UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Bruce Horowitz – Resignation and Termination Agreement
On March 25, 2024, Bruce Horowitz resigned from the Board of Directors (the “Board”) of Provectus Biopharmaceuticals, Inc. (the “Company”) and as the Company’s Chief Operating Officer. At the time of his resignation, Mr. Horowitz served on the Company’s Audit Committee, Compensation Committee, and Nominating Committee.
Mr. Horowitz, through counsel, had requested that the Company pay him $977,000, representing $508,000 for amounts owed under the Independent Contractor Agreement, dated as of April 19, 2017, by and between Mr. Horowitz and the Company, as amended by Amendment No. 1, dated as of May 9, 2017, and Amendment No. 2, dated as of May 8, 2019 (the “Horowitz Agreement”), and $469,000 for accrued director fees. On March 25, 2024, the Company and Mr. Horowitz entered into an Independent Contractor and Director Fee Termination Agreement and Release (the “Termination Agreement”) to resolve Mr. Horowitz’s claims and terminate the Horowitz Agreement.
The Termination Agreement provides for the Company to pay Mr. Horowitz an initial payment of $250,000 within two business days of the Termination Agreement and a discounted second payment in the amount of $258,000 so long as it is paid prior to June 30, 2024, after which the amount of the second payment is $500,000. Pursuant to the Termination Agreement, Mr. Horowitz resigned from the Board and as Chief Operating Officer of the Company and from any other officer and director positions held with the Company or any of its Australian-related entities or subsidiaries. The Company agreed to continue Mr. Horowitz’s directors and officers (D&O) liability insurance coverage for a period of two years at the Company’s expense. Under the Termination Agreement, Mr. Horowitz reaffirmed the confidentiality, customer non-solicitation, and employee non-solicitation provisions in the Horowitz Agreement. The Termination Agreement also contained a mutual release, a mutual non-disparagement provision, and a standstill provision pursuant to which Mr. Horowitz agreed not to take certain actions with respect to the Company’s securities for five years.
The foregoing description of the Termination Agreement does not purport to be complete and is qualified in its entirety by reference to the Termination Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Dominic Rodrigues – Appointment and Independent Contractor Agreement
On March 25, 2024, the Board retained Dominic Rodrigues as the Company’s chief operations consultant. In this role, Mr. Rodrigues will serve as the Company’s principal executive officer.
Mr. Rodrigues, 55, has served as a member of the Board since 2017, its non-executive Vice Chairman since 2018, and previously as non-executive Chairman from 2017 to 2018. Prior to joining the Board, Mr. Rodrigues was President of Rhisk Capital, where he carried out management consulting, corporate development, and portfolio management activities. Project industries included defense and intelligence (a technology-focused, private equity-styled, capital investment pool; corporate development and operational roles at a related data communications company), financial services (a capital markets-focused, financial technology start-up company; a start-up private wealth office), healthcare, life sciences, and nanotechnology (a venture capital-styled investment). Mr. Rodrigues previously taught as an Adjunct Professor of Finance at the Lee Business School of the University of Nevada, Las Vegas. His business development, corporate development, finance, leadership, operations, and science & technology experiences include working as: a corporate venture capitalist at SAIC Venture Capital Corporation, the multi-billion-dollar subsidiary of research and engineering company SAIC, where he was an observer or member of boards of directors of several portfolio companies; a proprietary currency derivatives trader at Bank of Montreal, a Canadian multinational investment bank and financial services company; and a project manager at Jacques Whitford, a Canadian multinational environmental consulting company. He holds business, economics, and engineering degrees from The Wharton School of the University of Pennsylvania, the London School of Economics and Political Science, the Massachusetts Institute of Technology, and the University of Toronto.
| 2 |
Mr. Rodrigues does not have a family relationship with any of the current officers or directors of the Company.
In connection with the engagement of Mr. Rodrigues, on March 25, 2024, the Company and Mr. Rodrigues entered into an independent contractor agreement (the “Independent Contractor Agreement”), pursuant to which Mr. Rodrigues will serve as the primary business operations consultant of the Company and will perform duties and services including but not limited to managing, coordinating, and/or overseeing Company, clinical and research collaborator, and vendor-partner activities in drug discovery, clinical development, intellectual property, regulatory strategy and affairs, drug substance and drug product formulation and manufacturing, business and corporate development, and investor/public relations. In consideration for such services, Mr. Rodrigues will be paid $20,000 per calendar month. The Company will reimburse Mr. Rodrigues for all reasonable and necessary expenses relating to his provision of services under the Independent Contractor Agreement. The Independent Contractor Agreement will continue month-to-month unless terminated by either party upon 30 days prior written notice.
