REGISTRATION RIGHTS AGREEMENT

 

 

                                                                     Exhibit 4.3

 

 

 

                          REGISTRATION RIGHTS AGREEMENT

 

 

     REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July 28, 2004

by and   between   PROVECTUS   PHARMACEUTICALS,   INC.,   a Nevada   corporation   (the

"Company"),   and CORNELL CAPITAL   PARTNERS,   LP, a Delaware limited   partnership

(the "Investor").

 

     WHEREAS:

 

     A. In   connection   with the Standby   Equity   Distribution   Agreement by and

between   the   parties   hereto   of   even   date   herewith   (the   "Standby    Equity

Distribution Agreement"),   the Company has agreed, upon the terms and subject to

the conditions of the Standby Equity Distribution   Agreement,   to issue and sell

to the Investor that number of shares of the Company's   common stock,   par value

$0.001 per share (the "Common   Stock"),   which can be purchased   pursuant to the

terms of the Standby   Equity   Distribution   Agreement for an aggregate   purchase

price of up to   Twenty   Million   Dollars   ($20,000,000).   Capitalized   terms not

defined   herein   shall have the meaning   ascribed to them in the Standby   Equity

Distribution Agreement.

 

     B. To induce the   Investor   to   execute   and   deliver   the   Standby   Equity

Distribution   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 premises and the mutual covenants

contained   herein and other good and   valuable   consideration,   the   receipt and

sufficiency   of which are hereby   acknowledged,   the   Company   and the   Investor

hereby agree as follows:

 

     1.   DEFINITIONS.

 

     As used in this   Agreement,   the   following   terms shall have the following

meanings:

 

     a.   "Person"   means   a   corporation,    a   limited   liability   company,    an

association,   a partnership,   an   organization,   a business,   an   individual,   a

governmental or political subdivision thereof or a governmental agency.

 

     b. "Register,"   "registered,"   and   "registration"   refer to a registration

effected by preparing and filing one or more Registration Statements (as defined

below) 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 or

delayed basis ("Rule 415"),   and the declaration or ordering of effectiveness of

such   Registration   Statement(s)   by the United States   Securities   and Exchange

Commission (the "SEC").

 

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     c.   "Registrable   Securities" means all shares of Common Stock issued or to

be issued to the   Investor   under the   Standby   Equity   Distribution   Agreement,

including, without limitation, the Investor's Shares.

 

     d. "Registration   Statement" means a registration   statement under the 1933

Act which covers the Registrable Securities.

 

     2.   REGISTRATION.

 

     a. Mandatory Registration.   The Company shall prepare and file with the SEC

a   Registration   Statement   on   Form   S-1,   SB-2   or on   such   other   form as is

available.   The Company shall cause such   Registration   Statement to be declared

effective   by the SEC prior to the first sale to the   Investor of the   Company's

Common Stock pursuant to the Standby Equity Distribution Agreement.

 

     b.   Sufficient   Number of   Shares   Registered.   In the event the   number of

shares   available under a Registration   Statement filed pursuant to Section 2(a)

is insufficient to cover all of the   Registrable   Securities   which the Investor

has purchased pursuant to the Standby Equity Distribution Agreement, the Company

shall amend the Registration Statement, or file a new Registration Statement (on

the short form available therefore, if applicable),   or both, so as to cover all

of such Registrable   Securities which the Investor has purchased pursuant to the

Standby Equity Distribution   Agreement as soon as practicable,   but in any event

not later than   fifteen   (15) days after the   necessity   therefore   arises.   The

Company   shall   use   it   best   efforts   to   cause   such   amendment    and/or   new

Registration   Statement to become effective as soon as practicable following the

filing thereof.   For purposes of the foregoing   provision,   the number of shares

available under a Registration   Statement shall be deemed "insufficient to cover

all of the   Registrable   Securities"   if at any time the   number of   Registrable

Securities   issuable   on an Advance   Notice   Date is greater   than the number of

shares available for resale under such Registration Statement.

 

     3.   RELATED OBLIGATIONS.

 

     a. The Company shall keep the Registration   Statement effective pursuant to

Rule 415 at all times until the date on which the   Investor   shall have sold all

the   Registrable    Securities   covered   by   such   Registration    Statement   (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, in light of the

circumstances in which they were made, not misleading.

