EXHIBIT 10.4
AMENDMENT NO. 1 TO TRANSACTION DOCUMENTS
Amendment No. 1 to Transaction Documents ("Amendment No. 1"), dated as of
November 26, 2004, between PROVECTUS PHARMACEUTICALS, INC. ("Provectus") and
GRYFFINDOR CAPITAL PARTNERS I, L.L.C. ("Gryffindor").
-
RECITALS
A. Provectus, Gryffindor and others are parties to a Convertible Secured
Promissory Note and Warrant Purchase Agreement dated as of November 26,
2002 (the "Original Purchase Agreement"), pursuant to which Provectus sold
to Gryffindor, and Gryffindor purchased from Provectus, a Note and a
Warrant.
B. To secure its obligations under the Note, Provectus executed and delivered
to Gryffindor a Security Agreement, a Trademark Collateral Security
Agreement, a Patent and License Security Agreement, a Copyright Security
Agreement and a Stock Pledge Agreement, each dated as of November 26, 2002
(collectively the "Provectus Security Documents").
C. To further secure Provectus' obligations under the Note, Xantech
Pharmaceuticals, Inc., a wholly owned subsidiary of Provectus ("Xantech"),
executed and delivered to Gryffindor a Guaranty, dated as of November 26,
2002 (the "Guaranty"), guarantying the obligations of Provectus under or in
connection with the Note, any Transaction Document and any other document
or instrument executed in connection therewith.
D. To secure its obligations under its Guaranty, Xantech executed and
delivered to Gryffindor a Security Agreement, a Trademark Collateral
Security Agreement, a Patent and License Security Agreement and a Copyright
Security Agreement, each dated as of November 26, 2002 (the Xantech
Security Documents, and together with the Provectus Security Documents, the
"Security Documents").
E. Provectus and Gryffindor also entered into a Registration Rights Agreement,
and Provectus, Gryffindor and others entered into a Shareholders'
Agreement, each dated as of November 26, 2002, which, together with the
other documents referred to in the Original Purchase Agreement are referred
to herein as the "Transaction Documents".
F. Provectus desires to amend the Note to extend the maturity date thereof and
to add the accrued interest thereon to the principal thereof and Gryffindor
is willing to agree to an extension of the maturity date of the Note and to
add the accrued interest thereon to the principal thereof on the terms and
subject to the conditions hereinafter set forth. Accordingly, the parties
hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein shall
have the meaning ascribed thereto in the Original Purchase Agreement.
2. Amendments. Effective as of the date hereof, but subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, the
following Transaction Documents are hereby amended as follows:
2.1. Note. The Note is amended and restated as set forth in Exhibit A attached
hereto and made a part hereof.
2.2. Registration Rights Agreement. The Registration Rights Agreement is amended
as follows:
(a) For the avoidance of doubt, the defined term "Transactions" in the
Registration Rights Agreement shall be deemed to include the
transactions pursuant to Amendment No. 1 to Transaction Documents,
dated as of November 26, 2004, between Provectus and Gryffindor, and
the documents executed and delivered in connection therewith.
(b) The definition "Shelf Registration Statement" in the Registration
Rights Agreement shall be amended and restated as follows:
"Shelf Registration Statement" shall mean a Registration Statement
filed pursuant to Rule 415 of Regulation C promulgated under the
Securities Act (or any successor rule).
(c) The definition of "Warrants" in the Registration Rights Agreement
shall be amended and restated as follows:
"Warrants" shall mean those warrants to acquire additional Common
Shares granted to Holder as part of the Transactions, including, but
not limited to, the Warrants issued pursuant to the Original Purchase
Agreement and the Warrants issued and issuable pursuant to the Second
Amended and Restated Senior Secured Convertible Note, dated November
26, 2004, in the principal amount of $1,185,959, made by Provectus and
payable to the order of Gryffindor.
(d) Section 2(a) of the Registration Rights Agreement is amended and
restated as follows:
"2. Demand Registration.
(a) Request for Registration.
