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Filing
Table of Contents
Registration Statement No. 333-127857
SECURITIES AND EXCHANGE COMMISSION
TO
UNDER
THE SECURITIES ACT OF 1933
Delaware (State or other jurisdiction of incorporation or organization) |
84-1318182 (I.R.S. Employer Identification Number) |
San Diego, California 92121
(Address, including zip code, and telephone number, including area code,
of Registrants principal executive offices)
Chief Financial Officer
ADVENTRX Pharmaceuticals, Inc.
6725 Mesa Ridge Road, Suite 100
San Diego, California 92121
(858) 552-0866
facsimile: (858) 552-0876
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Francis W. Sarena, Esq.
Bingham McCutchen LLP
Three Embarcadero Center
San Francisco, California 94111
phone: (415) 393-2000
facsimile: (415) 393-2286
Proposed | ||||||||||||||
Title of each class of | maximum | Proposed maximum | ||||||||||||
securities to be | Amount to be | offering price | aggregate offering | Amount of | ||||||||||
registered (1) | registered | per share (2) | price (2) | registration fee | ||||||||||
common stock, par
value $0.001 per
share |
23,240,340 shares | $3.82 | $88,778,098.80 | $10,449.18 | ||||||||||
(1) | In addition to the common stock set forth in the table, the amount to be registered includes an indeterminate number of shares issuable pursuant to stock splits and stock dividends in accordance with Rule 416(b) under the Securities Act of 1933, as amended. | |
(2) | Estimated solely for purposes of calculating the amount of the registration fee. The estimate is made pursuant to Rule 457(c) of the Securities Act of 1933, as amended. |
Table of Contents
Dated: ________, 2005
23,240,340 Shares
San Diego, California 92121
(858) 558-0866
SEE RISK FACTORS BEGINNING ON PAGE 4.
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2 | ||||||||
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4 | ||||||||
4 | ||||||||
10 | ||||||||
10 | ||||||||
15 | ||||||||
Indemnification |
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17 | ||||||||
17 | ||||||||
EXHIBIT 4.27 | ||||||||
EXHIBIT 4.28 | ||||||||
EXHIBIT 4.29 | ||||||||
EXHIBIT 4.30 | ||||||||
EXHIBIT 5.1 | ||||||||
EXHIBIT 23.1 |
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(a) | the section entitled Description of Registrants Securities contained in the Registrants Registration Statement on Form 8-A (file No. 001-32157) filed with the Commission on April 27, 2004, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), including any amendment or report filed for the purpose of updating such description. | ||
(b) | our Annual Report on Form 10-KSB for the fiscal year ended December 31, 2004 filed with the Commission on March 31, 2005; | ||
(c) | our Amendment No. 1 to our Annual Report on Form 10-KSB for the fiscal year ended December 31, 2004 filed with the Commission on August 11, 2005; | ||
(d) | our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2005 filed with the Commission on May 16, 2005; | ||
(e) | our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2005 filed with the Commission on August 12, 2005; | ||
(f) | our Current Report on Form 8-K filed with the Commission on June 10, 2005; | ||
(g) | our Current Report on Form 8-K filed with the Commission on July 27, 2005; | ||
(h) | our Current Report on Form 8-K filed with the Commission on August 12, 2005; | ||
(i) | our Current Report on Form 8-K filed with the Commission on August 30, 2005; and | ||
(j) | any future filings we make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act, until we file a post-effective amendment which indicates the termination of the offering of the securities made by this prospectus. | ||
Chief Financial Officer
ADVENTRX Pharmaceuticals, Inc.
6725 Mesa Ridge Road, Suite 100
San Diego, California 92121
(858) 552-0866
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Shares | ||||||||||||||||||||
Shares | Percent | Owned | Percent | |||||||||||||||||
Owned | Owned | Shares | Upon | Owned | ||||||||||||||||
Before | Before | Being | Completion | After | ||||||||||||||||
Name | Offering(1) | Offering(2) | Offered | Of Offering | Offering(2) | |||||||||||||||
Andrew J. Maffey |
188,000 | (3) | * | 63,000 | 125,000 | * | ||||||||||||||
Caroline A. Levine |
11,250 | * | 11,250 | 0 | 0 | |||||||||||||||
Centrum Bank AG |
91,500 | (4) | * | 46,500 | 45,000 | * | ||||||||||||||
Charles and Leslie Close |
65,000 | (5) | * | 15,000 | 50,000 | * | ||||||||||||||
Clifford Ross |
65,000 | (6) | * | 15,000 | 50,000 | * | ||||||||||||||
Delaware Charter Guarantee and Trust
Co. FBO Michael Kooper IRA |
77,865 | (7) | * | 17,969 | 59,896 | * | ||||||||||||||
Elaine Dines |
65,000 | (8) | * | 15,000 | 50,000 | * | ||||||||||||||
Franco Merlo |
2,989 | * | 2,989 | 0 | 0 | |||||||||||||||
High River Limited Partnership |
1,729,730 | (9) | 2.5 | % | 1,729,730 | 0 | 0 | |||||||||||||
Icahn Partners LP |
3,321,080 | (10) | 4.8 | % | 3,321,080 | 0 | 0 | |||||||||||||
Icahn Partners Master Fund LP |
3,597,838 | (11) | 5.2 | % | 3,597,838 | 0 | 0 | |||||||||||||
James Simpson |
7,500 | (12) | * | 7,500 | 0 | 0 | ||||||||||||||
Jay Silberman |
97,500 | (13) | * | 22,500 | 75,000 | * | ||||||||||||||
John J. Kissane |
13,000 | * | 3,000 | 10,000 | * | |||||||||||||||
Legend Merchant Group, Inc. |
1,500 | (14) | * | 1,500 | 0 | 0 | ||||||||||||||
Michael Kooper |
308,750 | * | 71,250 | 237,500 | * | |||||||||||||||
North Sound Legacy Institutional
Fund LLC |
1,005,756 | (15) | 1.5 | %(15) | 807,756 | 198,000 | (16) | * | ||||||||||||
North Sound Legacy International Ltd. |
2,396,946 | (17) | 3.5 | %(17) | 2,012,946 | 384,000 | (18) | * | ||||||||||||
Paul Mezei |
2,600 | (19) | * | 600 | 2,000 | * | ||||||||||||||
Richard Melnick |
201,000 | * | 201,000 | 0 | 0 | |||||||||||||||
Robert J. Neborsky MD Combination
Retirement Trust |
670,641 | (20) | * | 320,414 | 350,227 | (21) | * | |||||||||||||
Royal Bank of Canada |
2,702,702 | (22) | 2,702,702 | 0 | 0 | |||||||||||||||
Schenk Family Trust Carl Schenk
Trustee |
32,500 | (23) | * | 7,500 | 25,000 | * | ||||||||||||||
The Prudent Bear Fund |
375,000 | (24) | * | 375,000 | 0 | 0 | ||||||||||||||
Thomas DePetrillo |
300,000 | (25) | * | 300,000 | 0 | 0 | ||||||||||||||
VGE III Portfolio Ltd. |
3,902,600 | (26) | 5.6 | % | 3,902,600 | 0 | 0 | |||||||||||||
Viking Global Equities LP |
3,664,966 | (27) | 5.3 | % | 3,664,966 | 0 | 0 | |||||||||||||
Steve
Salovitch |
13,000 | * | 3,000 | 10,000 | * | |||||||||||||||
EFG Private
Bank S.A. |
23,250 | (28) | * | 750 | 22,500 | * |
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* | Less than 1.0%. | |
(1) | Options and warrants to purchase our common stock that are presently exercisable or exercisable within 60 days of August 30, 2005, even if such options or warrants may otherwise be subject to restriction on exercise, are included in the total number of shares beneficially owned for the person holding those options or warrants and are considered outstanding for the purpose of calculating percentage ownership of the particular holder. | |
(2) | The percentage of ownership of common stock is based on 67,346,575 shares of common stock outstanding as of August 30, 2005 and excludes all shares of common stock issuable upon the exercise of outstanding options or warrants to purchase common stock, other than the shares of common stock issuable upon the exercise of options or warrants to purchase common stock held by the named person to the extent such options or warrants are exercisable within 60 days of August 30, 2005, even if such options or warrants may otherwise be subject to restriction on exercise. | |
(3) | Includes 16,000 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(4) | Includes 16,500 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(5) | Includes 15,000 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(6) | Includes 15,000 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(7) | Includes 17,969 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(8) | Includes 15,000 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(9) | Includes 864,865 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that the warrants are not exercisable until January 27, 2006. Based on our review of a Schedule 13D filed with the Commission on August 5, 2005 (the Icahn 13D) by High River Limited Partnership (High River), Hopper Investments, LLC (Hopper), Barberry Corp. (Barberry), Icahn Partners Master Fund LP (Icahn Master), Icahn Offshore LP (Icahn Offshore), CCI Offshore Corp. (CCI Offshore), Icahn Partners LP (Icahn Partners), Icahn Onshore LP (Icahn Onshore), CCI Onshore Corp. (CCI Onshore) and Carl C. Icahn, we believe that as of the date of this prospectus each of Barberry, Hopper and Mr. Icahn may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) directly held by High River because such persons are in a position to directly or indirectly determine the investment and voting decisions of High River. Barberry, Hopper and Mr. Icahn each disclaim beneficial ownership of such shares for all other purposes. | |
(10) | Includes 1,660,540 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that the warrants are not exercisable until January 27, 2006. Based on our review of the Icahn 13D, we believe that as of the date of this prospectus each of CCI Onshore, Icahn Onshore and Mr. Icahn may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) directly held by Icahn Partners because such persons are in a position to directly or indirectly determine the investment and voting decisions of Icahn Partners. CCI Onshore, Icahn Onshore and Mr. Icahn each disclaim beneficial ownership of such shares for all other purposes. Based on our review of a Form 3 filed with the Commission on August 16, 2005 (the Form 3) by Keith Meister, a member of our board of directors, and the information disclosed in the Icahn 13D, we believe that because Mr. Meister is a limited partner of Icahn Onshore and has an interest in the |
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fees, including the performance fees, relating to Icahn Onshore and Icahn Offshore he may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) beneficially owned by Icahn Partners. Mr. Meister disclaims beneficial ownership of all such shares (including warrant shares) in the Form 3. | ||
(11) | Includes 1,798,919 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that the warrants are not exercisable until January 27, 2006. Based on our review of the Icahn 13D, we believe that as of the date of this prospectus each of CCI Offshore, Icahn Offshore and Mr. Icahn may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) directly held by Icahn Master because such persons are in a position to directly or indirectly determine the investment and voting decisions of Icahn Master. CCI Offshore, Icahn Offshore and Mr. Icahn each disclaim beneficial ownership of such shares for all other purposes. Based on our review of the Form 3 and the information disclosed in the Icahn 13D, we believe that because Mr. Meister is a limited partner of Icahn Onshore and has an interest in the fees, including the performance fees, relating to Icahn Onshore and Icahn Offshore he may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) beneficially owned by Icahn Master. Mr. Meister disclaims beneficial ownership of all such shares (including warrant shares) in the Form 3. | |
(12) | Includes 7,500 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(13) | Includes 22,500 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(14) | Includes 1,500 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(15) | Includes 483,378 shares of common stock issuable upon exercise of warrants held by this person, 417,378 of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that warrants to purchase 378,378 shares are not exercisable until January 27, 2006. We have been advised by this person that North Sound Capital LLC (North Sound Capital) may be deemed the beneficial owner of the shares beneficially owned by this person because North Sound Capital is the managing member of this person and the investment advisor of North Sounds Legacy International Ltd. As the managing member or investment advisor, respectively, of such entities, North Sound Capital has voting and investment control with respect to the shares of common stock held thereby. The ultimate managing member of North Sound Capital is Thomas McAuley. This person holds warrants to purchase 105,000 shares and a warrant to purchase 378,378 shares of common stock that contain provisions that would prohibit this person from exercising these warrants to the extent that upon such exercise this person would beneficially hold more than 9.99% or 4.9%, respectively, of the total number of shares of common stock then issued and outstanding (determined in | |
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accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) unless this person shall have provided us with 61-days notice of this persons waiver of this provision. | ||
(16) | All of the shares this person will beneficially own upon completion of this offering (including shares issuable upon the exercise of warrants) have been registered on the registration statement on Form S-3 (No. 333-117022), as amended, initially filed with the Commission on June 30, 2003. | |
(17) | Includes 1,167,973 shares of common stock issuable upon exercise of warrants held by this person, 1,039,973 of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that warrants to purchase 972,973 shares are not exercisable until January 27, 2006. See also footnote 15 regarding North Sound Capitals beneficial ownership of shares owned by this person. This person holds warrants to purchase 195,000 shares and a warrant to purchase 972,973 shares of common stock that contain provisions that would prohibit this person from exercising these warrants to the extent that upon such exercise this person would beneficially hold more than 9.99% or 4.9%, respectively, of the total number of shares of common stock then issued and outstanding (determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) unless this person shall have provided us with 61-days notice of this persons waiver of this provision. | |
(18) | All of the shares this person will beneficially own upon completion of this offering (including shares issuable upon the exercise of warrants) have been registered on the registration statement on Form S-3 (No. 333-117022), as amended, initially filed with the Commission on June 30, 2003. | |
(19) | Includes 600 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(20) | Includes 320,414 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(21) | Of the shares this person will beneficially own upon completion of this offering, 167,500 have been registered on the registration statement on Form S-3 (No. 333-117022), as amended, initially filed with the Commission on June 30, 2003. | |
(22) | Includes 1,351,351 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that the warrants are not exercisable until January 27, 2006. | |
(23) | Includes 7,500 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(24) | Includes 375,000 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(25) | Includes 300,000 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
(26) | Includes 1,951,300 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that the warrants are not |
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exercisable until January 27, 2006. Based on our review of a Schedule 13G filed with the Commission on August 5, 2005 (the Viking 13G) by Viking Global Performance LLC (VGP), Viking Global Investors LP (VGI), Viking Global Equities LP (VGE Global), O. Andreas Halvorsen, Brian T.Olson and David C. Ott, we believe that as of the date of this prospectus each of VGP, VGI and Messrs. Halvorsen, Olson and Ott may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) directly held by VGE III Portfolio Ltd. (VGE Portfolio) because such persons are in a position to directly or indirectly determine the investment and voting decisions of VGE Portfolio. | ||
