FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
4.3
FORM
OF
This
Registration Rights Agreement (this "Agreement") is made and entered into
as of
_________, _________ (the "Effective Date"), among Provectus Pharmaceuticals,
Inc., a Nevada corporation (the "Company") and __________ (the
"Purchaser"). Capitalized terms not otherwise herein defined shall
have the meanings ascribed to them in the Securities Purchase Agreement between
the Company and the Purchaser dated _________, _________ (the "Purchase
Agreement").
A. The
Purchaser have entered into a Subscription Agreement with the Company pursuant
to which the Purchaser have agreed to purchase Common Stock in the amount
set
forth in such Subscription Agreements.
B. As
a
condition to the purchase of the Common Stock, the parties have agreed to
enter
into this Agreement.
AGREEMENT
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) "Purchase
Price" means the aggregate purchase price paid by the Purchaser for the Common
Stock issued to the Purchaser pursuant to the Subscription
Agreements. Notwithstanding the foregoing, the Purchase Price shall
exclude the value of any shares sold or otherwise disposed of by the Purchaser
prior the Required Filing Date.
(c) "Registrable
Securities" means the 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 Purchaser 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 Purchaser 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.
(d) "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 any 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 Purchaser or any underwriter or agent acting on behalf
of
Purchaser (other than the Broker), and transfer taxes, if any, relating to
the
sale or disposition of Registrable Securities by Purchaser, all of which
shall
be borne by Purchaser in all cases.
(e) "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.
(f) "SEC"
means the United States Securities and Exchange Commission.
(g) "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 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.
2
(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.
Piggyback
Registration
|
2.01.
|
Piggyback
Registration
|
As
used
in this Section 2.01, the following terms shall have the following respective
meanings:
“Registrable
Securities” shall mean any shares of Common Stock issued upon any stock split,
stock dividend, recapitalization or similar event.
The
terms “register”, “registered” and
“registration” shall refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act and applicable
rules and regulations thereunder, and the declaration or ordering of the
effectiveness of such registration statement.
“Registration
Expenses” shall mean all
expenses incurred by the Company in compliance with this Section 2.01,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees
and
expenses, reasonable fees and disbursements of counsel for the Holder for
a “due
diligence” examination of the Company, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by
the
Company).
3
“Selling
Expenses” shall mean all
underwriting discounts and selling commissions applicable to the sale of
Registrable Securities and all fees and disbursements of counsel for the
Holder
(other than the fees and disbursements of counsel included in Registration
Expenses).
“Holder”
shall
mean any holder of the
outstanding shares of Registrable Securities which have not been sold to
the
public.
a.
If
the Company shall determine to register any of its securities either for
its own
account or the account of a security holder or holders exercising their
respective demand registration rights, other than a registration relating
solely
to employee benefit plans, or a registration relating solely to a Rule 145
transaction under the Securities Act, or a registration on any registration
form
which does not permit secondary sales or does not include substantially the
same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(i) promptly
give to the Holder written notice thereof (which shall include a list of
the
jurisdictions in which the Company intends to attempt to qualify such securities
under the applicable blue sky or other state securities laws); and
(ii) include
in such registration (and any related qualification under blue sky laws or
other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or request, made by the Holder
within
fifteen (15) days after receipt of the written notice from the Company described
in clause (i) above, except as set forth in Section 2.01(b) below. Such written
request may specify all or a part of the Holders’ Registrable
Securities.
b.
If
the
registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the Holder
as a
part of the written notice given pursuant to Section 2.01(a)(i). In
such event the right of the Holder to registration pursuant to this Section
2.01
shall be conditioned upon the Holder’s participation in such underwriting and
the inclusion of the Holder’s Registrable Securities in the underwriting to the
extent provided herein. All stockholders proposing to distribute
their securities through such underwriting shall (together with the Company)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company, which underwriter(s)
are reasonably acceptable to a majority-in-interest of the
Holder. Notwithstanding any other provision of this Section 2.01, if
the representative of the underwriters advises the Company in writing that
marketing factors require a limitation or elimination on the number of shares
to
be underwritten, the representative may (subject to the allocation priority
set
forth below) limit the number of Registrable Securities to be included in
the
registration and underwriting. The Company shall so advise all
holders of securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and underwriting
shall be allocated first to the Company for securities being sold for its
own
account and thereafter in the following manner: the securities of the
Company held by officers and directors of the Company shall be excluded from
such registration and underwriting to the extent required by such limitation,
and, if a limitation or elimination on the number of shares is still required,
then the securities of the Company held by other stockholders of the Company
(other than Registrable Securities) shall be excluded from such registration
and
underwriting to the extent required by such limitation, and, if a limitation
on
the number of shares is still required, then the number of shares that may be
included in the registration statement and underwriting shall be allocated
among
all stockholders of the Company in proportion, as nearly as practicable,
to the
respective amounts of Registrable Securities which they had requested to
be
included in such registration at the time of filing the registration
statement. If the Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn
from
such registration.
