Contract
Exhibit 10.3
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of the ___ day of
March, 2010, by and among PROVECTUS PHARMACEUTICALS, INC., a Nevada corporation
(the “Company”), and the stockholders set forth on the signature pages affixed
hereto (each a “Stockholder” and collectively the “Stockholders”).
Recitals
A. As
of March 9, 2010, the Company and the Stockholders entered into that certain
Securities Purchase Agreement (the “Securities Purchase Agreement”) providing
for the issuance and sale of 10,000,000 units (the “Units”), each Unit
consisting of one share of 8% convertible preferred stock (the “Preferred
Stock”), par value $.001 per share, of the Company, and a warrant (the
“Warrants”) to purchase one-half of one share of common stock, par value $.001
per share (the “Common Stock”) as indicated therein.
B. In
connection with the sale of the Units, Maxim Group LLC (the “Placement Agent”)
served as the placement agent and in connection therewith is entitled to payment
by the Company of shares of Common Stock equal to 10% of the shares of Preferred
Stock sold pursuant to the Securities Purchase Agreement.
C. In
connection with the Securities Purchase Agreement the Company desires to provide
certain registration rights under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
Now,
therefore, in consideration of the foregoing and the mutual promises contained
herein, the Company and Stockholders agree as follows:
Agreement
1. Definitions. For
purposes of this Agreement, capitalized terms used herein but not otherwise
defined shall have the meaning given to them in the Securities Purchase
Agreement, and the following terms shall have the meanings given
them:
1.1. “Affiliate”
means, with respect to any Person, any other Person which directly or indirectly
through one or more intermediaries Controls, is controlled by, or is under
common control with, such Person.
1.2. “Charter”
the Company’s Restated Articles of Incorporation, as amended by the Certificate
of Amendment to Restated Articles of Incorporation, as may be amended from time
to time.
1.3. “Common
Stock” means the common stock, par value $.001 per share, of the Company, or
shares or other equity interests of the Company issued in exchange for or
otherwise in connection with any conversion of the Preferred Stock or exercise
of the Warrants.
1.4. “Control”
(including the terms “controlling”, “controlled by” or “under common control
with”) means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
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1.5. “Damages”
means any loss, damage, or liability to which a party hereto may become subject
under the 1933 Act, the 1934 Act, or other federal or state law, insofar as such
loss, damage, or liability (or any action in respect thereof) arises out of or
is based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement of the Company, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto; (b) an omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or (c) any violation or alleged violation by the
indemnifying party (or any of its agents or Affiliates) of the 1933 Act, the
1934 Act, any state securities law, or any rule or regulation promulgated under
the 1933 Act, the 1934 Act, or any state securities law.
1.6. “Excluded
Registration” means (a) a registration relating to the sale of securities to
employees of the Company or a subsidiary pursuant to a stock option, stock
purchase, or similar plan on a Registration Statement on Form S-8; or (b) a
registration relating to a Rule 145 transaction.
1.7. “Form
S-1” means such form under the 1933 Act as in effect on the date hereof or any
successor registration form under the 1933 Act subsequently adopted by the
SEC.
1.8. “Form
S-3” means such form under the 1933 Act as in effect on the date hereof or any
registration form under the 1933 Act subsequently adopted by the SEC that
permits incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
1.9. “GAAP”
means generally accepted accounting principles in the United
States.
1.10. “Holder”
means any holder of Registrable Securities who is a party to this Agreement,
including permitted transferees that agree in writing to be bound by and subject
to the terms and conditions of this Agreement.
1.11. “Preferred
Stock” means the 8% Convertible Preferred Stock, par value $.001 per share, of
the Company.
1.12. “Person”
means an individual, corporation, partnership, limited liability company, trust,
business trust, association, joint stock company, joint venture, sole
proprietorship, unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.
