EXHIBIT 4.14
GENERAL FEE AGREEMENT
May 3, 2004
This agreement (the "Agreement") is made by and between Provectus
Pharmaceuticals, Inc. (the "Company") and Venture Catalyst, LLC ("Venture").
WITNESSETH
WHEREAS, amongst other items to be discussed and mutually agreed upon, the
Company seeks accredited investors to purchase equity securities offered by the
Company (the "Securities"), and
WHEREAS, amongst other items to be discussed and mutually agreed upon,
Venture desires to refer potential investors for such purchase to the Company
(such potential investors and any other potential investors introduced directly
or indirectly to the Company through introductions by Venture (including through
other securities firms introduced by Venture) and listed on Schedule I attached
hereto, as such schedule may be amended by mutual agreement from time to time,
are collectively referred to as "Referred Investors");
NOW THEREFORE, for and in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. DUTIES
(a) Venture agrees to contact Referred Investors to determine if such
investors are interested in potentially purchasing Securities under
terms and conditions that are offered by and agreed to by the Company.
Any purchase of (or legally binding commitment to purchase) the
Securities by a Referred Investor pursuant to this Agreement shall
hereinafter be referred to as a "Purchase".
(b) After any referrals of Referred Investors to the Company by Venture,
the Company will (i) present and discuss the opportunity to the
Referred Investor, (ii) provide any information about the Company and
its businesses as it considers appropriate under the circumstances,
and (iii) will meet with the Referred Investor, as necessary and as
determined by the Company. Venture, if requested by the Company, will
attend such meetings, so long as the Company reimburses Venture for
any out-of-pocket expenses associated with such meeting.
(c) Venture will not disclose orally or in writing any information about
the Company to any Referred Investor or any other person, unless the
Company shall have agreed to the content of any communication, written
or oral, prior to its use.
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2. TERMS AND CONDITIONS OF PURCHASE
The terms and conditions of any Purchase will be offered to the Referred
Investor by the Company and will be negotiated by the Company and its
advisors, if any. The Company shall be under no obligation to negotiate, or
enter into any agreement with, any Referred Investor.
3. VENTURE'S FEE
(a) The consideration to be paid to Venture ("Venture's Fee") will consist of
cash equal to eight percent (8%) of the US dollar equivalent amount of such
Purchase together with warrants equal to fifteen percent (15%) of the
common shares or common share equivalents issued or to be issued under any
Purchase. The warrants will have a strike price equivalent to the warrants
per share price in the Purchase; shall expire on the earlier of (i) 2 years
after registration of the common shares underlying the warrants or (ii) the
expiration date of any warrants associated with a Purchase; and will
contain other customary terms and conditions, including transferability,
and cashless exercise.. At least 5 days prior to the closing date, Venture
will provide, in writing, instructions to the Company as to the parties
that should be designated on the warrant certificates.
(b) Venture's Fee is payable immediately by the Company upon the closing of a
Purchase if, during the term of this Agreement or within eighteen months of
termination, (i) such Purchase is consummated or (ii) an agreement is
entered into with a Referred Investor which subsequently results in a
consummated Purchase.
(c) The Company will reimburse Venture for any reasonable out-of-pocket
expenses incurred by Venture with respect to performing the duties under
this Agreement subject to an aggregate, negotiated limit, with prior
written approval by the Company, and $1,000 without prior written approval.
Such expenses will be reimbursed immediately by the Company after Venture
requests such reimbursement in writing.
(d) Upon the Purchase of $1,000,000 to $3,000,000 of Securities at 8% interest,
convertible at $1.00 per share with 15% warrants at $1.25 per share (and
same terms at $2 to $3 per share for $5,000,000 to $10,000,000 with
correspondingly higher priced warrants at 15%) in the aggregate by Referred
Investors, for a period of 24 months Venture will have a right of first
refusal with respect to other investment banking services required by the
Company as long as such investment banking services are deemed to be in the
best interest of the Company and the terms and conditions of which are
satisfactory to the Company. In any event, the Company shall have the right
to terminate such arrangement at any time in its sole discretion without
penalty. Such right of first refusal will not include the services related
to underwritten public offerings of the Company's common stock.
