Exhibit
4.13


 


REGISTRATION
RIGHTS AGREEMENT


 


This Registration
Rights Agreement (the “Agreement”) is made and entered into as of this
14th day of April, 2004 by and among IMCOR Pharmaceutical Co., a Nevada
corporation (the “Company”), and the “Purchasers” named in that certain
Securities Purchase Agreement, of even date herewith, by and among the Company
and the Purchasers (the “Purchase Agreement”).


 


The parties hereby
agree as follows:


 


1.             Certain Definitions.  Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement will have the meanings given such terms in
the Purchase Agreement.  As used in this
Agreement, the following terms shall have the following meanings:


 


“Affiliate”
means, with respect to any person, any other person which directly or
indirectly controls, is controlled by, or is under common control with, such
person.


 


“Business Day”
means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.


 


 “Closing Price” as of any date means
(a) the closing bid price of one share of Common Stock as reported on The
Nasdaq SmallCap Market (“Nasdaq”) or other national securites exchange
or OTC bulletin board on which the Company’s shares may be quoted or listed on
such date, (b) if no closing bid price is available, the average of the high
bid and the low asked price quoted on Nasdaq on such date, or (c) if the shares
of Common Stock are not then quoted on Nasdaq, the value of one share of Common
Stock on such date as shall be determined in good faith by the Board of
Directors of the Company and the Purchasers, provided, that if the Board
of Directors of the Company and the Purchasers are unable to agree upon the
value of a share of Common Stock pursuant to this subpart (c), the Company and
the Purchasers shall jointly select an appraiser who is experienced in such
matters to determine the Closing Price. 
The decision of such appraiser shall be final and conclusive, and the
cost of such appraiser shall be borne one-half by the Company and one-half by
the Purchasers.


 


“Common Stock”
shall mean the Company’s common stock, par value $0.001 per share.


 


“Holder” or
“Holders” shall mean the holder or holders, as the case may be, from
time to time of Registrable Securities.


 


“Prospectus”
shall mean the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such Registration
Statement and by all other amendments and supplements to the prospectus,
including post-effective amendments and all material incorporated by reference
in such prospectus.


 


“Purchasers”
shall mean the Purchasers identified in the Purchase Agreement and any
Affiliate or permitted transferee of any Purchaser who is a subsequent Holder.


 


“Register,”
“registered” and “registration” refer to a registration made by
preparing and filing a Registration Statement or similar document in compliance
with the 1933 Act, and the declaration or ordering of effectiveness of such
Registration Statement or document.


 

















 


“Registrable
Securities” shall mean the shares of Common Stock issued or issuable (i) to
the Purchasers pursuant to the Purchase Agreement, (ii) upon exercise of the
Warrants issued or issuable to the Purchasers pursuant to the Purchase
Agreement, and (iii) upon exercise of compensation warrants issued or issuable
to the placement agents identified in the Disclosure Schedule to the Purchase
Agreement, and any other securities issued or issuable with respect to or in
exchange for Registrable Securities; provided, that, a security
shall cease to be a Registrable Security upon (A) sale pursuant to a
Registration Statement or Rule 144 under the 1933 Act, or (B) such security
becoming eligible for sale by the Holder pursuant to Rule 144(k).


 


“Registration
Statement” shall mean any registration statement of the Company filed under
the 1933 Act that covers the resale of the Registrable Securities pursuant to
the provisions of this Agreement, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.


 


“SEC” means
the U.S. Securities and Exchange Commission.


 


“Warrants”
means those warrants issued or issuable pursuant to the terms and conditions of
those certain Warrant Agreements dated even date with the Purchase Agreement
entered into pursuant to the Purchase Agreement.


 


“1933 Act”
means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.


