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ITEM 10.4
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this
3rd day of November, 1995, by and among Xxxxxx X. Xxxxx and Associates, Inc. A
Florida corporation ("Consultant") with corporate office at 000 Xxxxx Xxxx,
Xxxx Xxxx, Xxxxxxx 00000 and Harvard Scientific Corp., a Nevada corporation
("Harvard"), with corporate offices at 0000 Xxxx Xxxxxxxx, Xxxxx 00, Xxx Xxxxx,
Xxxxxx 00000.
WHEREAS, Harvard desires to engage Consultant to perform certain
services including public relations services on its behalf and to advise
Harvard on certain business opportunities; and
WHEREAS, Consultant has represented that it has the expertise to
perform those certain services which will enhance the growth and value of
Harvard;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereto agree as follows;
1. REPRESENTATIONS OF HARVARD. Harvard represents and warrants that;
(a) Harvard the full power and authority to execute and deliver
this Agreement, and to perform all of its obligations herein.
(b) All news releases or other publicity about Harvard will be
coordinated with the Consultant and will be issued in
accordance with the legal requirements of a public company.
(C) Harvard shall approve or disapprove within 48 hours the
issuance of all press releases and any other material
representations about Harvard suggested by Consultant.
(d) The common stock of Harvard to be issued to Consultant as
compensation shall be properly authorized, issued and
registered under the Securities Act of 1933, on a Form S-8
registration statement or other appropriate form.
2. REPRESENTATIONS OF CONSULTANT. Consultant represents and warrants
that:
(a) Consultant has the full power and authority to execute and
deliver this Agreement, and to perform all of its obligations
herein.
(b) Consultant shall limit his representations about Harvard to
facts disclosed by Harvard to Consultant.
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3. SERVICES TO BE PERFORMED. Consultant agrees to provide the following
services on behalf of Harvard from the date this Agreement is signed
until November 2. 1997;
(a) Consultant shall open channels of distribution for Harvard's
products throughout the world;
(b) Consultant shall provide input on Harvard's marketing and
sales plans and distribution agreements;
(c) Consultant shall review, advise and have input on Harvard's
distribution agreements;
(d) Consultant shall provide advise and assistance to Harvard with
regard to public relations, mergers, acquisitions and other
business opportunities;
(e) Consultant shall provide public relations services to Harvard
and shall advise Harvard regarding press releases and
communications with the investment community, including
mutual funds, money manages, investors and brokerage firms;
(f) Consultant shall write and release all press releases and
public announcements in coordination with Harvard and
Harvard's legal counsel;
(g) Consultant shall coordinate press conferences with general
media, newspapers, trade publications, magazines financial
news letters, investments advisory reports, wire services
such as Dow Xxxxx, Reuters, and Bloomberg, and financial
television and radio programs; and
(h) Consultant shall act as Harvard's spokesperson to the
investment community.
4. TERMS OF THIS AGREEMENT. This Agreement shall be binding and in effect
from the date this Agreement is signed through November 2, 1997.
5. COMPENSATION.
(a) Base Compensation. As compensation for Consultant's services,
Harvard shall transfer to Consultant 350,000 shares of free-
trading Harvard common stock. These shares shall be delivered
to Consultant simultaneously with the execution of this
Agreement. Harvard shall immediately undertake to register
such shares under the Securities Act of 1933 on Form 2-8 or
any other available for, at Harvard's sole costs and expense.
On the date of this Agreement, shares of Harvard are quoted at
2 5/8 bid on the Bulletin Board of the National Association of
Securities Dealers, Inc.
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(b) Bonus Compensation. The Board of Directors of Harvard shall,
from time to time, review the activities of Consultant with a
view towards bonus compensation which may be awarded such
compensation may take the form of cash, common stock or other
property, and shall be commensurate with the services
rendered by Consultant on behalf of Harvard and the value
thereby added to Harvard and to its stockholders.
