Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
Registration Rights
Agreement (this
"Agreement"),
dated as of March
30,
2005, by and among Provectus Pharmaceuticals, Inc., a Nevada corporation,
(the
"Company") and each of the undersigned (the "Initial
Investors").
WHEREAS, in connection
with the Securities Purchase Agreement by and among
the parties hereto of even date herewith (the "Securities Purchase
Agreement"),
the Company has agreed, upon the terms and subject to the
conditions
contained
therein, to issue and
sell to the Initial Investors (i) convertible debentures
in the aggregate principal amount of [amount] Dollars ($[number]) (the
"Debentures") that are
convertible into
shares of the Company's common stock,
par value $0.001 per share, (the "Common Stock") upon the terms and subject
to
the limitations and
conditions set forth in such Debentures, and (ii) Class A
Warrants and Class B Warrants (collectively, the "Warrants") to acquire
shares
of Common Stock upon the terms and conditions and subject to the
limitations and
conditions set forth in such Warrants; and
WHEREAS, to induce the
Initial Investors to execute and deliver the
Securities Purchase
Agreement,
the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended,
and the rules
and regulations thereunder, or any similar successor statute
(collectively, the
"1933 Act"), and applicable state securities laws.
NOW,
THEREFORE,
in consideration of
the promises and the mutual covenants
contained herein and
other good and
valuable
consideration, the
receipt and
sufficiency of which
are hereby acknowledged, the Company and each of the
Initial Investors hereby agree as follows:
1.
Definitions
a.
General. As used in
this Agreement, the
following terms shall have the
following meanings:
(i)
"Business Day" means a day, other than a Saturday or Sunday,
on which
the New York Stock Exchange is open for business.
(ii)
"Investors" means the Initial Investors and any transferee or
assignee
who agrees to become bound by the provisions of this Agreement in accordance
with Section 9 hereof.
(iii) "Majority
Investors" means,
as of any date, the
Investors holding
more than fifty
percent (50%) of the
Registrable
Securities
as of such date
determined as if the all of the Debentures then outstanding have been
converted
and all of the Warrants then outstanding have been exercised.
(iv)
"register,"
"registered," and "registration" refer to a registration
effected by preparing
and filing a
Registration
Statement or
Statements
in
compliance with the
1933 Act and pursuant to Rule 415 under the 1933 Act or any
successor rule
providing for offering
securities on a continuous basis ("Rule
415"), and the
declaration or ordering of effectiveness of such Registration
Statement by the United States Securities and Exchange Commission
(the "SEC").
(v)
"Registrable Securities" means (A) the shares of Common Stock
issued or
issuable upon conversion of, or otherwise pursuant to, the Debentures,
(B) the
shares of Common Stock
issued or issuable upon exercise of, or otherwise
pursuant to,
the Warrants, and (C) any shares of capital stock issued or
issuable as a dividend
or other distribution
with respect to, or in exchange
for, or in replacement
of, or otherwise
with respect to, any
of the shares of
Common Stock referenced in subparagraphs (A) and (B) above.
(vi)
"Registration Statement" means a registration statement of the
Company
under the 1933 Act that covers the resale of any of the
Registrable
Securities
pursuant to the provisions of this Agreement, amendments and
supplements to such
Registration Statement, including amendments and
post-effective amendments, and
all exhibits and all
material incorporated
by reference in such
Registration
Statement.
(vii) "Rule 144" means Rule 144 promulgated by the SEC under the
1933 Act,
as such rule may be amended from time to time, or any other similar successor
rule that may be promulgated by the SEC.
b. Other Definitions.
Capitalized
terms used herein and
not otherwise defined
herein shall have the respective meanings set forth in the
Securities
Purchase
Agreement.
2.
Registration
a.
Mandatory Registration.
