EXHIBIT 4.15
COMMON SHARE PURCHASE WARRANT
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PROVECTUS PHARMACEUTICALS, INC.
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Neither this Warrant represented by this certificate nor thE Warrant Shares
issuable upon the exercise of this Warrant have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered, sold or otherwise transferred, pledged or hypothecated unless and until
such shares are registered under the Securities Act or an opinion of counsel or
other evidence, in either case reasonably satisfactory to the Corporation, is
obtained to the effect that such registration is not required.
Common Share Purchase Warrant
Date: [ ]
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Transfer Restricted - See Section 4
Provectus Pharmaceuticals, Inc., a Nevada corporation (the "Corporation"),
hereby certifies that, for value received, [___________________] (the "Holder"),
is entitled, on the terms and subject to the conditions set forth herein, to
purchase from the Corporation, up to [_____________] (_________) of the
Corporation's Common Shares, as defined in Section 1(d) (the "Warrant Shares"),
at a price of [____________] ($_____) per Warrant Share (the "Exercise Price").
This Warrant shall be exercisable at any time and from time to time during the
period beginning on the date set forth above and ending on the date which is the
third anniversary thereof (the "Exercise Period"). The number of Common Shares
issuable upon the exercise of this Warrant and the Exercise Price per share
shall be subject to adjustment from time to time as set forth herein.
1. Certain Definitions
Whenever used in this Warrant, the following terms shall have the following
meanings:
(a) "Affiliate" means any Person who now or hereafter, directly or
indirectly through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, another Person.
(b) "Business Day" means a day other than Saturday, Sunday or a day on
which banks are not open for business in Knoxville, Tennessee.
(c) "Combination" means an event in which the Corporation consolidates
with, merges with or into, or sells all or substantially all of its
assets to another Person.
(d) "Common Shares" means the Corporation's common shares, $.001 par
value.
(e) "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting stock or interests, by
contract or otherwise.
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(f) "Exchange Act" means the Securities Exchange Act of 1934.
(g) "Fair Market Value" of a Common Share means the average on the
applicable date of the high and low prices of a Common Share on the
principal national securities exchange on which the Common Shares then
are trading, or, if shares were not traded on such date, then on the
next preceding date on which a trade occurred; or if Common Shares are
not traded on a national securities exchange but are listed on the
Nasdaq Stock Market ("Nasdaq"), the last reported sale price on such
date as reported by Nasdaq; or if Common Shares are not traded on a
national securities exchange and are not listed on Nasdaq, the closing
bid price (or average bid prices) last quoted on such date by an
established quotation service for over-the-counter securities; or (iv)
if Common Shares are not traded on a national securities exchange, are
not listed on Nasdaq and are not otherwise publicly traded on such
date, the fair market value of a Common Share as established by the
Board acting in good faith and taking into consideration all factors
which it deems appropriate, including, without limitation, recent sale
or offer prices for the Common Shares in private arm's-length
transactions.
(h) "Person" means an individual, partnership, corporation, limited
liability company, trust, unincorporated organization, association,
joint venture or a government or agency or political subdivision
thereof.
(i) "Securities Act" means the Securities Act of 1933.
2. Exercise of Warrant
(a) This Warrant may be exercised, in whole or in part, at any time during
the Exercise Period, by Holder providing written notice thereof to the
Corporation, in the form attached hereto as Exhibit A (the "Notice of
Exercise"), in accordance with Section 7 hereof, accompanied by
payment of the aggregate Warrant Price for the number of Warrant
Shares to be purchased (i) in cash or by check, payable to the order
of the Corporation or (ii) by wire transfer in accordance with
instructions provided by the Corporation.
(b) Subject to Section 4 hereof, upon the surrender of this Warrant and
payment of the aggregate Exercise Price in accordance with Section
2(a), the Corporation shall issue, and shall deliver to or upon the
written order of Holder and in such name or names as Holder may
designate, a certificate or certificates for the number of whole
Warrant Shares so purchased (or the other securities or property to
which Holder is entitled pursuant to Section 3 of this Warrant),
together with cash as provided in Section 2(d) in respect of any
fractional Warrant Shares otherwise issuable upon such exercise.
