Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of June 25, 2004 (the "Effective Date"), among PROVECTUS
PHARMACEUTICALS, INC., a Nevada corporation (the "Company") and XXXXXX XXXXX;
XXXXXXXXX FAMILY, LLC; PLATINUM PARTNERS VALUE ARBITRAGE FUND LP; M/S FAMILY
FOUNDATION; and XXXXXXX XXXXXXXXX ("Holders"). Capitalized terms not otherwise
herein defined shall have the meanings ascribed to them in the Securities
Purchase Agreement between the Company and the Lenders dated November 19, 2003
(the "Purchase Agreement") and the Securities Redemption Agreement between the
Company and the Holders dated June 25, 2004 (the "Redemption Agreement").
RECITALS
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WHEREAS, pursuant to the Redemption Agreement, the Company has agreed to
purchase the Debentures from the Holders and the Holders have agreed to sell the
Debentures to the Company. The Holders will retain the Warrants. The Company
shall withdraw its Registration Statement on Form S-2, filed on February 12,
2004, and has undertaken to file a new registration statement to register the
Warrants and the Warrant Shares.
AGREEMENT
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THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1.
DEFINITIONS AND INTERPRETATION
1.01. Certain Definitions
As used in this Agreement, the following capitalized terms shall have the
following meanings:
(a) "Prospectus" means the prospectus included in any Registration
Statement, including any preliminary prospectus, and any amendment or supplement
thereto and all material incorporated by reference therein.
(b) "Registrable Securities" means the Warrants, the Warrant Shares and any
shares or other securities of the Company issued or issuable with respect
thereto upon any stock split, stock dividend, recapitalization or similar event,
excluding shares or other securities sold or transferred pursuant to an
effective registration statement, sold or otherwise transferred pursuant to Rule
144 under the 1933 Act, sold or otherwise transferred pursuant to a transfer not
requiring registration under the 1933 Act, held by a Holder who at such time is
not an Affiliate of the Company and that are eligible for sale pursuant to Rule
144(k) under the 1933 Act, and held by a Holder who at such time is an Affiliate
of the Company if all of such shares or other securities are eligible for sale
pursuant to Rule 144 under the 1933 Act and could be sold in one transaction in
accordance with the volume limitations contained in Rule 144(e)(1)(i) under the
1933 Act.
(c) "Registration Expenses" means any and all expenses incident to
performance of or compliance with this Agreement, including all applicable
registration and filing fees imposed by the SEC and any securities exchange or
market on which the Registrable Securities are required to be listed and/or
quoted, as the case may be, all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of counsel in connection with qualification of the Registrable
Securities under any state securities or blue sky laws and the preparation of a
blue sky memorandum) and compliance with the rules of the National Association
of Securities Dealers, Inc. ("NASD"), all expenses of any Persons in preparing
or assisting in preparing, word processing, printing and distributing the
Registration Statement, any Prospectus, certificates and other documents
relating to the performance of and compliance with this Agreement, all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, and the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company. Registration Expenses shall specifically exclude
underwriting discounts and commissions, the fees and disbursements of counsel
representing the Holders or any underwriter or agent acting on behalf of the
Holders, and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by any Holder, all of which shall be borne by the Holders
in all cases.
(d) "Registration Statement" means a registration statement of the Company
(and any other entity required to be a registrant pursuant to the requirements
of the 0000 Xxx) covering all or a part of the Registrable Securities under the
1933 Act for which the Company is eligible, including all amendments (including
post-effective amendments), exhibits and materials incorporated by reference
therein.
(e) "SEC" means the United States Securities and Exchange Commission.
(f) "Shelf Registration Statement" shall mean a Registration Statement on
Form S-3 (or any successor form) filed pursuant to Rule 415 of Regulation C
promulgated under the 1933 Act (or any successor rule).
1.02. Rules of Interpretation
(a) Each term defined in the singular form in Section 1.01 or elsewhere in
this Agreement means the plural thereof whenever the plural form is used, and
each term defined in the plural form means the singular thereof whenever the
singular form is used. The use of a pronoun of any gender is applicable to all
genders.
(b) Unless otherwise specified therein, all terms defined in this Agreement
have the meanings as so defined herein when used in any other certificate,
report or document made or delivered pursuant hereto.
(c) A reference to any agreement, document or instrument refers to the
agreement, document or instrument as amended or modified and in effect from time
to time in accordance with the terms thereof and as permitted herein.