Immediately following the earlier of (i) the date on which
the Company shall become eligible to use a Registration Statement
on Form S-3 (or any successor form thereto) to register its
securities and/or those of a selling stockholder, and (ii) July
1, 2003, Holder may make written requests for registration under
the Securities Act (each, a "Demand
2
Registration") of all or part of such Holder's Registrable
Securities. Each written request shall specify the aggregate
number of Registrable Securities to be registered and the
intended method of disposition. The Company shall, at the
election of the Holder, file such Demand Registration as a shelf
registration pursuant to Rule 415 of Regulation C promulgated
under the Securities Act (or any successor rule). Thereafter, the
Company may elect to include in such registration additional
Common Shares to be issued by the Company, to the extent that the
inclusion of such additional Common Shares does not adversely
affect the completion of Holder's intended distribution of its
Common Shares, in its reasonable discretion. The Company shall
use its best efforts to become and remain eligible to use a
Registration Statement on Form S-3 to register its securities
and/or those of a selling stockholder.
(e) The first sentence of Section 2(c) of the Registration
Rights Agreement is amended and restated as follows:
"The Holder may, at its option, distribute the Registrable
Securities covered by the Holder's request by means of an
underwriting.
(f) The following Section 2(e) is added to Section 2 of the
Registration Rights Agreement:
"The Company shall, by August 1, 2005, file a Shelf Registration
Statement to cover the Registrable Securities and shall exercise
its best efforts to cause such Shelf Registration Statement to
become effective and shall cause such Shelf Registration
Statement to remain effective as long as the Holder holds any
Registrable Securities. Further, the company shall file an
additional Shelf Registration Statement pursuant to the terms of
this Section 2(e) with respect to any securities which become
Registrable Securities subsequent to November 26, 2004. The
Company shall pay the Registration Expenses incurred in
connection with any such Shelf Registration Statement."
3. Conditions Precedent. This Amendment No. 1 shall become effective upon
the satisfaction of the following conditions precedent:
3.1. Execution and Delivery of Amendment No. 1. This Amendment No. 1 or
counterparts thereof shall have been duly executed and delivered to
Gryffindor and Provectus.
3
3.2. Documents and Other Agreements. Gryffindor shall have received all of
the following:
(a) A Warrant in the form of Exhibit B attached hereto and made a part
hereof duly executed by Provectus.
(b) A Reaffirmation Agreement in the form of Exhibit C attached hereto and
made a part hereof duly executed by Xantech.
4. Confirmation of Representations and Warranties. Provectus hereby
confirms that the representations and warranties of Provectus contained in
the Original Purchase Agreement were correct in all material respects on
and as of November 26, 2002, and that such representations and warranties
are correct on the date hereof, except (i) to the extent that any such
representation or warranty expressly relates to an earlier date, and (ii)
for changes resulting from transactions contemplated or permitted by the
Original Purchase Agreement and changes occurring in the ordinary course of
business that in the aggregate are not materially adverse.
5. No Event of Default. Provectus represents and warrants that no
Event of Default (as defined in the Note) exists as of the date hereof.
6. Reaffirmation of Grant of Security Interest. Provectus hereby
expressly acknowledges and agrees that all collateral, security interests,
liens and pledges heretofore, under this Amendment No. 1 or hereafter
granted to Gryffindor, including, without limitation, such collateral,
security interests, liens and pledges granted under the Provectus Security
Documents and all documents executed in connection therewith or referred to
or incorporated therein, extend to and secure all of Provectus' obligations
to Gryffindor, now existing or hereafter arising, including, without
limitation, those arising in connection with the Original Purchase
Agreement and the Note, as amended by this Amendment No. 1, upon the terms
set forth in such agreements, all of which security interests, liens and
pledges are hereby ratified, reaffirmed, confirmed and approved.
7. References to and Effect on Transaction Documents. Each Transaction
Document is, and shall be, in full force and effect and is hereby ratified
and confirmed in all respects except as amended by this Amendment No. 1.
The execution, delivery and effectiveness of this Amendment No. 1 shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Gryffindor under the Original Purchase Agreement or any
other Transaction Document, nor constitute a waiver of any provision of the
Original Purchase Agreement or any other Transaction Document.
8. Governing Law. This Amendment No. 1 and the rights and obligations
arising hereunder shall, in all respects, be governed by, and construed in
accordance with the internal laws of the State of Illinois, without regard
to conflicts of law principles, and any applicable laws of the United
States of America.
4
9. Costs and Expenses. Provectus agrees to pay all reasonable costs
and expenses of Gryffindor in connection with the preparation, execution
and delivery of this Amendment No. 1 and the other instruments and
documents hereunder.
