Exhibit 4.2
Consulting Agreement
This Consulting Agreement (this "Agreement") is entered into between Xx. Xxxxx
X. Xxxxxxxx (the "Consultant") and the Client identified on the signature page
to this Agreement (the "Client").
Recitals
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A. The Consultant is in the business of providing management consulting
services, business advisory services, product development services, and
product marketing and sales services..
B. The Client desires to retain the Consultant to render to the Client
such services as may be agreed to by the parties from time to time, and the
Consultant desires to render such services to the Client as set forth
hereunder.
Agreement
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Therefore, in consideration of the mutual promises and covenants set forth in
this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Consulting Services. The Client hereby retains the Consultant as an
independent contractor, and the Consultant hereby accepts and agrees to
such retention. It is acknowledged and agreed by the Client that the
Consultant carries neither professional licenses nor memberships in any
self-regulatory organizations. It is further acknowledged and agreed by the
Client that the Consultant is not rendering legal advice or performing
accounting services and is not acting and shall not act as an investment
advisor or broker/dealer within the meaning of any applicable state or
federal securities laws. No portion of the services rendered pursuant to
this Agreement shall be provided in connection with the offer or sale of
securities in a capital-raising transaction or for the purpose of directly
or indirectly promoting or maintaining a market for the Client's
securities. The services of the Consultant shall not be exclusive, nor
shall the Consultant be required to render any specific number of hours or
assign specific personnel to the Client or its projects.
2. Time, Place and Manner of Performance. The Consultant shall be available to
the officers and directors of the Client at such reasonable and convenient
times and places as may be mutually agreed upon. Except as otherwise
provided in this Agreement, the time, place and manner of performance of
the services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined in the sole
discretion of the Consultant.
3. Independent Contractor; Performance by Consultant; Compliance with Laws.
(a) The Consultant agrees to perform its consulting duties hereto as an
independent contractor. Nothing contained herein shall be considered to
create an employer-employee relationship between the parties in this
Agreement. The Client shall not make social security, workers' compensation
or unemployment insurance payments on behalf of the Consultant.
(b) The parties hereto acknowledge and agree that the Consultant cannot
guarantee the results or effectiveness of any of the services rendered or
to be rendered by the Consultant. Rather, Consultant shall conduct its
operations and provide its services in a professional manner and in
accordance with good industry practice. The Consultant will use its
reasonable business efforts in providing services to the Client.
(c) The Consultant will comply with all requirements that any applicable
federal or state law (including without limitation the Securities Act of
1933, as amended (the "Securities Act"), and the Securities Exchange Act of
1934, as amended) may impose on the Consultant with respect to its
performance of services under this Agreement.
4. Term of Agreement. The term of this Agreement shall be twelve (12) months,
subject to prior termination as hereinafter provided.
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5. Compensation. In consideration of the services rendered by the Consultant
pursuant to this Agreement, upon the signing of this Agreement the Client
shall deliver to the Consultant $75,000 cash or One Hundred Thousand
(100,000) shares of the Client's common stock, par value $.001 (the "Client
Stock"). Shares of Client Stock delivered pursuant to this Agreement shall
be registered under the Securities Act for resale by the Consultant
pursuant to an effective Registration Statement on Form S-8 filed by the
Client with the U.S. Securities and Exchange Commission.
6. Termination.
(a) Either the Consultant or the Client may terminate this Agreement at the end
of any month during the term of this Agreement on thirty (30) days prior
written notice. This Agreement shall automatically terminate upon the
dissolution, bankruptcy or insolvency of the Client or the Consultant. The
Consultant and the Client shall have the right and the discretion to
terminate this Agreement should the other party, in performing its duties
hereunder, violate any law, ordinance, permit or regulation of any
government entity or self regulatory organization, accept for violations
that either singularly or in the aggregate do not have or will not have a
materially adverse effect on the party desiring termination. In the event
of any termination hereunder, all consideration paid to the Consultant
through date of termination shall be fully earned and non-refundable, and
the parties shall have no further duties or responsibilities to each other,
except that the Client shall be responsible to make any and all payments,
if any, due to the Consultant through the date of termination, and the
parties shall continue to be bound by the confidentiality provisions
contained in Section 8 of this Agreement and the last sentence of Section 5
of this Agreement and the 36 month fee "tail" provisions of Section 5(b) of
this Agreement.
(b) Notwithstanding any other provision of this Agreement, in the event of any
breach by the Consultant of the provisions of either (i) the fourth
sentence of Section 1 or (ii) any part of Section 3(c), then: (A) the
Client shall have the right to terminate this Agreement immediately, and
after any such termination, shall have no further obligation to the
Consultant hereunder; and (B) the Client shall have the right to require
the Consultant to surrender all shares of Client Stock issued to the
Consultant pursuant to this Agreement.
7. Work Product. It is agreed that all information and materials produced for
the Client shall be the property of the Client, free and clear of all
claims thereto by the Consultant, and the Consultant has no claim of
ownership rights thereto.