4
c. All
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Section 2.01 shall be borne
by the
Company, and all Selling Expenses shall be borne by the holders of the
securities so registered prorata on the basis of the number of their shares
so
registered.
d. In
the
case of each registration effected by the Company pursuant to this Section
2.01,
the Company will keep the Holder advised in writing as to the initiation
of each
registration and as to the completion thereof. At its expense, the
Company will:
(i) Keep
such
registration effective for a period of one hundred eighty (180) days or until
the Holder has completed the distribution described in the registration
statement relating thereto, whichever first occurs; provided, however, that
in
the case of any registration of Registrable Securities on Form S-3 which
are
intended to be offered on a continuous or delayed basis, such 180-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or
any
successor rule under the Securities Act, permits an offering on a continuous
or
delayed basis, and provided further that applicable rules under the Securities
Act governing the obligation to file a post-effective amendment, permit,
in lieu
of filing a post-effective amendment which (y) includes any prospectus required
by Section 2.01(a)(3) of the Securities Act or (z) reflects facts or events
representing a material or fundamental change in the information set forth
in
the registration statement, the incorporation by reference of information
required to be included in (y) and (z) above to be contained in periodic
reports
filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration
statement;
(ii) Prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to reflect facts or events
representing material or fundamental change in the information set forth
therein
or otherwise necessary to comply with the provisions of the Securities Act
with
respect to the disposition of all securities covered by such registration
statement;
(iii) Furnish
such number of prospectuses and other documents incident thereto, including
any
amendment of or supplement to the prospectus, as a Holder from time to time
may
reasonably request;
5
(iv) Notify
each seller of Registrable Securities covered by such registration statement
at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading or incomplete in the light of the circumstances then existing,
and at
the request of any such seller, prepare and furnish to such seller a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be
necessary so that, as thereafter delivered to the purchasers of such shares,
such prospectus shall not include an untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading or incomplete in the light of the
circumstances then existing;
(v)Cause
all
such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed;
(vi) Provide
a
transfer agent and registrar for all Registrable Securities and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(vii) Make
available for inspection by the Holder, any underwriter participating in
any
disposition pursuant to such registration statement, and any attorney or
accountant retained by any of the foregoing, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company’s officers and directors to supply all information reasonably requested
by any such seller, underwriter, attorney or accountant in connection with
such
registration statement;
(viii)Furnish
to Holder a signed counterpart, addressed to the selling Holder,
of:
| (1) |
an
opinion of counsel for the Company, dated the effective date of
the
registration statement, and
|
| (2) |
“comfort”
letters signed by the Company’s independent public accountants who have
examined and reported on the Company’s financial statements included in
the registration statement, to the extent permitted by the standards
of
the AICPA, covering substantially the same matters with respect
to the
registration statement (and the prospectus included therein) and
(in the
case of the accountants’ “comfort” letters) with respect to events
subsequent to the date of the financial statements, as are customarily
covered in opinions of issuer’s counsel and in accountants’ “comfort”
letters delivered to the underwriters in underwritten public offerings
of
securities;
|
(ix) Furnish
to the Holder a copy of all documents filed with and all correspondence from
or
to the SEC in connection with any such offering; and
(x) Otherwise
use its best efforts to comply with all applicable rules and regulations
of the
SEC, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, beginning with the first month
after
the effective date of the Registration Statement, which earnings statement
shall
satisfy the provisions of Section 11(a) of the Securities Act.
6
e.
Each
Holder of Registrable Securities shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be reasonably required
in
connection with any registration, qualification or compliance referred to
in
this Section 2.01.
f.