The Company agreed to indemnify Mr. Rodrigues for claims made against Mr. Rodrigues based upon the performance of his services. The Independent Contractor Agreement contains customary confidentiality, customer non-solicitation, and employee non-solicitation provisions.
The foregoing description of the Independent Contractor Agreement does not purport to be complete and is qualified in its entirety by reference to the Independent Contractor Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| 3 |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: March 26, 2024
| PROVECTUS BIOPHARMACEUTICALS, INC. | ||
| By: | /s/ Heather Raines | |
| Heather Raines, CPA | ||
| Chief Financial Officer | ||
| 4 |
Exhibit 10.1
INDEPENDENT CONTRACTOR AND DIRECTOR FEE TERMINATION AGREEMENT AND RELEASE
This Independent Contractor and Director Fee Termination Agreement and Release (“Agreement”) is made and entered into as of March 25, 2024 (the “Effective Date”) by and between Bruce Horowitz, a California citizen (“Contractor”), and Provectus Biopharmaceuticals, Inc., a Delaware corporation (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS, Contractor was engaged as an independent contractor with Company pursuant to that certain Independent Contractor Agreement, dated as of April 19, 2017, by and between Contractor and the Company, as amended by Amendment No. 1, dated as of May 9, 2017, and Amendment No. 2, dated as of May 8, 2019 (the “Independent Contractor Agreement”); and
WHEREAS, Contractor has submitted invoices to the Company pursuant to the Independent Contractor Agreement in the aggregate amount of $508,000, which invoices are currently unpaid;
WHEREAS, Contractor is also a member of the Board of Directors of Company and has accrued director fees in the amount of $469,000; and
WHEREAS, the Parties wish to terminate the Independent Contractor Agreement and have Contractor resign from the Board of Directors and resolve any and all disputes, claims, complaints, actions, petitions, and demands that the Contractor may have against the Company (other than any claims arising solely from Contractor’s status as a noteholder or shareholder of the Company), including, but not limited to, any and all claims arising out of or in any way related to the performance of services provided under the Independent Contractor Agreement and Contractor’s service as a director of the Company;
NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Contractor hereby agree as follows:
COVENANTS
1. Termination. Subject to the terms and conditions of this Agreement, the Parties hereby mutually agree to terminate the Independent Contractor Agreement effective as of the Effective Date. From and after the Effective Date, the Independent Contractor Agreement will be in no further force or effect, and the rights and obligations of each of the Parties thereunder shall terminate, except to the extent that the Independent Contractor Agreement specifically provides that a provision survive the termination of the Independent Contractor Agreement.
2. Consideration. Company agrees that it shall pay (via wire transfer to be provided to the Company) to Contractor the sum of Seven Hundred Fifty Thousand Dollars ($750,000), provided as follows:
a. Initial Payment. The Company agrees to pay Contractor an initial lump sum payment of Two Hundred Fifty Thousand Dollars ($250,000.00) (the “Initial Payment”). The Initial Payment will be made to Contractor within two (2) business days of the execution by Contractor of this Agreement. However, if the Initial Payment is not paid as agreed, the entire sum of $977,000 shall immediately be due and payable.
b. Second Payment. The Company agrees to pay Contractor a second lump sum payment of Two Hundred Fifty-Eight Thousand Dollars ($258,000.00) (the “Second Payment”) on or before June 30, 2024. If the Second Payment in the amount of Two Hundred Fifty-Eight Thousand Dollars ($258,000.00) is paid on or before June 30, 2024, then the Company shall have no obligation to pay the remaining balance of Two Hundred Forty-Two Thousand Dollars ($242,000.00). If the Company does not pay Contractor the Second Payment on or before June 30, 2024, then the amount of the Second Payment due hereunder shall be Five Hundred Thousand Dollars ($500,000.00).
