Exhibit 10.34
VITAL LIVING, INC.
SCIENTIFIC ADVISORY BOARD AGREEMENT
This Scientific Advisory Board Agreement ("Agreement") dated May 7,
2002, (the "Effective Date") is made by and between Vital Living, Inc., a
Nevada corporation, whose address is ________________________________
("Company" or "Vital Living"), and (ii) Xxxxx Xxxxx, MD, ("Consultant"),
an individual whose address is 0000 Xxxxxxxxx Xx., Xxxxxxxxx, XX 00000.
1. INTRODUCTION
Vital Living is establishing a Scientific Advisory Board ("SAB") to
provide Vital Living the following services and advice in connection with its
strategy and plans for the development and commercialization of its products and
services ("Services"), including, but not limited to:
Developing, manufacturing and testing of nutraceutical formulations
that are based on the best available scientific research, shown to
be safe and effective in appropriately designed and controlled
clinical trials, and proprietary to the Company ;
Assisting the Company in the design and development of compliance
and lifestyle programs intended to enhance patient compliance with
the Company's nutraceuticals;
Advising the Company on the needs of potential clients, partners,
and other users, including practicing physicians, academic
researchers, other health professional, and patients, and the design
of products, services and offerings to address those needs, but not
helping to directly market to these individuals;
Working with other thought leaders and health
professionals to facilitate projects of mutual benefit to
the Company and said individuals: and,
Participating in scientific exchange with thought leaders and other
health professionals and academic researchers regarding potential
clinical benefits of Vital Living products.
Consultant desires to be a member of the SAB and perform such Services, and
Company desires to have Consultant become a member of the SAB and perform such
Services.
2. SERVICES COMPENSATION AND EXPENSE REIMBURSEMENT
2.1 2.1 2.1 SERVICES. Consultant agrees to serve as a member of the SAB
and to endeavor to attend and participate in all SAB meetings. Vital
Living currently intends to convene one (1) in-person meeting and
three (3) teleconference meetings of the SAB per year.
2.2 2.2 2.2 COMPENSATION AND EXPENSE REIMBURSEMENT. As sole compensation
for the performance of the Services, Company will compensate
Consultant as set forth in Exhibit A. The Company will reimburse
Consultant for reasonable out-of-pocket expenses incurred in the
performance of the Services, including Business Class travel to SAB
Meetings; provided, however,
that (a) all such out-of pocket expenses over an aggregate of $500
during any calendar month shall have been previously approved in
writing by an officer of the Company; and (b) all such out-of-pocket
expenses are supported by reasonable documentation;
3. RELATIONSHIP OF PARTIES
3.1 INDEPENDENT CONTRACTOR. Consultant is an independent contractor and is
not an agent or employee of, and has no authority to bind, Company. Consultant
will perform the Services under the general direction of Company, but Consultant
will determine the manner and means by which the Services are accomplished.
Consultant acknowledges that Vital Living shall not have any obligation to
follow the advice of Consultant or the SAB. Consultant will not be entitled to
receive benefits from or to participate in any plans designed to provide
benefits for Company's employees.
4. PROPERTY OF COMPANY
4.1 DEFINITION. For the purposes of this Agreement, "Designs and
Materials" shall mean all designs, discoveries, inventions, products, computer
programs, procedures, improvements (whether or not patentable or whether or not
copyrightable), developments, drawings, notes, documents, information and
materials made, conceived, reduced to practice, written, designed, discovered or
developed by Consultant alone or with others whether during normal business
hours or otherwise which result from, relate to or are derived from any work
performed by Consultant for the Company.
4.2 ASSIGNMENT OF OWNERSHIP. Consultant hereby irrevocably transfers and
assigns any and all of its right, title, and interest in and to Designs and
Materials, including but not limited to all copyrights, patent rights, trade
secrets and trademarks, to Company. Designs and Materials will be the sole
property of Company, and Company will have the sole right to determine the
treatment of any Designs and Materials, including the right to keep them as
trade secrets, to file and execute patent applications on them, to use and
disclose them without prior patent application, to file registrations for
copyright or trademark on them in its own name, or to follow any other procedure
that Company deems appropriate. Consultant agrees: (a) to disclose promptly in
writing to Company all Designs and Materials; (b) to cooperate with and assist
Company to apply for, and to execute any applications and/or assignments
reasonably necessary to obtain, any patent, copyright, trademark or other
statutory protection for Designs and Materials in Company's name as Company
deems appropriate; and (c) to otherwise treat all Designs and Materials as
"Confidential Information," as defined below. These obligations to disclose,
assist, execute and keep confidential will survive any expiration or termination
of this Agreement. Consultant agrees that if the Company is unable, after
reasonable effort, to secure my signature on any such papers, any executive
officer of the Company shall be entitled to execute any such papers as my agent
and attorney-in-fact, and Consultant hereby irrevocably designates and appoints
each executive officer of the Company as Consultant's agent and attorney-in-fact
to execute any such papers on Consultant's behalf, and to take any and all
actions as the Company may deem necessary or desirable in order to protect its
rights and interests in any Designs and Materials, under the conditions
described in this sentence. Consultant hereby waives and quit claims to the
Company any and all claims, of any nature whatsoever, which Consultant now or
may hereafter have for infringement of any proprietary rights assigned
hereunder.