 


“1934 Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 


2.             Registration.


 


(a)           Registration Statements.  Not later than the first to occur of (i) the
30th day following the Second Closing and (ii) the 15th day
following termination of the obligations to complete the Second Closing in
accordance with the Purchase Agreement, the Company shall prepare and file with the SEC a
Registration Statement on Form S-1 covering the resale of all Registrable
Securities.  The Registration Statement
shall contain (except if otherwise required pursuant to written comments
received from the SEC upon a review of such Registration Statement) the “Plan
of Distribution” attached hereto as Annex A.  Such Registration Statement also shall cover, to the
extent allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions with
respect to the Registrable Securities. 
The “Selling Stockholders” and
“Plan of Distribution” sections of the Registration Statement (and each
amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) and any risk factor contained in such document that
addresses specifically this transaction or the Selling Stockholders, shall be
provided in accordance with Section 3(c) to the Holders prior to its
filing or other submission.  Promptly
following any date on which the Company becomes eligible to use a registration
statement on Form S-3 to register Registrable Securities for resale, but in no
event more than 20 days after such date, the Company shall file a Registration
Statement on Form S-3 covering the Registrable Securities (or a post-effective
amendment on Form S-3 to the then effective Registration Statement) and shall
cause such Registration Statement to be declared effective as soon as possible
thereafter, but in any event by the 90th day following the date on
which the Company becomes eligible to utilize Form S-3 for the registration of
the resale of its securities by selling stockholders.


 


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


 


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with clearing the
Registrable Securities for sale under applicable state securities laws, listing
fees and the Purchasers’ reasonable expenses in connection with the
registration, but excluding discounts, commissions, fees of Holder’ counsel,
and fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable Securities
being sold.


 


(c)           Effectiveness.


 


(i)            The Company shall use its reasonable
best efforts to have the Registration Statement declared effective as soon as
possible, but in any event by the “Effectiveness Date” defined below for such
Registration Statement.  “Effectiveness
Date” for the initial Registration Statement required hereunder means the
first to occur of (a) the 60th day following the Second Closing (or 90th
day after the Second Closing if the filed Registration Statement is reviewed
and commented upon by the SEC), (b) the 60th day following
termination of the obligations to complete the Second Closing in accordance
with the Purchase Agreement (or 90th day after such event if the
filed Registration Statement is reviewed and commented upon by the SEC), and (c) the fifth Business Day following the
date on which the Company is notified by the SEC that such Registration
Statement will not be reviewed or is no longer subject to further review and
comments.  If a Registration
Statement covering all Registrable Securities is not declared effective by the
SEC by the Effectiveness Date, then the
Company will, in addition to all other rights of the Holders hereunder and under
applicable law, as partial liquidated damages and not as a penalty, make
payments to each Purchaser in accordance with Section 2(e) hereof.


 


(ii)           For not more than twenty-five (25)
consecutive days or for a total of not more than forty (40) days in any twelve
(12) month period, the Company may delay the disclosure of material non-public
information concerning the Company, by suspending the use of any Prospectus
included in any registration contemplated by this Section containing such
information, the disclosure of which at the time would be, in the good faith
opinion of the Company, materially detrimental to the Company (an “Allowed
Delay”); provided, that the Company shall promptly (a) notify the
Holders in writing of the existence of (but in no event, without the prior
written consent of a Purchaser, shall the Company disclose to such Purchaser
any of the facts or circumstances regarding) material non-public information
giving rise to an Allowed Delay, and (b) advise the Holders in writing to cease
all sales under the Registration Statement until the end of the Allowed
Delay.  Liquidated damages set forth in
Section 2(e) will be due and payable notwithstanding any Allowed Delays
hereunder.


 


(d)           Underwritten
Offering.  If any offering pursuant
to a Registration Statement pursuant to Section 2(a) hereof involves an
underwritten offering, the Company shall have the right to select an investment
banker and manager to administer the offering, which investment banker or
manager shall be reasonably satisfactory to the Holders holding a majority of
the Registrable Securities.