3. Receipt of All Payments. Contractor specifically acknowledges and agrees that the consideration provided to him hereunder fully satisfies any obligation that the Company had to pay Contractor compensation for any services under the Independent Contractor Agreement, services as a director or committee member of the Board of Directors of the Company, or any other services that Contractor rendered to the Company. Contractor acknowledges and represents that, after the Company pays to Contractor the consideration set forth in this Agreement, then the Company will have paid all payments, fees, reimbursable expenses, and any and all other compensation due to Contractor. Nothing herein shall affect or modify Contractor’s rights as a noteholder or shareholder.
4. Resignation as Officer and Director. Contractor hereby resigns from the Board of Directors of the Company and as Chief Operating Officer of the Company and from any other officer and director positions held with the Company or any of its Australian related entities or subsidiaries, and relinquishes, and agrees that Contractor shall no longer have, any authority to be a signatory to or to bind the Company to any contract, whether actual, implied, or apparent, in each case effective as of the Effective Date.
5. Release of Claims.
a. In consideration of the covenants, agreements, and undertakings of the Parties under this Agreement, each Party, on behalf of itself and its respective present and former parents, subsidiaries, affiliates, officers, directors, shareholders, members, successors, and assigns (collectively, “Releasors”) hereby releases, waives, and forever discharges the other Party and its respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns (collectively, “Releasees”) of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, “Claims”), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the date of this Agreement, except for (i) any Claims arising solely from Contractor’s status as a noteholder or shareholder of the Company, (ii) any surviving obligations under the Independent Contractor Agreement and (iii) Claims relating to rights and obligations preserved by, created by, or otherwise arising out of this Agreement. Nothing herein shall affect or modify Contractor’s rights as a noteholder or shareholder.
b. Each Releasor understands that it may later discover Claims or facts that may be different from, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 5, and which, if known at the time of signing this Agreement, may have materially affected this Agreement and such Party’s decision to enter into it and grant the release contained in this Section 5. Nevertheless, the Releasors intend to fully, finally, and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the release contained in this Section 5, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts. The Releasors have been made aware of, and understand, the provisions of California Civil Code Section 1542 (“Section 1542”), which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.
6. Protected Rights. THIS AGREEMENT IS NOT INTENDED IN ANY WAY TO LIMIT CONTRACTOR’S RIGHT OR ABILITY TO: (A) BRING A LAWSUIT AGAINST THE COMPANY TO ENFORCE THE COMPANY’S OBLIGATIONS UNDER THIS AGREEMENT; (B) MAKE ANY DISCLOSURE OF INFORMATION REQUIRED BY LAW; (C) REPORT A POSSIBLE VIOLATION OF ANY FEDERAL LAW OR REGULATION TO ANY GOVERNMENT AGENCY OR ENTITY INCLUDING BUT NOT LIMITED TO THE Equal Employment Opportunity Commission (“EEOC”), THE NATIONAL LABOR RELATIONS BOARD (“NLRB”), THE DEPARTMENT OF JUSTICE (“DOJ”), THE SECURITIES AND EXCHANGE COMMISSION (“SEC”), CONGRESS, AND ANY AGENCY INSPECTOR GENERAL, OR MAKING DISCLOSURES THAT ARE PROTECTED UNDER THE WHISTLEBLOWER PROVISIONS OF ANY LAW; (D) INITIATE, PROVIDE INFORMATION TO, TESTIFY AT, PARTICIPATE, OR OTHERWISE ASSIST, IN ANY INVESTIGATION OR PROCEEDING BROUGHT BY ANY FEDERAL REGULATORY OR LAW ENFORCEMENT AGENCY OR LEGISLATIVE BODY, SUCH AS THE EEOC AND SEC, ANY SELF- REGULATORY ORGANIZATION, OR THE COMPANY’S LEGAL, COMPLIANCE, OR OTHER OFFICERS RELATING TO AN ALLEGED VIOLATION OF ANY FEDERAL, STATE, OR MUNICIPAL LAW; OR (E) RESPOND TO ANY INQUIRY FROM SUCH AUTHORITY, INCLUDING AN INQUIRY ABOUT THE EXISTENCE OF THIS AGREEMENT OR ITS UNDERLYING FACTS. THIS AGREEMENT DOES NOT REQUIRE YOU TO NOTIFY THE COMPANY OF ANY SUCH COMMUNICATIONS OR INQUIRY DESCRIBED IN THIS SECTION OF THE AGREEMENT.