(i)
Promptly following the closing of the purchase and sale of the
securities
contemplated by the
Securities
Purchase Agreement (the "Closing
Date") but no later than forty (40) days after the Closing Date (the "Filing
Deadline"), the
Company shall
prepare and file with the SEC, a
Registration
Statement on Form S-3
or Form SB-2 (or, if the Company is not eligible to use
Form S-3 or Form SB-2, on such form of Registration Statement as the Company is
then eligible to effect a registration of the Registrable
Securities, subject to
the consent of the Initial Investors, which consent will not be unreasonably
withheld) covering the resale of the Registrable Securities.
(ii)
The Company
shall use its best efforts to cause to be declared
effective by the SEC the Registration Statement described under Section
2(a)(i)
as soon as practicable after the filing thereof, provided,
however, the
Company
shall cause such Registration Statement to be declared effective
by the SEC not
later than seventy
(70) days after the Closing Date, or one hundred ten (110)
days after the Closing Date if the SEC reviews the Registration
Statement, (the
"Effective Deadline").
(iii) The number of shares of Common Stock to be included in such
Registration Statement
under this Section
2(a) shall be no less than an amount
equal to the sum of (A) [150% of the number of aggregate number of shares of
Common Stock issuable upon conversion of the Debentures] shares
representing the
shares of Common Stock
issued or issuable
upon conversion of, or otherwise
issuable pursuant to,
the Debentures, and
(B) [100% of the number of shares of
Common Stock issuable
upon exercise of the Warrants] shares representing the
number of the shares of Common Stock issued or issuable upon exercise of, or
otherwise issuable
pursuant to, the Warrants, without regard to any
limitation
on any Investor's
ability to convert the
Debentures or exercise
the Warrants.
Such Registration
Statement, to the extent allowable under the 1933 Act and the
rules and regulations
promulgated thereunder
(including Rule 416), shall state
that such Registration
Statement also covers such indeterminate number of
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additional shares of
Common Stock as may become issuable upon conversion of, or
otherwise pursuant to, the Debentures and exercise of, or otherwise
pursuant to,
the Warrants to prevent dilution resulting from stock splits, stock
dividends or
other dilutive transactions.
b.
Additional Shares.
(i)
In the event
that, at any time or from time to time,
the number of
shares of Common Stock
registered
for resale under a
Registration
Statement
filed pursuant to this Agreement is insufficient to cover the resale of all of
the Registrable
Securities issued or issuable upon conversion of the Debentures
and exercise
of the Warrants, the Company shall amend the Registration
Statement, or file a
new Registration
Statement (on the
short form
available
therefor, if
applicable),
or both, so as to
register the resale of all of the
Registrable Securities, in each case, as soon as
practicable, but in
any event
within thirty (30) days from the day the Company reasonably first
determines (or
reasonably should have
determined) the need
therefor (the
"Additional Shares
Filing Deadline").
(ii)
The Company
shall use its best efforts to cause to be declared
effective by the SEC such amendment and/or new Registration
Statement
described
under Section 2(b)(i) as soon as practicable after the filing
thereof, provided,
however, the Company
shall cause such
Registration
Statement to be declared
effective by the SEC
not later than
fifteen (15) days after the Additional
Shares Filing Deadline, or sixty (60) days after the
Filing Deadline if the SEC
reviews the Registration Statement (the "Additional Shares
Effective Deadline").
(iii) The number of
shares (the "Additional Shares") of Common Stock
included in such Registration Statement under Section 2(b)(i)
hereof shall be no
less than an amount equal to the sum (A) the then-current conversion price of
the Debentures
multiplied
by (x) the outstanding principal amount of the
Debentures plus (y)
accrued but unpaid
interest on the
Debentures,
plus (z)
interest through the
maturity date of the Debentures based on the outstanding
principal amount of
the Debentures,
(B) the number of
shares of Common
Stock
issuable upon exercise of the outstanding Warrants at the
then-current
exercise
price, (C) such other shares of Common Stock issued or issuable
pursuant to the
Debentures and the Warrants, and (D) to the extent allowable
under the 1933 Act
and the rules promulgated thereunder (including Rule 416), such
indeterminate
number of additional
shares of Common Stock resulting from stock splits, stock
dividends or other dilutive transactions.
c.