 


(e)           Liquidated
Damages.  If: (i) a Registration
Statement is not timely filed in accordance with Section 2(a) hereof (if the
Company files a Registration Statement without affording the Holders the
opportunity to review and comment on the same as required by Section 3(c)
hereof, the Company shall not be deemed to have satisfied this clause (i)), or
(ii) a Registration Statement is not timely declared effective by the SEC in
accordance with Section 2(c) hereof, or (iii) after the date upon which the
Registration Statement is declared effective by the SEC, without regard for the
reason thereunder or efforts therefore and without regard to any Allowed
Delays, such Registration Statement ceases for any reason to be effective and
available to the Holders as to all Registrable Securities to which it is
required to cover at any time prior to the time when such Registrable
Securities have ceased to be “Registrable Securities” in accordance with the definition
of Registrable Securities for more than an aggregate of 20 Business Days (which
need not be consecutive) (any such failure or breach being referred to as an “Event,”
and for purposes of clauses (i) or (ii) the date on which such Event occurs, or
for purposes of clause (iii) the date which such 20 Business Day-period is
exceeded, being referred to as “Event Date”),


 


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then, in addition to any other rights available to the Holders under
this Agreement or under applicable law, on each such Event Date, and each
monthly anniversary thereof, the Company shall issue to each Holder an amount
in freely tradeable shares of validly issued, fully paid and non-assessable
shares of Common Stock (which shall become Registrable Shares), as liquidated
damages and not as a penalty, equal to 2% of the aggregate investment amount
paid by such Holder pursuant to the Purchase Agreement (valued at the Closing
Price).  The partial liquidated damages
pursuant to this Section shall apply on a pro rata basis for any portion of a
month prior to the cure of an Event, other with respect to the first Event Date
(for which the entire partial liquidated damages for that month will be due in
full on the initial Event Date).


 


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


 


(a)           use its reasonable best efforts to
cause such Registration Statement to become effective and to remain
continuously effective until such time as the Registrable Securities covered
thereby are no longer “Registrable Securities” under the definition thereof;


 


(b)           prepare and file with the SEC such
amendments and post-effective amendments to the Registration Statement and the
Prospectus as may be necessary to keep the Registration Statement effective for
the period specified in Section 3(a) hereof and to comply with the
provisions of the 1933 Act and the 1934 Act with respect to the distribution of
all of the Registrable Securities covered thereby;


 


(c)           provide copies to and permit each
Holder to review the
“Selling Stockholders” and “Plan of Distribution” sections of each Registration
Statement and any risk factor that addresses specifically this transaction or
the Selling Stockholders under the Registration Statement and all amendments
and supplements thereto, no fewer than five (5) Business Days prior to
their filing with the SEC and not, without the consent of such Holder, file any
Registration Statement that contains disclosure regarding a Holder that differs
in any material respect with the disclosure set forth in the Selling Holder
Questionnaire (as hereinafter defined) provided by such Holder for use in such
Registration Statement;


 


(d)           furnish to the Holders (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company (but not later than two (2) Business Days after the
filing date, receipt date or sending date, as the case may be) one (1) copy of
any Registration Statement and any amendment thereto, each preliminary
prospectus and Prospectus and each amendment or supplement thereto, and each
letter written by or on behalf of the Company to the SEC or the staff of the
SEC, and each item of correspondence from the SEC or the staff of the SEC, in
each case relating to such Registration Statement (other than any portion of
any thereof which contains information for which the Company has sought
confidential treatment or believes might constitute material and non-public
information concerning the Company), and (ii) such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as each Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder that are covered by the related Registration Statement;


 


(e)           in the event of an underwritten
offering hereunder wherein the Company selects an underwriter, the Company
shall enter into and perform its reasonable obligations under an underwriting
agreement, in usual and customary form, including, without limitation,
customary indemnification and contribution obligations, with the underwriter of
such offering;


 


(f)            if required by the underwriter, or
if any Holder is described in the Registration Statement as an underwriter, the
Company shall furnish, on the effective date of the Registration Statement
(except with respect to clause (i) below) and on the date that Registrable
Securities are delivered to an


 


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underwriter, if
any, for sale in connection with the Registration Statement (including any
Holder deemed to be an underwriter), (i) (A) in the case of an underwritten
offering, an opinion, dated as of the closing date of the sale of Registrable
Securities to the underwriters, from legal counsel representing the Company for
purposes of such Registration Statement, in form, scope and substance as is customarily
given in an underwritten public offering, addressed to the underwriters and the
Holders participating in such underwritten offering or (B) in the case of an
“at the market” offering, an opinion, dated as of or promptly after the
effective date of the Registration Statement to the Holders, from legal counsel
representing the Company for purposes of such Registration Statement, in form,
scope and substance as is customarily given in a public offering, addressed to
the Holders, and (ii) a letter, dated as of the effective date of such
Registration Statement and confirmed as of the applicable dates described
above, from the Company’s independent certified public accountants in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriters (including any Holder deemed to be an underwriter);