8. Confidentiality. The Client and the Consultant each agree to provide
reasonable security measures to keep information belonging to the other
party confidential where release of the same would be determined to such
party's business interests ("Confidential Information"). Each party agrees
that Confidential Information shall be subject to this Agreement if
provided to the other party and marked "Confidential" in a conspicuous
manner. Consultant and Client shall each require their employees, agents,
affiliates, sub-contractors, other licensees, and others who have access to
Confidential Information through Consultant or Client, as the case may be,
to enter into appropriate non-disclosure agreements, requiring the level
and degree of confidentiality contemplated by this Agreement. Consultant
and Client each agree that it will not, either during the term or this
Agreement, or any time thereafter, disclose, use or make known for it's own
or another's benefit, any confidential information acquired or used by it
hereunder. The term "Confidential Information" excludes information that:
(a) is made public by Consultant or Client in violation of this Agreement,
(b) becomes generally available to the public, other than as a result of
disclosure by Consultant or Client or another party in violation of any
obligation of confidentiality or (c) Client or Consultant obtains from
sources other than Client or Consultant.
9. Conflict of Interest. The Consultant shall be free to perform services for
other entities or persons. The Consultant will notify the Client of its
performance of consulting services for any other entity or person that the
Consultant reasonably believes could materially conflict with its
obligations to the Client under this Agreement.
10. Disclaimer of Responsibility for Acts of the Client; Limitations on
Liability.
(a) In no event shall the Consultant be authorized or required by this
Agreement to represent or make management decisions for the Client. The
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Consultant shall, under no circumstances, be made liable for any expense
incurred or loss suffered by the Client as a consequence of such decisions
by the Client or any affiliates or subsidiaries of the Client as a result
of services performed by the Consultant hereunder.
(b) CONSULTANT DISCLAIMS ANY AND ALL WARRANTIES RESPECTING THE SERVICES,
INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CONSULTANT BE LIABLE
FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
OTHERWISE RELATING TO THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT,
HOWEVER CAUSED, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OR
LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL CONSULTANT'S LIABILITY FOR
DAMAGES UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF HOW ARISING,
EXCEED THE AMOUNT OF CASH COMPENSATION PAID TO CONSULTANT HEREUNDER.
11. Indemnification. Each party agrees to indemnify and hold harmless the other
party as well as each of its officers, directors, employees, agents and
each person, if any, who controls that party, against any and all
liability, loss, costs, expenses or damages, including, but not limited to,
any and all expenses reasonably incurred in investigating, preparing or
defending against any litigation or arbitration, commenced or threatened,
directly resulting by reason of any act, neglect; default or omission, or
any untrue or allegedly untrue statement of a material fact, or any
misrepresentation of any material fact, or any breach of any material
warranty or covenant, by that party or any of its agents, employees or
other representatives, arising out of, or in relation to, this Agreement.
Notwithstanding the foregoing, in no event shall the liability of
Consultant exceed the amount of cash compensation actually received by
Consultant pursuant to this Agreement.
12. Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by fax registered
or certified mail, or by Federal Express or other nationally recognized
overnight couriers to the principal office of each party and addressed to
its principal executive officer at the address set forth on the signature
page to this Agreement. Faxes should be marked for the attention of the
principal executive officer and set to the fax number set forth on the
signature page to this Agreement.
13. Waiver of Breach. Any waiver by either party of a breach of any provision
of this Agreement by the other party shall not operate to be construed as a
waiver of any subsequent breach by such party.
14. Assignment. Neither party may assign this Agreement without the written
consent of the other party.
15. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and pursuant to the
laws of the State of New York and that in any action, special proceeding or
other proceeding that may be brought arising out of, in connection with, or
by reason of this Agreement, the laws of the State of New York, without
regard to state or federal courts located in Monroe County, New York, and
consent to the jurisdiction and venue of such courts, and further waive any
objection that such courts are an inconvenient forum.
16. Severability. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, this Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
17. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supercedes and replaces all
prior understandings, agreements and negotiations between the parties.
18. Waiver and Modification. Any waiver, alternation, or modification of any of
the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto.
19. Counterparts and Facsimile Signature. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original but all of which taken together, shall constitute one and the
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same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by
such party.
Signatures
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By signing below, the parties agree to the terms of this Agreement and further
certify that their respective signatories are duly authorized to execute this
Agreement.
Sept. 4. 2003
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Date
Xx Xxxxx X Xxxxxxxx PROVECTUS CORPORATION
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Consultant Client
Xxxxxxx Xxxxx, President
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Name and Title
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxx
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Signature Signature
Address for Notices: Address for Notices:
0000 Xxxxxxxx Xxxxx, Xxxxx #000 0000 Xxx Xxxxx Xxxxxxx, Xxxxxxxxx, XX 00000
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Xxxx Xxxxxxxxx, XX 00000
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000-000-0000 (000) 000-0000
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Telephone Number Telephone Number
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