EXHIBIT 4.16
April 1, 2005
Venture Catalyst, LLC
Re: Consulting Agreement
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Dear Venture Catalyst, LLC:
This letter sets forth our agreement ("AGREEMENT") with respect to Venture
Catalyst, LLC ("VC"), providing consulting services to Provectus
Pharmaceuticals, Inc. ("PROVECTUS"). This Agreement supercedes all previous
Agreements.
1. Engagement.
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(a) Subject to the provisions of this Agreement, VC agrees to provide
consulting services to PROVECTUS as and to the extent requested by
PROVECTUS. VC agrees to perform the consulting services under this
AGREEMENT. VC will not assign any other employee or independent contractor
to perform services for PROVECTUS without PROVECTUS's prior written consent
(which consent may be conditioned upon the employee or independent
contractor agreeing to the confidentiality and developments provisions of
this AGREEMENT). VC will cause its personnel to comply with paragraphs 3, 4
and 5 of this AGREEMENT, regardless of whether they have executed a
counterpart of this AGREEMENT.
(b) The consulting services will consist of, but not limited to, VC working
on management of various market makers, potential funders and other
interested parties in PROVECTUS.
2. Compensation.
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PROVECTUS will pay VC, or its assignees, a fee of $77,000 for services
rendered through September 30, 2005 (payable April 8th, 2005), Two Hundred
Fifty Thousand (250,000) warrants @ $1.00 exercise price, Two Hundred Sixty
Thousand (260,000) restricted shares of common stock of PROVECTUS (50% now
and 50% after 90 days) valued at $0.75 per share to cover Investor
Relations for 12 months, Fifty Thousand (50,000) restricted shares of
common stock of PROVECTUS valued at $0.75 per share to cover Investor
Relations as of April 30, 2005 and until the larger Investor Relations
program is fully in place, Ten Thousand Seven Hundred Thirty-three (10,733)
restricted shares of common stock of PROVECTUS valued at $0.75 per share
for services in supporting securing Accredited Investors as of April 15,
2005, 10% cash and 15% warrants @ $1.00 in supporting securing Accredited
Investors based on funds invested as of April 15, 2005 (Round 2).
The Company also acknowledges the Agreement For Business Cooperation in
effect since April 15th, 2004, the Confidential Disclosure Agreement in
effect since April 22nd, 2004, the Stock Escrow Agreement in effect since
May 19th, 2004 for purposes of Reg-S stock purchase agreements, and the
General Fee Agreement in effect since May 3, 2004. All immediately above
Agreements are terminated and any future business relationships will be
separately negotiated on a case-by-case, project-by-project basis.
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3. Confidential Information.
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(a) During VC' engagement by PROVECTUS and at all times thereafter, VC will
hold in trust, keep confidential and not disclose, directly or indirectly,
to any third parties or make any use of Confidential Information (defined
below) for any purpose except for the benefit of PROVECTUS in the
performance of VC' duties. Confidential Information will not be subject to
these restrictions if it becomes generally known to the public or in the
industry without any fault by VC or any other person or entity, or if
PROVECTUS ceases to have a legally protectable interest in it. Upon
termination of VC' engagement (regardless of the reason for termination),
VC and its personnel will immediately return to PROVECTUS all tangible
Confidential Information and any other material made or derived from
Confidential Information, including information stored in electronic format
and handwritten notes, which is in VC' possession or was delivered to
others.
(b) "Confidential Information" means any and all information that has or
could have value or utility to PROVECTUS, whether or not reduced to written
or other tangible form and all copies thereof, relating to PROVECTUS's
private or proprietary matters, confidential matters or trade secrets.
CONFIDENTIAL INFORMATION includes, but is not limited to, the following:
(1) technical information (whether or not subject to patent
registration or protection), such as research and development,
methods, trade secrets, know-how, formulas, compositions, protocols,
processes and techniques, discoveries, machines, inventions, ideas,
computer programs (including software and data used in all such
programs), drawings, specifications;
(2) except to the extent publicly disclosed by PROVECTUS without any
fault by VC, information relating to PROVECTUS's patents, patent
applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, and all improvements and inventions related
thereto;
(3) business information, such as information concerning any products,
customers, suppliers, production, developments, costs, purchasing,
pricing, profits, markets, sales, accounts, customers, financing,
acquisitions, strategic alliances or collaborations, expansions; and
(4) other information relating to PROVECTUS's business practices,
strategies or policies.
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4. Developments.
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(a) VC will promptly and fully disclose in writing to PROVECTUS's
President all Developments that result from or are related to duties
assigned to VC by PROVECTUS or from the use of any of PROVECTUS's
assets (including any intellectual property or Confidential
Information) or facilities. "Developments" means any and all
inventions, discoveries, improvements, know-how, works or other
intellectual property (whether or not subject to registration with any
governmental office) VC conceive, reduce to practice, discover or
make, alone or with others, during VC' engagement and for twelve (12)
months after termination (regardless of the reason for termination).