With
a
view to making available the benefits of certain rules and regulations of
the
SEC which may permit the sale of the Restricted Securities to the public
without
registration, the Company agrees to:
(i) Make
and
keep public information available as those terms are understood and defined
in
Rule 144 under the Securities Act, at all times from and after ninety (90)
days
following the effective date of the first registration under the Securities
Act
filed by the Company for an offering of its securities to the general
public;
(ii) Use
its
best efforts to file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act
at any time after it has become subject to such reporting
requirements;
(iii) So
long
as the Holder or its assignees owns any Registrable Securities, furnish
forthwith upon request by the Holder or its assignees a written statement
by the
Company as to its compliance with the reporting requirements of Rule 144
(at any
time from and after ninety (90) days following the effective date of the
first
registration statement filed by the Company for an offering of its securities
to
the general public), and of the Securities Act and the Exchange Act (at any
time
after it has become subject to such reporting requirements), a copy of the
most
recent annual or quarterly report of the Company, and such other reports
and
documents so filed as a Holder may reasonably request in availing itself
of any
rule or regulation of the SEC allowing a Holder to sell any such securities
without registration.
The
rights to cause the Company to register securities granted to the Holder
under
this Section 2.01 may be transferred or assigned by Holder to a transferee
or
assignee of any shares of Common Stock, provided that the Company is given
written notice at the time of or within a reasonable time after said transfer
or
assignment, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights
are
being transferred or assigned.
|
2.02.
|
Effective
Registration and Expenses
|
The
Company shall promptly notify the Purchaser of the date and time of declaration
of effectiveness of such Registration Statement. The Company shall
pay the registration expenses in connection herewith.
7
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
Purchaser thereof. The Company shall keep the Registration Statement
effective at all times during the period continuing until the earlier of
(i) the
date when the Purchaser may sell all Registrable Securities under Rule 144
without volume or other restrictions or limits or (ii) the date the Purchaser
no
longer own any of the Registrable Securities. 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 (such that
it
has been advised by counsel that a failure to disclose such information would
constitute a material omission from the prospectus) and it delivers written
notice to each such Purchaser of Registrable Securities to the effect that
such
selling Purchaser may not make offers or sales under the Registration Statement
for a period not to exceed 30 days from the date of such notice, or has executed
a letter of intent for a material merger, acquisition or disposition transaction
and it delivers written notice to each such Purchaser of Registrable Securities
to the effect that such selling Purchaser 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
such Purchaser of Registrable Securities to the effect that such selling
Purchaser 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
Purchaser shall promptly provide to the Company such information as the Company
reasonably requests in order to identify such Purchaser and the method of
distribution in a post-effective amendment to the Registration Statement
or a
supplement to the Prospectus. Such Purchaser also shall notify the
Company in writing upon completion of such offer or sale or at such time
as such
Purchaser no longer intends to make offers or sales under the Registration
Statement;
8
(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 Purchaser 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 Purchaser 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 Purchaser of Registrable Securities promptly and, if requested
by
such Purchaser, 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 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 Purchaser 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 Purchaser may reasonably request at least two business days
prior
to any sale of Registrable Securities;
9
(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) use
its
best efforts to cause all Registrable Securities to be listed on any securities
market or exchange on which similar securities issued by the Company are
then
listed; and
(h) provide
a
transfer agent and registrar for all Registrable Securities registered hereunder
and a CUSIP number for all Registrable Securities, not later than the effective
date of the Registration Statement.
(i) permit
a
single firm of counsel designated by the Purchaser to review the Registration
Statement and all amendments and supplements thereto a reasonable period
of time
(but not less than three (3) business days) prior to their filing with the
SEC,
and not file any document in a form to which such counsel reasonably objects
(a
"Disputed Document"); provided, however, that if Purchaser's counsel
objects to such a Disputed Document, the Required Filing Date and the Required
Effectiveness Date provided in Section 2.01 above shall be extended for such
period of time as it requires for the Company's counsel and Purchaser's counsel
to agree on changes to such Disputed Document. The Company shall be
responsible for payment of legal fees to the Purchaser's counsel for review
of
the Registration Statement in a maximum amount of $2,000.
|
3.02.
|
Information
to be Provided
|
The
Company may require each Purchaser of Registrable Securities to furnish to
the
Company in writing such information regarding the proposed distribution by
such
Purchaser of such Registrable Securities as the Company may from time to
time
reasonably request in writing.
|
3.03.
|
Duties
of Purchaser
|
In
connection with and as a condition to the Company’s obligations with respect to
any Registration Statement, each Purchaser 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 Purchaser 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 Purchaser receives copies of the
supplemented or amended Prospectus contemplated by Section 3.01(c) and
receives notice that any post-effective amendment has become effective, and,
if
so directed by the Company, such Purchaser will deliver to the Company (at
the
expense of the Company) all copies in its possession, other than permanent
file
copies then in such Purchaser’s possession, of the Prospectus as amended or
supplemented at the time of receipt of such notice; and
10
(c) the
Purchaser 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 .
4.
