EXHIBIT 4.11
WARRANT
THESE SECURITIES
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES
OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE
COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
PROVECTUS PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance; Certain Definitions. In consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by PROVECTUS
PHARMACEUTICALS, INC., a Nevada corporation (the
"Company"),
_________________
(the "Holder"), a registered assign of
Network 1 Financial Securities, Inc., is
hereby granted the right to purchase at
any time until 5:00 p.m., New York City
time, August 15, 2007, up to _________________ (__________) fully paid and
nonassessable shares of the Company's Common
Stock, $0.001 par
value per share
(the "Common Stock"), at an exercise price per share
(the "Exercise Price")
of
$1.00 per share, subject to adjustment as set forth
herein. Capitalized
terms
not otherwise herein defined shall have the meanings
ascribed to them in
the
Financial Advisory and Investment Banking
Agreement between the Company and the
Holder dated August 15, 2004 (the
"Agreement").
2. Exercise of Warrants.
2.1 Method of
Exercise.
(a) This Warrant is exercisable in whole or in part at any time
and from
time to time. Such
exercise shall be effectuated by submitting to the
Company (either
by delivery to the Company or by facsimile
transmission as
provided in Section 8
hereof) a completed
and duly
executed Notice of
Exercise
(substantially in the
form attached to
this Warrant) as provided in this paragraph. The date such Notice of
Exercise is
faxed to the Company shall be the "Exercise Date,"
provided that
the Holder of this Warrant tenders this Warrant
Certificate to the Company within five (5) business days
thereafter.
The Notice of Exercise shall be executed by the Holder of this
Warrant
and shall indicate the number of shares then being purchased
pursuant
to such exercise. Upon surrender of this Warrant Certificate,
together
with appropriate
payment of the Exercise Price for the shares of
Common Stock
purchased, the
Certificate(s)
representing the
Shares
being purchased
shall be delivered to the Holder or his assignees
within a reasonable
time, not exceeding ten (10) days, after the
rights represented by this Warrant have been so exercised.
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(b) If the Notice of Exercise form elects a "cashless" exercise, the
Holder shall
thereby be entitled to receive a number of shares
of
Common Stock computed using the following formula:
X =
Y (A-B)
-------
A
For purposes of this formula, the following applies:
X =
the number of
shares of Common Stock to be
issued to the Holder
Y =
the number of
shares of Common Stock
purchasable under this Warrant or, if only a
portion of this Warrant is being exercised,
the portion of this Warrant being exercised
(at the date of such calculation)
A =
the Market Price as of
the date of exercise
B =
the Exercise Price as
of the date of exercise
For the purposes of this Warrant, the term "Market Price"
shall be the closing
price of the Common
Stock as reported
by the Reporting
Service for the relevant date. The holder
may not elect a "cashless" exercise until one year from
the
date hereof or any time when there is a currently effective
Registration Statement
for the shares of Common Stock
underlying the warrants.
(c) If the Notice of Exercise form
elects a "cash" exercise, the Exercise
Price per share of Common Stock for the shares then being exercised
shall be payable in cash or by certified or official bank
check.
(d) The Holder shall be deemed to be
the holder of the shares issuable to
it in accordance
with the provisions of this Section 2.1 on the
Exercise Date.
2.2 Limitation
on Exercise. Notwithstanding the provisions of this Warrant,
the Agreement or of the other Transaction
Agreements, in no event (except (i) as
specifically provided in this Warrant as an
exception to this
provision, (ii)
while there is outstanding a tender offer for any or all of the shares
of the
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Company's Common Stock, or (iii) at the
Holder's option, on at
least sixty-five
(65) days' advance written notice from the Holder)
shall the Holder be entitled
to exercise this Warrant, or shall the Company have the
obligation
to issue
shares upon such exercise of all or any portion of this
Warrant to the
extent
that, after such exercise the sum of (1) the number of
shares of Common Stock
beneficially owned by the Holder and its
affiliates (other than shares of Common
Stock which may be deemed beneficially owned through the ownership of the
unexercised portion of the Warrants or other
rights to purchase
Common Stock),
and (2) the number of shares of Common
Stock issuable
upon the exercise of
the
Warrants with respect to which the
determination of this
proviso is being made,
would result in beneficial ownership by the Holder and its
affiliates of more
than 9.99% of the outstanding shares of Common Stock (after
taking into account
the shares to be issued to the Holder upon
such exercise).
For purposes of
the
proviso to the immediately preceding sentence, beneficial ownership shall be
determined in accordance with Section 13(d) of the
Securities
Exchange Act of
1934, as amended (the "1934 Act"), except
as otherwise provided in clause (1) of
such sentence. The Holder, by its acceptance of this Warrant,
further agrees
that if the Holder transfers or assigns any of the
Warrants, such assignment
shall be made subject to the transferee's
or assignee's specific agreement to be
bound by the provisions of this Section 2.2 as if such
transferee or
assignee
were the original Holder hereof.
3. Reservation of Shares. The Company
hereby agrees that at all times during the
term of this Warrant there shall be reserved for
issuance upon exercise of this
Warrant such number of shares of its
Common Stock as shall be required for
issuance upon exercise of this Warrant (the
"Warrant Shares").
