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ITEM 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made and entered into this 19th
day of April, 1996 by and between XXXXXX X. SEE, M.D., hereinafter referred to
as "CONSULTANT" and HARVARD SCIENTIFIC CORP., a Nevada corporation, hereinafter
referred to as "HARVARD."
The parties agree as follows:
1. TERM OF AGREEMENT. The consulting relationship between HARVARD and
CONSULTANT shall commence APRIL 1, 1996 (the "Commencement Date"), and shall
continue until MARCH 30, 1999 unless terminated earlier as provided in Section
5 hereof.
2. DUTIES OF CONSULTANT. Consultant shall render services as requested
by Harvard and shall hold the office of CHIEF SCIENTIFIC OFFICER. The time
devoted by Consultant shall be as needed to fulfill his duties. Consultant
shall be free to engage in other forms of employment or provide services to
other persons or firms so long as such employment does not interfere with
Consultant's duties to Harvard or such persons or firms do not compete with
Harvard.
3. TIME AND EFFORTS. Consultant will at all times be faithfully and
industriously and to the best of his ability, experience and talents perform
all duties that may be required under this Agreement. Such duties shall be
rendered primarily at the office of Harvard, although Consultant may be
required to travel at the sole expense of Harvard to such places as
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may be required to conduct business on behalf of Harvard. However, such travel
must be at reasonable times and shall be required in such a way as to not
impose a burden upon Consultant.
4. COMPENSATION. In full payment for Consultant's services, Employer
shall pay to Consultant compensation determined in accordance with the terms
below.
4.1 SALARY. Consultant shall receive a salary of $12,500 per month
to be reviewed by the Board of Directors on a quarterly basis. Harvard
agrees to increase said salary to a level more in conformity with industry
standards as soon as economically feasible for the company in view of the
performance of Consultant and the earnings of Harvard.
4.2 PERCENTAGE OF FEES BASED ON GROSS PROCEEDS. In addition to the
monthly salary described in Section 4.1 above, the Consultant shall be entitled
to 5% of the gross proceeds and/or 2% of net sales of the HARVARD. Payment
hereunder shall be made to Consultant within five (5) days after the beginning
of each calendar month subject to adjustment within thirty (30) days after the
end of each calendar year.
4.3 EXPENSES. Harvard shall reimburse Consultant for all
reasonable and necessary business expenses incurred by Consultant in the
discharge of his duties.
4.4 AIR TRAVEL. When Consultant travels on business for Harvard,
he shall travel on the same basis as Harvard's most favorably treated employee
or director.
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4.5 MEMBER OF BOARD OF DIRECTORS. Consultant shall serve on
Harvard's Board of Directors during the initial term of this contract, or until
the shareholders of Harvard elect a new Board of Directors.
4.6 CONTROL OF MANUFACTURING. Consultant, as inventor of the
erectile dysfunction product, shall be assigned the duty of supervising the
manufacturing process to insure the integrity of the product. Consultant shall
be allowed to choose the manufacturer as well as all components of the process
and shall be consulted regarding the marketing strategy to be employed in the
sale of the product.
5. TERMINATION.
5.1 This Consulting Agreement may be terminated at any time by
Consultant with or without cause. Harvard has no right to terminate this
Consulting Agreement except upon the breach hereof by Consultant. Without
limitation of the foregoing, Consultant shall not be required to mitigate his
damages in the event Harvard shall terminate this Consulting Agreement, and
earnings or other compensation received by the Consultant from third parties
during the unexpired term of this agreement shall not be offset against or
reduce any amounts payable for Harvard hereunder. If, at any time, Consultant
breaches material obligation under this Consulting Agreement, Harvard shall
give written notice to Consultant and may terminate this agreement if such
breach is not promptly cured. Such termination is effective upon the date set
forth in such notice.
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Upon termination, all of Harvard and Consultant's confidential information and
solicitation shall survive the termination, breach or expiration of this
Consulting Agreement for a period of ten (10) years.
5.2 Upon lawful termination in accordance with this Consulting
Agreement, Harvard shall only be liable to Consultant for the salary and
percentage of gross sales fully earned and paid under paragraph 4 above, as of
the termination date.