(27) | Includes 1,832,483 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. All of the shares issuable upon exercise of warrants held by this person have been included in the total number of shares beneficially owned for this person notwithstanding the fact that the warrants are not exercisable until January 27, 2006. Based on our review of the Viking 13G, we believe that as of the date of this prospectus each of VGP, VGI and Messrs. Halvorsen, Olson and Ott may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Exchange Act) the shares (including warrant shares) directly held by VGE Global because such persons are in a position to directly or indirectly determine the investment and voting decisions of VGE Global. | |
(28) | Includes 750 shares of common stock issuable upon exercise of warrants held by this person, all of which will be offered. | |
| a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction (including crosses in which the same broker acts as agent for both sides of the transaction); | ||
| purchases by a broker-dealer as principal and resale by such broker-dealer, including resales for its account, pursuant to this prospectus; | ||
| ordinary brokerage transactions and transactions in which the broker-dealer solicits purchases; | ||
| through options, swaps or derivatives; | ||
| in privately negotiated transactions; | ||
| in making short sales or in transactions to cover short sales entered into after the date of this prospectus; | ||
| put or call option transactions relating to the shares; or | ||
| any other method permitted by applicable law. |
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| the name of each such selling security holder and of the participating broker-dealer(s); | ||
| the number of shares involved; | ||
| the initial price at which the shares were sold; | ||
| the commissions paid or discounts or concessions allowed to the broker-dealer(s), where applicable; | ||
| that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and | ||
| other facts material to the transactions. |
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Securities and Exchange Commission Registration Fee |
$ | 10,449 | ||
Legal Fees and Expenses |
60,000 | |||
Accounting Fees and Expenses |
10,000 | |||
Miscellaneous Fees and Expenses |
5,000 | |||
Total |
$ | 85,449 | ||
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ADVENTRX Pharmaceuticals, Inc. | ||||||
By: | /s/ Carrie E. Carlander | |||||
Name: | Carrie E. Carlander | |||||
Title: | Chief Financial Officer |
Signature | Title | Date | ||
/s/ M. Ross Johnson*
|
Director, Chairman of the Board | September 1, 2005 | ||
/s/ Evan M. Levine
|
Director, Chief Executive Officer and President (Principal Executive Officer) | September 1, 2005 | ||
/s/ Carrie E. Carlander
|
Chief Financial Officer, Vice President Finance, Secretary and Treasurer (Principal Financial and Accounting Officer) | September 1, 2005 | ||
/s/ Michael M. Goldberg*
|
Director | September 1, 2005 | ||
/s/ Mark J. Pykett*
|
Director | September 1, 2005 | ||
/s/ Mark Bagnall*
|
Director | September 1, 2005 | ||
/s/ Keith Meister*
|
Director | September 1, 2005 | ||
*By: | /s/ Carrie E. Carlander | |||
Carrie E. Carlander | ||||
Attorney-in-Fact | ||||
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Exhibit | ||
Number | Description | |
3.1(1)
|
Certificate of Incorporation of Victoria Enterprises, Inc. | |
3.2(1)
|
Certificate of Amendment of Certificate of Incorporation of Victoria Enterprises, Inc. | |
3.3(1)
|
Certificate of Amendment of Certificate of Incorporation of BioQuest, Inc. | |
3.4(1)
|
Certificate of Amendment of Certificate of Incorporation of BioQuest, Inc. | |
3.5(1)
|
Certificate of Ownership and Merger Merging Biokeys, Inc. with and into Biokeys Pharmaceuticals, Inc. | |
3.6(2)
|
Amended and Restated Bylaws of Biokeys Pharmaceuticals, Inc. | |
3.7(1)
|
Certificate of Amendment to the Certificate of Incorporation of ADVENTRX Pharmaceuticals, Inc. | |
4.1*
|
Specimen common stock certificate for shares of Common Stock | |
4.10(3)
|
Registration Rights Agreement, dated as of April 5, 2004 , among the Registrant and the Investors named therein | |
4.23(4)
|
Securities Purchase Agreement, dated July 21, 2005, among the Registrant and the Purchasers named therein | |
4.24(4)
|
Rights Agreement, dated July 27, 2005, among the Registrant and the Purchasers named therein | |
4.25*
|
Common Stock Warrants Nos. WP-1 to WP-5 and WP-8 | |
4.26*
|
Common Stock Warrants Nos. WP-6 and WP-7 | |
4.27
|
A-1 Warrant to Purchase Common Stock issued to the persons named therein | |
4.28
|
A-2 Warrant to Purchase Common Stock issued to the persons named therein | |
4.29
|
Warrant to Purchase Common Stock issued to the persons named therein | |
4.30
|
Warrant to Purchase Common Stock issued to the persons named therein | |
4.31*
|
Warrant to Purchase Common Stock, No. WC-290, issued to Robert J. Neborsky MD Inc Combination Retirement Trust | |
4.32*
|
Warrant to Purchase Common Stock, No. WC-291, issued to S. Neborsky and R Neborsky TTEE Robert J. Neborsky MD Inc Comb Retirement Trust | |
4.33*
|
Warrant to Purchase Common Stock, No. WC-292, issued to S. Neborsky and R Neborsky TTEE Robert J. Neborsky MD Inc Comb Retirement Trust | |
4.34*
|
Warrant to Purchase Common Stock, No. WC-287, issued to Thomas J. DePetrillo | |
5.1
|
Opinion of Bingham McCutchen LLP | |
23.1
|
Consent of J. H. Cohn LLP | |
23.2
|
Consent of Bingham McCutchen LLP (included in Exhibit 5.1) | |
24*
|
Power of Attorney (filed as part of signature page to Registration Statement) |
(1) | Incorporated by reference to the same-numbered exhibit to the Registrants Registration Statement on Form 8-A filed April 27, 2004. | |
(2) | Incorporated by reference to the same-numbered exhibit to the Registrants Registration Statement on Form 10-SB, filed October 2, 2001, as amended. | |
(3) | Incorporated by reference to the same-numbered exhibit to the Registrants Registration Statement on Form S-3, filed June 30, 2004, as amended. | |
(4) | Incorporated by reference to the same-numbered exhibit to the Registrants Quarterly Report on Form 10-Q filed August 12, 2005. | |
* | Previously filed. |
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EXHIBIT 4.27 THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED PURSUANT TO THE EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES (TOGETHER, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. NO. [SEE ATTACHED SCHEDULE] ISSUED: APRIL 8, 2004 A-1 WARRANT TO PURCHASE COMMON STOCK ---------- THIS CERTIFIES THAT, for good and valuable consideration, [SEE ATTACHED SCHEDULE] (the "HOLDER") is entitled to purchase from ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), [SEE ATTACHED SCHEDULE] fully paid and nonassessable shares of Common Stock, par value $0.001 per share ("COMMON STOCK"), of the Company (as adjusted pursuant to Section 3 hereof) (the "WARRANT SHARES") at a price per share equal to Two Dollars ($2.00) (as adjusted pursuant to Section 3 hereof) (the "EXERCISE PRICE"), subject to the provisions and upon the terms and conditions hereinafter set forth. 1. METHOD OF EXERCISE; PAYMENT. (A) Exercise Period. The purchase right represented by this Warrant may be exercised in whole or part by the Holder during the term of this Warrant (as set forth in Section 9 hereof) at any time after the Commencement Date, as defined below, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit A (the "NOTICE OF EXERCISE") duly executed) at the principal office of the Company. If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased shares of Common Stock called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. (B) Exercise. Upon exercise of this Warrant, the Holder shall pay the Company an amount equal to the product of (x) the Exercise Price multiplied by (y) the total number of Warrant Shares purchased pursuant to this Warrant, by wire transfer or certified check payable to the order of the Company or, at any time following the first anniversary of the Warrant Date, if there is not an effective Registration Statement (as defined in the
Registration Rights Agreement) with respect to all of the Warrant Shares, then at the option of the Holder, such amount may be paid by the surrender of a portion of shares of Common Stock then held by the Holder or issuable upon such exercise of this Warrant, which shall be valued and credited toward such amount due to the Company for the exercise of the Warrant based upon the Current Market Price of the Common Stock. The person or persons in whose name(s) any certificate(s) representing the Warrant Shares shall be issuable upon exercise of this Warrant shall be deemed to have become the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the Warrant Shares represented thereby (and such Warrant Shares shall be deemed to have been issued) immediately prior to the close of business on the date upon which this Warrant is exercised. "CURRENT MARKET PRICE" means, in respect of any share of Common Stock on any date herein specified, (1) if there shall not then be a public market for the Common Stock, the higher of (a) the book value per share of Common Stock at such date, and (b) the value per share of Common Stock at such date as determined in good faith by the Board, or (2) if there shall then be a public market for the Common Stock, the higher of (x) the book value per share of Common Stock at such date, and (y) the average of the daily market prices for the 10 consecutive trading days immediately before such date. The daily market price (the "DAILY MARKET PRICE") for each such trading day shall be (i) the closing price on such day on the principal stock exchange (including Nasdaq) on which such Common Stock is then listed or admitted to trading, or quoted, as applicable, (ii) if no sale takes place on such day on any such exchange, the last reported closing price on such day as officially quoted on any such exchange (including Nasdaq), (iii) if the Common Stock is not then listed or admitted to trading on any stock exchange, the last reported closing bid price on such day in the over-the-counter market, as furnished by the National Association of Securities Dealers Automatic Quotation System or the National Quotation Bureau, Inc., (iv) if neither such corporation at the time is engaged in the business of reporting such prices, as furnished by any similar firm then engaged in such business, or (v) if there is no such firm, as furnished by any member of the National Association of Securities Dealers, Inc. (the "NASD") selected mutually by the holder of this Warrant and the Company or, if they cannot agree upon such selection, as selected by two such members of the NASD, one of which shall be selected by holder of this Warrant and one of which shall be selected by the Company. (C) Stock Certificates. In the event of the exercise of this Warrant, certificates for the Warrant Shares so purchased shall be delivered to the Holder within a reasonable time after exercise, but in no case later than the date that is three business days following receipt by the Company of a Notice of Exercise duly completed and executed. 2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Warrant Shares issuable upon the exercise of the rights represented by this Warrant will, upon issuance and receipt of the Exercise -2-
Price therefor, be fully paid and nonassessable, and free from all preemptive rights, rights of first refusal or first offer, taxes, liens and charges with respect to the issuance thereof. During the period within which the rights represented by this Warrant may be exercised, the Company shall at all times have authorized and reserved for issuance a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. 3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and kind of Warrant Shares purchasable upon the exercise of this Warrant and the Exercise Price therefor shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: (A) Reclassification, Consolidation or Reorganization. In case of any reclassification of the Common Stock (other than a change in par value, or as a result of a subdivision or combination), or in case of any consolidation or merger of the Company with or into another corporation (other than a Change of Control, as defined below) (any of which is a "REORGANIZATION TRANSACTION"), the Company, or such successor corporation as the case may be, shall execute a new warrant, providing that the Holder shall have the right to exercise such new warrant, and procure upon such exercise and payment of the same aggregate Exercise Price, in lieu of the Warrant Shares theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property as would be payable for the Warrant Shares issuable upon exercise of this Warrant as if such Warrant Shares were outstanding on the consummation of the Reorganization Transaction. For purposes of this Warrant, the term "CHANGE OF CONTROL" shall mean (i) any acquisition of the Company by means of merger, acquisition, or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the acquiring corporation or its subsidiary or parent (other than a reincorporation transaction or change of domicile) and pursuant to which the holders of the outstanding voting securities of the Company immediately prior to such consolidation, merger or other transaction fail to hold equity securities representing a majority of the voting power of the Company or surviving entity immediately following such consolidation, merger or other transaction (excluding voting securities of the acquiring corporation held by such holders prior to such transaction) or (ii) a sale of all or substantially all of the assets of the Company. (B) Stock Splits, Dividends and Combinations. In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such subdivision or to the issuance of such stock dividend shall be proportionately increased, and the Exercise Price shall be proportionately decreased, and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such combination shall be proportionately decreased, and the Exercise Price shall be proportionately increased, effective at the close of business on the date of such subdivision, stock dividend or combination, as the case may be. -3-
(C) Issuance of Additional Shares. (I) If at any time while this Warrant is outstanding and after June 30, 2004, the Company shall issue or sell any shares of its Common Stock (other than Excluded Shares (as that term is defined below), "ADDITIONAL SHARES") in exchange for consideration in an amount per Additional Share less than the Exercise Price at the time the Additional Shares are issued or sold, then the Exercise Price immediately prior to such issue or sale shall be reduced to a price determined by dividing: (1) an amount equal to the sum of (a) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Exercise Price, plus (b) the consideration, if any, received by the Company upon such issue or sale, by (2) the total number of shares of Common Stock outstanding immediately after such issue or sale. (II) The provisions of Section 3(c)(i) shall not apply to any deemed issuance of Additional Shares for which an adjustment is provided under Section 3(a) or 3(b). No adjustment of the number of shares of Common Stock acquirable upon exercise of this Warrant shall be made under Section 3(c) upon the issuance of any shares of Common Stock which are issued pursuant to the exercise of any warrants or other subscription or purchase rights or pursuant to the exercise of any conversion or exchange rights in any convertible securities, if any such adjustment shall previously have been made upon the issuance of such warrants or other rights or upon the issuance of such convertible securities (or upon the issuance of any warrant or other rights therefor) pursuant to Section 3(d). For purposes of this Warrant the term "EXCLUDED SHARES" means: (i) shares of Common Stock issuable or issued after the Closing Date to officers, employees, consultants or directors of the Company directly or pursuant to a stock purchase, stock option, restricted stock or other written compensation plan or agreement approved by the Board of Directors of the Company (the "BOARD"); (ii) shares of Common Stock issued or issuable after the Closing Date, primarily for non-equity financing purposes and as approved by the Board, to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or similar transactions or to vendors of goods or services or customers; (iii) shares of Common Stock issuable upon (a) exercise of warrants, options, notes or other rights to acquire securities of the Company, in each case, outstanding on the issuance date of this Warrant (the "WARRANT Date"), (b) conversion of shares of the Company's Preferred Stock, par value $0.01 per share, outstanding on the Warrant Date, (c) exchange of promissory notes issued by the Company outstanding on the Warrant Date, (iv) the Shares (as such term is defined Common Stock and Warrant Purchase Agreement, dated as of the Warrant Date, among the Company and the persons and entities listed on Schedule 1 thereto (the "PURCHASE AGREEMENT")); (v) the Warrants (as such term is defined in the Purchase Agreement); (vi) capital stock or warrants or options to purchase capital stock issued in connection with bona fide acquisitions, mergers or similar transactions, the terms of which -4-
