EX-4 2 pvctex4_12.txt EXHIBIT 4.12 CENTRE CAPITAL AGREEMENT 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. 7327 Oak Ridge highway, Suite A Knoxville, Tennessee 37931 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. Craig Dees, Ph.D. Title: Chief Executive Officer Accepted: Centre Capital Advisors, LLC By: ------------------------------------ Name: Title: Principal 7