6. TRADE SECRETS AND PROPRIETARY INFORMATION OF HARVARD.
6.1 Consultant will have access to, will acquire and become
acquainted with various trade secrets, confidential and proprietary
information, relating to Harvard's business, including but not limited to:
client, consultant, employee, supplier and distributor lists, contacts,
addresses, information about employees and employee relations, training manuals
and procedures, recruitment methods and procedures, employment and client
contracts, contracts with suppliers of goods and services, employee handbooks,
information about clients and suppliers, price lists, costs and expenses,
documents, ledgers, proposals, financial information, inventions, protocols,
patterns, processes, computer programs, manufacturing, recruitment and
distribution techniques, specifications, tapes and compilations of information,
all of which are owned by Harvard or clients of Harvard and which are used in
the operation of Harvard's or clients' business. Consultant shall hold in the
strictest confidence and shall not (other than as specifically allowed in
writing by Harvard) disclose or use any trade secret or confidential
information of Harvard, directly or indirectly, or use them in any way, either
during the term of the Consultant's engagement, or at any time thereafter,
except as required by Harvard, in the course of Harvard's engagement.
Consultant understands that the term
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trade secret or confidential information means all information concerning
Harvard, clients of Harvard, or any parent, subsidiary or affiliate of Harvard
or a client, any supplier, or any client (including, but not limited to,
information regarding the peculiarities, preferences and manner of doing
business) that is not generally known to the public. All items referred to in
this paragraph and similar items relating to business of Harvard or client,
whether prepared by Consultant or otherwise, shall remain the exclusive
property of Harvard or client and shall not be removed otherwise, shall remain
the exclusive property of Harvard or client, and shall not be removed from
Harvard's or client's premises without prior written consent of Harvard.
Consultant also agrees that the remedy at law for breach of this paragraph is
inadequate and the Harvard, in addition to any other remedy, can seek
appropriate injunctive relief from an appropriate court or arbitrator, at its
election, without bond, including mandatory injunction.
6.2 LETTER PATENT. Consultant will, at any time during his
engagement or thereafter, upon request and without further compensation
therefore, but at no expense to him, do unlawful acts, including the execution
of paper and oaths and the giving of testimony, that in the opinion of Harvard,
may be necessary or
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desirable for obtaining, sustaining, reusing or enforcing Letters Patent in the
United States and throughout the world for said inventions, and for perfecting,
recording or maintaining the title of Harvard, its successors and assigns, to
said Inventions and to any patent applications made and any Letters Patent
granted for said inventions in the United States and throughout the world.
6.3 RECORDS, OBLIGATION TO KEEP. Consultant will keep complete,
accurate and authentic accounts, notes, data and records of any and all kinds
of said inventions in the manner and form requested by Harvard. Such accounts,
notes, data and records, including all copies thereof, shall be the property of
Harvard and upon its request, Consultant will promptly surrender the same to
it, or if not previously surrendered, will promptly surrender the same to
Harvard at the conclusion of his engagement.
6.4 RECORDS PROPERTY OF EMPLOYER. Consultant agrees that all
accounts, notes, data, sketches, drawings and other documents and records, and
all material and physical items of any kind, including all reproductions and
copies thereof, which relate in any way to the business, products, practices or
techniques of Harvard or contain confidential information, made by Consultant
or that come into his possession by reason of his engagement are the property
of Harvard at the conclusion of this Consulting Agreement.
7. DISPUTE RESOLUTION PROCEDURE. Any controversy or claim, including,
but not limited to tort and contract claims, arising out of, or relating to
Consultant's engagement, the termination of
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Consultant's employment, commissions, the terms and conditions of this
Consulting Agreement, or the coverage of this dispute resolution procedure
shall be resolved by binding arbitration in accordance with the Commercial
Rules them obtaining of the American Arbitration Association Judgment upon the
arbitrator's award may be entered by any court of competent jurisdiction and
may include reasonable attorneys fees in the discretion of the arbitrator.
8. INJUNCTIVE RELIEF. The services of Consultant, as well as the trade
secrets and the proprietary and confidential information of Harvard are of a
special, unique, unusual and extraordinary nature, which gives them a peculiar
value, the loss of which cannot reasonably or adequately be compensated for in
damages in an action at law. The breach by either party of any provision of
this Consulting Agreement would cause the other party irreparable injury and
damage, the measure of which could not be adequately measured at law.
Accordingly, each party shall be entitled, as a matter of right, to injunctive
and other equitable relief to prevent the violation of any provision of this
Consulting Agreement by the other. Each party hereby consents to the granting
of such injunctive or other equitable relief provided notice is given
hereunder. The exercise by either party of its rights hereunder shall not
constitute a waiver by such party of any other rights which it may have to
damages or otherwise.
