EXHIBIT 4.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES
PURCHASE AGREEMENT,
dated as of _______,
2005, is entered
into by and between PROVECTUS
PHARMACEUTICALS, INC.,
a Nevada corporation, with
headquarters located at 7327 Oak Ridge Highway,
Suite A, Knoxville, TN 37931
(the "Company"), and _______________(the
"Purchaser").
R E C I T A L S :
WHEREAS,
the Company and the
Purchaser are executing and delivering this
Agreement in accordance with and in reliance upon the
exemption from securities
registration for offers and sales to
accredited investors afforded, inter alia,
by Rule 506 under Regulation D ("Regulation D") as promulgated by the United
States Securities and Exchange
Commission (the "SEC")
under the Securities Act
of 1933, as amended (the "1933 Act"),
and/or Section 4(2) of the 1933 Act; and
WHEREAS, the
Company wishes to sell to the Purchaser and the Purchaser wish
to buy from the Company shares of the Common Stock, $.001 par value, of the
Company (the "Common Stock"), together with the Warrants (as defined
below)
exercisable for the purchase of shares of
Common Stock;
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 parties agree as follows:
1. AGREEMENT TO PURCHASE; PURCHASE
PRICE.
a. Purchase.
(i) Subject to the terms and conditions of this Agreement and the other
Transaction
Agreements (as defined
below), the Purchaser
hereby agree to
pay to the
Company a purchase
price of $.75 per share of Common Stock for
____________
(_______) shares (the "Shares"), for a total purchase price of
____________
($_______) (the "Purchase Price"). The Purchase Price shall be
within five (5)
days of the Closing
Date (as defined
below). The
Company
shall issue
Certificates (as
defined below)
representing the Shares, and
each Share shall
have a Warrant attached, as provided below.
(ii) The
Purchase Price shall be payable in United States Dollars.
b. Certain Definitions. As used herein, each of the following terms has the
meaning set forth below, unless the context
otherwise requires:
(i) "1933 Act" means the Securities
Act of 1933.
(ii) "1934 Act"
means the Securities Act of 1934.
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(iii)"Affiliate"
means, with respect to a specific
Person referred to
in
the relevant
provision, another
Person who or which
controls or is
controlled by or is under common control with such specified
Person.
(iv) "Broker"
means Network 1 Financial Securities, Inc.
(v) "Certificates" means the Shares and the Warrants,
each duly executed
by the Company
and issued on the Closing Date in the name of the
Purchaser.
(vi) "Closing
Date" means the date
of the closing of the purchase and sale
of the Shares and Warrants, as provided herein.
(vii)"Company
Control Person" means each director, executive officer,
promoter, and such
other Persons as may be deemed in
control of the
Company pursuant
to Rule 405 under the
1933 Act or Section 20 of the
1934 Act.
(vii b)
"Effective
Date" means the effective date of the Registration
Statement covering the Registrable Securities.
(viii) "Holder"
means the Person
holding the relevant
Securities
at the
relevant time.
(ix) "Last
Audited Date" means December 31, 2004.
(x) "Material Adverse Effect" means an event or
combination
of events,
which individually or
in the aggregate,
would reasonably be expected
to (w) adversely affect the legality, validity or enforceability of
the Securities
or any of the
Transaction
Agreements,
(x) have or
result in a material
adverse effect on the
results of operations,
assets, prospects,
or condition (financial or otherwise) of the
Company and its
subsidiaries, taken as
a whole, (y) adversely impair
the Company's
ability to perform fully on a timely basis its
obligations
under any of the Transaction Agreements or the
transactions
contemplated thereby,
or (z) materially and adversely
affect the
value of the rights granted to the Purchaser in the
Transaction Agreements.
(xi) "Person"
means any living person or any entity, such as, but not
necessarily limited to, a corporation, partnership or trust.
(xii) "Principal
Trading Market" means The Over the Counter Bulletin Board.
(xiii)
"Purchaser Control
Person" means each director, executive officer,
promoter, and such
other Persons as may be deemed in
control of the
relevant Purchaser
pursuant to Rule 405 under the 1933 Act or Section
20 of the 1934 Act.
(xiv)"Registrable Securities" has the meaning set forth in the
Registration Rights Agreement, in the form annexed hereto as Annex
IV,
as executed by each Purchaser and the Company simultaneously with the
execution of this Agreement.
(xv)
"Registration
Rights
Agreement" means
the Registration Rights
Agreement.
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<PAGE>
(xvi)"Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
(xvii)
"Securities" means the Shares and the Warrants.
(xviii) "State
of Incorporation" means Nevada.
(xix)"Trading
Day" means any day during which the Principal Trading Market
shall be open for business.
(xx)
"Transaction Agreements" means this Securities Purchase Agreement,
the
Common Stock Certificate, the Registration Rights Agreement,
and the
Warrants and includes
all ancillary
documents referred to in those
agreements.
(xxi)"Warrant
Shares" means the shares of Common Stock issuable upon
exercise of the Warrants.
c. Form of Payment; Delivery of
Certificates.
(i) On the Payment Date, the Purchaser shall pay the Purchase
Price by
delivering immediately
available good funds
in United States Dollars
to the Company.
(ii) No later
than the Payment Date,
but in any event
promptly following
payment by the
Purchaser to the Company of the Payment, the Company
shall deliver the
Certificate,
each duly executed on behalf of the
Company and issued in the name of the Purchaser, to the Purchaser.
The
Common Stock
Certificate on the
Payment Date shall be for _________
(_______) Shares.
d. Method of Payment. Payment shall be made
by via check or wire transfer to:
Provectus Pharmaceuticals, Inc.
7327 Oak Ridge Highway
Knoxville, TN 37931
Attn: Peter R. Culpepper
2. PURCHASER
REPRESENTATIONS,
WARRANTIES,
ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The Purchaser represents and warrants to, and covenants and
agrees with,
the Company as follows:
a. Without
limiting Purchaser's right to sell the Shares pursuant
to the
Registration Statement or otherwise to sell any
of the Securities in compliance
with the 1933 Act, the Purchaser is purchasing the Securities and will be
acquiring the Shares for its own account
for investment only and not with a view
towards the public sale or distribution thereof and not with a view to or
for
sale in connection with any distribution
thereof.
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<PAGE>
b. The Purchaser
is (i) an "accredited investor" as that term is defined in
Rule 501 of the General Rules and Regulations under the 1933 Act by reason
of
Rule 501(a)(3), (ii) experienced in making
investments of the kind described in
this Agreement and the related documents,
(iii) able, by reason
of the business
and financial experience of its officers (if an entity) and professional
advisors (who are not affiliated with or compensated in any way by
the Company
or any of its Affiliates or selling agents), to protect its own interests
in
connection with the transactions described in this Agreement,
and the related
documents, and (iv) able to afford the loss
of the entire Purchase Price.
c. All
subsequent offers and sales of the Securities by the Purchaser
shall
be made pursuant to registration of the
Shares under the 1933 Act or pursuant to
an exemption from registration.
d. The Purchaser understands
that the Securities are being offered and sold
to it in reliance on specific exemptions from the registration
requirements of
the 1933 Act and state securities laws and that the
Company is relying upon the
truth and accuracy of, and the Purchaser's
compliance with, the representations,
warranties, agreements, acknowledgments and understandings
of the Purchaser set
forth herein in order to determine the
availability
of such exemptions and
the
eligibility of the Purchaser to acquire the
Securities.
e. The
Purchaser and its
advisors, if any, have
been furnished
with all
materials relating to the business,
finances and
operations of the Company and
materials relating to the offer and sale of
the Securities and the offer of the
Shares which have been requested by the
Purchaser, including
those set forth on
Annex VI hereto. The Purchaser and its
advisors, if any, have
been afforded the
opportunity to ask questions of the Company and have
received complete and
satisfactory answers to any such inquiries.