(d) Except as otherwise specified, a reference to any applicable law refers
to the law as amended, modified, codified, replaced or reenacted, in whole or in
part, and in effect from time to time, and to any rules and regulations
promulgated thereunder; and a reference to any section or other provision of any
applicable law refers to that provision of the law from time to time in effect
and constituting the substantive amendment, modification, codification,
replacement or reenactment of the referenced section or other provision.
(e) All accounting terms not specifically defined herein shall be construed
in accordance with GAAP. All terms used in Article 9 of the Uniform Commercial
Code as enacted in the State of Nevada and not specifically defined herein are
used herein as defined therein.
1.03. Construction
The headings preceding the text of the sections of this Agreement and the
exhibits hereto are for convenience only and shall not be deemed part of this
Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties to this Agreement to express their mutual intent,
and no rule of strict construction shall be applied against any party.
2.
REQUIRED REGISTRATION
2.01. Required Registration
a. Best Efforts. The Company shall use its best efforts to file a
Registration Statement to register the Registrable Securities and shall use its
best efforts to cause such Registration Statement to be declared effective by
the SEC as promptly as possible, and in no case later than December 31, 2004.
The Company may elect, at its option, to file such Registration Statement as a
shelf registration pursuant to Rule 415 of Regulation C promulgated under the
1933 Act (or any successor rule). Thereafter, the Company may elect to include
in such registration additional Common Stock to be issued by the Company.
b. Debentures. In the event that:
i. the Company does not receive the second or third scheduled
Installment Payment pursuant to the Securities Purchase Agreement
between the Company and certain purchasers and reissues the
Debentures to the Holders pursuant to Section 1(d) of the
Redemption Agreement, the Company shall immediately file a
Registration Statement to register the Warrants, Warrant Shares
and Debentures. In addition, pursuant to Section 1(d)(ii) of the
Redemption Agreement, the Company shall pay to the Holders an
aggregate penalty of 2% of each of the second and third scheduled
Redemption Installment Payments, or Eight Thousand Three Hundred
Thirty Three Dollars and Thirty Two Cents ($8,333.32) per month
until such time as the Company files a Registration Statement to
register the Warrants, the Warrant Shares and the reissued
Debentures; or
ii. the Company does not receive the final scheduled Installment
Payment pursuant to the Securities Purchase Agreement between the
Company and certain purchasers and reissues the Debentures to the
Holders pursuant to Section 1(d) of the Redemption Agreement, the
Company shall immediately file a Registration Statement to
register the Warrants, Warrant Shares and Debentures. In
addition, pursuant to Section 1(d)(iii) of the Redemption
Agreement, the Company shall pay to the Holders an aggregate
penalty of 2% of the third scheduled Redemption Installment
Payment, or Four Thousand One Hundred Sixty Six Dollars and Sixty
Six Cents ($4,166.66) per month until such time as the Company
files a Registration Statement to register the Warrants, the
Warrant Shares and the reissued Debentures; and
iii. in such event, the term "Registrable Securities" as used herein
shall be deemed to include the reissued Debentures.
2.02. Effective Registration and Expenses
The Company shall promptly notify the Holders of the date and time of
declaration of effectiveness of such Registration Statement. In a registration
initiated as a Required Registration, the Company shall pay the Registration
Expenses incurred in connection therewith.
2.03. Exceptions
Notwithstanding any other provision of this Agreement, if the Company shall
furnish to the Holders a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would not be in the best interests of the Company and its
stockholders generally for such registration statement to be filed, the Company
shall have the right to defer such filing for a period of not more than 60 days;
provided, however, that the Company shall be entitled to defer a filing upon
such notice only once.
3.