 


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


 


(h)           prior to any public offering of
Registrable Securities, use its reasonable best efforts to register or qualify
or cooperate with the Holders and their counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions requested by the
Holders and do any and all other commercially reasonable acts or things
necessary or advisable to enable the distribution in such jurisdictions of the
Registrable Securities covered by the Registration Statement;


 


(i)            use its reasonable best efforts to
cause all Registrable Securities covered by a Registration Statement to be
listed on each securities exchange, interdealer quotation system or other
market on which similar securities issued by the Company are then listed;


 


(j)            immediately notify the Holders, at
any time when a Prospectus relating to Registrable Securities is required to be
delivered under the 1933 Act, upon discovery that, or upon the happening of any
event as a result of which, the Prospectus included in a Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
then existing, and at the request of any such Holder, promptly prepare and
furnish to such Holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the Holders of such Registrable Securities, such Prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing; and


 


(k)           otherwise comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934 Act, use its
reasonable best efforts to take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities
hereunder; and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve (12) months, beginning
after the effective date of each Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act (for
the purpose of this section 3(k), “Availability Date” means the
45th day following the end of the fourth fiscal quarter that includes the
effective date of such Registration Statement, except that, if such fourth
fiscal quarter is the last quarter of the Company’s fiscal year, “Availability
Date” means the 90th day after the end of such fourth fiscal quarter).


 


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4.             Obligations of the Holders.


 


(a)           Each Holder agrees to furnish to the Company a completed Questionnaire
in the form attached to this Agreement as Annex B (a “Selling Holder
Questionnaire”).  The Company shall
not be required to include the Registrable Securities of a Holder in a
Registration Statement and shall not be required to pay any partial liquidated
or other damages under Section 2(e) hereof to a Holder who fails to furnish to
the Company a completed Selling Holder Questionnaire at least two (2) Business
Days prior to the date a Registration Statement is required to be filed in
accordance with the requirements set forth in Section 2(a).


 


(b)           Each Holder, by its acceptance of the
Registrable Securities agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of a
Registration Statement hereunder, unless such Holder has notified the Company
in writing of its election to exclude all of its Registrable Securities from
such Registration Statement.


 


(c)           Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the 1933 Act as applicable to it in
connection with sales of Registrable Securities pursuant to the Registration
Statement.


 


(d)           Each Holder agrees that, upon receipt
of any notice from the Company of either (A) the commencement of an Allowed
Delay pursuant to Section 2(c)(ii) or (B) the happening of an event
pursuant to Section 3(j) hereof, such Holder will immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities, until the Holder’s receipt of
the copies of the supplemented or amended prospectus filed with the SEC and
declared effective and, if so directed by the Company, the Holder shall deliver
to the Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies in the Holder’s possession of
the Prospectus covering the Registrable Securities current at the time of
receipt of such notice.


 


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


 


5.             Indemnification.


 


(a)           Indemnification by the Company.  The Company will indemnify and hold harmless
each Holder and its officers, directors, members, employees and agents,
successors and assigns, and each other person, if any, who controls such Holder
within the meaning of the 1933 Act, against any losses, claims, damages or
liabilities, joint or several, to which such Holder, officer, director, member,
or controlling person may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
any preliminary prospectus


 


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or final
prospectus contained therein, or any amendment or supplement thereof; (ii) any
blue sky application or other document executed by the Company specifically for
that purpose or based upon written information furnished by the Company filed
in any state or other jurisdiction in order to qualify any or all of the
Registrable Securities under the securities laws thereof (any such application,
document or information herein called a “Blue Sky Application”);
(iii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading;
(iv) any violation by the Company or its agents of any rule or regulation
promulgated under the 1933 Act applicable to the Company or its agents and
relating to action or inaction required of the Company in connection with such
registration; or (v) any failure to register or qualify the Registrable
Securities included in any such Registration in any state where the Company or
its agents has affirmatively undertaken or agreed in writing that the Company
will undertake such registration or qualification on a Holder’s behalf (the
undertaking of any underwriter chosen by the Company being attributed to the
Company) and will reimburse such Holder, and each such officer, director or
member and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by or on behalf of such Holder or
any such controlling person in writing specifically for use in such
Registration Statement or Prospectus.