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4. INDEMNIFICATION
Venture will act under this Agreement as an independent contractor with
duties solely to the Company. The Company agrees to provide indemnification
to Venture, the terms and conditions of which are attached to this
Agreement as Exhibit A and are incorporated herein by reference in their
entirety. The Company's agreement with Venture hereunder is not deemed to
be on behalf of, and is not intended to confer rights upon, any person not
a party hereto as against Venture or any Indemnified Person, as such term
is defined in Exhibit A.
5. TERM
Venture's engagement hereunder will be effective as of the date of this
Agreement. This agreement will terminate in two years unless renewed by
both parties in writing. Venture's services hereunder may be terminated
with or without cause by the Company or by Venture at any time without
liability or continuing obligation to the non-terminating party (except for
any expenses incurred by Venture to the date of termination); provided that
the provisions of the Exhibit A and of Sections 3, 4, 5, 6(a), and 6(b)
shall survive any termination of this Agreement but only for so long as any
statute of limitations applies
6. MISCELLANEOUS
(a) In the event of any dispute between the Company and Venture arising
under or pursuant to the terms of this Agreement, or any matters
arising under the terms of this Agreement, the same shall be settled
only by binding arbitration in Knoxville, Tennessee, in accordance
with the rules and regulations of the American Arbitration
Association. The determination of the arbitrator(s) shall be final and
binding upon the Company and Venture and may be enforced in any court
of appropriate jurisdiction.
(b) If any legal action, including, without limitation, any arbitration,
arises under this Agreement or by reason of any asserted breach of or
dispute regarding the interpretation thereof, Venture will be entitled
to recover all costs and expenses, including reasonable attorney's
fees and costs, incurred in enforcing covenants or conditions of this
Agreement, including costs incurred prior to commencement of legal
action, and all costs and expenses, including reasonable attorney's
fees and costs incurred in any appeal from any action brought to
enforce any of the terms, covenants or conditions of the Agreement.
(c) This Agreement shall be construed by and governed under the laws of
the State of Tennessee.
(d) This Agreement contains the entire agreement between Venture and the
Company concerning the referral of an investor to the Company and
correctly sets forth the rights and duties of each of the parties to
each other concerning that matter as of the date hereof.
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IN WITNESS WHEREOF, the parties intending to be legally bound have caused
this Agreement to be executed by their duly authorized representatives as of the
date hereof.
Provectus Pharmaceuticals, Inc.
0000 Xxx Xxxxx xxxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
By:
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Name:
Title:
Venture Catalyst, LLC
By:
-------------------------------------------------
Name:
Title: Principal
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SCHEDULE I
REFERRED INVESTORS
Date:
--------------------
The above represents a complete list of Referred, as defined in the
Agreement dated April 28, 2004 between Provectus Pharmaceuticals, Inc. and
Venture Catalyst, LLC as it may be amended in writing from time to time by
mutual agreement.
PROVECTUS PHARMACEUTICALS, INC.
By:
------------------------------
Name:
Title:
VENTURE CATALYST, LLC
By:
-----------------------------
Name:
Title: Principal
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Exhibit A
May 3, 2004
Venture Catalyst, LLC
Gentlemen:
This letter will confirm that we have entered into a General fee agreement with
Venture Catalyst, LLC ("Venture") to receive referrals of potential investors in
connection with a Purchase as defined in our agreement dated April 28, 2004 (the
"General Fee Agreement"). Capitalized terms used herein without definition have
the meanings assigned to them in the General Fee Agreement.
