Exhibit 4.2
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"),
_________________________________ or registered assigns (the "Holder") is hereby
granted the right to purchase at any time until 5:00 P.M., New York City time,
on November 19, 2005 (the "Expiration Date"), ________________________ (______)
fully paid and nonassessable shares of the Company's Common Stock, $0.001 par
value per share (the "Common Stock"), at an initial exercise price per share
(the "Exercise Price") of $____ per share, subject to further adjustment as set
forth herein.
2. Exercise of Warrants.
2.1 (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 Holder shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased.
(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 equal to (x) the excess of the Current Market Value (as defined
below) over the total cash exercise price of the portion of the Warrant
then being exercised, divided by (y) the Market Price of the Common Stock
as of the trading day immediately prior to the Exercise Date. For the
purposes of this Warrant, the terms (Q) "Current Market Value" shall be an
amount equal
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to the Market Price of the Common Stock as of the trading day immediately
prior to the Exercise Date, multiplied by the number of shares of Common
Stock specified in such Notice of Exercise Form, and (R) "Market Price of
the Common Stock" 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 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 or through the
ownership of the unconverted portion of the Debentures or other convertible
securities), 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 4.99% 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 to a party who or which
would not be considered such an affiliate, 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
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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 new Warrant
of like tenor and date 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.
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.
7. Transfer to Comply with the Securities Act; Registration Rights.
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7.1 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.
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7.2 Registration Rights. (a) Reference is made to the Registration
Rights Agreement. The Company's obligations under the Registration Rights
Agreement and the other terms and conditions thereof with respect to the
Warrant Shares, including, but not necessarily limited to, the Company's
commitment to file a registration statement including the Warrant Shares,
to have the registration of the Warrant Shares completed and effective, and
to maintain such registration, are incorporated herein by reference.
(b) In addition to the registration rights referred to in the
preceding provisions of Section 7.2(a), effective after the expiration of
the effectiveness of the Registration Statement as contemplated by the
Registration Rights Agreement, the Holder shall have piggy-back
registration rights with respect to the Warrant Shares then held by the
Holder or then subject to issuance upon exercise of this Warrant
(collectively, the "Remaining Warrant Shares"), subject to the conditions
set forth below. If, at any time after the Registration Statement has
ceased to be effective, the Company participates (whether voluntarily or by
reason of an obligation to a third party) in the registration of any shares
of the Company's stock (other than a registration on Form S-8 or on Form
S-4), the Company shall give written notice thereof to the Holder and the
Holder shall have the right, exercisable within ten (10) business days
after receipt of such notice, to demand inclusion of all or a portion of
the Holder's Remaining Warrant Shares in such registration statement. If
the Holder exercises such election, the Remaining Warrant Shares so
designated shall be included in the registration statement at no cost or
expense to the Holder (other than any costs or commissions which would be
borne by the Holder under the terms of the Registration Rights Agreement);
provided, however, that if there is a managing underwriter of the offering
of shares referred to in the registration statement and such managing
underwriter advises the Company in writing that the number of shares
proposed to be included in the offering will have an adverse effect on its
ability to successfully conclude the offering and, as a result, the number
of shares to be included in the offering is to be reduced, the number of
Remaining Warrant Shares of the Holder which were to be included in the
registration (before such reduction) will be reduced pro rata with the
number of shares included for all other parties whose shares are being
registered. The Holder's rights under this Section 7 shall expire at such
time as the Holder can sell all of the Remaining Warrant Shares under Rule
144 without volume or other restrictions or limit.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
sent by facsimile transmission or sent by certified, registered or express mail,
postage pre-paid. Any such notice shall be deemed given when so delivered
personally, telegraphed, telexed or sent by facsimile transmission, or, if
mailed, four days after the date of deposit in the United States mails, as
follows:
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(i) if to the Company, to:
PROVECTUS PHARMACEUTICALS, INC.
0000 Xxx Xxxxx Xxxxxxx, Xxxxx X,
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Wm. Xxxxxxx Xxxx, Jr.
Baker, Donelson, Bearman, Xxxxxxxx &
Xxxxxxxxx, P.C.
2200 Riverview Tower (Zip 37902)
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(ii) if to the Holder, to:
with a copy to:
Xxxxxxx & Xxxxxx LLP, Esqs.
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
Any party may give notice in accordance with this Section to the other parties
designate to another address or person for receipt of notices hereunder.
9. Supplements and Amendments; Whole Agreement. This Warrant may be amended
or supplemented only by an instrument in writing signed by the parties hereto.
This Warrant contains the full understanding of the parties with respect to the
subject matter
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hereof and thereof and there are no representations, warranties, agreements or
understandings other than expressly contained herein and therein.
10. Governing Law. This Warrant shall be deemed to be a contract made under
the laws of the State of New York for contracts to be wholly performed in such
State and without giving effect to the principles thereof regarding the conflict
of laws. Each of the parties consents to the jurisdiction of the federal courts
whose districts encompass any part of the State of New York, New York County in
connection with any dispute arising under this Warrant and hereby waives, to the
maximum extent permitted by law, any objection, including any objection based on
forum non conveniens, to the bringing of any such proceeding in such
jurisdictions.
11. Jury Trial Waiver. The Company and the Holder hereby waive a trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other in respect of any matter arising out or in connection
with this Warrant.
12. Counterparts. This Warrant may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
13. Descriptive Headings. Descriptive headings of the several Sections of
this Warrant are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the 19th
day of November, 2003.
PROVECTUS PHARMACEUTICALS, INC.
By:
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Name:
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Title:
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