 


(b)           Indemnification by the Holders.  Each Holder agrees, severally but not
jointly, to indemnify and hold harmless, to the fullest extent permitted by
law, the Company, its directors, officers, employees, stockholders, and
successors and each person who controls the Company (within the meaning of the
1933 Act) against any losses, claims, damages, liabilities and expense
(including reasonable attorney fees) resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary prospectus or amendment or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by or on behalf of such
Holder to the Company specifically for inclusion in such Registration Statement
or Prospectus or amendment or supplement thereto.  In no event shall the liability of a Holder be greater in amount
than the dollar amount of the proceeds (net of all expense paid by such Holder
and the amount of any damages such holder has otherwise been required to pay by
reason of such untrue statement or omission) received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation.


 


(c)           Conduct of Indemnification
Proceedings.  Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such separate counsel shall be at the expense of such person
unless (a) the indemnifying party has agreed to pay such fees or expenses, or
(b) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such person or (c) in the
reasonable judgment of any such person, based upon written advice of its
counsel, a conflict of interest exists between such person and the indemnifying
party with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such claim on behalf of such
person); and provided, further, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely


 


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affect the
indemnifying party in the defense of any such claim or litigation.  It is understood that the indemnifying party
shall not, in connection with any proceeding in the same jurisdiction, be
liable for fees or expenses of more than one separate firm of attorneys at any time
for all such indemnified parties.  No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation.


 


(d)           Contribution.  If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless, other than as expressly
specified therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect the relative
fault of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations.  No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not
guilty of such fraudulent misrepresentation. 
In no event shall the contribution obligation of a holder of Registrable
Securities be greater in amount than the dollar amount of the proceeds (net of
all expenses paid by such holder and the amount of any damages such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the sale of the
Registrable Securities giving rise to such contribution obligation.


 


6.             Miscellaneous.


 


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


 


(b)           No
Piggyback on Registrations.  Except
as and to the extent specified in the Disclosure Schedule to the Purchase
Agreement, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company
in a Registration Statement hereunder other than the Registrable Securities,
and the Company shall not after the date hereof enter into any agreement
providing any such right to any of its security holders.


 


(c)           Piggy-Back
Registrations.  If at any time while
a Registration Statement is required to be effective hereunder there is not an
effective Registration Statement covering all of the Registrable Securities and
the Company shall determine to prepare and file with the SEC a registration
statement relating to an offering for its own account or the account of others
under the 1933 Act of any of its equity securities, other than with respect to
the Company’s registration to Dr. Gerald Wolf as described in the Disclosure
Schedule or any registration statement on Form S-4 or Form S-8 (each as
promulgated under the 1933 Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to each Holder
written notice of such determination and, if within fifteen days after receipt
of such notice, any such Holder shall so request in writing, the Company shall
include in such registration statement all or any part of such Registrable
Securities such holder requests to be registered, subject to customary
underwriter cutbacks applicable to all holders of registration rights.


 


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(e)           Amendments and
Waivers.  The provisions of
this Agreement, including the provisions of this section, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing and
signed by the Company and the Holder or Holders (as applicable) of no less than
a majority in interest of the then outstanding Registrable Securities.  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of certain Holders and that does not directly
or indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent
relates.


 


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


 


(g)           Assignments and
Transfers by Holders.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the Holders and their respective successors and assigns.  A Holder may transfer or assign, in whole or
from time to time in part, to one or more persons its rights hereunder in
connection with the transfer of Registrable Securities by such Holder to such
person, provided that such Holder complies with all laws applicable thereto and
provides written notice of assignment to the Company promptly after such
assignment is effected.


 


(h)           Assignments and
Transfers by the Company.  This
Agreement may not be assigned by the Company (whether by operation of law or
otherwise), provided, however, that the Company must assign its
rights and delegate its duties hereunder to any surviving or successor
corporation in connection with a merger or consolidation of the Company with
another corporation, or a sale, transfer or other disposition of all or
substantially all of the Company’s assets to another corporation.


