EXHIBIT 4.2
WARRANT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER
EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
PROVECTUS PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance; Certain Definitions. In consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by PROVECTUS
PHARMACEUTICALS, INC., a Nevada corporation (the "Company"), _____________ or
registered assigns (the "Holder") is hereby granted the right to purchase at any
time until 5:00 p.m., New York City time, on _______, 2010, ____________________
(_________) fully paid and nonassessable shares of the Company's Common Stock,
$0.001 par value per share (the "Common Stock"), at an initial exercise price
per share (the "Exercise Price") of $0.75 per share, subject to further
adjustment as set forth herein. Capitalized terms not otherwise herein defined
shall have the meanings ascribed to them in the Securities Purchase Agreement
between the Company and the Holder dated _______, 2005 (the "Agreement").
2. Exercise of Warrants.
2.1 Method of Exercise.
(a) This Warrant is exercisable in whole or in part at any time and from
time to time. Such exercise shall be effectuated by submitting to the
Company (either by delivery to the Company or by facsimile
transmission as provided in Section 8 hereof) a completed and duly
executed Notice of Exercise (substantially in the form attached to
this Warrant) as provided in this paragraph. The date such Notice of
Exercise is faxed to the Company shall be the "Exercise Date,"
provided that the Holder of this Warrant tenders this Warrant
Certificate to the Company within five (5) business days thereafter.
The Notice of Exercise shall be executed by the Holder of this Warrant
and shall indicate the number of shares then being purchased pursuant
to such exercise. Upon surrender of this Warrant Certificate, together
with appropriate payment of the Exercise Price for the shares of
Common Stock purchased, the Holder shall be entitled to receive a
certificate or certificates for the shares of Common Stock so
purchased.
(b) If the Notice of Exercise form elects a "cash" exercise, the Exercise
Price per share of Common Stock for the shares then being exercised
shall be payable in cash or by certified or official bank check.
(c) The Holder shall be deemed to be the holder of the shares issuable to
it in accordance with the provisions of this Section 2.1 on the
Exercise Date
2.2 Limitation on Exercise. Notwithstanding the provisions of this Warrant,
the Agreement or of the other Transaction Agreements, in no event (except
(i) as specifically provided in this Warrant as an exception to this
provision, (ii) while there is outstanding a tender offer for any or all of
the shares of the Company's Common Stock, or (iii) at the Holder's option,
on at least sixty-five (65) days' advance written notice from the Holder)
shall the Holder be entitled to exercise this Warrant, or shall the Company
have the obligation to issue shares upon such exercise of all or any
portion of this Warrant to the extent that, after such exercise the sum of
(1) the number of shares of Common Stock beneficially owned by the Holder
and its affiliates (other than shares of Common Stock which may be deemed
beneficially owned through the ownership of the unexercised portion of the
Warrants or other rights to purchase Common Stock), and (2) the number of
shares of Common Stock issuable upon the exercise of the Warrants with
respect to which the determination of this proviso is being made, would
result in beneficial ownership by the Holder and its affiliates of more
than 4.99% of the outstanding shares of Common Stock (after taking into
account the shares to be issued to the Holder upon such exercise). For
purposes of the proviso to the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), except as
otherwise provided in clause (1) of such sentence. The Holder, by its
acceptance of this Warrant, further agrees that if the Holder transfers or
assigns any of the Warrants, such assignment shall be made subject to the
transferee's or assignee's specific agreement to be bound by the provisions
of this Section 2.2 as if such transferee or assignee were the original
Holder hereof.
3. Reservation of Shares. The Company hereby agrees that at all times during the
term of this Warrant there shall be reserved for issuance upon exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance upon exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrant. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) receipt of reasonably
satisfactory indemnification, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and deliver a duplicate
Warrant and any such lost, stolen, destroyed or mutilated Warrant shall
thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be entitled to
any rights of a stockholder in the Company, either at law or equity, and the
rights of the Holder are limited to those expressed in this Warrant and are not
enforceable against the Company except to the extent set forth herein.