9. CONSENT TO JURISDICTION. All legal proceedings in connection with
this Consulting Agreement shall be undertaken
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before an arbitrator pursuant to paragraph 7, except that claims for injunctive
or other equitable relief, or extraordinary writs may be brought in a proper
court in the State of Nevada, County of Washoe. Election by any party to this
Agreement to seek such relief in court shall not constitute a waiver of
arbitration pursuant to paragraph 7, but shall be used to preserve the status
quo pending arbitration. Both parties consent to the jurisdiction of any
arbitrator or court, state or federal, in the State of Nevada, provided notice
is given as provided in paragraph 10 below, of the commencement of such action.
10. NOTICE. Any notices hereunder shall be in writing and shall be
effective upon personal delivery or five days after deposit in the United
States mail, registered or certified, return receipt requested, postage
prepaid, addressed as follows or to such other addresses as may be specified in
the same manner:
If to Consultant to:
Xxxxxx X. See, M.D.
0000 Xxxxxxx Xxxxxx.
Xxx Xxxxx, XX 00000
If to Harvard to:
Harvard Scientific Corp.
0000 Xxxx Xxxxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
11. ATTORNEY'S FEES. In the event that any of the parties must resort
to legal action in order to enforce the provisions of this Consulting Agreement
or to defend such suit, the prevailing party shall be entitled to receive
reimbursement from the non-prevailing party for all reasonable attorney's fees
and all other
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costs incurred in commencing or defending such suit.
12. SEVERABILITY. If any term or provision of this Consulting
Agreement is or are held to be invalid or unenforceable, the remaining portions
of this Consulting Agreement shall continue to valid and will be by law, and
the invalid or unenforceable term shall be deemed amended and limited in
accordance with the intent of the parties as determined the face of the
Consulting Agreement, to the extent necessary to permit the maximum
enforceability of the term of provision.
13. ENTIRE AGREEMENT. This Consulting Agreement embodies the entire
understanding between the parties with respect to the subject between them, and
no party shall be bound by any definitions, conditions, or warranties, or
representations other than as expressly stated in this Consulting Agreement or
as subsequently set forth in a writing signed by the duly authorized
representatives of all the parties hereto, or the party whose rights are
affected. This agreement may only be changed or modified and any provisions
hereof may only be changed or modified and any provisions hereof may only be
waived in or by a writing signed by the party against whom enforcement of any
waiver, change or modifications sought. This agreement may be amended only in
writing by mutual consent of the parties.
14. Confidentiality. The existence of this Consulting Agreement and its
terms are confidential and shall not be disclosed by Consultant or Harvard
except as may be required by law or to enforce the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be executed the day and year first above written.
CONSULTANT
By: /s/ XXXXXX X. SEE
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Xxxxxx X. See, M.D.
HARVARD SCIENTIFIC CORP.
By: /s/ XXX XXXXX
-----------------------------
Xxx Xxxxx, President
(Hereunto duly authorized)
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between HARVARD
SCIENTIFIC CORP., a Nevada Corporation, referred to as ("Employer") and XXXXXX
X. SEE, M.D. referred to herein as ("Employee").
The parties agree as follows:
1. Term of Agreement. The consulting relationship between Employer and
Employee shall commence APRIL 1, 1996 ("the Commencement Date"); and shall
continue until MARCH 30, 1999 unless terminated earlier as provided in Section
5 hereof.
2. Duties of Employee. Employee shall render services as requested by
Employer and shall hold the office of CHIEF SCIENTIFIC OFFICER. The time
devoted by Employee to his duties shall be as needed to fulfill his duties.
Employee shall be free to engage in other forms of employment or provide
services to other persons or firms so as long as such employment does not
interfere with Employee's duties to Employer or such persons or firms do not
compete with Employer.
3. Time and Efforts. Employee will at all times be faithfully and
industriously and to the best of his ability, experience and talents perform
all duties that may be required under this Agreement. Such duties shall be
rendered primarily at the office of Employer in Las Vegas, Nevada, although
Employee may be required to travel at the sole expense of Employer to such
places as may be required to conduct business on behalf of Employer. However,
such travel must be at reasonable times and shall be required in such a way as
to not impose a burden upon Employee.
4. Compensation. In full payment for Employee's services, Employer
shall pay to Employee compensation determined in accordance with the terms
below.
4.1 Salary. Employee shall receive a salary of $12,500 per
month to be reviewed by the Board of Directors on a quarterly basis. Employer
agrees to increase said salary to a level more in conformity with industry
standards as soon as economically feasible for the company in view of the
performance of employee and the earnings of Employer.