 


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


 


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


 


(k)           Titles and
Subtitles.  The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.


 


(l)            Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.  To the extent permitted
by applicable law, the parties hereby waive any provision of law which renders
any provisions hereof prohibited or unenforceable in any respect.


 


9

















 


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


 


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


 


(o)           Governing Law;
Consent to Jurisdiction.  All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. 
Each party agrees that all proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates, employees
or agents) may be commenced non-exclusively in the state and federal courts
sitting in the City of New York, Borough of Manhattan, (the “New York
Courts”).  Each party hereto
hereby irrevocably submits to the non-exclusive jurisdiction of the New York
Courts for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any proceeding, any claim that
it is not personally subject to the jurisdiction of any New York Court, or that
such proceeding has been commenced in an improper or inconvenient forum.  Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by
law.  Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.  If either party shall commence a proceeding to enforce any
provisions of this Agreement, then the prevailing party in such proceeding
shall be reimbursed by the other party for its attorney’s reasonable fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such proceeding.


 


(p)           Cumulative
Remedies.  The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.


 


(q)           Independent
Nature of Holders Obligations and Rights. 
The obligations of each Holder hereunder is several and not joint with
the obligations of any other Holder hereunder, and no Holder shall be
responsible in any way for the performance of the obligations of any other
Holder hereunder.  Nothing contained
herein or in any other agreement or document delivered at any closing, and no
action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute
the Holder as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Holder are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement.  Each Holder shall be
entitled to protect and enforce its rights, including without limitation the
rights arising out of this Agreement, and it shall not be necessary for any
other Holder to be joined as an additional party in any proceeding for such
purpose.  The Company
acknowledges that each of the Purchasers has been provided with the same
Agreement for the purpose of closing a transaction with multiple Purchasers and
not because it was required or requested to do so by any Purchaser.


 


10

















 


Signature
pages follow.


 


11

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement or caused their duly authorized officers to execute this Agreement as
of the date first above written.


 


	
   

  	
  Company:

  
	
   

  	
   

  
	
   

  	
  IMCOR Pharmaceutical
  Co.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Taffy J. Williams,
  Ph.D.

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
					



 

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement or caused their duly authorized officers to execute this Agreement as
of the date first above written.


 


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


13

















 


Annex A


 


Plan of Distribution


 


The Selling Stockholders and any of their pledgees,
donees, transferees, assignees and successors-in-interest may, from time to
time, sell any or all of their shares of Common Stock on any stock exchange,
market or trading facility on which the shares are traded or in private
transactions.  These sales may be at
fixed or negotiated prices.  The Selling
Stockholders may use any one or more of the following methods when selling
shares:


 


•      ordinary brokerage transactions and
transactions in which the broker-dealer solicits Investors;


 


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


 


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


 


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


 


•      privately negotiated transactions;


 


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


 


•      broker-dealers may agree with the Selling
Stockholders to sell a specified number of such shares at a stipulated price
per share;


 


•      a combination of any such methods of sale;
and


 


•      any other method permitted pursuant to
applicable law.


 


The Selling Stockholders may also sell shares under
Rule 144 under the Securities Act, if available, rather than under this
prospectus.


 


Broker-dealers engaged by the Selling Stockholders may
arrange for other brokers-dealers to participate in sales.  Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated.  The Selling Stockholders do
not expect these commissions and discounts to exceed what is customary in the
types of transactions involved.


 


The Selling Stockholders may from time to time pledge
or grant a security interest in some or all of the Shares owned by them and, if
they default in the performance of their secured obligations, the pledgees or
secured parties may offer and sell shares of Common Stock from time to time
under this prospectus, or under an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933 amending
the list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus.


 


Upon the Company being notified in writing by a
Selling Stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of Common Stock through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a
broker or dealer, a supplement to this prospectus will be filed, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each
such Selling Stockholder and of the participating broker-dealer(s), (ii) the


 


1

















 


number of shares
involved, (iii) the price at which such the shares of Common Stock were sold,
(iv)the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus, and (vi) other facts material to the
transaction.  In addition, upon the
Company being notified in writing by a Selling Stockholder that a donee or
pledge intends to sell more than 500 shares of Common Stock, a supplement to
this prospectus will be filed if then required in accordance with applicable
securities law.