6. Protection Against Dilution and Other Adjustments.
6.1 Adjustment Mechanism. If an adjustment of the Exercise Price is
required pursuant to this Section 6, the Holder shall be entitled to purchase
such number of additional shares of Common Stock as will cause (i) the total
number of shares of Common Stock Holder is entitled to purchase pursuant to this
Warrant, multiplied by (ii) the adjusted Exercise Price per share, to equal
(iii) the dollar amount of the total number of shares of Common Stock Holder is
entitled to purchase before adjustment multiplied by the total Exercise Price
immediately before adjustment.
6.2 Capital Adjustments. In case of any stock split or reverse stock split,
stock dividend, reclassification of the Common Stock, recapitalization, merger
or consolidation, or like capital adjustment affecting the Common Stock of the
Company prior to the exercise of this Warrant or its applicable portion, the
provisions of this Section 6 shall be applied as if such capital adjustment
event had occurred immediately prior to the exercise date of this Warrant and
the original Exercise Price had been fairly allocated to the stock resulting
from such capital adjustment; and in other respects the provisions of this
Section shall be applied in a fair, equitable and reasonable manner so as to
give effect, as nearly as may be, to the purposes hereof.
6.3 Spin Off. If, for any reason, prior to the exercise of this Warrant in
full, the Company spins off or otherwise divests itself of a part of its
business or operations or disposes all or of a part of its assets in a
transaction (the "Spin Off") in which the Company does not receive compensation
for such business, operations or assets, but causes securities of another entity
to be issued to security holders of the Company, then the Company shall notify
the Holder at least thirty (30) days prior to the record date with respect to
such Spin-Off.
7. Transfer to Comply with the Securities Act; Registration Rights.
7.1 Transfer. This Warrant has not been registered under the Securities Act
of 1933, as amended, (the "Act") and has been issued to the Holder for
investment and not with a view to the distribution of either the Warrant or the
Warrant Shares. Except for transfers to officers, employees and affiliates of
the Holder, neither this Warrant nor any of the Warrant Shares or any other
security issued or issuable upon exercise of this Warrant may be sold,
transferred, pledged or hypothecated in the absence of an effective registration
statement under the Act relating to such security or an opinion of counsel
satisfactory to the Company that registration is not required under the Act.
Each certificate for the Warrant, the Warrant Shares and any other security
issued or issuable upon exercise of this Warrant shall contain a legend on the
face thereof, in form and substance satisfactory to counsel for the Company,
setting forth the restrictions on transfer contained in this Section.
7.2 Registration Rights. Reference is made to the Registration Rights
Agreement. The Company's obligations under the Registration Rights Agreement and
the other terms and conditions thereof with respect to the Warrant Shares,
including, but not necessarily limited to, the Company's commitment to file a
registration statement including the Warrant Shares, to have the registration of
the Warrant Shares completed and effective, and to maintain such registration,
are incorporated herein by reference.
8. Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
pre-paid. Any such notice shall be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission, or, if mailed, four days
after the date of deposit in the United States mails, as follows:
If to the Company, to:
PROVECTUS PHARMACEUTICALS, INC.
0000 Xxx Xxxxx Xxxxxxx, Xxxxx X,
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxxxx & Xxxxxxxxx, P.C.
000 Xxxxxxxxxxx Xxxx
XX Xxx 0000 XXX
Xxxxxxx Xxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Holder, to:
Any party may give notice in accordance with this Section to designate to
another address or person for receipt of notices hereunder.
9. Supplements and Amendments; Whole Agreement. This Warrant may be amended or
supplemented only by an instrument in writing signed by the parties hereto. This
Warrant contains the full understanding of the parties with respect to the
subject matter hereof and thereof and there are no representations, warranties,
agreements or understandings other than expressly contained herein and therein.
10. Governing Law. This Warrant shall be deemed to be a contract made under the
laws of the State of Tennessee. The Company and each Purchaser hereby 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 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.
11. Jury Trial Waiver. The Company and the Holder hereby waive a trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other in respect of any matter arising out or in connection
with this Warrant.
12. Counterparts. This Warrant may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
13. Descriptive Headings. Descriptive headings of the several Sections of this
Warrant are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the ____
day of ______, 2005.
PROVECTUS PHARMACEUTICALS, INC.
By:
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Name:
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Title:
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