7. No Pending Claims or Assignments. Contractor represents and warrants that there are no claims, charges, lawsuits, or any similar matters of any kind filed by him or on his behalf or for his benefit currently pending against the Company or its Releasees in any forum whatsoever, including, without limitation, in any state or federal court, or before any before any federal, state, or local administrative agency, board or governing body. Contractor also represents and warrants that there has been no assignment or other transfer of any interest in any claim he may have against the Company or its Releasees, and Contractor agrees to indemnify and hold them and each of them, harmless from any liability, claims, demands, damages, costs, expenses, and attorneys’ fees incurred by them or any of them, as a result of any person asserting any such assignment or transfer. This indemnity shall not require payment as a condition precedent to recover by the Company or its Releasees against Contractor under this indemnity.
8. No Pending or Future Lawsuits.
a. Contractor represents that he has no lawsuits, claims, or actions pending in his name, or on behalf of any other person or entity, against the Company or any of its Releasees. Contractor also represents that he does not intend to bring any claims on his own behalf or on behalf of any other person or entity against the Company or any of its Releasees.
b. The Company represents that it has no lawsuits, claims, or actions pending in its name, or on behalf of any other person or entity, against Contractor or his Releasees. The Company also represents that it does not intend to bring any claims on its own behalf or on behalf of any other person or entity against Contractor or his Releasees.
9. Trade Secrets/Confidential and Proprietary Business Information/Company Property. Contractor reaffirms and agrees to observe and abide by the terms of the confidentiality provisions contained in the Independent Contractor Agreement, specifically including the provision therein regarding nondisclosure of the Company’s trade secrets and confidential and proprietary business information (Section 8). Contractor agrees that he will not disclose the Company’s trade secrets and confidential and proprietary information. Contractor’s signature below constitutes his certification under penalty of perjury that he has returned all documents and other items provided to Contractor by the Company, developed or obtained by Contractor in connection with his engagement as an independent contractor with the Company, or otherwise belonging to the Company.
10. Solicitation of Customers/Solicitation of Company Employees. Contractor reaffirms and agrees to observe and abide by the terms of the customer non-solicitation provision (Section 9) and employee non-solicitation provision (Section 10) contained in the Independent Contractor Agreement.
11. D&O Insurance. Contractor shall continue to be a covered party under the Company’s directors and officers (D&O) liability insurance policy, at Company’s expense, for two years following the Effective Date.
12. Standstill. Unless approved in advance in writing by the Board of Directors of the Company, Contractor agrees that he will not, for a period of five (5) years after the Effective Date, directly or indirectly:
(a) make any statement or proposal to the Board of Directors of the Company, any of the Company’s representatives or any of the Company’s stockholders regarding, or make any public announcement, proposal, or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to, or otherwise solicit, seek, or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media): (i) any business combination, merger, tender offer, exchange offer, or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring, recapitalization, liquidation, or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities, or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence the management, board of directors, or policies of the Company, or (v) any proposal, arrangement, or other statement that is inconsistent with the terms of this Agreement, including this Section 12(a);
(b) instigate, encourage, or assist any third party (including forming, joining or participating in a “group” as defined in the Exchange Act and the rules promulgated thereunder) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in Section 12(a);
(c) take any action that would reasonably be expected to require the Company or any of its affiliates to make a public announcement regarding any of the actions set forth in Section 12(a);
(d) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities, or assets of the Company or any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities, or assets (other than upon the conversion or exercise of any derivative securities of the Company held by Contractor as of the Effective Date); or
(e) enter into any discussions or arrangements with any person or entity with respect to any of the foregoing.
13. No Cooperation. Contractor agrees that he will not knowingly encourage, counsel, or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints by any third party against the Company or any of its Releasees, unless under a subpoena or other court order to do so. Contractor agrees both to immediately notify the Company upon receipt of any such subpoena or court order, and to furnish, within three (3) business days of its receipt, a copy of such subpoena or other court order. If approached by anyone for counsel or assistance in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints against the Company or any of its Releasees, Contractor shall state no more than that he cannot provide counsel or assistance.
14. Mutual Nondisparagement. Each Party agrees to refrain from any disparagement, defamation, libel, or slander of the other Party, and agrees to refrain from any tortious interference with the contracts and relationships of the other Party.