10. Counterparts. This Amendment No. 1 may be executed in counterparts
and each shall be effective as an original, and a photocopy, facsimile or
telecopy of this executed Amendment No. 1 shall be effective as an
original. In making proof of this Amendment No. 1, it shall not be
necessary to produce more than one counterpart, photocopy, facsimile or
telecopy of this executed Amendment No. 1.
IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed by the
parties hereto as of the date first above written.
PROVECTUS: GRYFFINDOR:
--------- ----------
PROVECTUS PHARMACEUTICALS, INC. GRYFFINDOR CAPITAL PARTNERS I, L.L.C.
By: /s/H. Xxxxx Xxxx By: /s/Xxxxxx Xxxxx
--------------------------- --------------------------------
Name: H. Xxxxx Xxxx Name: Xxxxxx Xxxxx
-------------------- ----------------------------
Title: CEO Title: Principal
------------------- ----------------------------
Exhibit A - Second Amended and Restated Senior Secured Convertible Note filed
above as Exhibit 4.5.
Exhibit B - Common Stock Purchase Warrant filed above as Exhibit 4.6.
II-1
EXHIBIT C
REAFFIRMATION AGREEMENT
REAFFIRMATION AGREEMENT ("Agreement"), dated as of November 26, 2004, made
by XANTECH PHARMACEUTICALS, INC., a Nevada corporation ("Guarantor") in favor of
GRYFFINDOR CAPITAL PARTNERS I, L.L.C.., a Delaware limited liability company
("Lender").
RECITALS
A. Pursuant to a certain Guaranty dated as of November 26, 2002, by Guarantor in
favor of Lender (the "Guaranty"), Guarantor guarantied the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, of all Liabilities (as defined in the Guaranty) of Provectus
Pharmaceuticals, Inc. ("Borrower") to Lender under or in connection with the
Note (as such term is defined in the Convertible Secured Promissory Note and
Warrant Purchase Agreement, dated as of November 26, 2002, among Borrower,
Lender and others (the "Original Purchase Agreement"); capitalized terms used
but not otherwise defined herein shall have the meaning ascribed thereto in the
Original Purchase Agreement), any Transaction Document and any other document or
instrument executed in connection with any other document or instrument executed
in connection therewith.
B. Borrower desires to amend the Note to extend the Maturity Date thereof
and to add the accrued interest thereon to the principal thereof, and Lender is
willing to agree to an extension of the Maturity Date of the Note and to add the
accrued interest thereon to the principal thereof, on the terms, and subject to
the conditions set forth in that certain Amendment No. 1 to Transaction
Documents, dated as of November 26, 2004, between Borrower and Lender
("Amendment No. 1"), including the condition that Guarantor ratify and reaffirm
the Guaranty and the collateral security for the Guaranty.
ACCORDINGLY, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed by the parties hereto as follows:
1. Reaffirmation. Guarantor hereby ratifies and reaffirms the Guaranty and
each of the collateral security documents executed and delivered by Guarantor
pursuant to the Original Purchase Agreement, including the Security Agreement,
the Trademark Collateral Security Agreement, the Patent and License Security
Agreement and the Copyright Security Agreement (the "Xantech Security
Documents"), and each of the terms and provisions contained therein and agrees
that the Guaranty and the Xantech Security Documents continue in full force and
effect following the execution and delivery of Amendment No. 1. Guarantor
represents and warrants to Lender that the Guaranty and each of the Xantech
Security Documents were on the date of the execution and delivery thereof, and
continue to be, the valid and binding obligation of Guarantor enforceable in
accordance with their respective terms and that Guarantor has no claims or
defenses to the enforcement of the rights and remedies of Lender under the
Guaranty or the Xantech Security Documents.
1
2. Governing Law. This Agreement and the rights and obligations arising
hereunder shall, in all respects, be governed by, and construed in accordance
with the internal laws of the State of Illinois, without regard to conflicts of
laws principles, and any applicable laws of the United States of America.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Reaffirmation Agreement to be executed and delivered by its duly authorized
officer as of the date first set forth above.
XANTECH PHARMACEUTICALS, INC.
By:
----------------------------------------
Name:
Title:
Accepted and Acknowledged by:
GRYFFINDOR CAPITAL PARTNERS I, L.L.C.
By:
--------------------------------------
Name:
-------------------------------
Title:
------------------------------
2