1.13. “Registrable
Securities” means (a) the Common Stock issued to the Placement Agent in
connection with the sales of Preferred Stock pursuant to the Securities Purchase
Agreement; (b) the Common Stock issuable to any Holder upon conversion of the
Preferred Stock and exercise of the Warrants issued to such Holder; (c) any
Common Stock issued as a dividend or other distribution with respect to the
Preferred Stock; and (d) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right, or other security that is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, the Common Stock referenced in clauses (a), (b) and (c) above,
including without limitation any Common Stock which is issued to any Holder
subsequent to the conversion resulting from any stock split or merger, and
excluding in all cases, however, any Registrable Securities sold by a Person in
a transaction in which the applicable rights under this Agreement are not
assigned pursuant to Section 3.1, and excluding for purposes of Section 2 any
Common Stock for which registration rights have terminated or suspended pursuant
to Section 2.9 of this Agreement.
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1.14. “SEC”
means the Securities and Exchange Commission.
1.15. “Rule
144” means Rule 144 promulgated by the SEC under the 0000 Xxx.
1.16. “Rule
145” means Rule 145 promulgated by the SEC under the 1933 Act.
1.17. “Selling
Expenses” means all underwriting discounts, selling commissions, and stock
transfer taxes applicable to the sale of Registrable Securities, and shall
include fees and disbursements of counsel for any Holder (except for such fees
and disbursements of counsel for the Holders as provided in Section
2.6).
1.18. “1933
Act” means the Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.
1.19. “1934
Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
2. Registration Rights.
The Company covenants and agrees as follows:
2.1. Company
Registration. If the Company proposes to register (including,
for this purpose, a registration effected by the Company for equity holders
other than the Holders) any of its securities under the 1933 Act in connection
with the public offering of such securities (other than in an Excluded
Registration), the Company shall, at such time, promptly give each Holder notice
of such registration. Upon the request of each Holder given within
ten (10) business days after such notice is given by the Company, the Company
shall, subject to the provisions of Section 2.2 and Section 2.3, cause to be
registered all of the Registrable Securities that each such Holder has requested
to be included in such registration. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 2.1
before the effective date of such registration, whether or not any Holder has
elected to include Registrable Securities in such registration. The expenses
(other than Selling Expenses) of such withdrawn registration shall be borne by
the Company in accordance with Section 2.6.
2.2. Underwriting
Requirements. In connection with any offering involving an
underwriting of the Company’s securities pursuant to Section 2.1, the Company
shall not be required to include any of the Holders’ Registrable Securities in
such underwriting unless the Holders accept the terms of the underwriting
agreement as agreed upon between the Company and its underwriters (which
underwriting agreement shall contain customary terms and conditions), and then
only in such quantity as the underwriters in their reasonable discretion
determine will not jeopardize the success of the offering by the Company. If the
total number of securities, including Registrable Securities, requested by
security holders of the Company to be included in such offering exceeds the
number of securities to be sold (other than by the Company) that the
underwriters in their reasonable discretion determine is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters in their reasonable discretion determine will not
jeopardize the success of the offering. When allocating the cut-back required by
this Section 2.2, holders of securities for which registration rights have been
granted pursuant to agreements effective prior to the date of this Agreement and
which agreements provide for registration rights with priority over the
Registrable Securities shall take priority over the Registrable Securities for
inclusion in the offering. After application of the priority provision of the
proceeding sentence, if the underwriters determine that less than all of the
Registrable Securities requested to be registered can be included in such
offering, then the Registrable Securities that are included in such offering
shall be allocated among the selling Holders in proportion (as nearly as
practicable to) the number of Registrable Securities owned by each selling
Holder or in such other proportions as shall mutually be agreed to by all such
selling Holders. For purposes of the provision in this Section 2.2 concerning
apportionment, for any selling Holder that is a partnership, limited liability
company, or corporation, the partners, members, retired partners, retired
members, stockholders, and Affiliates of such Holder, shall be deemed to be a
single “selling Holder,” and any pro rata reduction with respect to such
“selling Holder” shall be based upon the aggregate number of Registrable
Securities owned by all Persons included in such “selling Holder” as defined in
this sentence.
