AMENDMENT NO. 1Copyright License Agreement |
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EXHIBIT 10.4
AMENDMENT NO. 1 TO TRANSACTION DOCUMENTS
Amendment No. 1 to Transaction Documents ("Amendment No. 1"), dated as of
November 26, 2004, between PROVECTUS PHARMACEUTICALS, INC. ("Provectus") and
GRYFFINDOR CAPITAL PARTNERS I, L.L.C. ("Gryffindor").
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RECITALS
A. Provectus, Gryffindor and others are parties to a Convertible Secured
Promissory Note and Warrant Purchase Agreement dated as of November 26,
2002 (the "Original Purchase Agreement"), pursuant to which Provectus sold
to Gryffindor, and Gryffindor purchased from Provectus, a Note and a
Warrant.
B. To secure its obligations under the Note, Provectus executed and delivered
to Gryffindor a Security Agreement, a Trademark Collateral Security
Agreement, a Patent and License Security Agreement, a Copyright Security
Agreement and a Stock Pledge Agreement, each dated as of November 26, 2002
(collectively the "Provectus Security Documents").
C. To further secure Provectus' obligations under the Note, Xantech
Pharmaceuticals, Inc., a wholly owned subsidiary of Provectus ("Xantech"),
executed and delivered to Gryffindor a Guaranty, dated as of November 26,
2002 (the "Guaranty"), guarantying the obligations of Provectus under or in
connection with the Note, any Transaction Document and any other document
or instrument executed in connection therewith.
D. To secure its obligations under its Guaranty, Xantech executed and
delivered to Gryffindor a Security Agreement, a Trademark Collateral
Security Agreement, a Patent and License Security Agreement and a Copyright
Security Agreement, each dated as of November 26, 2002 (the Xantech
Security Documents, and together with the Provectus Security Documents, the
"Security Documents").
E. Provectus and Gryffindor also entered into a Registration Rights Agreement,
and Provectus, Gryffindor and others entered into a Shareholders'
Agreement, each dated as of November 26, 2002, which, together with the
other documents referred to in the Original Purchase Agreement are referred
to herein as the "Transaction Documents".
F. Provectus desires to amend the Note to extend the maturity date thereof and
to add the accrued interest thereon to the principal thereof and Gryffindor
is willing to agree to an extension of the maturity date of the Note and to
add the accrued interest thereon to the principal thereof on the terms and
subject to the conditions hereinafter set forth. Accordingly, the parties
hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein shall
have the meaning ascribed thereto in the Original Purchase Agreement.
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2. Amendments. Effective as of the date hereof, but subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, the
following Transaction Documents are hereby amended as follows:
2.1. Note. The Note is amended and restated as set forth in Exhibit A attached
hereto and made a part hereof.
2.2. Registration Rights Agreement. The Registration Rights Agreement is amended
as follows:
(a) For the avoidance of doubt, the defined term "Transactions" in the
Registration Rights Agreement shall be deemed to include the
transactions pursuant to Amendment No. 1 to Transaction Documents,
dated as of November 26, 2004, between Provectus and Gryffindor, and
the documents executed and delivered in connection therewith.
(b) The definition "Shelf Registration Statement" in the Registration
Rights Agreement shall be amended and restated as follows:
"Shelf Registration Statement" shall mean a Registration Statement
filed pursuant to Rule 415 of Regulation C promulgated under the
Securities Act (or any successor rule).
(c) The definition of "Warrants" in the Registration Rights Agreement
shall be amended and restated as follows:
"Warrants" shall mean those warrants to acquire additional Common
Shares granted to Holder as part of the Transactions, including, but
not limited to, the Warrants issued pursuant to the Original Purchase
Agreement and the Warrants issued and issuable pursuant to the Second
Amended and Restated Senior Secured Convertible Note, dated November
26, 2004, in the principal amount of $1,185,959, made by Provectus and
payable to the order of Gryffindor.
(d) Section 2(a) of the Registration Rights Agreement is amended and
restated as follows:
"2. Demand Registration.
(a) Request for Registration.
Immediately following the earlier of (i) the date on which
the Company shall become eligible to use a Registration Statement
on Form S-3 (or any successor form thereto) to register its
securities and/or those of a selling stockholder, and (ii) July
1, 2003, Holder may make written requests for registration under
the Securities Act (each, a "Demand
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Registration") of all or part of such Holder's Registrable
Securities. Each written request shall specify the aggregate
number of Registrable Securities to be registered and the
intended method of disposition. The Company shall, at the
election of the Holder, file such Demand Registration as a shelf
registration pursuant to Rule 415 of Regulation C promulgated
under the Securities Act (or any successor rule). Thereafter, the
Company may elect to include in such registration additional
Common Shares to be issued by the Company, to the extent that the
inclusion of such additional Common Shares does not adversely
affect the completion of Holder's intended distribution of its
Common Shares, in its reasonable discretion. The Company shall
use its best efforts to become and remain eligible to use a
Registration Statement on Form S-3 to register its securities
and/or those of a selling stockholder.
(e) The first sentence of Section 2(c) of the Registration
Rights Agreement is amended and restated as follows:
"The Holder may, at its option, distribute the Registrable
Securities covered by the Holder's request by means of an
underwriting.
(f) The following Section 2(e) is added to Section 2 of the
Registration Rights Agreement:






