Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights
Agreement (this
"Agreement") is made and entered
into as of June 25, 2004 (the "Effective Date"), among PROVECTUS
PHARMACEUTICALS, INC., a Nevada corporation (the "Company") and MARTIN
STERN;
HUBERFELD FAMILY, LLC; PLATINUM PARTNERS VALUE ARBITRAGE FUND LP;
M/S FAMILY
FOUNDATION; and ELIEZER ROSENTHAL ("Holders").
Capitalized terms not
otherwise
herein defined shall have the meanings ascribed to them in the Securities
Purchase Agreement between the Company and the
Lenders dated November 19, 2003
(the "Purchase Agreement") and the Securities
Redemption Agreement
between the
Company and the Holders dated June 25, 2004
(the "Redemption Agreement").
RECITALS
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WHEREAS,
pursuant to the
Redemption Agreement,
the Company has agreed
to
purchase the Debentures from the Holders
and the Holders have agreed to sell the
Debentures to the Company. The Holders will retain the
Warrants. The Company
shall withdraw its Registration Statement on Form S-2,
filed on February
12,
2004, and has undertaken to file a new
registration
statement to register
the
Warrants and the Warrant Shares.
AGREEMENT
---------
THEREFORE,
the parties
hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1.
DEFINITIONS AND INTERPRETATION
1.01. Certain Definitions
As used in this
Agreement, the
following capitalized
terms shall have the
following meanings:
(a) "Prospectus" means the prospectus included in any Registration
Statement, including any preliminary
prospectus, and any amendment or supplement
thereto and all material incorporated by
reference therein.
(b) "Registrable
Securities" means the Warrants, the Warrant Shares and any
shares or other securities of the Company issued or issuable with respect
thereto upon any stock split, stock
dividend, recapitalization or similar event,
excluding shares or other securities sold or transferred pursuant to an
effective registration statement, sold or
otherwise transferred pursuant to Rule
144 under the 1933 Act, sold or otherwise
transferred pursuant to a transfer not
requiring registration under the 1933 Act,
held by a Holder who at such time is
not an Affiliate of the Company and that
are eligible for sale
pursuant to Rule
144(k) under the 1933 Act, and held by a
Holder who at such time is an Affiliate
<PAGE>
of the Company if all of such shares or
other securities
are eligible for
sale
pursuant to Rule 144 under the 1933 Act and
could be sold in one
transaction in
accordance with the volume limitations
contained in Rule
144(e)(1)(i) under the
1933 Act.
(c) "Registration Expenses" means any and all expenses incident to
performance of or compliance with this Agreement, including all applicable
registration and filing fees imposed by the SEC
and any securities
exchange or
market on which the Registrable Securities are required to be listed and/or
quoted, as the case may be, all fees and
expenses incurred in
connection with
compliance with state securities or "blue sky" laws
(including reasonable
fees
and disbursements of counsel in connection
with qualification of the Registrable
Securities under any state securities or blue
sky laws and the preparation of a
blue sky memorandum) and compliance with the rules of
the National
Association
of Securities Dealers, Inc. ("NASD"), all expenses of any Persons in
preparing
or assisting in preparing, word processing, printing and distributing the
Registration Statement, any Prospectus, certificates and other documents
relating to the performance of and
compliance with this Agreement, all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities
exchange or exchanges, and the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company. Registration Expenses shall specifically exclude
underwriting discounts and commissions,
the fees and
disbursements of
counsel
representing the Holders or any underwriter or agent acting on behalf of the
Holders, and transfer taxes, if any, relating to the sale or
disposition of
Registrable Securities by any Holder, all
of which shall be borne by the Holders
in all cases.
(d)
"Registration
Statement" means a registration statement of the Company
(and any other entity required to be a
registrant pursuant to
the requirements
of the 1933 Act) covering all or a part of
the Registrable
Securities under the
1933 Act for which the Company is eligible,
including all
amendments (including
post-effective amendments), exhibits and materials
incorporated
by reference
therein.
(e) "SEC" means
the United States Securities and Exchange Commission.
(f) "Shelf
Registration
Statement" shall mean a Registration Statement on
Form S-3 (or any successor form) filed pursuant to Rule 415 of
Regulation
C
promulgated under the 1933 Act (or any
successor rule).
1.02. Rules of Interpretation
(a) Each term
defined in the singular form in Section 1.01 or elsewhere
in
this Agreement means the plural thereof whenever the plural form is used,
and
each term defined in the plural form means
the singular
thereof whenever the
singular form is used. The use of a pronoun of any gender
is applicable to all
genders.