 

     b.   The   Company   shall   prepare   and file   with   the SEC   such   amendments

(including    post-effective    amendments)   and   supplements   to   a   Registration

Statement   and   the   prospectus   used   in   connection   with   such    Registration

Statement,   which   prospectus   is to be filed   pursuant to Rule 424   promulgated

under the 1933 Act,   as may be   necessary   to keep such   Registration   Statement

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 Registrable Securities of the Company covered by such Registration Statement

until such time as all of such   Registrable   Securities shall have been disposed

of in   accordance   with the   intended   methods of   disposition   by the seller or

sellers   thereof   as set forth in such   Registration   Statement.   In the case of

 

 

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amendments and supplements to a Registration   Statement which are required to be

filed   pursuant to this Agreement   (including   pursuant to this Section 3(b)) by

reason of the Company's filing a report on Form 10-KSB,   Form 10-QSB or Form 8-K

or any analogous   report under the   Securities   Exchange Act of 1934, as amended

(the "1934 Act"), the Company shall have   incorporated   such report by reference

into the Registration Statement, if applicable, or shall file such amendments or

supplements   with the SEC on the same day on which the 1934 Act   report is filed

which   created   the   requirement   for the   Company   to amend or   supplement   the

Registration Statement.

 

     c. The Company shall furnish to the Investor   without charge,   (i) at least

one copy of such Registration Statement as declared effective by the SEC and any

amendment(s)   thereto,    including   financial   statements   and   schedules,    all

documents   incorporated therein by reference,   all exhibits and each preliminary

prospectus,   (ii) ten (10)   copies   of the   final   prospectus   included   in such

Registration Statement and all amendments and supplements thereto (or such other

number of copies as such Investor may   reasonably   request) and (iii) such other

documents as such Investor may reasonably   request from time to time in order to

facilitate the disposition of the Registrable Securities owned by such Investor.

 

     d. The Company   shall use its best   efforts to (i) register and qualify the

Registrable   Securities   covered by a   Registration   Statement   under such other

securities or "blue sky" laws of such   jurisdictions in the United States as the

Investor reasonably requests, (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 (w) make any

change to its   certificate   of   incorporation   or   by-laws,   (x)   qualify   to do

business in any jurisdiction where it would not otherwise be required to qualify

but for this Section 3(d),   (y) subject   itself to general   taxation in any such

jurisdiction,   or (z) file a general   consent   to service of process in any such

jurisdiction.   The Company shall promptly   notify the Investor of the receipt by

the   Company   of   any   notification   with   respect   to   the   suspension   of   the

registration   or   qualification   of any of the   Registrable   Securities for sale

under the securities or "blue sky" laws of any jurisdiction in the United States

or its receipt of actual notice of the   initiation   or threat of any   proceeding

for such purpose.

 

     e. As   promptly   as   practicable   after   becoming   aware   of such   event or

development,   the Company   shall notify the Investor in writing of the happening

of any event as a result   of which the   prospectus   included   in a   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, in light of the circumstances under which they were

made,   not   misleading   (provided that in no event shall such notice contain any

material, nonpublic information), and promptly prepare a supplement or amendment

to such Registration Statement to correct such untrue statement or omission, and

deliver ten (10) copies of such   supplement or amendment to each   Investor.   The

 

 

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<PAGE>

 

Company shall also promptly notify the Investor in writing (i) when a prospectus

or any prospectus   supplement or   post-effective   amendment has been filed,   and

when   a   Registration   Statement   or any   post-effective   amendment   has   become

effective (notification of such effectiveness shall be delivered to the Investor

by facsimile on the same day of such effectiveness),   (ii) of any request by the

SEC for   amendments   or   supplements   to a   Registration   Statement   or   related

prospectus   or   related   information,   and   (iii)   of the   Company's   reasonable

determination that a post-effective   amendment to a Registration Statement would

be appropriate.