15. No Admission of Liability. Contractor understands and acknowledges that this Agreement constitutes a compromise and settlement of any and all actual or potential disputed claims by Contractor. No action taken by the Company hereto, either previously or in connection with this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity of any actual or potential claims or (b) an acknowledgment or admission by the Company of any fault or liability whatsoever to Contractor or to any third party.
16. Costs. The Parties shall each bear their own costs, attorneys’ fees, and other fees incurred in connection with the preparation of this Agreement.
17. Authority. The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement. Contractor represents and warrants that he has the capacity to act on his own behalf and on behalf of all who might claim through him to bind them to the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein.
18. No Representations. Contractor represents that he has had an opportunity to consult with an attorney, and has carefully read and understands the scope and effect of the provisions of this Agreement. Contractor has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement.
19. Severability. In the event that any provision or any portion of any provision hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision or portion of provision.
20. Entire Agreement. This Agreement represents the entire agreement and understanding between the Company and Contractor concerning the subject matter of this Agreement and Contractor’s separation from the Company and the events leading thereto and associated therewith, and supersedes and replaces any and all prior agreements and understandings concerning the subject matter of this Agreement and Contractor’s relationship with the Company.
21. No Oral Modification. This Agreement may only be amended in a writing signed by Contractor and the Company.
22. Governing Law; Arbitration. This Agreement is made and entered into in the State of Delaware and shall be interpreted, enforced and governed by the laws of that state. The appropriate state or federal court in Delaware will be the exclusive jurisdiction and venue for any dispute arising out of this Agreement.
23. Dispute Resolutions. The parties will conduct good faith negotiations to resolve any dispute. Failing resolution, any dispute arising under this Agreement will, at the request of either party, be submitted for binding arbitration to ADR Arbitration and Mediation Service of Wilmington, Delaware, or other mutually agreed upon third party. This agreement to arbitrate is governed by and enforceable under the Federal Arbitration Act. The arbitration shall occur within ninety (90) days after filing. Arbitration will be conducted with a single neutral arbitrator pursuant to the ADR Rules in effect on the date this Agreement is signed. The parties will have the right to participate in the selection of the arbitrator. The arbitrator can order the same individual remedies that a judge could in a court of law, including injunctive relief, attorneys’ fees, and exemplary damages, and has the authority to consider motions to dismiss and motions for summary judgment. The arbitrator shall issue a written decision (“Decision”) within thirty (30) days of the conclusion of the arbitration hearing. The Decision will state the disposition of each claim and the relief, if any, awarded as to each claim. The Decision will include a concise written statement of the reasons for the award, if any, and will state the essential findings and conclusions on which the award is based. Notwithstanding this arbitration provision, requests for injunctive and other provisional relief may also be made in any court of competent jurisdiction. Any action to enforce the arbitration award or otherwise must be maintained in the State or Federal Courts in Delaware.
24. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
25. Counterparts. This Agreement may be executed in counterparts and by facsimile, and each counterpart and facsimile shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned.
26. Attorneys’ Fees. In the event of any arbitration or litigation arising from or related to this litigation, the prevailing party, in addition to all other remedies, shall be entitled to their reasonable attorneys’ fee and costs.
27. Intellectual Property Matters. Nothing herein shall affect or modify the Company’s rights under any patent assignments executed by Contractor in favor of the Company, and Contractor hereby assigns to the Company all intellectual property rights created by Contractor and related to his engagement by the Company, including but not limited to patents, patent applications, improvements thereon, and trade secrets. With respect to patents or patent applications in which Contractor is listed as an inventor, Contractor agrees to provide the Company or its agents or attorneys with all reasonable assistance in the preparation and prosecution of such patent applications and perform any affirmative acts required by the Company to maintain its patent rights, all at the expense of the Company. Contractor agrees to perform, upon request, any affirmative acts to obtain Letters Patent of the United States and in any foreign countries for such intellectual property and to vest in the Company, its successor, legal representatives, and assigns all rights therein, so that the intellectual property will be held and enjoyed by the Company, its successor, legal representatives, and assigns to the full end of the term for which said Letters Patent may be granted as fully and entirely as the same would have been held and enjoyed by Contractor if this assignment had not been made. In the event that any application, Letters Patent and/or such intellectual property becomes involved in interference or any other contested matter, Contractor agrees to cooperate to the best of his ability with the Company, its successor, legal representatives, and assigns in the matters of preparing and executing the preliminary statement or other such document and giving and producing evidence in support thereof. Contractor shall be at no cost or expense whatsoever with regard to any request made by the Company pursuant to this Section 27.