Underwritten
Offering. If any offering pursuant to a Registration
Statement pursuant to
this Section 2
involves an
underwritten offering,
the
Majority Investors,
along with the consent of the Initial Investors, shall have
the right to select one legal counsel and an investment banker or bankers and
manager or managers to
administer the
offering, which investment banker or
bankers or manager or managers shall be reasonably satisfactory to
the Company.
d.
Piggy-Back Registrations. If at any time (i) prior to the
expiration of
the Registration Period (as hereinafter defined), and (ii) there is not then in
effect an effective
Registration Statement in accordance with Section 2 of this
Agreement registering
the resale of all of the Registrable Securities, the
Company shall determine to file with the SEC a Registration
Statement relating
to an offering for its
own account or the account of others under the 1933 Act
of any of its equity
securities
(other than on Form S-4 or Form S-8 or
their
then equivalents relating to equity securities to be issued solely
in connection
with any acquisition of any entity or business or equity securities
issuable in
connection with stock
option or other bona fide employee benefit plans), the
Company shall send to each Investor who is entitled to registration
rights under
this Section 2 written notice of such determination and, if within
fifteen (15)
days after the effective date of such notice, such Investor shall so request
in
writing, the Company
shall include in such
Registration
Statement all or
any
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<PAGE>
part of the
Registrable Securities
such Investor
requests to be
registered,
except that if, in
connection with any
underwritten
public offering for the
account of the Company
the managing underwriter(s) thereof shall impose a
limitation on the
number of shares of Common Stock which may be included in the
Registration Statement because, in such underwriter(s)'
judgment, marketing or
other factors
dictate such limitation is necessary to facilitate public
distribution,
then the Company shall be obligated to include in such
Registration Statement
only such limited portion of the Registrable Securities
with respect to which such Investor has requested inclusion hereunder as the
underwriter shall permit. Any exclusion of Registrable Securities shall be made
pro rata among the
Investors seeking to include Registrable Securities in
proportion to the number of Registrable Securities sought to be
included by such
Investors; provided, however, that the Company shall not exclude
any Registrable
Securities unless the Company has first excluded all outstanding
securities the
holders of which are
not entitled
to inclusion of such securities in such
Registration Statement
or are not
entitled to pro rata inclusion with the
Registrable Securities; and provided, further, that, after giving effect
to the
immediately preceding proviso, any exclusion of Registrable
Securities shall
be
made pro rata with holders of other securities having the right to include
such
securities in the
Registration
Statement other than holders of securities
entitled to inclusion
of their securities
in such Registration Statement by
reason of demand
registration rights.
No right to
registration of Registrable
Securities under this
Section 2(d) shall be construed to limit any registration
required under Section 2(a) or Section 2(b) hereof. If an offering
in connection
with which an Investor is entitled to registration under this
Section 2(d) is an
underwritten offering,
then each Investor
whose Registrable Securities are
included in such
Registration Statement
shall, unless
otherwise agreed by the
Company, offer and
sell such Registrable Securities in an underwritten offering
using the same
underwriter or
underwriters and,
subject to the
provisions of
this Agreement, on the same terms and conditions as other shares of
Common Stock
included in such underwritten offering.
3.
Obligations of the Company
In
connection with the
registration of the
Registrable
Securities,
the
Company shall have the following obligations:
a.
Registration Period.