Without limiting the
generality of
the foregoing, the Purchaser has also had the opportunity to obtain and to
review the Company's filings on EDGAR listed on Annex
VII hereto (the documents
listed on such Annex VII, to the extent
available on EDGAR or otherwise provided
to the Purchaser as indicated on said Annex
VII, collectively,
the "Company's
SEC Documents").
f. The Purchaser
understands that its investment in the Securities involves
a high degree of risk.
g. The Purchaser
hereby represents that, in connection with its purchase of
the Securities, it has not relied on any
statement or
representation
by the
Company or any of its officers,
directors and
employees or any of its attorneys
or agents, except as specifically set forth
herein.
h. The Purchaser
understands that no
United States federal or state agency
or any other government or governmental agency has passed on or made any
recommendation or endorsement of the
Securities.
i. This Agreement and the other Transaction Agreements to which the
Purchaser is a party, and the transactions
contemplated thereby,
have been duly
and validly authorized, executed and delivered on behalf of the
Purchaser and
are valid and binding agreements of the
Purchaser enforceable in accordance with
their respective terms, subject as to enforceability to general
principles of
equity and to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors'
rights generally.
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j. The
Purchaser has taken no
action which would give rise to any claim by
any Person for brokerage commission other than Network 1
Financial
Securities,
Inc., Broker's fees or similar payments by the Company relating to this
Agreement or the transactions contemplated hereby. The Company shall have no
obligation with respect to such fees or
with respect to any claims made by or on
behalf of other Persons for fees of a type
contemplated
in this paragraph
that
may be due in connection with the transactions contemplated hereby. The
Purchaser shall indemnify and hold harmless
each of the Company,
its employees,
officers, directors, agents, and partners,
and their respective Affiliates, from
and against all claims, losses, damages, costs (including the costs of
preparation and attorney's fees) and expenses suffered in respect of any
such
claimed or existing fees, as and when
incurred.
k. The Purchaser
hereby covenants and warrants that,
between the
Closing
Date and the date on which he or she no
longer holds any of the Securities,
Purchaser will not engage in any hedging
transactions or
shorting
transactions
in any securities of the Company, including
the Securities.
l. The Purchaser
hereby covenants and warrants that he or she is not acting
as a "group" for purposes of Section 13 of
the Securities Exchange Act of 1934.
3. COMPANY
REPRESENTATIONS, ETC. The Company represents and warrants to
the
Purchaser as of the date hereof and as of the Closing Date that, except as
otherwise provided in the Annex VI hereto
or in the Company's SEC Documents:
a. Rights of
Others Affecting
the Transactions. There are no preemptive
rights of any shareholder of the Company,
as such, to acquire
the Shares or the
Warrants. No party has a currently
exercisable
right of first
refusal which
would be applicable to any or all of the transactions contemplated by the
Transaction Agreements.
b. Status.
The Company is a
corporation duly
organized, validly
existing
and in good standing under the laws of the State of
Incorporation
and has the
requisite corporate power to own its
properties and to carry on its business as
now being conducted. The Company is duly qualified as a
foreign corporation
to
do business and is in good standing in each
jurisdiction where the nature of the
business conducted or property owned by it
makes such
qualification
necessary,
other than those jurisdictions in which the
failure to so qualify would not have
or result in a Material Adverse Effect. The
Company has registered its stock and
is obligated to file reports pursuant to Section 12 or Section
15(d) of the
Securities Exchange Act of 1934, as amended
(the "1934 Act"). The
Common Stock
is listed and quoted on the Principal
Trading Market.
The Company has
received
no notice, either oral or written, with
respect to the continued eligibility of
the Common Stock for such listing and
quotation on the Principal Trading Market,
and the Company has maintained all
requirements on its part for the continuation
of such listing and quotation.
c. Authorized
Shares. The authorized
capital stock of the Company consists
of (i) 100,000,000 shares of Common Stock,
$.001 par value per
share, of which
approximately 17,086,052 shares are outstanding as of June 30, 2005,
and (ii)
25,000,000 shares of Preferred Stock, $.001 par value per share,
of which no
shares are outstanding as of the date hereof.