(c) Certificates for Warrant Shares shall be deemed to have been issued,
and any Person so designated to be named therein shall be deemed to
have become a holder of record of the Warrant Shares, as of the date
of the surrender of the Warrant Certificate and payment of the
aggregate Exercise Price in Shares shall be closed, certificates for
Warrant Shares shall be issuable as of the date on which such books
next shall be opened, and until such date the Corporation shall be
under no duty to deliver any certificates for Warrant Shares. Each
certificate representing Warrant Shares shall bear the Private
Placement Legend as provided in Section 4.
(d) The Corporation shall not be required to issue fractional Warrant
Shares on the exercise of Warrants. If, except for the provisions of
this Section 2(d), any fraction of a Warrant Share would be
exercisable upon the exercise of any Warrant or specified portion
thereof, the Corporation shall pay at the time of exercise an amount
in cash equal to such fraction of a Warrant Share, multiplied by the
Fair Market Value of a Common Share on the Business Day prior to the
date of exercise, computed to the nearest whole cent.
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3. Antidilution Provisions
(a) In the event that, at any time or from time to time after the
Effective Date, the Corporation shall pay a dividend or make a
distribution on the Common Shares payable in Common Shares or other
shares of the Corporation's capital stock, (ii) shall subdivide the
outstanding Common Shares into a larger number of Common Shares or
other equity securities of the Corporation, (iii) shall combine the
outstanding Common Shares into a smaller number of Common Shares or
other equity securities of the Corporation, or (iv) shall increase or
decrease the number of Common Shares outstanding by reclassification
of the Common Shares; then:
(A) the number of Common Shares issuable upon the exercise of any Warrant shall
be a number of shares equal to the product of (1) the number of Common
Shares that Holder of this Warrant would have been entitled to receive if
this Warrant had been exercised immediately prior to the event (or, in the
case of a dividend or distribution described in clause (i) above,
immediately prior to the record date therefor) and a fraction, the
numerator of which shall be the total number of Common Shares outstanding
immediately after the completion of the event described above and the
denominator of which shall be the total number of Common Shares outstanding
immediately prior to the happening of the event described above; and
(B) subject to Section 3(e), the Exercise Price shall be a price per share
equal to the Exercise Price in effect immediately prior to the event,
divided by the fraction calculated in accordance with clause (A)(2) above.
An adjustment made pursuant to this Section 3(a) shall become effective
immediately after the effective date of the event, retroactive to the record
date for the event in the case of a dividend or distribution in Common Shares or
other shares of the Corporation's capital stock.
(b) Except as provided in Section 3(c), in the event of a Combination,
Holder shall have the right to receive, upon exercise of this Warrant,
the kind and amount of shares of capital stock or other securities or
property which such Holder would have been entitled to receive upon or
as a result of such Combination had this Warrant been exercised
immediately prior to the Combination. Unless Section 3(c) applies to
the Combination, the Corporation shall provide that the surviving or
acquiring Person in the Combination (the "Successor Corporation") will
confirm Holder's rights pursuant to this Section 3(b) and provide for
adjustments, which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 3. The provisions of
this Section 3(b) shall apply to successive Combinations involving any
Successor Corporation.
(c) In the event of (i) a Combination in which consideration is to be paid
to Holders of Common Shares in exchange for their shares solely in
cash or (ii) the dissolution, liquidation or winding-up of the
Corporation, Holder shall be entitled to receive, upon surrender of
their Warrant Certificates, distributions on an equal basis with
Holders of Common Shares, or other securities issuable upon the
exercise of this Warrants, as if this Warrants had been exercised
immediately prior to the event, less the aggregate Exercise Price
payable by Holder.
(d) In the event of a Combination pursuant to which Holder become entitled
to receive, upon exercise of this Warrants, capital stock, other
securities, property, cash or other distributions pursuant to Sections
3(b) or 3(c), Holder thereafter shall not be entitled to receive
Common Shares upon exercise of this Warrants.