REGISTRATION PROCEDURES
3.01. Obligations of Company
In connection with the obligations of the Company with respect to the
registration of the Registrable Securities contemplated herein, the Company
shall:
(a) prepare and file with the SEC such amendments and supplements
(including required periodic reporting filings under the 0000 Xxx) to such
Registration Statement and Prospectus included therein as may be necessary to
keep such Registration Statement effective for the applicable period; cause the
Prospectus to be amended or supplemented as required and to be filed as required
by Rule 424 or any similar rule that may be adopted under the 1933 Act; respond
as promptly as practicable to any comments received from the SEC with respect to
the Registration Statement or any amendment thereto; and comply with the
provisions of the 1933 Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof. Notwithstanding anything to the contrary contained herein, the
Company shall not be required to take any of the actions described in the
sentence above (i) to the extent that the Company is in possession of material
non-public information that it deems advisable not to disclose or is engaged in
active negotiations or planning for a material merger, acquisition or
disposition transaction and it delivers written notice to each Holder of
Registrable Securities to the effect that such Holder may not make offers or
sales under the Registration Statement for a period not to exceed 60 days from
the date of such notice; provided, however, that the Company may deliver only
two such notices within any 12-month period, or (ii) to the extent that such
registration would require initial or continuing disclosure of events or
proceedings yet unreported that, in the opinion of the Board of Directors of the
Company, would not be in the best interests of the Company and its stockholders
and such disclosure is not otherwise required under applicable law (including
applicable securities laws), and the Company delivers written notice to each
Holder of Registrable Securities to the effect that such Holder may not make
offers or sales for a period not to exceed 60 days from the date of such notice;
provided, however, that the Company may deliver only one such notice within any
365-day period. The Holders shall promptly provide to the Company such
information as the Company reasonably requests in order to identify such Holder
and the method of distribution in a post-effective amendment to the Registration
Statement or a supplement to the Prospectus. Such Holder also shall notify the
Company in writing upon completion of such offer or sale or at such time as such
Holder no longer intends to make offers or sales under the Registration
Statement;
(b) use its best efforts to register or qualify the Registrable Securities
by the time the Registration Statement is declared effective by the SEC under
all applicable state securities or blue sky laws of such jurisdictions in the
United States and its territories and possessions as any Holder of Registrable
Securities covered by the Registration Statement shall reasonably request in
writing and keep each such registration or qualification effective during the
period such Registration Statement is required to be kept effective or during
the period offers or sales are being made by a Holder that has delivered a
Registration Notice to the Company, whichever is shorter; provided, however,
that in connection therewith, the Company shall not be required to qualify as a
foreign corporation to do business or to register as a broker or dealer in any
such jurisdiction where it would not otherwise be required to qualify or
register, subject itself to taxation in any such jurisdiction, or file a general
consent to service of process in any such jurisdiction;
(c) notify each selling Holder of Registrable Securities promptly and, if
requested by such Holder, confirm in writing, when the Registration Statement
and any post-effective amendments thereto have become effective, when any
amendment or supplement to the Prospectus has been filed with the SEC, of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration Statement or any part thereof
or the initiation of any proceedings for that purpose, if the Company receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for offer or sale in any jurisdiction or the initiation
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of any proceeding for such purpose, and of the happening of any event during the
period the Registration Statement is effective as a result of which such
Registration Statement contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or the Prospectus as then amended or
supplemented contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, however,
that the Company shall not be obligated to prepare and furnish any prospectus
supplements or amendments relating to any material nonpublic information at any
such time as the Board of Directors of the Company has determined that, for good
business reasons, the disclosure of such material nonpublic information at that
time would be materially detrimental to the Company in the circumstances and is
not otherwise required under applicable law (including applicable securities
laws); provided, further, that the Company may only delay its obligations
pursuant to the aforementioned proviso for a period of 60 days in any 180-day
period;
(d) use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of the Registration Statement or any part thereof as promptly
as possible;
(e) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of unlegended certificates
representing Registrable Securities to be sold; and enable unlegended
certificates for such Registrable Securities to be issued for such numbers of
shares and registered in such names as the selling Holders may reasonably
request at least two business days prior to any sale of Registrable Securities;
(f) use its best efforts to maintain the listing of the Common Stock on the
securities market on which the Common Stock are now listed or on another
national securities exchange or national market system, as those terms are used
under the 1934 Act;
(g) provide a transfer agent and registrar for the Registrable Securities
registered hereunder and a CUSIP number for all Registrable Securities, not
later than the effective date of the Registration Statement.
3.02. Information to be Provided
The Company may require each Holder of Registrable Securities to furnish to
the Company in writing such information regarding the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
3.03. Duties of Holders
In connection with and as a condition to the Company's obligations with
respect to any Registration Statement, each Holder covenants and agrees that:
(a) it will not offer or sell any Registrable Securities under the
Registration Statement until it has received notice from the Company that the
Registration Statement and any post-effective amendments thereto have become
effective;
(b) upon receipt of any notice from the Company contemplated by Section
3.01(a) or (c), such Holder shall not offer or sell any Registrable Securities
pursuant to the Registration Statement until, in the sole discretion of the
Company, the event no longer precludes sale or such Holder receives copies of
the supplemented or amended Prospectus contemplated by Section 4.01(c) and
receives notice that any post-effective amendment has become effective, and, if
so directed by the Company, such Holder will deliver to the Company (at the
expense of the Company) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus as amended or
supplemented at the time of receipt of such notice; and
(c) the Holder and any of its officers, directors or affiliates, if any,
shall comply with the provisions of Regulation M under the 1934 Act, or any
successor regulations, as applicable to them in connection with sales of
Registrable Securities pursuant to the Registration Statement and shall enter
into such written agreements as the Company shall request to ensure compliance
with this Section 3.03.