are approved by the Board; (vii) shares of Common Stock issued or issuable to licensors of technology of the Company to pay expenses, royalties or milestone payments for which the Company is obligated under any licensing or related agreement; (viii) shares of Common Stock issuable or issued pursuant to stock splits, stock dividends and the like, or (ix) shares of Common Stock issued or issuable by way of dividend or other distribution on Excluded Shares. (D) Issuance of Common Stock Equivalents. (I) If at any time while this Warrant is outstanding the Company shall issue or sell any warrants or other rights to subscribe for or purchase any additional shares of Common Stock or any securities convertible into shares of Common Stock (other than the Additional Shares) (collectively, "COMMON STOCK EQUIVALENTS"), whether or not the rights to exchange or convert thereunder are immediately exercisable, and the effective price per share for which Common Stock is issuable upon the exercise, exchange or conversion of such Common Stock Equivalents shall be less than the Exercise Price in effect immediately prior to the time of such issue or sale, then the Exercise Price shall be adjusted as provided in Section 3(c) on the basis that the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued and outstanding and the Company shall have received all of the consideration payable therefor, if any, as of the date of the actual issuance of such Common Stock Equivalents. No further adjustments to the current Warrant Price shall be made under this Section 3(d) upon the actual issue of such Common Stock upon the exercise, conversion or exchange of such Common Stock Equivalents. (II) Upon the expiration or termination of any such Common Stock Equivalents, the Exercise Price, to the extent in any way affected by or computed using such Common Stock Equivalents, shall be recomputed to reflect the issuance of the total number of shares of Common Stock (and convertible or exchangeable securities which remain in effect) actually issued upon the exercise, exchange or conversion of such Common Stock Equivalents to the extent that this Warrant is then outstanding. (E) Other Action Affecting Common Stock. In case at any time or from time to time the Company shall take any action in respect of its Common Stock, other than the payment of dividends permitted by Section 3 or any other action described in Section 3, then, unless such action will not have a materially adverse effect upon the rights of the Holder, the number of shares of Common Stock or other stock into which this Warrant is exercisable and/or the purchase price thereof shall be adjusted in such manner as may be equitable in the circumstances. (F) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Exercise Price, the Company, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to the Holder of this Warrant a certificate setting forth such adjustment or readjustment and -5-
showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of the Holder of this Warrant, furnish or cause to be furnished to such Holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Exercise Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, or other property which at the time would be received upon the exercise of Warrants owned by such Holder. (G) Notice of Corporate Action. If at any time: (i) the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend (other than a cash dividend payable out of earnings or earned surplus legally available for the payment of dividends under the laws of the jurisdiction of incorporation of the Company) or other distribution, or any right to subscribe for or purchase any evidences of its indebtedness, any shares of stock of any class or any other securities or property, or to receive any other right, or (ii) there shall be any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any consolidation or merger of the Company with, or any sale, transfer or other disposition of all or substantially all the property, assets or business of the Company to, another corporation, or (iii) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in any one or more of such cases, the Company shall give to the Holder (i) at least 10-days' prior written notice of the date on which a record date shall be selected for such dividend, distribution or right or for determining rights to vote in respect of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, and (ii) in the case of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, at least 10-days' prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause also shall specify (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, the date on which the holders of Common Stock shall be entitled to any such dividend, distribution or right, and the amount and character thereof, and (ii) the date on which any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up is to take place and the time, if any such time is to be fixed, as of which the holders of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up. Each such written notice shall be sufficiently given if addressed to the Holder at the last address of the Holder appearing on the books of the Company and delivered in accordance with Section 11(d). (H) Adjustment if Registration Statement Not Effective. If a Registration Statement (as defined in the Registration Rights Agreement, dated as of the Warrant Date, among the Company and the persons and entities listed on Schedule 1 thereto (the "REGISTRATION RIGHTS -6-
AGREEMENT")) is not effective with respect to all the Registrable Securities (as defined in the Registration Rights Agreement), other than Regisrtable Securities held by holders (i) which have not complied with the Registration Rights Agreement, including, without limitation, Section 4 thereof, or (ii) have otherwise not permitted the Company to include such Registrable Securities on the Registration Statement, on or prior to November 12, 2004, then the Exercise Price shall be adjusted to equal $1.50 (subject to adjustment for stock splits, reverse splits, stock dividends and the like, and subject to adjustment in proportion to any adjustment pursuant to Section 3(c)). 4. TRANSFER OF WARRANT. This Warrant may only be transferred in compliance with federal and state securities laws; provided, however, that the Company may withhold its consent to transfer or assignment of this Warrant to any person or entity who is deemed to be a competitor or prospective competitor of the Company, such determination to be made in the reasonable judgment of the Board. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant or the resale of the Warrant Stock, this Warrant or the Warrant Stock, as applicable, shall not be registered under the Securities Act, the Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant or the Warrant Stock as the case may be, furnish to the Company a written opinion of counsel that is reasonably acceptable to the Company to the effect that such transfer may be made without registration under the Securities Act, (ii) that the Holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company and substantially in the form attached as Exhibit B hereto and (iii) that the transferee be an "accredited investor" as defined in Rule 501(a) promulgated under the Securities Act. Transfer of this Warrant and all rights hereunder, in whole or in part, in accordance with the foregoing provisions, shall be registered on the books of the Company to be maintained for such purpose, upon surrender of this Warrant at the principal office of the Company or the office or agency designated by the Company, together with a written assignment of this Warrant substantially in the form of Exhibit C hereto duly executed by the Holder or its attorney-in-fact and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Following a transfer that complies with the requirements of this Section 4, the Warrant may be exercised by a new Holder for the purchase of shares of Common Stock regardless of whether the Company issued or registered a new Warrant on the books of the Company. This Section 4 shall survive the exercise or expiration of the Warrant. 5. CONDITIONS TO EXERCISE OF WARRANT. (A) Each certificate evidencing the Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED -7-
UNDER THE ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH. (B) REMOVAL OF LEGEND AND TRANSFER RESTRICTIONS. Any legend endorsed on a certificate pursuant to this Section 5 shall be removed, and the Company shall issue a certificate without such legend to the holder of such Warrant Shares if (i) such Warrant Shares are resold pursuant to a registration statement under the Securities Act of 1933, as amended, and a prospectus meeting the requirements of Section 10 of the Securities Act is delivered or deemed delivered to the purchaser of such Warrant Shares, (ii) if such holder satisfies the requirements of Rule 144(k) or (iii) if such holder provides the Company with an opinion of counsel for such holder of the Warrant Shares, reasonably satisfactory to the Company, to the effect that a sale, transfer or assignment of such Warrant Shares may be made without registration. This paragraph shall survive any exercise of this Warrant. (C) RESTRICTIONS ON EXERCISE AMOUNT. Unless a Holder delivers to the Company irrevocable written notice (x) prior to the date of issuance hereof or 61 days prior to the effective date of such notice that this Section 5(c) shall not apply to such Holder or (y) prior to a Change of Control, the Holder may not acquire a number of Warrant Shares to the extent that, upon such exercise, the number of shares of Common Stock then beneficially owned by such Holder and its affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), (including shares held by any "group" of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) exceeds 9.99% of the total number of shares of Common Stock of the Company then issued and outstanding. For purposes hereof, "group" has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Securities Exchange Commission (the "COMMISSION"), and the percentage held by the holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. Each delivery of a notice of exercise by a Holder will constitute a representation by such Holder that it has evaluated the limitation set forth in this paragraph and determined, based on the most recent public filings by the Company with the Commission, that the issuance of the full number of Warrant Shares requested in such notice of exercise is permitted under this paragraph. 6. FRACTIONAL SHARES. No fractional Warrant Shares will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Exercise Price then in effect. 7. REGISTRATION RIGHTS. The Holder shall have the registration rights described in the Registration Rights Agreement. 8. RIGHTS OF STOCKHOLDERS. No Holder shall be entitled, as a Warrant holder, to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall -8-
anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value, consolidation, merger, conveyance, or otherwise) or to receive dividends or subscription rights or otherwise with respect to the Warrant Shares until this Warrant shall have been exercised and the Warrant Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. 9. TERM OF WARRANT. This Warrant shall become exercisable on the Warrant Date and shall no longer be exercisable as of the earlier of (i) 5:00 p.m., San Diego, California local time, on the date that is the five-year anniversary of the Warrant Date; and (ii) upon consummation of a Change of Control. 10. REDEMPTION AT COMPANY'S ELECTION. The Company may at the option of the Board, by at least seven-days' prior written notice to the Holder (the "REDEMPTION NOTICE"), redeem this Warrant, in whole or in part, at any time after June 30, 2004, provided that (i) the Daily Market Price for twenty consecutive trading days is equal to or greater than the product of (x) 2 multiplied by (y) the Exercise Price, (ii) either (A) all of the Warrant Shares underlying this Warrant to be redeemed are then registered under an effective registration statement or (B) may be sold pursuant to Rule 144 during a three-month period without registration under the Securities Act, (iii) sufficient shares of Common Stock of the Company are authorized and reserved for issuance upon the full exercise of this Warrant, (iv) all of the Warrant Shares issuable upon exercise of this Warrant are then listed on every stock exchange, market or bulletin board on which any Common Stock of the Company is then listed and (v) the Company is not in default of any material provision of any Transaction Agreement (as defined in the Purchase Agreement). The Redemption Notice shall set forth a date, not less than seven days after the date of the Redemption Notice, on which the redemption of this Warrant shall occur (the "REDEMPTION DATE"). On the Redemption Date, (i) the Company shall pay the Holder by certified check an amount equal to the product of (x) $0.01 (as adjusted in proportion to any adjustment to the Exercise Price pursuant to Section 3 hereof) multiplied by (y) the number of Warrant Shares so redeemed; and (ii) the Holder shall deliver the original copy of this Warrant marked "REDEEMED" to the Company. If the Company shall redeem this Warrant in part, the Company shall, at the Redemption Date, provided that the Holder shall have delivered the original copy of this Warrant marked "REDEEMED" to the Company, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unredeemed shares of Common Stock called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. Nothing in this Section 10 shall prevent the exercise of the Warrants at any time prior to the Redemption Date. 11. MISCELLANEOUS. (A) This Warrant is being delivered in the State of California and shall be construed and enforced in accordance with and governed by the laws of the State of California, without giving effect to principles of conflicts of laws. -9-
(B) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. (C) The terms of this Warrant shall be binding upon and shall inure to the benefit of any successors or assigns of the Company and of the Holder and of the Warrant Shares issued or issuable upon the exercise hereof. (D) Any notice provided for or permitted under this Warrant shall be treated as having been given (a) upon receipt, when delivered personally or sent by confirmed facsimile or telecopy, (b) one day after sending, when sent by commercial overnight courier with written verification of receipt, or (c) three business days after deposit with the United States Postal Service, when mailed postage prepaid by certified or registered mail, return receipt requested, addressed (a) if to the Company, at 9948 Hibert Street, Suite 100, San Diego, CA 92131, facsimile: (858) 271-9678, Attention: Nicholas J. Virca, or, if to the Holder, at such address or facsimile number as the Holder shall have furnished to the Company in writing, or at such other place of which the other party has been notified in accordance with the provisions of this Section 11(d). (E) This Warrant constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. (F) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company at the Holder's expense will execute and deliver to the holder of record, in lieu thereof, a new Warrant of like date and tenor. (G) This Warrant and any provision hereof may be amended, waived or terminated only by an instrument in writing signed by the Company and the Holder. (H) Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to the foregoing terms and conditions. [Signature page follows.] -10-