(e) The adjustments required by this Section 3 shall be made whenever and
as often as any specified event requiring an adjustment shall occur,
except that no adjustment of the Exercise Price or the number of
Common Shares issuable upon the exercise of Warrants that otherwise
would be required to made unless and until such adjustment, either by
itself or with other adjustments not previously made, increases or
decreases by at least 1% of the Exercise Price or the number of Common
Shares issuable upon the exercise of Warrants as in effect immediately
prior to the making of such adjustment (the "Minimum Adjustment"). Any
adjustment smaller than the Minimum Adjustment shall be carried
forward and made as soon as such adjustment, together with other
adjustments required by this Section 3 and not previously made, would
result in an adjustment at least as large as the Minimum Adjustment.
For the purpose of any adjustment, except as specified in the final
paragraph of Section 3(a), any event requiring an adjustment shall be
deemed to have occurred at the close of business on the date of its
occurrence. In computing adjustments under this Section 3, fractional
interests in Common Shares shall be taken into account to the nearest
one-hundredth of a share.
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(f) Whenever the Exercise Price or the number of Common Shares and other
securities or property, if any, issuable upon the exercise of this
Warrant is adjusted pursuant to this Section 3, the Corporation shall
deliver to Holder a certificate describing in reasonable detail the
event requiring the adjustment and the method by which the adjustment
was calculated and setting forth the Exercise Price and the number of
Common Shares issuable upon the exercise of this Warrant after giving
effect to such adjustment.
(g) In the event that the Corporation shall propose to pay a dividend or
make a distribution on the Common Shares payable in Common Shares or
other shares of the Corporation's capital stock, (ii) to subdivide,
combine or reclassify the outstanding Common Shares, (iii) effect any
reorganization of the Corporation or any Combination, (iv) to effect
the voluntary or involuntary dissolution, liquidation or winding-up of
the Corporation, or (v) to make any tender offer or exchange offer
with respect to the Common Shares, then the Corporation shall give
Holder notice of such proposed action or offer, specifying the record
date for the action or offer and the date of participation therein by
Holders of Common Shares, if any such date is to be fixed, and briefly
describing the effect of such action on the Common Shares and on the
Exercise Price and the number and kind of any other shares of stock
and the other property, if any, issuable upon exercise of this Warrant
after giving effect to any adjustment pursuant to this Section 3 that
will be required as a result of such action. Notice in accordance with
the foregoing shall be given as promptly as possible and in any event
(A) at least 10 days prior to the record date for the action, in the
case of an action described in clause (i); or (B) at least 20 days
prior to the date of the taking of the action or the date of
participation therein by Holders of Common Shares, whichever is
earlier, in the case of any other action.
4. Transfer; Legends
(a) This Warrant shall not be transferable, nor may it be the subject of
any sale, assignment, pledge or other conveyance, except that this
Warrant may be transferred, in whole or in part, to any officer of the
Corporation.
(b) Holder shall not to make any disposition of all or any portion of the
Warrant Shares unless and until:
(i) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration
statement; or
(ii) Holder shall have (A) notified the Corporation of the proposed
disposition and (B) furnished the Corporation with (1) a
statement of the circumstances surrounding the proposed
disposition, and (2) if reasonably requested by the Corporation,
an opinion of counsel reasonably satisfactory to the Corporation
and its counsel that such disposition will not require
registration of such Shares under the Securities Act.
(c) (i) Except as provided in Section 4(c)(ii) hereof, this Warrant and
each certificate representing Warrant Shares 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
Certficate have not] been registered under the Securities Act of 1933,
as amended (the "Securities Act"), and may not be offered, sold or
otherwise transferred, pledged or hypothecated unless and until such
shares are registered under the Securities Act or an opinion of
counsel reasonably satisfactory to the Corporation is obtained to the
effect that such registration is not required.
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(ii) Upon the exchange or replacement of this Warrant or Warrant
Shares bearing the Private Placement Legend, the Corporation
shall deliver only a warrant or Warrant Shares, as applicable,
that bear the Private Placement Legend, unless: (A) such transfer
or exchange is effected pursuant to an effective registration
statement under the Securities Act; or (B) in the case of Warrant
Shares, such Warrant Shares were acquired pursuant to an
effective registration statement under the Securities Act; or (C)
there is delivered to the Corporation an opinion of counsel
reasonably satisfactory to the Corporation and its counsel that
such disposition will not require registration of such Shares
under the Securities Act.
(iii)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
Corporation of an order of the appropriate blue sky authority
authorizing such removal.