4. Mutilation or Loss of Warrant. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or
destruction) receipt
of reasonably
satisfactory indemnification, and (in the
case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and
deliver a duplicate
Warrant and any such lost, stolen, destroyed or mutilated Warrant shall
thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to
any rights of a stockholder in the Company, either at law or equity,
and the
rights of the Holder are limited to those
expressed in this
Warrant and are not
enforceable against the Company except to
the extent set forth herein.
6. Protection Against Dilution and Other
Adjustments.
6.1 Adjustment Mechanism. If an adjustment of the Exercise Price is
required pursuant to this Section 6, the Holder shall be entitled to purchase
such number of additional shares of Common Stock as will cause (i) the
total
number of shares of Common Stock Holder is
entitled to purchase pursuant to this
Warrant, multiplied by (ii) the adjusted Exercise Price per share, to equal
(iii) the dollar amount of the total number of
shares of Common Stock Holder is
entitled to purchase before adjustment multiplied by the total Exercise
Price
immediately before adjustment.
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6.2 Capital
Adjustments. In case of any stock split or reverse stock split,
stock dividend, reclassification of the Common
Stock, recapitalization, merger
or consolidation, or like capital adjustment
affecting the Common
Stock of the
Company prior to the exercise of this
Warrant or its
applicable portion,
the
provisions of this Section 6 shall be applied as if such capital adjustment
event had occurred immediately prior to the exercise date of this Warrant and
the original Exercise Price had been fairly allocated to the stock
resulting
from such capital adjustment; and in other respects the provisions of this
Section shall be applied in a fair,
equitable and
reasonable
manner so as to
give effect, as nearly as may be, to the
purposes hereof.
6.3 Spin Off.
If, for any reason,
prior to the exercise of this Warrant in
full, the Company spins off or otherwise divests itself of a part of its
business or operations or disposes all or of a part of its assets in a
transaction (the "Spin Off") in which the
Company does not receive compensation
for such business, operations or assets,
but causes securities of another entity
to be issued to security holders of the Company,
then the Company shall
notify
the Holder at least thirty (30) days prior to the
record date with
respect to
such Spin-Off.
6.4 Dissolution, Liquidation. In case of the voluntary or involuntary
dissolution, liquidation or winding up of the
Company (other than in connection
with a reorganization, consolidation, merger, or other transaction
covered by
paragraph 6.2 above) is at any time
proposed, the Company shall give at
least
thirty days prior written notice to the
Holder. Such notice
shall contain: (a)
the date on which the transaction is to take place;
(b) the record date
(which
shall be at least thirty (30) days after the giving of the
notice) as of which
holders of Common Stock will be entitled to
receive distributions as a result of
the transaction; (c) a brief description of the transaction, (d) a brief
description of the distributions to be made to holders of Common Stock as a
result of the transaction; and (d) an estimate of the fair value of the
distributions. On the date of the transaction, if it actually occurs, this
Warrant and all rights under this Warrant
shall terminate.
6.5 Notice of Adjustment. On the happening of an event requiring an
adjustment of the Exercise Price or the
shares purchasable
under this
Warrant,
the Copmany shall immediately give written notice to the Holder stating the
adjusted Exercise Price and the adjusted
number and kind of securities or other
property purchasable under this Warrant resulting from the event and setting
forth in reasonable detail the method of calculation and the facts upon which
the calculation is based.
7. Rights of Holder. The Company shall deliver to the Holder all notices
and
other information provided to its holders of shares of Common
Stock or other
securities which may be issuable hereunder concurrently with the delivery of
such information to the holders. This
Warrant does not entitle the Holder to any
voting rights or, except for the foregoing
notice provisions,
any other rights
as a shareholder of the Company. No
dividends are payable or will accrue on this
Warrant or the shares of Common Stock
purchasable under this
Warrant until, and
except to the extent that, this Warrant is
exercised. Upon the surrender of this
Warrant and payment of the Exercise Price as provided above, the person or
entity entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes
as the record holder
of such shares
as of the close of business on the date of the surrender of this Warrant for
exercise as provided above. Upon the
exercise of this Warrant, the Holder shall
have all of the rights of a shareholder in
the Company.
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8. Exchange for Other Denominations. This Warrant is exchangeable, on its
surrender by the Holder to the Company, for
a new Warrant of like tenor and date
representing in the aggregate the right to
purchase the balance of the number of
shares purchasable under this Warrant in denominations and subject to
restrictions on transfer contained herein,
in the names designated by the Holder
at the time of surrender.
9. Transfer to Comply with the Securities
Act; Registration Rights.
9.1 Transfer.
This Warrant has not been registered under the Securities Act
of 1933, as amended, (the "Act") and has been issued to the Holder for
investment and not with a view to the
distribution of either
the Warrant or the
Warrant Shares. Except for transfers to officers,
employees and
affiliates of
the Holder, neither this Warrant nor any of the Warrant
Shares or any
other
security issued or issuable upon exercise of this Warrant may be sold,
transferred, pledged or hypothecated in the
absence of an effective registration
statement under the Act relating to such security or an opinion of counsel
satisfactory to the Company that registration is not required under the Act.
Each certificate for the Warrant, the Warrant Shares and any other security
issued or issuable upon exercise of this Warrant shall
contain a legend on the
face thereof, in form and substance satisfactory to counsel for the Company,
setting forth the restrictions on transfer
contained in this Section.
9.2 Registration
Rights. As used in this Section 9.2, the
following terms
shall have the following respective
meanings:
"Registrable
Securities"
shall mean (i) the
Warra
