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ITEM 10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
by and between HARVARD SCIENTIFIC CORP. (the "Principal"), and XXXXX X. XXXXXX
(the "Consultant"). (The Principal and the Consultant being hereinafter
collectively referred to as the "Parties" and generically as a "Party").
PREAMBLE:
WHEREAS, Principal desires to retain Consultant's services and
Consultant agrees to take on Principal as an active client, the Parties hereby
intending to be legally bound, and in consideration for the mutual promises and
covenants contained below, do hereby agree to the following terms and
conditions:
ARTICLE ONE
CONSULTING SERVICES
1.1 Financial Public Relations
(a) For a period of one year commencing on the signing of this
Agreement, Consultant shall serve as Principal's financial public relations
consultant. Consultant will be responsible for preparing and releasing
information concerning Principal to the financial community, and establishing a
public relations program for Principal. Consultant will also arrange to use the
services of other public relations firms whose skills cover various areas of
expertise needed to cover the broad spectrum of specific services required. The
costs for these additional services must be approved by the Principal prior to
implementation.
(b) Consultant shall, immediately following execution of this
Agreement by Principal, proceed to evaluate Principal's financial statements
and business plan as well as any other corporate records necessary to develop a
strategic plan for bring the company to the attention of the public.
Additionally a program for the dissemination of information concerning
Principal to its stockholders and the investment banking community shall be
implemented.
1.2 Responsibility and Liability
Principal shall review and approve all releases that Consultant
prepares as to the accuracy of the information contained therein. Principal
shall be solely responsible for the accuracy of all information contained
therein. Principal hereby agrees to indemnify and defend Consultant against,
and to hold Consultant harmless from, any claims, demand, suits, losses,
damages, including legal fees and expenses, arising out of or relating to
Consulting's use of or reliance upon the facts, material, information and data
supplied to Consultant by Principal. In
Initialed: Principal Consultant
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the event that a claim is made or suit brought against Consultant, Principal
shall retain at its own expense counsel of Consultant's choice to defend
Consultant.
1.3 Releases Prepared by Principal
Principal shall not release any information to the public without
first providing Consultant an opportunity to review and comment on the release
in advance. However, once Consultant has had an opportunity to review and
approve said release prepared by or for Principal by another entity, Principal
shall be free to release the information in its sole discretion. Principal
shall be solely responsible for all releases it disseminates to the public.
1.4 Acknowledgments
Principal acknowledges that it has been informed and agrees that
Consultant's main responsibility is to advise Principal as to how to interact
with the financial community. Principal further acknowledges that it has been
informed and agrees that Consultant will not directly prepare all of the
material that will be released to the public. Instead, Consultant will retain,
on Principal's behalf, other public relation firms to prepare such materials
for dissemination to various outlets such as radio, television, magazines, the
press and financial investors such as mutual funds both domestic and foreign.
Principal shall have the right to pre-approve any project and budget proposed
by Consultant. Once approved, Principal shall not direct Consultant as to how
best to complete the project.
1.5 Principal Duty To Keep Consultant Informed
(a) PRINCIPAL HEREBY IRREVOCABLY AGREES TO KEEP CONSULTANT APPRISED OF
ALL MATERIAL MATTERS INVOLVING PRINCIPAL, AS REQUIRED TO PERMIT CONSULTANT TO
FULLY, PROPERLY AND LEGALLY PERFORM IT DUTIES ASSUMED UNDER THIS AGREEMENT.
Principal shall be deemed to make a continuing representation as the accuracy
of any and all facts, material, information and data which it supplies to
Consultant. Principal acknowledges that Consultant will rely upon this
representation and will disseminate information to the public and the
investment community based upon the facts, material, information and data
supplied to it by Principal without further inquiry, investigation or due
diligence.
(b) Principal shall promptly provide Consultant with full and complete
copies of all filings with all state and federal securities agencies or
departments. Principal shall also provide to Consultant, prior to their
release, all shareholder reports and communications, all facts, material
information and data supplied to any analyst, broker-dealer, market maker,
mutual fund and any other member of the financial community.
(c) Principal shall provide Consultant with all product or service
brochures, sales material and any other facts, material, information and data
supplied to its clientele and/or the public.
Initialed: Principal Consultant
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(d) Principal shall give Consultant advance notice of the filing of
any registration statement for the sale of securities and/or of any other event
which triggers any restriction on publicity.
1.6 Confidentiality
Consultant shall not disclose to any third party, other than those it
retains to help prepare materials for Principals benefit, any confidential
non-public information furnished by Principal to it or other wise obtained in
Principal's service. This duty will survive termination of this Agreement
except that Consultant may use any information it obtains if needed in its
defense if litigation arises between the parties the concerning the subject
matter of this Agreement.
1.7 Termination
This Agreement may only be canceled for good caused or upon mutual
agreement.