4.2 Percentage Fees Based on Net Sales. In addition to the
monthly salary described in Section 4.1 above, the Employee shall be entitled
to 2 PERCENT of the net sales of the Harvard Scientific Corp. Payment hereunder
shall be made to Employee within 5 days after the beginning of each calendar
month subject to adjustment within 30 days after the end of each calendar year.
4.3 Expenses. Employer shall reimburse Employee for all
reasonable and necessary business expenses incurred by Employee in the
discharge of his duties.
4.4 Air Travel. When Employee travels on business for
Employer, he shall travel on the same basis as employer's most favorably
treated employee or Director.
4.5 Board of Director Membership. Employee shall serve on
Employer's Board of Directors during the initial term of this contract or until
the shareholders of Employer elect a new Board of Directors.
4.6 Control of Manufacturing. Employee, as inventor of the
erectile dysfunction product, shall be assigned the duty of supervising the
manufacturing process to insure the integrity of the product. Employee shall be
allowed to choose the manufacturer as well as all components of the process and
shall be consulted regarding the marketing strategy to be employed in the sale
of the product.
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5. Termination.
5.1 This Agreement may be terminated at any time by employee
with or without cause. Employer has no right to terminate this Agreement except
upon the breach hereof by Employee without limitation of the foregoing.
Employee shall not be required to mitigate his damages in the event Employer
shall terminate this Agreement, and earnings or other compensation received by
the Employee from third parties during the unexpired term of this Agreement
shall not be offset against or reduce any amounts payable for Employer
hereunder. If, at any time, Employee breaches material obligation under this
agreement, Employer shall give written notice to Employee and may terminate
this Agreement if such breach is not promptly cured. Such termination is
effective upon the date set forth in such notice. Upon termination, all of
Employer and Employee's confidential information and solicitation shall survive
the termination, breach or expiration of this Agreement for a period of ten
(10) years.
5.2 Upon lawful termination in accordance with this Agreement,
Employer shall only be liable to employer for the salary and percentage of
gross sales fully earned and paid under paragraph 4 above, as of the
termination date.
6. Trade Secrets and Proprietary Information of Employer.
6.1 Employee will have access to, will acquire and become
acquainted with various trade secrets, confidential and proprietary
information, relating to Employer's business, including but not limited to:
client, consultant, employee, supplier, and distributor lists, contacts,
addresses, information about employees and employee relations, training manuals
and procedures, recruitment methods and procedures, employment and client
contracts, contracts with suppliers of goods and services, employee handbooks,
information about clients and suppliers, price lists, costs and expenses,
documents, budgets, proposals, financial information, inventions, protocols,
patterns, processes, computer programs, manufacturing, recruitment and
distribution techniques, specifications, tapes and compilations of information,
all of which are owned by Employer or clients of Employer and which are used in
the operation of Employer's or clients business. Employee shall hold in the
strictest confidence and shall not (other than as specifically allowed in
writing by Employer) disclose or use any trade secret or confidential
information of Employer, directly or indirectly, or use them in any way, either
during the term of the Employee's engagement, or at any time thereafter, except
as required by Employer, in the course of Employee's engagement. Employee
understands that the term "trade secret" or "confidential information" means
all information concerning Employer, clients of Employer, or any parent,
subsidiary or affiliate of Employer or a client, any supplier, or any client
(including, but not limited to, information regarding the peculiarities,
preferences and manner of doing business) that is not generally known to the
public. All items referred to in this paragraph and similar items relating to
business of employer or client, whether prepared by Employee or otherwise,
shall remain the exclusive property of Employer or client and shall not be
removed otherwise, shall remain the exclusive property of Employer or client
and shall not be removed from employer's or client's premises without prior
written consent of Employer. Employee also agrees that the remedy at law for
breach of this paragraph is inadequate and the Employer, in addition to any
other remedy, can seek appropriate injunctive relief from an appropriate court
or arbitrator, at its election, without bond, including mandatory injunction.
6.2 Letter Patent. Employee will, at any time during his
engagement or thereafter, upon request and without further compensation
therefore, but at no expense to him, do unlawful acts, including the execution
of paper and oaths and the giving of testimony, that in the opinion of
employer, may be necessary or desirable for obtaining, sustaining, reusing or
enforcing Letters Patent in the United States and throughout the world for said
Inventions, and for perfecting, recording or maintaining the title of Employer,
its successors and assigns, to said Inventions and to any patent applications
made and any Letters Patent granted for said Inventions in the United States
and throughout the world.
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6.3 Records, Obligation to Keep. Employee will keep complete,
accurate and authentic accounts, notes, data and records of any and all of said
inventions in the manner and form requested by Employer. Such accounts, notes,
data and records, including all copies thereof, shall be the property of
employer and upon its request, employee will promptly surrender the same to it,
or if not previously surrendered, will promptly surrender the same to Employer
at the conclusion of his engagement.
