EXHIBIT 4.12
FINDERS FEE AGREEMENT
April 19, 2004
This agreement (the "Agreement") is made by and between Provectus
Pharmaceuticals, Inc. (the "Company") and Centre Capital Advisors, LLC (the
"Finder").
WITNESSETH
WHEREAS, the Company seeks accredited investors to purchase equity
securities offered by the Company (the "Securities"), and
WHEREAS, the Finder 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 Finder
(including through other securities firms introduced by Finder) 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) The Finder 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 the
Finder, 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. The Finder, if requested
by the Company, will attend such meetings, so long as the Company
reimburses the Finder for any out-of-pocket expenses associated with
such meeting. (c) Finder 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.
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.
1
3. FINDERS FEE
(a) The consideration to be paid to the Finder (the "Finder'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 per share price of the Purchase; shall
expire on the later of (i) 3 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, cashless exercise and
anti-dilution provisions. At least 5 days prior to the closing date,
the Finder will provide, in writing, instructions to the Company as to
the parties that should be designated on the warrant certificates.
(b) The Finders 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 Finder for any reasonable out-of-pocket
expenses incurred by Finder with respect to performing the duties
under this Agreement subject to an aggregate limit of $1,500 without
prior written approval by the Company. Such expenses will be
reimbursed immediately by the Company after the Finder requests such
reimbursement in writing.
(d) Upon the Purchase of $2,000,000 of Securities in the aggregate by
Referred Investors, for a period of 24 months Finder 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.
4. INDEMNIFICATION
The Finder will act under this Agreement as an independent contractor
with duties solely to the Company. The Company agrees to provide
indemnification to Finder, the terms and conditions of which are
attached to this Agreement as Exhibit A and areg incorporated herein
by reference in their entirety. The Company's agreement with the
Finder 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 the
Finder or any Indemnified Person, as such term is defined in Exhibit
A.
2
5. TERM
Finder's engagement hereunder will be effective as of the date of this
Agreement. Finder's services hereunder may be terminated with or
without cause by the Company or by Finder at any time without
liability or continuing obligation to the non-terminating party
(except for any expenses incurred by Finder 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 the Finder 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 New York City, New York, 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 the Finder 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, the Finder 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.
3
(c) This Agreement shall be construed by and governed under the laws of
the State of New York.
(d) This Agreement contains the entire agreement between the Finder 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.
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:
--------------------------------------------------
Name:
Title:
Centre Capital Advisors, LLC
By:
-------------------------------------------------
Name:
Title: Principal
4
SCHEDULE I
REFERRED INVESTORS
Date:
--------------
The above represents a complete list of Referred, as defined in the Agreement
dated April 19, 2004 between Provectus Pharmaceuticals, Inc. and Centre Capital
Advisors, LLC as it may be amended in writing from time to time by mutual
agreement.
PROVECTUS PHARMACEUTICALS, INC.
By:
-----------------------------------
Name:
Title:
CENTRE CAPITAL ADVISORS, LLC
By:
----------------------------------
Name:
Title: Principal
5
Exhibit A
April 19, 2004
CENTRE CAPITAL ADVISORS, LLC
Gentlemen:
This letter will confirm that we have entered into a finder's fee agreement with
Centre Capital Advisors, LLC ("Finder") to receive referrals of potential
investors in connection with a Purchase as defined in our agreement dated April
19, 2004 (the "Finders Fee Agreement"). Capitalized terms used herein without
definition have the meanings assigned to them in the Finders Fee Agreement.
In consideration of Finder's agreement to act on our behalf in connection with
such matters, we agree to indemnify and hold harmless Finder, its officers,
directors, employees, independent contractors and agents (Finder 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 Finders 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 Finders 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
Finder in the event Finder 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 Finders 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
6
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 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 Finders 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 Finders 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 Finders Fee Agreement shall be governed by and construed in accordance with
the laws of the State of New York 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:
-------------------------------------------
Name: H. Xxxxx Xxxx, Ph.D.
Title: Chief Executive Officer
Accepted:
Centre Capital Advisors, LLC
By:
------------------------------------
Name:
Title: Principal
7