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer. Issued: April 8, 2004 ADVENTRX PHARMACEUTICALS, INC. By: /s/ Nicholas J. Virca ------------------------------------ Nicholas J. Virca President & CEO SIGNATURE PAGE TO THE A-1 WARRANT TO PURCHASE COMMON STOCK
EXHIBIT A NOTICE OF EXERCISE TO: ADVENTRX Pharmaceuticals, Inc. 9948 Hibert Street, Suite 100 San Diego, CA 92131 1. The undersigned hereby elects to purchase ____________ shares of Common Stock, par value $0.001 per share, of the Company ("COMMON STOCK") pursuant to the terms of Section 1(b) of the A-1 Warrant to Purchase Common Stock dated ___________ 2004 (the "WARRANT"), and tenders herewith payment of the purchase price of such shares in full. 2. The undersigned hereby elects to convert the attached Warrant into Common Stock of Adventrx Pharmaceuticals, Inc. through "cashless exercise" in the manner specified in the Warrant. This conversion is exercised with respect to _____________________ of the Shares covered by the Warrant. Please issue a certificate or certificates representing said _________ shares of Common Stock in the name of the undersigned or in such other name as is specified below: Name: ---------------------------------- Address: ------------------------------- ------------------------------- The undersigned hereby represents and warrants that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale, in connection with the distribution thereof, and that the undersigned has no present intention of distributing or reselling such shares, and that all representations and warranties of the undersigned with respect to the Warrant and Warrant Shares (as defined in the Warrant) set forth in Section 4 of the Purchase Agreement (as defined in the Warrant) were true and correct as of the Warrant Date (as defined in the Warrant) and are true and correct as of the date hereof. ---------------------------------------- By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Date: ---------------------------------
EXHIBIT B FORM OF INVESTMENT REPRESENTATION LETTER In connection with the acquisition of [warrants (the "Warrants") to purchase _______ shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. (the "Company"), par value $0.001 per share (the "Common Stock")][________ shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. (the "Company"), par value $0.001 per share (the "Common Stock")], by _______________ (the "Holder") from _____________, the Holder hereby represents and warrants to the Company as follows: The Holder (i) is an "Accredited Investor" as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the "Act"); and (ii) has the ability to bear the economic risks of such Holder's prospective investment, including a complete loss of Holder's investment in the Warrants and the shares of Common Stock issuable upon the exercise thereof (collectively, the "Securities"). The Holder, by acceptance of the Warrants, represents and warrants to the Company that the Warrants and all securities acquired upon any and all exercises of the Warrants are purchased for the Holder's own account, and not with view to distribution of either the Warrants or any securities purchasable upon exercise thereof in violation of applicable securities laws. The Holder acknowledges that (i) the Securities have not been registered under the Act, (ii) the Securities are "restricted securities" and the certificate(s) representing the Securities shall bear the following legend, or a similar legend to the same effect, until (i) in the case of the shares of Common Stock underlying the Warrants, such shares shall have been registered for resale by the Holder under the Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Act: "[NEITHER] THE SECURITIES REPRESENTED BY THIS CERTIFICATE [NOR THE SECURITIES INTO WHICH THEY ARE EXERCISABLE] HAVE [NOT] BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND ALL SUCH SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. [NEITHER] THE SECURITIES REPRESENTED HEREBY [NOR THE SECURITIES INTO WHICH THEY ARE EXERCISABLE] MAY [NOT] BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT." IN WITNESS WHEREOF, the Holder has caused this Investment Representation Letter to be executed in its corporate name by its duly authorized officer this __ day of __________ 200_. [Name] By: --------------------------------- Name: ------------------------------- Title: ------------------------------
EXHIBIT C ASSIGNMENT FORM FOR VALUE RECEIVED the undersigned registered owner of this Warrant for the purchase of shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of common stock set forth below: - ------------------------------------- - ------------------------------------- - ------------------------------------- (Name and Address of Assignee) - ------------------------------------- (Number of Shares of Common Stock) and does hereby irrevocably constitute and appoint ____________ attorney-in-fact to register such transfer on the books of the Company, maintained for the purpose, with full power of substitution in the premises. Dated: ------------------------------ - ------------------------------------- (Print Name and Title) - ------------------------------------- (Signature) - ------------------------------------- (Witness) NOTICE: The signature on this assignment must correspond with the name as written upon the face of the Warrant in every particular, without alteration or enlargement or any change whatsoever.
SCHEDULE OF WARRANTHOLDERS ADVENTRX Pharmaceuticals, Inc. issued this form of A-1 Warrant to Purchase Common Stock to each of the persons listed below for the purchase of up to the number of shares of Common Stock listed opposite such person's name below. HOLDER WARRANT NO. SHARES - ------ ----------- ------ Andrew J. Maffey WA1-86 5,100 Centrum Bank AG WA1-57 9,000 North Sound Legacy Institutional Fund LLC WA1-92 3,600 North Sound Legacy Institutional Fund LLC WA1-85 18,600 North Sound Legacy International Ltd WA1-83 40,200 Legend Merchant Group, Inc. WA1-67 1,500 Robert J. Neborsky MD Inc Combination Retirement Trust WA1-89 49,500 Robert J. Neborsky MD Inc Combination Retirement Trust WA1-90 49,500 North Sound Legacy Institutional Fund LLC WA1-93 1,200
EXHIBIT 4.28 THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED PURSUANT TO THE EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES (TOGETHER, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. NO. [SEE ATTACHED SCHEDULE] ISSUED: APRIL 8, 2004 A-2 WARRANT TO PURCHASE COMMON STOCK ---------- THIS CERTIFIES THAT, for good and valuable consideration, [SEE ATTACHED SCHEDULE] (the "HOLDER") is entitled to purchase from ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), [SEE ATTACHED SCHEDULE] fully paid and nonassessable shares of Common Stock, par value $0.001 per share ("COMMON STOCK"), of the Company (as adjusted pursuant to Section 3 hereof) (the "WARRANT SHARES") at a price per share equal to Two Dollars and Fifty Cents ($2.50) (as adjusted pursuant to Section 3 hereof) (the "EXERCISE PRICE"), subject to the provisions and upon the terms and conditions hereinafter set forth. 1. METHOD OF EXERCISE; PAYMENT. (A) Exercise Period. The purchase right represented by this Warrant may be exercised in whole or part by the Holder during the term of this Warrant (as set forth in Section 9 hereof) at any time after the Commencement Date, as defined below, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit A (the "NOTICE OF EXERCISE") duly executed) at the principal office of the Company. If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased shares of Common Stock called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. (B) Exercise. Upon exercise of this Warrant, the Holder shall pay the Company an amount equal to the product of (x) the Exercise Price multiplied by (y) the total number of Warrant Shares purchased pursuant to this Warrant, by wire transfer or certified check payable to the order of the Company or, at any time following the first anniversary of the Warrant Date, if there is not an effective Registration Statement (as defined in the
Registration Rights Agreement, dated as of the Warrant Date, among the Company and the persons and entities listed on Schedule 1 thereto (the "REGISTRATION RIGHTS AGREEMENT") with respect to all of the Warrant Shares, then at the option of the Holder, such amount may be paid by the surrender of a portion of shares of Common Stock then held by the Holder or issuable upon such exercise of this Warrant, which shall be valued and credited toward such amount due to the Company for the exercise of the Warrant based upon the Current Market Price of the Common Stock. The person or persons in whose name(s) any certificate(s) representing the Warrant Shares shall be issuable upon exercise of this Warrant shall be deemed to have become the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the Warrant Shares represented thereby (and such Warrant Shares shall be deemed to have been issued) immediately prior to the close of business on the date upon which this Warrant is exercised. "CURRENT MARKET PRICE" means, in respect of any share of Common Stock on any date herein specified, (1) if there shall not then be a public market for the Common Stock, the higher of (a) the book value per share of Common Stock at such date, and (b) the value per share of Common Stock at such date as determined in good faith by the Board, or (2) if there shall then be a public market for the Common Stock, the higher of (x) the book value per share of Common Stock at such date, and (y) the average of the daily market prices for the 10 consecutive trading days immediately before such date. The daily market price (the "DAILY MARKET PRICE") for each such trading day shall be (i) the closing price on such day on the principal stock exchange (including Nasdaq) on which such Common Stock is then listed or admitted to trading, or quoted, as applicable, (ii) if no sale takes place on such day on any such exchange, the last reported closing price on such day as officially quoted on any such exchange (including Nasdaq), (iii) if the Common Stock is not then listed or admitted to trading on any stock exchange, the last reported closing bid price on such day in the over-the-counter market, as furnished by the National Association of Securities Dealers Automatic Quotation System or the National Quotation Bureau, Inc., (iv) if neither such corporation at the time is engaged in the business of reporting such prices, as furnished by any similar firm then engaged in such business, or (v) if there is no such firm, as furnished by any member of the National Association of Securities Dealers, Inc. (the "NASD") selected mutually by the holder of this Warrant and the Company or, if they cannot agree upon such selection, as selected by two such members of the NASD, one of which shall be selected by holder of this Warrant and one of which shall be selected by the Company. (C) Stock Certificates. In the event of the exercise of this Warrant, certificates for the Warrant Shares so purchased shall be delivered to the Holder within a reasonable time after -2-
exercise, but in no case later than the date that is three business days following receipt by the Company of a Notice of Exercise duly completed and executed. 2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Warrant Shares issuable upon the exercise of the rights represented by this Warrant will, upon issuance and receipt of the Exercise Price therefor, be fully paid and nonassessable, and free from all preemptive rights, rights of first refusal or first offer, taxes, liens and charges with respect to the issuance thereof. During the period within which the rights represented by this Warrant may be exercised, the Company shall at all times have authorized and reserved for issuance a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. 3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and kind of Warrant Shares purchasable upon the exercise of this Warrant and the Exercise Price therefor shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: (A) Reclassification, Consolidation or Reorganization. In case of any reclassification of the Common Stock (other than a change in par value, or as a result of a subdivision or combination), or in case of any consolidation or merger of the Company with or into another corporation (other than a Change of Control, as defined below) (any of which is a "REORGANIZATION TRANSACTION"), the Company, or such successor corporation as the case may be, shall execute a new warrant, providing that the Holder shall have the right to exercise such new warrant, and procure upon such exercise and payment of the same aggregate Exercise Price, in lieu of the Warrant Shares theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property as would be payable for the Warrant Shares issuable upon exercise of this Warrant as if such Warrant Shares were outstanding on the consummation of the Reorganization Transaction. For purposes of this Warrant, the term "CHANGE OF CONTROL" shall mean (i) any acquisition of the Company by means of merger, acquisition, or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the acquiring corporation or its subsidiary or parent (other than a reincorporation transaction or change of domicile) and pursuant to which the holders of the outstanding voting securities of the Company immediately prior to such consolidation, merger or other transaction fail to hold equity securities representing a majority of the voting power of the Company or surviving entity immediately following such consolidation, merger or other transaction (excluding voting securities of the acquiring corporation held by such holders prior to such transaction) or (ii) a sale of all or substantially all of the assets of the Company. (B) Stock Splits, Dividends and Combinations. In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such subdivision or to the issuance of such stock dividend shall be proportionately increased, and the Exercise Price shall be proportionately decreased, and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such combination shall be proportionately decreased, -3-
and the Exercise Price shall be proportionately increased, effective at the close of business on the date of such subdivision, stock dividend or combination, as the case may be. (C) Issuance of Additional Shares. (I) If at any time while this Warrant is outstanding and after June 30, 2004, the Company shall issue or sell any shares of its Common Stock, other than Excluded Shares (as that term is defined below) ("ADDITIONAL SHARES"), in exchange for consideration in an amount per Additional Share less than the Exercise Price at the time the Additional Shares are issued or sold, then the Exercise Price immediately prior to such issue or sale shall be reduced to a price determined by dividing: (1) an amount equal to the sum of (a) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then existing Exercise Price, plus (b) the consideration, if any, received by the Company upon such issue or sale, by (2) the total number of shares of Common Stock outstanding immediately after such issue or sale. (II) The provisions of Section 3(c)(i) shall not apply to any deemed issuance of Additional Shares for which an adjustment is provided under Section 3(a) or 3(b). No adjustment of the number of shares of Common Stock acquirable upon exercise of this Warrant shall be made under Section 3(c) upon the issuance of any shares of Common Stock which are issued pursuant to the exercise of any warrants or other subscription or purchase rights or pursuant to the exercise of any conversion or exchange rights in any convertible securities, if any such adjustment shall previously have been made upon the issuance of such warrants or other rights or upon the issuance of such convertible securities (or upon the issuance of any warrant or other rights therefor) pursuant to Section 3(d). For purposes of this Warrant the term "EXCLUDED SHARES" means: (i) shares of Common Stock issuable or issued after the Closing Date to officers, employees, consultants or directors of the Company directly or pursuant to a stock purchase, stock option, restricted stock or other written compensation plan or agreement approved by the Board of Directors of the Company (the "BOARD"); (ii) shares of Common Stock issued or issuable after the Closing Date, primarily for non-equity financing purposes and as approved by the Board, to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or similar transactions or to vendors of goods or services or customers; (iii) shares of Common Stock issuable upon (a) exercise of warrants, options, notes or other rights to acquire securities of the Company, in each case, outstanding on the issuance date of this Warrant (the "WARRANT DATE"), (b) conversion of shares of the Company's Preferred Stock, par value $0.01 per share, outstanding on the Warrant Date, (c) exchange of promissory notes issued by the Company outstanding on the Warrant Date, (iv) the Shares (as such term is defined in the Common Stock and Warrant Purchase Agreement, dated as of the Warrant Date, among the Company and the persons and entities listed on Schedule 1 -4-