 


The Selling Stockholders also may transfer the shares
of Common Stock in other circumstances, in which case the transferees, pledgees
or other successors in interest will be the selling beneficial owners for
purposes of this prospectus.


 


The Selling Stockholders and any broker-dealers or
agents that are involved in selling the shares may be deemed to be
“underwriters” within the meaning of the Securities Act in connection with such
sales.  In such event, any commissions received
by such broker-dealers or agents and any profit on the resale of the shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act.  Discounts,
concessions, commissions and similar selling expenses, if any, that can be
attributed to the sale of Securities will be paid by the Selling Stockholder
and/or the purchasers.  Each Selling
Stockholder has represented and warranted to the Company that it acquired the
securities subject to this registration statement in the ordinary course of
such Selling Stockholder’s business and, at the time of its purchase of such
securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such securities.


 


The Company has advised each Selling Stockholder that
it may not use shares registered on this Registration Statement to cover short
sales of Common Stock made prior to the date on which this Registration
Statement shall have been declared effective by the Commission.  If a Selling Stockholder uses this
prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act.  The Selling Stockholders will be responsible
to comply with the applicable provisions of the Securities Act and Exchange
Act, and the rules and regulations thereunder promulgated, including, without
limitation, Regulation M, as applicable to such Selling Stockholders in
connection with resales of their respective shares under this Registration
Statement.


 


The Company is required to pay all fees and expenses
incident to the registration of the shares, but the Company will not receive
any proceeds from the sale of the Common Stock.  The Company has agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.  If the
Selling Stockholders use this prospectus for any sale of the Common Stock, they
will be subject to the prospectus delivery requirements of the Securities Act.


 


2

















 


Annex B


 


Selling
Securityholder Notice and Questionnaire


 


The undersigned beneficial
owner of common stock (the “Common Stock”), of IMCOR Pharmaceutical
Co. (the “Company”)
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “SEC”) a Registration Statement for the
registration and resale of the Registrable Securities, in accordance with the
terms of the Registration Rights Agreement, dated as of April
     , 2004 (the “Registration Rights Agreement”), among the
Company and the Purchasers named therein. 
A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below.  All capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Registration Rights Agreement.


 


The undersigned hereby
provides the following information to the Company and represents and warrants
that such information is accurate:


 


QUESTIONNAIRE


 


1.             Name.


 


(a)           Full
Legal Name of Selling Securityholder


 


 


 


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


 


 


 


(c)           Full Legal Name of Natural Control
Person (which means a natural person who directly you indirectly alone or with
others has power to vote or dispose of the securities covered by the
questionnaire):


 


 


 


2. 
Address for Notices to Selling Securityholder:


 


	
   

  
	
   

  
	
   

  
	
   Telephone:

  
	
   Fax:

  
	
   Contact
  Person:

  



 


1

















 


3. 
Beneficial Ownership of Registrable Securities:


 


(a)           Type
and Principal Amount of Registrable Securities beneficially owned:


 


 


 


 


 


4. 
Broker-Dealer Status:


 


(a)           Are
you a broker-dealer?


 


Yes   o  No   o


 


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


 


(b)           Are
you an affiliate of a broker-dealer?


 


Yes   o  No   o


 


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


 


Yes   o  No   o


 


Note:      If no, the SEC’s staff has indicated that
you should be identified as an underwriter in the Registration Statement.


 


5. 
Beneficial Ownership of Other Securities of the Company Owned by the
Selling Securityholder.


 


Except as set forth below in this Item 5, the undersigned is
not the beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item 3.


 


(a)           Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:


 


 


 


 


2

















 


6. 
Relationships with the Company:


 


Except as set forth below, neither the undersigned nor any
of its affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) has held any position
or office or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.


 


State any exceptions here:


 


 


 


 


The undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof and prior to the
Effective Date for the Registration Statement.


 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
  Beneficial Owner:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
							



 


3