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2.3. Rule 415 Cutback. If
at any time the SEC takes the position that the offering of some or all of the
Registrable Securities in a registration statement is not eligible to be made on
a delayed or continuous basis under the provisions of Rule 415 under the 1933
Act or requires any Holder to be named as an “underwriter,” the Company shall
(i) remove from the registration statement such portion of the Registrable
Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and
limitations on the registration and resale of the Registrable Securities as the
SEC may require to ensure the Company’s compliance with the requirements of Rule
415 (collectively, the “SEC Restrictions”); provided, however, that the Company
shall not agree to name any Holder as an “underwriter” in such registration
statement without the prior written consent of such Holder. When allocating the
cut-back required by this Section 2.3, holders of securities for which
registration rights have been granted pursuant to agreements effective prior to
the date of this Agreement and which agreements provide for registration rights
with priority over the Registrable Securities shall take priority over the
Registrable Securities for inclusion in the offering. After application of the
priority provision of the proceeding sentence, if the Company determines that
less than all of the Registrable Securities requested to be registered can be
included in such offering, then the Registrable Securities that are included in
such offering shall be allocated among the selling Holders, subject to
compliance with the SEC Restrictions, in proportion (as nearly as practicable
to) the number of Registrable Securities owned by each selling Holder or in such
other proportions as shall mutually be agreed to by all such selling
Holders.
2.4. Obligations of the
Company. Whenever required under Section 2.1 to effect the registration
of any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such
registration statement to become effective and keep such registration statement
effective until the latter to occur of (i) the expiration of six months or, if
earlier, such time that the distribution contemplated by the registration
statement has been completed or (ii) such time that the Registrable Securities
may be resold by the Holder without restriction under Rule 144 (assuming that
such Registrable Securities that consist of securities convertible into other
securities of the Company are exercised solely in exchange for other securities
(including Common Stock) of the Company as contemplated by Rule
144(d)(3)(ii));
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(b) prepare
and file with the SEC such amendments and supplements to such registration
statement, and the prospectus used in connection with such registration
statement, as may be necessary to comply with the 1933 Act in order to enable
the disposition of all securities covered by such registration
statement;
(c) furnish
to the selling Holders such numbers of copies of a prospectus, including a
preliminary prospectus, as required by the 1933 Act, and such other documents as
the Holders may reasonably request in order to facilitate their disposition of
their Registrable Securities;
(d) use its
commercially reasonable efforts to register and qualify the securities covered
by such registration statement under such other securities or blue-sky laws of
such jurisdictions as shall be reasonably requested by the selling Holders;
provided that the Company shall not be required to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the 1933 Act;
(e) in the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the underwriter(s) of such offering;
(f) use its
commercially reasonable efforts to cause all such Registrable Securities covered
by such registration statement to be listed on a national securities exchange or
trading system and each securities exchange and trading system (if any) on which
similar securities issued by the Company are then listed;
(g) provide a
transfer agent and registrar for all Registrable Securities registered pursuant
to this Agreement and provide a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration;
(h) promptly
make available for inspection by the selling Holders, any underwriter(s)
participating in any disposition pursuant to such registration statement, and
any attorney or accountant or other agent retained by any such underwriter or
selected by the selling Holders, all financial and other records, pertinent
corporate documents, and properties of the Company, and cause the Company’s
officers, directors, employees, and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant, or agent, in each case, as necessary or advisable to verify the
accuracy of the information in such registration statement and to conduct
appropriate due diligence in connection therewith; and
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(i) notify
each selling Holder, promptly after the Company receives notice thereof, of the
time when such registration statement has been declared effective or a
supplement to any prospectus forming a part of such registration statement has
been filed.
2.5. Furnish
Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 with respect
to the Registrable Securities of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as is reasonably required to effect the registration of such Holder’s
Registrable Securities.