thereto (the "PURCHASE AGREEMENT")); (v) the Warrants (as such term is defined in the Purchase Agreement); (vi) capital stock or warrants or options to purchase capital stock issued in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by the Board; (vii) shares of Common Stock issued or issuable to licensors of technology of the Company to pay expenses, royalties or milestone payments for which the Company is obligated under any licensing or related agreement; (viii) shares of Common Stock issuable or issued pursuant to stock splits, stock dividends and the like, or (ix) shares of Common Stock issued or issuable by way of dividend or other distribution on Excluded Shares. (D) Issuance of Common Stock Equivalents. (I) If at any time while this Warrant is outstanding the Company shall issue or sell any warrants or other rights to subscribe for or purchase any additional shares of Common Stock or any securities convertible into shares of Common Stock (other than the Additional Shares) (collectively, "COMMON STOCK EQUIVALENTS"), whether or not the rights to exchange or convert thereunder are immediately exercisable, and the effective price per share for which Common Stock is issuable upon the exercise, exchange or conversion of such Common Stock Equivalents shall be less than the Exercise Price in effect immediately prior to the time of such issue or sale, then the Exercise Price shall be adjusted as provided in Section 3(c) on the basis that the maximum number of additional shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall be deemed to have been issued and outstanding and the Company shall have received all of the consideration payable therefor, if any, as of the date of the actual issuance of such Common Stock Equivalents. No further adjustments to the current Warrant Price shall be made under this Section 3(d) upon the actual issue of such Common Stock upon the exercise, conversion or exchange of such Common Stock Equivalents. (II) Upon the expiration or termination of any such Common Stock Equivalents, the Exercise Price, to the extent in any way affected by or computed using such Common Stock Equivalents, shall be recomputed to reflect the issuance of the total number of shares of Common Stock (and convertible or exchangeable securities which remain in effect) actually issued upon the exercise, exchange or conversion of such Common Stock Equivalents to the extent that this Warrant is then outstanding. (E) Other Action Affecting Common Stock. In case at any time or from time to time the Company shall take any action in respect of its Common Stock, other than the payment of dividends permitted by Section 3 or any other action described in Section 3, then, unless such action will not have a materially adverse effect upon the rights of the Holder, the number of shares of Common Stock or other stock into which this Warrant is exercisable and/or the purchase price thereof shall be adjusted in such manner as may be equitable in the circumstances. -5-
(F) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Exercise Price, the Company, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to the Holder of this Warrant a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of the Holder of this Warrant, furnish or cause to be furnished to such Holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Exercise Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, or other property which at the time would be received upon the exercise of Warrants owned by such Holder. (G) Notice of Corporate Action. If at any time: (i) the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend (other than a cash dividend payable out of earnings or earned surplus legally available for the payment of dividends under the laws of the jurisdiction of incorporation of the Company) or other distribution, or any right to subscribe for or purchase any evidences of its indebtedness, any shares of stock of any class or any other securities or property, or to receive any other right, or (ii) there shall be any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any consolidation or merger of the Company with, or any sale, transfer or other disposition of all or substantially all the property, assets or business of the Company to, another corporation, or (iii) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in any one or more of such cases, the Company shall give to the Holder (i) at least 10-days' prior written notice of the date on which a record date shall be selected for such dividend, distribution or right or for determining rights to vote in respect of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, and (ii) in the case of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, at least 10-days' prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause also shall specify (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, the date on which the holders of Common Stock shall be entitled to any such dividend, distribution or right, and the amount and character thereof, and (ii) the date on which any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up is to take place and the time, if any such time is to be fixed, as of which the holders of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up. Each such written notice shall be sufficiently given if addressed to the Holder at the last address of the Holder appearing on the books of the Company and delivered in accordance with Section 11(d). -6-
4. TRANSFER OF WARRANT. This Warrant may only be transferred in compliance with federal and state securities laws; provided, however, that the Company may withhold its consent to transfer or assignment of this Warrant to any person or entity who is deemed to be a competitor or prospective competitor of the Company, such determination to be made in the reasonable judgment of the Board. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant or the resale of the Warrant Stock, this Warrant or the Warrant Stock, as applicable, shall not be registered under the Securities Act, the Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant or the Warrant Stock as the case may be, furnish to the Company a written opinion of counsel that is reasonably acceptable to the Company to the effect that such transfer may be made without registration under the Securities Act, (ii) that the Holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company and substantially in the form attached as Exhibit B hereto and (iii) that the transferee be an "accredited investor" as defined in Rule 501(a) promulgated under the Securities Act. Transfer of this Warrant and all rights hereunder, in whole or in part, in accordance with the foregoing provisions, shall be registered on the books of the Company to be maintained for such purpose, upon surrender of this Warrant at the principal office of the Company or the office or agency designated by the Company, together with a written assignment of this Warrant substantially in the form of Exhibit C hereto duly executed by the Holder or its attorney-in-fact and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Following a transfer that complies with the requirements of this Section 4, the Warrant may be exercised by a new Holder for the purchase of shares of Common Stock regardless of whether the Company issued or registered a new Warrant on the books of the Company. This Section 4 shall survive the exercise or expiration of the Warrant. 5. CONDITIONS TO EXERCISE OF WARRANT. (A) Each certificate evidencing the Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH. -7-
(B) REMOVAL OF LEGEND AND TRANSFER RESTRICTIONS. Any legend endorsed on a certificate pursuant to this Section 5 shall be removed, and the Company shall issue a certificate without such legend to the holder of such Warrant Shares if (i) such Warrant Shares are resold pursuant to a registration statement under the Securities Act of 1933, as amended, and a prospectus meeting the requirements of Section 10 of the Securities Act is delivered or deemed delivered to the purchaser of such Warrant Shares, (ii) if such holder satisfies the requirements of Rule 144(k) or (iii) if such holder provides the Company with an opinion of counsel for such holder of the Warrant Shares, reasonably satisfactory to the Company, to the effect that a sale, transfer or assignment of such Warrant Shares may be made without registration. This paragraph shall survive any exercise of this Warrant. (C) RESTRICTIONS ON EXERCISE AMOUNT. Unless a Holder delivers to the Company irrevocable written notice (x) prior to the date of issuance hereof or 61 days prior to the effective date of such notice that this Section 5(c) shall not apply to such Holder or (y) prior to a Change of Control, the Holder may not acquire a number of Warrant Shares to the extent that, upon such exercise, the number of shares of Common Stock then beneficially owned by such Holder and its affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), (including shares held by any "group" of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) exceeds 9.99% of the total number of shares of Common Stock of the Company then issued and outstanding. For purposes hereof, "group" has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Commission, and the percentage held by the holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. Each delivery of a notice of exercise by a Holder will constitute a representation by such Holder that it has evaluated the limitation set forth in this paragraph and determined, based on the most recent public filings by the Company with the Commission, that the issuance of the full number of Warrant Shares requested in such notice of exercise is permitted under this paragraph. 6. FRACTIONAL SHARES. No fractional Warrant Shares will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Exercise Price then in effect. 7. REGISTRATION RIGHTS. The Holder shall have the registration rights described in the Registration Rights Agreement. 8. RIGHTS OF STOCKHOLDERS. No Holder shall be entitled, as a Warrant holder, to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value, consolidation, merger, conveyance, or otherwise) or to receive dividends or -8-
subscription rights or otherwise with respect to the Warrant Shares until this Warrant shall have been exercised and the Warrant Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. 9. TERM OF WARRANT. This Warrant shall become exercisable on the Warrant Date and shall no longer be exercisable as of the earlier of (i) 5:00 p.m., San Diego, California local time, on the date that is the five-year anniversary of the Warrant Date; and (ii) upon consummation of a Change of Control. 10. REDEMPTION AT COMPANY'S ELECTION. The Company may at the option of the Board, by at least seven-days' prior written notice to the Holder (the "REDEMPTION NOTICE"), redeem this Warrant, in whole or in part, at any time, provided that (i) the Daily Market Price for twenty consecutive trading days is equal to or greater than the product of (x) 2 multiplied by (y) the Exercise Price, (ii) either (A) all of the Warrant Shares underlying this Warrant to be redeemed are then registered under an effective registration statement or (B) may be sold pursuant to Rule 144 during a three-month period without registration under the Securities Act, (iii) sufficient shares of Common Stock of the Company are authorized and reserved for issuance upon the full exercise of this Warrant, (iv) all of the Warrant Shares issuable upon exercise of this Warrant are then listed on every stock exchange, market or bulletin board on which any Common Stock of the Company is then listed and (v) the Company is not in default of any material provision of any Transaction Agreement (as defined in the Purchase Agreement). The Redemption Notice shall set forth a date, not less than seven days after the date of the Redemption Notice, on which the redemption of this Warrant shall occur (the "REDEMPTION DATE"). On the Redemption Date, (i) the Company shall pay the Holder by certified check an amount equal to the product of (x) $0.001 (as adjusted in proportion to any adjustment to the Exercise Price pursuant to Section 3 hereof) multiplied by (y) the number of Warrant Shares so redeemed; and (ii) the Holder shall deliver the original copy of this Warrant marked "REDEEMED" to the Company. If the Company shall redeem this Warrant in part, the Company shall, at the Redemption Date, provided that the Holder shall have delivered the original copy of this Warrant marked "REDEEMED" to the Company, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unredeemed shares of Common Stock called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. Nothing in this Section 10 shall prevent the exercise of the Warrants at any time prior to the Redemption Date. 11. MISCELLANEOUS. (A) This Warrant is being delivered in the State of California and shall be construed and enforced in accordance with and governed by the laws of the State of California, without giving effect to principles of conflicts of laws. (B) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. (C) The terms of this Warrant shall be binding upon and shall inure to the benefit of any successors or assigns of the Company and of the Holder and of the Warrant Shares issued or issuable upon the exercise hereof. -9-
(D) Any notice provided for or permitted under this Warrant shall be treated as having been given (a) upon receipt, when delivered personally or sent by confirmed facsimile or telecopy, (b) one day after sending, when sent by commercial overnight courier with written verification of receipt, or (c) three business days after deposit with the United States Postal Service, when mailed postage prepaid by certified or registered mail, return receipt requested, addressed (a) if to the Company, at 9948 Hibert Street, Suite 100, San Diego, CA 92131, facsimile: (858) 271-9678, Attention: Nicholas J. Virca, or, if to the Holder, at such address or facsimile number as the Holder shall have furnished to the Company in writing, or at such other place of which the other party has been notified in accordance with the provisions of this Section 11(d). (E) This Warrant constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. (F) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company at the Holder's expense will execute and deliver to the holder of record, in lieu thereof, a new Warrant of like date and tenor. (G) This Warrant and any provision hereof may be amended, waived or terminated only by an instrument in writing signed by the Company and the Holder. (H) Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to the foregoing terms and conditions. [Signature page follows.] -10-
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer. Issued: April 8, 2004 ADVENTRX PHARMACEUTICALS, INC. By: /s/ Nicholas J. Virca ------------------------------------ Nicholas J. Virca President & CEO SIGNATURE PAGE TO THE A-2 WARRANT TO PURCHASE COMMON STOCK