The Company shall prepare promptly, and file with
the SEC not later than
the Filing
Deadline, a Registration Statement with
respect to the number of Registrable Securities provided in Section 2(a), and
thereafter use its best efforts to cause such Registration
Statement relating to
Registrable Securities to become effective as soon as possible
after such filing
but in no event later than the Effective Deadline, and keep the Registration
Statement effective
pursuant to Rule 415 at all times until such date as is the
earlier of (i) the
date on which all of the Registrable Securities have been
sold and (ii) the date on which the Registrable Securities (in the opinion of
counsel to the Initial
Investors) may be immediately sold to the public without
registration or restriction (including, without limitation, as to
volume by each
holder thereof)
under the 1933 Act (the "Registration Period"), which
Registration Statement
(including any
amendments or
supplements
thereto and
prospectuses contained
therein) shall not contain any untrue
statement of a
material fact or omit to state a material fact required to be
stated therein, or
necessary to make the statements therein not misleading.
b.
Review of Registration Statement. The Company shall permit a single
firm
of counsel designated
by the Initial
Investors to review such Registration
Statement and all
amendments and
supplements thereto
(as well as all requests
for acceleration or effectiveness thereof) a reasonable period of
time, but not
less than ten (10) Business Days, prior to filing such Registration Statement
with the SEC, and not file any document in a form to which such counsel
reasonably objects
and will not request acceleration of such Registration
Statement
without prior
notice to such counsel. The sections of such
Registration Statement
covering information with respect to the Investors, the
Investor's beneficial
ownership of
securities of the
Company or the Investors
intended method of
disposition of Registrable Securities shall conform to the
information provided to the Company by each of the Investors.
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<PAGE>
c.
Information.
The Company shall furnish to each Investor whose
Registrable Securities
are included in a
Registration Statement
and its legal
counsel (i) promptly (but in no event more than two (2) Business
Days) after the
same is prepared and
publicly distributed,
filed with the SEC, or
received by
the Company, one copy of each Registration Statement and any amendment
thereto,
each preliminary
prospectus
and prospectus and each amendment or
supplement
thereto, and, in the
case of any Registration Statement referred to in
Section
2, each letter written by or on behalf of the Company to the SEC or
the staff of
the SEC, and each item of correspondence from the SEC or the staff of the
SEC,
in each case relating to such Registration Statement (other than any portion
of
any thereof
which contains information for which the Company has sought
confidential
treatment), and (ii)
promptly (but in no
event more than two (2)
Business Days) after
the Registration
Statement is declared
effective by the
SEC, such number of copies of the final prospectus included in the Registration
Statement, and all
amendments and supplements thereto and such other
documents
as such Investor may reasonably request in order to facilitate the
disposition
of the Registrable Securities owned by such Investor. The Company will
immediately notify
each Investor by
facsimile of the effectiveness of each
Registration Statement
or any post-effective amendment. The Company will
promptly (but in no event more than ten (10) Business Days) respond to any and
all comments
received from the SEC (which comments shall promptly be made
available to the
Investors upon
request), with a view towards causing each
Registration Statement
or any amendment thereto to be declared effective by the
SEC as soon as practicable, shall promptly file an
acceleration request as soon
as practicable (but in
no event more than two (2) Business Days) following the
resolution or
clearance of all SEC comments or, if applicable, following
notification by the
SEC that any such
Registration Statement
or any amendment
thereto will not be
subject to review and
shall promptly
file with the SEC
a
final prospectus
as soon as
practicable
(but in no event
more than two (2)
Business Days)
following receipt
(either oral or
written) by the Company from
the SEC of an order declaring the Registration Statement
effective.
d.
Blue Sky. The Company shall use reasonable efforts to (i) register and
qualify the Registrable Securities covered by the Registration
Statements under
such other securities
or "blue sky" laws of
such jurisdictions
in the United
States as the
Investors who hold a
majority in
interest of the Registrable
Securities being
offered reasonably request, (ii) prepare and file in those
jurisdictions such
amendments
(including
post-effective
amendments)
and
supplements to such
registrations
and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration
Period, (iii) take
such other actions as
may be necessary
to maintain such registrations and
qualifications in effect at all times during the Registration
Period, and (iv)
take all other
actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company
shall not be required
in connection
therewith or as a condition
thereto to (A) qualify
to do business in any
jurisdiction
where it would not
otherwise be
required to qualify but for this Section 3(d), or (B) file a
general consent to service of process in any such jurisdiction.
e.
