Exhibit 4.5
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 A.I.
INTERNATIONAL CORPORATE HOLDINGS, LTD.; AMERICAN EQUITY CONSULTING SERVICES,
INC.; AND CASTLERIGG MASTER INVESTMENTS, LTD. (the "Purchasers"). Capitalized
terms not otherwise herein defined shall have the meanings ascribed to them in
the Securities Purchase Agreement between the Company and the Purchasers dated
June 25, 2004 (the "Purchase Agreement").
RECITALS
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A. The Purchasers have entered into a Subscription Agreement with the
Company pursuant to which the Purchasers have agreed to purchase Common Stock in
the amount set forth in such Subscription Agreements. Pursuant to the Purchase
Agreement, the Company has agreed to issue Warrants to the Purchasers in the
amount set forth in the Purchase Agreement.
B. As a condition to the purchase of the Common Stock and the potential
exercise of Warrants by the Purchasers, the parties have agreed to enter into
this Agreement.
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) "Purchase Price" means the aggregate purchase price paid by the
Purchasers for the Common Stock issued to the Purchasers 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 Purchasers
prior the Required Filing Date.
(c) "Registrable Securities" means the Shares and the Warrants 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.
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(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
Within forty-five (45) days after the final Installment Payment made
pursuant to the payment schedule set forth in Annex I of the Purchase Agreement
(the "Final Installment Payment") is received by the Company (the "Required
Filing Date"), the Company shall be required to file a Registration Statement to
register the Registrable Securities (a "Required Registration") and shall use
its best efforts to cause such Registration Statement to be declared effective
by the SEC within one-hundred and five (105) days after the receipt by the
Company of the Final Installment Payment (the "Required Effectiveness Date").
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. The
Company represents that as of the date of this agreement, it will be required to
register approximately Three Million Seven Hundred Thousand (3,700,000) shares
on the Registration Statement, including the Registrable Securities.
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2.02. Exercise of Option
If the Purchasers exercise all or any part of the Option provided in Section 9
of the Purchase Agreement prior to the time that the Registration Statement is
declared effective by the SEC, the Company will amend the Registration Statement
to include the shares being purchased pursuant to the exercise of the Option and
the shares underlying the warrants related thereto.
2.03. Effective Registration and Expenses
The Company shall promptly notify the Purchasers 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.
2.04. Penalties
(a) If the Registration Statement covering the Registrable Securities is
not filed with the SEC by the Required Filing Date, or if the Registration
Statement covering the Registrable Securities is not declared effective by the
SEC by the Required Effectiveness Date, the Company shall pay penalties (the
"Penalties" and respectively the "Filing Penalty" and the "Effectiveness
Penalty") as described below. Such Penalties shall be paid in shares of Common
Stock valued at $.75 per share (the "Penalty Shares") and a warrant identical to
the Warrant for the purchase of a number of shares equal to the number of
Penalty Shares.
(b) If the Registration Statement covering the Registrable Securities is
not filed with the SEC by the Required Filing Date, the Filing Penalty to be
paid by the Company to the Purchaser shall be determined as of each Filing
Computation Date (as defined below) and such amount shall be equal to the Filing
Penalty Percentage (as defined below) of the Purchase Price for the period from
the date following the Required Filing Date to the first relevant Filing
Computation Date, and thereafter to each subsequent Filing Computation Date
(prorated on a daily basis if such period is less than thirty (30) days). The
"Filing Penalty Percentage" means (A) two percent (2%) of the Purchase Price for
the first Filing Computation Date after the Required Filing Date and (B) two
percent (2%) of the Purchase Price for each Filing Computation Date thereafter.
By way of illustration and not in limitation, if the Registration Statement is
not filed before the Required Filing Date but is instead filed 60 days after the
Required Filing Date, the Filing Penalty will be an aggregate of four percent
(4%) of the Purchase Price for the Shares (2% for the first 30 days after the
Required Filing Date and 2% for the second 30 days after the Required Filing
Date).
(c) If the Registration Statement covering the Registrable Securities is
not declared effective by the SEC by the Required Effectiveness Date, the
Effectiveness Penalty to be paid by the Company to the Purchaser shall be
determined as of each Effectiveness Computation Date (as defined below) and such
amount shall be equal to the Effectiveness Penalty Percentage (as defined below)
of the Purchase Price for the period from the date following the Required
Effectiveness Date to the first relevant Effectiveness Computation Date, and
thereafter to each subsequent Effectiveness Computation Date (prorated on a
daily basis if such period is less than thirty (30) days). The "Effectiveness
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Penalty Percentage" means (A) two percent (2%) of the Purchase Price for the
first Effectiveness Computation Date after the Required Effectiveness Date and
(B) two percent (2%) of the Purchase Price for each Effectiveness Computation
Date thereafter.