28. Successors and Assigns. This Agreement will inure to the benefit of, and is binding upon, the Parties hereto and their respective successors, assigns and heirs.
[Signatures Appear on Following Page]
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
| Provectus Biopharmaceuticals, Inc. | ||
| Dated: March 25, 2024 | By: | /s/ Heather Raines |
| Heather Raines, CPA | ||
| Chief Financial Officer | ||
| Bruce Horowitz | ||
| Dated: March 25, 2024 | /s/ Bruce Horowitz | |
Exhibit 10.2
INDEPENDENT CONTRACTOR AGREEMENT
THIS AGREEMENT is made and entered by and between PROVECTUS BIOPHARMACEUTICALS, INC., a Delaware corporation (the “Company”) and DOMINIC RODRIGUES (the “Contractor”). Collectively the Company and the Contractor shall be referred to herein as “the Parties.”
WHEREAS, the Company is a clinical-stage biotechnology company developing immunotherapy medicines for different diseases that are based on a class of synthetic small molecule immuno-catalysts called halogenated xanthenes; and
WHEREAS, the Company wishes to engage Contractor to provide services to the Company as its chief operations consultant; and
WHEREAS, Contractor agrees to perform the services specified herein;
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, it is agreed:
1. Services of Contractor. Contractor agrees to serve as the chief operations consultant of the Company, performing such duties and services that are consistent with the position of Chief Operating Officer for a public company and as may be assigned from time to time by the Chief Executive Officer and/or the Company’s Board of Directors (“Board”), such as but not limited to managing, coordinating, and/or overseeing Company, clinical and research collaborator, and vendor-partner activities in drug discovery, clinical development, intellectual property, regulatory strategy and affairs, drug substance and drug product formulation and manufacturing, business and corporate development, and investor/public relations. The Contractor agrees to provide an average of approximately thirty (40) hours of services to the Company each calendar week. Contractor will perform these services from either the Company’s headquarters at 800 S. Gay Street, Suite 1610, Knoxville, Tennessee or the Contractor’s residence in Las Vegas, Nevada.
2. Term. This Agreement shall remain in effect on a month-to-month basis thereafter unless either party provides thirty (30) days prior written notice of nonrenewal.
3. Independent Contractor Status. Contractor’s status is that of an independent contractor and not that of an employee, agent, partner or joint venture partner of the Company. Nothing in this Agreement shall be construed or applied to create a partnership, agency, joint venture or employer/employee relationship. Contractor acknowledges that, as an independent contractor, he is not eligible for any employee benefits that the Company offers to its employees, including without limitation, health insurance, life insurance, disability insurance, retirement benefits, paid vacation, sick leave, and holiday pay. All taxes applicable to any amounts paid by the Company to Contractor under this Agreement shall be Contractor’s liability, and the Company shall not withhold or pay any amounts for federal, state, or municipal income tax, Social Security taxes, or unemployment or workers’ compensation taxes. Contractor hereby acknowledges his personal liability for the self-employment tax imposed by the Internal Revenue Code, and the payment, when applicable, of estimated quarterly taxes and the filing, when applicable, of quarterly Internal Revenue Service Forms for the declaration of estimated tax by individuals. Upon request by the Company, Contractor agrees that he will provide documentation evidencing compliance with all applicable federal, state and municipal tax laws, rules and regulations. The Company will report its payments to Contractor on IRS Form 1099. The Company makes no representations to Contractor regarding the tax treatment or consequences of any sums paid in connection with this Agreement. Contractor agrees that he will indemnify Company for any amounts the Company is required to pay due to Contractor’s failure to pay taxes on the amounts the Company pays the Contractor pursuant to this Agreement. Contractor indemnification obligation shall not extend to any amounts the Company is required to pay due to its classification of the Contractor as an independent contractor. Contractor’s scope of authority consists solely of providing services to Company. Contractor is authorized to make decisions necessary to facilitate the day-to-day operations of the Company, but is not authorized to make any material changes regarding customers or employees or to make any representations or agreements on the Company’s behalf with third parties, unless specifically authorized to do so in writing by the Board of Directors.