EXHIBIT A NOTICE OF EXERCISE TO: ADVENTRX Pharmaceuticals, Inc. 9948 Hibert Street, Suite 100 San Diego, CA 92131 1. The undersigned hereby elects to purchase ____________ shares of Common Stock, par value $0.001 per share, of the Company ("COMMON STOCK") pursuant to the terms of Section 1(b) of the A-2 Warrant to Purchase Common Stock dated ___________ 2004 (the "WARRANT"), and tenders herewith payment of the purchase price of such shares in full. 2. The undersigned hereby elects to convert the attached Warrant into Common Stock of Adventrx Pharmaceuticals, Inc. through "cashless exercise" in the manner specified in the Warrant. This conversion is exercised with respect to _____________________ of the Shares covered by the Warrant. Please issue a certificate or certificates representing said _________ shares of Common Stock in the name of the undersigned or in such other name as is specified below: Name: ---------------------------------- Address: ------------------------------- ------------------------------- The undersigned hereby represents and warrants that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale, in connection with the distribution thereof, and that the undersigned has no present intention of distributing or reselling such shares, and that all representations and warranties of the undersigned with respect to the Warrants and Warrant Shares (as defined in the Warrant) set forth in Section 4 of the Purchase Agreement (as defined in the Warrant) were true and correct as of the Warrant Date (as defined in the Warrant) and are true and correct as of the date hereof. ---------------------------------------- By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Date: ----------------------------------
EXHIBIT B FORM OF INVESTMENT REPRESENTATION LETTER In connection with the acquisition of [warrants (the "Warrants") to purchase _______ shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. (the "Company"), par value $0.001 per share (the "Common Stock")][________ shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. (the "Company"), par value $0.001 per share (the "Common Stock")], by _______________ (the "Holder") from _____________, the Holder hereby represents and warrants to the Company as follows: The Holder (i) is an "Accredited Investor" as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the "Act"); and (ii) has the ability to bear the economic risks of such Holder's prospective investment, including a complete loss of Holder's investment in the Warrants and the shares of Common Stock issuable upon the exercise thereof (collectively, the "Securities"). The Holder, by acceptance of the Warrants, represents and warrants to the Company that the Warrants and all securities acquired upon any and all exercises of the Warrants are purchased for the Holder's own account, and not with view to distribution of either the Warrants or any securities purchasable upon exercise thereof in violation of applicable securities laws. The Holder acknowledges that (i) the Securities have not been registered under the Act, (ii) the Securities are "restricted securities" and the certificate(s) representing the Securities shall bear the following legend, or a similar legend to the same effect, until (i) in the case of the shares of Common Stock underlying the Warrants, such shares shall have been registered for resale by the Holder under the Act and effectively been disposed of in accordance with a registration statement that has been declared effective; or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Act: "[NEITHER] THE SECURITIES REPRESENTED BY THIS CERTIFICATE [NOR THE SECURITIES INTO WHICH THEY ARE EXERCISABLE] HAVE [NOT] BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND ALL SUCH SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. [NEITHER] THE SECURITIES REPRESENTED HEREBY [NOR THE SECURITIES INTO WHICH THEY ARE EXERCISABLE] MAY [NOT] BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT." IN WITNESS WHEREOF, the Holder has caused this Investment Representation Letter to be executed in its corporate name by its duly authorized officer this __ day of __________ 200_. [Name] By: --------------------------------- Name: ------------------------------- Title: ------------------------------
EXHIBIT C ASSIGNMENT FORM FOR VALUE RECEIVED the undersigned registered owner of this Warrant for the purchase of shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under this Warrant, with respect to the number of shares of common stock set forth below: - ------------------------------------- - ------------------------------------- - ------------------------------------- (Name and Address of Assignee) - ------------------------------------- (Number of Shares of Common Stock) and does hereby irrevocably constitute and appoint ____________ attorney-in-fact to register such transfer on the books of the Company, maintained for the purpose, with full power of substitution in the premises. Dated: ------------------------------ - ------------------------------------- (Print Name and Title) - ------------------------------------- (Signature) - ------------------------------------- (Witness) NOTICE: The signature on this assignment must correspond with the name as written upon the face of the Warrant in every particular, without alteration or enlargement or any change whatsoever.
SCHEDULE OF WARRANTHOLDERS ADVENTRX Pharmaceuticals, Inc. issued this form of A-2 Warrant to Purchase Common Stock to each of the persons listed below for the purchase of up to the number of shares of Common Stock listed opposite such person's name below. HOLDER WARRANT NO. SHARES - ------ ----------- ------ Andrew J. Maffey WA2-65 3,400 Centrum Bank AG WA2-57 6,000 North Sound Legacy Institutional Fund LLC WA2-70 2,400 North Sound Legacy Institutional Fund LLC WA2-62 12,400 North Sound Legacy International Ltd. WA2-64 23,800 Robert J. Neborsky MD Inc Combination Retirement Trust WA2-67 33,000 Robert J. Neborsky MD Inc Combination Retirement Trust WA2-68 33,333 North Sound Legacy Institutional Fund LLC WA2-71 800
EXHIBIT 4.29 THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED PURSUANT TO THE EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES (TOGETHER, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. NO. [SEE ATTACHED SCHEDULE] WARRANT TO PURCHASE COMMON STOCK ---------- THIS CERTIFIES THAT, for good and valuable consideration, [SEE ATTACHED SCHEDULE FOR NAMES OF HOLDERS] (the "HOLDER") is entitled to subscribe for and purchase from Biokeys Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), [SEE ATTACHED SCHEDULE FOR NUMBER OF SHARES] fully paid and nonassessable shares of Common Stock, par value $0.001 per share ("COMMON STOCK"), of the Company (as adjusted pursuant to Section 3 hereof) (the "WARRANT SHARES") at a price per share equal to Sixty Cents ($0.60) (as adjusted pursuant to Section 3 hereof) (the "EXERCISE PRICE"), subject to the provisions and upon the terms and conditions hereinafter set forth. 1. METHOD OF EXERCISE; PAYMENT. (A) Exercise Period. The purchase rights represented by this Warrant may be exercised by the Holder during the term of this Warrant (as set forth in Section 9 hereof) in whole or in part, at any time after the Commencement Date, as defined below, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit A (the "NOTICE OF EXERCISE") duly executed) at the principal office of the Company. (B) Cash Exercise. Upon exercise of this Warrant, the Holder shall pay the Company an amount equal to the Exercise Price multiplied by the number of Warrant Shares being purchased, by wire transfer or certified check payable to the order of the Company. The person or persons in whose name(s) any certificate(s) representing the Warrant Shares shall be issuable upon exercise of this Warrant shall be deemed to have become the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the Warrant Shares represented thereby (and such Warrant Shares shall be deemed to have been issued) immediately prior to the close of business on the date or dates upon which this Warrant is exercised. 1
(C) Stock Certificates. In the event of any exercise of the rights represented by this Warrant, certificates for the Warrant Shares so purchased shall be delivered to the Holder within a reasonable time after exercise and, unless this Warrant has been fully exercised or has expired, a new Warrant representing the shares with respect to which this Warrant shall not have been exercised shall also be issued to the Holder within such time. 2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Warrant Shares issuable upon the exercise of the rights represented by this Warrant will, upon issuance and receipt of the Exercise Price therefor, be fully paid and nonassessable, and free from all preemptive rights, rights of first refusal or first offer, taxes, liens and charges with respect to the issuance thereof. During the period within which the rights represented by this Warrant may be exercised, the Company shall at all times have authorized and reserved for issuance a sufficient number of Warrant Shares to provide for the exercise of the rights represented by this Warrant. 3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and kind of Warrant Shares purchasable upon the exercise of this Warrant and the Exercise Price therefor shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: (A) Reclassification, Consolidation or Reorganization. In case of any reclassification of the Common Stock (other than a change in par value, or as a result of a subdivision or combination), or in case of any consolidation or merger of the Company with or into another corporation (other than a Change of Control, as defined below) (any of which is a "REORGANIZATION TRANSACTION"), the Company, or such successor corporation as the case may be, shall execute a new warrant, providing that the holder of this Warrant shall have the right to exercise such new warrant, and procure upon such exercise and payment of the same aggregate Exercise Price, in lieu of the Warrant Shares theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property as would be payable for the Warrant Shares issuable upon exercise of this Warrant as if such Warrant Shares were outstanding on the consummation of the Reorganization Transaction. For purposes of this Warrant, the term "CHANGE OF CONTROL" shall mean (i) any acquisition of the Company by means of merger, acquisition, or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the acquiring corporation or its subsidiary or parent (other than a reincorporation transaction or change of domicile) and pursuant to which the holders of the outstanding voting securities of the Company immediately prior to such consolidation, merger or other transaction fail to hold equity securities representing a majority of the voting power of the Company or surviving entity immediately following such consolidation, merger or other transaction (excluding voting securities of the acquiring corporation held by such holders prior to such transaction) or (ii) a sale of all or substantially all of the assets of the Company. (B) Stock Splits, Dividends and Combinations. In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such subdivision or to the issuance of such stock dividend shall be proportionately increased, and the Exercise Price shall be 2
proportionately decreased, and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such combination shall be proportionately decreased, and the Exercise Price shall be proportionately increased, effective at the close of business on the date of such subdivision, stock dividend or combination, as the case may be. 4. TRANSFER OF WARRANT. This Warrant may only be transferred in compliance with federal and state securities laws and, except as provided below, may not be transferred except with the prior written consent of the Company, which shall not be unreasonably withheld or delayed, and any purported transfer without such prior written consent shall be null and void; provided, however, that the Company may withhold its consent to transfer or assignment of this Warrant to any person or entity who is deemed to be a competitor or prospective competitor of the Company, such determination to be made in the reasonable judgment of the Board. 5. CONDITION TO EXERCISE OF WARRANT. Each certificate evidencing the Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with a legend substantially in the following form: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. 6. FRACTIONAL SHARES. No fractional Warrant Shares will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Exercise Price then in effect. 7. REPRESENTATIONS AND WARRANTIES BY THE HOLDER. The Holder represents and warrants to the Company as follows: (A) This Warrant is being acquired for the Holder's own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the "SECURITIES ACT"). Upon exercise of this Warrant, the Holder shall, if so requested by the Company, confirm in writing, in a form reasonably satisfactory to the Company, that the Warrant Shares issuable upon exercise of this Warrant are being acquired for investment and not with a view toward distribution or resale. The Holder is an "accredited investor" within the meaning of the Securities Act. (B) The Holder understands that this Warrant and the Warrant Shares have not been registered under the Securities Act by reason of their issuance in a transaction exempt from 3
the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof and that the Company's reliance upon such exemption is predicated, in part, upon the Holder's representations and warranties set forth in this Agreement. The Holder understands that this Warrant and the Warrant Shares must be held by the Holder indefinitely, and that the Holder must therefore bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempted from such registration. The Holder further understands that this Warrant and the Warrant Shares have not been registered under the securities laws of any state. (C) The Holder acknowledges that it is acquiring this Warrant without being offered or furnished any offering literature or prospectus. The Holder understands that neither the United States Securities and Exchange Commission, nor any governmental agency charged with the administration of the securities laws of any state nor any other governmental agency has passed upon or reviewed the merits or qualifications of, or recommended or approved the issuance of this Warrant or the Warrant Shares. (D) The Holder understands that, except as provided in Section 10 of this Warrant, the Company is under no obligation to register this Warrant or the Warrant Shares. (E) The Holder is a bona fide resident and domiciliary (not a temporary or transient resident) of the state indicated in the signature page hereto and the Holder has no present intention of becoming a resident of any other state or jurisdiction. (F) The Holder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of this Warrant and the Warrant Shares purchasable pursuant to the terms of this Warrant and of protecting its interests in connection therewith. The Holder is able to bear the economic risk of the purchase of the Warrant Shares pursuant to the terms of this Warrant. 8. RIGHTS OF STOCKHOLDERS. No holder of this Warrant shall be entitled, as a Warrant holder, to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise with respect to the Warrant Shares until this Warrant shall have been exercised and the Warrant Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. 4