(d) "Filing Computation Date" means (A) the date which is thirty (30) days
after the Required Filing Date, and (B) each date which is thirty (30) days
after the previous Filing Computation Date.
(e) "Effectiveness Computation Date" means (A) the date which is thirty
(30) days after the Required Effectiveness Date, and (B) each date which is
thirty (30) days after the previous Effectiveness Computation Date.
(f) Notwithstanding the foregoing, the amounts payable by the Company
pursuant to this provision shall not be payable to the extent any delay in the
filing or effectiveness of the Registration Statement occurs because of an act
of, or a failure to act or to act timely by the Purchasers or their counsel.
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
Purchasers 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 Purchasers may sell all Registrable Securities under Rule 144 without volume
or other restrictions or limits or (ii) the date the Purchasers 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
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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 Purchasers 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;
(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,
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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 Purchasers 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 Purchasers 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) 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 Purchasers 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:
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(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
(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
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(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.
4.02. Indemnification by Purchasers
Each Purchaser severally agrees to indemnify and hold harmless the Company
and the other selling Purchasers, 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
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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 is
for any reason held to be unenforceable although applicable in accordance with
its terms, the Company and the selling Purchasers 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
Purchasers, in such proportion as is appropriate to reflect the relative fault
of and benefits to the Company on the one hand and the selling Purchasers on the
other (in such proportions that the selling Purchasers 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.
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(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 Purchasers 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.
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:
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(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 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 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.
12
6.03. Transfer of Rights to Subsequent Purchasers
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 Purchasers of a majority of the outstanding Registrable Securities (treating
for the purpose of such computation the Purchasers of Warrants as the Purchasers
of Registrable Securities issuable upon exercise of the Warrants). 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
Purchasers 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.
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
13
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 Purchasers, to the addresses set
forth in Exhibit A attached hereto,
with a copy to Xxxxx Xxxxxx, as
representative for the Purchasers, at
the address set forth in the Purchase
Agreement.
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 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.
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
14
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 *
15
Signatures
----------
IN WITNESS WHEREOF, the Company and the Purchasers 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 Registration Rights Agreement has been duly executed by
the Purchasers as of the date set forth below.
A.I. International Corporate Holdings,
Ltd.
Date: June 25 , 2004 By: /s/ Xxxx Xxxxx
---------------------- -----------------------------------
Its: Director
----------------------------------
American Equity Consulting Services,
Inc.
Date: June 28 , 2004 By: /s/ Xxx Xxxx
---------------------- -----------------------------------
Its: President
----------------------------------
Castlerigg Master Investments, Ltd.
Date: June 25 , 2004 By: /s/ Xxx X'Xxxxx
---------------------- ----------------------------------
Its: CFO of Xxxxxxx Asset Management
Xxxx.xx Advisor to Castlerigg
Master Investments, Ltd.
---------------------------------
16
EXHIBIT A
PURCHASERS
Purchaser Notice Address
--------- --------------
A.I. International Corporate Holdings, Ltd. Arawak Xxxxxxxx
Sea Meadow House
Blackburne Highway
Roadtown, Tortola
British Virgin Islands
American Equity Consulting Services, Inc. 0000 Xxxxx 000 # 000
Xxxx Xxxxxxxxx Xxxxxxx, XX 00000
Castlerigg Master Investments, Ltd. 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
A-
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT dated as of October 1st, 2004 (the "Amendment") is entered
into between Provectus Pharmaceuticals, Inc., a Nevada corporation (the
"Company") and A.I. International Corporate Holdings, Ltd. and Castlerigg Master
Investments, Ltd. ( collectively the "Investors").
RECITALS:
Reference is hereby made to that certain Registration Rights Agreement
dated June 25, 2004 between the Company and the Investors (the "Agreement"),
pursuant to which, subject to satisfaction of all of the terms and conditions
set forth in the Agreement, Investors, directly or indirectly, acquired
registration rights in certain securities from the Company.
The parties have agreed to modify the Agreement in certain respects, and
the parties desire to set forth such agreements in writing.
NOW, THEREFORE, for and in consideration of the premises, as set forth in
the Recitals, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, it is agreed by the parties as
follows:
AGREEMENTS:
1. Any and all references to forty five (45) days made in Section 2.01 of
the Agreement shall be replaced with sixty (60) days.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
PROVECTUS PHARMECUTICALS, INC.
By: /s/ Xxxxx Xxxx
------------------------------------------------
Xxxxx Xxxx, President & CEO
A.I. INTERNATIONAL CORPORATE HOLDINGS, LTD.
By: /s/ Xxxx Xxxxx
-----------------------------------------------
Its: Director
-----------------------------------------------
CASTLERIGG MASTER INVESTMENTS, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Its: Principal of Xxxxxxx Assett Management
Advisor to Castlerigg Master Investments, Ltd.
2