(d) Subject to the foregoing restrictions, the Corporation and Holder
hereby agree that any transferee and/or subsequent Holder of this
Warrant or of Warrant Shares shall be entitled to all benefits and
subject to all obligations hereunder as a Holder. By its acceptance of
a Warrant or Warrant Shares bearing the Private Placement Legend, such
Holder acknowledges the restrictions on transfer of the Warrant and
the Warrant Shares, as applicable, set forth in this Agreement and
agrees that it shall transfer the Warrant or the Warrant Shares, as
applicable, only as provided in this Agreement.
5. Rights of Holder
Prior to the exercise of this Warrant, Holder shall not be entitled (i) to
receive dividends or other distributions payable on Common Shares, (ii) to
receive notice of or vote at any meeting of the Corporation's stockholders,
(iii) to consent to any action of the stockholders, (iv) to receive notice as
stockholders of the Corporation of any other proceedings of the Corporation, (v)
to exercise any preemptive rights, or (vi) to exercise any other rights
whatsoever as stockholders of the Corporation.
6. Representations and Warranties of the Corporation
The Corporation is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Nevada, and has the full right,
power and authority to execute and deliver this Warrant and to consummate the
transactions contemplated hereby. The execution and delivery of this Warrant and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action on the part of the Corporation and no
other proceedings on the part of the Corporation are necessary to authorize this
Warrant or the consummation of the transactions contemplated hereby.
7. 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 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, may designate from time to time:
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If to Holder, to:
[CONTACT INFO]
(a) If to the Corporation, to: With a copy to:
Provectus Pharmaceuticals, Inc.
Attention: President
0000 Xxx Xxxxx Xxxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Facsimile: 865.539.9654
Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC
Attention: Xxxxx X. Xxxxxx-XxXxxxxxx, Esq.
SunTrust Building, Suite 300
000 Xxxxxxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Facsimile: 423.979.7623
8. Governing Law; Venue of Actions
(a) This Warrant shall be governed and construed in accordance with the
internal laws of the State of Nevada as applied to contracts made and
performed within the State of Nevada, without regard to the principles
thereof regarding resolution of conflicts of law.
(b) The Corporation and Holder each hereby (i) submit 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 Warrant and agree that all claims
in respect of the action or proceeding may be heard and determined in
any such court; (ii) agree not to bring any action or proceeding
arising out of or relating to this Warrant in any other court; (iii)
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 (iv) 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.
9. General Provisions
(a) This Warrant embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to such
subject matter.
(b) Except as otherwise expressly set forth in this Warrant, any term
hereof may be amended and the observance of any term hereof may be
waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the
parties hereto. No waivers of or exceptions to any term, condition or
provision of this Warrant, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
(c) The invalidity or unenforceability of any provision hereof shall not
affect the validity or enforceability of any other provision hereof.
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Signatures
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be duly
executed and delivered on [____________].
PROVECTUS PHARMACEUTICALS, INC., a Nevada corporation
By:
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Name:
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Title:
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ACCEPTED AND AGREED to as of [____________]:
[HOLDER]
By:
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Name:
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Title:
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Exhibit A
Notice of Warrant Exercise
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Pursuant to the Warrant dated [____________] for the purchase of up to
[____________] (___________) common shares, $.001 par value (the "Warrant
Shares"), of Provectus Pharmaceuticals, Inc., a Nevada corporation (the
"Corporation"), issued by the Corporation to the undersigned, Holder hereby
irrevocably elects to exercise the Warrant as to ______________ Warrant Shares,
and in accordance with the terms of the Warrant Tenders herewith payment for
such Warrant Shares to the order of Provectus Pharmaceuticals, Inc. (or its
successor) in the amount of __________________________ Dollars ($__________.00).
Dated: ,
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Signature of Owner
The signature must correspond with the name as written upon the face of the
Warrant in every particular, without alteration or enlargement or any change
whatsoever.
Securities and/or checks should be issued to:
Please insert social security or identifying number:
Name:
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Street Address:
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City, State and Zip Code:
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A new Warrant the number of Warrant Shares as to which the Warrant has not been
exercised should be issued to:
Please insert social security or identifying number:
Name:
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Street Address:
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City, State and Zip Code:
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