(b) VC hereby assign and transfer to PROVECTUS all of their respective
right, title and interest in and to all Developments. VC agrees to
sign and deliver to PROVECTUS (during and after engagement) other
documents PROVECTUS considers necessary or desirable to evidence its
ownership of Developments. All copyrightable works that are
Developments, whether or not works made for hire (as defined in 17
U.S.C. ss.101), shall be owned by PROVECTUS and it may file and own
the same as the author throughout the world. If PROVECTUS is unable
for any reason to secure the signature of VC on any document necessary
or desirable to apply for, prosecute, obtain, or enforce any patent,
trademark, service xxxx, copyright, or other right or protection
relating to any Development, VC hereby irrevocably designates and
appoints PROVECTUS and each of PROVECTUS's duly authorized officers
and agents, as their respective agent and attorney-in-fact to act for
and in their behalf and stead to execute and file any such document
and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, trademarks, service
marks, copyrights, or other rights or protections with the same force
and effect as if personally executed and delivered by VC. VC agrees
that this power of attorney is irrevocable and is coupled with an
interest and thereby survives their respective dissolution, death or
disability.
5. No Conflicts. VC represents and warrants to, and agrees with PROVECTUS
------------- that:
(a) They are under no contractual or other obligation or restriction,
which is inconsistent with their obligations under this Agreement or
the performance of their duties for PROVECTUS. Without limiting the
generality of the foregoing, performing duties for PROVECTUS will not
cause VC to breach any agreement or other duty which obligates any of
them to keep in confidence any confidential or proprietary information
or trade secret of any third party or to refrain from competing,
directly or indirectly, with the business of any third party.
(b) VC has no ownership or other interest in any idea, invention or
other item of intellectual property that will be used in performing
duties for PROVECTUS, and all Developments will be free and clear of
any encumbrances or claims of third parties. In performing duties for
PROVECTUS, VC will not disclose to PROVECTUS or use any confidential
or proprietary information or trade secret of any third party, and
none of them will interfere with the business of any third party in
any way contrary to applicable law.
(c) In performing duties for PROVECTUS, VC will comply with applicable
laws and regulations.
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6. Term; Termination.
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The term of this Agreement will commence on the date VC countersigns a
copy of this Agreement below and will continue for one month
thereafter. However, there is no fixed or guaranteed minimum number of
days or hours ascribed to this AGREEMENT. Notwithstanding the
foregoing, this AGREEMENT may be terminated by VC or PROVECTUS at any
time, with or without cause, by written notice to the other.
Obligations under section 3 and section 4 above survive termination of
this AGREEMENT.
7. Severability; Choice of Law; Injunction.
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If any provision of this AGREEMENT is deemed by a court of competent
jurisdiction to be unenforceable or invalid, the enforceability and
validity of all other provisions hereof shall not be affected thereby
and such court shall modify the unenforceable or invalid provision to
the extent necessary to render it enforceable and valid and such
provision shall be enforced as modified. VC agrees that the time
period and scope of the covenants in sections 3 and 4 above are
reasonable and appropriate under the circumstances of PROVECTUS's
business and their unique skills. This AGREEMENT shall be governed and
interpreted in accordance with the laws of the State of Tennessee
without regard to its provisions on conflicts of law. Without limiting
any other available remedies at law or in equity, PROVECTUS will be
entitled to injunctive relief restraining any individual or entity
from participating in any breach or threatened breach of this
AGREEMENT without having to post a bond or security.
8. Independent Contractor.
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The parties' relationship to one another under this AGREEMENT is of
that of independent contractors. VC is not an employee or agent of
PROVECTUS and none of them have authority to bind or incur liability
for PROVECTUS except as may be expressly authorized in writing.
9. Miscellaneous.
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This AGREEMENT may not be amended or modified except by a written
instrument signed by both parties after the date of this AGREEMENT.
This AGREEMENT may be assigned by PROVECTUS and shall inure to the
benefit of PROVECTUS, its successors and assigns, but may not be
assigned or delegated by VC without PROVECTUS's prior written consent
(not to be unreasonably withheld). This AGREEMENT supersedes all prior
AGREEMENTS, negotiations and representations, written or oral, between
the parties with respect to the subject matter contained herein. Any
waiver of any breach of, or failure to enforce, any of the provisions
of this AGREEMENT shall not operate as a waiver of any other breach or
waiver of performance of such provisions or any other provisions. If
the undersigned consultant is a natural person, the pronoun "it"
should be construed to mean "him" or "her" as the context requires.
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Please indicate your AGREEMENT to the foregoing by signing a copy of this
letter below and returning it to me.
Very truly yours,
H. Xxxxx Xxxx, Ph.D.
CEO
Accepted and Agreed to
as of April 1, 2005.
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Signature
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Printed Name