4. Payment for Services. For services rendered under this Agreement, Contractor shall receive $20,000 per calendar month. Invoices indicating payment and expenses owed shall be submitted monthly to the Company. Payment shall be made to Contractor within 30 days following the Company’s receipt of each such invoice, unless there is a bona fide dispute over the amount or other terms of an invoice, in which case the Company shall pay the undisputed amount only.
5. Reimbursement of Expenses. As stated in Paragraph 3 herein, Contractor is an independent contractor. Notwithstanding the foregoing, Company will reimburse Contractor for all reasonable and necessary expenses relating to Contractor’s provision of services under this Agreement, including air and ground transportation, and lodging expenses at a hotel mutually agreed upon by the parties during the term of this Agreement. The Company will reimburse Contractor for all reasonable and necessary expenses incurred in the performance of services for the Company upon presentation of receipts documenting such expenditures, submitted on a bi-weekly basis.
6. Termination. The Company may terminate the Agreement immediately upon learning of (a) misconduct by Contractor in connection with the performance of his services (including, without limitation, misappropriation of funds or property of the Company; misrepresentation to the Company; intentional actions that are injurious to the business interests of the Company; violation or attempted violation of federal or state securities laws; or breach of this Agreement); (b) commission by Contractor of a crime, an act involving moral turpitude, dishonesty, theft, or unethical business conduct, or conduct that impairs or injures the reputation of, or harms, the Company; or (c) Contractor aiding a competitor. In addition, this Agreement shall terminate immediately upon the event of death, disability or incapacity of Contractor.
7. Indemnification. As a material inducement to the Company to enter into this Agreement, Contractor hereby agrees to indemnify and hold harmless the Company for any claims made against the Company based upon the Contractor’s gross negligence in the performance of his services. The Company shall indemnify and hold harmless the Contractor for all other claims made against the Contractor based upon the Contractor’s performance of his services. This provision shall survive the termination of this Agreement.
8. Confidential and Proprietary Business Information and Trade Secrets. Contractor acknowledges and agrees that all materials and information provided by the Company or obtained by Contractor during the term of the relationship with the Company are the sole property of the Company and agrees that such materials and information may only be used by Contractor during the term of this Agreement. Contractor also agrees that he will not at any time, reveal, divulge or disclose to any person or other entity or use for his own benefit or for the benefit of any person or entity any confidential or proprietary business information or trade secrets concerning the business of the Company obtained or developed by Contractor during the term of this Agreement. Upon termination of this Agreement, Contractor shall deliver to the Company all notes, lists, plans, records, spreadsheets, reports, invoices, equipment, and other documents relating to any of the foregoing confidential or proprietary business information or trade secrets which Contractor may then possess or have under Contractor’s control. The provisions of this paragraph shall survive the termination of this Agreement. For purposes of this Agreement “Confidential Information” includes data and information relating to clinical trials, patient information, marketing information, research and development efforts, production, sales, technologies, finances and financial controls, legal proceedings, and personnel information, which is or has been disclosed to Contractor or of which Contractor became aware as a consequence of or through his relationship with the Company and which has value to the Company, is not generally known to its competitors or disclosed through public filings, and which the Company otherwise maintains as confidential. Notwithstanding the foregoing, nothing in this confidentiality provision prohibits Contractor from reporting possible violations of law to any governmental agency or entity or making other disclosures that are protected under the whistleblower provisions of federal, state, or local laws or regulations. Nothing herein is intended to prevent the Contractor from responding to any lawful subpoena or governmental inquiry, provided that the Contractor provides the Company with prompt notice of the subpoena and/or inquiry prior to responding.
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9. Solicitation of Customers. During the term of this Agreement and for a period of two (2) years following the termination of the Agreement for any reason whatsoever, Contractor shall not, either directly or indirectly, on Contractor’s behalf or on behalf of others, solicit or attempt to solicit on behalf of a Competing Business, any business from any customers or actively-sought prospective customers of the Company with whom Contractor has had any contact during the Term of the Agreement or about whom Contractor has acquired Confidential Information during the term of the Agreement. As used in this Agreement, “Competing Business” means any development-stage biopharmaceutical company.
10. Solicitation of Company Employees. During the term of this Agreement and for a period of two (2) years following the termination of the Agreement for any reason whatsoever, Contractor shall not, either directly or indirectly, on Contractor’s own behalf or on behalf of others, solicit or hire away, or attempt to solicit or hire away, any person any person employed by the Company with whom Contractor had regular contact in the course of his relationship with the Company, regardless of whether the employment of any such person is for a determined period of time or is “at-will.”