(b) Unless
otherwise specified therein, all terms defined in this
Agreement
have the meanings as so defined herein when used in any other
certificate,
report or document made or delivered
pursuant hereto.
<PAGE>
(c) A reference
to any agreement, document or instrument refers to the
agreement, document or instrument as
amended or modified and in effect from time
to time in accordance with the terms
thereof and as permitted herein.
(d) Except as
otherwise specified, a reference to any applicable law refers
to the law as amended, modified, codified,
replaced or reenacted, in whole or in
part, and in effect from time to time, and to any rules and regulations
promulgated thereunder; and a reference to
any section or other provision of any
applicable law refers to that provision of the law from time to
time in effect
and constituting the substantive amendment, modification, codification,
replacement or reenactment of the
referenced section or other provision.
(e) All
accounting terms not specifically defined herein shall be
construed
in accordance with GAAP. All terms used in
Article 9 of the Uniform Commercial
Code as enacted in the State of Nevada and
not specifically
defined herein are
used herein as defined therein.
1.03. Construction
The headings
preceding the text of
the sections of this
Agreement and the
exhibits hereto are for convenience only and shall not be deemed part
of this
Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties to this
Agreement to express their mutual intent,
and no rule of strict construction shall be
applied against any party.
2.
REQUIRED REGISTRATION
2.01. Required Registration
a. Best Efforts. The Company shall use its best efforts to file a
Registration Statement to register the
Registrable Securities and shall use its
best efforts to cause such Registration Statement to be declared
effective by
the SEC as promptly as possible, and in no case later than
December 31, 2004.
The Company may elect, at its option, to
file such Registration
Statement as a
shelf registration pursuant to Rule 415 of Regulation
C promulgated under
the
1933 Act (or any successor rule).
Thereafter,
the Company may elect
to include
in such registration additional Common
Stock to be issued by the Company.
b. Debentures.
In the event that:
i.
the Company
does not receive the second or third scheduled
Installment Payment pursuant to the Securities Purchase
Agreement
between the
Company and certain
purchasers
and reissues the
Debentures to
the Holders pursuant to Section 1(d) of the
Redemption Agreement,
the Company shall immediately file a
Registration Statement
to register the Warrants, Warrant Shares
and Debentures. In addition, pursuant to Section 1(d)(ii) of
the
Redemption Agreement,
the Company shall pay to the Holders an
aggregate penalty of 2% of each of the second and third
scheduled
Redemption Installment
Payments, or Eight Thousand Three Hundred
<PAGE>
Thirty Three Dollars and Thirty Two Cents ($8,333.32) per month
until such time as the Company files a Registration Statement to
register the
Warrants, the Warrant Shares and the reissued
Debentures; or
ii. the
Company does not receive the final scheduled Installment
Payment pursuant to the Securities Purchase Agreement between
the
Company and certain purchasers and reissues the Debentures to
the
Holders pursuant to Section 1(d) of the Redemption Agreement,
the
Company shall
immediately
file a Registration Statement to
register the
Warrants, Warrant Shares and Debentures. In
addition,
pursuant to
Section 1(d)(iii) of the Redemption
Agreement, the
Company shall pay to the Holders an aggregate
penalty of 2% of
the third scheduled Redemption Installment
Payment, or Four Thousand One Hundred Sixty Six Dollars and
Sixty
Six Cents ($4,166.66)
per month until such time as the Company
files a Registration
Statement to register the Warrants, the
Warrant Shares and the reissued Debentures; and
iii. in such
event, the term
"Registrable
Securities" as used herein
shall be deemed to include the reissued Debentures.
2.02. Effective Registration and
Expenses
The Company shall promptly notify the Holders of the date and time
of
declaration of effectiveness of such
Registration
Statement. In a
registration
initiated as a Required Registration, the Company shall pay the Registration
Expenses incurred in connection
therewith.
2.03. Exceptions
Notwithstanding
any other provision of this Agreement, if the Company shall
furnish to the Holders a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would not be in the best interests of the Company and its
stockholders generally for such registration
statement to be filed, the Company
shall have the right to defer such filing
for a period of not more than 60 days;
provided, however, that the Company shall be entitled to defer a
filing upon
such notice only once.
3.