2.6. Expenses of
Registration. All expenses (other than Selling Expenses)
incurred in connection with registrations, filings, or qualifications pursuant
to Section 2, including all registration, filing, and qualification fees;
printers’ and accounting fees; and fees and disbursements of counsel for the
Company, shall be borne and paid by the Company. All Selling Expenses
relating to Registrable Securities registered pursuant to Section 2 shall be
borne and paid by the Holders pro rata on the basis of the number of Registrable
Securities registered on their behalf. Notwithstanding the foregoing, upon the
registration of Registrable Securities pursuant to Section 2, Holders of a
majority of the Registrable Securities, including all such Holders that
acquired, directly or indirectly, their Registrable Securities through sales
made by the Company pursuant to its Confidential Private Placement Memorandum
dated May 13, 2009, its Confidential Private Placement Memorandum dated August
17, 2009, or its Confidential Private Placement Memorandum dated January 20,
2010 that are to be registered pursuant to Section 2 shall be entitled to
appoint one counsel in connection with the registration, and the Company shall
pay such counsel’s fees and disbursements related to the registration in an
amount not to exceed $15,000.
2.7. Indemnification. If
any Registrable Securities are included in a registration statement under this
Section 2:
(a) To the
extent permitted by law, the Company will indemnify and hold harmless each
selling Holder, and the partners, members, officers, directors, and stockholders
of each such Holder; legal counsel and accountants for each such Holder; any
underwriter (as defined in the 0000 Xxx) for each such Holder; and each Person,
if any, who controls such Holder or underwriter within the meaning of the 1933
Act or the 1934 Act, against any Damages, and the Company will pay to each such
Holder, underwriter, controlling Person, or other aforementioned Person any
legal or other expenses reasonably incurred thereby in connection with
investigating or defending any claim or proceeding from which Damages may
result, as such expenses are incurred; provided, however, that the indemnity
agreement contained in this Section 2.7(a) shall not apply to amounts paid in
settlement of any such claim or proceeding if such settlement is effected
without the consent of the Company, which consent shall not be unreasonably
withheld, nor shall the Company be liable for any Damages to the extent that
they arise out of or are based upon actions or omissions made in reliance upon
and in conformity with written information furnished by or on behalf of any such
Holder, underwriter, controlling Person, or other aforementioned Person
expressly for use in connection with such registration.
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(b) To the
extent permitted by law, each selling Holder, severally and not jointly, will
indemnify and hold harmless the Company, and each of its directors, each of its
officers who has signed the registration statement, each Person (if any), who
controls the Company within the meaning of the 1933 Act, legal counsel and
accountants for the Company, any underwriter (as defined in the 1933 Act), any
other Holder selling securities in such registration statement, and any
controlling Person of any such underwriter or other Holder, against any Damages,
in each case only to the extent that such Damages arise out of or are based upon
actions or omissions made in reliance upon and in conformity with written
information furnished by or on behalf of such selling Holder expressly for use
in connection with such registration; and each such selling Holder will pay,
severally and not jointly, to the Company and each other aforementioned Person
any legal or other expenses reasonably incurred thereby in connection with
investigating or defending any claim or proceeding from which Damages may
result, as such expenses are incurred; provided, however, that the indemnity
agreement contained in this Section 2.7(b) shall not apply to amounts paid in
settlement of any such claim or proceeding if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld.
(c) Promptly
after receipt by an indemnified party under this Section 2.7 of notice of the
commencement of any action (including any governmental action) for which a party
may be entitled to indemnification hereunder, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 2.7 give the indemnifying party notice of the commencement thereof. The
indemnifying party shall have the right to participate in such action and, to
the extent the indemnifying party so desires, participate jointly with any other
indemnifying party to which notice has been given, and to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such action. The failure to give
notice to the indemnifying party within a reasonable time of the commencement of
any such action shall not relieve such indemnifying party of any liability to
the indemnified party under this Section 2.7 unless such failure actually and
materially prejudices the indemnifying party’s ability to defend such
action.
