EXHIBIT 4.15
December 8, 2004
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").
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 a fee of $3,800, plus 7,500 "144" shares (restricted
common stock) of PROVECTUS, and 10,000 warrants @ $0.75 per share for EACH
of the months of December 2004, January 2005 and February 2005, renewable
in future months with mutual consent. This mutual consent would likely take
the form of a three-month renewal, subject to modifications, predicated on
appropriate indications of VC's success in supporting the objectives of
PROVECTUS.
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. Any additional
financings coordinated by VC will be pursuant to the General Fee Agreement
unless otherwise stated, such as the October 18, 2004 Offering Parameters.
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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:
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(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 December 8, 2004.
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Signature
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Printed Name