REGISTRATION PROCEDURES
3.01. Obligations of Company
In connection with the obligations of the Company with respect to the
registration of the Registrable Securities contemplated herein, the Company
shall:
(a) prepare and file with the SEC such amendments and supplements
(including required periodic reporting filings under the 1934 Act) to such
Registration Statement and Prospectus
included therein as may be necessary to
keep such Registration Statement effective for the
applicable period; cause the
Prospectus to be amended or supplemented as
required and to be filed as required
<PAGE>
by Rule 424 or any similar rule that may be
adopted under the 1933 Act; respond
as promptly as practicable to any comments
received from the SEC with respect to
the Registration Statement or any amendment thereto; and comply with the
provisions of the 1933 Act with respect to
the disposition
of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof. Notwithstanding anything to the
contrary contained herein, the
Company shall not be required to take any of the actions described in the
sentence above (i) to the extent that the
Company is in
possession of material
non-public information that it deems
advisable not to disclose or is engaged in
active negotiations or planning for a material merger, acquisition or
disposition transaction and it delivers written notice to each Holder of
Registrable Securities to the effect that such Holder may not make offers or
sales under the Registration Statement for a period not to
exceed 60 days from
the date of such notice; provided, however, that the Company may deliver
only
two such notices within any 12-month period, or (ii) to the extent that
such
registration would require initial or continuing disclosure of events or
proceedings yet unreported that, in the
opinion of the Board of Directors of the
Company, would not be in the best interests
of the Company and its stockholders
and such disclosure is not otherwise
required under
applicable law
(including
applicable securities laws), and the Company delivers written notice to
each
Holder of Registrable Securities to the effect that such Holder may not make
offers or sales for a period not to exceed
60 days from the date of such notice;
provided, however, that the Company may
deliver only one such notice within any
365-day period. The Holders shall promptly provide to the Company such
information as the Company reasonably
requests in order to
identify such Holder
and the method of distribution in a
post-effective amendment to the Registration
Statement or a supplement to the
Prospectus.
Such Holder also shall
notify the
Company in writing upon completion of such
offer or sale or at such time as such
Holder no longer intends to make offers or sales under the Registration
Statement;
(b) use its best
efforts to register or qualify the Registrable Securities
by the time the Registration Statement is declared effective by the SEC under
all applicable state securities or blue sky laws of
such jurisdictions in
the
United States and its territories and possessions as any Holder of
Registrable
Securities covered by the Registration
Statement shall
reasonably
request in
writing and keep each such registration or qualification effective during the
period such Registration Statement is required to be kept
effective or
during
the period offers or sales are being
made by a Holder
that has delivered a
Registration Notice to the Company,
whichever is shorter;
provided, however,
that in connection therewith, the Company shall not be required
to qualify as a
foreign corporation to do business or to register as a
broker or dealer in any
such jurisdiction where it would not otherwise be required to qualify or
register, subject itself to taxation in any
such jurisdiction, or file a general
consent to service of process in any such
jurisdiction;
(c) notify each
selling Holder of Registrable Securities promptly and, if
requested by such Holder, confirm in writing, when the Registration Statement
and any post-effective amendments thereto have become effective, when any
amendment or supplement to the Prospectus has been filed with the SEC, of
the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration
Statement or any part
thereof
or the initiation of any proceedings for
that purpose, if the
Company receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for offer or sale in
any jurisdiction or
the initiation
5
<PAGE>
of any proceeding for such purpose, and of
the happening of any event during the
period the Registration Statement is effective as a result of which such
Registration Statement contains any untrue
statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or the Prospectus as then amended or
supplemented contains any untrue statement of a
material fact or omits to state
any material fact necessary in order to
make the statements therein, in light of
the circumstances under which they were
made, not misleading; provided, however,
that the Company shall not be obligated
to prepare and furnish
any prospectus
supplements or amendments relating to any
material nonpublic
information at any
such time as the Board of Directors of the
Company has determined that, for good
business reasons, the disclosure of such
material nonpublic
information at that
time would be materially detrimental to the Company in the
circumstances and is
not otherwise required under applicable law (including
applicable
securities
laws); provided, further, that the Company may only delay its obligations
pursuant to the aforementioned proviso for a period of 60 days in
any 180-day
period;
(d) use its best
efforts to obtain the
withdrawal of any order suspending
the effectiveness of the Registration
Statement or any part
thereof as promptly
as possible;
(e) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of unlegended certificates
representing Registrable Securities to be sold; and enable unlegended
certificates for such Registrable Securities to be issued for such
numbers of
shares and registered in such names as the selling Holders may reasonably
request at least two business days prior to
any sale of Registrable Securities;
(f) u