9. TERM OF WARRANT. (A) This Warrant shall become exercisable on the date of issuance set forth below (the "COMMENCEMENT DATE") and shall no longer be exercisable as of the earlier of (i) 5:00 p.m., San Diego, California local time, on the date that is the three-year anniversary of the Commencement Date; (ii) immediately prior to a Change of Control and (iii) 5:00 p.m., San Diego, California local time, on the Call Termination Date (as defined below). (B) Notwithstanding anything herein to the contrary, at any time after the Commencement Date, if the closing price of one share of Common Stock quoted in the over-the-counter market summary, the Bulletin Board Exchange, the Nasdaq National Market or the closing price quoted on a national securities exchange, whichever is applicable, is greater than 200% of the Exercise Price for a period of 20 consecutive trading days, then thereafter the Company shall have the right (the "COMPANY TERMINATION RIGHT"), exercisable at the Company's sole discretion, to terminate this Warrant with at least 10-days' prior written notice (the "TERMINATION NOTICE") which Termination Notice shall state the date this Warrant shall terminate (the "CALL TERMINATION DATE"); provided, however, that the Company may not exercise the Company Termination Right unless a registration statement registering the Warrant Stock has been declared effective and is effective from the date of delivery of the Termination Notice until the Call Termination Date, provided, further, that if this Warrant is terminated pursuant to this Section 9(b), then the Company shall use commercially reasonable efforts to maintain the effectiveness of a registration statement registering the Warrant Stock until the date that is 15 days after the Call Termination Date or, if earlier, the date the Holder shall have sold all its Warrant Shares covered by such registration statement. 10. REGISTRATION RIGHTS. (A) Piggy-back Rights. If (but without any obligation to do so) the Company proposes to register any shares of Common Stock solely for cash pursuant to a registration statement under the Securities Act, other than a registration solely in connection with a transaction under Rule 145 promulgated under the Securities Act (a "PUBLIC OFFERING"), the Company shall promptly give the Holder written notice of such Public Offering, at least 10 business days prior to the filing of the registration statement under the Securities Act regarding such Public Offering. Upon the written request of the Holder given within 5 business days after delivery of such written notice by the Company, the Company shall, subject to the provisions of Section 10(b) below, use its best efforts to cause to be registered under the Securities Act all of the Warrant Shares that the Holder has requested to be registered. (B) Underwriting. If the registration statement under which the Company gives notice under this Section 10 is for an underwritten Public Offering, the Company shall so advise the Holder. The right of the Holder to registration pursuant to Section 10(a) above shall be conditioned upon the Holder's participation in such underwriting and the inclusion of the Warrant Shares in the underwriting to the extent provided herein. The Holder shall (together with the Company and any other holders of Company securities distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 10, if the underwriter determines that 5
marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all of the Warrant Shares from such registration and underwriting. (C) Furnish Information. It shall be a condition to the Company's obligations to take any action under this Section 10 that the Holder shall furnish to the Company such information regarding itself, the Warrant Shares, and the intended method of disposition of such Warrant Shares as shall be required to effect the registration of any Warrant Shares. In that connection, the Holder shall be required to represent to the Company that all such information which is given is both complete and accurate in all material respects when made. (D) Delay of Registration. The Holder shall have no right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 10. (E) Termination of Registration Rights. The Company shall have no obligation to register Warrant Shares pursuant to this Section 10 with respect to any request or requests made by any Holder on or after that date which is one year after the date such Warrant Shares were deemed to be acquired for purposes of determining the holding period of such Warrant Shares under Rule 144 of the Act. 11. MISCELLANEOUS. (A) This Warrant is being delivered in the state of California and shall be construed and enforced in accordance with and governed by the laws of the state of California, without giving effect to principles of conflicts of laws. (B) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. (C) The terms of this Warrant shall be binding upon and shall inure to the benefit of any successors or assigns of the Company and of the Holder and of the Warrant Shares issued or issuable upon the exercise hereof. (D) Any notice provided for or permitted under this Warrant shall be treated as having been given (a) upon receipt, when delivered personally, (b) upon receipt, when sent by confirmed facsimile or telecopy, (c) one day after sending, when sent by commercial overnight courier with written verification of receipt, or (d) three business days after deposit with the United States Postal Service, when mailed postage prepaid by certified or registered mail, return receipt requested, addressed (a) if to the Company, at 9948 Hibert Street, Suite 100, San Diego, CA 92131, facsimile: (858) 271-9678, Attention: Nicholas J. Virca, or (b) if to the Holder, at such address or facsimile number as the Holder shall have furnished to the Company in writing, or at such other place of which the other party has been notified in accordance with the provisions of this Section 11(d). (E) This Warrant constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. 6
(F) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company at the Holder's expense will execute and deliver to the holder of record, in lieu thereof, a new Warrant of like date and tenor. (G) This Warrant and any provision hereof may be amended, waived or terminated only by an instrument in writing signed by the Company and the Holder. (H) Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to the foregoing terms and conditions. [Signature page follows.] 7
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer. Issued May 28, 2003 BIOKEYS PHARMACEUTICALS, INC. By: /s/ Nicholas J. Virca ------------------------------------ Name: Nicholas J. Virca Title: President and Chief Executive Officer [SEE ATTACHED SCHEDULE] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Address: ------------------------------- ------------------------------- Facsimile: ----------------------------- 8
EXHIBIT A NOTICE OF EXERCISE TO: Biokeys Pharmaceuticals, Inc. 9948 Hibert Street, Suite 100 San Diego, CA 92131 The undersigned hereby elects to purchase ____________ shares of Common Stock, par value $0.001 per share, of the Company ("COMMON STOCK") pursuant to the terms of Section 1(b) of the Warrant to Purchase Common Stock dated May ___, 2003 (the "WARRANT"), and tenders herewith payment of the purchase price of such shares in full. Please issue a certificate or certificates representing said _________ shares of Common Stock in the name of the undersigned or in such other name as is specified below: Name: ---------------------------------- Address: ------------------------------- ------------------------------- The undersigned hereby represents and warrants that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale, in connection with the distribution thereof, and that the undersigned has no present intention of distributing or reselling such shares, and that all representations and warranties of the undersigned set forth in Section 7 of the Warrant are true and correct as of the date hereof. [NAME OF WARRANT HOLDER] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Date: ----------------------------------
SCHEDULE OF WARRANTHOLDERS ADVENTRX Pharmaceuticals, Inc. issued this form of Warrant to Purchase Common Stock to each of the persons listed below for the purchase of up to the number of shares of Common Stock listed opposite such person's name below. HOLDER WARRANT NO. SHARES ------ ----------- ------- Centrum Bank AG WC-108 1,500 The Prudent Bear Fund WC-113 375,000 Delaware Charter Guarantee and Trust Co. FBO Micahel Kooper Investor Rights Agreement WC-136 17,969 Andrew J. Maffey WC-139 30,000 Clifford Ross WC-140 15,000 James Simpson WC-148 7,500 Franco Merlo WC-114 2,989 Michael Kooper WC-129 56,250 Richard Melnick WC-134 56,250 Richard Melnick WC-142 45,000 Caroline A. Levine WC-143 11,250 Richard Melnick WC-150 33,750 Richard Melnick WC-151 50,000 Michael Kooper WC-136 17,969 EFG Private Bank S.A. WC-109 750
EXHIBIT 4.30 THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED PURSUANT TO THE EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES (TOGETHER, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. NO. [SEE ATTACHED SCHEDULE] ISSUED [SEE ATTACHED SCHEDULE] WARRANT TO PURCHASE COMMON STOCK ---------- THIS CERTIFIES THAT, for good and valuable consideration, [SEE ATTACHED SCHEDULE FOR NAMES OF HOLDERS] (the "HOLDER") is entitled to subscribe for and purchase from Adventrx Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), [SEE ATTACHED SCHEDULE FOR NUMBER OF SHARES] fully paid and nonassessable shares of Common Stock, par value $0.001 per share ("COMMON STOCK"), of the Company (as adjusted pursuant to Section 3 hereof) (the "WARRANT SHARES") at a price per share equal to One Dollar and Twenty Five Cents ($1.25) (as adjusted pursuant to Section 3 hereof) (the "EXERCISE PRICE"), subject to the provisions and upon the terms and conditions hereinafter set forth. 1. METHOD OF EXERCISE; PAYMENT. (A) Exercise Period. The purchase rights represented by this Warrant may be exercised by the Holder during the term of this Warrant (as set forth in Section 9 hereof) in whole or in part, at any time after the Commencement Date, as defined below, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit A (the "NOTICE OF EXERCISE") duly executed) at the principal office of the Company. (B) Cash Exercise. Upon exercise of this Warrant, the Holder shall pay the Company an amount equal to the Exercise Price multiplied by the number of Warrant Shares being purchased, by wire transfer or certified check payable to the order of the Company. The person or persons in whose name(s) any certificate(s) representing the Warrant Shares shall be issuable upon exercise of this Warrant shall be deemed to have become the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the Warrant Shares represented thereby (and such Warrant Shares shall be deemed to have been issued) immediately prior to the close of business on the date or dates upon which this Warrant is exercised. 1
(C) Stock Certificates. In the event of any exercise of the rights represented by this Warrant, certificates for the Warrant Shares so purchased shall be delivered to the Holder within a reasonable time after exercise and, unless this Warrant has been fully exercised or has expired, a new Warrant representing the shares with respect to which this Warrant shall not have been exercised shall also be issued to the Holder within such time. 2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Warrant Shares issuable upon the exercise of the rights represented by this Warrant will, upon issuance and receipt of the Exercise Price therefor, be fully paid and nonassessable, and free from all preemptive rights, rights of first refusal or first offer, taxes, liens and charges with respect to the issuance thereof. During the period within which the rights represented by this Warrant may be exercised, the Company shall at all times have authorized and reserved for issuance a sufficient number of Warrant Shares to provide for the exercise of the rights represented by this Warrant. 3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and kind of Warrant Shares purchasable upon the exercise of this Warrant and the Exercise Price therefor shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: (A) Reclassification, Consolidation or Reorganization. In case of any reclassification of the Common Stock (other than a change in par value, or as a result of a subdivision or combination), or in case of any consolidation or merger of the Company with or into another corporation (other than a Change of Control, as defined below) (any of which is a "REORGANIZATION TRANSACTION"), the Company, or such successor corporation as the case may be, shall execute a new warrant, providing that the holder of this Warrant shall have the right to exercise such new warrant, and procure upon such exercise and payment of the same aggregate Exercise Price, in lieu of the Warrant Shares theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property as would be payable for the Warrant Shares issuable upon exercise of this Warrant as if such Warrant Shares were outstanding on the consummation of the Reorganization Transaction. For purposes of this Warrant, the term "CHANGE OF CONTROL" shall mean (i) any acquisition of the Company by means of merger, acquisition, or other form of corporate reorganization in which outstanding shares of the Company are exchanged for securities or other consideration issued, or caused to be issued, by the acquiring corporation or its subsidiary or parent (other than a reincorporation transaction or change of domicile) and pursuant to which the holders of the outstanding voting securities of the Company immediately prior to such consolidation, merger or other transaction fail to hold equity securities representing a majority of the voting power of the Company or surviving entity immediately following such consolidation, merger or other transaction (excluding voting securities of the acquiring corporation held by such holders prior to such transaction) or (ii) a sale of all or substantially all of the assets of the Company. (B) Stock Splits, Dividends and Combinations. In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such subdivision or to the issuance of such stock dividend shall be proportionately increased, and the Exercise Price shall be 2
proportionately decreased, and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such combination shall be proportionately decreased, and the Exercise Price shall be proportionately increased, effective at the close of business on the date of such subdivision, stock dividend or combination, as the case may be. 4. TRANSFER OF WARRANT. This Warrant may only be transferred in compliance with federal and state securities laws and, except as provided below, may not be transferred except with the prior written consent of the Company, which shall not be unreasonably withheld or delayed, and any purported transfer without such prior written consent shall be null and void; provided, however, that the Company may withhold its consent to transfer or assignment of this Warrant to any person or entity who is deemed to be a competitor or prospective competitor of the Company, such determination to be made in the reasonable judgment of the Board. 5. CONDITION TO EXERCISE OF WARRANT. Each certificate evidencing the Warrant Shares issued upon exercise of this Warrant shall be stamped or imprinted with a legend substantially in the following form: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT. 6. FRACTIONAL SHARES. No fractional Warrant Shares will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Exercise Price then in effect. 7. REPRESENTATIONS AND WARRANTIES BY THE HOLDER. The Holder represents and warrants to the Company as follows: (A) This Warrant is being acquired for the Holder's own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the "SECURITIES ACT"). Upon exercise of this Warrant, the Holder shall, if so requested by the Company, confirm in writing, in a form reasonably satisfactory to the Company, that the Warrant Shares issuable upon exercise of this Warrant are being acquired for investment and not with a view toward distribution or resale. The Holder is an "accredited investor" within the meaning of the Securities Act. (B) The Holder understands that this Warrant and the Warrant Shares have not been registered under the Securities Act by reason of their issuance in a transaction exempt from 3