 

     f. The Company   shall use its best   efforts to prevent the   issuance of any

stop order or other suspension of effectiveness of a Registration   Statement, or

the suspension of the   qualification   of any of the   Registrable   Securities for

sale in any   jurisdiction   within the United   States of America   and, if such an

order or   suspension   is   issued,   to obtain   the   withdrawal   of such   order or

suspension   at the   earliest   possible   moment and to notify the Investor of the

issuance   of such   order and the   resolution   thereof   or its   receipt of actual

notice of the initiation or threat of any proceeding for such purpose.

 

     g. At the reasonable request of the Investor,   the Company shall furnish to

the Investor, on the date of the effectiveness of the Registration Statement and

thereafter   from   time to time on such   dates   as the   Investor   may   reasonably

request (i) 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,

and (ii) an opinion,   dated as of such date, of 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 Investor.

 

     h. The Company shall make   available for inspection by (i) the Investor and

(ii)   one   firm   of   accountants   or   other   agents   retained   by   the   Investor

(collectively,   the "Inspectors") all pertinent financial and other records, and

pertinent corporate documents and properties of the Company   (collectively,   the

"Records"), as shall be reasonably deemed necessary by each Inspector, and cause

the Company's officers,   directors and employees to supply all information which

any Inspector may reasonably   request;   provided,   however,   that each Inspector

shall agree,   and the Investor hereby agrees,   to hold in strict   confidence and

shall not make any   disclosure   (except to an   Investor) or use of any Record or

other information which the Company determines in good faith to be confidential,

and of which   determination   the   Inspectors   are so   notified,   unless   (a) the

disclosure   of such Records is necessary to avoid or correct a   misstatement   or

omission in any Registration   Statement or is otherwise   required under the 1933

Act but only after the Investor has provided written notice to the Company,   (b)

the   release   of such   Records is ordered   pursuant   to a final,   non-appealable

subpoena or order from a court or government body of competent jurisdiction,   or

(c) the   information   in such Records has been made   generally   available to the

public other than by disclosure   in violation of this or any other   agreement of

which the Inspector and the Investor has knowledge.   The Investor agrees that it

shall,   upon learning that disclosure of such Records is sought in or by a court

or   governmental   body of competent   jurisdiction   or through other means,   give

prompt notice to the Company and allow the Company, at its expense, to undertake

appropriate   action to prevent   disclosure   of, or to obtain a protective   order

for, the Records deemed confidential.

 

 

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<PAGE>

 

     i. The Company   shall hold in   confidence   and not make any   disclosure   of

information    concerning   the   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 final,

non-appealable    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   Agreement or any other

agreement.   The Company agrees that it shall,   upon learning that   disclosure of

such   information   concerning   the   Investor   is   sought   in   or by a   court   or

governmental body of competent   jurisdiction or through other means, give prompt

written   notice   to the   Investor   and   allow the   Investor,   at the   Investor's

expense, to undertake   appropriate action to prevent disclosure of, or to obtain

a protective order for, such information.

 

     j.   The   Company   shall   use its   best   efforts   either   to   cause   all the

Registrable   Securities covered by a Registration   Statement (i) to be listed on

each 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 to secure the

inclusion for quotation on the National Association of Securities Dealers,   Inc.

OTC Bulletin Board for such   Registrable   Securities.   The Company shall pay all

fees and   expenses in   connection   with   satisfying   its   obligation   under this

Section 3(j).

 

     k. The Company shall cooperate with the Investor to the extent   applicable,

to facilitate the timely   preparation and delivery of certificates   (not bearing

any restrictive   legend)   representing the 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 Investor   may   reasonably

request and registered in such names as the Investor may request.

 

     l.   The   Company   shall   use its best   efforts   to   cause   the   Registrable

Securities   covered by the   applicable   Registration   Statement to be registered

with or approved by such other   governmental   agencies or   authorities as may be

necessary to consummate the disposition of such Registrable Securities.

 

     m. The   Company   shall   otherwise   use its best   efforts to comply with all

applicable   rules and regulations of the SEC in connection with any registration

hereunder.

 

     n. Within two (2) business days after a Registration Statement which covers

Registrable   Securities   is ordered   effective   by the SEC,   the   Company   shall

deliver,   and shall   cause legal   counsel   for the   Company to   deli