5. CONFIDENTIAL INFORMATION
Consultant acknowledges that Consultant will acquire information and
materials from Company and knowledge about Company including, without
limitation, knowledge about business, marketing plans, pricing practices,
products, formulation, ingredients, dosages, services, inventions, prototypes,
cell lines, formula, processes, programming techniques, experimental work,
customers, clients and suppliers of Company and that all such knowledge,
information and materials acquired, the existence, terms and conditions of this
Agreement, and the Designs and Materials, are and will be the trade secrets and
confidential and proprietary information of Company (collectively "Confidential
Information"). Confidential Information will not include, however, any
information which is or becomes part of the public domain through no fault of
Consultant or that Company regularly gives to third parties without restriction
on use or disclosure. Consultant agrees to hold all such Confidential
Information in strict confidence, not to disclose it to others or use it in any
way, commercially or otherwise, except in performing the Services, and not to
allow any unauthorized person access to it, either before or after expiration or
termination of this Agreement. Consultant further agrees to take all action
reasonably necessary and satisfactory to protect the confidentiality of the
Confidential Information.
6. TERM AND TERMINATION
This Agreement will commence on the Effective Date and terminate three years
thereafter. Either party may terminate this Agreement at any time, for any
reason or for no reason, upon thirty (30) days written notice.
7. EFFECT OF EXPIRATION OR TERMINATION Upon the expiration or termination of
this Agreement for any reason, (a) each party will be released from all
obligations to the other arising after the date of expiration or termination,
except that expiration or termination of this Agreement will not relieve either
party of its obligations under Sections 3, 4, 5, 6, 8 and 9, nor will expiration
or termination relieve Consultant or Company from any liability arising from any
breach of this Agreement; and (b) Consultant will promptly notify Company of all
Confidential Information, including but not limited to the Designs and
Materials, in Consultant's possession and promptly deliver to Company, or
destroy at Company's request, all such Confidential Information.
8. WARRANTIES
Consultant represents and warrants to the Company that (a) Consultant's
service on the SAB does not conflict with, result in the breach of any
provisions of, or constitute a default under any agreement or other obligation
to which Consultant is a party, and (b) Consultant's principal place of
employment has received full disclosure as to the Consultant's service on the
SAB and that such employer consents to the Consultant's participation.
9. GENERAL
9.1 PUBLICITY. Consultant shall not publicize or advertise in any manner
that Consultant is performing the Services hereunder, without the prior written
consent of Company. Consultant hereby grants to Company the right to use
Consultant's name, likeness, and relationship with Company in and in
connection with technical materials, various reports, brochures or other
documents produced by or on behalf of Company.
9.2 ASSIGNMENT. Consultant may not assign this Agreement or any of
Consultant's rights or delegate Consultant's duties under this Agreement either
in whole or in part, whether by operation of law or otherwise. Any attempted
assignment will be void and of no force and effect.
9.3 EQUITABLE REMEDIES. Because the Services are personal and unique and
because Consultant will have access to Confidential Information of Company,
Company will have the right to enforce this Agreement and any of its provisions
by injunction, specific performance or other equitable relief without prejudice
to any other rights and remedies that Company may have for a breach of this
Agreement.
9.4 ATTORNEYS' FEES. If any action is necessary to enforce the terms of
this Agreement, the substantially prevailing party will be entitled to
reasonable attorneys' fees, costs and expenses in addition to any other relief
to which such prevailing party may be entitled.
9.5 GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the laws of the State of California excluding that
body of law pertaining to conflict of laws. If any provision of this Agreement
is for any reason found to be unenforceable, the remainder of this Agreement
will continue in full force and effect.
9.6 NOTICES. Any notices under this Agreement will be sent by certified or
registered mail, return receipt requested, or a nationally recognized overnight
courier to the address set forth above or such other address as the party
specifies in writing. Such notice will be effective upon its mailing.
9.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9.8 COMPLETE UNDERSTANDING; MODIFICATION. This Agreement constitutes the
complete and exclusive understanding and agreement of the parties and supersedes
all prior understandings and agreements, whether written or oral, with respect
to the subject matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date.
VITAL LIVING, INC. CONSULTANT
By: By:
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Title: Title:
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EXHIBIT A
COMPENSATION
FEES: CONSULTANT WILL RECEIVE $1250 PER S.A.B MEETING THAT HE OR SHE
ATTENDS. CURRENTLY THE COMPANY ESTIMATES THAT THERE WILL BE 4
MEETINGS ANNUALLY.
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