6. EXPENSES. Harvard shall be responsible during the entire term of this
Agreement for all of its own expenses incurred in connection with this
Agreement. Harvard shall reimburse Consultant for any and all
out-of-pocket expenses incurred by Consultant in the performance of
this Agreements and its activities for Harvard, provided however, that
to the extent that such expenses exceed $10,000 in any month, such
excess expenses hall be pre-approved in writing by Harvard, by its
then--Chief Executive Officer. Consultant shall provide Harvard with
receipts and/or vouchers for all expenses.
7. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and personally delivered or sent by
registered or certified mail to the following addresses:
If to Harvard: Harvard Scientific Corp.
0000 Xxxx Xxxxxxxx, Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Copy to: Xxxx X. Xxxxxx, Esquire
0000 Xxxxx Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
If to Consultant: Xxxxxx X. Xxxxx & Associates, Inc.
000 Xxxxx Xxxx
Xxxx Xxxx, Xxxxxxx 00000
Copy to: Xxxxxx X. Xxxxxxx, Esquire
Barretto Xxxxxxx & Ruta, P.A.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Provided, however, that neither party hereto may, from time to time give to the
other party written notice, in the manner provided for herein, of some other
address to which communications to such party shall be Bent, in which event
notices to such party shall be personally delivered or sent by registered or
certified mail to such address. Notice shall be deemed effectively given
hereunder when personally delivered or deposited in the United States mail
postage prepaid, registered or certified, return receipt requested, or
transmittal by overnight receipted courier as the case may be.
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8. LEGAL FEES. Subject to the rights of indemnification and release
contained herein, in the event of any legal action or proceeding
instituted with respect to this Agreement, the party prevailing in
such action or proceeding shall be entitled to collect from the
non-prevailing in such action or proceeding shall be entitled to
collect from the non-prevailing party reasonable attorney fees,
paralegal fees, law clerk fees and other legal cost and expenses,
whether incurred at or before trial, and whether incurred at the trial
level or in any appellate proceeding.
9. BINDING EFFECT, ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
personal representative, heirs, spouses, beneficiaries, successors and
permitted assigns. Neither party to this Agreement may assign such
party's rights or obligations hereunder without the prior written
consent of the other party.
10. COMPLETE ASSIGNMENT. This Agreement constitutes the complete
understanding between the parties with respect to the subject matter
hereof. This Agreement constitutes the entire agreement between the
parties hereto with respect to the matters covered herein and
supersedes all prior or contemporaneous agreements, negotiations,
representations or discussions with respect to such subject matter.
This Agreement may not be amended or modified except by a written
instrument executed by parties hereto.
11. GOVERNING LAW. This Agreement and performance hereunder shall be
governed by and construed in accordance with the laws of the State of
Florida. In the event of any legal or equitable action arising under
this Agreement, the parties hereto hereby agree that the courts of the
State of Florida shall have sole and exclusive jurisdiction and venue
over any such action and hereby consent to such jurisdiction.
12. FURTHER ACTIONS. Each party to this Agreement shall take such further
actions to execute, file, record, publish and deliver such additional
certificates, instruments, agreements and other documents as the other
party from time to time, reasonably request in order to effectuate the
transfer contemplated herein, or otherwise to accomplish the purposes
of this Agreement.
13. WAIVER. No waiver of any breach of any term or condition of this
Agreement shall be deemed to be a waiver of any subsequent breach of
any term or condition of a like or different nature.
14. SEVERABILITY. If any provision of this Agreement shall be held invalid
or unenforceable, such validity or unenforceability shall not, if
possible, affect the validity or enforceability of any other provision
of this Agreement, and this Agreement shall, if possible, be
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construed and enforced in all respects are if such invalid or
unenforceable provision had not been contained herein.
15. DRAFTSMANSHIP. The fact that one of the parties may have drafts or
structured any provision hereof shall not be considered in construing
the particular provision either in favor of, or against, such party.
16. COUNTERPARTS. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but al of
which shall only constitute one instrument. Facsimile signatures are
acceptable.
IN WITNESS WHEREOF, each of the parties having agreed to the above
mentioned terms and conditions have hereunder set their hands and seals as of
this 3rd day of August, 1995.
XXXXXX X. XXXXX & ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx - President
HARVARD SCIENTIFIC CORP.
By: /s/ XXX X. XXXXXX
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Director
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