the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof and that the Company's reliance upon such exemption is predicated, in part, upon the Holder's representations and warranties set forth in this Agreement. The Holder understands that this Warrant and the Warrant Shares must be held by the Holder indefinitely, and that the Holder must therefore bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempted from such registration. The Holder further understands that this Warrant and the Warrant Shares have not been registered under the securities laws of any state. (C) The Holder acknowledges that it is acquiring this Warrant without being offered or furnished any offering literature or prospectus. The Holder understands that neither the United States Securities and Exchange Commission, nor any governmental agency charged with the administration of the securities laws of any state nor any other governmental agency has passed upon or reviewed the merits or qualifications of, or recommended or approved the issuance of this Warrant or the Warrant Shares. (D) The Holder understands that, except as provided in Section 10 of this Warrant, the Company is under no obligation to register this Warrant or the Warrant Shares. (E) The Holder is a bona fide resident and domiciliary (not a temporary or transient resident) of the state indicated in the signature page hereto and the Holder has no present intention of becoming a resident of any other state or jurisdiction. (F) The Holder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of this Warrant and the Warrant Shares purchasable pursuant to the terms of this Warrant and of protecting its interests in connection therewith. The Holder is able to bear the economic risk of the purchase of the Warrant Shares pursuant to the terms of this Warrant. (G) The Holder of this Warrant agrees not to undertake any short position with respect to the underlying common stock while this warrant remains outstanding. 8. RIGHTS OF STOCKHOLDERS. No holder of this Warrant shall be entitled, as a Warrant holder, to vote or receive dividends or be deemed the holder of Warrant Shares or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise with respect to the Warrant Shares until this Warrant shall have been exercised and the Warrant Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. 4
9. TERM OF WARRANT. (A) This Warrant shall become exercisable on the date of issuance set forth below (the "COMMENCEMENT DATE") and shall no longer be exercisable as of the earlier of (i) 5:00 p.m., San Diego, California local time, on the date that is the three-year anniversary of the Commencement Date; (ii) immediately prior to a Change of Control and (iii) 5:00 p.m., San Diego, California local time, on the Call Termination Date (as defined below). (B) Notwithstanding anything herein to the contrary, at any time after the Commencement Date, if the closing price of one share of Common Stock quoted in the over-the-counter market summary, the Bulletin Board Exchange, the Nasdaq National Market or the closing price quoted on a national securities exchange, whichever is applicable, is greater than 200% of the Exercise Price for a period of 20 consecutive trading days, then thereafter the Company shall have the right (the "COMPANY TERMINATION RIGHT"), exercisable at the Company's sole discretion, to terminate this Warrant with at least 10-days' prior written notice (the "TERMINATION NOTICE") which Termination Notice shall state the date this Warrant shall terminate (the "CALL TERMINATION DATE"); provided, however, that the Company may not exercise the Company Termination Right unless a registration statement registering the Warrant Stock has been declared effective and is effective from the date of delivery of the Termination Notice until the Call Termination Date, provided, further, that if this Warrant is terminated pursuant to this Section 9(b), then the Company shall use commercially reasonable efforts to maintain the effectiveness of a registration statement registering the Warrant Stock until the date that is 15 days after the Call Termination Date or, if earlier, the date the Holder shall have sold all its Warrant Shares covered by such registration statement. 10. REGISTRATION RIGHTS. (A) Piggy-back Rights. If (but without any obligation to do so) the Company proposes to register any shares of Common Stock solely for cash pursuant to a registration statement under the Securities Act, other than a registration solely in connection with a transaction under Rule 145 promulgated under the Securities Act (a "PUBLIC OFFERING"), the Company shall promptly give the Holder written notice of such Public Offering, at least 10 business days prior to the filing of the registration statement under the Securities Act regarding such Public Offering. Upon the written request of the Holder given within 5 business days after delivery of such written notice by the Company, the Company shall, subject to the provisions of Section 10(b) below, use its best efforts to cause to be registered under the Securities Act all of the Warrant Shares that the Holder has requested to be registered. (B) Underwriting. If the registration statement under which the Company gives notice under this Section 10 is for an underwritten Public Offering, the Company shall so advise the Holder. The right of the Holder to registration pursuant to Section 10(a) above shall be conditioned upon the Holder's participation in such underwriting and the inclusion of the Warrant Shares in the underwriting to the extent provided herein. The Holder shall (together with the Company and any other holders of Company securities distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 10, if the underwriter determines that 5
marketing factors require a limitation of the number of shares to be underwritten, the underwriter may exclude some or all of the Warrant Shares from such registration and underwriting. (C) Furnish Information. It shall be a condition to the Company's obligations to take any action under this Section 10 that the Holder shall furnish to the Company such information regarding itself, the Warrant Shares, and the intended method of disposition of such Warrant Shares as shall be required to effect the registration of any Warrant Shares. In that connection, the Holder shall be required to represent to the Company that all such information which is given is both complete and accurate in all material respects when made. (D) Delay of Registration. The Holder shall have no right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 10. (E) Termination of Registration Rights. The Company shall have no obligation to register Warrant Shares pursuant to this Section 10 with respect to any request or requests made by any Holder on or after that date which is one year after the date such Warrant Shares were deemed to be acquired for purposes of determining the holding period of such Warrant Shares under Rule 144 of the Act. 11. MISCELLANEOUS. (A) This Warrant is being delivered in the state of California and shall be construed and enforced in accordance with and governed by the laws of the state of California, without giving effect to principles of conflicts of laws. (B) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. (C) The terms of this Warrant shall be binding upon and shall inure to the benefit of any successors or assigns of the Company and of the Holder and of the Warrant Shares issued or issuable upon the exercise hereof. (D) Any notice provided for or permitted under this Warrant shall be treated as having been given (a) upon receipt, when delivered personally, (b) upon receipt, when sent by confirmed facsimile or telecopy, (c) one day after sending, when sent by commercial overnight courier with written verification of receipt, or (d) three business days after deposit with the United States Postal Service, when mailed postage prepaid by certified or registered mail, return receipt requested, addressed (a) if to the Company, at 9948 Hibert Street, Suite 100, San Diego, CA 92131, facsimile: (858) 271-9678, Attention: Nicholas J. Virca, or (b) if to the Holder, at such address or facsimile number as the Holder shall have furnished to the Company in writing, or at such other place of which the other party has been notified in accordance with the provisions of this Section 11(d). (E) This Warrant constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. 6
(F) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company at the Holder's expense will execute and deliver to the holder of record, in lieu thereof, a new Warrant of like date and tenor. (G) This Warrant and any provision hereof may be amended, waived or terminated only by an instrument in writing signed by the Company and the Holder. (H) Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to the foregoing terms and conditions. [Signature page follows.] 7
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer. Issued: [SEE ATTACHED SCHEDULE] ADVENTRX PHARMACEUTICALS, INC. By: /s/ Nicholas J. Virca ------------------------------------ Name: Nicholas J. Virca Title: President and Chief Executive Officer [SEE ATTACHED SCHEDULE] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Address: ------------------------------- ------------------------------- Facsimile: ----------------------------- 8
EXHIBIT A NOTICE OF EXERCISE TO: Adventrx Pharmaceuticals, Inc. 9948 Hibert Street, Suite 100 San Diego, CA 92131 The undersigned hereby elects to purchase ____________ shares of Common Stock, par value $0.001 per share, of the Company ("COMMON STOCK") pursuant to the terms of Section 1(b) of the Warrant to Purchase Common Stock dated ___________ 2003 (the "WARRANT"), and tenders herewith payment of the purchase price of such shares in full. Please issue a certificate or certificates representing said _________ shares of Common Stock in the name of the undersigned or in such other name as is specified below: Name: ---------------------------------- Address: ------------------------------- ------------------------------- The undersigned hereby represents and warrants that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale, in connection with the distribution thereof, and that the undersigned has no present intention of distributing or reselling such shares, and that all representations and warranties of the undersigned set forth in Section 7 of the Warrant are true and correct as of the date hereof. ----------------------------------------- By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Date: ----------------------------------
SCHEDULE OF WARRANTHOLDERS ADVENTRX Pharmaceuticals, Inc. issued this form of Warrant to Purchase Common Stock to each of the persons listed below on the dates set forth below for the purchase of up to the number of shares of Common Stock listed opposite such person's name below. HOLDER WARRANT NO. ISSUE DATE SHARES - --------------------------------------- ----------- ---------- ------ Charles and Leslie Close WC-210 10/15/2003 15,000 Elaine Dines WC-214 10/15/2003 15,000 Paul Mezei WC-236 10/15/2003 600 Steve Salovitch WC-245 10/15/2003 3,000 Schenk Family Trust/Carl Schenk Trustee WC-246 10/15/2003 7,500 Jay Silberman WC-251 10/15/2003 22,500 Andrew J. Maffey WC-256 10/15/2003 7,500 Richard Melnick WC-260 10/15/2003 16,000 Michael Kooper WC-227 10/15/2003 15,000
EXHIBIT 5.1 September 1, 2005 ADVENTRX Pharmaceuticals, Inc. 6725 Mesa Ridge Road, Suite 100 San Diego, California 92121 Attention: Carrie Carlander Chief Financial Officer RESALE REGISTRATION STATEMENT ON FORM S-3 OF ADVENTRX PHARMACEUTICALS, INC. ON BEHALF OF SELLING SECURITYHOLDERS Ladies and Gentlemen: We have acted as counsel to ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of shares (the "Shares") of the Company's Common Stock, par value $0.001 per share ("Common Stock"), pursuant to a Registration Statement on Form S-3 (Registration No. 333-127857) (the "Registration Statement") filed by the Company with the Securities and Exchange Commission, as amended by Amendment No. 1 to the Registration Statement on or about the date of this opinion, on behalf of selling securityholders. The Shares were issued, or are issuable pursuant to (a) that certain Securities Purchase Agreement, dated July 21, 2005 (the "Purchase Agreement"), among the Company and the persons listed on Appendix A thereto (the "Purchasers"); (b) warrants to purchase Common Stock that were issued by the Company to the Purchasers under the terms of the Purchase Agreement; (c) warrants to purchase Common Stock that were issued by the Company to certain persons pursuant to a Common Stock and Warrant Purchase Agreement, dated April 5, 2004, among the Company and the persons listed on Schedule 1 thereto; and (d) warrants to purchase Common Stock issued by the Company in transactions that were effected between May 28, 2003 and December 15, 2003. As counsel to the Company, we have reviewed the corporate proceedings taken by the Company with respect to the authorization of the issuance of the Shares. We have also examined and relied upon originals or copies, certified or otherwise authenticated to our satisfaction, of such corporate records, documents,
ADVENTRX Pharmaceuticals, Inc. September 1, 2005 Page 2 agreements or other instruments of the Company as we have deemed necessary or advisable for purposes of this opinion. As to all matters of fact (including factual conclusions and characterizations and descriptions of purpose, intention or other state of mind) we have entirely relied upon certificates of officers of the Company, and have assumed, without independent inquiry, the accuracy of those certificates. In rendering the opinions hereinafter expressed, we have examined and relied upon originals or copies of such documents and instruments as we have deemed appropriate, including the following documents and instruments: A. The Certificate of Incorporation of the Company, as amended, certified by the Delaware Secretary of State on August 31, 2005; B. The Certificate of Good Standing of the Company, issued by the Delaware Secretary of State on August 31, 2005; C. The By-Laws of the Company, certified by the Secretary of the Company on September 1, 2005; and D. Records of proceedings and actions of the Board of Directors of the Company, certified by the Secretary of the Company on September 1, 2005. We have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing a document. We have also assumed that the registration requirements of the Act and all applicable requirements of state laws regulating the sale of securities will have been duly satisfied. We have also assumed that with respect to any Shares to be issued upon the exercise of warrants, the Company will receive the specified consideration for the Shares as set forth in such warrants and any other agreements pursuant to which said warrants were issued. This opinion is limited solely to the Delaware General Corporation Law, which term as used herein means the statutory provisions thereof, all applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting those laws.
ADVENTRX Pharmaceuticals, Inc. September 1, 2005 Page 3 Subject to the foregoing, it is our opinion that such of the Shares as have been issued have been duly authorized and are validly issued, fully paid and nonassessable, and such of the Shares as are issuable in the future have been duly authorized and will be validly issued, fully paid and nonassessable when issued pursuant to the terms of the warrants and other agreements pursuant to which such Shares are issuable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to any further registration statement to be filed pursuant to Rule 462(b) under the Securities Act with respect to the Shares, and to the reference to this firm under the heading "Legal Matters" in the prospectus included in the Registration Statement. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Bingham McCutchen LLP BINGHAM McCUTCHEN LLP
Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Amendment No.1 to Form S-3 of our report dated February 3, 2005, except for Note 9, which is as of March 28, 2005, related to the consolidated financial statements of ADVENTRX Pharmaceuticals, Inc. and Subsidiary as of and for the years ended December 31, 2004 and 2003, and for the period from June 12, 1996 (date of inception) to December 31, 2004, which report appears in the Annual Report on Form 10-KSB for the year ended December 31, 2004 previously filed by ADVENTRX Pharmaceuticals, Inc. with the Securities and Exchange Commission. /s/ J.H. COHN LLP San Diego, California September 1, 2005