1.8 Damages
The Parties agree that damages are hard to access in advance of a
breach of contract. If this Agreement is terminated for any reason, other than
good cause, Consultant's damages will be the remaining monthly fees for the
life of the contract as well as any out of pocket expenses Consultant may have
incurred on Principal's behalf which were not reimbursed prior to Consultant's
termination and interest on both at the legal rate to run from the date of the
termination of this Agreement. These sums shall be paid as liquidated damages
and not as a penalty or a forfeiture for the injuries suffered by Consultant.
Principal agrees that the remedies described above shall be in
addition to, and not in limitation of, any of the rights or remedies to which
Consultant is or may be entitled to, whether at law or in equity, under or
pursuant to this Agreement.
ARTICLE TWO
CONSULTANT COMPENSATION
2.1 Consultant's Fee
Consultant's fee is 100,000 shares of unregistered stock of Harvard
Scientific Corp and $8,000.00 per month for the services described in Article
One. The stock shall be issued simultaneously with signing of this contract and
Consultant's monthly cash fees shall be payable in advance, due on the first of
the preceding month and must be paid by the 5th. The first month's fee is due
upon the signing of this Agreement. All regular monthly consulting fees will be
paid by Principal regardless if an invoice is submitted to it by Consultant.
Consultant' fee does not include costs for any third party's work. All
subcontractor's fees shall be paid by Principal to Consultant upon invoice from
Consultant, in addition to Consultant's fees.
Initialed: Principal Consultant
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2.2 Other Services
The foregoing fees are solely for the services specified in this
Agreement. Principal hereby agrees to and acknowledges that if Consultant is
required to perform other services not specified in this Agreement that
Principal shall be responsible to provide Consultant with additional
compensation on terms to be mutually agreed upon by the Parties.
2.3 Agency Fees
Principal acknowledges that it has been informed and agrees that
Consultant will be entitled to all agency fees which public relations and/or
advertising firms receive when preparing material or placing advertising. Said
fees are in addition to Consultant's monthly fee.
2.4 Advanced Costs
Consultant may, but is not required to, advance cost for out of pocket
expenses. Principal shall reimburse all costs advanced by Consultant within ten
(10) days of receipt of Consultant's invoice. For all costs that Consultant
does not advance Principal shall promptly provide to Consultant, or pay to a
third party, all costs necessary to allow Consultant to perform its obligations
under this Agreement. Consultant will directly xxxx Principal for all public
relations services under that Consultant provides through a third party
subcontractor. Principal acknowledges that it has been informed in advance that
Consultant plans on obtaining substantial services from third party
subcontractors.
2.5 Approved Costs
Costs that Consultant may incur include, but are not limited to:
travel, entertainment, printing, telephone, advertising, third party services,
printing, postage and courier fees. Consultant will seek and receive
Principal's approval for any expenditures in excess of $5,000 monthly prior to
expending said monies or incurring said expense.
2.6 Guarantee
Principal hereby guarantees all fees payable to Consultant under this
Agreement.
ARTICLE THREE
MISCELLANEOUS
Initialed: Principal Consultant
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3.1 Notices
All notices, demands or other written communications hereunder shall
be in writing and unless otherwise provided, shall be deemed to have been duly
given if transmitted by FAX as follows:
To Consultant:
XXXXX X. XXXXXX
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Fax 000-000-0000
To Principal:
XXX XXXXXXXX, Vice President
HARVARD SCIENTIFIC CORP.
00000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
000-000-0000
In each case, copies of all notices, demands or other written
communications will be sent to such other address(es) or to such other
person(s) as a Party shall designate to the other for such purposes in the
manner hereinabove set forth.
3.2 Amendments
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the Party
to be charged.
3.3 Merger
This instrument, together with the instrument referred to herein,
contains all of the understandings and agreements of the Parties with respect
to this Agreement. All prior agreement whether written or oral are merged
herein and shall be of no force or effect.
3.4 Survival
Initialed: Principal Consultant
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The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party hereto.
3.5 Severability
If any provision or any portion of any provision of this Agreement,
other than a condition precedent, if any, or the application of such provision
or any portion thereof to any person or circumstance shall be held invalid or
unenforceable, the remaining portions of such provision and the remaining
provisions of this Agreement or the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those to which it held invalid or unenforceable, shall not be
affected thereby.
3.6 Governing Law and Venue
This Agreement shall be construed in accordance with laws of the State
of Florida. Any proceeding arising between the Parties in any matter pertaining
or related to this Agreement or the service to be provided under this Agreement
shall, to the extent permitted by law, be held in the County of Broward, State
of Florida.
3.7 Litigation
In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover all of its prelitigation and litigation costs and
expenses including reasonable attorney's fees up to and including all
negotiations, trials, and appeals, whether or not litigation is actually
initiated.
3.8 Benefit of Agreement
The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, jointly and severally, their successors,
assigns personal representatives, estate, heirs and legatees.
3.9 Captions
The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
Initialed: Principal Consultant
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