Exhibit
4.15


 


REGISTRATION
RIGHTS AGREEMENT


 


This Registration
Rights Agreement (the “Agreement”) is made and entered into as of this
19th 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 securities 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 to the
Purchasers pursuant to the Purchase Agreement,; 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; provided, however,
in no event shall the Registration Statement be filed before the date which is
five business days following the date on which the SEC declares effective that
certain registration statement (the “Investor Registration Statement”) filed on
behalf of the purchasers of the Company’s Common Stock and warrants to
purchaser shares of its Common Stock pursuant to that certain Securities
Purchase Agreement dated as of April 14, 2004 by and among the Company and the
purchasers party thereto.  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.


 


2

















 


(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 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
filing of the Registration Statement (or 90th day after the filing
of the Registration Statement if the filed Registration Statement is reviewed
and commented upon by the SEC), and (b) 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”),


 


3

















 


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


 


4

















 


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).


 


5

















 


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


 


6

















 


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


 


7

















 


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)           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 Investor Registration Statement and 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.


 


(c)           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


 


8

















 


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.


 


(d)           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.


 


(e)           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.


 


(f)            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.


 


(g)           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.


 


(h)           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.


 


(i)            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.


 


(j)            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.


 


(k)           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.


 


(l)            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


 


9

















 


Agreement (and the Exhibits and Schedules annexed thereto) supersede
all prior agreements and understandings between the parties with respect to
such subject matter.


 


(m)          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.


 


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


 


(o)           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.


 


Signature
pages follow.


 


10

















 


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:

  
	
   

  	
  Title:

  



 


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.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


12

















 


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