As of June 30, 2005,
there were
35,586,820 shares of Common Stock outstanding on a fully diluted basis,
excluding however the shares of Common
Stock which would have
been issued upon
the conversion of the Company's Convertible Debentures. All issued and
outstanding shares of
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Common Stock have been duly authorized and validly issued and are fully paid.
The Company has sufficient authorized and
unissued shares of Common Stock as may
be necessary to effect the issuance of the
Securities. The
Securities have been
duly authorized and, when issued,
in accordance with
their terms, will be
duly
and validly issued, fully paid and non-assessable and,
except to the extent, if
any, provided by the law of the State of
Incorporation,
will not subject
the
Holder thereof to personal liability by
reason of being such Holder.
d. Transaction
Agreements and Stock.
This Agreement and
each of the other
Transaction Agreements, and the transactions contemplated thereby, have been
duly and validly authorized by the Company, this Agreement has been duly
executed and delivered by the Company and this Agreement is, and the
Certificates and each of the other Transaction Agreements, when executed and
delivered by the Company, will be, valid and binding
agreements of the
Company
enforceable in accordance with their respective terms, subject as to
enforceability to general principles of equity and to
bankruptcy,
insolvency,
moratorium, and other similar laws affecting the enforcement of creditors'
rights generally.
e.
Non-contravention. The execution and delivery of this Agreement and
each
of the other Transaction Agreements by the Company, the issuance of the
Securities, and the consummation by the Company of the other transactions
contemplated by this Agreement, the Certificates and the other Transaction
Agreements do not and will not conflict with or result in a breach by the
Company of any of the terms or provisions
of, or constitute a
default under (i)
the certificate of incorporation or by-laws
of the Company, each as currently in
effect, (ii) any indenture, mortgage, deed
of trust, or other material agreement
or instrument to which the Company is a party or by which it or any
of its
properties or assets are bound,
including any listing
agreement for the
Common
Stock except as herein set forth, or (iii) to its knowledge, any existing
applicable law, rule, or regulation or any
applicable decree, judgment, or order
of any court, United States federal or state
regulatory
body, administrative
agency, or other governmental body having
jurisdiction over the
Company or any
of its properties or assets, except where
such conflict, breach or default which
would not have or result in a Material
Adverse Effect.
f. Approvals. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or stock
exchange or market or the shareholders of
the Company is required to be obtained
by the Company for the issuance and sale of
the Securities
to the Purchaser
as
contemplated by this Agreement, except such authorizations, approvals and
consents that have been obtained.
g. Filings. None
of the Company's SEC Documents contained, at the time they
were filed, any untrue statement of a material fact or omitted to state any
material fact required to be stated
therein or necessary
to make the statements
made therein in light of the
circumstances
under which they were made, not
misleading. Since March 1, 2002, the Company has timely filed all requisite
forms, reports and exhibits thereto
required to be filed by the Company with the
SEC.
h. Absence of
Certain Changes. Since
the Last Audited Date, there has been
no material adverse change and no Material
Adverse Effect,
except as
disclosed
in the Company's SEC Documents.
Since the Last Audited
Date, except as provided
in the Company's SEC Documents, the Company has not (i) incurred or become
subject to any material liabilities
(absolute or
contingent) except liabilities
incurred in the ordinary course of business
consistent
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with past practices; (ii) discharged or satisfied any material lien or
encumbrance or paid any material obligation or liability (absolute or
contingent), other than current liabilities paid in the ordinary course of
business consistent with past practices;
(iii) declared or made
any payment or
distribution of cash or other property to shareholders with respect to its
capital stock, or purchased or redeemed,
or made any agreements
to purchase or
redeem, any shares of its capital stock;
(iv) sold, assigned or
transferred any
other tangible assets, or canceled any debts or claims,
except in the
ordinary
course of business consistent with past
practices; (v)
suffered any substantial
losses or waived any rights of material
value, whether or not in the ordinary
course of business, or suffered the loss of any material amount of existing
business; (vi) made any changes in employee
compensation, except in the ordinary
course of business consistent with past practices; or (vii) experienced any
material problems with labor or
management
in connection with the terms and
conditions of their employment.
i. Full
Disclosure.
There is no fact
known to the
Company (other than
general economic con