In consideration of Venture's agreement to act on our behalf in connection with
such matters, we agree to indemnify and hold harmless Venture, its officers,
directors, employees, independent contractors and agents (Venture and each such
other person being an "Indemnified Person") from and against any losses, claims,
damages or liabilities, joint or several, related to, arising out of or in
connection with the General Fee Agreement, and will reimburse each Indemnified
Person for all expenses (including fees and expenses of counsel) as they are
incurred in connection with investigating, preparing, pursuing or defending any
action, claim, suit, investigation or proceeding whatsoever (collectively,
"Proceedings") related to, arising out of or in connection with the General Fee
Agreement, pending or threatened and whether or not any Indemnified Person is a
party to such Proceedings. We will not, however, be responsible for any losses,
claims, damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted directly and primarily from the willful
misconduct or gross negligence of any Indemnified Person; nor will we indemnify
Venture in the event Venture provides to potential investors any information,
oral or written, not authorized by us.
We will promptly notify an Indemnified Person of the assertion against it or, to
our knowledge, any other person, of any claim or the commencement of any
Proceedings related to, arising out of or in connection with the General Fee
Agreement. Promptly after receipt by an Indemnified Person of notice of the
commencement of any Proceedings, such Indemnified Person will, if a claim is to
be made hereunder against us in respect thereof, notify us in writing of the
commencement thereof; provided that (i) the omission to so notify us will not
relieve us from any liability which we may have hereunder except to the extent
it has been materially prejudiced by such failure and (ii) the omission to so
notify us will not relieve us from any liability which we may have to an
Indemnified Person otherwise than on account of this indemnity agreement. In
case any such Proceedings are brought against any Indemnified Person and it
notifies us of the commencement thereof, we will be entitled to participate
therein and, to the extent that we may elect by written notice delivered to the
Indemnified Person, to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Person; provided that if the defendants in any
such Proceedings include both the Indemnified Person and us and the Indemnified
Person shall have concluded that there may be legal defenses available to it
which are additional to or conflicting with those available to us, the
Indemnified Person shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
Proceedings on behalf of such Indemnified Person. Upon receipt of notice from us
to such
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Indemnified Person of our election to so assume the defense of such Proceedings
and approval by the Indemnified Person of counsel, we will not be liable to such
Indemnified Person for expenses incurred by the Indemnified Person in connection
with the defense thereof (other than reasonable costs of investigation
pertaining to such Proceedings) unless (i) the Indemnified Person shall have
employed separate counsel in connection with the assertion of conflicting legal
defenses in accordance with the immediately preceding sentence, (ii) we shall
not have employed counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person promptly after notice of commencement of the
Proceedings or (iii) we have authorized in writing the retention of counsel for
the Indemnified Person.
We and any Indemnified Person agree to consult in advance with one another with
respect to the terms of any proposed waiver, release or settlement of any
Proceeding to which we or an Indemnified Person may be subject as a result of
the matters contemplated by this agreement and further agree not to enter into
any such waiver, release or settlement without the prior written consent of one
another (which consent shall not be unreasonably withheld or delayed), unless
such waiver, release or settlement includes an unconditional release of us or
such Indemnified Person, as the case may be, from all liability arising out of
such Proceeding.
The provisions of this agreement shall apply to the General Fee Agreement and
any modification thereof and shall remain in full force and effect regardless of
any termination or the completion of your services under the General Fee
Agreement. Our agreements hereunder shall be in addition to any liabilities we
may otherwise have to an Indemnified Person and, shall be binding upon and inure
to the benefit of any successors, assigns, heirs and personal representatives of
any Indemnified Person or us.
This General Fee Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee without reference to principles of conflicts
of law. Any right to trial by jury with respect to the matters set forth herein
is hereby waived or deemed waived by us and each Indemnified Person.
Very truly yours,
Provectus Pharmaceuticals, Inc.
By:
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Name: H. Xxxxx Xxxx, Ph.D.
Title: Chief Executive Officer
Accepted:
Venture Catalyst, LLC
By:
----------------------
Name:
--------------------
Title: Principal
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