(d) Notwithstanding
anything else herein to the contrary, the foregoing indemnity agreements of the
Company and the selling Holders are subject to the condition that, insofar as
they relate to any Damages arising from any untrue statement or alleged untrue
statement of a material fact contained in, or omission or alleged omission of a
material fact from, a preliminary prospectus (or necessary to make the
statements therein not misleading) that has been corrected in the form of
prospectus included in the registration statement at the time it becomes
effective, or any amendment or supplement thereto filed with the SEC pursuant to
Rule 424(b) under the 1933 Act (the “Final Prospectus”), such indemnity
agreement shall not inure to the benefit of any Person if a copy of the Final
Prospectus was furnished to the indemnified party and such indemnified party
failed to deliver, at or before the confirmation of the sale of the shares
registered in such offering, a copy of the Final Prospectus to the Person
asserting the loss, liability, claim, or damage in any case in which such
delivery was required by the 1933 Act.
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(e) To
provide for just and equitable contribution to joint liability under the 1933
Act in any case in which either (i) any party otherwise entitled to
indemnification hereunder makes a claim for indemnification pursuant to this
Section 2.7 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case, notwithstanding the fact that this Section 2.7 provides
for indemnification in such case, or (ii) contribution under the 1933 Act may be
required on the part of any party hereto for which indemnification is provided
under this Section 2.7, then, and in each such case, such parties will
contribute to the aggregate losses, claims, damages, liabilities, or expenses to
which they may be subject (after contribution from others) in such proportion as
is appropriate to reflect the relative fault of each of the indemnifying party
and the indemnified party in connection with the statements, omissions, or other
actions that resulted in such loss, claim, damage, liability, or expense, as
well as to reflect any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact, or the omission or alleged omission of a
material fact, relates to information supplied by the indemnifying party or by
the indemnified party and the parties’ relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission;
provided, however, that, in any such case, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) will be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control;
provided, however, that the provisions on indemnification and contribution
contained in the underwriting agreement shall not contain provisions which
expose the Holders to greater liability than the terms contained
herein.
(g) Unless
otherwise superseded by an underwriting agreement entered into in connection
with the underwritten public offering, the obligations of the Company and
Holders under this Section 2.7 shall survive the completion of any offering of
Registrable Securities in a registration under Section 2, and otherwise shall
survive the termination of this Agreement.
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2.8. Current Public
Information. With a view to making available to the Holders the benefits
of Rule 144 and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration, the Company shall:
(a) make and
keep available adequate current public information, as those terms are
understood and defined in Rule 144, at all times; and
(b) furnish
to any Holder, so long as the Holder owns any Registrable Securities, upon
request (A) to the extent accurate, a written statement by the Company that it
has complied with the reporting requirements of Rule 144; (B) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company; and (C) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
that permits the selling of any such securities without
registration.
2.9. Termination and Suspension
of Registration Rights. The right of any Holder to request registration
or inclusion of Registrable Securities in any registration pursuant to Section 2
shall terminate upon such time that the Registrable Securities may be resold by
the Holder without restriction under Rule 144 (as amended from time to
time). The right of any Holder to request registration or inclusion
of Registrable Securities in any registration pursuant to Section 2 shall be
suspended as of the date of this Agreement until the date that is one year after
the date of this Agreement; provided, however, that the rights of a Holder shall
not be suspended if at any time during the time period described in this
sentence the Company fails to satisfy the adequate current public information
requirements of Rule 144.