Underwriting. In the
event Investors who hold a majority-in-interest of
the Registrable
Securities being
offered in the offering (with the approval of
the Majority Investors) select underwriters for the offering,
the Company shall
enter into and perform its obligations under an underwriting
agreement, in usual
and customary form, including, without limitation, customary
indemnification and
contribution obligations, with the underwriters of such
offering.
f.
Current Prospectus; Post-Effective Amendments.
(i)
The Company
shall prepare and file with the SEC such amendments
(including
post-effective
amendments) and
supplements
to the Registration
Statements and
the prospectus used in connection with the Registration
Statements as may be necessary to keep the Registration
Statements effective
at
all times during the Registration Period, and, during such period,
comply with
the provisions
of the 1933 Act with respect to the disposition of all
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Registrable Securities covered by the Registration Statements until
such time as
all of such Registrable Securities have been disposed of
in accordance with the
intended methods of disposition by the Investor or Investors as set
forth in the
Registration Statements.
(ii) Upon the
happening of any event the result of which the prospectus
included in any Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission to state a material fact
required to be
stated therein or necessary to make the statements therein not misleading,
the
Company, as promptly
as practicable after
becoming aware of such event, shall
notify each Investor of such event, use its best efforts to promptly
prepare a
supplement or amendment to such prospectus to correct such untrue
statement or
omission, and deliver
such number of copies of such supplement or amendment to
each Investor as such Investor may reasonably request; provided,
however, that,
for not more than ten
(10) consecutive
Business Days (or a total of not more
than twenty (20) Business Days in any twelve (12) month period),
the Company may
delay the disclosure of material non-public information concerning the Company
(as well as prospectus or Registration Statement updating) the disclosure of
which at the time is not, in the good faith opinion of the Company,
in the best
interests of the
Company (an "Allowed
Delay"); provided, further, that the
Company shall
promptly (A) notify
the Investors in writing of the existence of
(but in no event,
without the prior written consent of an Investor,
shall the
Company disclose to such Investor any of the facts or circumstances regarding)
material non-public
information giving
rise to an Allowed Delay and (B) advise
the Investors in
writing to cease all sales under such Registration Statement
until the end of the Allowed Delay. Upon expiration of the Allowed Delay,
the
Company shall again be bound by the first sentence of this Section
3(f)(ii) with
respect to the information giving rise thereto.
(iii) At the request of the Majority Investors, the Company shall prepare
and file with the SEC such amendments (including post-effective
amendments) and
supplements to a
Registration Statement
and any prospectus
used in connection
with the Registration
Statement as may be necessary in order to change the plan
of distribution set forth in such Registration Statement.
g.
Eligibility
for Form S-3,
SB-2 or S-1;
Conversion
to Form S-3.
The
Company represents and
warrants that it meets the requirements for the use of
Form S-3, SB-2 or S-1 for registration of the sale by the Initial
Investors and
any other Investors of
the Registrable
Securities. The
Company agrees to file
all reports required
to be filed by the Company with the SEC in a timely manner
so as to remain eligible or become eligible, as the case may be, and
thereafter
to maintain
its eligibility, for the use of Form S-3.
If the Company is
not
currently eligible to
use Form S-3, not later than five (5) Business Days after
the Company
first meets the registration eligibility and transaction
requirements for the use of Form S-3 (or any successor form) for
registration of
the offer and sale by the Initial Investors and any other Investors of
Registrable Securities, the Company shall file a
Registration Statement on Form
S-3 (or such successor form) with respect to the Registrable
Securities covered
by the Registration Statement on Form SB-2 or Form S-1, whichever
is applicable,
filed pursuant to Section 2 (and include in such Registration
Statement on Form
S-3 the information
required by Rule 429 under the 1933 Act) or
convert the
Registration Statement on Form SB-2 or Form S-1, whichever is
applicable, filed
pursuant to Section 2 to a Form S-3 pursuant to Rule 429 under the
1933 Act and
cause such Registration Statement (or such amendment) to
be declared
effective
no later than forty-five (45) days after filing.
h.