11. Notices. Any notice or other communications required or permitted hereunder shall be sufficiently given if delivered in person or sent by electronic mail or by registered or certified mail, postage prepaid, addressed as follows: if to Contractor, at 800 S, Gay Street, Suite 1610, Knoxville, TN 37929, and/or rodrigues@pvct.com, and if to the Company, Heather Raines, Chief Financial Officer, 800 S. Gay Street, Suite 1610, Knoxville, Tennessee 37929, hraines@pvct.com; such notice or communication shall be deemed to have been given as of the date so hand-delivered and/or e-mailed, and three (3) days after the date of mailing.
12. Governing Law and Venue. This Agreement is made and entered into in the State of Tennessee and shall be interpreted, enforced and governed by the laws of that state. The appropriate state or federal court in Knox County, Tennessee will be the exclusive jurisdiction and venue for any dispute arising out of this Agreement. The parties voluntarily submit to the jurisdiction of these courts for any litigation arising out of or concerning the application, interpretation or any alleged breach of this Agreement.
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13. Severability. Should any provision of this Agreement be declared by any court of competent jurisdiction to be illegal or invalid, the parties agree that the court shall modify the Agreement so that the invalid provision is made to be valid. If the court determines that such provision cannot be judicially modified so as to make it valid, the validity of the remaining provisions shall not be affected thereby, and the invalid provision shall be deemed to not be a part of this Agreement.
14. Duty to Report and Cooperation. Contractor acknowledges and embraces a zero-tolerance policy regarding any violation or potential violation of any federal, state, or local law or professional rule. Accordingly, Contractor has an affirmative duty to report any alleged, actual or potential misconduct that Contractor or its agents perceive, witness, uncover, or that otherwise comes to Contractor’s attention or knowledge immediately and in writing to the Chairman of the Board. Contractor agrees during the Term of this Agreement and thereafter to reasonably cooperate with the Company in any pending or future matters, including without limitation any litigation, investigation, or other dispute, in which Contractor, by virtue of his engagement with the Company, has relevant knowledge or information; provided, however that the Company agrees to pay reasonable hourly compensation and costs (in accordance with Paragraph 4 of this Agreement) resulting from the Company’s request.
15. Assignability. The services contracted for hereunder are dependent upon the qualifications of Contractor and may not be assigned by Contractor without the express written consent of the Company. In the event of death, disability or incapacity of Contractor, this Agreement shall terminate, and any amounts owed to Contractor by Company will be paid to Contractor’s Estate.
16. Entire Agreement. This Agreement sets forth the entire agreement between the parties hereto, and fully supersedes any and all prior agreements or understandings between them pertaining to the subject matter hereof. It is agreed that this Agreement may be modified only in writing, executed by both parties.
17. Acknowledgments. Contractor and the Company acknowledge and agree that they have had a sufficient opportunity to review the terms of this Agreement. Contractor further acknowledges that in executing this Agreement he is not relying nor has he relied upon any other representation or statement made by the Company or by any of the Company’s agents with regard to the subject matter hereof. Contractor has carefully read and fully understands all of the provisions of this Agreement and is voluntarily entering into this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement or caused this Agreement to be executed on this __25___ day of ______March___________, 2024.
| Dominic Rodrigues | ||
| /s/ Dominic Rodrigues | ||
| Contractor | ||
| PROVECTUS BIOPHARMACEUTICALS, INC. | ||
| By: | /s/ Heather Raines | |
| Title: | CFO | |
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Cover |
Mar. 25, 2024 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Mar. 25, 2024 |
| Entity File Number | 001-36457 |
| Entity Registrant Name | PROVECTUS BIOPHARMACEUTICALS, INC. |
| Entity Central Index Key | 0000315545 |
| Entity Tax Identification Number | 90-0031917 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 800 S. Gay Street |
| Entity Address, Address Line Two | Suite 1610 |
| Entity Address, City or Town | Knoxville |
| Entity Address, State or Province | TN |
| Entity Address, Postal Zip Code | 37929 |
| City Area Code | (866) |
| Local Phone Number | 594-5999 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Entity Emerging Growth Company | false |
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