3. Miscellaneous.
3.1. Successors and
Assigns. Except as set forth in this Section 3.1, this
Agreement shall not be assignable by any Holder without the prior written
consent of the Company. Prior written consent will not be required
for any assignment of this Agreement by a Holder to an Affiliate assignee, or in
connection with any transfer of at least seventy-five percent (75%) of the
Registrable Securities of such Holder; provided that such transfer provided that
(i) the Company is, within a reasonable period of time after such transfer,
furnished with written notice of the name and address of the Affiliate or other
assignee and (ii) the Affiliate or other assignee agrees in a written instrument
satisfactory to the Company, to be bound by and subject to the terms and
conditions of this Agreement. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and permitted assignees any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided herein.
3.2. Governing
Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York without
regard to the choice of law principles thereof. Each of the parties
hereto irrevocably submits to the exclusive jurisdiction of the courts of the
State of New York located in New York County and the United States District
Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection
with any such suit, action or proceeding may be served on each party hereto
anywhere in the world by the same methods as are specified for the giving of
notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY
RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS
AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.
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3.3. Counterparts;
Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
may also be executed via facsimile, which shall be deemed an
original.
3.4. Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
3.5. Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, and (iv) if given by
an internationally recognized overnight air courier, then such notice shall be
deemed given one Business Day after delivery to such carrier. All
notices shall be addressed to the party to be notified at the address as
follows, or at such other address as such party may designate by ten days’
advance written notice to the other party:
If to the Company:
PROVECTUS
PHARMACEUTICALS, INC.
0000 Xxx
Xxxxx Xxxxxxx, Xxxxx X
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxxx
Telephone
No.: (000) 000-0000
Telecopier
No.: (000) 000-0000
with a
copy to:
Xxxxx
Xxxxxx
Baker,
Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC
000 Xxx
Xxxx Xxxxxxx
Xxxxx
000
Xxxxxxx
Xxxx, Xxxxxxxxx 00000
Telephone
No.: (000) 000-0000
Telecopier
No.: (000) 000-0000
If to the Stockholders:
to the
addresses set forth on the signature pages hereto.
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3.6. Amendments and
Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Stockholders. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Securities purchased under this Agreement at the time outstanding,
each future holder of all such Securities, and the Company.
3.7. Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision of
law which renders any provision hereof prohibited or unenforceable in any
respect.
3.8. Aggregation of
Securities. All shares of Registrable Securities held or
acquired by Affiliates of a Holder shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement of such
Holder.
3.9. Entire
Agreement. This Agreement and the other Transaction Documents
constitute the entire agreement among the parties hereof with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.
3.10. Delays or
Omissions. No delay or omission to exercise any right, power,
or remedy accruing to any party under this Agreement, upon any breach or default
of any other party under this Agreement, shall impair any such right, power, or
remedy of such nonbreaching or nondefaulting party, nor shall it be construed to
be a waiver of or acquiescence to any such breach or default, or to any similar
breach or default thereafter occurring, nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. All remedies, whether under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not
alternative.
[signature
page follows]
11
IN WITNESS WHEREOF, the parties have
executed this Agreement or caused their duly authorized officers to execute this
Agreement as of the date first above written.
The
Company: PROVECTUS
PHARMACEUTICALS, INC.
By:_________________________
Name: Xxxxx X.
Xxxxxxxxx
Title: Chief Financial
Officer
The
Stockholders:
| MAXIM GROUP LLC | ||
| By:_______________________________________ | ||
| Name: | ||
| Title: | ||
| Aggregate Purchase Price: | $_________________________________________ | |
| Number of Shares: | __________________________________________ | |
| Number of Warrants: | __________________________________________ | |
| Address for Notice: | __________________________________________ | |
| __________________________________________ | ||
| __________________________________________ | ||
| __________________________________________ |
The
Stockholders:
| By:_______________________________________ | ||
| Name: | ||
| Title: | ||
| Aggregate Purchase Price: | $_________________________________________ | |
| Number of Shares: | __________________________________________ | |
| Number of Warrants: | __________________________________________ | |
| Address for Notice: | __________________________________________ | |
| __________________________________________ | ||
| __________________________________________ | ||
| __________________________________________ |
Signature
Page to Registration Rights Agreement
