are traded or inprivate transactions.  These sales maybe at fixed or negotiated prices.  TheSelling Stockholders may use any one or more of the following methods whenselling shares:

 

•      ordinarybrokerage transactions and transactions in which the broker-dealer solicitspurchasers;

 

•      blocktrades in which the broker-dealer will attempt to sell the shares as agent butmay position and resell a portion of the block as principal to facilitate thetransaction;

 

•      purchasesby a broker-dealer as principal and resale by the broker-dealer for itsaccount;

 

•      anexchange distribution in accordance with the rules of the applicable exchange;

 

•      privatelynegotiated transactions;

 

•      settlementof short sales entered into after the date of this prospectus;

 

•      broker-dealersmay agree with the Selling Stockholders to sell a specified number of suchshares at a stipulated price per share;

 

•      acombination of any such methods of sale; and

 

•      anyother method permitted pursuant to applicable law.

 

The SellingStockholders may also sell shares under Rule 144 under the Securities Act, ifavailable, rather than under this prospectus.

 

Broker-dealersengaged by the Selling Stockholders may arrange for other brokers-dealers toparticipate in sales.  Broker-dealersmay receive commissions or discounts from the Selling Stockholders (or, if anybroker-dealer acts as agent for the purchaser of shares, from the purchaser) inamounts to be negotiated.  The SellingStockholders do not expect these commissions and discounts to exceed what iscustomary in the types of transactions involved.

 

The SellingStockholders may from time to time pledge or grant a security interest in someor all of the shares of common stock owned by them and, if they default in theperformance of their secured obligations, the pledgees or secured parties mayoffer and sell the shares of common stock from time to time under thisprospectus, or under an amendment to this prospectus under Rule 424(b)(3) orother applicable provision of the Securities Act of 1933

 

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amending the list of Selling Stockholders to include the pledgee,transferee or other successors in interest as Selling Stockholders under thisprospectus.

 

The SellingStockholders and any broker-dealers or agents that are involved in selling theshares may be deemed to be “underwriters” within the meaning of the SecuritiesAct in connection with such sales.  Insuch event, any commissions received by such broker-dealers or agents and anyprofit on the resale of the shares purchased by them may be deemed to beunderwriting commissions or discounts under the Securities Act.  The Selling Stockholders have informed theCompany that it does not have any agreement or understanding, directly orindirectly, with any person to distribute the Common Stock.

 

The Company isrequired to pay all fees and expenses incident to the registration of theshares.  The Company has agreed toindemnify the Selling Stockholders against certain losses, claims, damages andliabilities, including liabilities under the Securities Act.

 

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