Stop Orders.
The Company shall use its best efforts to prevent the
issuance of
any stop order or other suspension of effectiveness of any
Registration
Statement, and,
if such an order is issued, to obtain the
withdrawal of such
order at the earliest
possible moment and to notify each
Investor who holds
Registrable
Securities
being sold (or, in the
event of an
underwritten offering,
the managing underwriters) of the issuance of such order
and the resolution thereof.
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i.
Earnings Statement.
The Company shall make
generally available to
its
security holders as
soon as practicable,
but not later than
ninety (90) days
after the close of the period covered thereby, an earnings statement (in form
complying with the
provisions
of Rule 158
under the 1933 Act) covering a
twelve-month period
beginning not later than the first day of the
Company's
fiscal quarter next following the effective date of the
Registration Statement.
j.
Legal Opinion;
Cold Comfort Letter. At the request of the Majority
Investors, the Company
shall furnish, on the
date that Registrable
Securities
are delivered
to an underwriter, if any, for sale in connection with any
Registration Statement
or, if such securities are not being sold by an
underwriter, on the
date of effectiveness
thereof (i) an opinion, dated as of
such date,
from counsel representing the Company for purposes of such
Registration
Statement, in form, scope and substance as is customarily given
in
an underwritten public offering, addressed to the underwriters,
if any, and the
Investors and (ii) a letter, dated such date, from the Company's independent
certified public
accountants in form
and substance as is customarily given by
independent certified
public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and the
Investors.
k.
Information About
Investors.
The Company shall hold
in confidence and
not make any
disclosure of information concerning an Investor
provided to the
Company unless (i)
disclosure of such
information is
necessary to comply with
federal or state
securities laws,
(ii) the disclosure of
such information
is
necessary to avoid or
correct a misstatement
or omission in any
Registration
Statement, (iii) the
release of such information is ordered pursuant to a
subpoena or
other order from a court or governmental body of competent
jurisdiction, or (iv)
such information has been made generally available to the
public other than by disclosure in violation of this or any other
agreement. The
Company agrees that it shall, upon learning that disclosure of
such information
concerning an
Investor is sought in or by a court or governmental body of
competent jurisdiction
or through
other means, give prompt notice to such
Investor prior to
making such disclosure, and allow the Investor, at its
expense, to undertake
appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
l.
Listing. The Company shall (i) cause all the
Registrable
Securities
covered by the Registration Statement to be listed on each
national
securities
exchange on which
securities of the same
class or series issued by the Company
are then listed, if
any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) to the extent
the securities
of the same class
or series are not then listed on a national securities
exchange, secure
the designation and quotation, of all the Registrable
Securities covered by
the Registration
Statement on Nasdaq National Market or,
if not eligible
for Nasdaq
National Market, on Nasdaq SmallCap or, if not
eligible for
Nasdaq National Market or Nasdaq SmallCap, on the OTCBB and,
without limiting the
generality of the
foregoing, to arrange
for at least two
market makers to register with the National Association of Securities
Dealers,
Inc. ("NASD") as such with respect to such Registrable
Securities.
m.
Transfer Agent. The Company shall provide a transfer agent and
registrar, which may
be a single entity,
for the Registrable Securities not
later than the Filing Deadline.
n.
Delivery of Certificates. The Company shall cooperate with the
Investors
who hold Registrable
Securities being
offered and the managing underwriter or
underwriters, if any,
to facilitate
the timely
preparation
and delivery of
certificates (not
bearing any
restrictive legends)
representing
Registrable
Securities to be offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
managing underwriter
or underwriters,
if any, or the
Investors may reasonably
request and
registered
in such names as the managing