6.4 Records Property of Employer. Employee agrees that all
accounts, notes, data, sketches, drawings and other documents and records, and
all material and physical items of any kind, including all reproductions and
copies thereof, which relate in any way to the business, products, practices or
techniques of Employer or contain confidential information, made by Employee or
that come into his possession by reason of his engagement are the property of
employer at the conclusion of this agreement.
7. Dispute Resolution Procedure. Any controversy or claim, including,
but not limited to tort and contract claims, arising out of, or relating to
Employee's engagement, the termination of Employer's employment, commissions,
the terms and conditions of this Agreement, or the coverage of this dispute
resolution procedure shall be resolved by binding arbitration in accordance
with the Commercial Rules them obtaining of the American Arbitration
Association Judgment upon the arbitrator's award may be entered by any court of
competent jurisdiction and may include reasonable attorneys fees in the
discretion of the arbitrator.
8. Injunctive Relief. The services of Employee, as well as the trade
secrets and the proprietary and confidential information of Employer are of a
special, unique, unusual and extraordinary nature, which gives them a peculiar
value, the loss of which cannot reasonably or adequately be compensated for in
damages in an action at law. The breach by either party of any provision of
this Agreement would cause the other party irreparable injury and damage, the
measure of which could not be adequately measured at law. Accordingly, each
party shall be entitled, as a matter of right, to injunctive and other
equitable relief to prevent the violation of any provision of this Agreement by
the other. Each party hereby consents to the granting of such injunctive or
other equitable relief provided notice is given hereunder. The exercise by
either party of its rights hereunder shall not constitute a waiver by such
party of any other rights which it may have to damages or otherwise.
9. Consent to Jurisdiction. All legal proceedings in connection with
this Agreement shall be undertaken before an arbitrator pursuant to paragraph
7, except that claims for injunctive or other equitable relief, or
extraordinary writs may be brought in a proper court in the State of Nevada,
County of Xxxxx. No party's election to seek such relief in court shall not
constitute a waiver of arbitration pursuant to paragraph 7, but shall be used
to preserve the status quo pending arbitration. Both parties consent to the
jurisdiction of any arbitrator or court, state or federal, in the State of
Nevada, provided notice is given as provided in paragraph 10 below, of the
commencement of such action.
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10. Notice. Any notices hereunder shall be in writing and shall be
effective upon personal delivery or five days after deposit in the United
States mail, registered or certified, return receipt requested, postage
prepaid, addressed as follows or to such other addresses as may be specified in
the same manner:
If to Employee: XXXXXX X. SEE, M.D.
0000 Xxxxxxx Xxxxxx.
Xxx Xxxxx, XX 00000
If to Employer: HARVARD SCIENTIFIC CORP.
0000 Xxxx Xxxxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
11. Attorney's Fees. In the event that any of the parties must resort
to legal action in order to enforce the provisions of this Agreement or to
defend such suit, the prevailing party shall be entitled to receive
reimbursement from the non-prevailing party for all reasonable attorney's fees
and all other cost incurred in commencing or defending such suit.
12. Severability. If any term or provision of this Agreement is or are
held to be invalid or unenforceable, the remaining portions of this Agreement
shall continue to valid and will be by law, and the invalid or unenforceable
term shall be deemed amended and limited in accordance with the intent of the
parties as determined the face of the Agreement, to the extent necessary to
permit the maximum enforceability of the term of provision.
13. Entire Agreement. This Agreement embodies the entire understanding
between them, and no party shall be bound by any definitions, conditions, or
warranties, or representations other than as expressly stated in this Agreement
or as subsequently set forth in a writing signed by the duly authorized
representatives of all the parties hereto, or the party whose rights are
affected. This Agreement may only be changed or modified and any provisions
hereof may only be changed or modified and any provisions hereof may only be
waived in or by a writing signed by the party against whom enforcement of any
waiver, change or modifications sought. This Agreement may be amended only in
writing by mutual consent of the parties.
14. Confidentiality. The existence of this Agreement and its terms are
confidential and shall not be disclosed by Employee or employer except as may
be required by law or to enforce the provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
DATE OF THIS AGREEMENT: April 19, 1996
--------------------
HARVARD SCIENTIFIC CORP.
By: /s/ XXXX XXXXXXXXX, CEO
---------------------------
Name & Title
-and-
/s/ XXXXXX X. SEE
---------------------------
Xxxxxx X. See
