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
2
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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:
"The Company shall, by A