3.04. Right to Piggyback
Any time during the period beginning on the Effective Date and ending on
the second anniversary thereof, if the Company proposes to register any of its
securities under the Securities Act (other than a registration pursuant to a
registration on Form S-4 or any successor form or an offering of securities by
the Company in connection with an employee benefit, share dividend, share
ownership or dividend reinvestment plan) and the registration form to be used
may be used for the registration of Registrable Securities, the Company will
give prompt written notice (but in no event less than 15 days before the
anticipated filing date of a registration statement filed to register such
securities) to all Holders of its intention to effect such a registration (each,
a "Piggyback Notice") and the Company will include in such registration, on such
terms and conditions as the other securities to be included therein, all
Registrable Securities with respect to which the Corporation has received
written requests for inclusion therein within 10 days after the date of sending
of the Piggyback Notice.
4.
INDEMNIFICATION; CONTRIBUTION
4.01. Indemnification by the Company
The Company agrees to indemnify and hold harmless each Holder and its
officers and directors and each Person, if any, who controls any Holder within
the meaning of Section 15 of the 1933 Act as follows:
(a) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which such Holder, officer, director or controlling
Person may become subject under the 1933 Act or otherwise that arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or any amendment thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(b) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or incurred in connection with any investigation
or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or alleged untrue
statement or any omission or alleged omission contained in any Registration
Statement, if such settlement is effected with the written consent of the
Company; and
(c) subject to the limitations set forth in Section 4.01(e), against any
and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether or
not a party, or any claim whatsoever based upon any such untrue statement or
alleged untrue statement or omission or alleged omission, to the extent that any
such expense is not paid under Sections 4.01(a) or (b) or;
(d) any violation by the Company of any rule or regulation promulgated
under the 1933 Act applicable to the Company in connection with any
registration, qualification, or compliance of the Registrable Securities or any
other capital stock of the Company;
(e) provided, however, that the indemnity provided pursuant to this Section
4.01 shall not apply to any amounts paid in settlement of any such loss,
liability, claim, damage or expense if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably delayed or
withheld), or to any Holder with respect to any of the foregoing in this Section
that arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in any Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto, or the Holder's or an
underwriter's failure to deliver a copy of any Registration Statement or
Prospectus or any amendments or supplements thereto after the Company has
furnished the Holder or underwriter with the requested number of copies of the
same.
4.02. Indemnification by Holders
Each Holder severally agrees to indemnify and hold harmless the Company and
the other selling Holders, and each of their respective directors and officers
(including each director and officer of the Company who signed the Registration
Statement), and each Person, if any, who controls the Company or any other
selling Holder within the meaning of Section 15 of the 1933 Act, to the same
extent as the indemnity contained in Section 4.01, but only insofar as such
loss, liability, claim, damage or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity with
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written information furnished to the Company by such selling Holder for use
therein relating to the Holder's status as a selling securityholder, Holder's
failure to deliver a copy of any Registration Statement or Prospectus or any
amendments or supplements thereto, to the extent such delivery is required to be
made by Holder and after the Company has furnished Holder with the requested
number of copies of the same, or the breach of any covenant contained in Section
3.03.
4.03. Conduct of Indemnification Proceedings
Each indemnified party shall give reasonably prompt notice to each
indemnifying party of any action or proceeding commenced against the indemnified
party in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve it from any liability which it
may have under the indemnity agreement provided in Sections 4.01 or 4.02, unless
and to the extent it did not otherwise learn of such action and the lack of
notice by the indemnified party materially prejudices the indemnifying party or
results in the forfeiture by the indemnifying party of substantial rights and
defenses and shall not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided under Sections 4.01 or 4.02. After receipt of such notice, the
indemnifying party shall be entitled to participate in and, at its option,
jointly with any other indemnifying party so notified, to assume the defense of
such action or proceeding at such indemnifying party's own expense with counsel
chosen by such indemnifying party and approved by the indemnified party, which
approval shall not be unreasonably withheld; provided, however, that, if the
defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and the indemnified party reasonably determines, upon
advice of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to one separate counsel, the reasonable fees and
expenses of which shall be paid by the indemnifying party. If the indemnifying
party does not assume the defense of any such action or proceeding, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel (which
shall be limited to a single law firm) for the indemnified party. In such event,
however, the indemnifying party will not be liable for any settlement effected
without the written consent of such indemnifying party. If the indemnifying
party assumes the defense of any such action or proceeding in accordance with
this paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding except as set forth in the proviso in the second
sentence of this Section 4.03.
4.04. Contribution
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 4.04
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the selling Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the selling
Holders, in such proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and the selling Holders on the other
(in such proportions that the selling Holders are severally, not jointly,
responsible for the balance), in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits to the
indemnifying party and indemnified parties shall be determined by reference to,
among other things, the total proceeds received by the indemnifying party and
indemnified parties in connection with the offering to which such losses,
claims, damages, liabilities or expenses relate. The relative fault of the
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether the action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or the indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action.
(b) Notwithstanding the foregoing, no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 4.04(b), each Person, if any,
who controls a Holder within the meaning of Section 15 of the 1933 Act and
directors and officers of a Holder shall have the same rights to contribution as
such Holder, and each director of the Company, each officer of the Company who
signed the Registration Statement and each Person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
4.05. Survival of Provisions
The obligations of the Company and Holders under this Section 4 shall
survive completion of any offering of Registrable Securities in a registration
statement and the termination of this agreement. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
5.
RULE 144 REPORTING
With a view to making available to each Holder the benefits of certain
rules and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the 1933 Act;
(b) file with the SEC, in a timely manner, all reports and other documents
required of the Company under the 1934 Act; and
(c) so long as a Holder owns any Registrable Securities, furnish to such
Holder forthwith upon request a copy of the most recent annual and/or quarterly
report of the Company and such other reports and documents as a Holder
reasonably may request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
6.
TRANSFER OF SHARES
6.01. Restrictions
(a) Holder agrees not to make any disposition of all or any portion of the
Common Stock or Registrable Securities unless and until:
(i) there is then in effect a registration statement under the 1933
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(ii) the Holder shall have notified the Company of the proposed
disposition and furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the
Company, an opinion of counsel reasonably satisfactory to the Company and
its counsel that such disposition will not require registration of such
Registrable Securities under the 0000 Xxx.
(b) The Holder agrees to not engage in hedging activities or engage in
short sales of the Company's Common Stock for so long as Holder owns any
Registrable Securities.
6.02. Legends
(a) Unless otherwise permitted by the provisions of this Agreement, each
certificate representing Registrable Securities shall be stamped or otherwise
imprinted with a legend substantially similar to the following (the "Private
Placement Legend"), in addition to any legend required under applicable state
securities laws:
[Neither the Warrant represented hereby nor the shares issuable upon
the exercise of this Warrant have] [The Shares represented by this
Certificate have not] been registered under the 1933 Act of 1933, as
amended (the "1933 Act"), and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until such shares are
registered under the 1933 Act or an opinion of counsel reasonably
satisfactory to the Company is obtained to the effect that such
registration is not required.
(b) Upon the exchange or replacement of Registrable Securities bearing the
Private Placement Legend, the Company shall deliver only Registrable Securities,
as applicable, that bear the Private Placement Legend, unless: such transfer or
exchange is effected pursuant to an effective registration statement under the
1933 Act; or in the case of Warrant Shares, such Warrant Shares were acquired
pursuant to an effective registration statement under the 1933 Act; or there is
delivered to the Company an opinion of counsel reasonably satisfactory to the
Company and its counsel that such disposition will not require registration of
such Warrant Shares under the 1933 Act.
(c) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
6.03. Transfer of Rights to Subsequent Holders
Subject to the foregoing restrictions, the Company and the Holder hereby
agree that any transferee and/or subsequent Holder of Registrable Securities
shall be entitled to all benefits and subject to all obligations hereunder as a
Holder of Registrable Securities. By its acceptance of any Registrable
Securities bearing the Private Placement Legend, each Holder acknowledges the
restrictions on transfer of the Registrable Securities, as applicable, set forth
in this Agreement and agrees that it shall transfer the Registrable Securities
only as provided in this Agreement.
7.