Indemnification;
Contribution
|
4.01.
|
Indemnification
by the Company
|
The
Company agrees to indemnify and hold harmless each Purchaser and its officers
and directors and each Person, if any, who controls any Purchaser 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 Purchaser, 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 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
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 Purchaser 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
Purchaser expressly for use in any Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto, or the
Purchaser’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 Purchaser or underwriter with the requested number
of
copies of the same.
11
|
4.02.
|
Indemnification
by Purchaser
|
Each
Purchaser severally agrees to indemnify and hold harmless the Company and
the
other selling Purchaser, 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 Purchaser 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 written information furnished to the Company by such selling
Purchaser for use therein relating to the Purchaser’s status as a selling
security Purchaser, Purchaser’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 Purchaser and after the Company has
furnished Purchaser 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.
12
|
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 is for any reason held
to be
unenforceable although applicable in accordance with its terms, the Company
and
the selling Purchaser 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 Purchaser, in such proportion
as is appropriate to reflect the relative fault of and benefits to the Company
on the one hand and the selling Purchaser on the other (in such proportions
that
the selling Purchaser 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 Purchaser within the meaning of Section 15
of the 1933 Act and directors and officers of a Purchaser shall have the
same
rights to contribution as such Purchaser, 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 Purchaser under this Section 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.
13
5.
Rule
144 Reporting
With
a
view to making available to each Purchaser 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 Purchaser owns any Registrable Securities, furnish to such Purchaser
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 Purchaser
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) Purchaser
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
Purchaser 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
Purchaser agrees to not engage in hedging activities or engage in short sales
of
the Company’s Common Stock for so long as Purchaser owns any Registrable
Securities.
|
6.02.
|
Legends
|
(a) Unless
otherwise permitted by the provisions of this Agreement, each certificate
representing Common Stock or Registrable Securities shall be stamped or
otherwise imprinted with a legend (the "Private Placement Legend"), in addition
to any legend required under applicable state securities laws.
14
(b) Upon
the
exchange or replacement of Shares or Registrable Securities bearing the Private
Placement Legend, the Company shall deliver only Shares or 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 Shares, such
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 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
Purchaser
|
Subject
to the foregoing restrictions, the Company and the Purchaser hereby agree
that
any transferee and/or subsequent Purchaser of Registrable Securities shall
be
entitled to all benefits and subject to all obligations hereunder as a Purchaser
of Registrable Securities. By its acceptance of any Shares or
Registrable Securities bearing the Private Placement Legend, each Purchaser
acknowledges the restrictions on transfer of the Common Stock and Registrable
Securities, as applicable, set forth in this Agreement and agrees that it
shall
transfer the Common Stock or Registrable Securities, as applicable, 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 Purchaser
of a majority of the outstanding Registrable Securities. Notice of
any such amendment, modification, supplement, waiver or consent adopted in
accordance with this Section shall be provided by the Company to each
Purchaser 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 Purchaser
without the need for an express assignment. If any successor,
assignee or transferee of any Purchaser 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 Person shall be conclusively
deemed to have agreed to be bound by all of the terms and provisions
hereof.
15
|
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 , may designate from time to
time:
|
a. If
to Purchaser, to the addresses set
forth
in Exhibit A attached hereto,
with
a copy to the Purchaser, at the
address
set forth in the Purchase
Agreement.
|
|
|
b. If
to the Company, to:
Provectus Pharmaceuticals, Inc.
Attention:
President
0000
Xxx Xxxxx Xxxxxxx, Xxxxx X
Xxxxxxxxx,
XX 00000
Facsimile:
865.539.9654
|
With
a copy to:
Baker,
Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC
Attention:
Xxxxx Xxxxxx
000
Xxxxxxxxxxx Xxxx
XX
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 New York as applied to contracts made and performed within
the
State of New York, without regard to the principles thereof regarding resolution
of conflicts of law.
(b) The
Company and each Purchaser hereby submit to the jurisdiction of any state
court of competent jurisdiction in and for New York County, New York, or
in the
United States District Court for the Southern District of New York sitting
at
New York 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.
16
|
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*
17
SIGNATURES
IN
WITNESS WHEREOF, the Company and the Purchaser have executed this Agreement
to
be as of the Effective Date.
Provectus
Pharmaceuticals, Inc., a Nevada corporation
By:
Name:
Title:
IN
WITNESS WHEREOF, this Registration Rights Agreement has been duly executed
by
the Purchaser as of the date set forth below.
___________________________________
Date:
___________________,
________
By:____________________________
Its:____________________________
18
EXHIBIT
A
PURCHASER
|
Purchaser
|
Notice
Address
|
|
_______________________________
|
|
19
