Exhibit 4.9
CONSULTING AGREEMENT
This CONSULTING AGREEMENT is entered into by Provectus Pharmaceuticals,
Inc., ("PVCT") an OTC BB NASD regulated public Company; and Xx. Xxxxxxx X.
Xxxxx (the "Consultant"), effective this 5th day of November, 2003.
WITNESSETH:
WHEREAS, PVCT desires to retain the services of the Consultant and the
consultant desires to provide services to the PVCT upon the terms and conditions
provided herein.
NOW THEREFORE, in consideration of the premise and the covenants hereinafter
contained, the parties agree as follows:
1. Consulting Services.
The Consultant agrees to provide consulting services to PVCT during the
term of this Agreement. The nature of services to be provided involve
administration and payment for investor relations and public relations
programs. A description of the program is contained in Attachment 1.
2. Extent of Services. The Consultant shall personally provide the Consulting
services described herein. PVCT understands that the nature of the services to
be provided are part time and that the Consultant will be engaged in other
business and consulting activities during the term of this Agreement.
3. Term. The term of this Agreement shall commence as of the date hereof and
shall continue twelve months, unless sooner terminated as provided herein.
4. Consideration. In consideration of the execution of this Agreement, and the
performance of his obligations hereunder, the Consultant shall receive a fee of
$150,000 or 200,000 restricted common shares in the capital of PVCT, and the
certificate or certificates representing the Provectus Corporation stock will
bear the following restrictive legend or similar legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER APPLICABLE STATE SECURITIES ACTS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND/OR ANY APPLICABLE STATE SECURITIES ACT
OR AN OPINION OF COUNSEL ACCEPTABLE TO XXXXX CORPORATION THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER SUCH ACT OR ACTS.
The shares will have piggy back registration rights. An additional 100,000
"Cashless Warrants" will be granted in the capital of Provectus Corporation with
a strike price of $0.75/warrant convertible upon exercise to one common share in
the capital of Provectus corporation and; with the number of common shares
issued upon exercise of the warrants equaling the difference between the dollar
amount that would be paid to exercise said warrants and the differential dollar
value from the price at which they were exercised.
5. Expenses. PVCT shall pay or reimburse the Consultant pre-approved expenses
for all reasonable travel, business and miscellaneous expenses incurred by the
Consultant in performing those duties under this Agreement.
6. Confidential Information.
(a) Confidentiality. Except as required in the performance of his duties to
PVCT, the Consultant shall treat as confidential and shall not, directly or
indirectly, use, disseminate, disclose, publish or otherwise make available any
Confidential Information (as hereafter defined) or any portion thereof. In
furtherance of the foregoing, the Consultant shall be permitted to disclose
Confidential Information to those of its employees, managers, members, agents,
accountants, attorneys and consultants who reasonably need to know such
information in order for the Consultant to reasonably perform its duties
hereunder.
(b) Return of Confidential Information. Upon termination of this Agreement,
and upon the written request of the PVCT, all documents, records, notebooks,
computer files, tapes and diskettes and similar repositories containing
Confidential Information, including copies thereof, then in the Consultant's
possession, whether prepared by him or others, shall be promptly destroyed by
the Consultant or returned to the PVCT. If at any time after the termination of
this Agreement, the Consultant determines that he has any Confidential
Information in his possession or control, he shall immediately destroy or return
the same to PVCT, including all copies and portions thereof.
(c) Definition. For purposes of this Agreement, "Confidential Information"
means any and all information relating to PVCT and labeled or marked
"confidential" when disclosed or made available to the Consultant and which is
or becomes known by Consultant as a direct or indirect consequence of or through
his relationship with PVCT and not generally known in the industry in which the
PVCT is or may become engaged.
Confidential Information shall not include any information which (i) was known
by the Consultant prior to receipt of such information by him from PVCT, (ii) is
independently discovered by the Consultant after the date hereof, (iii) comes or
has come within the public domain through no act or failure on the part of the
Consultant or (iv) is rightfully obtained by the Consultant after the date
hereof from a third party which, to the knowledge of the Consultant, is lawfully
in possession of such Confidential Information.
7. Remedies. The parties acknowledge that the remedies at law for the breach of
the agreements and covenants set forth in Section 6 hereof are inadequate and
that the PVCT shall be entitled to preliminary and permanent injunctive relief
to the fullest extent available under applicable law enjoining the Consultant
from engaging in any conduct constituting a breach of the agreements and
covenants contained in Section 6 hereof.
Such remedies shall be in addition to, and not in substitution of, any other
remedies which the PVCT may have at law or in equity in the event of a breach of
threatened breach of any of the foregoing agreements or covenants by the
Consultant.
8. Status. Except as otherwise may be agreed, the Consultant shall at all times
be an independent contractor, rather than a co-venturer, agent, employee or
representative of PVCT.
9. Notices. Any notice required or desired to be given under this Agreement
shall be in writing and shall be deemed given when personally delivered or sent
by certified or registered mail or overnight courier to the following addresses,
or such other address as to which one party may have notified the other in such
manner.
If to Provectus Pharmaceuticals, Inc;
Xxxxxxx Xxxxx, President
0000 Xxx Xxxxx Xxxxxxx
Xxxxxxxxx XX 00000
If to the Consultant:
Xx. Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxx Xx. #000
Xxxxxx Xxxxx, XX 00000-0000
10. Applicable Law. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the State of
Tennessee without regard to its conflict of law provisions.
11. Severability. In the event of the invalidity or unenforceability of any
provision of this Agreement under applicable law, the parties hereto agree that
such invalidity or unenforceability shall in no way affect the validity or
enforceability of any other provisions of this Agreement.
12. Waiver of Breach. The waiver by either party of a breach of any provision of
this agreement by the other shall not operate or be construed as a waiver of any
subsequent breach by such party. No waiver shall be valid unless in writing and
signed by each of the PVCT and the Consultant.
13. Binding Effect. This Agreement shall be binding upon the parties and their
respective personal representatives, successors, and assigns.
14. Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to its subject matter. It may not be changed orally but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
IN WITNESS WHEREOF, each of the parties has executed this Agreement on the
date first above written.
PVCT
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
Consultant
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Attachment 1
Outline of IR/PR Program
Xx. Xxxxx, Xx. Xxxxxxxx and Xx. Xxxxx are being engaged to administer the IR/PR
program for PVCT. The approach will be for them to identify and retain a group
of highly qualified firms to implement a three-tiered program. Xx. Xxxxxxxx and
Xx. Xxxxx have a number of projects with several IR/PR firms and will leverage
their ongoing relationships to efficiently monitor the firms and ensure that
PVCT gets the best possible value.
The outline of the program is as follows:
1. Tier one will last approximately 6 weeks and involves contacting
brokers, retail buyers and potential market makers for the stock.
2. Tier two will be directed toward liquidity and increasing shareholder
base and will start at week 4 and continue for approximately 8 weeks.
3. Tier three will be market maintenance and will start at week 10 to 12
and continue for the duration of the contract.
The major PR and IR firms that have been selected to begin the program are Xxx
Xxxxxx & Associates (Xxxxxxxx0x.xxx, Seattle, WA), Xxxx Xxxxx and Sons, (San
Diego, CA), Midas Securities (Orange County, CA), and Westminster Securities
(New York, NY). Other firms will be added as needed or dictated by performance.