GENERAL PROVISIONS
7.01. Amendments and Waivers
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified, supplemented or waived, nor may consent
to departures therefrom be given, without the written consent of the Company and
the Holders of a majority of the outstanding Registrable Securities (treating
for the purpose of such computation the Holders of Warrants as the Holders of
Warrant Shares issuable upon exercise of the Warrants). Notice of any such
amendment, modification, supplement, waiver or consent adopted in accordance
with this Section 7.01 shall be provided by the Company to each Holder of
Registrable Securities at least 30 days prior to the effective date of such
amendment, modification, supplement, waiver or consent.
7.02. Successors and Assigns
This Agreement shall inure to the benefit of and be binding upon the
successors, assigns and transferees of each of the parties, including subsequent
Holders without the need for an express assignment. If any successor, assignee
or transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
Registrable Securities such Holder shall be conclusively deemed to have agreed
to be bound by all of the terms and provisions hereof.
7.03. Specific Performance
The parties hereto acknowledge that there would be no adequate remedy at
law if any party fails to perform any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement.
7.04. Notices
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been made (x) upon actual receipt, when
given by hand or confirmed facsimile or electronic mail transmission, (y) one
day after delivery to the carrier, when given by overnight delivery service or
(z) two days after mailing, when given by first-class registered or certified
mail, postage prepaid, return receipt requested; in any case to the following
address, or to such other address as a party, by notice to the other parties
given pursuant to this Section 7.04, may designate from time to time:
a. If to Holders, to the addresses set
forth in Exhibit A attached hereto.
b. If to the Company, to: With a copy to:
Provectus Pharmaceuticals, Inc. Baker, Donelson, Bearman,
Attention: President Xxxxxxxx & Xxxxxxxxx, PC
0000 Xxx Xxxxx Xxxxxxx, Xxxxx X Attention: Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 000 Xxxxxxxxxxx Xxxx
Facsimile: 865.539.9654 X.X. Xxx 0000 XXX
Xxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
7.05. Governing Law; Venue of Actions
(a) This Agreement shall be governed and construed in accordance with the
internal laws of the State of Tennessee as applied to contracts made and
performed within the State of Tennessee, without regard to the principles
thereof regarding resolution of conflicts of law.
(b) The Company and each Holder hereby submits to the jurisdiction of any
state court of competent jurisdiction in and for Xxxx County, Tennessee, or in
the United States District Court for the Eastern District of Tennessee sitting
at Knoxville in any action or proceeding arising out of or relating to this
Agreement and agree that all claims in respect of the action or proceeding may
be heard and determined in any such court; agree not to bring any action or
proceeding arising out of or relating to this Agreement in any other court;
waive any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waive any bond, surety, or other security that might
be required of any other party with respect thereto; and agree that a final
judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by law or in
equity.
7.06. Entire Agreement
This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
7.07. Severability
In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
7.08. Counterparts
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
* signatures appear on following page *
Signatures
----------
IN WITNESS WHEREOF, the Company and the Holders have executed this
Agreement to be as of the Effective Date.
PROVECTUS PHARMACEUTICALS, INC., a
Nevada corporation
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: President
-------------------------------
IN WITNESS WHEREOF, this Agreement has been duly executed by the Holders as
of the date set forth below.
[Each Holder to sign separately]
Xxxxxx Xxxxx
Date: June 23 , 2004 /s/ Xxxxxx Xxxxx
------------------ -------------------------------------
Xxxxxxx Xxxxxxxxx
Date: June 23 , 2004 /s/ Xxxxxxx Xxxxxxxxx
------------------ -------------------------------------
Huberfeld Family, LLC
Date: June 23 , 2004 By: /s/ Xxxxxx Xxxxxxxxx
------------------ ----------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------------
Title:
-------------------------------
Platinum Partners Value Arbitrage Fund
LP
Date: June 25 , 2004 By: /s/ Xxxx Xxxxxxxxx
------------------ ----------------------------------
Name: Xxxx Xxxxxxxxx
--------------------------------
Title: General Partner
-------------------------------
M/S Family Foundation
Date: June 25 , 2004 By: /s/ Xxxxxxxx Xxxxxxxxx
------------------ ----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
--------------------------------
Title: Trustee
-------------------------------
EXHIBIT A
---------
HOLDERS
Holder Notice Address
------ --------------
Xxxxxx Xxxxx 0 Xxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Huberfeld Family, LLC 000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Platinum Partners Value Arbitrage Fund LP 000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
M/S Family Foundation 000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx 000 Xxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
A-
